ACQUISITION AGREEMENT AND PLAN OF MERGER
DATED AS OF MARCH 8, 2000
BETWEEN
HIV-VAC, INC.
AND
LIFEPLAN
TABLE OF CONTENTS
ARTICLE 1. The Merger 4
Section 1.1. The Merger 4
Section 1.2. Effective Time 4
Section 1.3. Closing of the Merger 4
Section 1.4. Effects of the Merger 4
Section 1.5. Board of Directors and Officers of HIVC 5
Section 1.6. Conversion of Shares 5
Section 1.7. Exchange of Certificates 5
Section 1.8. Taking of Necessary Action; Further Action 6
ARTICLE 2. Representations and Warranties of HIVC 6
Section 2.1. Organization and Qualification 6
Section 2.2. Capitalization of HIVC 6
Section 2.3.Authority Relative to this Agreement; Recommendation. 7
Section 2.4. SEC Reports; Financial Statements 7
Section 2.5. Information Supplied 7
Section 2.6. Consents and Approvals; No Violations 7
Section 2.7. No Default 7
Section 2.8. Financial Statements 8
Section 2.9. Litigation 8
Section 2.10. Compliance with Applicable Law 8
Section 2.11. Employee Benefit Plans; Labor Matters 8
Section 2.12. Environmental Laws and Regulations 9
Section 2.13. Tax Matters 10
Section 2.14. Title To Property 10
Section 2.15. Intellectual Property 10
Section 2.16. Insurance 10
Section 2.17. Vote Required 10
Section 2.18. Tax Treatment 11
Section 2.19. Affiliates 11
Section 2.20. Certain Business Practices 11
Section 2.21. Insider Interests 11
Section 2.22. Opinion of Financial Adviser 11
Section 2.23. Brokers 11
Section 2.24. Disclosure 11
Section 2.25. No Existing Discussion 11
Section 2.26. Material Contracts 11
ARTICLE 3. Representations and Warranties of LIFEPLAN. 12
Section 3.1. Organization and Qualification 12
Section 3.2. Capitalization of LIFEPLAN 12
Section 3.3.Authority Relative to this Agreement; Recommendation 13
Section 3.4. SEC Reports; Financial Statements 13
Section 3.5. Information Supplied 14
Section 3.6. Consents and Approvals; No Violations 14
Section 3.7. No Default 14
Section 3.8 No Undisclosed Liabilities; Absence of Changes 14
Section 3.9. Litigation 15
Section 3.10. Compliance with Applicable Law 15
Section 3.11. Employee Benefit Plans; Labor Matters 15
Section 3.12. Environmental Laws and Regulations 16
Section 3.13. Tax Matters 16
Section 3.14. Title to Property 17
Section 3.15. Intellectual Property 17
Section 3.16. Insurance 17
Section 3.17. Vote Required 17
Section 3.18. Tax Treatment 17
Section 3.19. Affiliates 17
Section 3.20. Certain Business Practices 17
Section 3.21. Insider Interests 17
Section 3.22. Opinion of Financial Adviser 18
Section 3.23. Brokers 18
Section 3.24. Disclosure 18
Section 3.25. No Existing Discussions 18
Section 3.26. Material Contracts 18
ARTICLE 4. Covenants 19
Section 4.1. Conduct of Business of HIVC 19
Section 4.2. Conduct of Business of LIFEPLAN 20
Section 4.3. Preparation of 8-K 21
Section 4.4. Other Potential Acquirers 21
Section 4.5. Meetings of Stockholders 21
Section 4.6. NASD OTC:BB Listing 22
Section 4.7. Access to Information 22
Section 4.8. Additional Agreements; Reasonable Efforts. 22
Section 4.9. Indemnification 22
Section 4.10. Notification of Certain Matters 23
ARTICLE 5. Conditions to Consummation of the Merger
Section 5.1. Conditions to each Party's Obligation to Effect the Merger 23
Section 5.2. Conditions to the Obligations of HIVC 24
Section 5.3. Conditions to the Obligations of LIFEPLAN 24
ARTICLE 6. Termination; Amendment; Waiver 24
Section 6.1. Termination 24
Section 6.2. Effect of Termination 25
Section 6.3. Fees and Expenses 25
Section 6.4. Amendment 25
Section 6.5. Extension; Waiver 25
ARTICLE 7. Miscellaneous 26
Section 7.1. Nonsurvival of Representations and Warranties 26
Section 7.2. Entire Agreement; Assignment 26
Section 7.3. Validity 26
Section 7.4. Notices 26
Section 7.5. Governing Law 26
Section 7.6. Descriptive Headings 26
Section 7.7. Parties in Interest 27
Section 7.8. Certain Definitions 27
Section 7.9. Personal Liability 27
Section 7.10. Specific Performance 27
Section 7.11. Counterparts 27
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "Agreement"), dated as of March
8, 2000, is between HIV-VAC, INC., a Nevada corporation ("HIVC"), and
LIFEPLAN, a Nevada corporation ("LIFEPLAN").
Whereas, on February 25, 2000 all of the stockholders of LIFEPLAN sold
their position to Xxxxxxx X. XxXxxx for $50,000 in cash consideration and
Xxxxxxxx Xxxxx resigned as President, Secretary, Treasurer and Sole Director
and Xxxxxxx X. XxXxxx became Sole Director, President, Secretary, Treasurer
and the only stockholder of record.
Whereas, the Boards of Directors of HIVC and LIFEPLAN each have, in
light of and subject to the terms and conditions set forth herein, (i)
determined that the Merger (as defined below) is fair to their respective
stockholders and in the best interests of such stockholders and (ii) approved
the Merger in accordance with this Agreement;
Whereas, for Federal income tax purposes, it is intended that the Merger
qualify as a reorganization under the provisions of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "Code"); and
Whereas, HIVC and LIFEPLAN desire to make certain representations,
warranties, covenants and agreements in connection with the Merger and also
to prescribe various conditions to the Merger.
Now, therefore, in consideration of the promises and the
representations, warranties, covenants and agreements herein contained, and
intending to be legally bound hereby, HIVC and LIFEPLAN hereby agree as
follows:
ARTICLE I
The Merger
Section 1.1. The Merger. At the Effective Time (as defined below) and
upon the terms and subject to the conditions of this Agreement and in
accordance with the General Corporation Law of the State of Nevada (the
"NGCL"), LIFEPLAN shall be merged with and into HIVC (as defined below) (the
''Merger`). Following the Merger, HIVC shall continue as the surviving
corporation (the "Successor Corporation"), shall continue to be governed by
the laws of the jurisdiction of its incorporation or organization and the
separate corporate existence of LIFEPLAN shall cease. Prior to the Effective
Time, the parties hereto shall mutually agree as to the name of the Successor
Corporation; however, initially the Successor Corporation shall be named HIV-
VAC, INC., a Nevada corporation. The Merger is intended to qualify as a
tax-free reorganization under Section 368 of the Code as relates to the non-
cash exchange of stock referenced herein.
Section 1.2. Effective Time. Subject to the terms and conditions set
forth in this Agreement, a Certificate of Merger (the "Merger Certificate")
shall be duly executed and acknowledged by each of LIFEPLAN and HIVC, and
thereafter the Merger Certificate reflecting the Merger shall be delivered to
the Secretary of State of the State of Nevada for filing pursuant to the NGCL
on the Closing Date (as defined in Section 1.3). The Merger shall become
effective at such time as a properly executed and certified copy of the
Merger Certificate is duly filed by the Secretary of State of the State of
Nevada in accordance with the NGCL or such later time as the parties may
agree upon and set forth in the Merger Certificate (the time at which the
Merger becomes effective shall be referred to herein as the "Effective
Time").
Section 1.3. Closing of the Merger. The closing of the Merger (the
"Closing") will take place at a time and on a date to be specified by the
parties, which shall be no later than the second business day after
satisfaction of the latest to occur of the conditions set forth in Article 5
(the "Closing Date"), at the offices of Sperry Young & Xxxxxxxxxx, 0000 X.
Xxxxxxxx Xx., Xxxxx 000, Xxx Xxxxx, Xxxxxx, unless another time, date or
place is agreed to in writing by the parties hereto.
Section 1.4. Effects of the Merger. The Merger shall have the effects
set forth in the NGCL. Without limiting the generality of the foregoing, and
subject thereto, at the Effective Time, all the properties, rights,
privileges, powers of LIFEPLAN shall vest in the Successor Corporation, and
all debts, liabilities and duties of LIFEPLAN shall become the debts,
liabilities and duties of the Successor Corporation.
Section 1.5. Board of Directors and Officers of HIVC. At or prior to the
Effective Time, each of LIFEPLAN and HIVC agrees to take such action as is
necessary (i) to cause the number of directors comprising the full Board of
Directors of HIVC to remain the same
Section 1.6. Conversion of Shares. At the Effective Time, each share of
common stock, par value $.001 per share of LIFEPLAN (individually a "LIFEPLAN
Share" and collectively, the "LIFEPLAN Shares") issued and outstanding
immediately prior to the Effective Time shall, by virtue of the Merger and
without any action on the part of LIFEPLAN, HIVC, or the holder thereof, be
converted into and shall become fully paid and nonassessable HIVC common
shares determined by issuing one (1) share of HIVC common share for every 100
shares of LIFEPLAN.
Section 1.7. Exchange of Certificates.
(a) Prior to the Effective Time, HIVC shall enter into an agreement
with, and shall deposit with, Sperry Young & Xxxxxxxxxx, or such other agent
or agents as may be satisfactory to HIVC and LIFEPLAN (the "Exchange Agent'),
for the benefit of the holders of LIFEPLAN Shares, for exchange through the
Exchange Agent in accordance with this Article I: (i) certificates
representing the appropriate number of HIVC Shares to be issued to holders of
LIFEPLAN Shares issuable pursuant to Section 1.6 in exchange for outstanding
LIFEPLAN Shares.
(b) As soon as reasonably practicable after the Effective Time, the
Exchange Agent shall mail to each holder of record of a certificate or
certificates which immediately prior to the Effective Time represented
outstanding LIFEPLAN Shares (the "Certificates") whose shares were converted
into the right to receive HIVC Shares pursuant to Section 1.6: (i) a letter
of transmittal (which shall specify that delivery shall be effected, and risk
of loss and title to the Certificates shall pass, only upon delivery of the
Certificates to the Exchange Agent and shall be in such form and have such
other provisions as LIFEPLAN and HIVC may reasonably specify) and (ii)
instructions for use in effecting the surrender of the Certificates in
exchange for certificates representing HIVC Shares. Upon surrender of a
Certificate to the Exchange Agent, together with such letter of transmittal,
duly executed, and any other required documents, the holder of such
Certificate shall be entitled to receive in exchange therefore a certificate
representing that number of whole HIVC Shares, which such holder has the
right to receive pursuant to the provisions of this Article I, and the
Certificate so surrendered shall forthwith be canceled. In the event of a
transfer of ownership of LIFEPLAN Shares which are not registered in the
transfer records of LIFEPLAN, a certificate representing the proper number of
HIVC Shares may be issued to a transferee if the Certificate representing
such LIFEPLAN Shares is presented to the Exchange Agent accompanied by all
documents required by the Exchange Agent or HIVC to evidence and effect such
transfer and by evidence that any applicable stock transfer or other taxes
have been paid. Until surrendered as contemplated by this Section 1.7, each
Certificate shall be deemed at any time after the Effective Time to represent
only the right to receive upon such surrender the certificate representing
HIVC Shares as contemplated by this Section 1.7.
(c) No dividends or other distributions declared or made after the
Effective Time with respect to HIVC Shares with a record date after the
Effective Time shall be paid to the holder of any unsurrendered Certificate
with respect to the HIVC Shares represented thereby until the holder of
record of such Certificate shall surrender such Certificate.
(d) In the event that any Certificate for LIFEPLAN Shares or HIVC Shares
shall have been lost, stolen or destroyed, the Exchange Agent shall issue in
exchange therefore, upon the making of an affidavit of that fact by the
holder thereof such HIVC Shares and cash in lieu of fractional HIVC Shares,
if any, as may be required pursuant to this Agreement; provided, however,
that HIVC or the Exchange Agent, may, in its respective discretion, require
the delivery of a suitable bond, opinion or indemnity.
(e) All HIVC Shares issued upon the surrender for exchange of LIFEPLAN
Shares in accordance with the terms hereof shall be deemed to have been
issued in full satisfaction of all rights pertaining to such LIFEPLAN Shares.
There shall be no further registration of transfers on the stock transfer
books of LIFEPLAN of the LIFEPLAN Shares which were outstanding immediately
prior to the Effective Time. If, after the Effective Time, Certificates of
LIFEPLAN are presented to HIVC for any reason, they shall be canceled and
exchanged as provided in this Article I.
(f) No fractional HIVC Shares shall be issued in the Merger, but in lieu
thereof each holder of LIFEPLAN Shares otherwise entitled to a fractional
HIVC Share shall, upon surrender of its, his or her Certificate or
Certificates, be entitled to receive an additional share to round up to the
nearest round number of shares.
Section 1.8. Taking of Necessary Action; Further Action. If, at any time
after the Effective Time, LIFEPLAN or HIVC reasonably determines that any
deeds, assignments, or instruments or confirmations of transfer are necessary
or desirable to carry out the purposes of this Agreement and to vest HIVC
with full right, title and possession to all assets, property, rights,
privileges, powers and franchises of LIFEPLAN, the officers and directors of
HIVC and LIFEPLAN are fully authorized in the name of their respective
corporations or otherwise to take, and will take, all such lawful and
necessary or desirable action.
ARTICLE 2
Representations and Warranties of HIVC
Except as set forth on the Disclosure Schedule delivered by HIVC to
LIFEPLAN (the "HIVC Disclosure Schedule"), HIVC hereby, to the best
information and belief of management, represents and warrants to LIFEPLAN as
follows:
Section 2.1. Organization and Qualification.
(a) HIVC is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation or organization, has 300 or
more stockholders and has all requisite power and authority to own, lease and
operate its properties and to carry on its businesses as now being conducted,
except where the failure to be so organized, existing and in good standing or
to have such power and authority would not have a Material Adverse Effect (as
defined below) on HIVC. When used in connection with HIVC, the term "Material
Adverse Effect" means any change or effect (i) that is or is reasonably
likely to be materially adverse to the business, results of operations,
condition (financial or otherwise) or prospects of HIVC, other than any
change or effect arising out of general economic conditions unrelated to any
business in which HIVC is engaged, or (ii) that may impair the ability of
HIVC to perform its obligations hereunder or to consummate the transactions
contemplated hereby.
(b) HIVC has heretofore delivered to LIFEPLAN accurate and complete
copies of the Certificate of Incorporation and Bylaws (or similar governing
documents), as currently in effect, of HIVC. Except as set forth on Schedule
2.1 of the HIVC Disclosure Schedule, HIVC is duly qualified or licensed and
in good standing to do business in each jurisdiction in which the property
owned, leased or operated by it or the nature of the business conducted by it
makes such qualification or licensing necessary, except in such jurisdictions
where the failure to be so duly qualified or licensed and in good standing
would not have a Material Adverse Effect on HIVC.
Section 2.2. Capitalization of HIVC.
(a) The authorized capital stock of HIVC consists of (i) Sixty Million
(60,000,000) Authorized Shares of Capital Stock, comprised of 50,000,000
authorized common stock, $0.001 par value, of which 35,109,439 Common
shares are issued and outstanding as of March 1, 2000, and held by 300 or
more stockholders and (ii) Ten Million (10,000,000) HIVC preferred shares,
$.01 par value, of which 10,000 Series A preferred shares are issued and
outstanding and 250,000 Series B are issued and outstanding held in escrow.
Pursuant to the Merger Agreement HIVC will issue 100,000 shares of 144
restricted common stock to the stockholder of LIFEPLAN. All of the
outstanding HIVC Shares have been duly authorized and validly issued, and are
fully paid, nonassessable and free of preemptive rights. Except as set forth
herein, as of the date hereof, there is an outstanding (i) subscription for
common and preferred shares of capital stock or other voting securities of
HIVC, (ii) there are no securities of HIVC convertible into or exchangeable
for shares of capital stock or voting securities of HIVC, (iii) there are
options or other rights to acquire common stock from HIVC, as set forth in
2.2(a) of the Disclosure Schedule, and, obligations of HIVC to issue, capital
stock, voting securities or securities convertible into or exchangeable for
capital stock or voting securities of HIVC, and (iv) there are no equity
equivalents, interests in the ownership or earnings of HIVC or other similar
rights (collectively, "HIVC Securities"). As of the date hereof, except as
set forth herein and on Schedule 2.2(a) of the HIVC Disclosure Schedule there
are no outstanding obligations of HIVC or its subsidiaries to repurchase,
redeem or otherwise acquire any HIVC Securities or stockholder agreements,
voting trusts or other agreements or understandings to which HIVC is a party
or by which it is bound relating to the voting or registration of any shares
of capital stock of HIVC. For purposes of this Agreement, ''Lien" means, with
respect to any asset (including, without limitation, any security) any
mortgage, lien, pledge, charge, security interest or encumbrance of any kind
in respect of such asset.
(b) The HIVC Shares constitute the only class of equity securities of
HIVC registered or required to be registered under the Exchange Act.
(c) HIVC does not own directly or indirectly more than fifty percent
(50%) of the outstanding voting securities or interests (including membership
interests) of any entity, other than as specifically disclosed in the
disclosure documents.
Section 2.3. Authority Relative to this Agreement; Recommendation. HIVC
has all necessary corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by the
Board of Directors of HIVC (the "HIVC Board") and no other corporate
proceedings on the part of HIVC are necessary to authorize this Agreement or
to consummate the transactions contemplated hereby. This Agreement has been
duly and validly executed and delivered by HIVC and constitutes a valid,
legal and binding agreement of HIVC, enforceable against HIVC in accordance
with its terms.
Section 2.4. SEC Reports; Financial Statements. HIVC is not required to
file forms, reports and documents with the SEC.
Section 2.5. Information Supplied. None of the information supplied or
to be supplied by HIVC for inclusion or incorporation by reference in
connection with the Merger will at the date presented to stockholder of
LIFEPLAN contains any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they are
made, not misleading.
Section 2.6. Consents and Approvals; No Violations. Except for filings,
permits, authorizations, consents and approvals as may be required under, and
other applicable requirements of, the Securities Act, the Exchange Act, state
securities or blue sky laws, the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act
of 1916, as amended (the ''HSR Act''), the rules of the National Association
of Securities Dealers, Inc. ("NASD"), the filing and recordation of the
Merger Certificate as required by the NGCL, and as set forth on Schedule 2.6
of the HIVC Disclosure Schedule no filing with or notice to, and no permit,
authorization, consent or approval of, any court or tribunal or
administrative, governmental or regulatory body, agency or authority (a
"Governmental Entity") is necessary for the execution and delivery by HIVC of
this Agreement or the consummation by HIVC of the transactions contemplated
hereby, except where the failure to obtain such permits, authorizations,
consents or approvals or to make such filings or give such notice would not
have a Material Adverse Effect on HIVC.
Except as set forth in Section 2.6 of the HIVC Disclosure Schedule,
neither the execution, delivery and performance of this Agreement by HIVC nor
the consummation by HIVC of the transactions contemplated hereby will (i)
conflict with or result in any breach of any provision of the respective
Certificate of Incorporation or Bylaws (or similar governing documents) of
HIVC, (ii) result in a violation or breach of, or constitute (with or without
due notice or lapse of time or both) a default (or give rise to any right of
termination, amendment, cancellation or acceleration or Lien) under, any of
the terms, conditions or provisions of any note, bond, mortgage, indenture,
lease, license, contract, agreement or other instrument or obligation to
which HIVC is a party or by which any of its properties or assets may be
bound, or (iii) violate any order, writ, injunction, decree, law, statute,
rule or regulation applicable to HIVC or any of its properties or assets,
except in the case of (ii) or (iii) for violations, breaches or defaults
which would not have a Material Adverse Effect on HIVC.
Section 2.7. No Default. Except as set forth in Section 2.7 of the HIVC
Disclosure Schedule, HIVC is not in breach, default or violation (and no
event has occurred which with notice or the lapse of time or both would
constitute a breach default or violation) of any term, condition or provision
of (i) its Certificate of Incorporation or Bylaws (or similar governing
documents), (ii) any note, bond, mortgage, indenture, lease, license,
contract, agreement or other instrument or obligation to which HIVC is now a
party or by which any of its respective properties or assets may be bound or
(iii) any order, writ injunction, decree, law, statute, rule or regulation
applicable to HIVC or any of its respective properties or assets, except in
the case of (ii) or (iii) for violations, breaches or defaults that would not
have a Material Adverse Effect on HIVC. Except as set forth in Section 2.7 of
the HIVC Disclosure Schedule, each note, bond, mortgage, indenture, lease,
license, contract, agreement or other instrument or obligation to which HIVC
is now a party or by which its respective properties or assets may be bound
that is material to HIVC and that has not expired is in full force and effect
and is not subject to any material default thereunder of which HIVC is aware
by any party obligated to HIVC thereunder.
Section 2.8. Financial Statements. Hiv-Vac, Inc. has not provided any
financial statements, however, it will do so within the time parameters
provided for in accordance with SEC periodic reporting obligations.
Section 2.9. Litigation. Except as set forth in Schedule 2.9 of the HIVC
Disclosure Schedule there is no suit, claim, action, proceeding or
investigation pending or, to the knowledge of HIVC, threatened against HIVC
or any of its subsidiaries or any of their respective properties or assets
before any Governmental Entity which, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect on HIVC or could
reasonably be expected to prevent or delay the consummation of the
transactions contemplated by this Agreement. Except as disclosed by HIVC,
none of HIVC or its subsidiaries is subject to any outstanding order, writ,
injunction or decree which, insofar as can be reasonably foreseen in the
future, could reasonably be expected to have a Material Adverse Effect on
HIVC or could reasonably be expected to prevent or delay the consummation of
the transactions contemplated hereby.
Section 2.10. Compliance with Applicable Law. Except as disclosed by
HIVC, HIVC and its subsidiaries hold all permits, licenses, variances,
exemptions, orders and approvals of all Governmental Entities necessary for
the lawful conduct of their respective businesses (the "HIVC Permits"),
except for failures to hold such permits, licenses, variances, exemptions,
orders and approvals which would not have a Material Adverse Effect on HIVC.
Except as disclosed by HIVC, HIVC and its subsidiaries are in compliance with
the terms of the HIVC Permits, except where the failure so to comply would
not have a Material Adverse Effect on HIVC. Except as disclosed by HIVC, the
businesses of HIVC and its subsidiaries are not being conducted in violation
of any law, ordinance or regulation of any Governmental Entity except that no
representation or warranty is made in this Section 2.10 with respect to
Environmental Laws and except for violations or possible violations which do
not, and, insofar as reasonably can be foreseen, in the future will not, have
a Material Adverse Effect on HIVC. Except as disclosed by HIVC no
investigation or review by any Governmental Entity with respect to HIVC or
its subsidiaries is pending or, to the knowledge of HIVC, threatened, nor, to
the knowledge of HIVC, has any Governmental Entity indicated an intention to
conduct the same, other than, in each case, those which HIVC reasonably
believes will not have a Material Adverse Effect on HIVC.
Section 2.11. Employee Benefit Plans; Labor Matters.
(a) Except as set forth in Section 2.11(a) of the HIVC Disclosure
Schedule with respect to each employee benefit plan, program, policy,
arrangement and contract (including, without limitation, any "employee
benefit plan," as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")), maintained or contributed to at
any time by HIVC or any entity required to be aggregated with HIVC pursuant
to Section 414 of the Code (each, a "HIVC Employee Plan"), no event has
occurred and to the knowledge of HIVC, no condition or set of circumstances
exists in connection with which HIVC could reasonably be expected to be
subject to any liability which would have a Material Adverse Effect on HIVC.
(b) (i) No HIVC Employee Plan is or has been subject to Title IV of
ERISA or Section 412 of the Code; and (ii) each HIVC Employee Plan intended
to qualify under Section 401(a) of the Code and each trust intended to
qualify under Section 501(a) of the Code is the subject of a favorable
Internal Revenue Service determination letter, and nothing has occurred which
could reasonably be expected to adversely affect such determination.
(c) Section 2.11(c) of the HIVC Disclosure Schedule sets forth a true
and complete list, as of the date of this Agreement, of each person who holds
any HIVC Stock Options, together with the number of HIVC Shares which are
subject to such option, the date of grant of such option, the extent to which
such option is vested (or will become vested as a result of the Merger), the
option price of such option (to the extent determined as of the date hereof),
whether such option is a nonqualified stock option or is intended to qualify
as an incentive stock option within the meaning of Section 422(b) of the
Code, and the expiration date of such option. Section 2.11(c) of the HIVC
Disclosure Schedule also sets forth the total number of such incentive stock
options and such nonqualified options. HIVC has furnished LIFEPLAN with
complete copies of the plans pursuant to which the HIVC Stock Options were
issued. Other than the automatic vesting of HIVC Stock Options that may occur
without any action on the part of HIVC or its officers or directors, HIVC has
not taken any action that would result in any HIVC Stock Options that are
unvested becoming vested in connection with or as a result of the execution
and delivery of this Agreement or the consummation of the transactions
contemplated hereby.
(d) HIVC has made available to LIFEPLAN (i) a description of the terms
of employment and compensation arrangements of all officers of HIVC and a
copy of each such agreement currently in effect; (ii) copies of all
agreements with consultants who are individuals obligating HIVC to make
annual cash payments in an amount exceeding $60,000; (iii) a schedule listing
all officers of HIVC who have executed a non-competition agreement with HIVC
and a copy of each such agreement currently in effect; (iv) copies (or
descriptions) of all severance agreements, programs and policies of HIVC with
or relating to its employees, except programs and policies required to be
maintained by law; and (v) copies of all plans, programs, agreements and
other arrangements of HIVC with or relating to its employees which contain
change in control provisions all of which are set forth in Section 2.11(d) of
the HIVC Disclosure Schedule.
(e) There shall be no payment, accrual of additional benefits,
acceleration of payments, or vesting in any benefit under any HIVC Employee
Plan or any agreement or arrangement disclosed under this Section 2.11 solely
by reason of entering into or in connection with the transactions
contemplated by this Agreement.
(f) There are no controversies pending or, to the knowledge of HIVC,
threatened, between HIVC and any of their employees, which controversies have
or could reasonably be expected to have a Material Adverse Effect on HIVC.
Neither HIVC nor any of its subsidiaries is a party to any collective
bargaining agreement or other labor union contract applicable to persons
employed by HIVC or any of its subsidiaries (and neither HIVC nor any of its
subsidiaries has any outstanding material liability with respect to any
terminated collective bargaining agreement or labor union contract), nor does
HIVC know of any activities or proceedings of any labor union to organize any
of its or employees. HIVC has no knowledge of any strike, slowdown, work
stoppage, lockout or threat thereof, by or with respect to any of its
employees.
Section 2.12. Environmental Laws and Regulations.
(a) Except as disclosed by HIVC, (i) HIVC is in material compliance with
all applicable federal, state, local and foreign laws and regulations
relating to pollution or protection of human health or the environment
(including, without limitation, ambient air, surface water, ground water,
land surface or subsurface strata) (collectively, "Environmental Laws"),
except for non-compliance that would not have a Material Adverse Effect on
HIVC, which compliance includes, but is not limited to, the possession by
HIVC of all material permits and other governmental authorizations required
under applicable Environmental Laws, and compliance with the terms and
conditions thereof; (ii) HIVC has not received written notice of, or, to the
knowledge of HIVC, is the subject of, any action, cause of action, claim,
investigation, demand or notice by any person or entity alleging liability
under or non-compliance with any Environmental Law (an ''Environmental
Claim") that could reasonably be expected to have a Material Adverse Effect
on HIVC; and (iii) to the knowledge of HIVC, there are no circumstances that
are reasonably likely to prevent or interfere with such material compliance
in the future.
(b) Except as publicly disclosed by HIVC, there are no Environmental
Claims which could reasonably be expected to have a Material Adverse Effect
on HIVC that are pending or, to the knowledge of HIVC, threatened against
HIVC or, to the knowledge of HIVC, against any person or entity whose
liability for any Environmental Claim HIVC has or may have retained or
assumed either contractually or by operation of law.
Section 2.13. Tax Matters.
(a) Except as set forth in Section 2.13 of the HIVC Disclosure Schedule:
(i) HIVC has filed, has had filed or will file on its behalf (within any
applicable extension periods) with the appropriate Governmental Entity all
income and other material Tax Returns (as defined herein) with respect to
Taxes (as defined herein) of HIVC and all Tax Returns were in all material
respects true, complete and correct; (ii) all material Taxes with respect to
HIVC have been paid in full or have been provided for in accordance with GAAP
on HIVC's most recent balance sheet. (iii) there are no outstanding
agreements or waivers extending the statutory period of limitations
applicable to any federal, state, local or foreign income or other material
Tax Returns required to be filed by or with respect to HIVC; (iv) to the
knowledge of HIVC none of the Tax Returns of or with respect to HIVC is
currently being audited or examined by any Governmental Entity; and (v) no
deficiency for any income or other material Taxes has been assessed with
respect to HIVC which has not been abated or paid in full.
(b) For purposes of this Agreement, (i) "Taxes" shall mean all taxes,
charges, fees, levies or other assessments, including, without limitation,
income, gross receipts, sales, use, ad valorem, goods and services, capital,
transfer, franchise, profits, license, withholding, payroll, employment,
employer health, excise, estimated, severance, stamp, occupation, property or
other taxes, customs duties, fees, assessments or charges of any kind
whatsoever, together with any interest and any penalties, additions to tax or
additional amounts imposed by any taxing authority and (ii) "Tax Return"
shall mean any report, return, documents declaration or other information or
filing required to be supplied to any taxing authority or jurisdiction with
respect to Taxes.
Section 2.14. Title to Property. HIVC has good and defensible title to
all of its properties and assets, free and clear of all liens, charges and
encumbrances except liens for taxes not yet due and payable and such liens or
other imperfections of title, if any, as do not materially detract from the
value of or interfere with the present use of the property affected thereby
or which, individually or in the aggregate, would not have a Material Adverse
Effect on HIVC; and, to HIVC's knowledge, all leases pursuant to which HIVC
leases from others real or personal property are in good standing, valid and
effective in accordance with their respective terms, and there is not, to the
knowledge of HIVC, under any of such leases, any existing material default or
event of default (or event which with notice of lapse of time, or both, would
constitute a default and in respect of which HIVC has not taken adequate
steps to prevent such a default from occurring) except where the lack of such
good standing, validity and effectiveness, or the existence of such default
or event, would not have a Material Adverse Effect on HIVC.
Section 2.15. Intellectual Property.
(a) HIVC owns, or possesses adequate licenses or other valid rights to
use, all existing United States and foreign patents, trademarks, trade names,
service marks, copyrights, trade secrets and applications therefore that are
material to its business as currently conducted (the "HIVC Intellectual
Property Rights").
(b) The validity of the HIVC Intellectual Property Rights and the title
thereto of HIVC are not being questioned in any litigation to which HIVC is a
party.
(c) Except as set forth in Section 2.15(c) of the HIVC Disclosure
Schedule, the conduct of the business of HIVC as now conducted does not, to
HIVC's knowledge, infringe any valid patents, trademarks, trade names,
service marks or copyrights of others. The consummation of the transactions
completed hereby will not result in the loss or impairment of any HIVC
Intellectual Property Rights.
(d) HIVC has taken steps it believes appropriate to protect and maintain
its trade secrets as such, except in cases where HIVC has elected to rely on
patent or copyright protection in lieu of trade secret protection.
Section 2.16. Insurance. HIVC currently maintains general liability and
other business insurance.
Section 2.17. Vote Required. Approval of this Agreement and Plan of
Merger by the Stockholders of HIVC is not required pursuant to current Nevada
law.
Section 2.18. Tax Treatment. Neither HIVC nor, to the knowledge of HIVC,
any of its affiliates has taken or agreed to take action that would prevent
the Merger from constituting a reorganization qualifying under the provisions
of Section 368(a) of the Code.
Section 2.19. Affiliates. Except for the directors and executive
officers of HIVC, each of whom is listed in Section 2.19 of the HIVC
Disclosure Schedule, there are no persons who, to the knowledge of HIVC, may
be deemed to be affiliates of HIVC under Rule 1-02(b) of Regulation S-X of
the SEC (the "HIVC Affiliates").
Section 2.20. Certain Business Practices. None of HIVC or any directors,
officers, agents or employees of HIVC has (i) used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses relating to
political activity, (ii) made any unlawful payment to foreign or domestic
government officials or employees or to foreign or domestic political parties
or campaigns or violated any provision of the Foreign Corrupt Practices Act
of 1977, as amended (the "FCPA"), or (iii) made any other unlawful payment.
Section 2.21. Insider Interests. Except as set forth in Section 2.21 of
the HIVC Disclosure Schedule, neither any officer or director of HIVC has any
interest in any material property, real or personal, including without
limitation, any computer software or HIVC Intellectual Property Rights, used
in or pertaining to the business of HIVC, expect for the ordinary rights of a
stockholder or employee stock optionholder.
Section 2.22. Opinion of Financial Adviser. No advisers, as of the date
hereof, have delivered to the HIVC Board a written opinion to the effect
that, as of such date, the exchange ratio contemplated by the Merger is fair
to the holders of HIVC Shares.
Section 2.23. Brokers. No broker, finder or investment banker (other
than the HIVC Financial Adviser, a true and correct copy of whose engagement
agreement has been provided to LIFEPLAN) is entitled to any brokerage,
finder's or other fee or commission in connection with the transactions
contemplated by this Agreement based upon arrangements made by or on behalf
of HIVC.
Section 2.24. Disclosure. No representation or warranty of HIVC in this
Agreement or any certificate, schedule, document or other instrument
furnished or to be furnished to LIFEPLAN pursuant hereto or in connection
herewith contains, as of the date of such representation, warranty or
instrument, or will contain any untrue statement of a material fact or, at
the date thereof, omits or will omit to state a material fact necessary to
make any statement herein or therein, in light of the circumstances under
which such statement is or will be made, not misleading.
Section 2.25. No Existing Discussions. As of the date hereof, HIVC is
not engaged, directly or indirectly, in any discussions or negotiations with
any other party with respect to any Third Party Acquisition (as defined in
Section 4.4).
Section 2.26. Material Contracts.
(a) HIVC has delivered or otherwise made available to LIFEPLAN true,
correct and complete copies of all contracts and agreements (and all
amendments, modifications and supplements thereto and all side letters to
which HIVC is a party affecting the obligations of any party thereunder) to
which HIVC is a party or by which any of its properties or assets are bound
that are, material to the business, properties or assets of HIVC taken as a
whole, including, without limitation, to the extent any of the following are,
individually or in the aggregate, material to the business, properties or
assets of HIVC taken as a whole, all: (i) employment, product design or
development, personal services, consulting, non-competition, severance,
golden parachute or indemnification contracts (including, without limitation,
any contract to which HIVC is a party involving employees of HIVC); (ii)
licensing, publishing, merchandising or distribution agreements; (iii)
contracts granting rights of first refusal or first negotiation; (iv)
partnership or joint venture agreements; (v) agreements for the acquisition,
sale or lease of material properties or assets or stock or otherwise entered
into since December 31, 1999; (vi) contracts or agreements with any
Governmental Entity. and (vii) all commitments and agreements to enter into
any of the foregoing (collectively, together with any such contracts entered
into in accordance with Section 4.1 hereof, the "HIVC Contracts"). HIVC is
not a party to or bound by any severance, golden parachute or other agreement
with any employee or consultant pursuant to which such person would be
entitled to receive any additional compensation or an accelerated payment of
compensation as a result of the consummation of the transactions contemplated
hereby.
(b) Each of the HIVC Contracts is valid and enforceable in accordance
with its terms, and there is no default under any HIVC Contract so listed
either by HIVC or, to the knowledge of HIVC, by any other party thereto, and
no event has occurred that with the lapse of time or the giving of notice or
both would constitute a default thereunder by HIVC or, to the knowledge of
HIVC, any other party, in any such case in which such default or event could
reasonably be expected to have a Material Adverse Effect on HIVC.
(c) No party to any such HIVC Contract has given notice to HIVC of or
made a claim against HIVC with respect to any breach or default thereunder,
in any such case in which such breach or default could reasonably be expected
to have a Material Adverse Effect on HIVC.
ARTICLE 3
Representations and Warranties of LIFEPLAN
Except as set forth on the Disclosure Schedule delivered by LIFEPLAN to
HIVC (the "LIFEPLAN Disclosure Schedule"), LIFEPLAN hereby, to the best
knowledge of management, represents and warrants to HIVC as follows:
Section 3.1. Organization and Qualification.
(a) Each of LIFEPLAN and its subsidiaries is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or organization and has all requisite power and authority to
own, lease and operate its properties and to carry on its businesses as now
being conducted, except where the failure to be so organized, existing and in
good standing or to have such power and authority would not have a Material
Adverse Effect (as defined below) on LIFEPLAN. When used in connection with
LIFEPLAN, the term "Material Adverse Effect'' means any change or effect (i)
that is or is reasonably likely to be materially adverse to the business,
results of operations, condition (financial or otherwise) or prospects of
LIFEPLAN and its subsidiaries, taken as a whole, other than any change or
effect arising out of general economic conditions unrelated to any businesses
in which LIFEPLAN and its subsidiaries are engaged, or (ii) that may impair
the ability of LIFEPLAN to consummate the transactions contemplated hereby.
(b) LIFEPLAN has heretofore delivered to HIVC accurate and complete
copies of the Certificate of Incorporation and Bylaws (or similar governing
documents), as currently in effect, of LIFEPLAN. Each of LIFEPLAN and its
subsidiaries is duly qualified or licensed and in good standing to do
business in each jurisdiction in which the property owned, leased or operated
by it or the nature of the business conducted by it makes such qualification
or licensing necessary except in such jurisdictions where the failure to be
so duly qualified or licensed and in good standing would not have a Material
Adverse Effect on LIFEPLAN.
Section 3.2. Capitalization of LIFEPLAN.
(a) As of March 1, 2000, the authorized capital stock of LIFEPLAN
consists of; (i) Twenty Million (20,000,000) LIFEPLAN common Shares, $.001
par value, of which 10,000,000 common Shares are issued and outstanding, and
(ii) Five Million (5,000,000) LIFEPLAN preferred shares, $.001 par value, and
no preferred shares are issued and outstanding. All of the outstanding
LIFEPLAN Shares have been duly authorized and validly issued, and are fully
paid, nonassessable and free of preemptive rights.
(b) Except as set forth in Section 3.2(b) of the LIFEPLAN Disclosure
Schedule, LIFEPLAN is the record and beneficial owner of all of the issued
and outstanding shares of capital stock of its subsidiaries.
(c) Except as set forth in Section 3.2(c) of the LIFEPLAN Disclosure
Schedule, between December 31, 1999 and the date hereof, no shares of
LIFEPLAN's capital stock have been issued and no LIFEPLAN Stock options have
been granted. Except as set forth in Section 3.2(a) above, as of the date
hereof, there are no outstanding (i) shares of capital stock or other voting
securities of LIFEPLAN, (ii) securities of LIFEPLAN or its subsidiaries
convertible into or exchangeable for shares of capital stock or voting
securities of LIFEPLAN, (iii) options or other rights to acquire from
LIFEPLAN or its subsidiaries, or obligations of LIFEPLAN or its subsidiaries
to issue, any capital stock, voting securities or securities convertible into
or exchangeable for capital stock or voting securities of LIFEPLAN, or (iv)
equity equivalents, interests in the ownership or earnings of LIFEPLAN or its
subsidiaries or other similar rights (collectively, "LIFEPLAN Securities").
As of the date hereof, there are no outstanding obligations of LIFEPLAN or
any of its subsidiaries to repurchase, redeem or otherwise acquire any
LIFEPLAN Securities. There are no stockholder agreements, voting trusts or
other agreements or understandings to which LIFEPLAN is a party or by which
it is bound relating to the voting or registration of any shares of capital
stock of LIFEPLAN.
(d) Except as set forth in Section 3.2(d) of the LIFEPLAN Disclosure
Schedule, there are no securities of LIFEPLAN convertible into or
exchangeable for, no options or other rights to acquire from LIFEPLAN, and no
other contract, understanding, arrangement or obligation (whether or not
contingent) providing for the issuance or sale, directly or indirectly, of
any capital stock or other ownership interests in, or any other securities
of, any subsidiary of LIFEPLAN.
(e) The LIFEPLAN Shares constitute the only class of equity securities
of LIFEPLAN or its subsidiaries.
(f) Except as set forth in Section 3.2(f) of the LIFEPLAN Disclosure
Schedule, LIFEPLAN does not own directly or indirectly more than fifty
percent (50%) of the outstanding voting securities or interests (including
membership interests) of any entity.
Section 3.3. Authority Relative to this Agreement; Recommendation.
(a) LIFEPLAN has all necessary corporate power and authority to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly and validly authorized by
the Board of Directors of LIFEPLAN (the "LIFEPLAN Board"), and no other
corporate proceedings on the part of LIFEPLAN are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby, except, as
referred to in Section 3.17, the approval and adoption of this Agreement by
the holders of at least a majority of the then outstanding LIFEPLAN Shares.
This Agreement has been duly and validly executed and delivered by LIFEPLAN
and constitutes a valid, legal and binding agreement of LIFEPLAN, enforceable
against LIFEPLAN in accordance with its terms.
(b) The LIFEPLAN Board has resolved to recommend that the stockholders
of LIFEPLAN approve and adopt this Agreement.
Section 3.4. SEC Reports; Financial Statements.
(a) LIFEPLAN has filed all required forms, reports and documents with
the Securities and Exchange Commission (the "SEC") since December 31, 1999,
each of which has complied in all material respects with all applicable
requirements of the Securities Act of 1933, as amended (the "Securities
Act"), and the Exchange Act (and the rules and regulations promulgated
thereunder, respectively), each as in effect on the dates such forms, reports
and documents were filed. LIFEPLAN has heretofore delivered or promptly will
deliver prior to the Effective Date to HIVC, in the form filed with the SEC
(including any amendments thereto but excluding any exhibits), (i) all
definitive proxy statements relating to LIFEPLAN's meetings of stockholders
(whether annual or special) held since December 31, 1999, if any, and (ii)
all other reports or registration statements filed by LIFEPLAN with the SEC
since December 31, 1999 (all of the foregoing, collectively, the "LIFEPLAN
SEC Reports"). None of such LIFEPLAN SEC Reports, including, without
limitation, any financial statements or schedules included or incorporated by
reference therein, contained, when filed, any untrue statement of a material
fact or omitted to state a material fact required to be stated or
incorporated by reference therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The audited financial statements of LIFEPLAN included in the
LIFEPLAN SEC Reports fairly present, in conformity with generally accepted
accounting principles applied on a consistent basis (except as may be
indicated in the notes thereto), the financial position of LIFEPLAN as of the
dates thereof and its results of operations and changes in financial position
for the periods then ended. All material agreements, contracts and other
documents required to be filed as exhibits to any of the LIFEPLAN SEC Reports
have been so filed.
(b) LIFEPLAN has heretofore made available or promptly will make
available to HIVC a complete and correct copy of any amendments or
modifications which are required to be filed with the SEC but have not yet
been filed with the SEC, to agreements, documents or other instruments which
previously had been filed by LIFEPLAN with the SEC pursuant to the Exchange
Act.
Section 3.5. Information Supplied. None of the information supplied or
to be supplied by LIFEPLAN for inclusion or incorporation by reference to the
8-K will, at the time the 8-K is filed with the SEC and at the time it
becomes effective under the Securities Act, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading.
Section 3.6. Consents and Approvals; No Violations. Except as set forth
in Section 3.6 of the LIFEPLAN Disclosure Schedule, and for filings, permits,
authorizations, consents and approvals as may be required under, and other
applicable requirements of, the Securities Act, the Exchange Act, state
securities or blue sky laws, the HSR Act, the rules of the NASD, and the
filing and recordation of the Merger Certificate as required by the NGCL, no
filing with or notice to, and no permit, authorization, consent or approval
of, any Governmental Entity is necessary for the execution and delivery by
LIFEPLAN of this Agreement or the consummation by LIFEPLAN of the
transactions contemplated hereby, except where the failure to obtain such
permits, authorizations consents or approvals or to make such filings or give
such notice would not have a Material Adverse Effect on LIFEPLAN.
Neither the execution, delivery and performance of this Agreement by
LIFEPLAN nor the consummation by LIFEPLAN of the transactions contemplated
hereby will (i) conflict with or result in any breach of any provision of the
respective Certificate of Incorporation or Bylaws (or similar governing
documents) of LIFEPLAN or any of LIFEPLAN's subsidiaries, (ii) result in a
violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination, amendment,
cancellation or acceleration or Lien) under, any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, lease, license, contract,
agreement or other instrument or obligation to which LIFEPLAN or any of
LIFEPLAN's subsidiaries is a party or by which any of them or any of their
respective properties or assets may be bound or (iii) violate any order,
writ, injunction, decree, law, statute, rule or regulation applicable to
LIFEPLAN or any of LIFEPLAN's subsidiaries or any of their respective
properties or assets, except in the case of (ii) or (iii) for violations,
breaches or defaults which would not have a Material Adverse Effect on
LIFEPLAN.
Section 3.7. No Default. None of LIFEPLAN or any of its subsidiaries is
in breach, default or violation (and no event has occurred which with notice
or the lapse of time or both would constitute a breach, default or violation)
of any term, condition or provision of (i) its Certificate of Incorporation
or Bylaws (or similar governing documents), (ii) any note, bond, mortgage,
indenture, lease, license, contract, agreement or other instrument or
obligation to which LIFEPLAN or any of its subsidiaries is now a party or by
which any of them or any of their respective properties or assets may be
bound or (iii) any order, writ, injunction, decree, law, statute, rule or
regulation applicable to LIFEPLAN, its subsidiaries or any of their
respective properties or assets, except in the case of (ii) or (iii) for
violations, breaches or defaults that would not have a Material Adverse
Effect on LIFEPLAN. Each note, bond, mortgage, indenture, lease, license,
contract, agreement or other instrument or obligation to which LIFEPLAN or
any of its subsidiaries is now a party or by which any of them or any of
their respective properties or assets may be bound that is material to
LIFEPLAN and its subsidiaries taken as a whole and that has not expired is in
full force and effect and is not subject to any material default thereunder
of which LIFEPLAN is aware by any party obligated to LIFEPLAN or any
subsidiary thereunder.
Section 3.8. No Undisclosed Liabilities; Absence of Changes. Except as
set forth in Section 2.8 of the LIFEPLAN Disclosure Schedule and except as
and to the extent publicly disclosed by LIFEPLAN in the LIFEPLAN SEC Reports,
as of January 20, 2000, LIFEPLAN does not have any liabilities or obligations
of any nature, whether or not accrued, contingent or otherwise, that would be
required by generally accepted accounting principles to be reflected on a
balance sheet of LIFEPLAN (including the notes thereto) or which would have a
Material Adverse Effect on LIFEPLAN. Except as publicly disclosed by
LIFEPLAN, since January 20, 2000, LIFEPLAN has not incurred any liabilities
of any nature, whether or not accrued, contingent or otherwise, which could
reasonably be expected to have, and there have been no events, changes or
effects with respect to LIFEPLAN having or which reasonably could be expected
to have, a Material Adverse Effect on LIFEPLAN. Except as and to the extent
publicly disclosed by LIFEPLAN in the LIFEPLAN SEC Reports and except as set
forth in Section 2.8 of the LIFEPLAN Disclosure Schedule, since January 20,
2000, there has not been (i) any material change by LIFEPLAN in its
accounting methods, principles or practices (other than as required after the
date hereof by concurrent changes in generally accepted accounting
principles), (ii) any revaluation by LIFEPLAN of any of its assets having a
Material Adverse Effect on LIFEPLAN, including, without limitation, any
write-down of the value of any assets other than in the ordinary course of
business or (iii) any other action or event that would have required the
consent of any other party hereto pursuant to Section 4.1 of this Agreement
had such action or event occurred after the date of this Agreement.
Section 3.9. Litigation. Except as publicly disclosed by LIFEPLAN in the
LIFEPLAN SEC Reports, there is no suit, claim, action, proceeding or
investigation pending or, to the knowledge of LIFEPLAN, threatened against
LIFEPLAN or any of its subsidiaries or any of their respective properties or
assets before any Governmental Entity which, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect on
LIFEPLAN or could reasonably be expected to prevent or delay the consummation
of the transactions contemplated by this Agreement. Except as publicly
disclosed by LIFEPLAN in the LIFEPLAN SEC Reports, LIFEPLAN is not subject to
any outstanding order, writ, injunction or decree which, insofar as can be
reasonably foreseen in the future, could reasonably be expected to have a
Material Adverse Effect on LIFEPLAN or could reasonably be expected to
prevent or delay the consummation of the transactions contemplated hereby.
Section 3.10. Compliance with Applicable Law. Except as publicly
disclosed by LIFEPLAN in the LIFEPLAN SEC Reports, LIFEPLAN holds all
permits, licenses, variances, exemptions, orders and approvals of all
Governmental Entities necessary for the lawful conduct of their respective
businesses (the "LIFEPLAN Permits"), except for failures to hold such
permits, licenses, variances, exemptions, orders and approvals which would
not have a Material Adverse Effect on LIFEPLAN. Except as publicly disclosed
by LIFEPLAN in the LIFEPLAN SEC Reports, LIFEPLAN is in compliance with the
terms of the LIFEPLAN Permits, except where the failure so to comply would
not have a Material Adverse Effect on LIFEPLAN. Except as publicly disclosed
by LIFEPLAN in the LIFEPLAN SEC Reports, the business of LIFEPLAN is not
being conducted in violation of any law, ordinance or regulation of any
Governmental Entity except that no representation or warranty is made in this
Section 2.10 with respect to Environmental Laws (as defined in Section 2.12
below) and except for violations or possible violations which do not, and,
insofar as reasonably can be foreseen, in the future will not, have a
Material Adverse Effect on LIFEPLAN. Except as publicly disclosed by LIFEPLAN
in the LIFEPLAN SEC Reports, no investigation or review by any Governmental
Entity with respect to LIFEPLAN is pending or, to the knowledge of LIFEPLAN,
threatened, nor, to the knowledge of LIFEPLAN, has any Governmental Entity
indicated an intention to conduct the same, other than, in each case, those
which LIFEPLAN reasonably believes will not have a Material Adverse Effect on
LIFEPLAN.
Section 3.11. Employee Benefit Plans; Labor Matters.
(a) With respect to each employee benefit plan, program, policy,
arrangement and contract (including, without limitation, any "employee
benefit plan," as defined in Section 3(3) of ERISA), maintained or
contributed to at any time by LIFEPLAN, any of its subsidiaries or any entity
required to be aggregated with LIFEPLAN or any of its subsidiaries pursuant
to Section 414 of the Code (each, a "LIFEPLAN Employee Plan"), no event has
occurred and, to the knowledge of LIFEPLAN, no condition or set of
circumstances exists in connection with which LIFEPLAN or any of its
subsidiaries could reasonably be expected to be subject to any liability
which would have a Material Adverse Effect on LIFEPLAN.
(b) (i) No LIFEPLAN Employee Plan is or has been subject to Title IV of
ERISA or Section 412 of the Code; and (ii) each LIFEPLAN Employee Plan
intended to qualify under Section 401(a) of the Code and each trust intended
to qualify under Section 501(a) of the Code is the subject of a favorable
Internal Revenue Service determination letter, and nothing has occurred which
could reasonably be expected to adversely affect such determination.
(c) Section 3.11(c) of the LIFEPLAN Disclosure Schedule sets forth a
true and complete list, as of the date of this Agreement, of each person who
holds any LIFEPLAN Stock Options, together with the number of LIFEPLAN Shares
which are subject to such option, the date of grant of such option, the
extent to which such option is vested (or will become vested as a result of
the Merger), the option price of such option (to the extent determined as of
the date hereof), whether such option is a nonqualified stock option or is
intended to qualify as an incentive stock option within the meaning of
Section 422(b) of the Code, and the expiration date of such option. Section
3.11(c) of the LIFEPLAN Disclosure Schedule also sets forth the total number
of such incentive stock options and such nonqualified options. LIFEPLAN has
furnished HIVC with complete copies of the plans pursuant to which the
LIFEPLAN Stock Options were issued. Other than the automatic vesting of
LIFEPLAN Stock Options that may occur without any action on the part of
LIFEPLAN or its officers or directors, LIFEPLAN has not taken any action that
would result in any LIFEPLAN Stock Options that are unvested becoming vested
in connection with or as a result of the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby.
(d) LIFEPLAN has made available to HIVC (i) a description of the terms
of employment and compensation arrangements of all officers of LIFEPLAN and a
copy of each such agreement currently in effect; (ii) copies of all
agreements with consultants who are individuals obligating LIFEPLAN to make
annual cash payments in an amount exceeding $60,000; (iii) a schedule listing
all officers of LIFEPLAN who have executed a non-competition agreement with
LIFEPLAN and a copy of each such agreement currently in effect; (iv) copies
(or descriptions) of all severance agreements, programs and policies of
LIFEPLAN with or relating to its employees, except programs and policies
required to be maintained by law; and (v) copies of all plans, programs,
agreements and other arrangements of the LIFEPLAN with or relating to its
employees which contain change in control provisions.
(e) Except as disclosed in Section 3.11(e) of the LIFEPLAN Disclosure
Schedule there shall be no payment, accrual of additional benefits,
acceleration of payments, or vesting in any benefit under any LIFEPLAN
Employee Plan or any agreement or arrangement disclosed under this Section
3.11 solely by reason of entering into or in connection with the transactions
contemplated by this Agreement.
(f) There are no controversies pending or, to the knowledge of LIFEPLAN
threatened, between LIFEPLAN or any of its subsidiaries and any of their
respective employees, which controversies have or could reasonably be
expected to have a Material Adverse Effect on LIFEPLAN. Neither LIFEPLAN nor
any of its subsidiaries is a party to any collective bargaining agreement or
other labor union contract applicable to persons employed by LIFEPLAN or any
of its subsidiaries (and neither LIFEPLAN nor any of its subsidiaries has any
outstanding material liability with respect to any terminated collective
bargaining agreement or labor union contract), nor does LIFEPLAN know of any
activities or proceedings of any labor union to organize any of its or any of
its subsidiaries' employees. LIFEPLAN has no knowledge of any strike,
slowdown, work stoppage, lockout or threat thereof by or with respect to any
of its or any of its subsidiaries' employees.
Section 3.12. Environmental Laws and Regulations.
(a) Except as disclosed by LIFEPLAN, (i) each of LIFEPLAN and its
subsidiaries is in material compliance with all Environmental Laws, except
for non-compliance that would not have a Material Adverse Effect on LIFEPLAN,
which compliance includes, but is not limited to, the possession by LIFEPLAN
and its subsidiaries of all material permits and other governmental
authorizations required under applicable Environmental Laws, and compliance
with the terms and conditions thereof; (ii) none of LIFEPLAN or its
subsidiaries has received written notice of, or, to the knowledge of
LIFEPLAN, is the subject of, any Environmental Claim that could reasonably be
expected to have a Material Adverse Effect on LIFEPLAN; and (iii) to the
knowledge of LIFEPLAN, there are no circumstances that are reasonably likely
to prevent or interfere with such material compliance in the future.
(b) Except as disclosed by LIFEPLAN, there are no Environmental Claims
which could reasonably be expected to have a Material Adverse Effect on
LIFEPLAN that are pending or, to the knowledge of LIFEPLAN, threatened
against LIFEPLAN or any of its subsidiaries or, to the knowledge of LIFEPLAN,
against any person or entity whose liability for any Environmental Claim
LIFEPLAN or its subsidiaries has or may have retained or assumed either
contractually or by operation of law.
Section 3.13. Tax Matters. Except as set forth in Section 3.13 of the
LIFEPLAN Disclosure Schedule: (i) LIFEPLAN and each of its subsidiaries has
filed or has had filed on its behalf in a timely manner (within any
applicable extension periods) with the appropriate Governmental Entity all
income and other material Tax Returns with respect to Taxes of LIFEPLAN and
each of its subsidiaries and all Tax Returns were in all material respects
true, complete and correct; (ii) all material Taxes with respect to LIFEPLAN
and each of its subsidiaries have been paid in full or have been provided for
in accordance with GAAP on LIFEPLAN's most recent balance sheet which is part
of the LIFEPLAN SEC Documents; (iii) there are no outstanding agreements or
waivers extending the statutory period of limitations applicable to any
federal, state, local or foreign income or other material Tax Returns
required to be filed by or with respect to LIFEPLAN or its subsidiaries; (iv)
to the knowledge of LIFEPLAN none of the Tax Returns of or with respect to
LIFEPLAN or any of its subsidiaries is currently being audited or examined by
any Governmental Entity; and (v) no deficiency for any income or other
material Taxes has been assessed with respect to LIFEPLAN or any of its
subsidiaries which has not been abated or paid in full.
Section 3.14. Title to Property. LIFEPLAN and each of its subsidiaries
have good and defensible title to all of their properties and assets, free
and clear of all liens, charges and encumbrances except liens for taxes not
yet due and payable and such liens or other imperfections of title, if any,
as do not materially detract from the value of or interfere with the present
use of the property affected thereby or which, individually or in the
aggregate, would not have a Material Adverse Effect on LIFEPLAN; and, to
LIFEPLAN's knowledge, all leases pursuant to which LIFEPLAN or any of its
subsidiaries lease from others real or personal property are in good
standing, valid and effective in accordance with their respective terms, and
there is not, to the knowledge of LIFEPLAN, under any of such leases, any
existing material default or event of default (or event which with notice or
lapse of time, or both, would constitute a material default and in respect of
which LIFEPLAN or such subsidiary has not taken adequate steps to prevent
such a default from occurring) except where the lack of such good standing,
validity and effectiveness, or the existence of such default or event of
default would not have a Material Adverse Effect on LIFEPLAN.
Section 3.15. Intellectual Property.
(a) Each of LIFEPLAN and its subsidiaries owns, or possesses adequate
licenses or other valid rights to use, all existing United States and foreign
patents, trademarks, trade names, services marks, copyrights, trade secrets,
and applications therefore that are material to its business as currently
conducted (the "LIFEPLAN Intellectual Property Rights").
(b) Except as set forth in Section 3.15(b) of the LIFEPLAN Disclosure
Schedule the validity of the LIFEPLAN Intellectual Property Rights and the
title thereto of LIFEPLAN or any subsidiary, as the case may be, are not
being questioned in any litigation to which LIFEPLAN or any subsidiary is a
party.
(c) The conduct of the business of LIFEPLAN and its subsidiaries as now
conducted does not, to LIFEPLAN's knowledge, infringe any valid patents,
trademarks, tradenames, service marks or copyrights of others. The
consummation of the transactions contemplated hereby will not result in the
loss or impairment of any LIFEPLAN Intellectual Property Rights.
(d) Each of LIFEPLAN and its subsidiaries has taken steps it believes
appropriate to protect and maintain its trade secrets as such, except in
cases where LIFEPLAN has elected to rely on patent or copyright protection in
lieu of trade secret protection.
Section 3.16. Insurance. LIFEPLAN currently does not maintain general
liability and other business insurance.
Section 3.17. Vote Required. The affirmative vote of the holders of at
least a majority of the outstanding LIFEPLAN Shares is the only vote of the
holders of any class or series of LIFEPLAN's capital stock necessary to
approve and adopt this Agreement and the Merger.
Section 3.18. Tax Treatment. Neither LIFEPLAN nor, to the knowledge of
LIFEPLAN, any of its affiliates has taken or agreed to take any action that
would prevent the Merger from constituting a reorganization qualifying under
the provisions of Section 368(a) of the Code.
Section 3.19. Affiliates. Except for the directors and executive
officers of LIFEPLAN, each of whom is listed in Section 3.19 of the LIFEPLAN
Disclosure Schedule, there are no persons who, to the knowledge of LIFEPLAN,
may be deemed to be affiliates of LIFEPLAN under Rule 1-02(b) of Regulation
S-X of the SEC (the "LIFEPLAN Affiliates").
Section 3.20. Certain Business Practices. None of LIFEPLAN, any of its
subsidiaries or any directors, officers, agents or employees of LIFEPLAN or
any of its subsidiaries has (i) used any funds for unlawful contributions,
gifts, entertainment or other unlawful expenses relating to political
activity, (ii) made any unlawful payment to foreign or domestic government
officials or employees or to foreign or domestic political parties or
campaigns or violated any provision of the FCPA, or (iii) made any other
unlawful payment.
Section 3.21. Insider Interests. Except as set forth in Section 3.21 of
the LIFEPLAN Disclosure Schedule, no officer or director of LIFEPLAN has any
interest in any material property, real or personal, including without
limitation, any computer software or LIFEPLAN Intellectual Property Rights,
used in or pertaining to the business of LIFEPLAN or any subsidiary, except
for the ordinary rights of a stockholder or employee stock optionholder.
Section 3.22. Opinion of Financial Adviser. No advisers, as of the date
hereof, have delivered to the LIFEPLAN Board a written opinion to the effect
that, as of such date, the exchange ratio contemplated by the Merger is fair
to the holders of LIFEPLAN Shares.
Section 3.23. Brokers. No broker, finder or investment banker (other
than the LIFEPLAN Financial Adviser, a true and correct copy of whose
engagement agreement has been provided to HIVC) is entitled to any brokerage,
finders or other fee or commission in connection with the transactions
contemplated by this Agreement based upon arrangements made by or on behalf
of LIFEPLAN.
Section 3.24. Disclosure. No representation or warranty of LIFEPLAN in
this Agreement or any certificate, schedule, document or other instrument
furnished or to be furnished to HIVC pursuant hereto or in connection
herewith contains, as of the date of such representation, warranty or
instrument, or will contain any untrue statement of a material fact or, at
the date thereof, omits or will omit to state a material fact necessary to
make any statement herein or therein, in light of the circumstances under
which such statement is or will be made, not misleading.
Section 3.25. No Existing Discussions. As of the date hereof, LIFEPLAN
is not engaged, directly or indirectly, in any discussions or negotiations
with any other party with respect to any Third Party Acquisition (as defined
in Section 5.4).
Section 3.26. Material Contracts.
(a) LIFEPLAN has delivered or otherwise made available to HIVC true,
correct and complete copies of all contracts and agreements (and all
amendments, modifications and supplements thereto and all side letters to
which LIFEPLAN is a party affecting the obligations of any party thereunder)
to which LIFEPLAN or any of its subsidiaries is a party or by which any of
their properties or assets are bound that are, material to the business,
properties or assets of LIFEPLAN and its subsidiaries taken as a whole,
including, without limitation, to the extent any of the following are,
individually or in the aggregate, material to the business, properties or
assets of LIFEPLAN and its subsidiaries taken as a whole, all: (i)
employment, product design or development, personal services, consulting,
non-competition, severance, golden parachute or indemnification contracts
(including, without limitation, any contract to which LIFEPLAN is a party
involving employees of LIFEPLAN); (ii) licensing, publishing, merchandising
or distribution agreements; (iii) contracts granting rights of first refusal
or first negotiation; (iv) partnership or joint venture agreements; (v)
agreements for the acquisition, sale or lease of material properties or
assets or stock or otherwise. (vi) contracts or agreements with any
Governmental Entity; and (vii) all commitments and agreements to enter into
any of the foregoing (collectively, together with any such contracts entered
into in accordance with Section 5.2 hereof, the 'LIFEPLAN Contracts").
Neither LIFEPLAN nor any of its subsidiaries is a party to or bound by any
severance, golden parachute or other agreement with any employee or
consultant pursuant to which such person would be entitled to receive any
additional compensation or an accelerated payment of compensation as a result
of the consummation of the transactions contemplated hereby.
(b) Each of the LIFEPLAN Contracts is valid and enforceable in
accordance with its terms, and there is no default under any LIFEPLAN
Contract so listed either by LIFEPLAN or, to the knowledge of LIFEPLAN, by
any other party thereto, and no event has occurred that with the lapse of
time or the giving of notice or both would constitute a default thereunder by
LIFEPLAN or, to the knowledge of LIFEPLAN, any other party, in any such case
in which such default or event could reasonably be expected to have a
Material Adverse Effect on LIFEPLAN.
(c) No party to any such LIFEPLAN Contract has given notice to LIFEPLAN
of or made a claim against LIFEPLAN with respect to any breach or default
thereunder, in any such case in which such breach or default could reasonably
be expected to have a Material Adverse Effect on LIFEPLAN.
ARTICLE 4
Covenants
Section 4.1. Conduct of Business of HIVC. Except as contemplated by this
Agreement or as described in Section 4.1 of the HIVC Disclosure Schedule,
during the period from the date hereof to the Effective Time, HIVC will
conduct its operations in the ordinary course of business consistent with
past practice and, to the extent consistent therewith, with no less diligence
and effort than would be applied in the absence of this Agreement, seek to
preserve intact its current business organization, keep available the service
of its current officers and employees and preserve its relationships with
customers, suppliers and others having business dealings with it to the end
that goodwill and ongoing businesses shall be unimpaired at the Effective
Time. Without limiting the generality of the foregoing, except as otherwise
expressly provided in this Agreement or as described in Section 4.1 of the
HIVC Disclosure Schedule, prior to the Effective Time, HIVC will not, without
the prior written consent of LIFEPLAN:
(a) amend its Certificate of Incorporation or Bylaws (or other similar
governing instrument);
(b) amend the terms of any stock of any class or any other securities
(except bank loans) or equity equivalents.
(c) split, combine or reclassify any shares of its capital stock,
declare, set aside or pay any dividend or other distribution (whether in
cash, stock or property or any combination thereof) in respect of its capital
stock, make any other actual, constructive or deemed distribution in respect
of its capital stock or otherwise make any payments to stockholders in their
capacity as such, or redeem or otherwise acquire any of its securities;
(d) adopt a plan of complete or partial liquidation, dissolution,
merger, consolidation, restructuring, recapitalization or other
reorganization of HIVC (other than the Merger);
(e) (i) incur or assume any long-term or short-term debt or issue any
debt securities except for borrowings or issuances of letters of credit under
existing lines of credit in the ordinary course of business; (ii) assume,
guarantee, endorse or otherwise become liable or responsible (whether
directly, contingently or otherwise) for the obligations of any other person.
(iii) make any loans, advances or capital contributions to, or investments
in, any other person; (iv) pledge or otherwise encumber shares of capital
stock of HIVC; or (v) mortgage or pledge any of its material assets, or
create or suffer to exist any material Lien thereupon (other than tax Liens
for taxes not yet due);
(f) except as may be required by law, enter into, adopt or amend or
terminate any bonus, profit sharing, compensation, severance, termination,
stock option, stock appreciation right, restricted stock, performance unit,
stock equivalent, stock purchase agreement, pension, retirement, deferred
compensation, employment, severance or other employee benefit agreement,
trust, plan, fund or other arrangement for the benefit or welfare of any
director, officer or employee in any manner, or increase in any manner the
compensation or fringe benefits of any director, officer or employee or pay
any benefit not required by any plan and arrangement as in effect as of the
date hereof (including, without limitation, the granting of stock
appreciation rights or performance units); provided, however, that this
paragraph (f) shall not prevent HIVC from (i) entering into employment
agreements or severance agreements with employees in the ordinary course of
business and consistent with past practice or (ii) increasing annual
compensation and/or providing for or amending bonus arrangements for
employees for fiscal 1999 in the ordinary course of year-end compensation
reviews consistent with past practice and paying bonuses to employees for
fiscal 1999 in amounts previously disclosed to LIFEPLAN (to the extent that
such compensation increases and new or amended bonus arrangements do not
result in a material increase in benefits or compensation expense to HIVC);
(g) acquire, sell, lease or dispose of any assets in any single
transaction or series of related transactions (other than in the ordinary
course of business);
(h) except as may be required as a result of a change in law or in
generally accepted accounting principles, change any of the accounting
principles or practices used by it;
(i) revalue in any material respect any of its assets including, without
limitation, writing down the value of inventory or writing-off notes or
accounts receivable other than in the ordinary course of business;
(j) (i) acquire (by merger, consolidation, or acquisition of stock or
assets) any corporation, partnership or other business organization or
division thereof or any equity interest therein; (ii) enter into any contract
or agreement other than in the ordinary course of business consistent with
past practice which would be material to HIVC; (iii) authorize any new
capital expenditure or expenditures which, individually is in excess of
$1,000 or, in the aggregate, are in excess of $5,000; provided, however that
none of the foregoing shall limit any capital expenditure required pursuant
to existing contracts;
(k) make any tax election or settle or compromise any income tax
liability material to HIVC;
(l) settle or compromise any pending or threatened suit, action or claim
which (i) relates to the transactions contemplated hereby or (ii) the
settlement or compromise of which could have a Material Adverse Effect on
HIVC;
(m) commence any material research and development project or terminate
any material research and development project that is currently ongoing, in
either case, except pursuant to the terms of existing contracts or in the
ordinary course of business; or
(n) take, or agree in writing or otherwise to take, any of the actions
described in Sections 4.1(a) through 4.1(m) or any action which would make
any of the representations or warranties of contained in this Agreement
untrue or incorrect.
Section 4.2. Conduct of Business of LIFEPLAN. Except as contemplated by
this Agreement or as described in Section 4.2 of the LIFEPLAN Disclosure
Schedule during the period from the date hereof to the Effective Time,
LIFEPLAN will conduct its operations in the ordinary course of business
consistent with past practice and, to the extent consistent therewith, with
no less diligence and effort than would be applied in the absence of this
Agreement, seek to preserve intact its current business organization, keep
available the service of its current officers and employees and preserve its
relationships with customers, suppliers and others having business dealings
with it to the end that goodwill and ongoing businesses shall be unimpaired
at the Effective Time. Without limiting the generality of the foregoing,
except as otherwise expressly provided in this Agreement or as described in
Section 4.2 of the LIFEPLAN Disclosure Schedule, prior to the Effective Time,
LIFEPLAN will not, without the prior written consent of HIVC:
(a) amend its Certificate of Incorporation or Bylaws (or other similar
governing instrument);
(b) authorize for issuance, issue, sell, deliver or agree or commit to
issue, sell or deliver (whether through the issuance or granting of options,
warrants, commitments, subscriptions, rights to purchase or otherwise) any
stock of any class or any other securities (except bank loans) or equity
equivalents (including, without limitation, any stock options or stock
appreciation rights;
(c) split, combine or reclassify any shares of its capital stock,
declare, set aside or pay any dividend or other distribution (whether in
cash, stock or property or any combination thereof) in respect of its capital
stock, make any other actual, constructive or deemed distribution in respect
of its capital stock or otherwise make any payments to stockholders in their
capacity as such, or redeem or otherwise acquire any of its securities;
(d) adopt a plan of complete or partial liquidation, dissolution, merger
consolidation, restructuring, recapitalization or other reorganization of
LIFEPLAN (other than the Merger);
(e) (i) incur or assume any long-term or short-term debt or issue any
debt securities except for borrowings or issuances of letters of credit under
existing lines of credit in the ordinary course of business. (ii) assume,
guarantee, endorse or otherwise become liable or responsible (whether
directly, contingently or otherwise) for the obligations of any other person;
(iii) make any loans, advances or capital contributions to or investments in,
any other person; (iv) pledge or otherwise encumber shares of capital stock
of LIFEPLAN or its subsidiaries; or (v) mortgage or pledge any of its
material assets, or create or suffer to exist any material Lien thereupon
(other than tax Liens for taxes not yet due);
(f) except as may be required by law, enter into, adopt or amend or
terminate any bonus, profit sharing, compensation, severance, termination,
stock option, stock appreciation right, restricted stock, performance unit
stock equivalent, stock purchase agreement, pension, retirement, deferred
compensation, employment, severance or other employee benefit agreement,
trust, plan, fund or other arrangement for the benefit or welfare of any
director, officer or employee in any manner, or increase in any manner the
compensation or fringe benefits of any director, officer or employee or pay
any benefit not required by any plan and arrangement as in effect as of the
date hereof (including, without limitation, the granting of stock
appreciation rights or performance units); provided, however, that this
paragraph (f) shall not prevent LIFEPLAN or its subsidiaries from (i)
entering into employment agreements or severance agreements with employees in
the ordinary course of business and consistent with past practice or (ii)
increasing annual compensation and/or providing for or amending bonus
arrangements for employees for fiscal 1999 in the ordinary course of yearend
compensation reviews consistent with past practice and paying bonuses to
employees for fiscal 1999 in amounts previously disclosed to (to the extent
that such compensation increases and new or amended bonus arrangements do not
result in a material increase in benefits or compensation expense to
LIFEPLAN);
(g) acquire, sell, lease or dispose of any assets in any single
transaction or series of related transactions other than in the ordinary
course of business;
(h) except as may be required as a result of a change in law or in
generally accepted accounting principles, change any of the accounting
principles or practices used by it;
(i) revalue in any material respect any of its assets, including,
without limitation, writing down the value of inventory of writing-off notes
or accounts receivable other than in the ordinary course of business;
(j) (i) acquire (by merger, consolidation, or acquisition of stock or
assets) any corporation, partnership, or other business organization or
division thereof or any equity interest therein; (ii) enter into any contract
or agreement other than in the ordinary course of business consistent with
past practice which would be material to LIFEPLAN; (iii) authorize any new
capital expenditure or expenditures which, individually, is in excess of
$1,000 or, in the aggregate, are in excess of $5,000: provided, however that
none of the foregoing shall limit any capital expenditure required pursuant
to existing contracts;
(k) make any tax election or settle or compromise any income tax
liability material to LIFEPLAN and its subsidiaries taken as a whole;
(l) settle or compromise any pending or threatened suit, action or claim
which (i) relates to the transactions contemplated hereby or (ii) the
settlement or compromise of which could have a Material Adverse Effect on
LIFEPLAN;
(m) commence any material research and development project or terminate
any material research and development project that is currently ongoing, in
either case, except pursuant to the terms of existing contracts or except in
the ordinary course of business; or
(n) take, or agree in writing or otherwise to take, any of the actions
described in Sections 4.2(a) through 4.2(m) or any action which would make
any of the representations or warranties of the LIFEPLAN contained in this
Agreement untrue or incorrect.
Section 4.3. Preparation of 8-K. LIFEPLAN and HIVC shall promptly
prepare and file with the SEC an 8-K disclosing this merger.
Section 4.4. Other Potential Acquirers.
(a) LIFEPLAN, its affiliates and their respective officers, directors,
employees, representatives and agents shall immediately cease any existing
discussions or negotiations, if any, with any parties conducted heretofore
with respect to any Third Party Acquisition.
Section 4.5. Meetings of Stockholders. LIFEPLAN shall take all action
necessary, in accordance with the respective General Corporation Law of its
respective state, and its respective certificate of incorporation and bylaws,
to duly call, give notice of, convene and hold a meeting of its stockholders
as promptly as practicable, to consider and vote upon the adoption and
approval of this Agreement and the transactions contemplated hereby. The
stockholder votes required for the adoption and approval of the transactions
contemplated by this Agreement. LIFEPLAN will, through its Boards of
Directors, recommend to their respective stockholders approval of such
matters
Section 4.6. NASD OTC:BB Listing. The parties shall use all reasonable
efforts to cause the HIVC Shares, subject to Rule 144, to be traded on the
Over-The-Counter Bulletin Board (OTC:BB).
Section 4.7. Access to Information.
(a) Between the date hereof and the Effective Time, HIVC will give
LIFEPLAN and its authorized representatives, and LIFEPLAN will give HIVC and
its authorized representatives, reasonable access to all employees, plants,
offices, warehouses and other facilities and to all books and records of
itself and its subsidiaries, will permit the other party to make such
inspections as such party may reasonably require and will cause its officers
and those of its subsidiaries to furnish the other party with such financial
and operating data and other information with respect to the business and
properties of itself and its subsidiaries as the other party may from time to
time reasonably request.
(b) Between the date hereof and the Effective Time, HIVC shall furnish
to LIFEPLAN, and LIFEPLAN will furnish to HIVC, within 25 business days after
the end of each quarter, quarterly statements prepared by such party in
conformity with its past practices) as of the last day of the period then
ended.
(c) Each of the parties hereto will hold and will cause its consultants
and advisers to hold in confidence all documents and information furnished to
it in connection with the transactions contemplated by this Agreement.
Section 4.8. Additional Agreements, Reasonable Efforts. Subject to the
terms and conditions herein provided, each of the parties hereto agrees to
use all reasonable efforts to take, or cause to be taken, all action, and to
do, or cause to be done, all things reasonably necessary, proper or advisable
under applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement, including, without limitation,
(i) cooperating in the preparation and filing of the 8-K, any filings that
may be required under the HSR Act, and any amendments to any thereof; (ii)
obtaining consents of all third parties and Governmental Entities necessary,
proper or advisable for the consummation of the transactions contemplated by
this Agreement; (iii) contesting any legal proceeding relating to the Merger
and (iv) the execution of any additional instruments necessary to consummate
the transactions contemplated hereby. Subject to the terms and conditions of
this Agreement, LIFEPLAN and HIVC agree to use all reasonable efforts to
cause the Effective Time to occur as soon as practicable after the
stockholder votes with respect to the Merger. In case at any time after the
Effective Time any further action is necessary to carry out the purposes of
this Agreement, the proper officers and directors of each party hereto shall
take all such necessary action.
Section 4.9. Indemnification.
(a) To the extent, if any, not provided by an existing right under one
of the parties' directors and officers liability insurance policies, from and
after the Effective Time, HIVC shall, to the fullest extent permitted by
applicable law, indemnify, defend and hold harmless each person who is now,
or has been at any time prior to the date hereof, or who becomes prior to the
Effective Time, a director, officer or employee of the parties hereto or any
subsidiary thereof (each an "Indemnified Party" and, collectively, the
''Indemnified Parties") against all losses, expenses (including reasonable
attorneys' fees and expenses), claims, damages or liabilities or, subject to
the proviso of the next succeeding sentence, amounts paid in settlement
arising out of actions or omissions occurring at or prior to the Effective
Time and whether asserted or claimed prior to, at or after the Effective
Time) that are in whole or in part (i) based on, or arising out of the fact
that such person is or was a director, officer or employee of such party or a
subsidiary of such party or (ii) based on, arising out of or pertaining to
the transactions contemplated by this Agreement. In the event of any such
loss expense, claim, damage or liability (whether or not arising before the
Effective Time), (i) HIVC shall pay the reasonable fees and expenses of
counsel selected by the Indemnified Parties, which counsel shall be
reasonably satisfactory to HIVC, promptly after statements therefore are
received and otherwise advance to such Indemnified Party upon request
reimbursement of documented expenses reasonably incurred, in either case to
the extent not prohibited by the NGCL or its certificate of incorporation or
bylaws, (ii) HIVC will cooperate in the defense of any such matter and (iii)
any determination required to be made with respect to whether an Indemnified
Party's conduct complies with the standards set forth under the NGCL and
HIVC's certificate of incorporation or bylaws shall be made by independent
counsel mutually acceptable to HIVC and the Indemnified Party; provided,
however, that HIVC shall not be liable for any settlement effected without
its written consent (which consent shall not be unreasonably withheld). The
Indemnified Parties as a group may retain only one law firm with respect to
each related matter except to the extent there is, in the opinion of counsel
to an Indemnified Party, under applicable standards of professional conduct,
conflict on any significant issue between positions of any two or more
Indemnified Parties.
(b) In the event HIVC or any of its successors or assigns (i)
consolidates with or merges into any other person and shall not be the
continuing or surviving corporation or entity or such consolidation or merger
or (ii) transfers all or substantially all of its properties and assets to
any person, then and in either such case, proper provision shall be made so
that the successors and assigns of HIVC shall assume the obligations set
forth in this Section 4.9.
(c) To the fullest extent permitted by law, from and after the Effective
Time, all rights to indemnification now existing in favor of the employees,
agents, directors or officers of HIVC and LIFEPLAN and their subsidiaries
with respect to their activities as such prior to the Effective Time, as
provided in HIVC's and LIFEPLAN's certificate of incorporation or bylaws, in
effect on the date thereof or otherwise in effect on the date hereof, shall
survive the Merger and shall continue in full force and effect for a period
of not less than six years from the Effective Time.
(d) The provisions of this Section 4.9 are intended to be for the
benefit of, and shall be enforceable by, each Indemnified Party, his or her
heirs and his or her representatives.
Section 4.10. Notification of Certain Matters. The parties hereto shall
give prompt notice to the other parties, of (i) the occurrence or
nonoccurrence of any event the occurrence or nonoccurrence of which would be
likely to cause any representation or warranty contained in this Agreement to
be untrue or inaccurate in any material respect at or prior to the Effective
Time, (ii) any material failure of such party to comply with or satisfy any
covenant, condition or agreement to be complied with or satisfied by it
hereunder, (iii) any notice of, or other communication relating to, a default
or event which, with notice or lapse of time or both, would become a default,
received by such party or any of its subsidiaries subsequent to the date of
this Agreement and prior to the Effective Time, under any contract or
agreement material to the financial condition, properties, businesses or
results of operations of such party and its subsidiaries taken as a whole to
which such party or any of its subsidiaries is a party or is subject, (iv)
any notice or other communication from any third party alleging that the
consent of such third party is or may be required in connection with the
transactions contemplated by this Agreement, or (v) any material adverse
change in their respective financial condition, properties, businesses,
results of operations or prospects taken as a whole, other than changes
resulting from general economic conditions; provided, however, that the
delivery of any notice pursuant to this Section 4.10 shall not cure such
breach or non-compliance or limit or otherwise affect the remedies available
hereunder to the party receiving such notice.
ARTICLE 5
Conditions to Consummation of the Merger
Section 5.1. Conditions to Each Party's Obligations to Effect the
Merger. The respective obligations of each party hereto to effect the Merger
are subject to the satisfaction at or prior to the Effective Time of the
following conditions:
(a) this Agreement shall have been approved and adopted by the requisite
vote of the stockholders of LIFEPLAN;
(b) this Agreement shall have been approved and adopted by the Board of
Directors of HIVC and LIFEPLAN;
(c) no statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or enforced by any
United States court or United States governmental authority which prohibits,
restrains, enjoins or restricts the consummation of the Merger;
(d) any waiting period applicable to the Merger under the HSR Act shall
have terminated or expired, and any other governmental or regulatory notices
or approvals required with respect to the transactions contemplated hereby
shall have been either filed or received; and
Section 5.2. Conditions to the Obligations of HIVC. The obligation of
HIVC to effect the Merger is subject to the satisfaction at or prior to the
Effective Time of the following conditions:
(a) the representations of LIFEPLAN contained in this Agreement or in
any other document delivered pursuant hereto shall be true and correct
(except to the extent that the breach thereof would not have a Material
Adverse Effect on LIFEPLAN) at and as of the Effective Time with the same
effect as if made at and as of the Effective Time (except to the extent such
representations specifically related to an earlier date, in which case such
representations shall be true and correct as of such earlier date), and at
the Closing LIFEPLAN shall have delivered to HIVC a certificate to that
effect;
(b) each of the covenants and obligations of LIFEPLAN to be performed at
or before the Effective Time pursuant to the terms of this Agreement shall
have been duly performed in all material respects at or before the Effective
Time and at the Closing LIFEPLAN shall have delivered to HIVC a certificate
to that effect;
(d) LIFEPLAN shall have obtained the consent or approval of each person
whose consent or approval shall be required in order to permit the Merger as
relates to any obligation, right or interest of LIFEPLAN under any loan or
credit agreement, note, mortgage, indenture, lease or other agreement or
instrument, except those for which failure to obtain such consents and
approvals would not, in the reasonable opinion of HIVC, individually or in
the aggregate, have a Material Adverse Effect on LIFEPLAN;
(e) there shall have been no events, changes or effects with respect to
LIFEPLAN or its subsidiaries having or which could reasonably be expected to
have a Material Adverse Effect on LIFEPLAN; and
Section 5.3. Conditions to the Obligations of LIFEPLAN. The respective
obligations of LIFEPLAN to effect the Merger are subject to the satisfaction
at or prior to the Effective Time of the following conditions:
(a) the representations of HIVC contained in this Agreement or in any
other document delivered pursuant hereto shall be true and correct (except to
the extent that the breach thereof would not have a Material Adverse Effect
on HIVC) at and as of the Effective Time with the same effect as if made at
and as of the Effective Time (except to the extent such representations
specifically related to an earlier date, in which case such representations
shall be true and correct as of such earlier date), and at the Closing HIVC
shall have delivered to LIFEPLAN a certificate to that effect;
(b) each of the covenants and obligations of HIVC to be performed at or
before the Effective Time pursuant to the terms of this Agreement shall have
been duly performed in all material respects at or before the Effective Time
and at the Closing HIVC shall have delivered to LIFEPLAN a certificate to
that effect;
(c) there shall have been no events, changes or effects with respect to
HIVC having or which could reasonably be expected to have a Material Adverse
Effect on HIVC.
ARTICLE 6
Termination; Amendment; Waiver
Section 6.1. Termination. This Agreement may be terminated and the
Merger may be abandoned at any time prior to the Effective Time, whether
before or after approval and adoption of this Agreement by HIVC's or
LIFEPLAN's stockholders:
(a) by mutual written consent of HIVC and LIFEPLAN;
(b) by LIFEPLAN or HIVC if (i) any court of competent jurisdiction in
the United States or other United States Governmental Entity shall have
issued a final order, decree or ruling or taken any other final action
restraining, enjoining or otherwise prohibiting the Merger and such order,
decree, ruling or other action is or shall have become nonappealable or (ii)
the Merger has not been consummated by March 10, 2000; provided, however,
that no party may terminate this Agreement pursuant to this clause (ii) if
such party's failure to fulfill any of its obligations under this Agreement
shall have been the reason that the Effective Time shall not have occurred on
or before said date;
(c) by HIVC if (i) there shall have been a breach of any representation
or warranty on the part of LIFEPLAN set forth in this Agreement, or if any
representation or warranty of LIFEPLAN shall have become untrue, in either
case such that the conditions set forth in Section 5.2(a) would be incapable
of being satisfied by March 10, 2000 (or as otherwise extended), (ii) there
shall have been a breach by LIFEPLAN of any of their respective covenants or
agreements hereunder having a Material Adverse Effect on LIFEPLAN or
materially adversely affecting (or materially delaying) the consummation of
the Merger, and LIFEPLAN, as the case may be, has not cured such breach
within 20 business days after notice by HIVC thereof, provided that HIVC has
not breached any of its obligations hereunder, (iii) HIVC shall have convened
a meeting of its Board of Directors to vote upon the Merger and shall have
failed to obtain the requisite vote;
(d) by LIFEPLAN if (i) there shall have been a breach of any
representation or warranty on the part of HIVC set forth in this Agreement,
or if any representation or warranty of HIVC shall have become untrue, in
either case such that the conditions set forth in Section 5.3(a) would be
incapable of being satisfied by March 10, 2000 (or as otherwise extended),
(ii) there shall have been a breach by HIVC of its covenants or agreements
hereunder having a Material Adverse Effect on HIVC or materially adversely
affecting (or materially delaying) the consummation of the Merger, and HIVC,
as the case may be, has not cured such breach within twenty business days
after notice by LIFEPLAN thereof, provided that LIFEPLAN has not breached any
of its obligations hereunder, (iii) the HIVC Board shall have withdrawn,
modified or changed its approval or recommendation of this Agreement or the
Merger, or shall have adopted any resolution to effect any of the foregoing,
(iv) LIFEPLAN shall have convened a meeting of its stockholders to vote upon
the Merger and shall have failed to obtain the requisite vote of its
stockholders.
Section 6.2. Effect of Termination. In the event of the termination and
abandonment of this Agreement pursuant to Section 6.1, this Agreement shall
forthwith become void and have no effect, without any liability on the part
of any party hereto or its affiliates, directors, officers or stockholders,
other than the provisions of this Section 6.2 and Sections 4.7(c) and 6.3
hereof. Nothing contained in this Section 6.2 shall relieve any party from
liability for any breach of this Agreement.
Section 6.3. Fees and Expenses. Except as specifically provided in this
Section 6.3, each party shall bear its own expenses in connection with this
Agreement and the transactions contemplated hereby.
Section 6.4. Amendment. This Agreement may be amended by action taken by
HIVC and LIFEPLAN at any time before or after approval of the Merger by the
directors of HIVC and the stockholders and directors LIFEPLAN (if required by
applicable law) but, after any such approval, no amendment shall be made
which requires the approval of such stockholders under applicable law without
such approval. This Agreement may not be amended except by an instrument in
writing signed on behalf of the parties hereto.
Section 6.5. Extension; Waiver. At any time prior to the Effective Time,
each party hereto may (i) extend the time for the performance of any of the
obligations or other acts of any other party, (ii) waive any inaccuracies in
the representations and warranties of any other party contained herein or in
any document, certificate or writing delivered pursuant hereto or (iii) waive
compliance by any other party with any of the agreements or conditions
contained herein. Any agreement on the part of any party hereto to any such
extension or waiver shall be valid only if set forth in an instrument in
writing signed on behalf of such party. The failure of any party hereto to
assert any of its rights hereunder shall not constitute a waiver of such
rights.
ARTICLE 7
Miscellaneous
Section 7.1. Nonsurvival of Representations and Warranties. The
representations and warranties made herein shall not survive beyond the
Effective Time or a termination of this Agreement. This Section 7.1 shall not
limit any covenant or agreement of the parties hereto which by its terms
requires performance after the Effective Time.
Section 7.2. Entire Agreement; Assignment. This Agreement (a)
constitutes the entire agreement between the parties hereto with respect to
the subject matter hereof and supersedes all other prior agreements and
understandings both written and oral, between the parties with respect to the
subject matter hereof and (b) shall not be assigned by operation of law or
otherwise.
Section 7.3. Validity. If any provision of this Agreement, or the
application thereof to any person or circumstance, is held invalid or
unenforceable, the remainder of this Agreement, and the application of such
provision to other persons or circumstances, shall not be affected thereby,
and to such end, the provisions of this Agreement are agreed to be severable.
Section 7.4. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by
facsimile or by registered or certified mail (postage prepaid, return receipt
requested), to each other party as follows:
If to LIFEPLAN:
LIFEPLAN
Attn: Xxxxxxx X. XxXxxx
0000 Xxxx Xxxxxxxx Xx. Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
with a copy to:
Xxxxxx X. Xxxxxxxxxx
Sperry Young & Xxxxxxxxxx
0000 Xxxx Xxxxxxxx Xx. Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
(000) 000-0000
(000) 000-0000
if to HIVC:
Xxxxx Xxxxxx
Vice President
HIV-VAC, INC.
00 Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxx
Xxxxxx
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
Section 7.5. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Nevada, without regard
to the principles of conflicts of law thereof.
Section 7.6. Descriptive Headings. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of
or to affect the meaning or interpretation of this Agreement.
Section 7.7. Parties in Interest. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto and its successors and
permitted assigns, and except as provided in Sections 4.9 and 4.11, nothing
in this Agreement, express or implied, is intended to or shall confer upon
any other person any rights, benefits or remedies of any nature whatsoever
under or by reason of this Agreement.
Section 7.8. Certain Definitions. For the purposes of this Agreement,
the term:
(a) "affiliate" means (except as otherwise provided in Sections 2.19 and
3.19 a person that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with,
the first mentioned person;
(b) "business day" means any day other than a day on which Nasdaq is
closed;
(c) "capital stock" means common stock, preferred stock, partnership
interests, limited liability company interests or other ownership interests
entitling the holder thereof to vote with respect to matters involving the
issuer thereof;
(d) "knowledge'' or "known'' means, with respect to any matter in
question, if an executive officer of HIVC or LIFEPLAN or its subsidiaries, as
the case may be, has actual knowledge of such matter;
(e) "person" means an individual, corporation, partnership, limited
liability company, association, trust, unincorporated organization or other
legal entity; and
(f) "subsidiary" or "subsidiaries" of HIVC, LIFEPLAN or any other
person, means any corporation, partnership, limited liability company,
association, trust, unincorporated association or other legal entity of which
HIVC, LIFEPLAN or any such other person, as the case may be (either alone or
through or together with any other subsidiary), owns, directly or indirectly,
50% or more of the capital stock, the holders of which are generally entitled
to vote for the election of the board of directors or other governing body of
such corporation or other legal entity.
Section 7.9. Personal Liability. This Agreement shall not create or be
deemed to create or permit any personal liability or obligation on the part
of any direct or indirect stockholder of HIVC, LIFEPLAN or any officer,
director, employee, agent, representative or investor of any party hereto.
Section 7.10. Specific Performance. The parties hereby acknowledge and
agree that the failure of any party to perform its agreements and covenants
hereunder, including its failure to take all actions as are necessary on its
part to the consummation of the Merger, will cause irreparable injury to the
other parties for which damages, even if available, will not be an adequate
remedy. Accordingly, each party hereby consents to the issuance of injunctive
relief by any court of competent jurisdiction to compel performance of such
party's obligations and to the granting by any court of the remedy of
specific performance of its obligations hereunder; provided, however, that,
if a party hereto is entitled to receive any payment or reimbursement of
expenses pursuant to Sections 6.3(a), (b) or (c), it shall not be entitled to
specific performance to compel the consummation of the Merger.
Section 7.11. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all
of which shall constitute one and the same agreement.
In Witness Whereof, each of the parties has caused this Agreement to be
duly executed on its behalf as of the day and year first above written.
LIFEPLAN HIV-VAC, INC.
By:/s/ Xxxxxxx XxXxxx By: /s/ Xxxxx Xxxxxx
Name: Xxxxxxx X. XxXxxx Name: Xxxxx Xxxxxx
Title: President Title: Vice President
HIVC DISCLOSURE SCHEDULE
Schedule 2.1 Organization See Amended Articles/Bylaws
Schedule 2.2(a) Options, Stock Preference Rights Options and Stock Rights
Provided
Schedule 2.6 Consents & Approvals None Provided
Schedule 2.7 No Default License Agreement in Default
Schedule 2.8 Financial Statements None Provided
Schedule 2.9 Litigation None Known to Management
Schedule 2.10 Compliance with Applicable Law Federal Tax Return
Delinquent
Schedule 2.11 Employee Benefit Plans Employment Agreements Provided
Schedule 2.12 Environmental Laws and Regs Not Applicable
Schedule 2.13 Tax Matters See 2.10 above
Schedule 2.14 Title to Property None Exist
Schedule 2.15 Intellectual Property License Agreement
Schedule 2.16 Insurance None Exist
Schedule 2.17 Vote Required None Required
Schedule 2.18 Tax Treatment Not Applicable
Schedule 2.19 Affiliates Xx. Xxxxxx Xxxxxxx
Xxxxx Xxxxxx
Xxxxx Xxxxxx Xxxxxx
Xxxx Xxxxxxxxxx
Schedule 2.20 Certain Business Practices None Exist
Schedule 2.21 Insider Interest See 2.19
Schedule 2.22 Opinion of Financial Adviser Waived - None Exist
Schedule 2.23 Broker None Exist
Schedule 4.1 Conduct of Business None Provided
LIFEPLAN DISCLOSURE SCHEDULE
Schedule 3.2(b) Subsidiary Stock None Exist
Schedule 3.2(c) Capital Stock Rights None Exist other than as in
Articles
Schedule 3.2(d) Securities conversions None Exist
Schedule 3.2 (f) Subsidiaries None Exist
Schedule 3.6 Consents & Approvals Provided
Schedule 3.7 No Default Not Applicable
Schedule 3.8 No Undisclosed Liability None Exist
Schedule 3.9 Litigation None Exist
Schedule 3.10 Compliance with Applicable Law Not Applicable - full
disclosed in 10SB
Schedule 3.11 Employee Benefit Plans Section 3.11(c) No Options Exist
Section 3.11(e) No Agreements Exist
Schedule 3.12 Environmental Laws and Regs Not Applicable
Schedule 3.13 Tax Matters None Exist
Schedule 3.14 Title to Property None Exist
Schedule 3.15(b) Intellectual Property None Exist
Schedule 3.16 Insurance None Exist
Schedule 3.17 Vote Required See Shareholder Meeting
Certificate
Schedule 3.18 Tax Treatment Not Applicable
Schedule 3.19 Affiliates Xxxxxxx X. XxXxxx
Schedule 3.20 Certain Business Practices None Exist
Schedule 3.21 Insider Interest None Exist
Schedule 3.22 Opinion of Financial Adviser Waived - None Exist
Schedule 3.23 Broker None Exist
Schedule 4.2 Conduct of Business See Amended & Restated Articles
