EXHIBIT 99.1
AGREEMENT AND PLAN OF MERGER
Agreement and Plan of Merger dated as of February 22, 2001, between Princeton
Dental Management Corporation ("Princeton"), a Delaware corporation, and Xxx
Co., Ltd. ("Xxx"), a Delaware corporation.
WHEREAS, the board of directors of Xxx deems it advisable for the general
welfare of its corporation and its shareholders that Xxx and Princeton merge
into a single corporation pursuant to this Agreement and the applicable laws of
the State of Delaware;
WHEREAS, Xxxxxx Xxxxxx ("Chapter 11 Trustee") is the duly appointed Chapter
11 Trustee for Princeton and its subsidiaries, Princeton Medical Management,
Inc., Princeton Medical Management Midwest, Inc., Princeton Medical Management
Southeast, Inc., and Xxxxx Dental Midwest, Inc., in substantially consolidated
Cases No. 99-16011-8C1 through 99-16015-8C1, United States Bankruptcy Court,
Middle District of Florida (Tampa Division) (the "Bankruptcy Court");
WHEREAS, Princeton will obtain authorization to enter into this Agreement
pursuant to its confirmed Plan of Reorganization (a motion for the approval of
which was filed with the Bankruptcy Court by the Chapter 11 Trustee);
WHEREAS, Xxx and Princeton (upon approval of the Bankruptcy Court) desire
to adopt this Agreement as a Plan of Reorganization and to consummate the merger
in accordance with the provisions of Section 368(a)(1)(A) of the Internal
Revenue Code of 1986, as amended;
WHEREAS, Xxx loaned $100,000 to Princeton on November 27, 2000, in the form
of an administrative loan to Princeton while it was in Chapter 11 and that upon
confirmation of the plan of reorganization by the Court, this loan will be
converted to equity pursuant to 11 U.S.C. 1145; and
WHEREAS, the Bankruptcy Court reduced the administrative loan to Princeton
to $75,000 on January 26, 2001, and Xxx agreed to pay for an audit of Princeton
in connection with this Merger; and
WHEREAS, at the Closing, pursuant to and contingent upon confirmation of
the Plan of Reorganization Princeton will issue 14,250,000 shares of its Common
Stock, to be equal to 95% of the equity of Princeton after the effectiveness of
the merger in full consideration for all the outstanding shares of capital stock
of Xxx, free and clear of all liens;
NOW, THEREFORE, Princeton and Xxx agree that Xxx shall be merged with and
into Princeton, that Princeton will be the surviving corporation in such a
merger in accordance with the applicable laws in the State of Delaware, that the
name of Princeton, the surviving corporation, shall be changed to Xxx, Inc. (the
"Surviving Corporation")
and that the terms and conditions of the merger and the mode of carrying it into
effect shall be as follows:
SECTION 1. EFFECTIVE DATE
The merger provided for in this Agreement shall become effective upon the
completion of the following:
(1) Confirmation of the Plan of Reorganization (including provisions
approving this Agreement and Plan of Merger, and canceling all outstanding
preferred and common stock, and issuing common stock as described herein).
(2) Adoption of this Agreement by the shareholders of Xxx pursuant to the
laws of the State of Delaware; and
(3) Completion of Closing which shall occur on as soon as reasonably
practical after confirmation of the Plan of Reorganization, unless agreed
otherwise in writing between the parties to this merger; and
(4) Execution and filing of articles of merger or any similar document
required to be filed with the Secretary of the State of Delaware to make the
merger effective in Delaware.
The Effective Date of the merger will be the date on which all of the above
four requirements are completed.
SECTION 2. STATE(S) OF OPERATION
The Surviving Corporation shall remain a Delaware Corporation. Xxx shall
take all steps necessary to qualify the Surviving Corporation to transact
business in any other states where the Surviving Corporation is required to
qualify to do business.
SECTION 3. CERTIFICATE OF INCORPORATION
The Certificate of Incorporation of Princeton shall be the Certificate of
Incorporation of the Surviving Corporation and shall be amended to change the
name of the Surviving Corporation to Xxx Co., Ltd.
SECTION 4. BYLAWS
The Bylaws of Princeton, as in effect on the date of this Agreement, shall
be the Bylaws of the Surviving Corporation.
SECTION 5. MANNER OF CONVERTING SHARES
5.1 Conversion. The mode of carrying the merger into effect and the manner
and basis of converting the shares of Princeton into shares of Xxx is as
follows:
(1) Each certificate evidencing ownership of one share of Princeton Common
Stock issued and outstanding on the Effective Date (following the
cancellation of all common stock, preferred stock and warrants of
Princeton by the Bankruptcy Court and the issuance of common stock in
Princeton described in Section 13.4 pursuant to a confirmed Plan of
Reorganization) or held by Princeton in its treasury shall continue to
evidence ownership of the one share of Common Stock of the Surviving
Corporation.
(2) Each certificate evidencing ownership of one share of Xxx Common Stock
issued and outstanding on the Effective Date or held by Xxx in its
treasury shall be exchanged on the effective date for 14,250 shares of
Common Stock of the Surviving Corporation.
5.2 Exchange of Certificates. As promptly as practicable after the
Effective Date, each holder of an outstanding certificate of certificates
therefore representing shares of Xxx Common Stock shall surrender the same to
the Transfer Agent of Princeton and shall receive in exchange a certificate or
certificates representing an amount of full shares of Common Stock of the
Surviving Corporation into which Shares of Xxx Common Stock represented by the
certificate or certificates so surrendered shall be converted on a one for
14,250 basis.
SECTION 6. BOARD OF DIRECTORS AND OFFICERS
On the Effective Date, the Board of Directors of Princeton shall be Xxxxx
Xxxx, Xxxxx Xxxxx, Xxxxx Xxxx, Xxxxx Xxxxxxxxx, and Xxxxxx Xxxxxx; and the
Officers of Princeton shall be Xxxxx Xxxx - President, Xxxxx Xxxxxxxxx -
Treasurer, and Xxxxxxxxx Xxxxxx - Secretary.
SECTION 7. EFFECT OF THE MERGER
On the Effective Date, the separate existence of Xxx shall cease and it
shall be merged with and into Princeton.
SECTION 8. APPROVAL OF SHAREHOLDERS
(a) This Agreement shall be submitted to the shareholders of the Xxx as
provided by the applicable laws of the State of Delaware at meeting called for
that purpose or by unanimous consent in lieu of a meeting. There shall be
required for adoption of this Agreement, as to Xxx, the affirmative vote of the
holders of a majority of all the shares of Xxx Common Stock issued and
outstanding and entitled to vote.
(b) Pursuant to Section 303 of the Delaware Corporation Code, this
Agreement shall be approved by the Bankruptcy Court by an order confirming the
Plan of Reorganization.
SECTION 9. REPRESENTATIONS AND WARRANTIES OF PRINCETON
Princeton, represents and warrants to Xxx as follows:
9.1 That when and if approved by the Bankruptcy Court, a copy of the
Confirmation Order will be provided to Xxx.
9.2 All assets and liabilities of Princeton have been placed into a
creditor trust account allowing Princeton to receive a discharge from the
Bankruptcy Court free of all such assets and liabilities in accordance with the
Plan of Reorganization. Pursuant to the Disclosure Statement filed with the
Bankruptcy Court and approved on December 22, 2000, all assets of Princeton's
subsidiaries shall be sold or transferred to Amsterdam pursuant to the Plan. The
stock of the present Princeton subsidiaries shall be transferred or cancelled
pursuant to the Plan.
SECTION 10. REPRESENTATIONS AND WARRANTIES OF XXX
Xxx represents and warrants that:
10.1 Corporate Organization and Good Standing. Xxx is a corporation duly
organized, validly existing, and in good standing under the laws of Delaware,
and is qualified to do business as a foreign corporation in each jurisdiction,
if any, in which its property or business requires such qualification. It has
all corporate power necessary to engage in all transactions in which it has been
involved in, as well as any general business transactions in the future that may
be desired by its directors.
10.2 Capitalization. Xxx'x authorized capital stock consists of one
thousand five hundred (1500) shares of Xxx Common Stock, no par value, of which
one thousand (1000) shares are issued and outstanding, fully paid and
non-assessable. There are no options, warrants, or rights outstanding to any
person or entity to purchase shares of Xxx Common Stock from Xxx.
10.2 No Violations. Xxx is not in violation of any provision or laws or
regulations of federal, state, or local government authorities and agencies.
There are pending or threatened proceedings against Xxx by any federal, state,
or local government, or any department, board, agency, or other body thereof.
10.3 Prior Issuances. All issuances of Xxx of the shares in their common
stock in past transactions have been legally and validly effected, and all of
such shares in the common stock are fully paid and non-assessable.
10.4 Closing Representations and Warranties. The representations and
warranties herein by Xxx will be true and correct in all material respects in
and as of the Closing Date and Effective Date hereof with the same force and
effect as though said representations and warranties had been made on and as of
the Closing Date and Effective Date.
10.5 Absence of Undisclosed Liabilities. Except to the extent disclosed in
writing or in the financial records, Xxx does not have any debt, liabilities or
obligations (secured, unsecured, contingent, or otherwise) of a nature
customarily reflected in a corporate balance sheet prepared in accordance with
generally accepted accounting principles except those disclosed to Princeton on
SCHEDULE 10.5 hereto.
10.6 Litigation. Except as hereto disclosed on SCHEDULE 10.6 by Xxx to
Princeton, there is no litigation, proceeding, or investigation pending or, to
the knowledge of Xxx, threatened against Xxx which if successful might result in
material adverse change in the business, properties, or financial condition of
Xxx or which questions the validity or legality of this Agreement of any action
taken or to be taken by Xxx in connection to this Agreement.
10.7 No Violation. Consummation of the merger will not constitute or result
in a breach or default under any provision of any charter, bylaw, indenture,
mortgage, lease, or agreements, or any order, judgment, decree, law, or
regulation to which any property of Xxx is subject or by which Xxx is bound,
except for breaches or defaults which in the aggregate would not have materially
adverse effect of Xxx'x properties, business operations, or financial condition.
10.8 Authorization. Execution of this Agreement has been duly authorized
and approved by Xxx'x board of directors and shareholders.
SECTION 11. CONDUCT OF PRINCETON PENDING THE EFFECTIVE DATE
Princeton covenants that between the date of this Agreement and the
Effective Date:
11.1 Certificates of Incorporation and Bylaws. Except as referred to in
Section 3, no change will be made in Princeton's certificate of incorporation of
or bylaws, nor has any change been made since they were submitted to Xxx for
review.
11.2 Capitalization, and so forth. Princeton will not make any change in
its authorized or issued capital stock, declare or pay any dividend or make any
distribution, or issue, encumber, purchase, or otherwise acquire any of its
capital stock, except as provided in its Chapter 11 Plan.
11.3 Miscellaneous
(1) Princeton will furnish Xxx with whatever corporate records and
documents are available, such as Certificate of Incorporation, Bylaws, financial
statements, and material contracts.
(2) Princeton will not enter into any merger or business combination.
(3) Princeton will not issue any stock options, warrants, or other rights
or interests in or to its shares of the common stock without the express written
consent of Xxx.
(4) Princeton will not declare any dividend in cash or stock that would
cause the total number of shares of Princeton to exceed the amount of shares
currently issued.
(5) Princeton will not institute any bonus, benefit, profit sharing, stock
option, pension, retirement plan or similar agreement.
SECTION 12. CONDUCT OF XXX PENDING THE EFFECTIVE DATE
Xxx covenants that between the date of this Agreement and the Effective
Date:
12.1 Certificates of Incorporation and Bylaws. No change will be made in
Xxx certificate of incorporation or bylaws.
12.2 Capitalization, and so forth. Xxx will not make any change in its
authorized or issued capital stock, declare or pay any dividend or make any
distribution, or issue, encumber, purchase, or otherwise acquire any of its
capital stock.
12.3 Shareholders' meetings. Xxx will submit this Agreement to the
shareholders' meeting contemplated by Section 8 with favorable recommendation by
its board of directors and will use its best efforts to obtain the requisite
shareholder approval or will otherwise seek unanimous written consent of its
shareholders.
SECTION 13. CONDITIONS PRECEDENT TO OBLIGATION OF PRINCETON
Princeton's obligation to consummate this merger shall be subject to the
fulfillment on or before the Effective Date of each of the following conditions,
unless waived in writing by Xxx:
13.1 Xxx'x Representations and Warranties. The representations and
warranties of Xxx set forth in Section 10 hereof shall be true and correct at
the Effective Date as though made at and as of that date, except as affected by
transactions contemplated hereby.
13.2 Xxx Covenants. Xxx shall have performed all covenants required by this
Agreement to be performed by it on or before the Effective Date.
13.3 Shareholder Approval. This Agreement shall have been adopted by
necessary vote of holders of Xxx as set forth in Section 8 hereof.
13.4 Court Approval. Princeton shall have received express final approval
to enter into this Agreement by the Bankruptcy Court, including a final Order
approving and confirming the Plan of Reorganization, which among other items:
(1) cancels all outstanding common stock, preferred stock, and warrants of
Princeton.
(2) confirms the conversion of the $75,000 administrative loan by Xxx to
Princeton into 14,250,000 newly issued shares of Princeton Common
Stock, consisting of 95% of the reorganized Princeton after the
effectiveness of the merger described herein.
(3) issues 300,000 shares of common stock to the Class 9 claimants (as
defined in the Plan), to constitute 2% of the common stock of the
reorganized Princeton after effectiveness of the merger described
herein.
(4) issues 450,000 shares of common stock to the Class 7 claimants (as
defined in the Plan) constituting 3% of the common stock of the
reorganized Princeton after effectiveness of the merger described
herein.
(5) approving the merger of Xxx with and into the reorganized Princeton
and the exchange of common stock of Xxx for common stock of Princeton
on a 1 to 14,250 basis, [with each existing share of Princeton common
stock continuing to represent one share of the common stock of the
Survivor].
13.5 Opinion of Counsel. Xxx shall provide the Chapter 11 Trustee an
opinion of Xxx' counsel as to the validity and legality of the merger, in form
reasonably acceptable to the Chapter 11 Trustee.
SECTION 14. CONDITIONS PRECEDENT TO OBLIGATION OF XXX
Xxx'x obligation to consummate this merger shall be subject to fulfillment
on or before the Effective Date of each of the following conditions, unless
waived in writing by Princeton:
14.1 Princeton's Representations and Warranties. The representations and
warranties of Princeton set forth in Section 9 hereof shall be true and correct
at the Effective Date, as though made at and as of that date, except as affected
by transactions contemplated hereby.
14.2 Princeton Covenants. Princeton shall have performed all covenants
required by this Agreement to be performed by it on or before the Effective
Date.
14.3 Court Approval. Princeton shall have received express final approval
to enter into this Agreement by the United States Bankruptcy Court for the
Middle District of Florida.
SECTION 15. ACCESS
From the date hereof to the Effective Date, Xxx and Princeton shall provide
each other with such information and permit each other's offices and
representatives such access to its properties and books and records as the other
may from time to time reasonably request. If the merger is not consummated, all
documents received in connection with this Agreement shall be returned to the
party furnishing the same, and all information so received shall be treated as
confidential.
SECTION 16. TERMINATION
16.1 Circumstances of Termination. This agreement may be terminated (not
withstanding approval by the shareholders of either party hereto):
(1) By the mutual consent in writing of the board of directors of Xxx and
the Chapter 11 Trustee for Princeton;
(2) By the Chapter 11 Trustee for Princeton if any condition provided in
Section 13 hereof has not been satisfied or waived on or before the Effective
Date.
(3) By the board of directors of Xxx if any condition provided in Section
14 has not been satisfied on or before the Effective Date.
(4) By the Chapter 11 Trustee if the Plan and/or the transaction described
herein are not approved by the Bankruptcy Court.
16.2 Effect of Termination. In the event of termination of this Agreement
pursuant to Section 16.2 hereof, each party shall pay the costs and expenses
incurred by it in connection with this Agreement and no party (or any of its
officers, directors, and shareholders) shall be liable to any other party for
any costs, expenses, damage, or loss of anticipated profits hereunder.
SECTION 17. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
All representations and warranties set out herein shall survive the
Effective Date, for a period of one year.
SECTION 18. INDEMNIFICATION
18.1 Breach of Representations, Warranty, Covenant, Or Agreement by Xxx.
Xxx and the Shareholders agree to indemnify the Bankruptcy Estate and the
Chapter 11 Trustee, jointly and severally, and hold each harmless against any
and all loss, liability,
damage, claim, cost and expense of any nature whatsoever from any claim made
against the Bankruptcy Estate post-confirmation arising out of the merger
transaction.
SECTION 19. GENERAL PROVISIONS
19.1 Further Assurances. At any time, 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.
19.2 Waiver. Any failure on the part of wither 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.
19.3 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: Princeton
Princeton Dental Management Corporation
c/o Xxxxxx Xxxxxx, Chapter 11 Trustee
X.X. Xxx 00000
Xx. Xxxxxxxxxx, XX 00000
To: Xxx
Xxx Co., Ltd.
0 Xxxxxxxxxx Xxx.
Xxxxxxxxx, XX 00000
19.4 Entire Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes and cancels any other agreement,
representation, or communication, whether oral, written, between the parties
hereto relating to the transactions contemplated herein or the subject matter
hereof. Notwithstanding the foregoing, the parties agree that the Plan, as
confirmed by the Bankruptcy Court, shall control over the transactions described
herein.
19.5 Headings. The section and subsection in this Agreement are inserted
for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
19.6 Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the Laws of Delaware and shall be litigated before
the American Arbitration Association in the State of Delaware.
19.7 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 written consent of the other party shall be void.
19.8 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.
PRINCETON DENTAL MANAGEMENT CORP.
By: /S/ XXXXXX XXXXXX
---------------------
Xxxxxx Xxxxxx,
Chapter 11 Trustee
XXX CO, LTD.
By: /S/ XXXXX XXXXXXXXX
---------------------
Xxxxx Xxxxxxxxx
Treasurer and Authorized Signatory
SCHEDULE 10.5
AGREEMENT AND PLAN OF MERGER
Xxx has no undisclosed liabilities or obligations (secured, unsecured,
contingent, or otherwise).
SCHEDULE 10.6
AGREEMENT AND PLAN OF MERGER
Xxx has no litigation, proceeding, or investigation pending, or, to the
knowledge of Xxx, threatened against Xxx.
