Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement") dated as of February
21, 2003, among Integrated Health Technologies, Inc. (formerly known as Chem
International, Inc.), a Delaware corporation ("Parent"), NAC-NJ Acquisition
Corp., a New Jersey corporation and wholly-owned subsidiary of Parent
("Acquisition Sub"), and Nucycle Acquisition Corp., a New Jersey corporation
("Company").
WHEREAS, the Boards of Directors of Parent, Acquisition Sub and Company
have each duly approved and adopted this Agreement and Plan of Merger (this
"Agreement"); and
WHEREAS, the Company and Acquisition Sub have deemed it advisable and fair
to, and in the best interests of, the common stockholders of each of the Company
and Acquisition Sub, and resolved to recommend approval to the common
stockholders of each of the Company and Acquisition Sub, the merger of
Acquisition Sub with and into Company in accordance with this Agreement and the
New Jersey Business Corporation Act (the "NJBCA").
NOW, THEREFORE, in consideration of the mutual benefits to be derived from
this Agreement and the representations, warranties, covenants, agreements,
conditions and promises contained herein and therein, the parties hereby agree
as follows:
ARTICLE I
THE MERGER
1.1 THE MERGER. At the Effective Date (as defined below) Acquisition Sub
shall be merged with and into Company (the "Merger") and the separate existence
of Acquisition Sub shall thereupon cease. After the Effective Date, the Company
shall be, and is sometimes herein referred to as, the "Surviving Corporation."
Acquisition Sub and Company are sometimes referred to as the "Constituent
Corporations."
1.2 THE EFFECTIVE DATE OF THE MERGER. As soon as practicable after the
satisfaction or waiver of the conditions hereinafter set forth, the parties
shall execute, deliver and file a Certificate of Merger, to which this Agreement
is an Exhibit, with the Treasurer of the State of New Jersey. The Merger shall
become effective upon the filing of the Certificate of Merger with the Treasurer
of the State of New Jersey (the "Effective Date").
1.3 EFFECT OF MERGER. At the Effective Date, the separate existence of
Acquisition Sub, shall cease and Acquisition Sub shall be merged with and into
the Company and the Company shall continue as the Surviving Corporation. The
Surviving Corporation shall possess all of the rights, privileges, powers and
franchises of a public as well as of a private nature, and be subject to all the
restrictions, disabilities and duties of each of the Constituent
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Corporations and the Merger shall have such other effects as provided by the
NJBCA.
1.4 CERTIFICATE AND BY-LAWS OF SURVIVING CORPORATION. Each of the
Certificate of Incorporation and the by-laws of the Acquisition Sub shall be the
Certificate of Incorporation and by-laws of the Surviving Corporation.
1.5 TAKING OF NECESSARY ACTION. Prior to the Effective Date, the parties
hereto shall do or cause to be done all such acts and things as may be necessary
or appropriate in order to effectuate the Merger as expeditiously as reasonably
practicable, in accordance with this Agreement and the NJBCA. In case at any
time after the Effective Date, any further action is necessary or desirable to
carry out the purpose of this Agreement and to vest in the Surviving Corporation
full title to all assets, privileges, rights and entitlements (as well as the
obligations and duties) of either Constituent Corporations, the officers and
directors of such corporations shall take all such lawful and necessary action.
1.6 OFFICERS AND DIRECTORS. The officers and directors of Acquisition Sub
at the Effective Date shall be the officers and directors of the Surviving
Corporation, and shall hold office from the Effective Date until their
respective successors are duly elected or appointed and qualified in the manner
provided in the Certificate of Incorporation and by-laws of the Surviving
Corporation, or as otherwise provided by law.
1.7 MERGER CONSIDERATION; CONVERSION OF SHARES.
(a) As consideration for the exchange of the Company's common stock
for shares of common stock of Parent, as further described in this Section
1.7(a), the holders of the Company's common stock shall receive, in the
aggregate, One Hundred Seventy-Five Thousand ($175,000) dollars, payable in
shares of common stock of Parent, valued on the basis of the average closing
price per share of Parent for the thirty (30) trading days immediately preceding
the date of public disclosure of the transactions contemplated herein, as
determined by the date of filing by Parent of a Form 8-K with the United States
Securities and Exchange Commission (the "Share Consideration"). At the Effective
Date, each share of common stock, no par value per share, of the Company's
common stock issued and outstanding immediately prior to the Effective Date
(other than shares of Company common stock held in the Company's treasury or by
any of the Company's subsidiaries) shall, by virtue of the Merger and without
any action on the part of any of the parties, be converted into and shall become
the right to receive the Share Consideration, in the individual amounts provided
on Schedule I attached hereto. In addition to the Share Consideration, the
shareholders of record of the Company shall receive, in the aggregate,
commencing with the first fiscal quarter following the Effective Date,
twenty-five percent (25%) of the after-tax net profits of the Company, computed
in accordance with generally accepted accounting principles consistently applied
("GAAP"), until such shareholders shall have received, in the aggregate, Five
Million ($5,000,000) dollars (the "Earnout Consideration"), such Earnout
Consideration to be paid to the Company's shareholders in accordance with the
percentage allocations set forth on Schedule I attached hereto.
(b) At the Effective Date, each share of the Company's common stock
held in the treasury of the Company immediately prior to the Effective Date
shall, by virtue of the
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Merger and without any action on the part of Acquisition Sub, the Company or the
holder thereof, be canceled, retired and cease to exist.
(c) At the Effective Date, each outstanding share of the common
stock, no par value, of Acquisition Sub shall be converted into one share of
common stock, no par value, of the Surviving Corporation.
1.8 EXCHANGE OF CERTIFICATES
(a) As soon as reasonably practicable after the Effective Date,
Parent shall mail to each holder of record of a certificate or certificates
which immediately prior to the Effective Date represented outstanding shares of
the Company's common stock (the "Certificate") whose shares were converted into
the right to receive the Share Consideration pursuant to Section 1.7:
(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 Parent and
shall be in such form and have such other provisions as Parent and
the Company may reasonably specify); and
(ii) instructions for use in effecting the surrender of the
Certificates in exchange for the Share Consideration. Upon surrender
of a Certificate for cancellation to Parent, together with such
letter of transmittal duly executed, the holder of such Certificate
shall be entitled to receive in exchange therefore a stock
certificate representing the Share Consideration which such holder
has the right to receive pursuant to the provisions of this Article
I, and the Certificate so surrendered shall forthwith be cancelled.
In the event of a transfer of ownership of shares of the Company's
common stock which is not registered in the transfer records of the
Company, payment of the Share Consideration may be made to the
transferee if the Certificate representing such shares is presented
to Parent accompanied by all documents required to effect such
transfer and by evidence that any applicable stock transfer taxes
have been paid. Until surrendered as contemplated by this Section
1.8, each Certificate shall be deemed, at any time after the
Effective Date, to represent only the right to receive upon the
surrender of such Certificate, the Share Consideration as
contemplated by this Section 1.8.
(b) In the event that any Certificate for shares of the Company's
common stock shall have been lost, stolen or destroyed, Parent shall issue in
exchange therefore, upon the making of an affidavit of that fact by the holder
thereof, such Share Consideration as may be required pursuant to this Agreement;
provided, however, that Parent may, in its discretion, require the delivery of a
suitable bond or indemnity.
(c) All Share Consideration delivered upon the surrender or exchange
of shares of the Company's common stock in accordance with the terms hereof
shall be deemed to have been paid in full satisfaction of all rights pertaining
to such shares of the Company's common stock and there shall be no further
registration of transfers on the stock transfer books of the Surviving
Corporation of the shares of common stock which were outstanding
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immediately prior to the Effective Date. If after the Effective Date,
Certificates are presented to the Surviving Corporation for any reason, they
shall be cancelled and exchanged as provided in this Article I.
1.9 PAYMENT OF EARNOUT CONSIDERATION.
(a) The Earnout Consideration payable to the Company's shareholders,
as provided in Section 1.7(a) above, shall be paid quarterly on or before
forty-five (45) days following the end of each fiscal quarter of the Company,
commencing with the first fiscal quarter following the Effective Date. Each such
quarterly payment of the Earnout Consideration will be for the after-tax net
profits of the Company, computed in accordance with U.S. generally accepted
accounting principles consistently applied, for the most recently completed
fiscal quarter. A stand-alone profit and loss statement for the Company shall be
maintained by the Company which will include the results of such business unit
even if it is transferred or consolidated with other business units of the
Parent or any affiliates.
(b) On or before forty-five (45) days after the end of each fiscal
quarter, Parent shall provide each Shareholder and the Company with a statement
showing the computation of (i) the after-tax net profits of the Company for the
most recently completed fiscal quarter, and (ii) the quarterly Earnout
Consideration payable to the Company's shareholders pursuant to Section 1.9(a).
The Shareholders' Agent (as herein defined) shall have the option, which shall
not exceed once per calendar year, to engage, at the Company's expense, an
independent certified public accounting firm reasonably acceptable to Parent, to
examine, in confidence, such books and records as may be necessary to determine,
with respect to the most recently completed fiscal year, the correctness of any
payment of the Earnout Consideration for the previous fiscal year. Any
information contained in any such audit report from the Company's certified
public accountant shall be deemed confidential information. If any audit
performed under this Section 1.9(b) shall indicate that any payment of the
Earnout Consideration was underpaid, Parent shall pay to the Company's
shareholders the amount of such underpayment promptly. If any audit performed
under this Section 1.9(b) shall indicate that any payment of the Earnout
Consideration hereunder was underpaid by more than five percent (5%), Parent
shall pay the costs of such audit.
(c) The Company acknowledges and agrees that Xxxxxxx Xxxx, a
Shareholder set forth on Schedule I, and any such successor as shall be
designated and approved by a vote of Shareholders holding a majority of the
shares of common stock as set forth on Schedule I, shall act as the agent and
representative of all of the Shareholders with respect to the transactions
contemplated hereby (the "Shareholders' Agent").
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Parent and Acquisition Sub
that:
2.1 ORGANIZATION; GOOD STANDING; QUALIFICATION AND POWER. The Company:
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(a) is a corporation duly organized, validly existing and in good
standing under the laws of the State of New Jersey; (b) has all requisite
corporate power and authority to own, lease and operate its properties and
assets and to carry on its business in the ordinary course; and (c) is duly
qualified and in good standing to do business in all jurisdictions in which the
failure to be so qualified and in good standing could be reasonably expected to
have a material adverse effect on Company's business, assets, operations,
results of operations, liabilities, properties, condition (financial or
otherwise), affairs or an effect which could materially impair the ability of
Company to perform any obligation under this Agreement or materially impair the
consummation of the transaction contemplated hereby.
2.2 AUTHORITY; NO CONSENTS. The Company has all requisite corporate power
and authority to enter into this Agreement and all other agreements and
documents executed in connection herewith and to perform its obligations
hereunder, and to consummate the transactions contemplated hereby. The
execution, delivery and performance by Company of this Agreement and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action on the part of Company; and this
Agreement and any other documents to which Company is a party have been duly and
validly executed and delivered by Company, and this Agreement is the valid and
binding obligation of Company, enforceable against Company in accordance with
its respective terms subject to bankruptcy, fraudulent conveyance, insolvency,
moratorium or similar laws affecting the rights of creditors generally or
general equitable principles. Neither the execution, delivery and performance
of, nor the consummation by Company of the transactions contemplated hereby, nor
compliance by Company with any provision hereof will: (a) conflict with; (b)
result in any violations of, (c) cause a default under (with or without due
notice, lapse of time or both); (d) give rise to any right of termination,
amendment, cancellation or acceleration of any obligation contained in or the
loss of any material benefit under; or (e) result in the creation of any
encumbrance on or against any assets, right or property of Company under any
term, condition or provision of: (x) any instrument or agreement to which
Company is a party, or, to the knowledge of Company, by which Company, its
properties, assets or rights may be bound (except as shall have been waived or
with respect to which consent shall have been obtained prior to the Effective
Date); (y) any law, statute, rule, regulation, order, writ, injunction, decree,
permit, concession, license or franchise of any Federal, state, municipal,
foreign or other governmental court, department, commission, board, bureau,
agency or instrumentality (collectively, the "Governmental Authority")
applicable to Company or any of its properties, assets or rights except where
the foregoing would not result in a material adverse effect on Company; or (z)
Company's Certificate of Incorporation or by-laws, as amended through the date
hereof. Except as contemplated by this Agreement, no permit, authorization,
consent or approval of or by, or any notification of or filing with, any
Governmental Authority is required in connection with the execution, delivery
and performance by Company of this Agreement, or the consummation of the
transactions contemplated hereby.
2.3 CAPITAL STOCK; SECURITIES. The authorized capital stock of the Company
consists of 25,000,000 shares of common stock, no par value. As of the date of
this Agreement, 14,375,000 shares of common stock are issued and outstanding.
The Company does not have
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outstanding any options to purchase, or any preemptive rights or other rights to
subscribe for or to purchase, any securities or obligations convertible into, or
any contracts or commitments to issue or sell, shares of its capital stock or
any such options, rights, warrants, contracts, calls, puts, rights to subscribe
convertible securities or obligations. All outstanding shares of Company common
stock are duly authorized, validly issued and outstanding, full, paid and
non-assessable and not subject to preemptive rights.
2.4 NO CAPITAL CHANGES. The Company will not recapitalize through a
subdivision of its outstanding shares into a greater number of shares, or a
combination of its outstanding shares into a lesser number of shares, or
reorganize, reclassify or otherwise change its outstanding shares into the same
or a different number of shares or other classes, or declare a dividend on its
outstanding shares payable in shares of its capital stock or securities
convertible into shares of its capital stock.
2.5 FINANCIAL STATEMENTS. The financial statements of Company for fiscal
year ended December 31, 2001, and for quarters ended March 31, 2002, June 30,
2002 and September 30, 2002 (the "Financial Statements") are complete and
correct in all material respects, were prepared in accordance with GAAP, and
fairly present the financial position and results of operations of Company as at
the dates and periods thereof.
2.6 ABSENCE OF UNDISCLOSED LIABILITIES. At December 31, 2001 (a) the
Company had no liability which was not provided for or disclosed on the
Company's Financial Statements for the period ending December 31, 2001; and (b)
all liability reserves established by the Company and set forth on the Company's
Financial Statements for the period ending December 31, 2001 were adequate, in
the good faith judgment of the Company, for all such liabilities as of the date
thereof. There were no material loss contingencies (as such term is used in FAS
No. 5) which were not adequately provided for on the Company's Financial
Statements as required by FAS No. 5.
2.7 ABSENCE OF CHANGES. Since September 30, 2002, the Company has not
experienced any material adverse changes with respect to the Company, and has
conducted its business in the ordinary course.
2.8 TAX MATTERS. The Company has filed and will file, in a timely and
proper manner, consistent with applicable laws, all Federal, state and local tax
returns and tax reports required to be filed by it through the Effective Date
with the appropriate governmental agencies in all jurisdictions in which the
Company's returns are required to be filed, and all Federal, state and local
taxes, assessments or fees required to be paid by the Company have been paid.
2.9 TITLE TO ASSETS, PROPERTIES AND RIGHTS AND RELATED MATTERS. The
Company owns good and marketable title, free and clear of all encumbrances, to
all assets owned by it.
2.10 INTELLECTUAL PROPERTY. The Company has good title to all patents,
copyrights, trademarks, tradenames and service marks and any licensed
intellectual property rights (other than commercial or "shrink-wrap" licenses
covering software generally available
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to the public on a retail basis) (collectively, "Intellectual Property Rights")
of Company (the "Company Intellectual Property Rights"). The ownership or use of
Company Intellectual Property Rights does not infringe on the intellectual
property rights of others and Company has not received notice alleging any such
infringement, and, to the knowledge of Company, no third party is infringing on
the Company Intellectual Property Rights.
2.11 NO DEFAULTS, ETC. The Company has in all respects performed all the
material obligations required to be performed by it to date and is not in
material default or alleged to be in material default under: (a) its Certificate
of Incorporation or by-laws; or (b) any material agreement, lease, mortgage,
indenture, contract, commitment, instrument or obligation to which Company is a
party or by which any of its assets or rights are or may be bound or affected,
and there exists no event, condition or occurrence which, with or without due
notice or lapse of time, or both, would constitute such a default by it of any
of the foregoing. Provided that Company obtain any consents which may be
required, no mortgage, indenture, lease, contract, agreement, license,
instrument, or order limits in any material way the freedom of any person
acquiring control of Company, whether directly or indirectly, or prevents
Company from performing this Agreement in accordance with its terms.
2.12 LITIGATION, OBSERVANCE OF STATUTES, REGULATIONS AND ORDERS. To the
Company's knowledge, there are no:
(a) actions, suits, claims, investigations or legal or
administrative or arbitration proceedings (collectively, "Actions") pending, or
to the knowledge of Company, threatened against Company, or to the knowledge of
Company, facts which could give rise to any of the foregoing, whether at law or
in equity, or before or by any Governmental Authority;
(b) outstanding judgments, decrees, injunctions or orders of any
Governmental Authority or arbitrator against Company or disputes with customers
or vendors; or
(c) violations of or defaults with respect to any order of any
arbitrator or Governmental Authority and, there is no basis for there to be
declared any such violation or Default.
2.13 LICENSES, PERMITS, ETC. The Company possesses adequate licenses,
clearances, ratings, permits and franchises, and all rights with respect
thereto, to conduct its business as now conducted, and without any conflict with
the rights of others in any such license, clearance, rating, permit or
franchise. The Company has no knowledge of, nor has received notice of
termination, revocation or limitation of, or of the pendency or threatened
commencement of any proceeding to terminate, revoke or limit any such licenses,
clearances, ratings, permits or other approvals by the Governmental Authority or
other Person issuing same.
2.14 BROKERS. Company has not, nor have any of its officers, directors,
shareholders or employees, employed any broker or finder or incurred any
liability for any brokerage fees, commissions or finders' fees in connection
with the transactions contemplated by this Agreement.
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2.15 BOARD APPROVAL. The Board of Directors of Company has: (a) determined
that the Merger is in the best interests of the shareholders of the Company and
is on terms that are fair to such shareholders; and (b) recommended that the
Company's shareholders approve the Merger in accordance with this Agreement and
the NJBCA. No other Company approvals are required other than that of the Board
of Directors and Shareholders.
2.16 VOTE REQUIRED. The affirmative vote of at least a majority of the
outstanding shares voting of Company common stock approving the Merger, this
Agreement, and the transactions contemplated hereby are the only votes of the
holders of any class or series of Company's capital stock necessary to approve
the Agreement and the transactions contemplated hereby.
2.17 COMPANY NOT AN INTERESTED SHAREHOLDER. As of the date of this
Agreement, neither Company nor, to the best of Company's knowledge, any of its
Affiliates is an "Interested Shareholder" of Parent as such term is defined in
Section 14A:10A-3 of the NJBCA.
2.18 NO RIGHT OF ACTION. The execution and delivery of this Agreement and
the other agreements, documents and instruments contemplated hereby and the
completion of the transactions contemplated hereby, shall not cause Parent, the
Surviving Corporation, or any of their respective affiliates to be liable for
damages to any other person or give such person any equitable right against any
of them or Company or any of their respective assets.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PARENT AND ACQUISITION SUB
Parent and Acquisition Sub, jointly and severally, represent and warrant
to Company that:
3.1 ORGANIZATION; GOOD STANDING; QUALIFICATION AND POWER.
(a) Parent is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware.
(b) Acquisition Sub is duly organized, validly existing and in good
standing under the laws of the State of New Jersey.
(c) Each of Parent and Acquisition Sub is duly qualified and in good
standing in all jurisdictions in which the failure to be so qualified and in
good standing could reasonably be expected to have a material adverse effect on
Parent or Acquisition Sub. Parent has delivered to Company true and complete
copies of the Certificate of Incorporation and by-laws of each of Parent and
Acquisition Sub.
3.2 AUTHORITY; NO CONSENTS. Each of Parent and Acquisition Sub has all
requisite corporate power and authority to enter into this Agreement and all
other agreements and documents executed in connection herewith and to perform
its obligations hereunder and to consummate the transactions contemplated
hereby. The execution, delivery and performance by
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Parent and Acquisition Sub of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by all
necessary corporate action on the part of Parent and Acquisition Sub; and this
Agreement and any other documents to which Parent and Acquisition Sub are a
party have been duly and validly executed and delivered by Parent and
Acquisition Sub, and this Agreement is the valid and binding obligation of
Parent and Acquisition Sub, enforceable against Parent and Acquisition Sub in
accordance with its respective terms subject to bankruptcy, fraudulent
conveyance, insolvency, moratorium or similar laws affecting the rights of
creditors generally or general equitable principles. Neither the execution,
delivery and performance of, nor the consummation by Parent or Acquisition Sub
of the transactions contemplated hereby, nor compliance by Parent or Acquisition
Sub with any provision hereof will: (a) conflict with; (b) result in any
violations of, (c) cause a default under (with or without due notice, lapse of
time or both); (d) give rise to any right of termination, amendment,
cancellation or acceleration of any obligation contained in or the loss of any
material benefit under; or (e) result in the creation of any encumbrance on or
against any assets, right or property of Parent or Acquisition Sub under any
term, condition or provision of: (x) any instrument or agreement to which Parent
or Acquisition Sub is a party, or, to the knowledge of Parent and Acquisition
Sub, by which Parent or Acquisition Sub, its properties, assets or rights may be
bound (except as shall have been waived or with respect to which consent shall
have been obtained prior to the Effective Date); (y) any law, statute, rule,
regulation, order, writ, injunction, decree, permit, concession, license or
franchise of any Federal, state, municipal, foreign or other governmental court,
department, commission, board, bureau, agency or instrumentality (collectively,
the "Governmental Authority") applicable to Parent or Acquisition Sub or any of
its properties, assets or rights except where the foregoing would not result in
a material adverse effect on Parent or Acquisition Sub; or (z) the Certificate
of Incorporation or by-laws of Parent or Acquisition Sub, as amended through the
date hereof. Except as contemplated by this Agreement, no permit, authorization,
consent or approval of or by, or any notification of or filing with, any
Governmental Authority is required in connection with the execution, delivery
and performance by Parent or Acquisition Sub of this Agreement, or the
consummation of the transactions contemplated hereby.
3.3 CAPITAL STOCK, SECURITIES. The authorized capital stock of the Parent
consists of 25,000,000 shares of common stock, $.002 par value and 1,000,000
shares of preferred stock, $.002 par value. As of January 15, 2003, 6,228,720
shares of Parent common stock are issued and outstanding and no shares of Parent
preferred stock are issued and outstanding. Except as otherwise provided in this
Agreement or in the Parent SEC Reports (as herein defined) and except for
letters of intent that contemplate the issuance of shares of common stock of
Parent as consideration in connection with the acquisition of businesses by
Parent, the Company does not have outstanding any options to purchase, or any
preemptive rights or other rights to subscribe for or to purchase, any
securities or obligations convertible into, or any contracts or commitments to
issue or sell, shares of its capital stock or any such options, rights,
warrants, contracts, calls, puts, rights to subscribe convertible securities or
obligations.
3.4 SEC FILINGS; FINANCIAL STATEMENTS.
(a) Parent has filed all forms, reports and documents required to be
filed with
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the SEC since June 30, 2002 and has made available to the Company (i) all final
reports on Form 10K since June 30, 2002, (ii) all proxy statements relating to
the Company's meeting of shareholders (whether annual or special) held since
June 30, 2002; (iii) all other reports or registration statements filed by
Parent with the SEC (other than reports on Form 3, 4 and 5 and Schedule 13G
filed on behalf of affiliates of the Company) since June 30, 2002; and (iv) all
amendments and supplements to all such reports and registration statements filed
by Parent with the SEC (the items set forth in clauses (i), (ii), (iii) and (iv)
being, collectively, the "Parent SEC Reports"). The Parent SEC Reports (i) were
prepared in accordance with the requirements of the Securities Act or the
Exchange Act, as the case may be, and (ii) did not at the time they were filed
(or if amended or superceded by a filing prior to the date of this Agreement,
then on the date of such filing), contain any untrue statement of material facts
or omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstance under which
they were made, not misleading. None of Parent's subsidiaries are required to
file any forms, reports or other documents with the SEC.
(b) The consolidated financial statements (including, in each case,
any related notes thereto) contained in the Parent SEC Reports were prepared in
accordance with GAAP throughout the periods involved (except as may be indicated
therein or in the notes thereof, or in the case of the unaudited statements, as
permitted by Rule 10-01 of Regulation S-X promulgated by the SEC) and each
fairly presented in accordance with the applicable requirements of GAAP, the
consolidated financial position of the Parent and its subsidiaries as at the
respective dates thereof and the consolidated results of its operations and cash
flows for the periods indicated, except that the unaudited interim financial
statements were or are subject to normal recurring year-end adjustments which
were not or are not expected to be material in amount.
3.5 ABSENCE OF UNDISCLOSED LIABILITIES. Except as otherwise disclosed in
the Parent SEC Reports, there are no liabilities (absolute, accrued, contingent
or otherwise) of Parent or any of its subsidiaries that could reasonably be
expected to have a material adverse effect on Parent, except liabilities (a)
adequately provided for in Parent's balance sheet (including any related notes
thereto), for the fiscal year ended June 30, 2002 included in Parent's SEC
Report (the "Parent Balance Sheet"); (b) incurred in the ordinary course of
business and not required under GAAP to be reflected on the Parent Balance Sheet
or on any balance sheet contained in the Parent SEC Reports filed for any
subsequent period, (c) incurred since June 30, 2002 in the ordinary course of
business and consistent with past practice; or (d) incurred in connection with
the Agreement.
3.6 ABSENCE OF LITIGATION. Except as otherwise disclosed in the Parent SEC
Reports, there are no claims, actions, suits, proceedings or investigations
pending or, to the knowledge of Parent, threatened against Parent or any of its
subsidiaries, or any properties or rights of Parent or any of its subsidiaries,
before any court, arbitrator or administrative, governmental or regulatory
authority or body, domestic or foreign, that, individually or in the aggregate,
could reasonably be expected to have a material adverse effect on Parent.
3.7 ABSENCE OF CHANGES. Since the filing with the SEC of Parent's most
recent 10-Q, Parent has conducted its business in the ordinary course and there
has not occurred any materially adverse change with respect to Parent.
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3.8 TAX MATTERS. The Parent has filed and will file, in a timely and
proper manner, consistent with applicable laws, all Federal, state and local Tax
returns and Tax reports required to be filed by Parent through the Effective
Date with the appropriate governmental agencies in all jurisdictions in which
Parent's returns are required to be filed and has paid or will pay all amounts
shown thereon to be due, and has paid and shall timely pay all taxes required to
have been paid on or before the Effective Date.
3.9 NO DEFAULTS, ETC. The Parent and Acquisition Sub have in all respects
performed all the material obligations required to be performed by it to date
and is not in material default or alleged to be in material default under: (a)
its Certificate or by-laws; or (b) any material agreement, lease, mortgage,
indenture, contract, commitment, instrument or obligation to which Parent and
Acquisition Sub is a party or by which any of its assets or rights are or may be
bound or affected.
3.10 BOARD APPROVAL. The Board of Directors of Parent and Acquisition Sub
have approved the Agreement to which Parent and Acquisition Sub are a party and
the transactions contemplated hereby and thereby. No approval by the
stockholders of the Parent and no other Parent approvals are required in
connection with the transactions contemplated by this Agreement.
3.11 PARENT COMMON STOCK. All shares of Parent common stock issued in the
Merger pursuant to Article I of this Agreement shall at the Effective Date be
duly authorized, validly issued, fully paid and non-assessable.
ARTICLE IV
CONDUCT AND TRANSACTIONS PRIOR TO
EFFECTIVE TIME, ADDITIONAL AGREEMENTS
4.1 LEGAL CONDITIONS TO MERGER. Each party shall take all reasonable
actions necessary to comply promptly with all legal requirements which may be
imposed on such party with respect to the Merger and will take all reasonable
action necessary to cooperate with and furnish information to the other party in
connection with any such requirements imposed upon such other party in
connection with the Merger. Each party shall take all reasonable actions
necessary to obtain (and will take all reasonable actions necessary to promptly
cooperate with the other party in obtaining) any consent, authorization, order
or approval of, or any exemption by, any Governmental Authority, or other third
party, required to be obtained or made by such party (or by the other party) in
connection with the Merger or the taking of any action contemplated by this
Agreement.
4.2 CONSENTS. Each party shall use its commercially reasonable efforts,
and the other party shall cooperate with such efforts, to obtain any consents
and approvals of, or effect the notification of or filing with, each person or
authority, whether private or governmental, whose consent or approval is
required in order to permit the consummation of the Merger and the transactions
contemplated hereby and to enable the Surviving Corporation to conduct and
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operate the business of Company substantially as presently conducted and as
proposed to be conducted.
4.3 PUBLIC ANNOUNCEMENTS. Each of Company and Parent hereto agrees that it
shall consult with the other party before issuing any press releases or
otherwise making any public statements with respect to the Merger; and shall not
issue any such press release or make any such public statement prior to such
consultation, except as may be required by law or by obligations pursuant to any
listing agreement with any national securities exchange or as may be advised by
counsel to be desirable or appropriate, without the prior written consent of the
other. Each party further agrees that no party shall unreasonably withhold their
written consent to the issuance of a public disclosure referred to in this
Section 4.3.
4.4 AGREEMENT REGARDING PROCEEDINGS. In the event of any threatened,
pending or completed claim, action, suit, investigation or any legal,
administrative or other proceeding (a "Proceeding") by any Governmental
Authority or other person which questions the validity or legality of the
transactions contemplated by this Agreement or seeks to enjoin, restrain or
prohibit such transactions, or seeks damages in connection therewith, whether
before or after the Effective Date of the Merger, Parent, Acquisition Sub,
Company, and the Surviving Corporation agree, to the fullest extent permissible
by law, to cooperate in the defense thereof.
ARTICLE V
CONDITIONS PRECEDENT TO EACH PARTY'S OBLIGATIONS
The obligations of each party to perform this Agreement and to consummate
the transactions contemplated hereby will be subject to the satisfaction of the
following conditions unless waived (to the extent such conditions can be waived)
by each other party:
5.1 SHAREHOLDER APPROVAL; AGREEMENT OF MERGER. This Agreement and the
Merger shall have been approved and adopted by at least a majority of the
outstanding shares voting of common stock of each of the Company and Acquisition
Sub, and the Certificate of Merger shall have been executed and delivered by
Acquisition Sub and Company and filed with and accepted by the Treasurer of the
State of New Jersey.
5.2 APPROVALS. All authorizations, consents, orders or approvals of, or
declarations or filings with or expiration of waiting periods imposed by any
Governmental Authority necessary for the consummation of the transactions
contemplated hereby shall have been obtained or made or shall have occurred.
5.3 LEGAL ACTION. No temporary restraining order, preliminary injunction
or permanent injunction or other order preventing the consummation of the Merger
shall have been issued by any Federal or state court or other Governmental
Authority and remain in effect.
5.4 LEGISLATION. No Federal, state, local or foreign statute, rule or
regulation shall have been enacted which prohibits, restricts or delays the
consummation of the transactions contemplated by this Agreement or any of the
conditions to the consummation of such transactions.
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ARTICLE VI
CONDITIONS TO OBLIGATIONS OF PARENT AND ACQUISITION SUB
The obligations of Parent to perform this Agreement and to consummate the
transactions contemplated hereby and of Acquisition Sub to perform this
Agreement and to consummate the transactions contemplated hereby will be subject
to the satisfaction of the following conditions unless waived (to the extent
such conditions can be waived) by Parent and Acquisition Sub:
6.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties of
Company set forth in Article II hereof shall in each case be true and correct in
all respects as of the Effective Date.
6.2 PERFORMANCE OF OBLIGATIONS OF THE COMPANY. The Company shall have
performed in all material respects the obligations required to be performed by
it under this Agreement prior to or as of the Effective Date.
6.3 MERGER FILING. The Certificate of Merger shall be duly executed by
Company.
6.4 GOOD STANDING CERTIFICATES. A certificate of the appropriate
officials, as of a recent date, of the due organization and good standing to do
business and tax standing of Company in New Jersey and in each jurisdiction
wherein the conduct of its business or the ownership or operation of assets
requires Company to maintain qualification as a foreign corporation.
6.5 GOVERNMENT CONSENTS, AUTHORIZATIONS, ETC. All consents,
authorizations, orders or approvals of, and filings or registrations with, any
Governmental Authority which is required for or in connection with the execution
and delivery by Company of this Agreement and the Merger and the consummation by
Company of the transactions contemplated hereby and thereby shall have been
obtained or made.
6.6 MATERIAL CHANGES. Prior to the Effective Date, there shall be no
material adverse change in the Company's condition (financial or otherwise),
assets, liabilities or business.
ARTICLE VII
CONDITIONS TO OBLIGATIONS OF THE COMPANY
The obligations of Company to perform this Agreement, and to consummate
the transactions contemplated hereby will be subject to the satisfaction of the
following conditions unless waived (to the extent such conditions can be waived)
by Company:
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7.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties of
Parent and Acquisition Sub set forth in Article III hereof shall be true and
correct in all material respects (except for any representation or warranty that
by its terms is qualified by materiality, in which case it shall be true and
correct in all respects) as of the date of the Effective Date.
7.2 PERFORMANCE OF OBLIGATIONS OF PARENT AND ACQUISITION SUB. Parent and
Acquisition Sub shall have performed in all material respects their respective
obligations required to be performed by them under this Agreement prior to or as
of the Effective Date.
7.3 AUTHORIZATION OF MERGER. All action necessary to authorize the
execution, delivery and performance of this Agreement by Parent, the execution,
delivery and performance of this Agreement by Acquisition Sub, and the
consummation of the transactions contemplated hereby shall have been duly and
validly taken by the board of directors of Parent and Acquisition Sub and by
Parent as the sole shareholder of Acquisition Sub, and Company shall have
received copies of all such resolutions certified by the respective Secretary of
Parent and Acquisition Sub.
7.4 MERGER FILING. The Certificate of Merger shall be duly executed by
Acquisition Sub.
7.5 GOOD STANDING CERTIFICATES. A certificate of the appropriate
officials, as of a recent date, of the due organization and good standing to do
business and tax standing of Parent in Delaware and Acquisition Sub in New
Jersey and in each jurisdiction wherein the conduct of its business or the
ownership or operation of its business requires such Person to maintain
qualification as a foreign corporation.
7.6 GOVERNMENT CONSENTS, AUTHORIZATIONS, ETC. All consents,
authorizations, orders or approvals of, and filings or registrations with, any
Governmental Authority which are required for or in connection with the
execution and delivery by Parent and Acquisition Sub of this Agreement and the
Merger, and the consummation by Parent and Acquisition Sub of the transactions
contemplated hereby and thereby shall have been obtained or made.
7.7 MATERIAL CHANGES. Prior to the Effective Date, there shall be no
material adverse change in the Parent's condition (financial or otherwise),
assets, liabilities or business.
ARTICLE VIII
TERMINATION, AMENDMENT, MODIFICATION AND WAIVER
8.1 TERMINATION. This Agreement may be terminated, and the Merger
abandoned, notwithstanding the approval by Parent, Acquisition Sub and Company
of this Agreement, at any time prior to the Effective Date, by:
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(a) the mutual consent of Parent, Acquisition Sub, and Company.
(b) Parent, Acquisition Sub, or Company, if the conditions set forth
in Article V, VI and VII hereof shall not have been met, except if such
conditions have not been met solely as a result of the action or inaction of the
party seeking to terminate; or (ii) the other party or parties have materially
breached at the time made a representation and warranty, covenant or agreement
set forth herein and such breach is not cured (if curable) within 15 days
following written notice thereof from the non-breaching party; and
(c) Parent and Acquisition Sub on the one hand, or Company on the
other hand, if such party or parties shall have determined in its or their sole
discretion, exercised in good faith, that the Merger contemplated by this
Agreement has become impracticable by reason of the institution of any
litigation, proceeding, or investigation to restrain or prohibit the
consummation of the Merger, so long as such litigation, proceeding or
investigation has not been instituted, initiated, commenced, or undertaken
without the approval of the party or parties seeking to terminate the Agreement.
Any termination pursuant to this Section 8.1 shall be effected by
written notice from the party or parties so terminating to the other parties
hereto.
8.2 EFFECT OF TERMINATION. In the event of the termination of this
Agreement as provided in Section 8.1, this Agreement shall be of no further
force or effect and no party hereto, nor its shareholders, directors, officers
or affiliates, shall have any liability in connection herewith.
ARTICLE IX
MISCELLANEOUS
9.1 ENTIRE AGREEMENT. This Agreement (including the Schedules attached
hereto) and the other writings referred to herein contain the entire agreement
among the parties hereto with respect to the transactions contemplated hereby
and supersede all prior agreements or understandings, written or oral, among the
parties with respect thereto.
9.2 DESCRIPTIVE HEADINGS. Descriptive headings are for convenience only
and shall not control or affect the meaning or construction of any provision of
this Agreement.
9.3 NOTICES. All notices or other communications which are required or
permitted hereunder shall be in writing and sufficient if delivered personally
or sent by nationally-recognized overnight courier or by registered or certified
mail, postage prepaid, return receipt requested or by telecopier, with
confirmation as provided above addressed as follows:
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if to Parent or Acquisition Sub, to:
Integrated Health Technologies, Inc.
000 Xxxxx 00
Xxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxx, President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to:
St. Xxxx & Xxxxx, L.L.C. Xxx Xxxx Xxxxx Xxxx Xxxxxx,
Xxx Xxxxxx 00000 Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
if to Company, to:
Nucycle Acquisition Corp.
000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: President
Telephone:
Telecopier:
With a copy to:
Xxxxxxxxx, Xxxxxx & Xxxxxx
000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
or to such other address as the party to whom notice is to be given may have
furnished to the other party in writing in accordance herewith. All such notices
or communications shall be deemed to be received: (a) in the case of personal
delivery or telecopy, on the date of such delivery; (b) in the case of
nationally-recognized overnight courier, on the next business day after the date
when sent; and (c) in the case of mailing, on the third business day following
the date on which the piece of mail containing such communication was posted.
9.4 COUNTERPARTS. This Agreement may be executed in any number of
counterparts by original or facsimile signature, each such counterpart shall be
an original instrument, and all such counterparts together shall constitute one
and the same agreement.
9.5 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the NJBCA and with the laws of the State of New Jersey
applicable to contracts made and to be performed wholly therein without regard
to such state's principles of conflicts of law.
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9.6 BENEFITS OF AGREEMENT. All the terms and provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, and shall not confer any rights or
benefits on any other persons or entities. This Agreement shall not be
assignable by any party hereto without the consent of the other parties hereto;
provided, however, that anything contained herein to the contrary
notwithstanding, Acquisition Sub may assign and delegate any or, ill of its
rights and obligations hereunder to any other direct or indirect wholly-owned
subsidiary of Parent.
9.7 PRONOUNS. As used herein, all pronouns shall include the masculine,
feminine, neither, singular and plural thereof whenever the context and facts
require such construction.
9.8 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument. A facsimile, telecopy or
other reproduction of this Agreement may be executed by one or more parties
hereto, and an executed copy of this Agreement may be delivered by one or more
parties hereto by facsimile or similar instantaneous electronic transmission
device pursuant to which the signature of or on behalf of such party can be
seen, and such execution and delivery shall be considered valid, binding and
effective for all purposes. At the request of either party hereto, all parties
hereto agree to execute an original of this Agreement as well as any facsimile,
telecopy or other reproduction hereof.
9.9 WAIVER, AMENDMENT AND MODIFICATION.
(a) No failure or delay on the part of any of the parties hereto in
exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power, or remedy. The remedies provided for herein are cumulative
and are not exclusive of any remedies that may be available to the parties
hereto at law, in equity or otherwise.
(b) No amendment, supplement or modification of or to any provision
in this Agreement, or any waiver of any such provision or consent to any
departure by any party from the terms of any such provision may be made orally.
Any (i) amendment, supplement or modification hereto, (ii) consent hereunder or
(iii) waiver of any provision (collectively, "Modification") of this Agreement
or of any of the Notes shall be effective if given pursuant to a written
agreement signed by the parties to this Agreement.
9.10 SPECIFIC PERFORMANCE. The parties hereto agree that if for any reason
any party hereto shall have failed to perform its obligations under this
Agreement, then any other party hereto seeking to enforce this Agreement against
such nonperforming party shall be entitled to specific performance and
injunctive and other equitable relief, and the parties hereto further agree to
waive any requirement for the securing or posting of any bond in connection with
the obtaining of any such injunctive or other equitable relief.
9.11 SEVERABILITY. If any one or more of the provisions contained herein,
or the application thereof in any circumstance, is held invalid, illegal or
unenforceable in any respect
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for any reason, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions hereof shall not be in
any way impaired, unless the provisions held invalid, illegal or unenforceable
shall substantially impair the benefits of the remaining provisions hereof. The
parties hereto further agree to replace such invalid, illegal or unenforceable
provision of this Agreement with a valid, legal and enforceable provision that
will achieve, to the extent possible, the economic, business and other purposes
of such invalid, illegal or unenforceable provision.
9.12. EXPENSES. Whether or not the transactions contemplated by this
Agreement are consummated, the Parent shall pay the reasonable fees and expenses
of its and the Company's counsel, accountants, other experts and all other
expenses incurred by it incident to the negotiation, preparation and execution
of this Agreement.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
and Plan of Merger to be executed on its behalf as of the day and year first
above written.
INTEGRATED HEALTH TECHNOLOGIES, INC.
By: /s/ Xxxxxxx Xxxx
---------------------------------
Name: Xxxxxxx Xxxx
Title: President
NAC-NJ ACQUISITION CORP.
By: /s/ E. Xxxxxx Xxx
---------------------------------
Name: E. Xxxxxx Xxx
Title: President
NUCYCLE ACQUISITION CORP.
By: /s/ Xxxxxxx Xxxx
---------------------------------
Name: Xxxxxxx Xxxx
Title: President
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Schedule I
Shareholder Allocations
Name Number of Shares Shareholder
---- ---------------- -----------
To Be Received Percentage Allocation
-------------- ---------------------
Xxxxx Xxxxxx 16,033 4.347%
Xxxxxx Canarak 16,033 4.347
Xxxx XxXxxxxx 128,288 34.782
Xx. Xxxx Xxxxxx 32,088 8.700
Xxxxxx Xxxxxxx 12,828 3.478
Xxxxxxx Xxxx 16,033 4.347
E. Xxxxxx Xxx 128,288 34.782
Xxxxxxx Xxxxx 12,828 3.478
Intralite International N.V 6,414 1.739
------- -------
Total 368,833 100%
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AGREEMENT AND PLAN OF MERGER
DATED
AS OF FEBRUARY 21, 2003
AMONG
INTEGRATED HEALTH TECHNOLOGIES, INC.,
NAC-NJ ACQUISITION CORP.
AND
NUCYCLE ACQUISITION CORP.
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