AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger ("Agreement") is made as of December 29,
1995, among MEDICAL PRODUCTS, INC., a Florida, USA, corporation ("Med Pro" or
the "Company"), its shareholders, THE XXXXXXXXX LIMITED PARTNERSHIP & XXXXXXXX
COVE TRUST, as agent for the shareholders of the Company (the "Shareholders"),
NOVATEK INTERNATIONAL, INC., a Colorado corporation ("Novatek"), and a Florida
corporation to be formed as a wholly-owned subsidiary of Novatek ("Acquisition
Co.").
RECITALS:
A. The authorized capital stock of the Company consists of 7,500 shares
of voting common stock, $1.00 par value per share (the "Company Stock"), of
which 7,500 shares (collectively the "Company Shares") are issued and
outstanding. The Shareholders own all of the Company Shares.
B. The authorized capital stock of Acquisition Co. will consist of 7,500
shares of common stock, $1.00 par value (the "Acquisition Co. Stock"), of which
100 shares (the "Acquisition Co. Shares") shall be issued and outstanding.
Novatek will own all of the Acquisition Co. Shares.
C. The parties desire that the Company be acquired through a merger (the
"Merger") of the Company into Acquisition Co. subject to and upon the terms and
conditions set forth herein.
D. It is the intent of the parties that the consummation of the various
transactions contemplated herein will qualify as a "reorganization", as such
term is defined at Section 368(a)(1)(A) of the Internal Revenue Code of 1986.
E. The Company has acquired an exclusive license from New England
Diagnostics (XXX) for the sum of $30 million, to market and distribute
diagnostic devices in all of the countries of South America and in the Bahamas.
The payment of the $30 million was made in the form of a note (XXX Note).
F. The Company has entered into an agreement with XXX to acquire
contracts which provide for the sale of $100,000,000 of medical diagnostic
devices to government of Brazil in consideration of the sum of $36 million. The
amount to be due to XXX upon the assignment of the contracts shall be referred
to as the "XXX Contingent Obligation".
G. At Closing, post-merger Acquisition Co., as the surviving corporation,
shall with XXX approval restructure the XXX Note and the XXX Contingent
Obligation as provided in Section 1.3.1 below.
In consideration of the premises and for other good and valuable
considerations, the parties hereto intending to be legally bound agree as
follows:
1. THE MERGER
1.1 PARTIES, SURVIVOR, EFFECT
1.1.1 Pursuant to the terms and conditions of this Agreement, the
Company shall be merged with and into Acquisition Co. wherein Acquisition Co.
shall be the surviving corporation. The name of Acquisition Co. shall, to the
extent possible, be changed to "NOVATEK INTERNATIONAL HOLDINGS, INC."
concurrently with or immediately after the Merger. The Merger shall be
consummated pursuant to and shall have the effect provided by the Florida
General Corporation Act (the "FGCA").
1.2 The Merger shall be effective upon filing Articles of Merger with the
State of Florida. Such Articles of Merger shall be in substantially the form
attached hereto as Exhibit 1.1.2.
1.3 TOTAL PURCHASE PRICE / MERGER CONSIDERATION
1.3.1 PURCHASE PRICE; The "Total Purchase Price" for the Company
Shares and in consideration of the merger, in restructuring the XXX Note, and
satisfying the XXX Contingent Obligation (sometimes also herein called the
"Merger Consideration") shall be $72,000,000 (U.S.). consisting of and payable
as follows:
(a) Upon the execution of this Agreement, a non-refundable
deposit in the form of a ninety (90) day $3,000,000 convertible note,
convertible into 1.2 million shares of Novatek common stock is to be delivered
to the Company or its assigns. In the event there is no closing, the Company
shall deliver to Novatek on or before April 3, 1996, 8.4% of the issued and
outstanding common stock of the Company in consideration of the issuance of this
non-refundable deposit. At Closing, Novatek shall cause the Company to transfer
the convertible note to XXX, in satisfaction of $3,000,000 of the principal
balance due under the XXX Note.
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(b) At Closing, $3,000,00 in immediately available funds shall
be paid to XXX or its assigns in satisfaction of $3,000,000 of the principal
balance due under the XXX note;
(c) At Closing, Novatek will transfer to XXX, in satisfaction of
$24,000,000 of the principal balance due under the XXX Note, four million eight
hundred thousand shares of Novatek unregistered common stock, valued at 5
dollars per share, representing $24,000,000 of the Merger Consideration to be
paid under this Agreement. In the event that the principal balance of the XXX
Note should be less than $24,000,000, after taking into consideration the
transfers under subsections (a) and (b) of this Section 1.3.1 (hereinafter
referred to as the "XXX Calculated Principal Balance"), then the number of
shares of Novatek stock transferred under this subsection (c) shall be adjusted
by determining the difference between 24,000,000 and the XXX Calculated
Principal Balance and dividing such difference by 5. This adjustment shall be
hereinafter referred to as the "XXX Note Stock Adjustment".
(d) At Closing, Novatek will transfer to the Shareholders or
their assigns 1,200,000 shares of Novatek unregistered common stock valued at 5
dollars per share, representing $6,000,000 of Merger Consideration. However,
should there be a decrease in the number of shares of Novatek stock issued to
XXX under subsection (c) of this Section 1.3.1 due to an XXX Note Stock
Adjustment, then the amount of stock transferred to the Shareholders under this
provision shall be increased by the same number of shares.
(e) At Closing, in satisfaction of the XXX Contingent
Obligation, Novatek will execute and deliver in favor of XXX, fully earned and
non-cancelable Convertible Debentures in the aggregate principal amount of
$36,000,000 ("Debentures"). The Debentures shall bear interest payable
quarterly at the rate of 9% per annum and shall be due on January 1, 2001;
provided, however, that principal payments in reduction of the Debentures must
be made annually to the extent net profits of Novatek exceed $4,000,000 after
taxes. The Debentures shall be convertible at Holder's option into Novatek
unregistered Common Stock at the lesser of $5.00 per share, or the NASDAQ bid
price of the Novatek Common Stock on the date of conversion by XXX. The
Debentures may be prepaid by Novatek at any time on thirty (30) days notice to
XXX during which time XXX may elect to convert the Debenture to Novatek Common
Stock. The Debentures may be converted to Preferred Stock of Novatek on terms
agreeable to Company and Novatek's Board of Directors. In the event the Company
has not, by the Closing Date, entered into a final agreement (the "Brazil
Agreement") pursuant to which the Company (or its successor) would provide
$100,000,000 of medical diagnostic devices (sometimes called "Products") to the
Government of Brazil, the $36 million dollar Debenture, which otherwise would
have been included in the Total Purchase Price and issued to XXX at Closing may
be retained by Novatek in an escrow reasonably acceptable to XXX, and will be
delivered to XXX upon the execution and delivery of the Brazil Agreement; and If
XXX elects to convert the Debenture into the common stock of Novatek, to the
extent the bid price of Novatek common stock sold on the NASDAQ exchange shall
be less than
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an average of $5.00 per share for the 10 trading days preceding the Closing
Date, the number of shares of Novatek common stock to be issued and delivered to
XXX at Closing pursuant to the Note or the Debentures shall be adjusted as
provided in Section 1.3.2 below.
1.3.2 PRICE ADJUSTMENT. In the event that shares of Novatek
common stock do not trade at an average Bid price (based on closing prices) of
at least $5.00 per share during the ten (10) days prior to Closing, then Novatek
shall issue additional shares of Novatek unregistered common stock to XXX to the
extent necessary to result in a total valuation of $66,000,000 when such average
Bid price is multiplied by the number of total shares received by XXX (including
the additional shares provided for herein).
1.3.3 CONSIDERATION. The Total Purchase Price includes, without
adjustment, all assets and liabilities of the Company on the balance sheets of
December 31, 1995.
1.3.4 REGISTRATION UNDER SECURITIES ACT OF 1933.
(a) Novatek agrees that if, at any time subsequent to
January 1, 1996, but prior to January 1, 2002, XXX or the Shareholders, requests
that Novatek file, under the Securities Act of 1933 (the "Act"), a registration
statement under the Act covering all or any of the Novatek Common Stock owned by
XXX or the Shareholders (whether from conversion of the Note or the Debentures
or otherwise), Novatek (i) will promptly notify XXX and the Shareholders that
such registration statement will be filed and that the Novatek unregistered
Common Stock which are then held, and/or may be acquired upon the conversion of
the Note or Debenture by XXX, the Shareholders and any other shareholders will
be included in such registration statement, (ii) will cause such registration
statement to cover all Novatek Common Stock which it has been so requested to
include, (iii) will use its best efforts to cause such registration statement to
become effective as soon as practicable and (iv) will take all other action
reasonably necessary under any Federal or state law or regulation of any
governmental authority to permit all Novatek Common Stock which it has been so
requested to include in such registration statement to be sold or otherwise
disposed of, and will maintain for nine months such compliance with each such
Federal and state law and regulation of any governmental authority for XXX and
the Shareholders to effect the proposed sale or other disposition; provided,
however, that in no event shall Novatek be obligated to qualify to do business
in any jurisdiction where it is not so qualified or to take any action that
would subject it to tax or to service of process in any jurisdiction where it is
not subject thereto. Notwithstanding anything contained in this Section to the
contrary, Novatek shall have no obligation to register the Novatek Common Stock
as provided in this Section more than twice.
(b) Novatek agrees that if at any time subsequent to
January 1, 1996, but prior to January 1, 2002, the Board of Directors of Novatek
shall authorize the filing of a registration statement
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(any such registration statement being hereinafter called a "Subsequent
Registration Statement") under the Act in connection with the proposed offer
of any of its securities by it or any of its shareholders, Novatek (i) will
promptly notify XXX and the Shareholders that such Subsequent Registration
Statement will be filed and that the Novatek Common Stock then held, and/or
which may be acquired upon the exercise of the Note or Debentures by XXX and
the Shareholders, will, at NED's and/or the Shareholders' request, received
within twenty (20) days of such notice, be included in such Subsequent
Registration Statement, (ii) will use its best efforts to cause such
Subsequent Registration Statement to become effective as soon as practicable,
and (iii) will take all other action reasonably necessary under any Federal
or state law or regulation of any governmental authority to permit all
Novatek Common Stock which it has been so requested to include in such
Subsequent Registration Statement to be sold or otherwise disposed of, and
will maintain for nine months such compliance with each such Federal and
state law and regulation of any governmental authority for XXX and the
Shareholders to effect the proposed sale or other disposition.
Notwithstanding the above, the registration rights provided herein will not
apply to a Subsequent Registration Statement filed by the Company relating
solely to: (i) securities to be issued by the Company in connection with the
acquisition of stock or assets of another corporation, or the merger or
consolidation of another corporation by or with Novatek, or (ii) securities
to be offered to officers or employees of the company, and each registration
right shall be subject to then existing market conditions and the consent of
the underwriters, if any. Notwithstanding anything contained in this Section
to the contrary, the right of XXX and the Shareholders to be included in such
Subsequent Registration Statement may not be exercised more than five (5)
times. In no event shall Novatek be obligated to qualify to do business in
any jurisdiction where it is not so qualified or to take any action that
would subject it to tax or the service of process in any state where it is
not subject thereto.
(c) Whenever Novatek is required pursuant to the provisions
of this Section to use its best efforts to take action pursuant to any Federal
or state law or regulation of governmental authority to permit the sale or other
disposition of Novatek Common Stock which are then held and/or which may be
acquired upon the exercise of the Notes or Debenture or otherwise, Novatek shall
(i) furnish each holder of any Novatek Common Stock and each underwriter of
Novatek Common Stock with such copies of the Prospectus, including the
preliminary prospectus, conforming to the Act (and such other documents as each
such holder or each such underwriter may reasonably request) in order to
facilitate the sale or distribution of the Novatek Common Stock, (ii) use its
best efforts to register or qualify the Novatek Common Stock covered by the
registration statement or post-effective amendment, as the case may be, under
the blue sky laws (to the extent applicable) of such jurisdiction or
jurisdictions as XXX, the Shareholders and each underwriter shall have
reasonably requested; provided, however, that in no event shall Novatek be
obligated to qualify to do business in any jurisdiction where it is not so
qualified or to take any action that would subject it to tax or the service of
process in any state where it is not subject thereto.
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(d) Novatek shall pay all expenses, disbursements and fees
(including, but not limited to, printing costs, filing fees, underwriting
discounts or commissions, other underwriting expenses, transfer taxes, and legal
and accounting fees incurred of a Registration or a Subsequent Registration
pursuant to this Section; except, however, XXX and/or the Shareholders shall pay
all brokerage commissions relating to the sale or exchange of their Novatek
Common Stock.
(e) Novatek will indemnify XXX and the Shareholders
substantially to the same extent as Novatek shall indemnify the underwriters and
XXX and the Shareholders will indemnify Novatek in a manner reasonably
requested by Novatek with respect to information therein provided by XXX and the
Shareholders.
1.4 GENERAL MERGER PROVISIONS
1.4.1 ACTIONS AUTOMATIC
All conversions, cancellations and other actions provided
for in this Article shall occur automatically upon the effectiveness of the
Merger, by virtue of the Merger and without any action on the part of the
holders of the Company Shares. Upon the effective date of the Merger, all of
the Company Shares shall be deemed canceled and Acquisition Co. shall have paid
or delivered the Purchase Price required to be paid or delivered as provided in
Section 1.3.1 and in Section 8.3(a).
1.4.2 CONVERSION OF COMPANY SHARES
All Company Shares issued and outstanding immediately before
the Merger shall be converted in the aggregate into the right to receive the
Purchase Price.
1.5 ARTICLES OF INCORPORATION, BYLAWS, DIRECTORS AND OFFICERS
1.5.1 The Articles of Incorporation of Acquisition Co. in effect
immediately prior to the Merger shall remain the Articles of Incorporation of
Acquisition Co. after the Merger, unless and until amended as provided herein,
therein and by law.
1.5.2 The by-laws of Acquisition Co. in effect immediately prior
to the Merger shall remain the by-laws of Acquisition Co. after the Merger
unless and until as amended as provided therein or by law.
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1.5.3 After the Merger, the persons listed in Schedule 1.5.3 shall
be the officers and directors of Acquisition Co. as set forth next to their
respective names until the respective successors have been elected and
qualified.
2. REPRESENTATIONS AND WARRANTIES OF
SHAREHOLDERS AND THE COMPANY
Shareholders and the Company, jointly and severally, make the following
representations and warranties to each of Acquisition Co. and Novatek.
2.1 TITLE TO SHARES
2.1.1 As identified in Schedule 2.1, Shareholders are the owners,
beneficially and of record, of all Company Shares as set out in Schedule 2.1.
free and clear of all liens, encumbrances, security agreements, claims, charges,
restrictions, options, shareholder's agreements or other interests, excepting a
debt of $30 million dollars, owed to New England Diagnostics, in consideration
of the transfer of the exclusive license (see license agreement) and a $1
million note, both obligations will be paid in full from the proceeds of the
closing of this transaction. In addition to these debts, there is a
contingent liability of $36 million dollars that will be assumed by Novatek
as of the closing.
2.1.2 Shareholders have full power to vote their Company Shares
and to surrender their Company Shares as contemplated by this Agreement without
obtaining the consent or approval of any other Stock other than the person,
entity or government authority. Shareholders do not own any Company Stock other
than the Company Shares identified in Schedule 2.1.
2.1.3 Shareholders owns 100% of all issued and outstanding capital
stock of the Company, which issued and outstanding capital stock consists solely
of the Company Shares.
2.1.4 Shareholders agree to vote in favor of the Merger.
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3. MEED PRO CORPORATE STATUS
3.1 ORGANIZATION AND STANDING
The Company is a corporation duly organized, validly existing and in
good standing under the laws of Florida. The Company has all necessary corporate
powers to own its properties and to operate its businesses as now owned and
operated. Neither the ownership of the Company's properties nor the nature of
the Company's business require the Company to be qualified in any other
jurisdictions.
3.2 CAPITALIZATION OF THE COMPANY
The authorized capital stock of the Company consists of 7,500
shares of voting common stock, $1.00 par value, of which 7,500 shares are issued
and outstanding. The Company Shares are validly issued, fully paid and
nonassessable and such shares have been so issued in full compliance with all
federal and state securities laws. There are no outstanding subscriptions,
options, rights, warrants, convertible securities, or other agreements or
commitments obligating the Company to issue or to transfer from or otherwise
issue any additional shares of Company Stock or any other treasury capital
stock. No Company Stock has been issued in violation of any preemptive rights
and no Company Stock has been purchased, sold or otherwise transferred in
violation of any applicable law or any buy-sell or other shareholder agreement.
3.3 FINANCIAL STATEMENTS
For purposes of this Agreement, "Financial Statements" means the
Balance Sheet, Income Statement, Statement of Cash Flow, and other financial
reports of the Company as of and for the 12 month period ending December 31,
1995. The Financial Statements, true and correct copies of which will be
delivered by Company to Acquisition Co., have been prepared in accordance with
generally accepted accounting principles consistently followed by the Company
throughout the periods indicated and fairly present the financial position of
the Company as of the respective dates of the balance sheet included in the
Financial Statements and the results of its operations for the respective
periods indicated.
3.4 ABSENCE OF CERTAIN CHANGES
As to the Company, since December 31, 1995,
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(a) there has not been any event or condition of any character
that has or might reasonably have a material and adverse effect on the financial
condition, business, assets or prospects of any of the foregoing corporations.
(b) the Company has operated only in the ordinary course of
business; and
(c) the Company has not paid or declared any dividends on the
Company Stock or purchased or otherwise acquired or issued any further shares of
Company Stock or granted any options or other rights to purchase same.
3.5 TAXES
Within the times and in the manner prescribed by law, the Company has
filed all tax returns required to be filed by it, and has paid all taxes,
assessments and penalties due and payable. There are no present disputes as to
taxes of any nature payable by the Company nor any tax liens whether existing or
inchoate in any of the assets of the Company. There shall be no taxes owing by
the Company for periods prior to January 1, 1996. Shareholders shall be solely
liable for all such taxes for periods prior to such date.
3.6 DEBTS AND CONTINGENT LIABILITIES
The Company has no debt, liability, or obligation of any nature,
whether accrued, absolute, contingent, by guarantee or otherwise, and whether
due or to become due, nor does there exist any situation or fact known by
Shareholders which involve potential liability of the Company that is not
reflected or reserved against in the Financial Statements.
3.7 CONTRACTS
Schedule 3.7 contains an accurate listing of all contracts, licenses,
agreements or other legally binding commitments of the Company in existence on
the date hereof, separated according to the following categories:
(a) employment contracts, contracts exceeding $10,000 for
services of independent contractors and other employee benefit and/or employee
remuneration plans, arrangements, contracts or agreements, including pension and
stock option plans;
(b) contracts including licenses relating to Devices, patents,
trademarks, trade names, copyrights, know-how, trade secrets and similar
matters,
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(c) all notes, loan or credit contracts and instruments or
documents related to security for debt, including but not limited to Indentures,
mortgages, pledges, conditional sales and other title retention contracts;
(d) contracts and policies relating to insurance security for
debt, including but not limited to, indentures, mortgages, pledges, conditional
sales and other title retention contracts;
(e) contracts and policies relating to insurance whose coverage
exceeds $10,000, including without limitation, title insurance and all
occurrence-based policies regardless of when issued;
(f) sales agency, sales representation and distributorship
contracts";
(g) leases for real property, buildings or equipment.
All items listed in Schedule 3.7 are in full force with no default
thereunder known by the Company or Shareholders, and, to the Company's or
Shareholders' knowledge, no facts or conditions exist which, if continued, would
result in a default thereunder. No item listed on Schedule 3.7 shall be
affected in any manner by a change in control of the Company.
3.8 CASH AND BANK ACCOUNTS; POWERS OF ATTORNEY
Schedule 3.8 contains an accurate listing of:
(a) all banks in which the Company has an account or safe
deposit box and the names of all persons authorized to draw thereon or to have
access thereto as well as all money market funds in which the Company
participates; and
(b) the names of all persons, if any, holding general or special
powers of attorney from the Company, together with a summary statement of the
terms thereof.
3.9 RECEIVABLES
Schedule 3.9 is an accurate schedule of the Company's accounts and
notes receivables as of the date set out in such Schedule, together with an
accurate aging of such receivables. All such receivables are, to the Company's
and Shareholders' knowledge, fully collectible.
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3.10 INVENTORY
All items of inventory of the Company are of a quality and quantity
useable and saleable by the Company in the ordinary course of business. No
items of such inventory are held by the Company on consignment from others.
3.11 TANGIBLE PERSONAL PROPERTY
Schedule 3.11 contains an accurate schedule describing, specifying,
and giving the location of, and providing an indication of whether the property
is owned or leased, for all personal property (excluding inventories, but
including leasehold improvements on real property) owned, leased by or used by
the Company in connection with its business. All such personal property is, to
the Company's and Shareholder's knowledge, in good working order and such
personal property constitutes all the personal property necessary to conduct the
business of Company as such business is currently conducted.
3.12 LICENSES, PATENTS, TRADEMARKS, TRADENAMES AND OTHER INTANGIBLE RIGHTS
Schedule 3.12 contains an accurate listing of all licenses,
trademarks, tradenames, copyrights, patents and other similar intangible rights
and applications relating thereto, involving the Devices or other products or
business of the Company that are presently used by or held in the name of the
Company. Such Schedule includes an indication as to whether or not the items
listed thereon are evidenced by an appropriate copyright, patent, or other form
of registration and indicates the unexpired term of each item listed thereon.
To the Company's and Shareholders' knowledge, the Company conducts its
businesses without conflict or infringement with valid patents, trademarks,
tradenames, copyrights and other similar intangible rights of others.
3.13 TITLE TO ASSETS
Regarding the assets owned, leased or used by the Company:
(a) the Company has good and marketable title to all assets or
interests in assets owned by it or used in its businesses, free and clear of
mortgages, security interests, liens, pledges, charges, encumbrances, equities,
claims, easements, rights-of-way, covenants, conditions or restrictions except
for those disclosed in the Financial Statements, and the lien of current taxes
not yet due and payable; and
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(b) all licenses and permits possessed by the Company as of the
date hereof shall remain in full force and effect upon the Closing of the
Merger.
3.14 LABOR MATTERS
There are no pending or threatened labor disputes, strikes or work
stoppages affecting the business of the Company. The Company has not
experienced any labor disputes, strikes or work stoppages.
3.15 EMPLOYEE BENEFIT PLANS
The Company has no benefit plans, defined contribution plans, welfare
plans, compensation plans or multiemployer plans.
3.16 COMPLIANCE WITH LAWS
The Company is in material compliance with all applicable federal,
state or local statutes, laws and regulations affecting its properties or the
operation of its business. The Company is not in default with respect to any
order, writ, injunction or decree of any federal, state, local or foreign court,
department, agency or instrumentality.
3.17 NO CONFLICT WITH OTHER INSTRUMENTS
The execution and delivery of this Agreement has been duly authorized
and the consummation by the Shareholders and Company of the transactions
contemplated hereby and the change in control of the Company will not:
(a) require any consent, authorization or approval of any
person, entity or government authority;
(b) violate or constitute a default under the Articles of
Incorporation or Bylaws of the Company or any note, indenture, mortgage, deed of
trust or other contract, agreement or commitment of the Shareholders or the
Company; or
(c) result in the creation or imposition of any lien, charge or
encumbrance upon the property of the Company or cause the acceleration of any
indebtedness of the Company.
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(d) adversely affect any license, permit or agreement necessary
for the conduct of the business of Company.
3.18 LITIGATION
Except as disclosed on Schedule 3.18, there are no suits,
arbitrations, or legal, administrative or other proceedings or governmental
investigations pending, or to the knowledge of Shareholders and all officers and
directors of the Company, threatened against or affecting the businesses, assets
or financial condition of the Company.
3.19 PREPAYMENT OF OUTSTANDING DEBT
All outstanding debt of the Company will be retired and paid off from
the proceeds of the transaction.
3.20 PRODUCT LIABILITY/WARRANTY CLAIMS
(a) Schedule 3.20 is an accurate list showing all liability
experience of the Company through the date hereof. Such Schedule identifies the
date of each liability claim, the name of the product involved, the amount
claimed as damages, the nature of the injury or other loss and the current
status of the claim. Such Schedule also includes a description of all insurance
policies respecting liability coverage against which claims for recovery have
been made by the Company during the periods covered. Other than as described in
such Schedule, during the periods of time covered by such Schedule there has
been no claim, notice of claim, demand, investigation or other indication in
writing or otherwise received by the Company of any of such corporations
respecting death, personal injury, damage to property or other loss or dangerous
condition that has or was claimed to be related to or caused by the Company.
(b) The Company shall make available to Acquisition Co. and
Novatek all of the Company's claims files which files completely and accurately
represent all of the claims received by the Company for the time period
indicated in Section 3.20(a) above.
3.21 THE SOLE DIRECTOR AND OFFICER
The sole director and officer of Medical Products, Inc., since its
incorporation and as of this date, is Xxxxxxx Xxxxxxxxx Xx.
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4. NOVATEK'S REPRESENTATIONS AND WARRANTIES
Novatek represents and warrants to Company and Shareholders as follows:
4.1 ORGANIZATION AND STANDING
Novatek is a corporation duly organized, validly existing and in good
standing under the laws of the state of Colorado. Novatek has all necessary
corporate powers to own its properties and to operate its business as now owned
and operated. Neither the ownership of Novatek's properties nor the nature of
its business require Novatek to be qualified in any jurisdictions other than the
State of Colorado or the State of Florida. Novatek is authorized to do business
in the state of Florida.
4.2 CAPITALIZATION
4.2.1 NOVATEK STOCK. The authorized capital stock of Novatek, at the
effective date of the Merger, shall consist of 250,000,000 shares of common
stock, no par value ("Novatek Common Stock"), of which 2,674,498 shares are
issued and outstanding ("Novatek Common Shares"), and 10,000,000 shares of
preferred stock ("Preferred Stock"), of which 5,000 have been designated Series
A 10% cumulative convertible preferred shares, convertible at the rate of one
share of Preferred Stock to 333 shares of Novatek convertible Common Stock, of
which 1,887 shares of Preferred Stock are, and shall at Closing be, issued and
outstanding. The Novatek Common Shares are validly issued, fully paid and
nonassessable and such Common Shares have been so issued in full compliance with
all federal and state securities laws. There are no outstanding subscriptions,
options, rights, warrants, convertible securities, or other agreements or
commitments obligating Novatek to issue or to transfer from or otherwise issue
any additional shares of Novatek Common Stock or Preferred Stock (collectively,
the "Novatek Stock") or any other treasury capital stock other than (a)
1,287,550 warrants to purchase Novatek Common Stock, with an exercise price of
$6.75 per share; and (b) 75,000 underwriter warrants to purchase Novatek Common
Stock, with an exercise price of $5.40 per share. Each member of the Board of
Directors has an option to purchase 5,000 shares at $5.00 per share. Holders of
preferred stock, have waived accrued dividends.
4.2.2 NO FURTHER STOCK ISSUANCE. Novatek shall not, prior to Closing
and the final payment of the Total Purchase Price, issue any additional shares
of Novatek Stock, or any option, warrants, units or other instruments or rights
convertible into Novatek Stock, except that Novatek may issue:
(a) a convertible bridge note for $3,000,000, convertible into
1,200,000 shares of Novatek Common Stock, may be issued at or prior to Closing;
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(b) at Closing, 1,000,000 shares of Novatek unregistered Common
Stock may be issued to Xxxxxx Xxxxxxx & Co. ("Underwriter");
(c) an option to purchase up to 450,000 shares of Novatek
unregistered common stock at $7.00 per share to Xxxxxx X. Xxxxxxx, Xx.
4.2.3 STOCK ISSUANCE GENERALLY. No Novatek Stock has been issued in
violation of any preemptive rights and no Novatek Stock has been purchased, sold
or otherwise transferred in violation of any state or federal laws or any buy-
sell or other shareholder agreement to the knowledge of Novatek or its Board of
Directors or its underwriters.
4.3 TAXES
Within the times and in the manner prescribed by law, Novatek has
filed all federal, state and local tax returns required to be filed and has paid
all taxes, assessments and penalties due and payable, if any.
There are no present disputes as to taxes of any nature payable by the
Company nor any tax liens whether existing or inchoate in any of the assets of
Novatek. There shall be no Federal or state taxes owing by Novatek for periods
prior to January 1, 1996.
4.4 DEBTS AND LIABILITIES
Other than as shown on Schedule 4.4, Novatek has no debt, liability,
or obligation of any nature, whether accrued, absolute, contingent, by guarantee
or otherwise, and whether due or to become due.
4.5 NO DELINQUENCY IN FILINGS WITH SEC
Novatek is current in its filings with the Securities and Exchange
Commission and any applicable state agency regulating securities.
4.6 CURRENT BOARD OF DIRECTORS AND OFFICERS
Novatek's Board of Directors, immediately prior to the date of
Closing, consists of the following individuals: See A. In addition, as of that
date, Novatek's Officers shall consist of the following individuals holding the
following offices: See B.
15
A: Xxxxx X. Xxxxxx B: President - Xxxxx X. Xxxxxx
Xxxxxxxx X. Xxxxxx Vice-President/Treasurer - Xxxxxxxx X. Xxxxxx
Xxxxxxxx X. Xxxxxx Secretary - Xxxxxxxx X. Xxxxxx
Xxxxxx Xxxxx
Xxxxxxx Xxxxxx
4.7 NO CONFLICT WITH OTHER INSTRUMENTS
The execution and delivery of this Agreement has been duly authorized
and the consummation by Novatek of the transactions contemplated hereby will
not:
(a) require any consent, authorization or approval of any
person, entity or government authority other than the Board of Directors
and, if necessary, shareholders of Novatek;
(b) violate or constitute a default under the Articles of
Incorporation or Bylaws of Novatek (if applicable) or any note, indenture,
mortgage, deed of trust or other contract, agreement or commitment of
Novatek (if applicable); or
(c) result in the creation or imposition of any lien, charge or
encumbrance upon the property of Novatek (if applicable), or cause the
acceleration of any indebtedness of Novatek (if applicable).
4.8 SECURITIES COMPLIANCE. Novatek represents and warrants that it has
filed on a timely basis all periodic reports and filings required to be filed
under Section 13(d) of the Securities Exchange Act, has delivered to
Shareholders true and complete copies of all such filings or reports filed
within the 12 months prior to the date hereof, and will deliver true and
complete copies of all reports and filings by Novatek or its shareholders
hereafter through the Closing.
5. SHAREHOLDERS' AND COMPANY'S
OBLIGATIONS PRIOR TO CLOSING
The Company and Shareholders jointly and severally covenant from the date
of this Agreement until the Closing Date:
16
5.1 ACCESS TO FACILITIES AND TO INFORMATION
Acquisition Co. and its representatives shall be afforded full access
to all facilities, properties, books, accounts, records, contracts and documents
of or relating to the Company or the Shareholders. The Shareholders or Company
shall furnish to Acquisition Co. and its representatives all data and
information concerning the business, finances and properties of the Company
that Acquisition Co. may request.
5.2 CONDUCT OF THE COMPANY'S BUSINESSES
From January 3, 1996 and to the Closing Date, the Company has and
will:
(a) conduct its business in the ordinary and usual course
and in substantially the same manner as heretofore conducted;
(b) not make any contract or commitment or incur an
obligation otherwise than in the ordinary course of business or make
any contract or commitment for capital expenditures;
(c) not declare or pay any dividends on the Company Stock;
(d) not purchase or otherwise acquire or issue any further
shares of Company Stock or grant any options or other rights to
purchase the same;
(e) not change its articles of incorporation, bylaws,
banking arrangements and account signatories and powers of attorney;
(f) not incur any indebtedness or liabilities except in the
ordinary course of business;
(g) not sell, mortgage or alienate any property;
(h) not lend or agree to lend any funds; and
(i) not increase salaries, declare bonuses, increase
benefits or modify any collective bargaining agreement.
17
5.3 PRESERVATION OF BUSINESS AND RELATIONSHIPS
The Company and Shareholders shall use their best efforts to
preserve the Company's business organization intact, to make available to
Acquisition Co. the present officers and employees of the Company and to
preserve the Company's present relationships with suppliers, customers and
others having business relationships with it.
5.4 MAINTENANCE OF INSURANCE
The Company shall continue to carry its existing
insurance, subject to renewal of policies by the insurance
companies at rates reasonably similar to current rates, and to
variations and amounts required by the ordinary operations of its
business.
5.5 CONSENTS
If consents are necessary or desirable in Acquisition Co.'s
opinion to facilitate any objective as respects the Company or its future
operations after the Closing Date, the Shareholders and the Company shall use
reasonable efforts to obtain any such consents.
5.6 LOANS
The Company shall incur no loans.
5.7 ACTIONS TO EFFECT THE MERGER
On or before the Closing Date, the Company and the
Shareholders will take all actions necessary to approve and effect the
Merger, including voting in favor of the Merger at any meeting of
Shareholders, and executing and filing Articles of Merger and such other
documents and certificates as may be necessary or appropriate.
6. CONDITIONS PRECEDENT TO NOVATEK'S AND
ACQUISITION CO.'S PERFORMANCE
The obligations of Novatek and Acquisition Co. are subject to the
satisfaction on or before the Closing Date of all of the following conditions:
18
6.1 ACCURACY OF SHAREHOLDERS' AND COMPANY'S REPRESENTATIONS AND
WARRANTIES
Except as otherwise permitted by this Agreement, all
representations and warranties of the Shareholders and the Company in this
Agreement or in any other writing that shall have been delivered to Novatek
or Acquisition Co. by them under this Agreement shall be true on and as of
the Closing Date.
6.2 COMPLIANCE BY SHAREHOLDERS AND COMPANY
The Shareholders and the Company shall have complied with all
provisions of this Agreement on or before the Closing Date.
6.3 NO MATERIAL ADVERSE CHANGE
During the period from December 31, 1995 to the Closing Date,
there shall not have been any material adverse change in the financial
condition or the results of operations of the Company and the Company shall
not have sustained any material loss or damage to its assets or business,
whether or not insured.
6.4 OPINION OF COUNSEL
Novatek shall have received from counsel for Shareholders and
the Company an opinion dated the Closing Date, in form and substance
satisfactory to Novatek.
6.5 THIRD PARTY ACTION
There shall not have been instituted or threatened by any
governmental unit or agency or any other person or entity or agency any
action, proceeding, investigation or objection challenging the Merger or the
transaction contemplated hereby and no such action, proceeding, investigation
or objection shall be imminent.
6.6 APPROVAL OF DOCUMENTATION
The form and substance of all certificates, instruments,
opinions, and other documents delivered or deliverable to Novatek under this
Agreement shall be satisfactory in all reasonable respects to Novatek and its
counsel.
19
6.7 BOARD AND SHAREHOLDER APPROVAL
Novatek's and Acquisition Co.'s Board of Directors and, if
necessary, shareholders shall have approved this Agreement and the
transactions provided for herein.
6.8 OTHER AGREEMENTS
The delivery of such other agreements, certificates,
instruments, opinions and other documents as shall be reasonably requested by
Novatek or its counsel.
6.9 BRAZIL AGREEMENT/OTHER CONTINGENCIES
The Company's consummation of the Brazil Agreement shall not
be a condition precedent to the Closing; it being agreed, however, that if
the Brazil Agreement is not fully executed by the Closing Date, the $36
million dollar consideration (part of the purchase price) in an agreed form,
shall instead be retained by Novatek in an escrow for the benefit of XXX, and
shall be released to XXX upon the execution of the Brazil Agreement.
7. CONDITIONS PRECEDENT TO SHAREHOLDERS'
AND COMPANY'S PERFORMANCE
The obligations of the Shareholders and the Company hereunder are
subject to the satisfaction on or before the Closing Date of all the
following conditions:
7.1 ACCURACY OF NOVATEK'S REPRESENTATIONS AND WARRANTIES
Except as otherwise permitted by this Agreement, all
representations and warranties by Novatek in this Agreement or in any other
writing that shall have been delivered to any Shareholder or the Company by
Novatek under this Agreement shall be true on and as of the Closing Date.
7.2 COMPLIANCE
Novatek and Acquisition Co. shall have complied with all
provisions of this Agreement on or before the Closing Date.
20
7.3 THIRD PARTY ACTION
There shall not have been instituted or threatened by any
governmental unit or agency or any other person or entity or agency any
action, proceeding, investigation or objection challenging the Merger or the
transaction contemplated hereby and no such action, proceeding, investigation
or objection shall be imminent.
7.4 APPROVAL OF DOCUMENTATION
The form and substance of all certificates, instruments,
opinions, and other documents delivered or deliverable to the Company or
Shareholders under this Agreement shall be satisfactory in all reasonable
respects to the Company, the Shareholders and their counsel.
7.5 OPINION OF COUNSEL
The Shareholders shall have received from counsel for Novatek
and Acquisition Co. an opinion letter dated the Closing Date in form and
substance satisfactory to Shareholders. Such opinion letter shall include,
among other things, opinions regarding the free transferability of the
Novatek Common Stock to be issued to Shareholders, and to the effect that no
approval of Novatek's shareholders is required to enter into this Agreement
or to pay the non-refundable $3,000,000 convertible note.
7.6 OTHER AGREEMENTS
The delivery of such other agreements, certificates,
instruments, opinions and other documents as shall be reasonably requested by
the Company's or Shareholders' counsel.
7.7 NOVATEK AND ACQUISITION CO. CAPITALIZATION
The outstanding capital stock of Novatek shall be as reflected
in Section 4.2. No Novatek Stock shall be issued or outstanding except as
reflected in Section 4.2, and no instruments or rights convertible into
Novatek Stock shall be issued or outstanding except as permitted in Section
4.2.2. Acquisition Co. shall have an authorized capitalization of 7,500
shares of common stock, all of the outstanding shares of which shall be owned
by Novatek.
7.8 BOARD AND SHAREHOLDER APPROVAL
The Company's, Novatek's and Acquisition Co.'s Board of
Directors and, if necessary, shareholders, shall have approved this
Agreement, the stock options or convertible notes provided for
21
herein, and the transactions provided for herein, including the consummation
of the Merger and the payment of the Total Purchase Price.
7.9 OTHER CONTINGENCIES
(a) The due date of all loans made by affiliates of
Novatek to Novatek shall be extended until a date not earlier than one year
from the Closing, and estoppel certificates from each creditor-affiliate
shall be provided to Shareholders and shall be in form and substance
reasonably satisfactory to Shareholders;
(b) Novatek shall not have issued any warrants, options
or rights convertible into Novatek Stock except as permitted in Section 4.2.2.
(c) At the time of Closing, Novatek Common Stock shall
be traded on the NASDAQ small cap stock market, and no stop orders shall
exist with respect to any such Stock in any jurisdiction.
(d) The beneficial owners of Novatek Common Stock who
have agreed not to sell their shares shall extend such agreement to a date
not earlier than one year from the Closing, and evidence of such agreements
shall be provided to XXX and the Shareholders and shall be in form and
substance reasonably acceptable to XXX and the Shareholders. The terms of
this lock up shall be the same terms as existing on the lock up under the
secondary offering completed April 28, 1995.
(e) If the Brazil Agreement is not entered into by the
Closing Date, an escrow agreement providing for the retention in escrow for
the benefit of XXX consideration in an agreed form valued at $36 million
dollars, pending consummation of the Brazil Agreement, shall be executed and
delivered in form and substance reasonably satisfactory to XXX.
(f) The Convertible Note and Debentures, in form and
substance acceptable to the Shareholders, shall be executed and delivered at
Closing.
8. CLOSING
8.1 CLOSING DATE AND PLACE
The parties will use their best efforts to close the
transactions provided for herein on February 20, 1996. However, Novatek or
Shareholders may, by notice to the other parties, extend the
22
day for Closing one or more times. In no event, however, shall the day for
Closing ("Closing Date") be extended beyond February 29, 1996.
The closing ("Closing") shall be held at the offices of
Shareholders in the Bahamas, or at such other place as Shareholders may
designate, commencing at 10:00 a.m., local time at the place of Closing.
8.2 SHAREHOLDERS' AND COMPANY'S CLOSING OBLIGATIONS
Subject to the satisfaction of all conditions precedent to
Shareholders' and Company's obligations, Shareholders or the Company, as the
case may be, shall deliver to Novatek at the Closing:
(a) stock certificates representing all of
the Company Shares;
(b) a letter agreement executed by Shareholders
substantially in the form of Exhibit 8.2(b) regarding Shareholders'
investment intent with respect to the Novatek Common Shares acquired by
Shareholders, except with respect to such Shares which shall be freely
transferable;
(c) certificates, dated as of the Closing Date, signed
by the Company's President and Secretary and Shareholders certifying in such
detail as Acquisition Co. may reasonably request that all of the
representations and warranties contained herein are true on and as of the
Closing Date, that Shareholders and the Company have complied with all
provisions of this Agreement and that all of the conditions set forth herein
as a prerequisite to Closing have been satisfied in full;
(d) such further certificates, instruments, opinion, and
other documents as shall be reasonably requested by Acquisition Co.'s
counsel; and
(e) certified copies of the Company's resolutions
authorizing the Merger.
8.3 CLOSING OBLIGATIONS OF NOVATEK
Subject to the satisfaction of all conditions precedent to
Novatek's obligations, at Closing Novatek shall issue and deliver:
(a) certificates for the 1.2 million Novatek Common
Shares required to be delivered under Section 1.3.1 (a) with
respect to the Purchase Price;
23
(b) in respect of the XXX Note and XXX
Contingent Obligation as provided in Section 1.3.1,
the Convertible Note and Debentures in form and
substance acceptable to XXX and the Shareholders;
(c) immediately available funds in the
amount of $3,000,000 representing the cash portion
of the Total Purchase Price payable to XXX under
Section 1.3.1;
(d) such further certificates, instruments,
opinions, and other documents as shall be
reasonably requested by the Company's or
Shareholders' counsel including documents duly
authorized and executed to accomplish the matters
set forth in Section 7.7 hereof;
(e) certified copy of Novatek's and
Acquisition Co.'s Board and, if necessary,
Shareholder resolutions authorizing the Merger and
all related transactions described
herein;
(f) an opinion of counsel in form and
substance satisfactory to the Company and
Shareholders.
(g) certificates, dated as of the Closing
Date, signed by Novatek's and Acquisition Co.'s
President and Secretary certifying in such detail
as Shareholders may reasonably request that all of
the representations and warranties contained
herein are true on and as of the Closing Date,
that Novatek and Acquisition Co. have complied
with all provisions of this Agreement and that all
of the conditions set forth herein as a
prerequisite to closing have been satisfied in
full;
(h) evidence reasonably satisfactory to
Shareholders to the effect that the conditions identified
in Section 7.9 (a) and (d), including estoppels from
creditors.
9. EXAMINATION PERIOD AND TERMINATION
At the date hereof, neither Shareholders nor Novatek has had an
opportunity to make an investigation or analysis of the business, assets,
liabilities, properties and affairs of Novatek or of the Company,
respectively, or of the exhibits, schedules, information and other documents
to be delivered hereafter pursuant to this Agreement and relating to
Novatek's or the Company's assets, liabilities, equities, commitments,
properties and businesses. The parties shall complete the preparation of all
such exhibits, schedules, information and documents, and shall deliver the
same by February 20, 1996. The parties shall have seven days from the date
of their respective receipt of the last of such exhibits, schedules,
information and other documents, in which to investigate, ascertain and
verify, all of the facts,
24
manner which it may choose, the business and affairs of the Company or
Novatek, as the case may be. If in Shareholders' or Novatek's good faith
judgment there is any material breach of any warranty contained in this
Agreement or misrepresentation, or failure of the other parties to perform
any of their commitments, covenants or conditions contained in this
Agreement, or if there exists any material error, misstatement or omission
with regard to any part thereof or if Shareholders or Novatek, respectively,
in its sole judgment, is not satisfied with the results of its investigation
or the contents of any of the exhibits, schedules, information or other
documents, or with the results of its examination of the business and
condition (financial or otherwise) of the Company or of Novatek, as the case
may be, either such party may terminate this Agreement at any time prior to
the end of such period by written notice to the other parties.
10. MISCELLANEOUS
10.1 SURVIVAL OF COVENANTS
(a) All covenants, agreements, warranties, representations
and undertakings of Shareholders and the Company contained herein or in any
document delivered hereunder shall, except as provided in Section 9, (i)
continue and survive the consummation of the transactions and remain in full
force and effect thereafter and (ii) not be affected by any preclosing
investigation or examination of the subject matter thereof made by another
party hereto or its representatives.
(b) All covenants, agreements, warranties, representations
and undertakings of Novatek or Acquisition Co. contained herein or in any
document delivered hereunder shall, except as provided in Section 9, (i)
continue and survive the consummation of the transactions and remain in full
force and effect thereafter and (ii) not be affected by any preclosing
investigation or examination of the subject matter thereof made by another
party hereto or its representatives.
10.2 EXHIBITS AND SCHEDULES
Each Exhibit and Schedule referred to herein is hereby
incorporated into this Agreement by reference to the same extent as if set
forth in full herein. The Exhibits and Schedules incorporated herein by
reference need not be physically attached hereto so long as such Exhibits and
Schedules are (i) appropriately identified as such on their face and (ii)
signed or initialed by the parties or their designated representative for
such purpose. Exhibits or schedules not prepared or delivered on the date
hereof shall be prepared and delivered as provided in Section 9.
25
10.3 FINDER'S FEES
The parties each represent to the others that no broker brought
about or participated in the transactions except for Underwriter, to whom
Novatek owes certain compensation as agreed between Novatek and Underwriter.
Each party agrees to indemnify and hold harmless the other parties against
any loss, liability, damage, cost, claim or expense incurred by reason of any
brokerage, commission or finder's fees alleged to be payable because of any
act, commission, or statement of the indemnifying party. The Company and
Shareholders have no obligation to compensate Underwriter or any finders with
respect to the Merger or any of the transactions contemplated herein.
10.4 EXPENSES
Each of the parties shall pay all costs and expenses incurred
or to be incurred by it in negotiating and preparing this Agreement and in
closing and carrying out the transactions.
10.5 ATTORNEYS' FEES
The parties hereto shall bear the cost of their own attorneys
and related expenses in resolving disputes arising out of this Agreement and
the various agreements contemplated herein.
10.6 NOTICES
Any notice, request or demand hereunder may be given or
furnished to or served upon a party by certified or registered mail, return
receipt requested, express overnight delivery or telecopier. Notice shall be
deemed given three (3) days after notice is deposited with the U.S. Mail, the
next day following timely deposit with an express overnight delivery service
and at the time of telecopier transmission if receipt is promptly confirmed.
Notices should be addressed or sent as follows:
If to Shareholders: Xxxxxxxxx Limited Partnership
C/O Xxxxxxx Xxxxxxxxx, Xx.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx Xxxxx, XX 00000
00
Xxxxxxxx Xxxx Trust
X/X Xxxx. Xxxxxx Xxxxx
Xxxxxxxx Xxxxx Xxxxx
0000 Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxx, Xxxxxxx, XXX 00000
If to the Company: Medical Products, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx Xxxxx, XX 00000
If to Acquisition Co.: Xx. Xxxxx X. Xxxxxx
0000 Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
If to Novatek: Xx. Xxxxx X.Xxxxxx, President
0000 Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
or such other address as a party shall specify in a notice pursuant to this
Section.
10.7 CONSTRUCTION OF CERTAIN TERMS
The locative adverbs "herein", "hereunder", "hereto", etc.,
whenever used in this Agreement, refer to this Agreement in its entirety and
not any specific section hereof.
10.8 GOVERNING LAW
This Agreement shall be governed by the law of the
State of Florida.
10.9 NO THIRD PARTY BENEFICIARIES
Shareholders, the Company, Novatek and Acquisition Co. agree that
there are no third party beneficiaries of the provisions of this Agreement
and none of the provisions hereof shall be deemed to inure to the benefit of
any person not a party hereto.
27
10.10 HEADINGS
The table of contents and captions contained in this Agreement
shall not affect the interpretation of this Agreement.
10.11 REQUIRED PARTIES
This Agreement shall not become effective until executed by
each of the Shareholders, the Company, Novatek and Acquisition Co.
10.12 COUNTERPARTS
This Agreement may be executed in several counterparts, each
of which shall be an original and all of which shall constitute but one and
the same Agreement.
10.13 SIGNATURE BY TELECOPIER
Counterpart copies of this Agreement may be signed by all
parties and exchanged by telecopier. Counterpart copies so signed and
exchanged shall be fully binding. Counterpart originals of this Agreement
may concurrently be manually signed by all parties and shall be exchanged by
U. S. Mail or express service at the earliest possible date.
10.14 REORGANIZATION
The Merger is intended to constitute a "reorganization" as
such term is defined at IRC Section 368(a)(1).
10.15 PLAN OF MERGER
Sections 1.1 through 1.4 of this Agreement and such other
provisions as may be required by the laws of the state of Florida shall
constitute the Agreement and Plan of Merger between the Company and
Acquisition Co. for the purposes of the FGCA. The remaining terms of this
Agreement are agreements of the parties hereto among themselves.
28
IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above written.
SHAREHOLDERS:
XXXXXXXXX LIMITED PARTNERSHIP
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Title: President of Middlebury Enter-
prises, Inc. General Partner
--------------------------------
XXXXXXXX COVE TRUST
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Title: Trustee
--------------------------------
MEDICAL PRODUCTS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Title: President
--------------------------------
ACQUISITION CO.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Title: President
--------------------------------
NOVATEK INTERNATIONAL, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Title: President
--------------------------------
29
Schedule to Agreement and Plan of Merger ("Agreement") dated as of December
29, 1995 among Medical Products, Inc., ("Med Pro" or the "Company"), its
shareholders, The Xxxxxxxxx Limited Partnership & Xxxxxxxx Cove Trust, (the
"Shareholders"), Novatek International, Inc., a Colorado corporation
("Novatek"), and a Florida corporation to be formed as a wholly-owned
subsidiary of Novatek ("Acquisition Co.")
The contents of or disclosures in any Schedule to this Agreement are, to the
extent relevant, hereby made a part of the Agreement and of all other
Schedules to the Agreement, regardless of whether any particular Schedule is
expressly incorporated by reference in and made a part of any other Schedule.
In addition, copies of each of the documents or materials referred to in or
attached to any Schedule to this Agreement (or made available to or obtained
by a party) have been provided to the party to whom delivery is to be made
and the existence and content thereof are deemed to be part of such Schedule.
Capitalized terms used in any Schedule without definition shall have the
meanings given to such terms in the Agreement.
SCHEDULE 1.5.3
OFFICERS AND DIRECTORS OF POST-MERGER ACQUISITION CO.
SEE INCUMBENCY CERTIFICATE DELIVERED AT CLOSING
Schedule to Agreement and Plan of Merger ("Agreement") dated as of December
29, 1995 among Medical Products, Inc., ("Med Pro" or the "Company"), its
shareholders, The Xxxxxxxxx Limited Partnership & Xxxxxxxx Cove Trust, (the
"Shareholders"), Novatek International, Inc., a Colorado corporation
("Novatek"), and a Florida corporation to be formed as a wholly-owned
subsidiary of Novatek ("Acquisition Co.")
The contents of or disclosures in any Schedule to this Agreement are, to the
extent relevant, hereby made a part of the Agreement and of all other
Schedules to the Agreement, regardless of whether any particular Schedule is
expressly incorporated by reference in and made a part of any other Schedule.
In addition, copies of each of the documents or materials referred to in or
attached to any Schedule to this Agreement (or made available to or obtained
by a party) have been provided to the party to whom delivery is to be made
and the existence and content thereof are deemed to be part of such Schedule.
Capitalized terms used in any Schedule without definition shall have the
meanings given to such terms in the Agreement.
SCHEDULE 2.1
OWNERSHIP OF COMPANY SHARES OF MED PRO
Xxxxxxxxx Limited Partnership - 3750 Shares
Xxxxxxxx Cove Trust - 3750 Shares
OTHER MED PRO DEBTS
-Approximately $929,000 in the aggregate
of convertible promissory notes issued by
Med Pro pursuant to a Xxxxxx Xxxxxxx & Co.
underwritten private placement, copies of each of
which have been provided by Med Pro.
-$200,000 Med Pro Note to One Up Investments, a
copy of which has been provided by Med Pro.
-$50,000 Med Pro Note to X. Xxxxxx, a copy of which
has been provided by Med Pro.
-$97,759.91 Med Pro Note to Xxxxxxx Xxxxxxxxx, a
copy of which has been provided by Med Pro.
Schedule to Agreement and Plan of Merger ("Agreement") dated as of December
29, 1995 among Medical Products, Inc., ("Med Pro", or the "Company"), its
shareholders, The Xxxxxxxxx Limited Partnership & Xxxxxxxx Cove Trust, (the
"Shareholders") , Novatek International, Inc., a Colorado corporation
("Novatek"), and a Florida corporation to be formed as a wholly-owned
subsidiary of Novatek ("Acquisition Co.")
The contents of or disclosures in any Schedule to this Agreement are, to the
extent relevant, hereby made a part of the Agreement and of all other
Schedules to the Agreement, regardless of whether any particular Schedule is
expressly incorporated by reference in and made a part of any other Schedule.
In addition, copies of each of the documents or materials referred to in or
attached to any Schedule to this Agreement (or made available to or obtained
by a party) have been provided to the party to whom delivery is to be made
and the existence and content thereof are deemed to be part of such Schedule.
Capitalized terms used in any Schedule without definition shall have the
meanings given to such terms in the Agreement.
SCHEDULE 4.4
NOVATEK DEBTS AND LIABILITIES
NOVATEK INTERNATIONAL, INC.
SCHEDULE OF LIABILITIES
AS OF JANUARY 31, 1996
Trade Accounts Payable $102,264.12
Customer Deposits 2,500.00
Accrued Salaries and Wages 13,000.00
Accrued Vacation Pay 12,000.00
Employment Agreement 51,667.00
Loan Payable - 91 Chevy Pickup 3,372.03
Loan Payable - 93 Isuzu Pickup 2,002.68
Mortgage Payable - Xxxxxxx X. Xxxxx 155,000.00
Mortgage Payable - Point Fourteen Corp. 240,000.00
CONTINGENT LIABILITIES
Xxxxx Co. Case No. CL 95-6282 AG PB Cty
Xxxxxx Xxxxxxx Case No. CL 95-3844 AO PB Cty
Xxx Xxx Case No. CL 95-3844 AO PB Cty
Preferred Restoration Case No. CL 93-7986 AD PB Cty
OTHER LIABILITIES
liabilities incurred in the ordinary course of business (excluding known
construction claims) since January 31, 1996
