AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT
AND PLAN OF REORGANIZATION
AGREEMENT
AND PLAN OF MERGER (this "Agreement") is made this 12th
day of
May 2006, by and between Senticore, Inc., a Delaware corporation; Integrative
Health Technologies, Inc., an Illinois corporation (“IHT”); the persons named on
the signature page hereof, who are the owners of record of all the issued and
outstanding common stock of IHT and who execute and deliver this Agreement
(the
"IHT Stockholders"); and Xxx Xxxxx, based on the following:
Recitals
WHEREAS,
Senticore wishes to acquire all the issued and outstanding stock of IHT in
an
exchange for shares of convertible preferred stock of Senticore in a transaction
intended to qualify as a tax-free exchange pursuant to section 368(a)(1)(B)
of
the Internal Revenue Code of 1986, as amended.
WHEREAS,
Senticore, IHT and the IHT Stockholders intend to enter into a transaction
pursuant to which the holders of the outstanding shares of common stock of
Senticore and the IHT Stockholders will together become shareholders in
Senticore, and they intend that all shareholders shall be provided with an
equity participation in Senticore which is the equivalent of the dollar value
of
their equity interests on the date of closing. The calculation of such dollar
value excludes any compensation to them for dilution resulting from the
transaction. No additional compensation or additional common shares of Senticore
shall be provided to any board members, officers or any group of shareholders
of
Senticore pursuant to the contemplated transactions, other than calculated
value
of their shares at closing.
WHEREAS,
in furtherance thereof, the respective Boards of Directors of Senticore and
IHT,
as well as the IHT Stockholders, have approved the exchange, upon the terms
and
subject to the conditions set forth in this Agreement, pursuant to which all
of
the 78,188,548 shares of common stock, $.0001 par value, of IHT (the "IHT Common
Stock") issued and outstanding prior to the exchange, will be exchanged in
the
aggregate for 20,000,000 shares of convertible preferred stock, $.001 par value,
of Senticore, each share having the right to convert into 400 shares of common
stock, $.001 par value, of Senticore ("Senticore Common Stock"), and the right
to vote on an as converted basis with each share of Senticore Common Stock
(the
“Convertible Preferred Stock”) to be issued by Senticore to the IHT
Stockholders.
WHEREAS,
neither party is seeking tax counsel or legal or accounting opinions on whether
the transaction qualifies for tax free treatment.
Agreement
Based
on
the stated premises, which are incorporated herein by reference, and for and
in
consideration of the mutual covenants and agreements hereinafter set forth,
the
mutual benefits to the parties to be derived herefrom, and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, it is hereby agreed as follows:
ARTICLE
I
EXCHANGE
OF STOCK
1.01
Exchange
of Shares.
On the
terms and subject to the conditions set forth in this Agreement, on the Closing
Date (as defined in Section 1.05 hereof), the IHT Stockholders shall assign,
transfer, and deliver to Senticore, free and clear of all liens, pledges,
encumbrances, charges, restrictions, or claims of any kind, nature, or
description, all of the issued and outstanding 78,188,548 shares of IHT Common
Stock (the "IHT Shares") held by the IHT Stockholders, which shares shall
represent all of the issued and outstanding shares of IHT Common Stock, and
Senticore agrees to acquire such shares on such date by issuing and delivering
in exchange therefore to the IHT Stockholders on a pro rata basis an aggregate
of 20,000,000 restricted shares of Convertible Preferred Stock of Senticore.
Between the date of signing of this Agreement and Closing Date, a Certificate
of
Designation setting forth the terms and conditions of the Convertible Preferred
Stock shall be authorized by the Board of Directors of Senticore, in the form
set forth as Exhibit A hereto, and shall be filed with the Secretary of State
of
the State of Delaware. All shares of Convertible Preferred Stock to be issued
and delivered pursuant to this Agreement shall be appropriately adjusted to
take
into account any stock split, stock dividend, reverse stock split,
recapitalization, or similar change in the Senticore Common Stock which may
occur between the date of the execution of this Agreement and the Closing Date.
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1.02
Delivery of Certificates by the IHT Stockholders. The transfer of the IHT Shares
by the IHT Stockholders shall be effected by the delivery to Senticore at the
Closing (as set forth in Section 1.05 hereof) of certificates representing
the
transferred shares endorsed in blank or accompanied by stock powers executed
in
blank, with all signatures medallion guaranteed and with all necessary transfer
taxes and other revenue stamps affixed and acquired at the IHT Stockholders’
expense.
1.03
Operation as Wholly-Owned Subsidiary. After giving effect to the transaction
contemplated hereby, Senticore will own all the issued and outstanding shares
of
IHT and IHT will be a wholly-owned subsidiary of Senticore operating under
the
name “Integrative Health Technologies, Inc.”, an Illinois
corporation.
1.04
Further Assurances. At the Closing and from time to time thereafter, the IHT
Stockholders shall execute such additional instruments and take such other
action as Senticore may reasonably request, without undue cost to the IHT
Stockholders in order to more effectively sell, transfer, and assign clear
title
and ownership in the IHT Shares to Senticore.
1.05
Closing and Parties. The Closing contemplated hereby shall be held at a mutually
agreed upon time and place on or before May 19, 2006, or on another date to
be
agreed to in writing by the parties (the "Closing Date'). The Agreement may
be
closed at any time following approval by a majority of the holders of Senticore
Common Stock and the IHT Stockholders, if such approval is necessary under
applicable law. The Closing may be accomplished by wire, express mail, overnight
courier, conference telephone call or as otherwise agreed to by the respective
parties or their duly authorized representatives.
1.06
Closing Events.
| (a) |
Senticore
Deliveries. Subject to fulfillment or waiver of the conditions set
forth
in Article IV, Senticore shall deliver to IHT at Closing all the
following:
|
| (i) |
| (ii) |
Incumbency
and specimen signature certificates dated the Closing Date with respect
to
the officers of Senticore executing this Agreement and any other
document
delivered pursuant hereto on behalf of Senticore;
|
| (iii) |
Copies
of the resolutions/consents of Senticore’s board of directors and
shareholder minutes or consents authorizing the execution and performance
of this Agreement and the contemplated transactions, certified by
the
secretary or an assistant secretary of Senticore as of the Closing
Date;
|
| (iv) |
The
certificate contemplated by Section 4.02, duly executed by the chief
executive officer of Senticore;
|
| (v) |
The
certificate contemplated by Section 4.03, dated the Closing Date,
signed
by the chief executive officer of Senticore;
|
| (vi) |
Certificates
for 20,000,000 shares of Convertible Preferred Stock in the name
of the
IHT Stockholders pro rata, as listed in Exhibit B; and
|
| (vii) |
In
addition to the above deliveries, Senticore shall take all steps
and
actions as Senticore and the IHT Stockholders may reasonably request
or as
may otherwise be reasonably necessary to consummate the transactions
contemplated hereby.
|
| (b) |
IHT
Deliveries. Subject to fulfillment or waiver of the conditions set
forth
in Article V, IHT and/or the IHT Stockholders shall deliver to Senticore
at Closing all the following:
|
| (i) |
A
certificate of good standing from the Department State of Illinois,
issued
as of a date within ten days prior to the Closing Date certifying
that IHT
is in good standing as a corporation in the State of Illinois, attached
hereto as Exhibit C;
|
| (ii) |
Incumbency
and specimen signature certificates dated the Closing Date with respect
to
the officers of IHT executing this Agreement and any other document
delivered pursuant hereto on behalf of IHT;
|
| (iii) |
Copies
of resolutions/consents of the board of directors of IHT authorizing
the
execution and performance of this Agreement and the contemplated
transactions, certified by the secretary or an assistant secretary
of IHT
as of the Closing Date;
|
| (iv) |
The
certificate contemplated by Section 5.01, executed by the chief operating
officer of IHT; and
|
| (v) |
The
certificate contemplated by Section 5.02, dated the Closing Date,
signed
by the chief operating officer of IHT. In addition to the above
deliveries, IHT shall take all steps and actions as Senticore may
reasonably request or as may otherwise be reasonably necessary to
consummate the transactions contemplated
hereby.
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1.07 Director and Officer Resignations. At
Closing, the current Board of Directors of Senticore shall appoint such director
nominees as may be designated by IHT to fill vacancies on the
Board
of Directors of Senticore, and, thereafter, the current directors of Senticore
shall resign. In addition, at closing all officers of Senticore shall tender
their resignations to the Board
of
Directors, and new officers of Senticore shall be appointed by the newly
appointed Board of Directors of Senticore. All such director and officer
resignations shall be in compliance
with the Securities Exchange Act of 1934, as amended, and pursuant to a Schedule
14F-1 filing if the same shall be deemed to be necessary.
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ARTICLE II
REPRESENTATIONS,
COVENANTS AND WARRANTIES OF SENTICORE, ETC.
As
an
inducement to, and to obtain the reliance of IHT, Senticore and Xxx Xxxxx,
jointly and severally, represent, promise and warrant as follows:
2.01 Organization.
Senticore
is, and will be at Closing, a corporation duly organized, validly existing,
and
in good standing under the laws of the State of Delaware and has the corporate
power and is and will be duly authorized, qualified, franchised, and licensed
under all applicable laws, regulations, ordinances, and orders of public
authorities to own all of its properties and assets and to carry on its business
in all material respects as it is now being conducted, and there are no other
jurisdictions in which it is not so qualified in which the character and
location of the assets owned by it or the nature of the material business
transacted by it requires qualification, except where failure to do so would
not
have a material adverse effect on its business, operations, properties, assets
or condition. The execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated by this Agreement in accordance
with the terms hereof will not, violate any provision of Senticore’s Articles of
Incorporation or Bylaws, or other agreement to which it is a party or by which
it is bound.
2.02 Approval
of Agreement.
Senticore
has full power, authority, and legal right and has taken, or will take, all
action required by law, its Articles of Incorporation, Bylaws, and otherwise
to
execute and deliver this Agreement and to consummate the transactions herein
contemplated. The board of directors of Senticore has authorized and approved
the execution, delivery, and performance of this Agreement. Senticore
shareholders will not have dissenters rights with respect to any of the
transactions contemplated herein.
2.03 Capitalization.
The
authorized capitalization of Senticore consists of 200,000,000 shares of common
stock, $0.001 par value, of which 181,145,154 shares are issued and outstanding
prior to issuance of shares as set forth in Article I of this Agreement. There
are 20,000,000 authorized shares of preferred stock, $.001 par value, and no
shares of preferred stock are issued and outstanding, except for the 20,000,000
shares of Convertible Preferred Stock which are to be issued pursuant to Article
I of this Agreement. There
are, and at the Closing, there will be no outstanding subscriptions, options,
warrants, convertible securities, calls, rights, commitments or agreements
calling for or requiring issuance or transfer, sale or other disposition of
any
shares of capital stock of the Company or calling for or requiring the issuance
of any securities or rights convertible into or exchangeable (including on
a
contingent basis) for shares of capital stock. All of the outstanding shares
of
Senticore are duly authorized, validly issued, fully paid and non-assessable
and
not
issued in violation of the preemptive or other right of any person.
There
are no dividends due, to be paid or in arrears with respect to any of the
capital stock of Company.
2.04 Financial
Statements.
(i)
Included in Schedule 2.04 are the audited balance sheet of Senticore as of
December 31, 2005, and the related statements of operations, stockholders'
equity (deficit), and cash flows for the fiscal year ended December 31, 2005,
including the notes thereto (collectively the “Financial Statements”) and the
accompanying auditor’s report and representations by the Chief Financial Officer
of Senticore to the effect that such financial statements contain all
adjustments (all of which are normal recurring adjustments) necessary to present
fairly the results of operations and financial position for the periods and
as
of the dates indicated.
(ii)
The
financial statements of Senticore delivered pursuant to Section 2.04(i) have
been prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved as explained in the notes
to such financial statements. The Senticore financial statements present fairly,
in all material respects, as of the closing date, the financial position of
Senticore. Senticore will not have, as of the Closing Date, any liabilities,
obligations or claims against it (absolute or contingent) in excess of $5,000,
and all assets reflected therein present fairly the assets of Senticore in
accordance with generally accepted accounting principles.
(iii)
Senticore has filed or will file as the Closing Date its tax returns required
to
be filed for its two most recent fiscal years and will pay all taxes due
thereon. All such returns and reports are accurate and correct in all material
respects. Senticore has no liabilities with respect to the payment of any
federal, state, county, local, or other taxes (including any deficiencies,
interest, or penalties) accrued for or applicable to the period ended on the
closing date and all such dates and years and periods prior thereto and for
which Senticore may at said date have been liable in its own right or as
transferee of the assets of, or as successor to, any other corporation or
entity, except for taxes accrued but not yet due and payable, and to the best
knowledge of Senticore, no deficiency assessment or proposed adjustment of
any
such tax return is pending, proposed or contemplated. None of such income tax
returns has been examined or is currently being examined by the Internal Revenue
Service and no deficiency assessment or proposed adjustment of any such return
is pending, proposed or contemplated. Senticore has not made any election
pursuant to the provisions of any applicable tax laws (other than elections
that
relate solely to methods of accounting, depreciation, or amortization) that
would have a material adverse affect on Senticore, its financial condition,
its
business as presently conducted or proposed to be conducted, or any of its
respective properties or material assets. There are no outstanding agreements
or
waivers extending the statutory period of limitation applicable to any tax
return of Senticore.
2.05 Information.
The
information concerning Senticore set forth in this Agreement is complete and
accurate in all respects and does not contain any untrue statement of a fact
or
omit to state a fact required to make the statements made, in light of the
circumstances under which they were made, not misleading. Senticore shall cause
the schedules delivered by it pursuant hereto and the instruments delivered
to
IHT hereunder to be updated after the date hereof up to and including the
Closing Date.
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2.06 Absence
of Certain Changes or Events.
Except
as
set forth in this Agreement or the schedules hereto, since the date of the
most
recent Senticore balance sheet described in Section 2.04 and included in the
information referred to in Section 2.06:
(a)
There
has not been: (i) any adverse change in the business, operations, properties,
level of inventory, assets, or condition of Senticore; or (ii) any damage,
destruction, or loss to Senticore (whether or not covered by insurance)
adversely affecting the business, operations, properties, assets, or conditions
of Senticore;
(b)
Senticore has not: (i) amended its Articles of Incorporation or Bylaws; (ii)
declared or made, or agreed to declare or make, any payment of dividends or
distributions of any assets of any kind whatsoever to stockholders or purchased
or redeemed, or agreed to purchase or redeem, any of its capital stock; (iii)
waived any rights of value which in the aggregate are extraordinary or material
considering the business of Senticore; (iv) made any material change in its
method of management, operation, or accounting; (v) entered into any other
material transactions; (vi) made any accrual or arrangement for or payment
of
bonuses or special compensation of any kind or any severance or termination
pay
to any present or former officer or employee; (vii) increased the rate of
compensation payable or to become payable by it to any of its officers or
directors or any of its employees whose monthly compensation exceeds $1,000;
or
(viii) made any increase in any profit-sharing, bonus, deferred compensation,
insurance, pension, retirement, or other employee benefit plan, payment, or
arrangement made to, for, or with its officers, directors, or
employees;
(c)
Senticore has not: (i) granted or agreed to grant any options, warrants, or
other rights for its stocks, bonds, or other corporate securities calling for
the issuance thereof; (ii) borrowed or agreed to borrow any funds or incurred,
or become subject to, any material obligation or liability (absolute or
contingent) except liabilities incurred in the ordinary course of business;
(iii) paid any material obligation or liability (absolute or contingent) other
than current liabilities reflected in or shown on the most recent Senticore
balance sheet and current liabilities incurred since that date in the ordinary
course of business; (iv) sold or transferred, or agreed to sell or transfer,
any
of its material assets, properties, or rights (except assets, properties, or
rights not used or useful in its business which, in the aggregate have a value
of less than $5,000 or canceled, or agreed to cancel, any debts or claims
(except debts and claims which in the aggregate are of a value of less than
$5,000); (v) made or permitted any amendment or termination of any contract,
agreement, or license to which it is a party if such amendment or termination
is
material, considering the business of Senticore ; or (vi) issued, delivered,
or
agreed to issue or deliver any stock, bonds, or other corporate securities
including debentures (whether authorized and unissued or held as treasury
stock); and
(d)
Senticore has not become subject to any law, order, investigation, inquiry,
grievance or regulation which materially and adversely affects, or in the future
would be reasonably expected to adversely affect, the business, operations,
properties, assets, or condition of Senticore.
2.07 Litigation
and Proceedings.
There
are
no material actions, suits, claims, or administrative or other proceedings
pending, asserted or unasserted, threatened by or against Senticore or adversely
affecting Senticore or its properties, at law or in equity, before any court
or
other governmental agency or instrumentality, domestic or foreign, or before
any
arbitrator of any kind. Senticore is not in default of any judgment, order,
writ, injunction, decree, award, rule, or regulation of any court, arbitrator,
or governmental agency or instrumentality.
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2.08 Compliance
With Laws.
Senticore
and its officers and directors have complied with all federal, state, county
and
local laws, ordinances, regulations, inspections, orders, judgments,
injunctions, awards or decrees applicable to it or its business, including
federal and state securities laws. Senticore and its officers, directors and
beneficial owners are not under investigation by any federal, state, county
or
local authorities, including the Commission. Senticore and its officers,
directors and beneficial owners have not received notification from any federal,
state, county, or local authorities, including the Commission, that it or any
of
its officers or directors will be the subject of a legal action or that the
Commission’s Division of Enforcement will be recommending to the Commission that
a Federal District Court or Commission administrative action or any other action
be filed or taken against Senticore and its officers, directors and beneficial
owners.
2.09 Securities
and Exchange Commission Compliance of Senticore. Senticore has a class of
securities registered pursuant to Section 12 of the Securities Exchange Act
of
1934, as amended (“Exchange Act”) and has complied in all respects with Rule
14(a) and 14(c) of the Exchange Act, and with Sections 13 and 15(d) of the
Exchange Act, and Senticore, its management and beneficial owners have complied
in all respects with Sections 13(d) and 16(a) of the Exchange Act.
2.10 Material
Contract Defaults.
Senticore
is not in default under the terms of any outstanding contract, agreement, lease,
or other commitment, and there is no event of default or other event which,
with
notice or lapse of time or both, would constitute a default in any respect
under
any such contract, agreement, lease, or other commitment.
2.11 No
Conflict With Other Instruments.
The
execution of this Agreement and the consummation of the transactions
contemplated by this Agreement will not result in the breach of any term or
provision of, or constitute an event of default under, any material indenture,
mortgage, deed of trust, or other material contract, agreement, or instrument
to
which Senticore is a party or to which any of its properties or operations
are
subject.
2.12 Subsidiary.
Senticore
does not and has never owned, beneficially or of record, any equity securities
in any other entity. Senticore does not have a predecessor as that term is
defined under generally accepted accounting principles or Regulation S-X
promulgated by the Securities and Exchange Commission.
2.13 Senticore
Schedules and Documents.
Senticore
will deliver to IHT the following schedules and
documents
within ten days prior to the date of closing, which are collectively referred
to
as the "Senticore Schedules" and which consist of the following separate
schedules dated as of the date of execution of this Agreement, all certified
by
a duly authorized officer of Senticore as complete, true, and
accurate:
(a)
A
schedule including copies of the Articles of Incorporation and Bylaws of
Senticore in effect as of the date of this Agreement;
(b)
A
schedule containing copies of resolutions adopted by the board of directors
of
Senticore approving this Agreement and the transactions herein
contemplated;
(c)
A
schedule setting forth a description of any material adverse change in the
business, operations, property, inventory, assets, or condition of Senticore
since the most recent Senticore balance sheet, required to be provided pursuant
to Section 2.04 hereof;
(d)
A
schedule setting forth the financial statements required pursuant to Section
2.04(a) hereof;
(e)
A
schedule setting forth any other information, together with any required copies
of documents, required to be disclosed in the Senticore Schedules by Sections
2.01 through 2.12; and
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(f)
Legal
opinions in a form acceptable to IHT that Senticore has complied with applicable
securities laws pertaining to this Agreement.
Senticore
shall cause the Senticore Schedules and the instruments delivered to IHT
hereunder to be updated after the date hereof up to and including a specified
date not more than three business days prior to the Closing Date. Such updated
Senticore Schedules, certified in the same manner as the original Senticore
Schedules, shall be delivered prior to and as a condition precedent to the
obligation of IHT to close.
2.14 Quotation
on the OTC Bulletin Board. Senticore’s Common Stock is quoted on the OTC
Bulletin Board under the symbol “SNIO” and Senticore will retain such quotation
on the OTC Bulletin Board until the Closing of the transactions contemplated
herein.
2.15 Delivery
of Shareholder List. Upon execution of this agreement, Senticore shall deliver
a
certified shareholder list from its transfer agent setting forth the name of
each Senticore shareholder, the number of shares held by each, dated as of
a
date within five days of closing and whether such shares held are restricted
securities. In connection therewith, Senticore represents that none of its
shareholders are nominees for any other person.
2.16
Liabilities, Indebtedness, etc. As of the date of this Agreement, Senticore
shall not have any liabilities or indebtedness as such terms are defined by
Generally Accepted Accounting Principles except for those set forth on the
audited balance sheet contained in its Annual Report on Form 10-KSB for the
fiscal year ended December 31, 2005.
2.17
Business Development Company Status
On
February 11, 2005, Senticore made a legally valid and effective election under
Section 54 of the Investment Company Act of 1940, as amended, to be governed
by
section 55 to section 65 of the Investment Company Act of 1940, as amended,
as a
Business Development Company, by filing a Form N-54A with the Commission. Such
election is in full force and effect, and Senticore is entitled to all of the
benefits of and subject to all of the obligations imposed on a Business
Development Company since the date of its election, and Senticore is in
compliance in all material respects with the laws, rules and regulations
applicable to Business Development Companies.
ARTICLE
III
REPRESENTATIONS,
COVENANTS, WARRANTIES OF IHT, ETC.
As
an
inducement to, and to obtain the reliance of Senticore, IHT and the IHT
Stockholders, jointly and severally, represent and warrant as
follows:
3.01 Organization.
IHT
is,
and will be on the Closing Date, a corporation duly organized, validly existing,
and in good standing under the laws of the State of Illinois, and has the
corporate power and is and will be duly authorized, qualified, franchised,
and
licensed under all applicable laws, regulations, ordinances, and orders of
public authorities to own all of its properties and assets and to carry on
its
business in all material respects as it is now being conducted, and there are
no
other jurisdictions in which it is not so qualified in which the character
and
location of the assets owned by it or the nature of the material business
transacted by it requires qualification, except where failure to do so would
not
have a material adverse effect on its business, operations, properties, assets
or condition of IHT. The execution and delivery of this Agreement does not,
and
the consummation of the transactions contemplated by this Agreement in
accordance with the terms hereof will not, violate any provision of IHT’s
Articles of Incorporation or Bylaws, or other material agreement to which it
is
a party or by which it is bound.
3.02 Approval
of Agreement.
IHT
has
full power, authority, and legal right and has taken, or will take, all action
required by law, its Articles of Incorporation, Bylaws, or otherwise to execute
and deliver this Agreement and to consummate the transactions herein
contemplated. The board of directors of IHT has authorized and approved the
execution, delivery, and performance of this Agreement and the transactions
contemplated hereby, subject to the approval of the IHT Stockholders and
compliance with state and federal corporate and securities
laws.
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3.03 Capitalization.
The
issued and outstanding shares of common stock of IHT consist of 78,188,548
shares held by the shareholders listed on the signature page hereof. All issued
and outstanding shares of IHT are validly issued, fully paid, and nonassessable
and not issued in violation of the preemptive or other right of any person.
There are no dividends or other amounts due or payable with respect to any
of
the shares of capital stock of IHT.
3.04 Financial
Statements.
(a)
Included in Schedule 3.04 are the unaudited balance sheets of IHT as of December
31, 2005 and the related statements of operations, cash flows, and stockholders'
equity for the period from inception to December 31, 2005 including the notes
thereto and representations by the Chief Operating Officer of IHT to the effect
that such financial statements contain all adjustments (all of which are normal
recurring adjustments) necessary to present fairly the results of operations
and
financial position for the periods and as of the dates indicated.
(b)
The
unaudited financial statements delivered pursuant to Section 3.04(a) have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods
involved,
and are attached hereto as Exhibit D. The financial statements of IHT present
fairly, as of their respective dates, the financial position of IHT. IHT did
not
have, as of the date of any such balance sheets, except as and to the extent
reflected or reserved against therein, any liabilities or obligations (absolute
or contingent) which should be reflected in any financial statements or the
notes thereto prepared in accordance with generally accepted accounting
principles, and all assets reflected therein present fairly the assets of IHT,
in accordance with generally accepted accounting principles. The statements
of
revenue and expenses and cash flows present fairly the financial position and
result of operations of IHT as of their respective dates and for the respective
periods covered thereby.
3.05 Outstanding
Warrants and Options.
IHT
has
no issued warrants or options, calls, or commitments of any nature relating
to
the authorized and unissued IHT common stock, except as previously disclosed
in
writing to Senticore.
3.06 Information.
The
information concerning IHT set forth in this Agreement and in the schedules
delivered by IHT pursuant hereto is complete and accurate in all material
respects and does not contain any untrue statement of a material fact or omit
to
state a material fact required to make the statements made, in light of the
circumstances under which they were made, not misleading. IHT shall cause the
schedules delivered by IHT pursuant to this Agreement to Senticore to be updated
after the date hereof up to and including the Closing Date.
3.07 Absence
of Certain Changes or Events.
Except
as
set forth in this Agreement, since the date of the most recent IHT balance
sheet
described in Section 3.04 and included in the information referred to in Section
3.06:
(a)
There
has not been: (i) any material adverse change in the business, operations,
properties, level of inventory, assets, or condition of IHT; or (ii) any damage,
destruction, or loss to IHT materially and adversely affecting the business,
operations, properties, assets, or conditions of IHT;
(b)
IHT
has not: (i) amended its Articles of Incorporation or Bylaws; (ii) declared
or
made, or agreed to declare or make, any payment of dividends or distributions
of
any assets of any kind whatsoever to stockholders or purchased or redeemed,
or
agreed to purchase or redeem, any of its capital stock; (iii) waived any rights
of value which in the aggregate are extraordinary and material considering
the
business of IHT; (iv) made any material change in its method of accounting;
(v)
entered into any other material transactions other than those contemplated
by
this Agreement; (vi) made any material accrual or material arrangement for
or
payment of bonuses or special compensation of any kind or any severance or
termination pay to any present or former officer or employee; or (vii) made
any
material increase in any profit-sharing, bonus, deferred compensation,
insurance, pension, retirement, or other employee benefit plan, payment, or
arrangement made to, for, or with their officers, directors, or
employees;
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(c)
IHT
has not (i) granted or agreed to grant any options, warrants, or other rights
for its stocks, bonds, or other corporate securities calling for the issuance
thereof, except as previously disclosed in writing to Senticore; (ii) borrowed
or agreed to borrow any funds or incurred, or become subject to, any material
obligation or liability (absolute or contingent) except liabilities incurred
in
the ordinary course of business; (iii) paid any material obligation or liability
(absolute or contingent) other than current liabilities reflected in or shown
on
the most recent IHT balance sheet and current liabilities incurred since that
date in the ordinary course of business; (iv) sold or transferred, or agreed
to
sell or transfer, any of its material assets, properties, or rights, or agreed
to cancel any material debts or claims; (v) made or permitted any amendment
or
termination of any contract, agreement, or license to which it is a party if
such amendment or termination is material, considering the business of IHT;
or
(vi) issued, delivered, or agreed to issue or deliver any stock, bonds, or
other
corporate securities including debentures (whether authorized and unissued
or
held as treasury stock); and
(d)
To
the best knowledge of IHT, it has not become subject to any law or regulation
which materially and adversely affects, or in the future would be reasonably
expected to adversely affect, the business, operations, properties, assets,
or
condition of IHT.
3.08 Litigation
and Proceedings.
There
are
no material actions, suits, or proceedings pending or, to the knowledge of
IHT,
threatened by or against IHT or adversely affecting IHT, at law or in equity,
before any court or other governmental agency or instrumentality, domestic
or
foreign, or before any arbitrator of any kind. IHT does not have any knowledge
of any default on its part with respect to any judgment, order, writ,
injunction, decree, award, rule, or regulation of any court, arbitrator, or
governmental agency or instrumentality.
3.09 Material
Contract Defaults.
IHT
is
not in default in any material respect under the terms of any outstanding
contract, agreement, lease, or other commitment which is material to the
business, operations, properties, assets, or condition of IHT, and there is
no
event of default or other event which, with notice or lapse of time or both,
would constitute a default in any material respect under any such contract,
agreement, lease, or other commitment in respect of which IHT has not taken
adequate steps to prevent such a default from occurring.
3.10 No
Conflict With Other Instruments.
The
execution of this Agreement and the consummation of the transactions
contemplated by this Agreement will not result in the breach of any term or
provision of, or constitute an event of default under, any material indenture,
mortgage, deed of trust or other material contract, agreement, or instrument
to
which IHT is a party or to which any of its properties or operations are
subject.
3.11 Governmental
Authorizations.
IHT
has
all licenses, franchises, permits, and other governmental authorizations that
are legally required to enable it to conduct its business in all material
respects as conducted on the date of this Agreement. Except for compliance
with
federal and state law, as hereinafter provided, no authorization, approval,
consent, or order of, or registration, declaration, or filing with, any court
or
other governmental body is required in connection with the execution and
delivery by IHT of this Agreement and the consummation by IHT of the
transactions contemplated hereby.
3.12 Compliance
With Laws and Regulations.
IHT
has
complied with all applicable statutes and regulations of any federal, state,
or
other governmental entity or agency thereof having jurisdiction over IHT, except
to the extent that noncompliance would not materially and adversely affect
the
business, operations, properties, assets, or condition of IHT or except to
the
extent that noncompliance would not result in the occurrence of any material
liability for IHT. To the best knowledge of IHT, the consummation of this
transaction will comply with all applicable statutes and regulations, subject
to
the preparation and filing of any forms required by state and federal security
laws.
3.13 Subsidiaries.
IHT
does
not own beneficially or of record equity securities in any subsidiary that
has
not been previously disclosed to Senticore.
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3.14 IHT
Schedules.
IHT
has
delivered to Senticore the following schedules, which are collectively referred
to as the "IHT Schedules" and which consist of the following separate schedules
dated as of the date of execution of this Agreement, all certified by the Chief
Executive Officer of IHT as complete, true, and accurate:
(a)
A
schedule including copies of the Articles of Incorporation and Bylaws of IHT
and
all amendments thereto in effect as of the date of this Agreement;
(b)
A
schedule containing copies of resolutions adopted by the board of directors
of
IHT approving this Agreement and the transactions herein contemplated as
referred to in Section 3.02;
(c)
A
schedule setting forth a description of any material adverse change in the
business, operations, property, inventory, assets, or condition of IHT since
the
most recent IHT balance sheet, required to be provided pursuant to Section
3.04
hereof;
(d)
A
schedule setting forth the financial statements required pursuant to Section
3.04 (a) hereof; and
(e)
A
schedule setting forth any other information, together with any required copies
of documents, required to be disclosed in the IHT Schedules by Sections 3.01
through 3.14.
ARTICLE
IV
CONDITIONS
PRECEDENT TO OBLIGATIONS OF IHT
The
obligations of IHT under this Agreement are subject to the satisfaction or
waiver, at or before the Closing Date, of the following conditions:
4.01 Accuracy
of Representations.
The
representations and warranties made by Senticore in this Agreement were true
when made and shall be true at the Closing Date with the same force and effect
as if such representations and warranties were made at and as of the Closing
Date, and Senticore shall have performed or complied with all covenants and
conditions required by this Agreement to be performed or complied with by
Senticore prior to or at the Closing. IHT shall be furnished with certificates,
signed by duly authorized officers of Senticore and dated the Closing Date,
to
the foregoing effect.
4.02 Officer's
Certificates.
IHT
shall
have been furnished with certificates dated the Closing Date and signed by
the
duly authorized Chief Executive Officer of Senticore to the effect that to
such
officer's best knowledge no litigation, proceeding, investigation, or inquiry
is
pending or, to the best knowledge of Senticore threatened, which might result
in
an action to enjoin or prevent the consummation of the transactions contemplated
by this Agreement. Furthermore, based on certificates of good standing,
representations of government agencies, and Senticore’s own documents and
information, the certificate shall represent, to the best knowledge of the
officer, that:
| a. |
This
Agreement has been duly approved by Senticore’s board of directors and has
been duly executed and delivered in the name and on behalf of Senticore
by
its duly authorized officers pursuant to, and in compliance with,
authority granted by the board of directors of Senticore pursuant
to a
majority consent;
|
| b. |
There
have been no adverse changes in Senticore up to and including the
date of
the certificate;
|
| c. |
All
conditions required by this Agreement have been met, satisfied, or
performed by Senticore;
|
| d. |
All
authorizations, consents, approvals, registrations, reports, schedules
and/or filings with any governmental body including the Securities
and
Exchange Commission, agency, or court have been obtained or will
be
obtained by Senticore and all of the documents obtained by Senticore
are
in full force and effect or, if not required to have been obtained,
will
be in full force and effect by such time as may be required;
and
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| e. |
There
is no claim action, suit, proceeding, inquiry, or investigation at
law or
in equity by any public board or body pending or threatened against
Senticore, wherein an unfavorable decision, ruling, or finding could
have
an adverse effect on the financial condition of Senticore, the operation
of Senticore, or the merger contemplated herein, or any agreement
or
instrument by which Senticore is bound or in any way contests the
existence of Senticore.
|
4.03 No
Material Adverse Change.
Prior
to
the Closing Date, there shall not have occurred any adverse change in the
financial condition, business, or operations of Senticore, nor shall any event
have occurred which, with the lapse of time or the giving of notice, may cause
or create any adverse change in the financial condition, business, or operations
of Senticore.
4.04 Good
Standing.
IHT
shall
have received a certificate of good standing from the appropriate authority,
dated as of the date within five days prior to the Closing Date, certifying
that
Senticore is in good standing as a corporation in the State of
Delaware.
4.05 Other
Items.
IHT
shall
have received from Senticore such other documents, legal opinions, certificates,
or instruments relating to the transactions contemplated hereby as IHT may
request.
4.06 Completion
of Due Diligence Investigation.
IHT
shall
have completed its due diligence investigation of Senticore and its
subsidiaries, and such investigation shall be satisfactory to IHT in all
respects.
| 4.07 |
Amendment
of the Health and Medical Research Center and Nutmeg
Agreements.
|
The
Health and Medical Research Center and The Nutmeg Group, LLC shall have amended
their subscription agreements with respect to common stock of IHT or its
successor, and such amendments shall be satisfactory in all respects to IHT
4.08
Agreement with respect to Debt of Senticore to Nutmeg Group
IHT
and
The Nutmeg Group, LLC shall have entered into an agreement with respect to
the
indebtedness of Senticore to Nutmeg or its affiliates, which agreement shall
be
satisfactory in all respects to IHT.
ARTICLE
V
CONDITIONS
PRECEDENT TO OBLIGATIONS OF SENTICORE
The
obligations of Senticore under this Agreement are subject to the satisfaction,
at or before the Closing Date, of the following conditions:
5.01 Accuracy
of Representations.
The
representations and warranties made by IHT and the IHT Stockholders in this
Agreement were true when made and shall be true at the Closing Date with the
same force and affect as if such representations and warranties were made at
and
as of the Closing Date (except for changes therein permitted by this Agreement),
and IHT shall have performed or complied with all covenants and conditions
required by this Agreement to be performed or complied with by IHT prior to
or
at the Closing. Senticore shall be furnished with a certificate, signed by
a
duly authorized officer of IHT and dated the Closing Date, to the foregoing
effect.
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5.02 Officer's
Certificates.
Senticore
shall have been furnished with certificates dated the Closing Date and signed
by
the duly authorized Chief Operating Officer of IHT to the effect that no
litigation, proceeding, investigation, or inquiry is pending or, to the best
knowledge of IHT, threatened, which might result in an action to enjoin or
prevent the consummation of the transactions contemplated by this Agreement.
Furthermore, based on certificates of good standing, representations of
government agencies and IHT’s own documents, the certificate shall represent, to
the best knowledge of the officer, that:
| a. |
This
agreement has been duly approved by IHT’s board of directors and
stockholders and has been duly executed and delivered in the name
and on
behalf of IHT by its duly authorized officers pursuant to, and in
compliance with, authority granted by the board of directors of IHT
pursuant to a unanimous consent of its board of directors and a majority
vote of its stockholders;
|
| b. |
Except
as provided or permitted herein, there have been no material adverse
changes in IHT up to and including the date of the
certificate;
|
| c. |
All
material conditions required by this Agreement have been met, satisfied,
or performed by IHT;
|
| d. |
All
authorizations, consents, approvals, registrations, and/or filings
with
any governmental body, agency, or court required in connection with
the
execution and delivery of the documents by IHT have been obtained
and are
in full force and effect or, if not required to have been obtained
will be
in full force and effect by such time as may be required;
and
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| e. |
There
is no material action, suit, proceeding, inquiry, or investigation
at law
or in equity by any public board or body pending or threatened against
IHT, wherein an unfavorable decision, ruling, or finding would have
a
material adverse affect on the financial condition of IHT, the operation
of IHT, or the merger contemplated herein, or any material agreement
or
instrument by which IHT is bound or would in any way contest the
existence
of IHT.
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5.03 No
Material Adverse Change.
Prior
to
the Closing Date, there shall not have occurred any material adverse change
in
the financial condition, business or operations of IHT, nor shall any event
have
occurred which, with the lapse of time or the giving of notice, may cause or
create any material adverse change in the financial condition, business, or
operations of IHT.
| 5.04. |
Completion
of Due Diligence Investigation.
|
Senticore
shall have completed its due diligence investigation of IHT and its
subsidiaries, and such investigation shall be satisfactory to Senticore in
all
material respects.
5.05 Good
Standing.
Senticore
shall have received a certificate of good standing (or its local equivalent)
from the appropriate authority, dated as of a date within five days prior to
the
Closing Date, certifying that IHT is in good standing as an Illinois
corporation.
5.06
Release of Xxxxx and Associates from Indebtedness.
The
Nutmeg Group, LLC shall have executed and delivered to Xxx Xxxxx and his
associates a release and cancellation of that certain guaranty of indebtedness
owed by Senticore, Inc. to Nutmeg in the approximate principal amount of
$1,000,000.
5.07 Other
Items.
Senticore
shall have received such further documents, certificates, or instruments
relating to the transactions contemplated hereby as Senticore may reasonably
request.
ARTICLE
VI
SPECIAL
COVENANTS
6.01 Activities
of Senticore and IHT
(a)
From
and after the date of this Agreement until the Closing Date and except as set
forth in the respective schedules to be delivered by Senticore and IHT pursuant
hereto or as permitted or contemplated by this Agreement, Senticore and IHT
will
each:
(i)
Carry
on its business in substantially the same manner as it has
heretofore;
(ii)
Maintain in full force and effect insurance comparable in amount and in scope
of
coverage to that now maintained by it;
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(iii)
Perform in all material respects all of its obligations under material
contracts, leases, and instruments relating to or affecting its assets,
properties, and business;
(iv)
Use
its best efforts to maintain and preserve its business organization intact,
to
retain its key employees, and to maintain its relationships with its material
suppliers and customers;
(v)
Duly
and timely file for all taxable periods ending on or prior to the Closing Date
all tax returns required to be filed by or on behalf of such entity or for
which
such entity may be held responsible and shall pay, or cause to pay, all taxes
required to be shown as due and payable on such returns, as well as all
installments of tax due and payable during the period commencing on the date
of
this Agreement and ending on the Closing Date; and
(vi)
Fully comply with and perform in all material respects all obligations and
duties imposed on it by all federal and state laws and all rules, regulations,
and orders imposed by federal or state governmental authorities.
(b)
From
and after the date of this Agreement and except as provided herein until the
Closing Date, Senticore and IHT will each not:
(i)
Make
any change in its Articles of Incorporation or Bylaws;
(ii)
Enter into or amend any material contract, agreement, or other instrument of
any
of the types described in such party's schedules, except that a party may enter
into or amend any contract, agreement, or other instrument in the ordinary
course of business; and
(iii)
Enter into any agreement for the sale of Senticore securities or a merger or
sale of substantially all of the assets of Senticore without the prior written
approval of IHT.
6.02 Access
to
Properties and Records.
Until
the
Closing Date, IHT and Senticore will afford to the other party's officers and
authorized representatives and attorneys full access to the properties, books,
and records of the other party in order that each party may have full
opportunity to make such reasonable investigation as it shall desire to make
of
the affairs of IHT or Senticore and will furnish the other party with such
additional financial and other information as to the business and properties
of
IHT
or
Senticore as each party shall from time to time reasonably request.
6.03 Indemnification
by IHT and the IHT Stockholders.
| a. |
IHT
will indemnify and hold harmless Senticore and its directors and
officers,
and each person, if any, who controls Senticore within the meaning
of the
Securities Act from and against any and all losses, claims, damages,
expenses, liabilities, or other actions to which any of them may
become
subject under applicable law (including the Securities Act and the
Securities Exchange Act) and will reimburse them for any legal or
other
expenses reasonably incurred by them in connection with investigating
or
defending any claims or actions, whether or not resulting in liability,
insofar as such losses, claims, damages, expenses, liabilities, or
actions
arise out of or are based upon: (i) any untrue statement or alleged
untrue
statement of a material fact contained in any of the representations,
covenants and warranties set forth herein; or (ii) the breach of
any
covenant or agreement set forth herein. The indemnity set forth herein
shall survive the consummation of the transactions herein for a period
of
one year.
|
| b. |
The
IHT Stockholders will indemnify and hold harmless Senticore, Senticore’s
directors and officers, and each person, if any, who controls Senticore
within the meaning of the Securities Act from and against any and
all
losses, claims, damages, expenses, liabilities, or other actions
to which
any of them may become subject under applicable law (including the
Securities Act and the Securities Exchange Act) and will reimburse
them
for any legal or other expenses reasonably incurred by them in connection
with investigating or defending any claims or actions, whether or
not
resulting in liability, insofar as such losses, claims, damages,
expenses,
liabilities, or actions arise out of or are based upon: (i) any untrue
statement or alleged untrue statement of a material fact contained
in any
of the representations, covenants and warranties set forth herein;
or (ii)
the breach of any covenant or agreement set forth herein. The indemnity
set forth herein shall survive the consummation of the transactions
herein
for a period of one year.
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| 6.04 |
Indemnification
by Senticore and Xxxxx.
|
Senticore
and Xxx Xxxxx will indemnify and hold harmless IHT, the IHT Stockholders, IHT’s
directors and officers, and each person, if any, who controls IHT within the
meaning of the Securities Act from and against any and all losses, claims,
damages, expenses, liabilities, or actions to which any of them may become
subject under applicable law (including the Securities Act and the Securities
Exchange Act) and will reimburse them for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any claims or
actions, whether or not resulting in liability, insofar as such losses, claims,
damages, expenses, liabilities, or actions arise out of or are based upon:
(i)
any untrue statement or alleged untrue statement of a material fact contained
in
any of the representations, covenants and warranties set forth herein; or (ii)
the breach of any covenant or agreement set forth herein. The indemnity set
forth herein shall survive the consummation of the transactions herein for
a
period of one year.
6.05 The
Issuance of Senticore Stock.
Senticore
and IHT understand and agree that the consummation of this Agreement, including
the issuance of the Convertible Preferred Stock to the IHT Stockholders as
contemplated hereby, constitutes the offer and sale of securities under the
Securities Act and applicable state statutes. Senticore and IHT agree that
such
transactions shall be consummated in reliance on exemptions from the
registration requirements of such statutes that depend, among other items,
on
the circumstances under which such securities are acquired.
(a)
In
order to provide documentation for reliance upon exemptions from the
registration requirements for such transactions, the signing of this Agreement
and the delivery of appropriate separate representations shall constitute the
Parties acceptance of, and concurrence in, the following representations and
warranties:
(i)
The
IHT Stockholders have received and read the Agreement and understand the risks
related to the consummation of the transactions herein
contemplated;
(ii)
IHT
Stockholders have such knowledge and experience in business and financial
matters that they are capable of evaluating Senticore’s business;
(iii)
The
IHT Stockholders have been provided with copies of all materials and information
requested by them or their representatives, including any information requested
to verify any information furnished (to the extent such information is available
or can be obtained without unreasonable effort or expense), and the Parties
have
been provided the opportunity for direct communication regarding the
transactions contemplated hereby;
(iv)
All
information which the IHT Stockholders have provided to Senticore or its
representatives concerning their suitability and intent to hold Convertible
Preferred Stock in Senticore following the transactions contemplated hereby
is
complete, accurate, and correct;
(v)
The
IHT Stockholders understand that the Convertible Preferred Stock has not been
registered under the Securities Act, but is being acquired by reason of specific
exemptions under the Securities Act as well as under certain state statutes
for
transactions not involving any public offering; and
(vi)
The
IHT Stockholders acknowledge that the shares of Convertible Preferred Stock
or
the common stock into which they are convertible must be held and may not be
sold, transferred, or otherwise disposed of for value unless they are
subsequently registered under the Securities Act or an exemption from such
registration is available. The certificates representing the shares shall bear
the following restrictive legend:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND ARE "RESTRICTED
SECURITIES" WITHIN THE MEANING OF RULE 144 PROMULGATED UNDER THE SECURITIES
ACT.
THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD OR
TRANSFERRED WITHOUT COMPLYING WITH RULE 144 IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION OR OTHER COMPLIANCE UNDER THE SECURITIES ACT.
(b)
In
connection with the transaction contemplated by this Agreement, Senticore shall
file, with its counsel, such notices, applications, reports, or other
instruments as may be deemed necessary or appropriate in an effort to document
reliance on such exemptions, and the appropriate regulatory authority in the
states where the IHT Stockholders reside unless an exemption requiring no filing
is available in such jurisdictions, all to the extent and in the manner as
may
be deemed by such Parties to be appropriate.
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(c)
In
order to more fully document reliance on the exemptions as provided herein,
Senticore shall execute and deliver to IHT, at or prior to the Closing, such
further letters of representation, acknowledgment, suitability, or the like
as
the IHT Stockholders and their respective counsel may request in connection
with
the transactions contemplated herein, including but not limited to reliance
on
exemptions from registration under applicable securities laws.
(d)
(i)The IHT Stockholders acknowledge that neither the Securities and Exchange
Commission nor the securities commission of any state or other federal agency
has made any determination as to the merits of acquiring Convertible Preferred
Stock and that this transaction involves certain risks;
(ii)
The
IHT Stockholders have read this Agreement and understand the risks related
to
the consummation of the transactions herein contemplated;
(iii)
The
IHT Stockholders and their representatives have such knowledge and experience
in
business and financial matters that they are capable of evaluating the merits
of
an investment in the Convertible Preferred Stock;
(iv)
The
IHT Stockholders and their representatives have been provided with copies of
all
materials and information requested by them or their representatives, including
any information requested to verify any information furnished (to the extent
such information is available or can be obtained without unreasonable effort
or
expense), and the Parties have been provided the opportunity for direct
communication regarding the transactions contemplated hereby;
(v)
All
information which the IHT Stockholders have provided to Senticore concerning
their suitability and the transactions contemplated hereby is complete,
accurate, and correct;
(vi)
The
IHT Stockholders understand and acknowledge that the shares of Senticore to
be
acquired have not been registered under the Securities Act of 1933 and are
being
offered and sold in reliance upon exemptions from registration.
(vii)
In
the event that there are more offerees who will receive Senticore Convertible
Preferred Stock in the merger than the approximately 35 offerees who will rely
on an exemption from registration under Section 4(2) of the Securities Act,
such
additional offerees intend to rely on an exemption from registration under
Section 4(6) under the Securities Act. Accordingly, such additional offerees
represent and warrant that they are “accredited investors” within the meaning of
Rule 501(a) of Regulation D under the Securities Act. Subscription agreements
containing representations and warranties sufficient to enable Senticore to
rely, in good faith, on Section 4(2), and, in the alternative, on Section 4(6)
of the Securities Act in connection with this offering and merger shall be
executed and delivered to Senticore at closing.
6.06 Securities
Filings.
Senticore
shall be responsible for the preparation and filing of all Securities Act and
Exchange Act filings that may result from the transactions contemplated in
this
Agreement.
6.07 Sales
of
Securities under Rule 144, If Applicable.
(a)
Senticore will use its best efforts to at all times satisfy the current public
information requirements of Rule 144 promulgated under the Securities
Act.
(b)
Upon
being informed in writing by any person holding restricted common stock of
Senticore as of the date of this Agreement that such person intends to sell
any
shares under Rule 144 promulgated under the Securities Act (including any Rule
adopted in substitution or replacement thereof), Senticore will certify in
writing to such person that it is in compliance with the Rule 144 current public
information requirement to enable such person to sell such person's restricted
stock under Rule 144, and as may be applicable under the
circumstances.
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(c)
If
any certificate representing any such restricted stock is presented to
Senticore’s transfer agent for registration or transfer in connection with any
sales theretofore made under Rule 144, provided such certificate is duly
endorsed for transfer by the appropriate person(s) or accompanied by a separate
stock power duly executed by the appropriate person(s) in each case with
reasonable assurances that such endorsements are genuine and effective, and
is
accompanied by an opinion of counsel satisfactory to Senticore and its counsel
that such transfer has complied with the requirements of Rule 144,
as
the
case
may be, Senticore will promptly instruct its transfer agent to allow such
transfer and to issue one or more new certificates representing such shares
to
the transferee and, if appropriate under the provisions of Rule 144, as the
case
may be, free of any stop transfer order or restrictive legend.
(d)
The
shareholders of Senticore as of the date of this Agreement, as well as those
receiving Senticore Convertible Preferred Stock pursuant to this Agreement,
are
intended third-party beneficiaries of this Section 6.07.
ARTICLE
VII
MISCELLANEOUS
7.01 Brokers.
No
broker’s or finder’s fee will be paid in connection with the transaction
contemplated by this Agreement.
7.02 No
Representation Regarding Tax Treatment.
No
representation or warranty is being made by any party to any other party
regarding the treatment of this transaction for federal or state income
taxation. Each party has relied exclusively on its own legal, accounting, and
other tax adviser regarding the treatment of this transaction for federal and
state income taxes and on no representation, warranty, or assurance from any
other party or such other party's legal, accounting, or other adviser.
7.03 Governing
Law.
This
Agreement shall be governed by, enforced and construed under and in accordance
with the laws of the State of Delaware without giving effect to principles
of
conflicts of law thereunder. All controversies, disputes or claims arising
out
of or relating to this Agreement shall be resolved by binding arbitration.
The
arbitration shall be conducted in accordance with the Commercial Arbitration
Rules of the American Arbitration Association. Each arbitrator shall possess
such experience in, and knowledge of, the subject area of the controversy or
claim so as to qualify as an “expert” with respect to such subject matter. The
prevailing party shall be entitled to receive its reasonable attorney’s fees and
all costs relating to the arbitration. Any award rendered by arbitration shall
be final and binding on the Parties, and judgment thereon may be entered in
any
court of competent jurisdiction.
7.04 Notices.
Any
notices or other communications required or permitted hereunder shall be
sufficiently given if personally delivered, if sent by facsimile or telecopy
transmission or other electronic communication confirmed by registered or
certified mail, postage prepaid, or if sent
by
prepaid overnight courier addressed as follows:
If
to
Senticore, to:
0000
Xxxxxxxxx Xxxx.
Xxxxxxxxx,
Xxxxxxx 00000
Attn:
Xxxx Xxxxxxx, President
If
to
IHT, to:
0000
Xxxxxxxx, Xxxxx 000
Xxx
Xxxxxxx, Xxxxx 00000
Attn:
Xxxxxxx X. Xxxxx, Chief Executive Officer
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or
such
other addresses as shall be furnished in writing by any party in the manner
for
giving notices, hereunder, and any such notice or communication shall be deemed
to have been given as of the date so delivered or sent by facsimile or telecopy
transmission or other electronic communication, or one day after the date so
sent by overnight courier.
7.05 Attorney's
Fees.
In
the
event that any party institutes any action or suit to enforce this Agreement
or
to secure relief from any default hereunder or breach hereof, the breaching
party or parties shall reimburse the non-breaching party or parties for all
costs, including reasonable attorneys' fees, incurred in connection therewith
and in enforcing or collecting any judgment rendered therein.
7.06 Schedules;
Knowledge.
Whenever,
in any section of this Agreement, reference is made to information set forth
in
the schedules provided by Senticore or IHT, such reference is to information
specifically set forth in such schedules and clearly marked to identify the
section of this Agreement to which the information relates. Whenever any
representation is made to the "knowledge" of any party, it shall be deemed
to be
a representation that no officer or director of such party, after reasonable
investigation, has any knowledge of such matters.
7.07 Entire
Agreement.
This
Agreement represents the entire agreement between the Parties relating to the
subject matter hereof. All previous agreements between the Parties, whether
written or oral, have been merged into this Agreement. This Agreement alone
fully and completely expresses the agreement of the Parties relating to the
subject matter hereof. There are no other courses of dealing, understandings,
agreements, representations, or warranties, written or oral, except as set
forth
herein.
7.08 Survival,
Termination.
The
representations, warranties, and covenants of the respective Parties shall
survive the Closing Date and the consummation of the transactions herein
contemplated for a period of one year from the Closing Date, unless otherwise
provided herein.
7.09 Counterparts.
This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original and all of which taken together shall be but a single
instrument.
7.10 Amendment
or Waiver.
Every
right and remedy provided herein shall be cumulative with every other right
and
remedy, whether conferred herein, at law, or in equity, and such remedies may
be
enforced concurrently, and no waiver by any party of the performance of any
obligation by the other shall be construed as a waiver of the same or any other
default then, theretofore, or thereafter occurring or existing. At any time
prior to the Closing Date, this Agreement may be amended by a writing signed
by
all Parties hereto, with respect to any of the terms contained herein, and
any
term or condition of this Agreement may be waived or the time for performance
thereof may be extended by a writing signed by the party or parties for whose
benefit the provision is intended.
IN
WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
as
of the date first above written.
|
SENTICORE,
INC.
|
Integrative
Health Technologies, Inc.
|
|
By
/s/Xxxx Xxxxxxx
|
By
/s/ Xxxxxxx X. Xxxxx
|
|
Xxxx
Xxxxxxx
|
Xxxxxxx
X. Xxxxx
|
|
President
|
Chief
Executive Officer
|
XXX
XXXXX
/s/
Xxx
Xxxxx
(In
His
Individual Capacity)
IHT
Stockholders:
[signatures
appear on counterparts]
___________________________
___________________________
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