Exhibit 1
AGREEMENT AND PLAN OF REORGANIZATION
Agreement and Plan of Reorganization ("Agreement") between Senior Care
Industries, Inc., a Nevada corporation ("Senior Care "), and the undersigned
Shareholders. as "Shareholders" (the "Shareholder"), being the owner of record
of all of the issued and outstanding shares of Noble Concepts-Fidelity Inc., a
Costa Rican Company (the "Company").
WHEREAS, Senior Care wishes to acquire and the Shareholders wishes to
transfer all of the issued and outstanding stock of the Company in exchange for
750,000 shares of common stock of Senior Care the value of said stock to be
determined based upon the market value of said shares on the date of closing of
this transaction.
NOW, THEREFORE, Senior Care and the Shareholders adopt this Plan of
Reorganization and agree as follows:
SECTION 1. EXCHANGE OF STOCK
1.01 NUMBER OF SHARES. The Shareholders agrees to transfer to Senior
Care at the Closing all shares of stock in the Company presently owned by
Shareholders in exchange for 750,000 shares of Senior Care.
1.02 DELIVERY OF CERTIFICATES BY SHAREHOLDERS. The transfer of the
Company Shares by the Shareholders shall be effected by the delivery to Senior
Care at the Closing of certificates representing the Company Shares endorsed in
blank or accompanied by stock powers executed in blank, with all signatures
guaranteed by a national bank or broker-dealer.
1.03 FURTHER ASSISTANCE. At the Closing and from time to time
thereafter, the Shareholders shall execute such additional instruments and take
such other action as Senior Care may request in order to more effectively sell,
transfer and assign the transferred Company Shares to Senior Care and to confirm
Senior Care 's title thereto.
1.04 CHANGES IN SENIOR CARE 'S CAPITALIZATION. If between the date of
this Agreement and the Closing, the outstanding shares of Senior Care common
stock are, without the receipt of new consideration by Senior Care , increased,
decreased, changed into or exchanged for a different number or kind of shares or
securities of Senior Care through reorganization, reclassification, stock
dividend, stock split, reverse stock split or similar change in Senior Care 's
capitalization, Senior Care will issue and deliver to the Shareholders in
addition to or in lieu of the Senior Care Shares specified in Section 1.01,
voting stock of Senior Care in equitably adjusted amounts. In the event of any
change in Senior Care 's capitalization, all references to Senior Care Shares
herein shall refer to the number of Senior Care Shares as thus adjusted.
SECTION 2. CLOSING
2.01 The closing contemplated by Section 1.01 (the "Closing") shall be
held at the offices of Senior Care , on March 31, 2000, or as soon as practical
thereafter unless another place or time is agreed upon in writing by the
parties.
2.02 The effective date of this transaction for purposes of reflecting
the income and expense of the Company on the consolidated balance sheet and
income statement of Senior Care shall be January 1, 2000 even though this
Agreement is being executed at a later date.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
The Shareholders hereby warrant, represent and agree as follows:
3.01 CORPORATE STATUS. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the Costa Rica and is
licensed or qualified as a foreign corporation in all jurisdictions in which the
nature of its business or the character or ownership of its properties makes
such licensing or qualification necessary.
3.02 CAPITALIZATION. The authorized capital stock of the Company
consists of 1,000 shares of common stock, of which 1,000 shares are issued and
outstanding. All such shares are fully paid and non-assessable.
3.03 FINANCIAL STATEMENTS. The financial statements of the Company
furnished to Senior Care , consisting of an unaudited balance sheet as of March
31, 2000 and a related statement of income for the period then ended (the
"Financial Statements") will be delivered at the Closing, will be correct and
fairly present the financial condition of the Company as of the dates and for
the periods involved.
3.04 UNDISCLOSED LIABILITIES. The Company has no liabilities of any
nature except to the extent reflected or reserved against in the Financial
Statements, whether accrued, absolute, contingent or otherwise, including,
without limitation, tax liabilities and interest due or to become due, and the
Company's accounts receivable are collectible in accordance with the terms of
such accounts, except to the extent of the reserve therefor in the Financial
Statements.
3.05 INTERIM CHANGES. Between December 1, 1999 and the date of this
Agreement, there have not been, (1) any changes in the Company's financial
condition, assets, liabilities, or business which, in the aggregate, have been
materially adverse; (2) any damage, destruction or loss of or to the Company's
property, whether or not covered by insurance; (3) any declaration or payment of
any dividends or other distribution in respect of the Company's capital stock,
or any direct or indirect redemption, purchase or other acquisition or any such
stock; or (4) any increase paid or agreed to in the compensation, retirement
benefits or other commitments to employees.
3.06 TITLE TO PROPERTY. The Company has good and marketable title to
all properties and assets, real and personal, reflected in the Financial
Statements, except as since sold or otherwise disposed of in the ordinary course
of business, and the Company's properties and assets are subject to no mortgage,
pledge, lien or encumbrance, except for liens shown therein, with respect to
which no default exists.
3.07 LITIGATION. There is no litigation or proceeding pending, or to
Shareholders' knowledge threatened, against or relating to the Company, its
properties or business.
3.08 ACCESS TO RECORDS, ETC. From the date of this Agreement to the
Closing, the Shareholders will cause the Company (1) to give to Senior Care and
its representatives full access during normal business hours to all of its
offices, books, records, contracts, and other corporate documents and properties
so that Senior Care may inspect and audit them; and (2) to furnish such
information concerning the Company's properties and affairs as Senior Care may
reasonably request.
3.09 CONFIDENTIALITY Until the Closing (and permanently if there is no
Closing), the Shareholders and their representatives will keep confidential any
information which they obtain from Senior Care concerning its properties, assets
and business. If the transactions contemplated by this Agreement are not
consummated by March 31, 2000, the Shareholders will return to Senior Care all
written matter with respect to Senior Care obtained by them in connection with
the negotiation or consummation of this Agreement.
3.10 TITLE TO SHARES. The Shareholder is, in the aggregate, the owner,
free and clear of any liens, claims and encumbrances, of all Company Shares.
3.11 INVESTMENT INTENT. The Shareholders is acquiring the Senior Care
Shares for its own respective accounts, for investment purposes, and not for or
with a view to resale or distribution. The Senior Care shares shall bear a
legend to the effect that they represent restricted securities which may not be
sold, transferred or hypothecated in the absence of a registration statement
under the Securities Act of 1933, as amended, or an opinion of counsel that
registration is not required.
3.12 EMPLOYMENT AGREEMENTS. At the Closing each of the Shareholders
shall execute an employment agreement with the Company in the form attached
hereto as Exhibit 3.12.
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SENIOR CARE
Senior Care represents and warrants to, and covenants with the
Shareholders as follows:
4.01 CORPORATE STATUS. Senior Care is a corporation duly organized,
validly existing and in good standing under the laws of the State of Nevada and
is licensed or qualified as a foreign corporation in all jurisdictions in which
the nature of its business or the character or ownership of its properties makes
such licensing or qualification necessary.
4.02 CAPITALIZATION. The authorized capital stock of Senior Care
consists of 20,000,000 shares of common stock, having a par value of $.001 per
share, of which 5,465,000 shares are issued and outstanding, fully paid and
non-assessable.
4.03 UNDISCLOSED LIABILITIES. Senior Care has no liabilities of any
nature except to the extent reflected in Exhibit C, attached hereto.
4.04 TITLE TO PROPERTY. Senior Care has good and marketable title to
all properties and assets, real and personal, and Senior Care 's properties and
assets are subject to no mortgage, pledge, lien or encumbrance, except for liens
shown therein, with respect to which no default exists.
4.05 LITIGATION. There is no litigation or proceeding pending, or to
Senior Care 's knowledge threatened, against or relating to Senior Care , its
properties or business.
4.06 CONFIDENTIALITY. Until the Closing (and permanently if there is no
Closing), the Company and its representatives will keep confidential any
information which it obtained from the Company concerning its properties, assets
and business. If the transactions contemplated by this Agreement are not
consummated by May 1, 2000 Senior Care will return to the Company all written
matter with respect to the Company obtained by it in connection with the
negotiation or consummation of this Agreement.
4.07 INVESTMENT INTENT. Senior Care is acquiring the Company Shares to
be transferred to it under this Agreement for investment and not with a view to
the sale or distribution thereof, and Senior Care has no commitment or present
intention to liquidate the Company or to sell or otherwise dispose of the
Company Shares.
4.08 CORPORATE AUTHORITY. Senior Care has full corporate power and
authority to enter into this Agreement and to carry out its obligations
hereunder and will deliver to the Shareholders at the Closing a certified copy
of resolutions of its Board of Directors authorizing execution of this Agreement
by its officers and performance thereunder.
4.09 DUE AUTHORIZATION. Execution of this Agreement and performance by
Senior Care hereunder has been or prior to the Closing will be duly authorized
by all requisite corporate and Shareholders action on the part of Senior Care ,
and this Agreement constitutes a valid and binding obligation of Senior Care and
performance hereunder will not violate any provision of Senior Care 's Articles
of Incorporation, Bylaws, mortgages, agreements with third parties or other
commitments.
SECTION 5. CONDUCT OF COMPANY PENDING THE CLOSING
The Shareholders agree that from the date of this Agreement until the
Closing the Company will conduct itself in the following manner:
5.01 CERTIFICATE OF INCORPORATION AND BYLAWS. The Company will not
change its Certificate of Incorporation or Bylaws.
5.02 CAPITALIZATION, ETC. The Company will not make any change in its
authorized, issued or outstanding capital stock; grant any stock option or right
to purchase shares of its capital stock; issue any security convertible into
shares of its capital stock; purchase, redeem, retire, or otherwise acquire any
shares of its capital stock; or agree to do any of the foregoing; or declare,
set aside or pay any dividend or other distribution in respect of its capital
stock.
5.03 BUSINESS IN ORDINARY COURSE. The Company will conduct its business
in the ordinary course and will (1) use its best efforts to preserve its
business organization intact, to keep available to Senior Care the services of
its present officers and employees and to preserve the goodwill of suppliers,
customers and others having business relations with it; (2) maintain its
properties in customary repair, working order and condition, reasonable wear and
tear and damage by casualty excepted; (3) keep in force at no less than their
present limit all policies of insurance; (4) make no material change in the
customary terms and conditions on which it extends credit to customers; and (5)
enter into no sale, lease, contract, commitment or other transaction; provided,
however, that nothing in this Section 5.03 shall prohibit compliance by the
Company with, or the Company's borrowings or repayment funds pursuant to, and
agreements or other commitments disclosed by the Company to Senior Care .
5.04 BANKING ARRANGEMENTS; POWERS OF ATTORNEY. The Company will not
make any change in its banking and safe deposit arrangements and will not grant
any powers of attorney.
5.05 ACCOUNTING PRACTICES. Except as required by generally accepted
accounting principles, the Company will not make any changes in its accounting
methods or practices.
5.06 MERGER, ETC. The Company will not merge or consolidate with any
other corporation; sell or lease all or substantially all of its assets and
business; acquire all or substantially all of the stock of the business or
assets or any other person, corporation or business organization; or agree to do
any of the foregoing.
SECTION 6. COVENANTS AFTER THE CLOSING
6.01 AFTER CLOSING. From and after the Closing, all parties hereto
agree to issue certificates representing the Senior Care Shares to the
Shareholders of the Company pursuant to Paragraph 1.01 hereof.
SECTION 7. CONDITIONS PRECEDENT - SENIOR CARE
All obligations of Senior Care under this Agreement are subject, at
Senior Care 's option, to the fulfillment, before or at the Closing, of each of
the following conditions:
7.01 REPRESENTATIONS AND WARRANTIES TRUE AT CLOSING. The Shareholders'
representations and warranties contained in this Agreement shall be true and
correct as of the date hereof and as of the Closing in all material respects.
7.02 DUE PERFORMANCE. The Shareholders shall have performed and
complied with all the terms and conditions required by this Agreement to be
performed or complied with by them before the Closing.
7.03 BOOKS AND RECORDS. The Shareholders has caused the Company to make
available to Senior Care all books and records of the Company, including minute
books and stock transfer records.
7.04 ACCEPTANCE BY THE SHAREHOLDERS. The terms of this Agreement shall
have been accepted by all of the Shareholders of the Company as evidenced by
their signatures on the signature page of this Agreement.
SECTION 8. CONDITIONS PRECEDENT - THE SHAREHOLDERS
All obligations of the Shareholders under this Agreement are subject,
at their option, to the fulfillment, before or at the Closing, of each of the
following conditions:
8.01 REPRESENTATIONS AND WARRANTIES TRUE AT CLOSING. Senior Care 's
representations and warranties contained in this Agreement shall be true and
correct as of the date hereof at and as of the Closing in all material respects.
8.02 DUE PERFORMANCE. Senior Care shall have performed and complied
with all of the terms and conditions required by this Agreement to be performed
or complied with by it before the Closing.
8.03 REVOCATION OF PRIOR AUTHORIZATIONS. The Shareholders shall have
delivered to Senior Care , certified copies of resolutions of the Company's
Board of Directors revoking as of the Closing all prior authorizations, powers
of attorney, designations and appointments relating to the signing of checks,
borrowing of funds, access to corporate safe deposit boxes and other similar
matters, to the extent requested by Senior Care .
8.04 RESIGNATIONS. There shall have been delivered to Senior Care the
signed resignations of such directors of the Company as Senior Care shall
request, dated as of the Closing.
SECTION 9. INDEMNIFICATION
9.01 INDEMNIFICATION OF SENIOR CARE . The Shareholders severally (and
not jointly) agree to indemnify Senior Care against any loss, damage or expense
(including reasonable attorneys' fees) suffered by Senior Care from (1) any
breach by the Shareholders of this Agreement; or (2) any inaccuracy in or breach
of any of the representations, warranties or covenants by the Shareholders
herein; provided, however that (a) Senior Care shall be entitled to assert
rights of indemnification hereunder only if and to the extent that it suffers
losses, damages and expenses (including reasonable attorneys' fees) exceeding
$50,000 in the aggregate; and (b) Senior Care shall give notice of any claims
hereunder within the twenty-four (24) month period beginning on the date of the
Closing. No loss, damage or expense shall be deemed to have been sustained by
Senior Care to the extent of insurance proceeds paid to, or tax benefits
realizable by, Senior Care or the Company as a result of the event giving rise
to such light indemnification.
9.02 INDEMNIFICATION OF SHAREHOLDERS. Senior Care agrees to indemnify
the Shareholders against any loss, damage or expense (including reasonable
attorneys' fees) suffered by any of the Shareholders from (1) any breach by
Senior Care of this Agreement; or (2) any inaccuracy in or breach of any of
Senior Care 's representations, warranties or covenants herein.
9.03 DEFENSE OF CLAIMS. Upon obtaining knowledge thereof, the
indemnified party shall promptly notify the indemnifying party of any claim
which has given or could give rise to a right of indemnification under this
Agreement. If the right of indemnification relates to a claim asserted by a
third party against the indemnified party, the indemnifying party shall have the
right to employ counsel acceptable to the indemnified party to cooperate in the
defense of any such claim. So long as the indemnifying party is defending any
such claim in good faith, the indemnified party will not settle such claim. If
the indemnifying party does not elect to defend any such claim, the indemnified
party shall have no obligation to do so.
SECTION 10. TERMINATION
10.01 TERMINATION. This Agreement may be terminated (1) by mutual
consent in writing; (2) by either the Shareholders or Senior Care if there has
been a material misrepresentation or material breach of any warranty or covenant
by the other party; or (3) by either the Shareholders of Senior Care if the
Closing shall not have taken place, unless adjourned to a later date by mutual
consent in writing by March 31, 2000
SECTION 11. GENERAL PROVISIONS
11.01 FURTHER ASSURANCES. At any time, and from time to time, after the
Effective Date, each party will execute such additional instruments and take
such action as may be reasonably requested by the other party to confirm or
perfect title to any property transferred hereunder or otherwise to carry out
the intent and purposes of this Agreement.
11.02 WAIVER. Any failure on the part of either party hereto to comply
with any of its obligations, agreements or conditions hereunder may be waived in
writing by the party to whom such compliance is owed.
11.03 BROKERS. Each party represents to the other party that no broker
or finder has acted for it in connection with this Agreement, and agrees to
indemnify and hold harmless the other party against any fee, loss or expense
arising out of claims by brokers or finders employed or alleged to have been
employed by it.
11.04 NOTICES. All notices and other communications hereunder shall be
in writing and shall be deemed to have been given if delivered in person or sent
by prepaid first-class registered or certified mail, return receipt requested,
as follows:
To: Senior Care Industries, Inc.
c/o Xxxxxxx Xxxxxx
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000 Xxxxxxxx, 0xx Xxxxx
Xxxxxx Xxxxx, XX 00000
To: Fidelity Capital Group Holdings, Inc.
Xxxxx X. Xxxxx
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0000 Xxxxxxxxx, Xxxxx 000
Xxxxxx Xxxxx, XX 00000
11.05 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties and supersedes and cancels any other agreement,
representation, or communication, whether oral or written, between the parties
hereto relating to the transactions contemplated herein or the subject matter
hereof.
11.06 HEADINGS. The section and subsection headings in this Agreement
are inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
11.07 GOVERNING LAW. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Nevada.
11.08 ASSIGNMENT. This Agreement shall inure to the benefit of, and be
binding upon, the parties hereto and their successors and assigns; provided,
however, that any assignment by either party of its rights under this Agreement
without the written consent of the other party shall be void.
11.09 COUNTERPARTS. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. Facsimile
signatures shall be considered as original signatures.
1110 REVENUES Upon closing, 100% of all revenues resultant from
operations of Noble Concepts-Fidelity Inc., from January 1, 2000 forward shall
be the property of Senior Care and forwarded to Senior Care.
Executed as of this 28th day of April, 2000 . Senior Care Industries,
Inc.
By: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
Senior Care Industries, Inc.
SHAREHOLDERS OF Noble Concepts-Fidelity Inc.,
By: /s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
Shares of Company: 20,000
Shares to be issued in Senior Care : 150,000
By: s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
President
Fidelity Capital Group Holdings Inc.
Shares of Company: 80,000
Shares to be issued in Senior Care : 600,000
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