AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION ("Plan") is made this 10th day
of January, 2000, among Medi-Hut Co., Inc., a Delaware corporation
("Medi-Hut"); Xxxxxx Consulting Corp., a New York corporation, any and all of
its subsidiaries (hereinafter collectively referred to as "Xxxxxx") and its
shareholders (hereinafter "Shareholders").
Medi-Hut wishes to acquire all the issued and outstanding stock of Xxxxxx
for and in exchange for stock of Medi-Hut, in a stock for stock transaction
intending to qualify as a tax-free exchange pursuant to Sections 368(a)(1)(B) of
the Internal Revenue Code of 1986, as amended. The parties intend for this Plan
to represent the terms and conditions of such tax-free reorganization, which
Plan the parties hereby adopt.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, IT IS AGREED:
Section 1
Terms of Exchange
1.1 Number of Shares. Upon the execution hereof, the Shareholders of
Xxxxxx agree to assign, transfer, and deliver to Medi-Hut, free and clear of
all liens, pledges, encumbrances, charges, restrictions or known claims of any
kind, nature or description, 1 share of common stock, which represents 100% of
the issued and outstanding stock of Xxxxxx, in exchange for 350,000 shares of
Medi-Hut's stock, par value $.001, as subject to the provisions of this Plan.
Subsequent to the date hereof, the Shareholders shall, upon the surrender of
the Xxxxxx certificates representing their respective beneficial and record
ownership of all of the issued and outstanding shares of Xxxxxx to Medi-Hut,
as soon as practicable hereafter, and further provided an exemption from the
registration provisions of Section 5 of the Securities Act of 1933 is
available for the issuance thereof, the Shareholders shall be entitled to
receive a certificate(s) evidencing shares of the exchanged Medi-Hut stock as
provided for herein. Upon the consummation of the transaction contemplated
herein, Xxxxxx shall be a wholly owned subsidiary of Medi-Hut.
1.2 Anti-Dilution. For all relevant purposes of this Plan, the number
of Medi-Hut shares to be issued and delivered pursuant to this Plan, shall be
appropriate adjusted to take into account any stock split, stock dividend,
reverse stock split, recapitalization, or similar change in Medi-Hut common
stock, which may occur between the date of the execution of this Plan and the
date of the delivery of such shares.
1.3 Delivery of Certificates. The Shareholders shall transfer to
Medi-Hut at the closing provided for in Section 2 (the "Closing") the shares
of common stock of Xxxxxx listed opposite their respective names on Exhibit A
hereto (the "Xxxxxx Shares") in exchange for shares of the common stock of
Medi-Hut as outlined above in Section 1.1 hereof (the "Medi-Hut Stock"). All
of such shares of Medi-Hut Stock shall be issued at the closing to the
Shareholders, in the numbers shown opposite their respective names in Exhibit
A. The transfer of Xxxxxx Shares by the Shareholders shall be effected by the
delivery to Medi-Hut at the Closing of certificates representing the
transferred shares endorsed in blank or accompanied by stock powers executed
in blank, with all signatures guaranteed by a national bank and with all
necessary transfer taxes and other revenue stamps affixed and acquired at the
Shareholders' expense.
1.4 Further Assurances. Subsequent to the execution hereof, and from
time to time thereafter, the Shareholders shall execute such additional
instruments and take such other action as Medi-Hut may request in order to
more effectively sell, transfer and assign clear title and ownership in the
Xxxxxx Shares to Medi-Hut.
Section 2
Closing
2.1 Closing. The Closing contemplated by Section 1.3 shall be held at
0000 Xxxxxxxxxx Xxx., Xxxxxxxx, Xxx Xxxxxx 00000 on February 15, 2000 or at
such other time or place as may be mutually agreed upon in writing by the
parties. The Closing may also be accomplished by wire, express mail or other
courier service, conference telephone communications or as otherwise agreed by
the respective parties or their duly authorized representatives. In any
event, the closing of the transactions contemplated by this Plan shall be
effected as soon as practicable after all of the conditions contained herein
have been satisfied.
2.2 Closing Events. At the Closing, each of the respective parties
hereto shall execute, acknowledge and deliver (or shall cause to be executed,
acknowledged, and delivered) any agreements, resolutions, rulings, or other
instruments required by this Plan to be so delivered at or prior to Closing,
together with such other items as may be reasonably requested by the parties
hereto and their respective legal counsel in order to effectuate or evidence
the transaction contemplated hereby. At the Closing, the following events
will take place:
(a) Medi-Hut will enter into an employment agreement Xxxxxxxx Xxxxxxx,
Xxxxxx'x key employee. The terms of the employment agreement will provide for
health insurance and an annual salary of $50,000. The other terms and
conditions of Xx. Xxxxxxx'x position will be set forth in the employment
agreement.
(b) Xxxxxx shall have paid in full its $16,000 debt to the Chase Bank.
Section 3
Representations, Warranties and Covenants of Medi-Hut
Medi-Hut represents and warrants to, and covenants with, the Shareholders
and Xxxxxx as follows:
3.1 Corporate Status. Medi-Hut is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
Medi-Hut has full corporate power and is 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 on all material respects as it is now being
conducted, and there is no jurisdiction in which the character and location of
the assets owned by it, or the nature of the business transacted by it,
requires qualification. Included in the Medi-Hut schedules (defined below)
are complete and correct copies of its Articles of Incorporation and Bylaws as
in effect on the date hereof. The execution and delivery of this Plan does
not, and the consummation of the transactions contemplated hereby will not,
violate any provision of Medi-Hut's Articles of Incorporation or Bylaws.
Medi-Hut has taken all action required by law, its Articles of Incorporation,
its Bylaws, or otherwise, to authorize the execution and delivery of this
Plan.
3.2 Capitalization. The authorized capital stock of Medi-Hut as of the
date hereof consists of 100,000,000 common shares, par value $.001. As of the
date hereof there are 10,472,800 common shares of Medi-Hut issued and
outstanding. The foregoing shares constitute fully paid, non-assessable
shares. There are no outstanding options, warrants, or calls or any
understanding, agreements, commitments, contracts or promises with respect to
the issuance of Medi-Hut's common stock or with regard to any options,
warrants or other contractual rights to acquire any of Medi-Hut's authorized
but unissued common shares.
3.3 Financial Statements.
(a) Medi-Hut hereby warrants and covenants to Xxxxxx that the
audited financial statements for the period ended June 31, 1999 and for the
years ended October 31, 1998 and 1997, fairly and accurately represent the
financial condition of Medi-Hut and that the same will be prepared along with
the period ended as of the date of Closing, for consolidation by an
independent public accountant, which shall be prepared in accordance with
generally accepted accounting principles consistently applied, on or before
the expiration of forty-five days from the date of Closing.
(b) Medi-Hut hereby warrants and represents that the audited
financial statements for the periods set forth in subparagraph (a), supra,
fairly and accurately represent the financial condition of Medi-Hut as
submitted heretofore to Xxxxxx for examination and review.
3.4 Conduct of Business. Medi-Hut will use its best efforts to maintain
and preserve its business organization, employee relationships and goodwill
intact, and will not, without the prior written consent of Xxxxxx, enter into
any material commitments except in the ordinary course of business.
Medi-Hut will conduct itself in the following manner pending the Closing:
(a) Certificate of Incorporation and Bylaws. No change will be
made in the Articles of Incorporation or Bylaws of Medi-Hut.
(b) Capitalization, etc. Medi-Hut will not make any change in its
authorized or issued shares of any class, declare or pay any dividend or other
distribution, or issue, encumber, purchase or otherwise acquire any of its
shares of any class.
3.5 Options, Warrants and Rights. Medi-Hut has no options, warrants or
stock appreciation rights related to the authorized but unissued Medi-Hut
common stock. There are no existing options, warrants, calls, or commitments
of any character relating to the authorized and unissued Medi-Hut common
stock, except options, warrants, calls, or commitments, if any, to which
Medi-Hut is not a party and by which it is not bound.
3.6 Title to Property. Medi-Hut has good and marketable title to all of
its properties and assets, real and personal, proprietary or otherwise, as
will be reflected in the balance sheets of Medi-Hut, and the properties and
assets of Medi-Hut are subject to no mortgage, pledge, lien or encumbrance,
unless as otherwise disclosed in its financial statements.
3.7 Litigation. There are no material actions, suits, or proceedings,
pending, or, to the best knowledge of Medi-Hut, threatened by or against or
effecting Medi-Hut at law or in equity, or before any governmental agency or
instrumentality, domestic or foreign, or before any arbitrator of any kind;
Medi-Hut does not have any knowledge of any default on its part with respect
to any judgment, order, writ, injunction, decree, warrant, rule, or regulation
of any court, arbitrator, or governmental agency or instrumentality.
3.8 Books and Records. From the date hereof, and for any reasonable
period subsequent thereto, Medi-Hut and its present management will (i) give
to the Shareholders and Xxxxxx, or their duly authorized representatives, full
access, during normal business hours, to all of its books, records, contracts
and other corporate documents and properties so that the Shareholders and
Xxxxxx, or their duly authorized representatives, may inspect them; and (ii)
furnish such information concerning the properties and affairs of Medi-Hut as
the Shareholders and Xxxxxx, or their duly authorized representatives, may
reasonably request.
3.9 Confidentiality. Until the Closing (and thereafter if there is no
Closing), Medi-Hut and its representatives will keep confidential any
information which they obtain from the Shareholders or from Xxxxxx concerning
its properties, assets and the proposed business operations of Xxxxxx. If the
terms and conditions of this Plan imposed on the parties hereto are not
consummated on or before 5:00 p.m. MST on Februrary 15, 2000 or otherwise
waived or extended in writing to a date mutually agreeable to the parties
hereto, Medi-Hut will return to Xxxxxx all written matter with regard to
Xxxxxx obtained in connection with the negotiations or consummation of this
Plan.
3.10 Conflict with Other Instruments. The transactions contemplated by
this Plan will not result in the breach of any term or provision of, or
constitute a default under any indenture, mortgage, deed of trust, or there
material agreements or instrument to which Medi-Hut was or is a party, or to
which any of its assets or operations are subject, and will not conflict with
any provision of the Articles of Incorporation or Bylaws of Medi-Hut.
3.11 Corporate Authority. Medi-Hut has full corporate power and
authority to enter into this Plan and to carry out its obligations hereunder
and will deliver to the Shareholders and Xxxxxx, or their respective
representatives, at the Closing, a certified copy of resolutions of its Board
of Directors authorizing execution of this Plan by its officers and
performance thereunder.
3.12 Consent of Shareholders. Medi-Hut hereby warrants and represents
that the Shareholders of Medi-Hut, being the owners of a majority of the
issued and outstanding stock of the Corporation consented in writing to the
authorization to execute an Agreement and Plan of Reorganization as between
Medi-Hut and Xxxxxx pursuant to a stock-for-stock transaction in which
Medi-Hut would acquire all of the issued and outstanding shares of Xxxxxx in
exchange for the issuance of 350,000 common shares of Medi-Hut.
3.13 Special Covenants and Representations Regarding the Exchanged
Medi-Hut Stock. The consummation of this Plan and the transactions herein
contemplated include the issuance of the exchanged Medi-Hut shares to the
Shareholders, which constitutes an offer and sale of securities under the
Securities Act of 1933, as amended, and applicable states' securities laws.
Such transaction shall be consummated in reliance on exemptions from the
registration and prospectus requirements of such statutes which depend
interlace on the circumstances under which the Shareholders acquire such
securities. In connection with the reliance upon exemptions from the
registration and prospectus delivery requirements for such transactions, at
the Closing, Shareholders shall cause to be delivered to Medi-Hut a Letter(s)
of Investment Intent in the form attached hereto as Exhibit B and incorporated
herein by reference.
3.14 Special Covenants and Representations Regarding the Exchanged
Medi-Hut Stock. The consummation of this Plan and the transactions herein
contemplated include the issuance of the exchanged Medi-Hut shares to the
Shareholders, which constitutes an offer and sale of securities under the
Securities Act of 1933, as amended, and applicable states' securities laws.
Such transaction shall be consummated in reliance on exemptions from the
registration and prospectus requirements of such statutes which depend
interlace on the circumstances under which the Shareholders acquire such
securities. In connection with the reliance upon exemptions from the
registration and prospectus delivery requirements for such transactions, at
the Closing, Shareholders shall cause to be delivered to Medi-Hut a Letter(s)
of Investment Intent in the form attached hereto as Exhibit B and incorporated
herein by reference.
3.15 Undisclosed or Contingent Liabilities. Medi-Hut hereby represents
and warrants that it has no undisclosed or contingent liabilities which have
not been disclosed to Xxxxxx.
3.16 Information. The information concerning Medi-Hut set forth in this
Plan, and the Medi-Hut schedules attached hereto, are complete and accurate in
all material respects and do not contain, or will not contain, when delivered,
any untrue statement or a material fact or omit to state a material fact the
omission of which would be misleading to Xxxxxx in connection with this Plan.
3.17 Title and Related Matters. Medi-Hut has good and marketable title
to all of its properties, interests in properties, and assets, real and
personal, which are reflected, or will be reflected, in the Medi-Hut balance
sheets, free and clear of any and all liens and encumbrances.
3.18 Contracts or Agreements. Medi-Hut is not bound by any material
contracts, agreements or obligations which it has not already disclosed to
Xxxxxx.
3.19 Governmental Authorizations. Medi-Hut has all licenses,
franchises, permits and other government authorizations that are legally
required to enable it to conduct its business in all material respects as
conducted on the date hereof. Except for compliance with federal and state
securities laws, 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 Medi-Hut of
this Plan and the consummation by Xxxxxx of the transactions contemplated
hereby.
3.20 Compliance with Laws and Regulations. Medi-Hut has complied with
all applicable statutes and regulations of any federal, state, or other
applicable jurisdiction or agency thereof, except to the extent that
noncompliance would not materially and adversely effect the business,
operations, properties, assets, or condition of Medi-Hut or except to the
extent that noncompliance would not result in the occurrence of any material
liability, not otherwise disclosed to Xxxxxx.
3.21 Approval of Plan. The Board of Directors of Medi-Hut has
authorized the execution and delivery of this Plan by Medi-Hut and have
approved the Plan and the transactions contemplated hereby. Medi-Hut has full
power, authority, and legal right to enter into this Plan and to consummate
the transactions contemplated hereby.
3.22 Investment Intent. Medi-Hut is acquiring the Xxxxxx Shares to be
transferred to it under this Plan for investment and no with a view to the
sale or distribution thereof, and Medi-Hut has no commitment or present
intention to liquidate Xxxxxx or to sell or otherwise dispose of the Xxxxxx
Shares.
3.23 Unregistered Shares and Access to Information. Medi-Hut
understands that the offer and sale of the Xxxxxx Shares have not been
registered with or reviewed by the Securities and Exchange Commission under
the Securities Act of 1933, as amended, or with or by any state securities law
administrator, and no federal, state securities law administrator has reviewed
or approved any disclosure or other material concerning Xxxxxx or the Xxxxxx
Shares. Medi-Hut has been provided with and reviewed all information
concerning Xxxxxx, the Xxxxxx Shares as it has considered necessary or
appropriate as a prudent and knowledgeable investor to enable it to make an
informed investment decision concerning the Xxxxxx Shares. Medi-Hut has made
an investigation as to the merits and risks of its acquisition of the Xxxxxx
Shares and has had the opportunity to ask questions of, and has received
satisfactory answers from, the officers and directors of Xxxxxx concerning
Xxxxxx, the Xxxxxx Shares and related matters, and has had an opportunity to
obtain additional information necessary to verify the accuracy of such
information and to evaluate the merits and risks of the proposed acquisition
of the Xxxxxx Shares.
3.24 Obligations. Medi-Hut is not aware of any outstanding obligations
to any of its employees or consultants as of the Closing.
3.25 Medi-Hut Schedules. Medi-Hut has delivered to Xxxxxx the following
items listed below, hereafter referred to as the "Medi-Hut Schedules", which
is hereby incorporated by reference and made a part hereof. A certification
executed by a duly authorized officer of Medi-Hut on or about the date within
the Plan is executed to certify that the Medi-Hut Schedules are true and
correct.
(a) Copy of Articles of Incorporation and any amendments, and
Bylaws;
(b) Financial statements;
(c) Shareholder list;
(d) Resolutions of Directors approving Plan;
(e) Consent of Shareholders approving Plan;
(f) Officers' Certificate as required under Section 6.2 of the
Plan;
(g) Opinion of counsel as required under Section 6.4 of the Plan;
(h) Certificate of Good Standing;
Section 4
Representations, Warranties and Covenants of Xxxxxx
Xxxxxx represents and warrants to, and covenants with, the Shareholders
and Medi-Hut as follows:
4.1 Corporate Status. Xxxxxx is a corporation duly organized, validly
existing and in good standing under the laws of the State of New York
incorporated on October 21, 1992. Xxxxxx has full corporate power and is 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 on all material respects as
it is now being conducted, and there is no jurisdiction in which the character
and location of the assets owned by it, or the nature of the business
transacted by it, requires qualification. Included in the Xxxxxx schedules
(defined below) are complete and correct copies of its Articles of
Incorporation and Bylaws as in effect on the date hereof. The execution and
delivery of this Plan does not, and the consummation of the transactions
contemplated hereby will not, violate any provision of Xxxxxx'x Articles of
Incorporation or Bylaws. Xxxxxx has taken all action required by law, its
Articles of Incorporation, its Bylaws, or otherwise, to authorize the
execution and delivery of this Plan.
4.2 Capitalization. The authorized capital stock of Xxxxxx as of the
date hereof consists of 200 common shares, no par value. As of the date
hereof there is 1 common share of Xxxxxx issued and outstanding. The issued
and outstanding common shares of Xxxxxx are fully paid, non-assessable
shares. There are no outstanding options, warrants, obligations convertible
into shares of stock, or calls or any understanding, agreements, commitments,
contracts or promises with respect to the issuance of Xxxxxx'x common stock or
with regard to any options, warrants or other contractual rights to acquire
any of Xxxxxx'x authorized but unissued common shares.
4.3 Conduct of Business. Xxxxxx will use its best efforts to maintain
and preserve its business organization, employee relationships and goodwill
intact, and will not, without the prior written consent of Medi-Hut, enter
into any material commitments except in the ordinary course of business.
Xxxxxx agrees that Xxxxxx will conduct itself in the following manner
pending the Closing:
(a) Certificate of Incorporation and Bylaws. No change will be
made in the Certificate of Incorporation or Bylaws of Xxxxxx.
(b) Capitalization, etc. Xxxxxx will not make any change in its
authorized or issued shares of any class, declare or pay any dividend or other
distribution, or issue, encumber, purchase or otherwise acquire any of its
shares of any class.
4.4 Title to Property. Xxxxxx has good and marketable title to all of
its properties and assets, real and personal, proprietary or otherwise, as
will be reflected in the balance sheets of Xxxxxx, and the properties and
assets of Xxxxxx are subject to no mortgage, pledge, lien or encumbrance,
unless as otherwise disclosed in its financial statements.
4.5 Litigation. There are no material actions, suits, or proceedings,
pending, or, to the best knowledge of Xxxxxx, threatened by or against or
effecting Xxxxxx at law or in equity, or before any governmental agency or
instrumentality, domestic or foreign, or before any arbitrator of any kind;
Xxxxxx does not have any knowledge of any default on its part with respect to
any judgment, order, writ, injunction, decree, warrant, rule, or regulation of
any court, arbitrator, or governmental agency or instrumentality.
4.6 Books and Records. From the date hereof, and for any reasonable
period subsequent thereto, Xxxxxx and its present management will (i) give to
Medi-Hut, or their duly authorized representatives, full access, during normal
business hours, to all of its books, records, contracts and other corporate
documents and properties so that Medi-Hut, or their duly authorized
representatives, may inspect them; and (ii) furnish such information
concerning the properties and affairs of Xxxxxx as the Shareholders and
Xxxxxx, or their duly authorized representatives, may reasonably request. Any
such request to inspect Xxxxxx'x books shall be directed to Xxxxxx'x
representative, at the address set forth herein under Section 10.4 Notices.
4.7 Confidentiality. Until the Closing (and thereafter if there is no
Closing), Xxxxxx and its representatives will keep confidential any
information which they obtain from the Shareholders or from Xxxxxx concerning
its properties, assets and the proposed business operations of Xxxxxx. If the
terms and conditions of this Plan imposed on the parties hereto are not
consummated on or before 5:00 p.m. MST on February 15, 2000 or otherwise
waived or extended in writing to a date mutually agreeable to the parties
hereto, Xxxxxx will return to Medi-Hut all written matter with regard to
Medi-Hut obtained in connection with the negotiations or consummation of this
Plan.
4.8 Investment Intent. The Shareholders represent and covenant that
they are acquiring the unregistered and restricted common shares of Medi-Hut
to be delivered to them under this Plan for investment purposes and not with a
view to the subsequent sale or distribution thereof, and as agreed, supra, the
Shareholders, their successors and assigns agree to execute and deliver to
Medi-Hut on the date of Closing or no later than the date on which the
restricted shares are issued and delivered to the Shareholders, their assigns,
or designees, an Investment Letter similar in form to that attached hereto as
Exhibit B.
4.9 Unregistered Shares and Access to Information. Xxxxxx and the
Shareholders understand that the offer and sale of Medi-Hut shares to be
exchanged for the Xxxxxx Shares have not been registered with or reviewed by
the securities and Exchange Commission under the Securities Act of 1933, as
amended, or with or by any state securities law administrator, and no federal
or state securities law administrator has reviewed or approved any disclosure
or other material facts concerning Medi-Hut or Medi-Hut stock. Xxxxxx and the
Shareholders have been provided with and reviewed all information concerning
Medi-Hut and Medi-Hut shares, to be exchanged for the Xxxxxx Shares as they
have considered necessary or appropriate as prudent and knowledgeable
investors to enable them to make informed investment decisions concerning the
Medi-Hut shares, to be exchanged for the Xxxxxx Shares. Xxxxxx and the
Shareholders have made an investigation as to the merits and risks of their
acquisition of the Medi-Hut shares, to be exchanged for the Xxxxxx Shares and
have had the opportunity to ask questions of, and have received satisfactory
answers from, the officers and directors of Medi-Hut concerning Medi-Hut
shares to be exchanged for the Xxxxxx Shares and related matters, and have had
an opportunity to obtain additional information necessary to verify the
accuracy of such information and to evaluate the merits and risks of the
proposed acquisition of the Medi-Hut shares to be exchanged for the Xxxxxx
Shares.
4.10 Title to Shares. The Shareholders are the beneficial and record
owners, free and clear of any liens and encumbrances, of whatever kind or
nature, of all of the shares of Xxxxxx of whatever class or series, which the
Shareholders have contracted to exchange.
4.11 Contracts.
(a) Xxxxxx is not a party to any material contracts, written or
oral, nor is Xxxxxx a party to any agreements, franchises, licenses, or other
commitments.
(b) Except as may be set forth in the Xxxxxx Schedules, Xxxxxx is
not a party to any contract, agreement, corporate restriction, or subject to
any judgment, order, writ, injunction, decree, or award, which materially and
adversely effect the business, operations, properties, assets, or conditions
of Xxxxxx.
(c) Except as set forth in the Xxxxxx Schedules, Xxxxxx is not a
party to any material oral or written (i) contract for employment of any
officer which is not terminable on 30 days (or less) notice; (ii) profit
sharing, bonus, deferred compensation, stock option, severance, or any other
retirement plan of arrangement covered by Title IV of the Employee Retirement
Income Security Act, as amended, or otherwise covered; (iii) agreement
providing for the sale, assignment or transfer of any of its rights, assets or
properties, whether tangible or intangible, except sales of its property in
the ordinary course of business with a value of less than $2,000; or (iv)
waiver of any right of any value which in the aggregate is extraordinary or
material concerning the assets or properties scheduled by Xxxxxx, except for
adequate value and pursuant to contract. Xxxxxx has not entered into any
material transaction which is not listed in the Xxxxxx Schedules or reflected
in the Xxxxxx financial statements.
4.12 Material Contract Defaults. Xxxxxx is not in default in any
material respect under the terms of any contract, agreement, lease or other
commitment which is material to the business, operations, properties or
assets, or condition of Xxxxxx, and there is no event of default or event
which, with notice of 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 Xxxxxx has not taken adequate steps to prevent
such default from occurring, or otherwise compromised, reached a satisfaction
of, or provided for extensions of time in which to perform under any one or
more contract obligations, among others.
4.13 Conflict with Other Instruments. The consummation of the within
transactions will not result in the breach of any term or provision of, or
constitute a default under any indenture, mortgage, deed of trust, or other
material agreement or instrument to which Xxxxxx was or is a party, or to
which any of its assets or operations are subject, and will not conflict with
any provision of the Articles of Incorporation or Bylaws of Xxxxxx.
4.14 Governmental Authorizations. Xxxxxx is in good standing in the
State of New York. Except for compliance with federal and state securities
laws, 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 Xxxxxx of this Plan and the
consummation by Xxxxxx of the transactions contemplated hereby.
4.15 Compliance with Laws and Regulations. Xxxxxx has complied with all
applicable statutes and regulations of any federal, state, or other applicable
jurisdiction or agency thereof, except to the extent that noncompliance would
not materially and adversely effect the business, operations, properties,
assets, or condition of Xxxxxx or except to the extent that noncompliance
would not result in the occurrence of any material liability, not otherwise
disclosed to Medi-Hut.
4.16 Approval of Plan. The Board of Directors of Xxxxxx have authorized
the execution and delivery of this Plan by Xxxxxx and have approved the Plan
and the transactions contemplated hereby. Xxxxxx has full power, authority,
and legal right to enter into this Plan and to consummate the transactions
contemplated hereby.
4.17 Information. The information concerning Xxxxxx set forth in this
Plan, and the Xxxxxx Schedules attached hereto, are complete and accurate in
all material respects and do not contain, or will not contain, when delivered,
any untrue statement or a material fact or omit to state a material fact the
omission of which would be misleading to Medi-Hut in connection with this
Plan.
4.18 Xxxxxx Schedules. Xxxxxx has delivered to Medi-Hut the following
items listed below, hereafter referred to as the "Xxxxxx Schedules", which is
hereby incorporated by reference and made a part hereof. A certification
executed by a duly authorized officer of Xxxxxx on or about the date within
the Plan is executed to certify that the Xxxxxx Schedules are true and
correct.
(a) Copy of Articles of Incorporation and Bylaws
(b) Tax Returns
(c) A schedule setting forth the shareholders, together with the
number of shares owned beneficially or of record by each (also attached as
Exhibit A)
(d) Resolutions of Board of Directors approving Plan
(e) Consent of Shareholders approving Plan
(f) A list of key employees, including current compensation,
with notation as to job description and whether or not such employee is
subject to written contract, and if subject to a contract or employment
agreement, a copy of the same
(g) A schedule showing the name and location of each bank or
other institution with which Xxxxxx has an account and the names of the
authorized persons to draw thereon or having access thereto
(h) Officers' Certificate as required by Section 7.2 of the Plan
(i) Certificate of Good Standing
Section 5
Special Covenants
5.1 Xxxxxx Information Incorporated in Medi-Hut's Reports. Xxxxxx
represents and warrants to Medi-Hut that all the information furnished under
this Plan shall be true and correct in all material respects and that there is
no omission of any material fact required to make the information stated not
misleading. Xxxxxx agrees to indemnify and hold Medi-Hut harmless, including
each of its Directors and Officers, and each person, if any, who controls such
party, under any applicable law from and against any and all losses, claims,
damages, expenses or liabilities to which any of them may become subject under
applicable law, or reimburse them for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such
actions, whether or not resulting in liability, insofar as such losses,
claims, damages, expenses, liabilities or actions arise out of or are based on
any untrue statement, alleged untrue statement, or omission of a material fact
contained in such information delivered hereunder.
5.2 Special Covenants and Representations Regarding the Exchanged
Medi-Hut Stock. The consummation of this Plan and the transactions herein
contemplated, including the issuance of the Medi-Hut shares in exchange for
all of the issued and outstanding shares of Xxxxxx to the Shareholders
constitutes the offer and sale of securities under the Securities Act and the
applicable state statutes, which depend, inter alia, on the circumstances
under which the Shareholders acquire such securities. Medi-Hut intends to
rely on the exemption of the registration provision of Section 5 of the
Securities Act as provided for under Section 4.2 of the Securities Act of
1933, which states "transactions not involving a public offering", among
others. Each Shareholder upon submission of his Xxxxxx Shares and the receipt
of the Medi-Hut post-split shares exchanged therefor, shall execute and
deliver to Medi-Hut a letter of investment invent to indicate, among other
representations, that the Shareholder is exchanging the Xxxxxx Shares for
Medi-Hut post-split shares for investment purposes and not with a view to the
subsequent distribution thereof. A proposed Investment Letter is attached
hereto as Exhibit B and incorporated herein by reference for the general use
by the Shareholders, as they may determine.
5.3 Action Prior to Closing. Upon the execution hereof until the
Closing date, and the completion of the consolidated audited financials,
(a) Xxxxxx and Medi-Hut will (i) perform all of its obligations
under material contracts, leases, insurance policies and/or documents relating
to its assets and business; (ii) use its best efforts to maintain and preserve
its business organization intact, to retain its key employees, and to maintain
its relationship with existing potential customers and clients; and (iii)
fully comply with and perform in all material respects all duties and
obligations imposed on it by all federal and state laws and all rules,
regulations, and orders imposed by all federal or state governmental
authorities.
(b) Neither Xxxxxx nor Medi-Hut will (i) make any change in its
Articles of Incorporation or Bylaws except and unless as contemplated pursuant
to Section 3 of this Plan; (ii) enter into or amend any contract, agreement,
or other instrument of the types described in the parties' schedules, except
that a party may enter into or amend any contract or other instrument in the
ordinary course of business involving the sale of goods or services, provided
that such contract does not involve obligations in excess of $5,000.
Section 6
Conditions Precedent to Obligations of
Xxxxxx and the Shareholders
All obligations of Xxxxxx and the Shareholders under this Plan are
subject to the satisfaction, on or before the Closing date, except as
otherwise provided for herein, or waived or extended in writing by the parties
hereto, of the following conditions:
6.1 Accuracy of Representations. The representations and warranties
made by Medi-Hut in this Plan were true when made and shall be true as of the
Closing date (except for changes therein permitted by this Plan) with the same
force and effect as if such representations and warranties were made at and as
of the Closing date; and, Medi-Hut shall have performed and complied with by
Medi-Hut prior to the Closing, unless waived or extended in writing by the
parties hereto. Xxxxxx shall have been furnished with a certificate, signed
by a duly authorized executive officer of Medi-Hut and dated the Closing date,
to the foregoing effect.
6.2 Officers' Certificate. Xxxxxx and the Shareholders shall have been
furnished with a certificate dated the Closing date and signed by a duly
authorized executive officer of Medi-Hut, to the effect that no litigation,
proceeding, investigation, or inquiry is pending, or to the best knowledge of
Medi-Hut, threatened, which might result in an action to enjoin or prevent the
consummation of the transactions contemplated by this Plan, or which might
result in any material adverse change in the assets, properties, business, or
operations of Medi-Hut.
6.3 No Material Adverse Change. Prior to the Closing date, there shall
have not occurred any material adverse change in the final condition, business
or operations of Medi-Hut, nor shall any event have occurred which, with lapse
of time or the giving of notice or both, may cause or create any material
adverse change in the financial condition, business or operations of Medi-Hut,
except as otherwise disclosed to Xxxxxx.
6.4 Opinion of Counsel of Medi-Hut. Medi-Hut shall furnish to Xxxxxx
and the Shareholders an opinion dated as of the Closing date and in form and
substance satisfactory to Xxxxxx and the Shareholders to the effect that:
(a) Medi-Hut is a corporation duly organized, validly existing, and
in good standing under the laws of the State of Delaware, and with all
requisite corporate power to perform its obligations under this Plan.
(b) The business of Medi-Hut, as presently conducted, including,
upon the consummation hereof, the ownership of all of the issued and
outstanding shares of Xxxxxx, does not require it to register it to do
business as a foreign corporation on any jurisdiction other than under the
jurisdiction of its Articles of Incorporation or Bylaws and Medi-Hut has
complied to the best of its knowledge in all material respects with all the
laws, regulations, licensing requirements and orders applicable to its
business activities and has filed with the proper authorities, including the
Department of Commerce, Division of Corporations, and Secretary of State for
the State of Delaware, all statements and reports required to be filed.
(c) The authorized and outstanding capital stock of Medi-Hut as set
forth in Section 3.2 above, and all issued and outstanding shares have been
duly and validly authorized and issued and are fully paid and non-assessable.
(d) There are no material claims, suits or other legal proceedings
pending or threatened against Medi-Hut of any court or before or by any
governmental body which might materially effect the business of Medi-Hut or
the financial condition of Medi-Hut as a whole and no such claims, suits or
legal proceedings are contemplated by governmental authorities against
Medi-Hut.
(e) To the best knowledge of such counsel, the consummation of the
transactions contemplated by this Plan will not violate or contravene the
provisions of the Certificate of Incorporation or Bylaws of Medi-Hut, or any
contract, agreement, indenture, mortgage, or order by which Medi-Hut is bound.
(f) This Plan constitutes a legal, valid and binding obligation of
Medi-Hut enforceable in accordance with its terms, subject to the effect of
any bankruptcy, insolvency, reorganization, moratorium, or similar law
effecting creditors' rights generally and general principles of equity
(regardless of whether such principles are considered in a proceeding in
equity or law).
(g) The execution and delivery of this Plan and the consummation of
the transactions contemplated hereby have been ratified by a majority of the
Shareholders of Medi-Hut and have been duly authorized by its Board of
Directors.
(h) Medi-Hut has not, nor will it undertake any action, the
result of which would endanger the tax-free nature of the Plan.
6.5 Good Standing. Xxxxxx shall have received a Certificate of Good
Standing from the State of Delaware, dated within sixty (60) days prior to
Closing, but in no event later than ten days subsequent to the execution
hereof certifying that Medi-Hut is in good standing as a corporation in the
State of Delaware..
6.6 Other Items. Xxxxxx and the Shareholders shall have received such
further documents, certifications or instruments relating to the transactions
contemplated hereby as Xxxxxx and the Shareholders may reasonably request.
Section 7
Conditions Precedent to Obligations of Medi-Hut
All obligations of Medi-Hut under this Plan are subject, at its option,
to the fulfillment, before the Closing, of each of the following conditions:
7.1 Accuracy of Representations. The representations and warranties
made by Xxxxxx and the Shareholders under this Plan were true when made and
shall be true as of the Closing date (except for changes therein permitted by
this Plan) with the same force and effect as if such representations and
warranties were made at and as of the Closing date; and, Medi-Hut shall have
performed and complied with by Xxxxxx prior to the Closing, unless waived or
extended in writing by the parties hereto. Medi-Hut shall have been furnished
with a certificate, signed by a duly authorized executive officer of Xxxxxx
and dated the Closing date, to the foregoing effect.
7.2 Officers' Certificate. Medi-Hut shall have been furnished with a
certificate dated the Closing date and signed by a duly authorized executive
officer of Xxxxxx, to the effect that no litigation, proceeding,
investigation, or inquiry is pending, or to the best knowledge of Xxxxxx,
threatened, which might result in an action to enjoin or prevent the
consummation of the transactions contemplated by this Plan, or which might
result in any material adverse change in the assets, properties, business, or
operations of Xxxxxx.
7.3 No Material Adverse Change. Prior to the Closing date, there shall
have not occurred any material adverse change in the final condition, business
or operations of Medi-Hut, nor shall any event have occurred which, with lapse
of time or the giving of notice or both, may cause or create any material
adverse change in the financial condition, business or operations of Xxxxxx,
except as otherwise disclosed to Medi-Hut.
7.4 Good Standing. Medi-Hut shall have received a Certificate of Good
Standing from the State of New York, dated within sixty (60) days prior to
Closing, but in no event later than ten days subsequent to the execution
hereof certifying that Xxxxxx is in good standing as a corporation in the
State of New York.
7.5 Dissenters' Rights Waived. The Shareholders of Xxxxxx, and each of
them, agree and hereby waive any dissenters' rights, if any, under the laws of
the State of New York in regards to any objection to this Plan as outlined
herein and otherwise consent to and agree and authorize the execution and
consummation of the within Plan in accordance to the terms and conditions of
this Plan by the management of Xxxxxx.
7.6 Other Items. Medi-Hut shall have received such further documents,
certifications or instruments relating to the transactions contemplated hereby
as Medi-Hut may reasonably request.
7.7 Execution of Investment Letter. The Shareholders shall have
executed and delivered copies of Exhibit B to Medi-Hut.
Section 8
Termination
8.1 Termination by Xxxxxx or the Shareholders. This Plan may be
terminated at any time prior to the Closing date by action of Xxxxxx or the
Shareholders, if Medi-Hut shall fail to comply in any material respect with
any of the covenants or agreements contained in this Plan, or if any of its
representations and warranties contained herein shall be inaccurate in any
material respect.
8.2 Termination by Medi-Hut. This Plan may be terminated at any time
prior to the Closing date by action of Medi-Hut if Xxxxxx shall fail to comply
in any material respect with any of the covenants or agreements contained in
this Plan, or if any of its representations or warranties contained herein
shall be inaccurate in any material respect.
8.3 Termination by Mutual Consent
(a) This Plan may be terminated at any time prior to the Closing
date by mutual consent of Medi-Hut, expressed by action of its Board of
Directors, Xxxxxx or the Shareholders.
(b) If this Plan is terminated pursuant to Section 8, this Plan
shall be of no further force and effect and no obligation, right or liability
shall arise hereunder. Each party shall bare its own costs in connection
herewith.
Section 9
Shareholders' Representative
The Shareholders hereby irrevocably designate and appoint Xxxxxxxx
Xxxxxxx as their agent and attorney in fact (the "Shareholders'
Representative") with full power and authority until the Closing to execute,
deliver and receive on their behalf all notices, requests and other
communications hereunder; to fix and alter on their behalf the date, time and
place of the Closing; to waive, amend or modify any provisions of this Plan
and to take such other action on their behalf in connection with this Plan,
the Closing and the transactions contemplated hereby as such agent deems
appropriate; provided, however, that no such waiver, amendment or modification
may be made if it would decrease the number of shares to be issued to the
Shareholders under Section 1 hereof or increase the extent of their obligation
to Medi-Hut hereunder, unless agreed in writing by the Shareholders.
Section 10
General Provisions
10.1 Further Assurances. At any time, and from time to time, after the
Closing 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 the Plan.
10.2 Payments of Estimated Costs and Fees. Medi-Hut and Xxxxxx mutually
determine and agree that Medi-Hut shall pay the estimated costs and fees
incurred in connection with the execution and consummation of the Plan.
10.3 Press Release and Shareholders' Communications. On the date of
Closing, or as soon thereafter as practicable, Xxxxxx and the Shareholders
shall cause to have promptly prepared and disseminated a news release
concerning the execution and consummation of the Plan, such press release and
communication to be released promptly and within the time required by the
laws, rules and regulations as promulgated by the United States Securities and
Exchange Commission, and concomitant therewith to cause to be prepared a full
and complete letter to Medi-Hut's shareholders which shall contain information
required by Regulation 240.14f-1 as promulgated under Section 14(f) as
mandated under the Securities and Exchange Act of 1934, as amended.
10.4 Notices. All notices and other communications required or
permitted hereunder shall be sufficiently given if personally delivered, sent
by registered mail, or certified mail, return receipt requested, postage
prepaid, or by facsimile transmission addressed to the following parties
hereto or at such other addresses as follows:
If to Medi-Hut: Medi-Hut Co., Inc.
0000 Xxxxxxxxxx Xxx.
Xxxxxxxxx, Xxx Xxxxxx 00000
If to Xxxxxx: Xxxxxx Consulting Corp.
0000 Xxxxxx Xxxx
Xxxxxxx, Xxx Xxxx 00000
or at 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, mailed, sent
by facsimile transmission, or telegraphed.
10.5 Entire Agreement. This Plan represents the entire agreement
between the parties relating to the subject matter hereof, including any
previous letters of intent, understandings, or agreements between Medi-Hut,
Xxxxxx and the Shareholders with respect to the subject matter hereof, all of
which are hereby merged into this Plan, which alone fully and completely
expresses the agreement of the parties relating to the subject matter hereof.
Excepting the foregoing agreement, there are no other courses of dealing,
understandings, agreements, representations, or warranties, written or oral,
except as set forth herein.
10.6 Governing Law. This Plan shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware, except to the
extent preempted by federal law, in which event (and to that extent only)
federal law shall govern.
10.7 Tax Treatment. The transaction contemplated by this Plan is
intended to qualify as a "tax-free" reorganization under the provisions of
Section 368(a)(1)(B) of the Internal Revenue Code of 1986, as amended. Xxxxxx
and Medi-Hut acknowledge, however, that each are being represented by their
own tax advisors in connection with this transaction, and neither has made any
representations or warranties to the other with respect to treatment of such
transaction or any part or effect thereof under applicable tax laws,
regulations or interpretations; and no attorney's opinion or tax revenue
ruling has been obtained with respect to the tax consequences of the
transactions contemplated by the within Plan.
10.8 Attorney Fees. In the event that any party prevails in any action
or suit to enforce this Plan, or secure relief from any default hereunder or
breach hereof, the nonprevailing party or parties shall reimburse the
prevailing party or parties for all costs, including reasonable attorney fees,
incurred in connection therewith.
10.9 Amendment of 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 may be enforced concurrently or separately, 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, therefore, or
thereafter occurring or existing. Any time prior to the expiration of thirty
(30) days from the date hereof, this Plan 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 Plan 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.
10.10 Counterparts. This Plan may be executed in any number of
counterparts, each of which when executed and delivered shall be deemed to be
an original, and all of which together shall constitute one and the same
instruments.
10.11 Headings. The section and subsection headings in this Plan are
inserted for convenience only and shall not effect in any way the meaning or
interpretation of the Plan.
10.12 Parties in Interest. Except as may be otherwise expressly
provided herein, all terms and provisions of this Plan shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
beneficiaries, personal and legal representatives, and assigns.
IN WITNESS WHEREOF, the parties have executed this Plan and Agreement of
Reorganization effective the day and year first set forth above.
MEDI-HUT CO., INC.
Attest:
/s/ Xxxxxxx Xxxxxxxxx /s/ Xxxxxx Xxxxxxxxx
_____________________ By: _______________________________________
Its President
XXXXXX CONSULTING CORP.
Attest:
/s/ Xxxxx Xxxxxxxxx /s/ Xxxxxxxx Xxxxxxx
_____________________ By: _______________________________________
Its President
SHAREHOLDERS:
Attest:
/s/ Xxxxx Xxxxxxxxx /s/ Xxxxxxxx Xxxxxxx
_____________________ By: _________________________________________
Xxxxxxxx Xxxxxxx
