AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This Amendment to Agreement and Plan of Merger ("Amendment") is made
this 28th day of February, 1996, among MEDICAL PRODUCTS, INC. ("MPI"), its
shareholders, THE XXXXXXXXX LIMITED PARTNERSHIP & XXXXXXXX COVE TRUST
("Shareholders"), NOVATEK INTERNATIONAL, INC. ("Novatek") and NOVATEK
INTERNATIONAL HOLDINGS, INC. ("Holdings").
RECITALS
Whereas, the parties hereto did execute that AGREEMENT AND PLAN OF
MERGER effective as of December 29, 1995 identified as execution version "B"
("Agreement"); and
Whereas, Novatek agreed to pay as consideration for the purchase of the
outstanding shares of MPI and for the satisfaction of the Promissory Note
("Note") dated November 30, 1995, due from MPI to New England Diagnostics
("XXX") the sum of Three Million ($3,000,000) dollars and to issue Seven
Million Two Hundred Thousand ($7,200,000) shares of unregistered Novatek
common stock in the aggregate; and
Whereas, the satisfaction of the amounts due to XXX under the Note, not
satisfied in cash, was to be in the unregistered common stock of Novatek at
an approximate value equal to the market value of the Novatek stock at date
of closing; and
Whereas, to effectuate the agreement between MPI and XXX and to bring
the Agreement and Plan of Merger and distribution of the consideration agreed
to by Novatek in line with the agreement of MPI and XXX, the parties desire
to amend the Agreement; and
Whereas, the Agreement and Plan of Merger called for Novatek to issue to
MPI a Three Million ($3,000,000) Dollar convertible Note which Novatek was to
cause MPI to transfer to XXX at closing. The Convertible Note has been
issued and delivered to MPI but not delivered to XXX at the date of signing
of this Amendment.
In consideration of the premises and for other good and valuable
considerations, the parties hereto intending to be legally bound, agreed to
amend the Agreement and Plan of Merger as follows:
1. Section 1.3.1(a) shall be amended by deleting it in its
entirety. Novatek and MPI hereby agree that the Convertible Note
which was issued pursuant to Section 1.3.1(a) and delivered to
MPI is hereby cancelled in consideration of the remaining
Amendments to the Agreement and Plan of Merger contained herein.
2. Novatek agrees to assume the Note at closing and make payment of
the Note on the terms contained herein.
3. Section 1.3.1(b) of the Agreement is amended by deleting it in its
entirety.
4. Paragraph 1.3.1(c) of the Agreement is amended by deleting it in
its entirety and replacing it with the following:
(c) At Closing, final payment of the remaining balance of
the Note ($950,000 having previously been paid to XXX)
shall occur by Novatek delivering to XXX and/or its
assigns, an amount of cash equal to One Million Four
Hundred Twenty Five Thousand Dollars ($1,425,000) of
immediately available funds and Three Million Four
Hundred Fifty-Three Thousand One Hundred Twenty-Five
(3,453,125) shares of Novatek unregistered common
stock.
5. Paragraph 1.3.1(d) of the Agreement is amended by deleting it in
its entirety and replacing it with the following:
(d) At closing, Novatek will transfer to the Shareholders
or their assigns Four Million Five Thousand Two Hundred
and Seventy-Five (4,005,275) shares of Novatek
unregistered common stock.
6. Section 1.3.1 (e) of the Agreement shall not be amended by the
provisions for consideration above. It is the intention of the parties that
Novatek will assume the XXX Contingent Obligation, as defined in the
Agreement and Plan of Merger, and issue the convertible debenture described
therein in escrow for the satisfaction of the XXX Contingent Obligation.
7. Section 2.1 of the Agreement is amended to make reference to and
disclose the existence of certain obligations of Med Pro as identified in
Schedule 2.1 to the Agreement.
8. Sections 3.5, 3.6, 3.7, 3.8,, 3.9, 3.10, 3.11, 3.12, 3.13, 3.14,
3.15, 3.16, 3.17 (b), 3.19 and 3.20 of the Agreement are hereby deleted.
9. Section 3.17 (c) of the Agreement is amended to insert at the
beginning of such subsection, the following words: "Except as contemplated
or provided in the Med Pro notes identified in Schedule 2.1 to the
Agreement, . . ."
10. Section 3.2 of the Agreement is amended to insert, at the beginning
of the third sentence therein, the following words:
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"Except as contemplated or provided in the Med Pro notes identified in
Schedule 2.1 to the Agreement, . . ."
11. Med Pro represents and warrants to Novatek and Acquisition Co.
that, pursuant to and as provided in a License Agreement dated November 30,
1995 between XXX and Med Pro, Med Pro has acquired from XXX an exclusive
license (the "License") to market and distribute certain diagnostic devices
described therein in all of the Countries of South America and in the
Bahamas. Subject to the payment of the consideration due to XXX for the
License as provided in the Agreement, the License is held by Med Pro and is
effective and in good standing. Novatek and Acquisition Co. acknowledge and
agree that Med Pro sublicensed or assigned to Novatek the portion of the
License as it relates to the Bahamas, and that Novatek sublicensed or
assigned to Xxxxxx X. Xxxxxxx such portion of the License as it relates to
the Bahamas.
12. Section 4.3 of the Agreement is deleted.
13. Section 4.7 (c) of the Agreement is amended to insert, at the
beginning of such subsection, the following words: "Except as contemplated
or provided in the Med Pro notes identified in Schedule 2.1 to the
Agreement, . . ."
14. Section 4.6 of the Agreement is amended to reflect that the
officers and directors of Novatek and Acquisition Co. are as identified in
Incumbency Certificates delivered simultaneously with the execution hereof.
15. Except as herein modified, the Agreement and Plan of Merger shall
remain in full force and effect. Capitalized terms used in this Amendment
without definition shall have the meanings given to such terms in the
Agreement.
16. This Amendment may be executed in multiple counterparts, each of
which shall be deemed an original but all of which together shall constitute
one agreement. Counterpart copies of this Amendment may be signed by all
parties and exchanged by telecopier. Counterpart copies so signed and
exchanged shall be fully binding.
[the remainder of this page is intentionally left blank]
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[counterpart signature page to
Amendment to Agreement and Plan of Merger]
IN WITNESS WHEREOF, the parties have executed this Amendment.
SHAREHOLDERS:
XXXXXXXXX LIMITED PARTNERSHIP
MIDDLEBURY ENTERPRISES, INC., its
sole general partner
By: /s/ Xxxxx Xxxxxxxxx
---------------------------------
Xxxxx Xxxxxxxxx
Its: President
--------------------------------
XXXXXXXX COVE TRUST
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------------
Title: Agent/Proxyholder
------------------------------
MEDICAL PRODUCTS, INC.
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------------
Title: President
------------------------------
NOVATEK INTERNATIONAL HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Title: /s/ President
------------------------------
NOVATEK INTERNATIONAL, INC.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Title: President
------------------------------
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ACKNOWLEDGEMENT AND ACCEPTANCE
NEW ENGLAND DIAGNOSTICS CORPORATION does hereby acknowledge the terms of
the Amendment to the Agreement and Plan of Merger and consents to the
assumption of the XXX Note, as defined therein, and consents to the
assumption of the debt by NOVATEK INTERNATIONAL, INC. from its subsidiary,
NOVATEK INTERNATIONAL HOLDINGS, INC. immediately subsequent to the completion
of the Agreement and Plan of Merger and payment of the same on the terms and
conditions contained herein.
NEW ENGLAND DIAGNOSTICS CORPORATION
By: /s/ Xxxxx Xxxxxxx
-------------------------------
Xxxxx Xxxxxxx, Authorized Agent
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Schedule to Agreement and Plan of Merger ("Agreement") dated as of December 29,
1995 among Medical Products, Inc., ("Med Pro" or the "Company"), its
shareholders, The Xxxxxxxxx Limited Partnership & Xxxxxxxx Cove Trust, (the
"Shareholders"), Novatek International, Inc., a Colorado corporation
("Novatek"), and a Florida corporation to be formed as a wholly-owned
subsidiary of Novatek ("Acquisition Co.")
The contents of or disclosures in any Schedule to this Agreement are, to the
extent relevant, hereby made a part of the Agreement and of all other
Schedules to the Agreement, regardless of whether any particular Schedule is
expressly incorporated by reference in and made a part of any other Schedule.
In addition, copies of each of the documents or materials referred to in or
attached to any Schedule to this Agreement (or made available to or obtained
by a party) have been provided to the party to whom delivery is to be made
and the existence and content thereof are deemed to be part of such Schedule.
Capitalized terms used in any Schedule without definition shall have the
meanings given to such terms in the Agreement.
SCHEDULE 1.5.3
OFFICERS AND DIRECTORS OF POST-MERGER ACQUISITION CO.
SEE INCUMBENCY CERTIFICATE DELIVERED AT CLOSING
Schedule to Agreement and Plan of Merger ("Agreement") dated as of December
29, 1995 among Medical Products, Inc., ("Med Pro" or the "Company"), its
shareholders, The Xxxxxxxxx Limited Partnership & Xxxxxxxx Cove Trust, (the
"Shareholders"), Novatek International, Inc., a Colorado corporation
("Novatek"), and a Florida corporation to be formed as a wholly-owned
subsidiary of Novatek ("Acquisition Co.")
The contents of or disclosures in any Schedule to this Agreement are, to the
extent relevant, hereby made a part of the Agreement and of all other
Schedules to the Agreement, regardless of whether any particular Schedule is
expressly incorporated by reference in and made a part of any other Schedule.
In addition, copies of each of the documents or materials referred to in or
attached to any Schedule to this Agreement (or made available to or obtained
by a party) have been provided to the party to whom delivery is to be made
and the existence and content thereof are deemed to be part of such Schedule.
Capitalized terms used in any Schedule without definition shall have the
meanings given to such terms in the Agreement.
SCHEDULE 2.1
OWNERSHIP OF COMPANY SHARES OF MED PRO
Xxxxxxxxx Limited Partnership - 3750 Shares
Xxxxxxxx Cove Trust - 3750 Shares
OTHER MED PRO DEBTS
* Approximately $929,000 in the aggregate of convertible
promissory notes issued by Med Pro pursuant to a Xxxxxx
Xxxxxxx & Co. underwritten private placement, copies of
each of which have been provided by Med Pro.
* $200,000 Med Pro Note to One Up Investments, a copy of
which has been provided by Med Pro.
* $50,000 Med Pro Note to X. Xxxxxx, a copy of which has
been provided by Med Pro.
* $97,759.91 Med Pro Note to Xxxxxxx Xxxxxxxxx, a copy of
which has been provided by Med Pro.
Schedule to Agreement and Plan of Merger ("Agreement") dated as of December
29, 1995 among Medical Products, Inc., ("Med Pro" or the "Company"), its
shareholders, The Xxxxxxxxx Limited Partnership & Xxxxxxxx Cove Trust, (the
"Shareholders"), Novatek International, Inc., a Colorado corporation
("Novatek"), and a Florida corporation to be formed as a wholly-owned
subsidiary of Novatek ("Acquisition Co.")
The contents of or disclosures in any Schedule to this Agreement are, to the
extent relevant, hereby made a part of the Agreement and of all other
Schedules to the Agreement, regardless of whether any particular Schedule is
expressly incorporated by reference in and made a part of any other Schedule.
In addition, copies of each of the documents or materials referred to in or
attached to any Schedule to this Agreement (or made available to or obtained
by a party) have been provided to the party to whom delivery is to be made
and the existence and content thereof are deemed to be part of such Schedule.
Capitalized terms used in any Schedule without definition shall have the
meanings given to such terms in the Agreement.
SCHEDULE 4.4
NOVATEK DEBTS AND LIABILITIES
NOVATEK INTERNATIONAL, INC.
SCHEDULE OF LIABILITIES
AS OF JANUARY 31, 1996
Trade Accounts Payable $102,264.12
Customer Deposits 2,500.00
Accrued Salaries and Wages 13,000.00
Accrued Vacation Pay 12,000.00
Employment Agreement 51,667.00
Loan Payable - 91 Chevy Pickup 3,372.03
Loan Payable - 93 Isuzu Pickup 2,002.68
Mortgage Payable - Xxxxxxx X. Xxxxx 155,000.00
Mortgage Payable - Point Fourteen Corp. 240,000.00
CONTINGENT LIABILITIES
Xxxxx Co. Case No. CL 95-6282 AG PB Cty
Xxxxxx Xxxxxxx Case No. CL 95-3844 AO PB Cty
Xxx Xxx Case No. CL 95-3844 AO PB Cty
Preferred Restoration Case No. CL 93-7986 AD PB Cty
OTHER LIABILITIES
liabilities incurred in the ordinary course of business (excluding
known construction claims) since January 31, 1996
