EXHIBIT A
PLAN OF MERGER
▇▇▇▇▇▇▇▇.▇▇▇ INCORPORATED
AND
CYTATION CORPORATION
THIS PLAN AND AGREEMENT OF MERGER (hereinafter called "this Agreement"),
dated as of February 11, 1999, is by and between ▇▇▇▇▇▇▇▇.▇▇▇ INCORPORATED, a
New York corporation (hereinafter referred to as "▇▇▇▇▇▇▇▇.▇▇▇" and/or
"Surviving Corporation"), and CYTATION CORPORATION, a Rhode Island corporation
(hereinafter called "Cytation" and/or "Disappearing Corporation"), said
corporations being hereafter sometimes collectively referred to as the
"Constituent Corporations".
WITNESSETH:
WHEREAS, ▇▇▇▇▇▇▇▇.▇▇▇ is a corporation duly organized and existing under
the laws of the State of New York, having been incorporated in 1966, and
Cytation is a corporation duly organized and existing under the laws of the
State of Rhode Island, having been incorporated in January 29, 1996; and
WHEREAS, the authorized capital stock of ▇▇▇▇▇▇▇▇.▇▇▇ consists of ONE
HUNDRED MILLION (100,000,000) shares of .001 par value Common Stock, of which
ONE MILLION TWO HUNDRED FOUR THOUSAND AND SEVENTY-SIX (1,204,076) shares are
outstanding; and
WHEREAS, the authorized capital stock of Cytation consists of ONE MILLION
FIVE HUNDRED THOUSAND (1,500,000) shares of Common Stock, .01 par value, of
which ONE MILLION TWO HUNDRED THIRTY-ONE THOUSAND FOUR HUNDRED AND
NINETY-THREE (1,231,493) shares are outstanding; and
WHEREAS, the Boards of Directors of the Constituent Corporations deem it
advisable for the general welfare and advantage of the Constituent
Corporations and their respective shareholders that the Constituent
Corporations respectively desire to so merge pursuant to this Agreement and
pursuant to the applicable provisions of the laws of the State of New York
and Rhode Island;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereby agree, in accordance with the
applicable provisions of the laws of the State of New York, that the
Constituent Corporations shall merge, to wit: Cytation Corporation, a Rhode
Island corporation, one of the Constituent Corporations, which is not a new
corporation, and which shall cease its existence under the laws of the State
of Rhode Island pursuant to the Merger (said corporation hereafter being
sometimes called the "Disappearing Corporation"), and the terms and conditions
of the Merger hereby agreed upon (hereafter called the "Merger") which the
parties covenant to observe, keep and perform and the mode of carrying the
same into effect are and shall be as hereafter set forth:
ARTICLE I
CONDITIONS
The Merger shall be subject to the following conditions:
(a)the approval of the boards of directors of both Constituent
Corporations;
(b)the approval of the majority of shareholders of both Constituent
Corporations.
ARTICLE II
EFFECTIVE TIME OF THE MERGER
At the effective time of the Merger, the separate existence of Cytation
shall cease and ▇▇▇▇▇▇▇▇.▇▇▇ shall become the Surviving Corporation.
Consummation of this Agreement shall be effected on the date on which a
Certificate and Articles of Merger in substantially the form annexed hereto is
filed in the office of the Secretary of State of the State of New York and
State of Rhode Island, all after satisfaction of the respective requirements
of the applicable laws of said state prerequisite to such filings.
ARTICLE III
GOVERNING LAW; CERTIFICATE OF INCORPORATION
The laws which are to govern the Disappearing Corporation are the laws of
the State of New York. The Certificate and Articles of Incorporation of
Stylex Homes, Inc., the predecessor corporation to ▇▇▇▇▇▇▇▇.▇▇▇, as heretofore
amended, shall, prior to the effective time of the Merger, be amended to the
extent set forth in Paragraph Third of the Articles of Merger, attached
hereto, to amend the name of Stylex Homes, Inc., as the Surviving Corporation,
to ▇▇▇▇▇▇▇▇.▇▇▇ Incorporated. As so amended, such Articles of Incorporation
and Certificate of Incorporation shall remain in effect thereafter until the
same shall be further amended or altered in accordance with the provisions
thereof.
ARTICLE IV
BY-LAWS
The By-Laws of ▇▇▇▇▇▇▇▇.▇▇▇, at the effective time of the Merger shall be
the By-Laws of the Disappearing Corporation until the same shall be altered
or amended in accordance with the provisions thereof.
ARTICLE V
DIRECTORS AND OFFICERS
The Directors of the Disappearing Corporation at the effective time of
the Merger shall be the Directors of the Surviving Corporation until their
respective successors are duly elected and qualified. Subject to the
authority of the Board of Directors as provided by law and the By-Laws of the
Surviving Corporation, the officers of the Disappearing Corporation at the
effective time of the Merger shall be the officers of the Surviving
Corporation.
Said Directors and officers of the Surviving Corporation will be
identified in accordance with the present books and records of the
Disappearing Corporation as follows:
Name Age Position
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 52 Chairman of the Board and
General Counsel
▇▇▇▇▇ ▇. High 34 President and Director
▇▇▇ ▇. ▇▇▇▇▇, Ph.D. 52 Director
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 54 Director
▇▇▇▇ ▇▇▇▇▇▇ 39 Director
▇▇▇▇▇ ▇▇▇▇▇▇▇ 43 Vice President of Marketing
ARTICLE VI
CONVERSION OF SHARES IN THE MERGER
The mode of carrying into effect the Merger provided in this Agreement,
and the manner and basis of converting the shares of the Constituent
Corporations into shares of the Surviving Corporation are as follows:
▇.▇▇▇▇▇▇▇▇.▇▇▇ Common Stock. No Shares of Common Stock, .001 par value, of
▇▇▇▇▇▇▇▇.▇▇▇ issued and outstanding at the effective time of the Merger shall
be converted as a result of the Merger, and all of such shares shall remain
issued shares of Common Stock of the Surviving Corporation.
2.Cytation Common Stock. At the effective time of the Merger, each share
of .01 par value Common Stock of Cytation issued and outstanding shall be
converted into and become five and one-quarter (5.25) shares of Common Stock
of the Surviving Corporation. As a result, each holder of outstanding Common
Stock of Cytation shall surrender, on a five and one-quarter (5.25) share for
share basis, one stock certificate of Common Stock of Cytation for five and
one-quarter (5.25) shares of ▇▇▇▇▇▇▇▇.▇▇▇. Upon surrender to ▇▇▇▇▇▇▇▇.▇▇▇ of
one or more stock certificates for Common Stock of Cytation, each Cytation
shareholder shall be entitled to receive one or more stock certificates for
the full number of shares of Common Stock of ▇▇▇▇▇▇▇▇.▇▇▇ into which the
Common Stock of Cytation so surrendered shall have been converted as aforesaid
together with any dividends on the Common Stock of Cytation as to which the
payment date shall have occurred on or prior to the date of the surrender of
said shares and the proceeds from any sale of a fractional interest in
accordance with Paragraph 4 of this Article VI.
The common share allocation (the "Allocation") of the Surviving Corporation
will be as follows:
8,279,711 fully diluted, common shares of ▇▇▇▇▇▇▇▇.▇▇▇ will be issued and
outstanding, inclusive of:
$2.50 Option Holders in Cytation Corporation who may exercise and purchase up
to one hundred ninety-six thousand eight hundred seventy-five (196,875)
shares of ▇▇▇▇▇▇▇▇.▇▇▇ Incorporated;
$7.50 Warrant Holders in Cytation Corporation who may exercise and purchase up
to four hundred thirteen thousand four hundred and twenty-two (413,422)
shares of ▇▇▇▇▇▇▇▇.▇▇▇ Incorporated;
Cytation shareholders will own 85.50% of the 8,279,711 fully diluted, common
shares of ▇▇▇▇▇▇▇▇.▇▇▇ issued and outstanding.
3.Surrender of Cytation's Certificates. As soon as practicable after the
Merger becomes effective, the Stock Certificates representing Common Stock of
Cytation issued and outstanding at the time the Merger becomes effective shall
be surrendered for exchange to the Surviving Corporation as above provided.
Until so surrendered for exchange, each such Stock Certificate nominally
representing Common Stock of Cytation shall be deemed for all corporate
purposes (except for the payment of dividends, which shall be subject to the
exchange of stock certificates as above provided) to evidence the ownership of
the number of shares of Common Stock of the Disappearing Corporation which the
holder thereof would be entitled to receive upon its surrender to the
Surviving Corporation.
4.Issuance of Shares Subsequent to Merger. As soon as practicable after
the Merger becomes effective, the Surviving Corporation shall issue to the
shareholders of the Disappearing Corporation, on a pro rata five and
one-quarter (5.25) share basis, SIX MILLION FOUR HUNDRED SIXTY-FIVE THOUSAND
THREE HUNDRED AND THIRTY-EIGHT (6,465,338) shares of Common Stock in the
Surviving Corporation.
5.Fractional Interests. No fractional shares of Common Stock of the
Surviving Corporation or certificate or scrip representing the same shall be
issued. In lieu thereof each holder of Cytation Common Stock having a
fractional interest arising upon such conversion will be afforded through the
transfer agent for the Common Stock, on or before the 60th day following the
effective date of the Merger, or on or before such later date (but in any event
not later than the 90th day following the effective date of the Merger) as
the Disappearing Corporation may determine, to round up said holder's fractional
interest into one full additional share of Common Stock of the Surviving
Corporation. Any fractional interest with respect to which instructions shall
not have been so received by the transfer agent within the prescribed period
shall be canceled.
6.Status of Common Stock. All shares of Common Stock of the Surviving
Corporation into which shares of Common Stock of Cytation are converted as
herein provided shall be fully paid and non-assessable and shall be issued
in full satisfaction of all rights pertaining to such shares of Common Stock
of Cytation.
7.Independent Appraisal, Right to Dissent and Obtain Payment for Shares;
Procedures for Protection of Dissenter's Rights. In order to establish a
"fair value" for the shares of Cytation Common Stock which are paid in cash
in lieu of conversion into ▇▇▇▇▇▇▇▇.▇▇▇ Common Stock, as provided in Article
VI above, the Board of Directors of Cytation shall establish the value of
Cytation's stock prior to the Merger, and shall afford to such shareholders of
Cytation all of the rights, and implement the procedures for protection of
dissenters' rights, pursuant to the provisions of the Rhode Island General
Laws (R.I.G.L. 7-1.1-27, 7-1.1-30.3, 7-1.1-65, 7-1.1-67, 7-1.1-67, 7-1.1-68
and 7-1.1-74, et seq., as amended, the terms and provisions of which are
hereby incorporated by reference and made a part hereof.
ARTICLE VII
EFFECT OF THE MERGER
At the effective time of the Merger, the Surviving Corporation shall
succeed to, without other transfer, and shall possess and enjoy, all the
rights, privileges, immunities, powers and franchises both of a public and a
private nature, and be subject to all the restrictions, disabilities and
duties of the Disappearing Corporation, and all the rights, privileges,
immunities, powers and franchises of the Disappearing Corporation on whatever
account, for stock subscriptions as well as for all other things in action or
belonging to the Disappearing Corporation, shall be vested in the Surviving
Corporation; and all property, rights, privileges, immunities, powers and
franchises, and all and every other interest shall be thereafter as
effectually the property of the Surviving Corporation as if it was the
Disappearing Corporation, and the title to any real estate vested by deed or
otherwise in the Disappearing Corporation shall not revert or be in any way
impaired by reason of the Merger; provided, however, that all rights of
creditors and all liens upon any property of either of said Constituent
Corporations shall be preserved unimpaired, limited in lien to the property
affected by such liens at the effective time of the Merger.
ARTICLE VIII
ACCOUNTING MATTERS
The assets and liabilities of the Disappearing Corporation as at the
effective time of the Merger, shall be taken up on the books of the Surviving
Corporation at the amounts of which they shall be carried at that time on the
books of the Surviving Corporation. The amount of capital of the Surviving
Corporation after the Merger shall be equal to the sum of the aggregate amount
of the par value of the Common Stock to be issued in the Merger and of the
aggregate par value of the Common Stock that will remain issued upon the
Merger. The surplus of the Surviving Corporation after the Merger, including
any surplus arising in the Merger, shall be available to be used for any
legal purposes for which surplus may be used.
ARTICLE IX
SHAREHOLDER APPROVAL;
FILING OF CERTIFICATE AND ARTICLES OF MERGER
This Agreement shall be submitted to the shareholders of each of the
Constituent Corporations for approval. If such requisite shareholder approval
is obtained, Articles of Merger in substantially the form annexed hereto as
the facing and original document shall be signed, verified and delivered to
the Secretary of State of the State of New York and State of Rhode Island for
filing as provided by Section 904 of the New York Business Corporation Act and
provisions of the Rhode Island General Laws (R.I.G.L. 7-1.1-27, 7-1.1-30.3,
7-1.1-65, 7-1.1-67, 7-1.1-67, 7-1.1-68 and 7-1.1-74, et seq..
ARTICLE X
▇▇▇▇▇▇▇▇.▇▇▇ REPRESENTS AND WARRANTS TO CYTATION AS FOLLOWS
1.Organization, Etc. ▇▇▇▇▇▇▇▇.▇▇▇ is a corporation duly organized,
validly existing and in good standing under the laws of the State of New York.
▇▇▇▇▇▇▇▇.▇▇▇ has corporate power to carry on its business as it is now being
conducted and is qualified to do business in every jurisdiction in which the
character and location of the assets owned by it or the nature of the business
transacted by it require qualification.
2.Capitalization. ▇▇▇▇▇▇▇▇.▇▇▇'s capitalization consists of ONE HUNDRED
MILLION (100,000,000) authorized shares $.001 par value Common Stock, of which
ONE MILLION TWO HUNDRED FOUR THOUSAND AND SEVENTY-SIX (1,204,076) shares are
outstanding as of the date hereof. Each issued share is validly issued, fully
paid, non-assessable and each outstanding share is entitled to one vote.
Present capitalization is calculated in accordance with a recent 10:1 reverse
stock split in the predecessor corporation, Stylex Homes, Inc.
3.List of Information. ▇▇▇▇▇▇▇▇.▇▇▇ has delivered to Cytation a list of
information concerning ▇▇▇▇▇▇▇▇.▇▇▇ and its subsidiaries dated the date hereof.
The information set forth in such list and the copies of documents referred to
in such list and furnished to Cytation are complete and accurate.
4.Further Warranties and Representations:
(a) ▇▇▇▇▇▇▇▇.▇▇▇ has and on the closing date will have good and
marketable title to all tangible/intangible assets in its records and books of
account, free and clear of all liens, encumbrances and charges and except for
current taxes and assessments not delinquent and liens, encumbrances and
charges shown in its records and books of account which are not substantial in
character or amount, and do not materially detract from the value or interfere
with the use of properties subject thereto or affected thereby.
(b) ▇▇▇▇▇▇▇▇.▇▇▇ has and on the closing date will have good and
marketable title to the machinery, equipment, merchandise, materials, supplies
and other property of every kind, tangible or intangible, or shown as assets
in its records and books of account, free and clear of all liens, encumbrances
and charges and except for liens, encumbrances and charges, in any, which do
not materially detract from the value of or interfere with the use of the
properties subject thereto or affected thereby.
(c) There are no Pending claims, all taxes imposed by the U.S. or by any
foreign country or by any state, municipality, subdivision or instrumentality
of the U.S. or of any foreign county or by any other taxing authority, which
are due or payable by ▇▇▇▇▇▇▇▇.▇▇▇, and all price redetermination or
renegotiation claims asserted or that may be asserted against it, have been
paid in full or are adequately provided for by reserves shown in the records
and books of account of ▇▇▇▇▇▇▇▇.▇▇▇'s and will be so paid or provided for on
the closing date. ▇▇▇▇▇▇▇▇.▇▇▇ has no knowledge of any unassessed tax
deficiency proposed or threatened against it.
(d) Except for agreement described in and appended to the Disclosure
Schedule, none of which materially and adversely affects the earnings,
business, properties, or assets of ▇▇▇▇▇▇▇▇.▇▇▇,
▇▇▇▇▇▇▇▇.▇▇▇ is not a party to:
(1)any sales agency agreement not subject to termination without
liability on notice of sixty (60) days or less;
(2)any pension, retirement or profit sharing plan or agreement not
cancelable within sixty (60) days without liability;
(3)any management or consultation agreement not terminable at will
without liability;
(4)any union agreement or loan agreement;
(5)any contract, accepted order or commitment for the purchase of
materials, products or supplies having a total contract price in excess of
$500,000; or
(6)any other agreement which materially affects the business,
properties or assets of ▇▇▇▇▇▇▇▇.▇▇▇'s, or which was entered into other than
in the ordinary and usual course of business.
Adequate reserves will be provided and set up on the books of account of
▇▇▇▇▇▇▇▇.▇▇▇, and will continue to be so provided and set up throughout the
expansion of the project, for any contract, order or commitment expected to
be performed.
(e) ▇▇▇▇▇▇▇▇.▇▇▇ is enjoying and on the closing date will enjoy good
working relationships under all of the Agreements, dealer, sales
representation and other agreements necessary to the normal operation of its
business. All or substantially all of the real and personal properties used
in the business of ▇▇▇▇▇▇▇▇.▇▇▇ are and on the closing date will be in good
and operable condition. ▇▇▇▇▇▇▇▇.▇▇▇ is adequately insured with respect to
risks normally insured against by companies similarly situated. The
"Disclosure Schedule" shall contain a list, and be accompanied by copies, of
all existing insurance policies of ▇▇▇▇▇▇▇▇.▇▇▇'s, including but not limited
to group insurance and pension plans. All such policies are in full force
and effect.
The Disclosure Schedule shall also contain a list of all claims for
insured losses filed by ▇▇▇▇▇▇▇▇.▇▇▇ during the three (3) year period
immediately preceding the date of this Agreement, including but not limited to
workmen's compensation, automobile and general and product liability.
5.Litigation and Proceedings. There is no suit, action or legal or
administrative proceeding pending, or to the knowledge of ▇▇▇▇▇▇▇▇.▇▇▇
threatened, against it or any of its consolidated subsidiaries, which, if
adversely determined, might materially and adversely affect the financial
condition of ▇▇▇▇▇▇▇▇.▇▇▇ or the conduct of its businesses nor is there any
decree, injunction or order of any court, governmental department or agency
outstanding against ▇▇▇▇▇▇▇▇.▇▇▇ or any of its consolidated subsidiaries
having any such effect.
6.Material Contracts. ▇▇▇▇▇▇▇▇.▇▇▇ is not in default in any material
respect under the terms of any material outstanding contract, agreement, lease
or other commitment.
▇.▇▇ Conflict with Other Instruments. At the effective time of the Merger,
the consummation of 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 other material agreement or instrument
to which ▇▇▇▇▇▇▇▇.▇▇▇ or any of its subsidiaries is a party.
8.Governmental Authorizations. ▇▇▇▇▇▇▇▇.▇▇▇ has all licenses, franchises,
permits and other governmental authorizations which are valid and sufficient
for all businesses presently carried on by ▇▇▇▇▇▇▇▇.▇▇▇ and its consolidated
subsidiaries.
▇.▇▇▇▇▇▇▇▇ Act of 1934, Section 12 Reporting. Up to the effective time of
the Merger, ▇▇▇▇▇▇▇▇.▇▇▇ will currently maintain a published bid (not less than
one [1] market maker] and ask on NASDAQ's Over-the-Counter Bulletin Board
("OTC:BB"), under the trading symbol OTC:BB "CYTA" or "CYTS". In addition,
▇▇▇▇▇▇▇▇.▇▇▇ will conduct its operations according to its ordinary and usual
course of business consistent with past practices and obligations with respect
to its current status as a fully reporting company pursuant to Section 12 of
the Securities Exchange Act of 1934 (the "Exchange Act") and will be current
with respect to having filed all reports required to be filed pursuant to
Section 12, 13 and 16 of the Exchange Act.
ARTICLE XI
CYTATION'S REPRESENTATIONS AND WARRANTIES
Cytation represents and warrants to ▇▇▇▇▇▇▇▇.▇▇▇, as follows:
1.Organization. Cytation is a corporation duly organized, validly existing
and in good standing under the laws of the State of Rhode Island. Cytation has
corporate power to carry on its business as it is now being conducted and is
qualified to do business in every jurisdiction in which the character and
location of the assets owned by it or the nature of the business transacted by
it require qualification.
2.Capitalization. Cytation's capitalization consists of ONE MILLION FIVE
HUNDRED THOUSAND (1,500,000) authorized shares of Common Stock, $.01 par
value, of which ONE MILLION TWO HUNDRED THIRTY-ONE THOUSAND FOUR HUNDRED AND
NINETY-THREE (1,231,493) shares are issued and outstanding as of the date
hereof. Each issued share is validly issued, fully paid, non-assessable and
each outstanding share is entitled to one vote.
3.Shares to be Issued. At the effective time of the Merger, each share
of no par value Common Stock of Cytation issued and outstanding shall be
converted into and become five and one-quarter (5.25) shares of Common Stock
of the Surviving Corporation. As a result, each holder of outstanding Common
Stock of Cytation shall surrender, on a five and one-quarter (5.25) share for
share basis, one stock certificate of Common Stock of Cytation for five and
one-quarter (5.25) shares of ▇▇▇▇▇▇▇▇.▇▇▇. Upon surrender to ▇▇▇▇▇▇▇▇.▇▇▇ of
one or more stock certificates for Common Stock of ▇▇▇▇▇▇▇▇.▇▇▇, each Cytation
shareholder shall be entitled to receive one or more stock certificates for
the full number of shares of Common Stock of ▇▇▇▇▇▇▇▇.▇▇▇ into which the
Common Stock of Cytation so surrendered shall have been converted as aforesaid
together with any dividends on the Common Stock of Cytation as to which the
payment date shall have occurred on or prior to the date of the surrender of
said shares and the proceeds from any sale of a fractional interest in
accordance with Paragraph 4 of this Article VI.
▇.▇▇▇▇▇▇▇▇▇ Statements. Cytation has delivered to ▇▇▇▇▇▇▇▇.▇▇▇ copies of
its unaudited consolidated balance sheet as at December 31, 1998, and related
statements of consolidated earnings and earnings retained in the business for
the fiscal year ended on such date, in each case including the notes thereto.
All of such financial statements are true and complete and have been prepared
in accordance with generally accepted accounting principles consistently
followed throughout the periods indicated, except as otherwise indicated in
the notes thereto. Each of such balance sheets presents a true and complete
statement as of its date of the corporation's financial condition and assets
and liabilities subject to year-end adjustments. Except as and to the extent
reflected or reserved against therein (including the notes thereto), Cytation
did not have, as of the date thereof, any liabilities or obligations (whether
accrued, absolute, contingent or otherwise) of a nature customarily reflected
in a consolidated corporate balance sheet or the notes thereto, prepared in
accordance with generally accepted accounting principles. Each of such
statements of earnings and earnings retained in the business presents a true
and complete statement of the results of operations of Cytation for the
period indicated.
5.Further Warranties and Representations:
(a) Cytation has and on the closing date will have good and
marketable title to all tangible/intangible assets in its records and books of
account, free and clear of all liens, encumbrances and charges and except for
current taxes and assessments not delinquent and liens, encumbrances and
charges shown in its records and books of account which are not substantial in
character or amount, and do not materially detract from the value or interfere
with the use of properties subject thereto or affected thereby.
(b) Cytation has and on the closing date will have good and
marketable title to the machinery, equipment, merchandise, materials, supplies
and other property of every kind, tangible or intangible, or shown as assets
in its records and books of account, free and clear of all liens, encumbrances
and charges and except for liens, encumbrances and charges, in any, which do
not materially detract from the value of or interfere with the use of the
properties subject thereto or affected thereby.
(c) There are no Pending claims, all taxes imposed by the U.S. or
by any foreign country or by any state, municipality, subdivision or
instrumentality of the U.S. or of any foreign country or by any other taxing
authority, which are due or payable by Cytation, and all price redetermination
or renegotiation claims asserted or that may be asserted against it, have been
paid in full or are adequately provided for by reserves shown in the records
and books of account of Cytation and will be so paid or provided for on the
closing date. Cytation has no knowledge of any unassessed tax deficiency
proposed or threatened against it.
(d) Except for agreement described in and appended to the
Disclosure Schedule, none of which materially and adversely affects the
earnings, business, properties, or assets of Cytation, Cytation is not a
party to:
(1)any sales agency agreement not subject to termination
without liability on notice of sixty (60) days or less;
(2)any pension, retirement or profit sharing plan or agreement
not cancelable within sixty (60) days without liability;
(3)any union agreement or loan agreement;
(4)any contract, accepted order or commitment for the purchase
of materials, products or supplies having a total contract price in excess of
$5,000; or
(5)any other agreement which materially affects the business,
properties or assets of Cytation, or which was entered into other than in the
ordinary and usual course of business.
Adequate reserves will be provided and set up on the books of account of
Cytation, and will continue to be so provided and set up throughout the
expansion of the project, for any contract, order or commitment expected to
be performed.
(e) Cytation is enjoying and on the closing date will continue to enjoy
good working relationships under all Franchise Relationships, dealer, sales
representation and other agreements necessary to the normal operation of its
business. All or substantially all of the real and personal properties used
in the business of Cytation are and on the closing date will be in good and
operable condition. Cytation is adequately insured with respect to risks
normally insured against by companies similarly situated. The Disclosure
Schedule shall contain a list, and be accompanied by copies, of all existing
insurance policies of Cytation, including but not limited to group insurance
and pension plans. All such policies are in full force and effect. The
Disclosure Schedule shall also contain a list of all claims for insured losses
filed by Cytation during the three (3) year period immediately preceding the
date of this Agreement, including but not limited to workmen's compensation,
automobile and general and product liability.
6.Absence of Certain Charges or Events. From January 1, 1999 to the
date hereof, there has not been:
(i) Any change in the corporate status, businesses, operations or
financial condition of Cytation, other than changes in the ordinary course of
business.
(ii) any declaration, setting aside or payment of any dividend or
other distribution with respect to Cytation's Common Stock; or any purchase,
redemption or acquisition of such stock by Cytation, other than the contingent
issuance of seventy-five thousand (75,000) Common shares to ▇▇▇▇▇▇▇ ▇▇▇▇ &
Company, Limited Liability Company in connection with consulting and advisory
services rendered to Cytation; and
(iii) any other event or condition of any character which has
materially and adversely affected the corporate status, businesses, operations
or financial condition of Cytation and its consolidated subsidiaries taken as
a whole.
7.Litigation and Proceedings. There is no suit, action or legal or
administrative proceeding pending, or to the knowledge of Cytation threatened,
against it or any of its consolidated subsidiaries, which, if adversely
determined, might materially and adversely affect the financial condition of
Cytation and its consolidated subsidiaries or the conduct of their businesses
nor is there any decree, injunction or order of any court, governmental
department or agency outstanding against Cytation or any of its consolidated
subsidiaries having any such effect.
8.Material Contracts. Cytation is not in default in any material respect
under the terms of any material outstanding contract, agreement, lease or other
commitment.
▇.▇▇ Conflict with Other Instruments. At the effective time of the Merger,
the consummation of the transactions contemplated by this Plan will not result
in the breach of any term or provision or constitute a default under any
indenture, mortgage, deed of trust or other material agreement or instrument
to which Cytation or any of its subsidiaries is a party.
10.Governmental Authorizations. Cytation and each of its consolidated
subsidiaries have all licenses, franchises, permits and other governmental
authorizations which are valid and sufficient for all businesses presently
carried on by Cytation and its consolidated subsidiaries.
11.Brokers. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried on by Cytation directly
with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, and without the intervention of any other person.
ARTICLE XII
CONDUCT OF BUSINESSES PENDING THE MERGER
From and after the date of this Agreement and prior to the effective time
of the Merger, neither of the Constituent Corporations will, without the prior
written consent of the other:
1.Amend its Certificate of Incorporation or By-Laws except, in the case
as may be necessary to enable them to carry out the provisions of this
Agreement;
2.Engage in any material activity or transaction or incur any material
obligation (by contract or otherwise) except in the ordinary course of
business;
3.Issue rights or options to purchase or subscribe to any shares of its
capital stock or subdivide or otherwise change any such shares;
4.Issue or sell any shares of its capital stock or securities convertible
into shares of its capital stock, other than the contingent issuance of
seventy-five thousand (75,000) $.01 par value Common shares of Cytation to
▇▇▇▇▇▇▇ ▇▇▇▇ & Company, Limited Liability Company in connection with consulting
and advisory services rendered to Cytation; or
5.Declare or pay any dividends on or make any distributions in respect
of any shares of its capital stock.
6.From and after the date of this Agreement and prior to the effective
time of the Merger, Cytation will use its best efforts to preserve its business
organizations; to keep available to ▇▇▇▇▇▇▇▇.▇▇▇ the services of Cytation's
present officers and employees; and to preserve for ▇▇▇▇▇▇▇▇.▇▇▇ the goodwill
of Cytation's suppliers, customers and others having business relations with
any of them. During the same period, Cytation will not put into effect any
material increase in the compensation or other benefits applicable to
officers or other key personnel.
ARTICLE XIII
ADDITIONAL AGREEMENTS
The Constituent Corporations further agree as follows:
1.Access and Information. ▇▇▇▇▇▇▇▇.▇▇▇ and Cytation hereby agree that
each will give to the other and to the other's accountants, counsel and other
representatives full access during normal business hours throughout the period
prior to the Merger to all of its properties, books, contracts, commitments
and records, and that each will furnish the other during such period with all
such information concerning its affairs as such other party may reasonably
request. In the event of the termination of this Agreement each party will
deliver to the other all documents, work papers and other material obtained
from the other relating to the transactions contemplated hereby, whether so
obtained before or after the execution hereof, and will use its best efforts
to have any information so obtained and not heretofore made public kept
confidential.
2.Expenses. Upon a termination of this Agreement as provided in Section
C of Article XIV hereof, each party will pay all costs and expenses of its
performance of and compliance with all agreements and conditions contained
herein to be performed or complied with, including fees, expenses and
disbursements of its accountants and control.
3.Further Assurances. If at any time the Disappearing Corporation shall
consider or be advised that any further assignment or assurance in law or other
action is necessary or desirable to vest, perfect, or confirm, of record or
otherwise, in the Disappearing Corporation, the title to any property or
rights of Cytation acquired or to be acquired by or as a result of the Merger,
the proper officers and directors of ▇▇▇▇▇▇▇▇.▇▇▇ and the Disappearing
Corporation, respectively, shall be and they hereby are severally and fully
authorized to execute and deliver such proper deeds, assignments and
assurances in law and take such other action as may be necessary or proper in
the name of ▇▇▇▇▇▇▇▇.▇▇▇ or the Disappearing Corporation to vest, perfect or
confirm title to such property or rights in the Disappearing Corporation and
otherwise carry out the purposes of this Agreement.
ARTICLE XIV
CONDITIONS PRECEDENT; TERMINATION; GENERAL PROVISIONS
Conditions Precedent to ▇▇▇▇▇▇▇▇.▇▇▇'s Obligations. The obligations of
▇▇▇▇▇▇▇▇.▇▇▇ to effect the Merger shall be subject to the following
conditions (which may be waived in writing by Cytation):
1.The representations and warranties of ▇▇▇▇▇▇▇▇.▇▇▇'s herein contained
shall be true as of and at the effective time of the Merger with the same effect
as though made at such time; ▇▇▇▇▇▇▇▇.▇▇▇ shall have performed all obligations
and complied with all covenants required by this Agreement to be performed or
complied with by it prior to the effective time of the Merger; and
▇▇▇▇▇▇▇▇.▇▇▇ shall have delivered to Cytation a certificate, dated the
effective date of the Merger and signed by its President or one of its Vice
Presidents and its Secretary or one of its Assistant Secretaries, to such
effect.
▇.▇▇ material changes in the corporate status, businesses, operations or
financial condition of ▇▇▇▇▇▇▇▇.▇▇▇, and its consolidated subsidiaries shall
have occurred since January 1, 1999 (whether or not covered by insurance), other
than changes in the ordinary course of business, none of which has been
materially adverse in relation to ▇▇▇▇▇▇▇▇.▇▇▇ and its subsidiaries, taken as
a whole, and no other event or condition of any character shall have occurred
or arisen since that date which shall have materially and adversely affected
the corporate status, businesses, operations or financial condition of
▇▇▇▇▇▇▇▇.▇▇▇, and its subsidiaries, taken as a whole.
▇.▇▇▇▇▇▇▇▇.▇▇▇ shall have received such written consents and confirmations
(or opinions of counsel to the effect that such consents or confirmations are
not required), as it may reasonably request to the effect that the Disappearing
Corporation will succeed upon consummation of the Merger to all of
▇▇▇▇▇▇▇▇.▇▇▇'s right, title and interest in and to its material contracts,
agreements, leases and other commitments and that the Disappearing Corporation
shall possess and enjoy all material licenses, franchises, permits and other
governmental authorizations possessed by ▇▇▇▇▇▇▇▇.▇▇▇ at the date hereof.
Conditions Precedent to Cytation's Obligations. The obligations of
Cytation to effect the Merger shall be subject to the following conditions
(which may be waived in writing by ▇▇▇▇▇▇▇▇.▇▇▇):
1.The representations and warranties of Cytation herein contained shall
be true as of and at the effective time of the Merger with the same effect as
though made at such time; Cytation shall have performed all obligations and
complied with all covenants required by this Agreement to be performed or
complied with by it prior to the effective time of the Merger; and Cytation
shall have delivered to ▇▇▇▇▇▇▇▇.▇▇▇ a Certificate, dated the effective date of
the Merger; and signed by its Chairman of the Board and President or one of its
Vice Presidents and its Secretary or one of its Assistant Secretaries, to
such effect.
▇.▇▇ material change in the corporate status, businesses, operations or
financial condition of Cytation and its consolidated subsidiaries shall have
occurred since January 1, 1999, (whether or not covered by insurance), other
than changes in the ordinary course of business, and no other event or condition
of any character shall have occurred or arisen since that date which shall have
materially and adversely affected the corporate status, businesses, operations
or financial condition of Cytation and its consolidated subsidiaries, taken
as a whole.
Termination and Abandonment. Anything herein or elsewhere to the contrary
notwithstanding, this Agreement may be terminated and abandoned at any time
before the effective time of the Merger, whether before or after adoption or
approval of this Agreement by the Directors of the Constituent Corporations
under any one or more of the following circumstances:
▇.▇▇ the mutual consent of the Boards of Directors of the Constituent
Corporations;
▇.▇▇ Cytation if, prior to the effective time of the Merger, the conditions
set forth in Paragraphs 1 through 5, inclusive, of Section A of this Article XIV
shall not have been met;
▇.▇▇ ▇▇▇▇▇▇▇▇.▇▇▇ if, prior to the effective time of the Merger, the
conditions set forth in Paragraphs 1 and 2 inclusive of Section B of this
Article XIV shall not have been met;
▇.▇▇ either of the Constituent Corporations if any action or proceeding
before any court or other governmental body or agency shall have been instituted
or threatened to restrain or prohibit the Merger and such Constituent
Corporation deem it advisable to proceed with the Merger; or
▇.▇▇ either of the Constituent Corporations if the Certificate of Merger
shall not have been filed as provided in Article II hereof on or before March
1, 1999.
Upon any such termination and abandonment, neither party shall have any
liability or obligation hereunder to the other.
General. The headings in this Agreement shall not affect in anyway its
meaning or interpretation. 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.
Amendments. Any of the terms or conditions of this Agreement may be
modified or waived at any time before the effective time of the Merger by the
party which is, or the shareholders of which are, entitled to the benefit
thereof upon the authority of the Board of Directors of such party, provided
that any such modification or waiver shall in the judgment of the party making
it not affect substantially or materially or adversely the benefits to such
party or its shareholders intended under this Agreement.
IN WITNESS WHEREOF, this Agreement has been signed by the Chairman or
President of each of the Constituent Corporations and each of the Constituent
Corporations has caused its corporate seal to be hereunto affixed and
attested by the signature of its Secretary or an Assistant Secretary, all as
of the day and year first above written.
▇▇▇▇▇▇▇▇.▇▇▇ INCORPORATED,
a New York corporation
ATTEST:
/s/ ▇▇▇▇▇ ▇▇▇▇
_____________________________ __________________________________
, Secretary ▇▇▇▇▇ ▇▇▇▇, Chairman
CYTATION CORPORATION,
a Rhode Island corporation:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
__________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chairman
