EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "Agreement") is, as to the parties
hereto, made effective January 31, 1997, by and among Entourage International,
Inc., a Texas corporation ("EII"), BFS Acquisition Corp., a Texas corporation
("Newcorp"), Biogime Franchise Services (U.S.A.), Inc., a California corporation
("BFS"), and Xxxx X. Xxxxxxx, Xxxxxxx Xxxxxxx, Xxxxx Xxxxxxx, Xxxx Xxxxxxx,
Xxxxxxx Xxxxxxx, Orange National Bank as Custodian FBO Xxxx Xxxxx XXX, Xxxx
Xxxxx, Xx., Xxxx Xxxxx, Xx., Orange National Bank as Custodian for Xxxx Xxxxx,
Xx. XXX, and Xxxxxxx Xxxxxxx (herein, collectively, the "BFS Shareholders").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, the respective Boards of Directors of EII, Newcorp, BFS and the
BFS Shareholders deem it advisable and in their respective best interests to
merge BFS into Newcorp (the "Merger") pursuant to the terms of this Agreement;
and
WHEREAS, the BFS Shareholders are the holders of all of the issued and
outstanding shares of capital stock of BFS;
NOW, THEREFORE, in consideration of the mutual benefits to be derived from
this Agreement and of the representations, warranties, conditions and promises
set forth herein, EII, Newcorp, BFS and the BFS Shareholders hereby adopt this
Agreement whereby at the Effective Date of the Merger (as defined herein) BFS
shall be merged into Newcorp and in connection therewith the BFS Shareholders
shall be entitled to receive the consideration provided for in this Agreement on
the basis, terms and conditions contained herein and, in connection therewith,
agree as follows:
ARTICLE I
GENERAL
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1.1 MERGER. Subject to the provisions of this Agreement, at the Effective
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Date of the Merger (i) the separate existence of BFS shall cease and BFS shall
be merged with and into Newcorp (the "Surviving Corporation") which shall, at
and after the Effective Date of the Merger, be named Biogime Franchise Services
(U.S.A.), Inc., and (ii) the Articles of Incorporation and the Bylaws of the
Surviving Corporation shall be those of Newcorp, until the same shall be
altered, amended or repealed in the manner prescribed by law.
1.2 PAYMENT OF CONSIDERATION. EII agrees that at the Effective Date of
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the Merger it will pay the consideration provided for in Section 2.3 of this
Agreement to BFS Shareholders to the extent set forth and in accordance with the
terms of this Agreement.
1.3 TAKING OF NECESSARY ACTION. Prior to and after the Effective Date of
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the Merger, EII, Newcorp, BFS and the BFS Shareholders, respectively, shall take
all such action as may be necessary or appropriate in order to effectuate the
Merger. In case at any time after the Effective Date of the Merger any further
action is necessary or desirable to carry out the purposes of this Agreement and
to vest the Surviving Corporation with full title to all properties, assets,
rights, approvals, immunities and franchises of either Newcorp or BFS, the
officers and directors of such corporations shall take all such necessary
action.
1.4 DIRECTORS AND OFFICERS OF THE SURVIVING CORPORATION. At the Effective
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Date of the Merger, the sole member of the Board of Directors of the Surviving
Corporation shall be Xxxx X. Xxxxx, and the officers of the Surviving
Corporation shall be as follows:
Name Office
---- ------
Xxxx X. Xxxxx President
Xxxx X. Xxxxx Secretary
ARTICLE II
EFFECT OF MERGER ON CAPITAL STOCK, ASSETS,
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LIABILITIES AND CAPITALIZATION OF NEWCORP AND BFS
-------------------------------------------------
2.1 STOCK OF BFS AND NEWCORP. On the Effective Date of the Merger:
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(a) each share of common stock, $1.00 par value, of BFS ("BFS Common
Stock") which shall be issued and outstanding at the Effective Date of
the Merger shall, without any action by the holder thereof, be
canceled as provided in Section 2.2 hereof; and
(b) each share of common stock, $1.00 par value, of Newcorp ("Newcorp
Common Stock") which shall be issued and outstanding at the Effective
Date of the Merger shall continue to be issued and outstanding.
2.2 OWNERSHIP OF SURVIVING CORPORATION. After the Effective Date of the
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Merger, all certificates representing shares of BFS Common Stock shall be deemed
canceled. Subsequent to the Effective Date of the Merger, such certificates
shall represent only the right to exchange such certificate for the
consideration as provided in Section 2.3 hereof. After the Effective Date of
the Merger there shall be no further registry of transfers on the records of BFS
of shares of BFS Common Stock and, if a certificate representing such shares is
presented to the Surviving Corporation or BFS, it shall be canceled.
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2.3 EII COMMON STOCK. EII shall pay and/or deliver on the Effective Date
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of the Merger an aggregate of 7,500,000 shares of common stock of EII ("EII
Common Stock"). The EII Common Stock shall be delivered to the BFS Shareholders
as follows:
Number of Shares
BFS Shareholder of EII Common Stock
------------------------------------ -------------------
Xxxx X. Xxxxxxx and Xxxxxxx Xxxxxxx 1,637,534
Xxxxx Xxxxxxx 495,792
Xxxx Xxxxxxx 495,792
Xxxxxxx Xxxxxxx 870,800
Orange National Bank as Custodian 725,015
FBO Xxxx Xxxxx XXX
Xxxx Xxxxx, Xx. 1,250,026
Xxxx Xxxxx, Xx. 781,422
Orange National Bank as Custodian 618,607
FBO Xxxx Xxxxx, Xx. XXX
Xxxxxxx Xxxxxxx 625,012
2.4 ASSETS. On the Effective Date of the Merger, the corporate existence
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of Newcorp and BFS shall, as provided in applicable laws of the States of Texas
and California, be merged into and continued in the Surviving Corporation, and
the Surviving Corporation shall be deemed to be the same corporation as Newcorp
and BFS. All rights, franchises and interests of Newcorp and BFS, respectively,
in and to any type of property and choses in action shall be transferred to and
vested in the Surviving Corporation by virtue of the Merger without any deed or
other transfer. The Surviving Corporation, without any order or other action on
the part of any court or otherwise, shall hold and enjoy all rights of property,
franchises and interests in the same manner and to the same extent as such
rights, franchises and interests were held or enjoyed by Newcorp and BFS,
respectively, at the time the Merger becomes effective.
2.5 LIABILITIES. On the Effective Date of the Merger, the Surviving
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Corporation shall be liable for all liabilities of Newcorp and BFS. All debts,
liabilities and obligations of Newcorp and BFS, respectively, accrued, absolute,
contingent or otherwise, and whether or not reflected or reserved against on
balance sheets, books of accounts, or records of Newcorp or BFS, as the case may
be, shall be those of the Surviving Corporation and shall not be released or
impaired by the Merger. All rights of creditors and other obligees and all
liens on property of either Newcorp or BFS shall be preserved unimpaired.
2.6 CAPITALIZATION. The amount and number of shares of capital stock of
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Newcorp outstanding immediately before the Effective Date of the Merger shall be
$1,000 divided into 1,000 shares of the par value of $1.00 each. Such capital
stock shall, on the Effective Date of
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Merger, be increased by the amount and the number of shares of the capital stock
of BFS outstanding immediately before the Merger becomes effective.
Specifically, after such increase the capital stock of the Surviving Corporation
shall be $47,999 divided into 47,999 shares of the par value of $1.00 each.
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2.7 RESTRICTIONS ON TRANSFERS OF EII COMMON STOCK. Each of the BFS
---------------------------------------------
Shareholders hereby acknowledge and agree that the shares of EII Common Stock
acquired by each of them hereunder will not be registered under the Securities
Act of 1933, as amended (the "Act"), that no assurance can be given that any
market for the EII Common Stock will exist from time to time, and that,
accordingly, each must continue to hold the EII Common Stock unless a
disposition thereof is exempt from the registration requirements of the Act or
until the shares of EII Common Stock acquired by each of them have been
registered under the Act. Each of the BFS Shareholders agrees that no transfer
of shares of EII Common Stock by any of them may be undertaken unless such
transfer either complies with the registration provisions of the Act or, in the
opinion of counsel to EII, the proposed transfer is exempt from the registration
requirements of the Act. In view of the foregoing, each of the BFS Shareholders
hereby acknowledges and agrees that the certificates evidencing EII Common Stock
to be issued to them under this Agreement shall bear the following legends, as
well as such other legends as may be required for inclusion thereon which are
applicable to all holders of EII Common Stock:
"The shares represented by this certificate are subject to the provisions of an
Agreement and Plan of Merger dated effective January 31, 1997, which restricts
any sale or other transfer of such shares. The issuer will furnish to the
record holder of this certificate, without charge, upon written request to the
issuer at its principal place of business, a copy of such Agreement and Plan of
Merger."
"The shares represented by this certificate are "restricted securities" within
the meaning of Rule 144 of the Securities and Exchange Commission under the
Securities Act of 1933. Such shares may not be sold or transferred unless
accompanied by an opinion of counsel acceptable in form and substance to the
issuer to the effect that such sale or transfer (i) has been registered in
accordance with the registration provisions of such Act, or is exempt from such
registration provisions pursuant to Rule 144 or pursuant to another applicable
exemption, and (ii) is in compliance with all applicable state securities laws."
ARTICLE III
REPRESENTATIONS AND WARRANTIES
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3.1 REPRESENTATION AND WARRANTIES OF BFS AND THE BFS SHAREHOLDERS. BFS
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and the BFS Shareholders jointly and severally represent and warrant to EII and
Newcorp as follows:
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(a) Organization, Standing and Power. BFS is a corporation duly
--------------------------------
organized, validly existing and in good standing under the laws of the
State of California and has all requisite power and authority to own,
lease and operate its properties and to carry on its business as now
being conducted. BFS has delivered to EII complete and correct copies
of (i) the Articles of Incorporation of BFS and all amendments thereto
to the date hereof, and (ii) the Bylaws of BFS as amended to the date
hereof. BFS has no subsidiaries.
(b) Capital Structure. The authorized capital stock of BFS consists
-----------------
of one million (1,000,000) shares of Common Stock, par value $1.00 per
share. At the close of business on the business day next preceding
the date hereof, 47,999 shares of BFS Common Stock were outstanding,
and all the outstanding shares of BFS Common Stock were validly
issued, fully paid and, except as otherwise provided by applicable
law, nonassessable.
(c) Authority. Subject to the approval of this Agreement by the BFS
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Shareholders, as contemplated by Section 4.2 hereof, the execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by all
necessary action on the part of BFS, and this Agreement is a valid and
binding obligation of BFS. The execution and delivery of this
Agreement, the consummation of the transactions contemplated hereby
and compliance by BFS with any of the provisions hereof will not (i)
conflict with or result in a breach of any provision of its Articles
of Incorporation or Bylaws or a default (or give rise to any right of
termination, cancellation or acceleration) under any of the terms,
conditions or provisions of any note, bond, debenture, mortgage,
lease, indenture, license, agreement or other instrument or obligation
to which BFS is a party or by which it or any of its properties or
assets may be bound, or (ii) violate any order, writ, injunction,
decree, statute, rule or regulation applicable to BFS or any of its
properties or assets. No consent or approval by any governmental
authority is required in connection with the execution and delivery by
BFS of this Agreement or the consummation by BFS of the transactions
contemplated hereby.
(d) Financial Statements. BFS has delivered to EII copies of the
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following financial statements of BFS:
(1) Balance sheets as of April 30 for each of the two fiscal
years ended April 30, 1995 and 1996.
(2) Balance sheet as of October 31, 1996.
(3) Income statement for each of the two fiscal years ended April
30,
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1995 and 1996.
Such financial statements have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis
for the periods indicated, all as more particularly set forth in the
notes to such statements. Each of such balance sheets presents fairly
as of its date the financial condition and assets and liabilities of
BFS. The income statements present fairly the results of operations of
BFS for the periods indicated.
(e) Absence of Undisclosed Liabilities. At October 31, 1996, BFS had
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no material liabilities of any nature, direct or indirect, fixed or
contingent, which were not reflected in the aforesaid BFS balance
sheet as of such date, or otherwise disclosed to EII.
(f) Tax Matters. BFS has filed all Federal, state and local tax
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returns required to be filed, and all taxes shown by such returns to
be due and payable have been paid or are reflected as a liability on
the BFS balance sheet as of October 31, 1996 or are being contested in
good faith. BFS has not given or been requested to give waivers of
any statutes of limitations relating to the payment of Federal, state
or local taxes. Except to the extent that reserves therefor are
specifically reflected on the BFS balance sheet as of October 31,
1996, there are no material Federal, state or local tax liabilities of
BFS due for any period.
(g) Options, Warrants and Related Matters. There are no options,
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warrants, calls, commitments or agreements of any character to which
BFS is a party or by which it is bound, calling for the issuance of
shares of capital stock or securities of BFS or any security
representing the right to purchase or otherwise receive any such
capital stock or securities of BFS.
(h) Property.
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(1) BFS owns all personal property reflected on the BFS balance
sheet as of October 31, 1996 (except personal property sold or
otherwise disposed of since October 31, 1996 in the ordinary
course of business), free and clear of all mortgages, liens,
pledges, charges or encumbrances of any nature whatsoever, except
those set forth on Schedule 1 hereto, those reflected in the
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notes to BFS balance sheets as of such date, liens for current
taxes not yet due and payable and such encumbrances and
imperfections of title, if any, as are not substantial in
character or amount or otherwise do not materially impair
business operations. BFS owns no real property.
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(2) All property and assets material to the business or
operations of BFS are in good operating condition and repair.
(i) Extraordinary Contracts. Schedule 2 hereto lists all notes,
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bonds, mortgages, indentures, licenses, lease agreements and other
material contracts and obligations to which BFS is a party.
(j) Bonus Plans and Related Matters. Except as set forth on Schedule
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3, BFS is not a party to (i) any employment contract not terminable at
the option of BFS without cost or liability, (ii) any retirement,
stock option, profit sharing or pension plan or thrift plan or
agreement, (iii) any management or consultation agreement not
terminable at the option of BFS without cost or liability, or (iv) any
union or labor agreement.
(k) Agreements in Force and Effect. All contracts, agreements, plans,
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leases, policies and licenses referred to herein, or in any Schedule
of BFS referred to herein, are valid and in full force and effect, and
BFS has not breached any material provision of, nor is in default in
any material respect under the terms of, any such contract, agreement,
plan, lease, policy or license.
(l) Legal Proceedings, etc. Except as set forth in Schedule 4, there
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is no legal, administrative, arbitration or other proceeding or
governmental investigation pending or threatened which might result in
money damages payable by BFS, which might result in a permanent
injunction against BFS or which might result in a change in the zoning
or building ordinances materially affecting the property or leasehold
interests of BFS. BFS has complied with, and is not in default in any
material respect under, any laws, ordinances, requirements,
regulations, or orders applicable to its business. BFS is not a party
to any agreement or instrument or subject to any charter or other
corporate restriction or any judgment, order, writ, injunction,
decree, rule, regulation, code or ordinance which materially and
adversely affects, or might reasonably be expected materially and
adversely to affect, the business operations, prospects, properties,
assets or condition, financial or otherwise of BFS.
(m) Absence of Changes. Since October 31, 1996, there has not been
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any material adverse change in the condition (financial or otherwise),
assets, liabilities, earnings or business of BFS. Since such date the
business of BFS has been conducted only in the usual and ordinary
course, except as set forth in Schedule 5.
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(n) Brokers and Finders. Neither BFS nor any of its officers,
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directors or employees has employed any broker or finder or incurred
any liability for any brokerage fees, commissions or finder's fees in
connection with the transactions
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contemplated herein.
3.2 REPRESENTATIONS AND WARRANTIES OF EII. EII represents and warrants to
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BFS as follows:
(a) Organization, Standing and Power. EII is a corporation duly
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organized, validly existing and in good standing under the laws of the
State of Texas and has all requisite corporate power and authority to
own, lease and operate its properties and to carry on its business as
the same is now being conducted.
(b) Authority. The execution and delivery of this Agreement and the
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consummation of the transactions contemplated hereby have been duly
and validly authorized by all necessary action on the part of EII and
this Agreement is a valid and binding obligation of EII.
(c) Brokers and Finders. Neither EII nor any of its officers,
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directors or employees has employed any broker or finder or incurred
any liability for any brokerage fees, commissions or finder's fees in
connection with the transactions contemplated herein.
3.3 REPRESENTATIONS AND WARRANTIES OF NEWCORP. Newcorp represents and
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warrants to BFS as follows:
(a) Capital Structure. As of the Closing Date, Newcorp will have
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authorized capital stock consisting of 1,000,000 shares of common stock of
the par value of $1.00 per share, of which 1,000 shares will be issued and
outstanding.
(b) Organization, Standing and Power. Newcorp is a corporation duly
--------------------------------
organized, validly existing and in good standing under the laws of the
State of Texas and has all requisite corporate power and authority to
own, lease and operate its properties and to carry on its business as
the same is now being conducted.
(c) Authority. The execution and delivery of this Agreement and the
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consummation of the transactions contemplated hereby have been duly
and validly authorized by all necessary action on the part of Newcorp
and this Agreement is a valid and binding obligation of Newcorp.
(d) Brokers and Finders. Neither Newcorp nor any of its officers,
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directors or employees has employed any broker or finder or incurred
any liability for any brokerage fees, commissions or finder's fees in
connection with the transactions contemplated herein.
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ARTICLE IV
CONDUCT AND TRANSACTIONS PRIOR TO EFFECTIVE DATE OF MERGER
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4.1 ACCESS TO RECORDS AND PROPERTIES OF BFS. Between the date of this
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Agreement and the Effective Date of the Merger, BFS agrees to give to EII, or
its designees, full access to all the premises and books and records (including
tax returns filed and in preparation and examination reports) of BFS and to
cause its officers to furnish such financial and operating data (audited and
unaudited) and other information with respect to the business and properties of
BFS as EII shall from time to time request for the purposes of determining the
condition of BFS and verifying the warranties and representations set forth
herein. In the event of termination of this Agreement, EII will return to BFS
all documents, work papers and other material (including all copies made
thereof) obtained pursuant hereto in connection with the transactions
contemplated hereby and will use all reasonable efforts to keep confidential any
information obtained pursuant to this Agreement unless such information is
readily ascertainable from public or published information or trade sources.
4.2 SHAREHOLDER APPROVAL. BFS and Newcorp agree to submit this Agreement
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to their respective shareholders for approval in accordance with applicable law
as soon as reasonably practicable after the execution hereof.
4.3 OPERATION OF THE BUSINESS OF BFS. BFS agrees that from the date
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hereof to the Effective Date of the Merger, it will (i) operate its business as
presently operated and only in the usual and ordinary course, and, (ii)
consistent with such operation, use its best efforts to preserve intact its
present business organization and its relationships with persons having
business dealings with it. Without limiting the generality of the foregoing,
BFS agrees that it will not, without the prior written consent of EII, (i) grant
any salary increase to any officer or employee or enter into any bonus,
incentive compensation, deferred compensation, profit sharing, thrift,
retirement, pension, group insurance or other benefit plan or any employment or
consulting agreement; (ii) create or otherwise become liable with respect to any
indebtedness for money borrowed or purchase money indebtedness except in the
ordinary course of business; (iii) amend its Articles of Incorporation or
Bylaws; (iv) issue or contract to issue any shares of BFS capital stock, or any
options or rights to acquire any shares of BFS capital stock, or any securities
exchangeable for or convertible into BFS capital stock; (v) purchase or agree to
purchase any shares of BFS Common Stock; (vi) enter into or assume any material
contract, agreement or obligation, except in the ordinary course of business;
(vii) waive any right of substantial value; or (viii) declare or pay any
dividend on its capital stock.
4.4 REQUIRED CONSENTS. EII, Newcorp, BFS and the BFS Shareholders shall
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each use their best efforts to obtain the consent or approval of each person
whose consent or approval shall be required or appropriate in order to permit
consummation of the Merger.
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ARTICLE V
CONDITIONS OF MERGER
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5.1 CONDITIONS OF OBLIGATIONS OF EII AND NEWCORP. The obligations of EII
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and Newcorp to perform this Agreement are subject to the satisfaction of the
following conditions, unless waived by EII and Newcorp:
(a) Representations and Warranties. The representations and
------------------------------
warranties of BFS set forth in Section 3.1 hereof shall be true and
correct in all material respects as of the date of this Agreement and
as of the Closing Date as though made on, and as of, the Closing Date,
except as otherwise permitted by this Agreement, and EII shall have
received a certificate signed by the President of BFS to that effect.
(b) Performance of Obligations of BFS. BFS shall have duly and
---------------------------------
punctually performed all obligations required to be performed by it
under this Agreement on or prior to the Closing Date.
(c) Authorization of Merger. All action necessary to authorize the
-----------------------
execution, delivery and performance of this Agreement by EII, Newcorp
and BFS and the consummation of the transactions contemplated herein
(including the shareholder actions referred to in Section 4.2 hereof)
shall have been duly and validly taken by the Boards of Directors of
EII, Newcorp, and BFS, respectively, and by the BFS Shareholders and
the shareholder of Newcorp, respectively, and BFS and Newcorp shall
have full power and right to merge on the terms provided herein.
5.2 CONDITIONS OF OBLIGATIONS OF BFS. The obligation of BFS to perform
--------------------------------
this Agreement is subject to the satisfaction of the following conditions unless
waived by BFS:
(a) Representations and Warranties. The representations and
------------------------------
warranties of EII and Newcorp set forth in Sections 3.2 and 3.3 hereof
shall be true and correct in all material respects as of the date of
this Agreement and as of the Closing Date as though made on, and as
of, the Closing Date, except as otherwise permitted by this Agreement,
and BFS shall have received a certificate signed by the President of
each of EII and Newcorp to that effect.
(b) Performance of Obligations of EII and Newcorp. EII and Newcorp
---------------------------------------------
shall have performed all obligations required to be performed by them
under this Agreement prior to the Closing Date.
(c) Authorization of Merger. All action necessary to authorize the
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execution, delivery and performance of this Agreement by EII, Newcorp
and
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BFS and the consummation of the transactions contemplated hereby
(including the shareholder actions referred to in Section 4.2 hereof)
shall have been duly and validly taken by the Boards of Directors of
EII, Newcorp and BFS, respectively, and by the BFS Shareholders and
the shareholder of Newcorp, respectively, and BFS and Newcorp shall
have full power and right to merge on the terms provided herein.
ARTICLE VI
CLOSING DATE
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6.1 CLOSING DATE. The closing of the transactions contemplated in this
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Agreement shall take place on such date and at such location as EII shall
designate to BFS in writing at least one day in advance of such date (the
"Closing Date").
6.2 EFFECTIVE DATE. Subject to the terms and conditions set forth herein,
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including receipt of all required regulatory approvals, the Merger shall become
effective at the time specified in the certificate to be issued by the Secretary
of State of Texas (the "Effective Date of the Merger").
ARTICLE VII
TERMINATION; SURVIVAL OF REPRESENTATIONS,
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WARRANTIES AND COVENANTS, WAIVER AND AMENDMENT
----------------------------------------------
7.1 TERMINATION. This Agreement shall be terminated, and the Merger
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abandoned, if the BFS Shareholders and the shareholder of Newcorp shall not have
duly given the approval referred to in Section 4.2 hereof. Notwithstanding such
approvals by the BFS Shareholders and the shareholder of Newcorp, this Agreement
may be terminated at any time prior to the Effective Date of the Merger by:
(a) The mutual consent of EII and BFS;
(b) EII, if the conditions set forth in Section 5.1 hereof shall not
have been met;
(c) BFS, if the conditions set forth in Section 5.2 hereof shall not
have been met; and
(d) EII or BFS, if the Board of Directors of either EII or BFS shall
have determined in its sole discretion exercised in good faith that
the Merger
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contemplated by this Agreement has become inadvisable or impracticable
by reason of the threat or the institution of any litigation,
proceeding or investigation to restrain or prohibit the consummation
of the transactions contemplated by this Agreement or to obtain other
relief in connection with this Agreement.
7.2 EFFECT OF TERMINATION. In the event of the termination of this
---------------------
Agreement pursuant to Section 7.1 hereof, this Agreement shall become void and
have no effect, without any liability on the part of any party or its directors,
officers or shareholders. Notwithstanding the foregoing, each party hereto
shall be and remain fully liable and responsible for any breach by it of any
provision of this Agreement.
7.3 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. The respective
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representations and warranties, obligations, covenants and agreements of EII,
Newcorp, BFS and the BFS Shareholders contained herein shall survive the
Effective Date of the Merger.
7.4 WAIVER AND AMENDMENT. Any term or provision of this Agreement may be
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waived in writing at any time by the party which is, or whose shareholders are,
entitled to the benefits thereof and this Agreement may be amended or
supplemented by written agreements duly executed by all parties hereto at any
time.
ARTICLE VIII
MISCELLANEOUS
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8.1 EXPENSES. Each party hereto shall bear and pay the costs and expenses
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incurred by it relating to the transactions contemplated hereby, except as
expressly provided otherwise herein.
8.2 ENTIRE AGREEMENT. This Agreement contains the entire agreement among
----------------
EII, Newcorp, BFS and the BFS Shareholders with respect to the Merger and the
related transactions and supersedes all prior arrangements, understandings or
written agreements with respect thereto.
8.3 DESCRIPTIVE HEADINGS. Descriptive headings herein are for convenience
--------------------
only and shall not control or affect the meaning or construction of any
provisions of this Agreement.
8.4 NOTICE. All notices or other communications which are required or
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permitted hereunder shall be in writing and sufficient if delivered personally
or sent by registered or certified mail, postage prepaid, addressed as follows:
(i) If to EII or Newcorp:
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Entourage International, Inc.
Attention: Xx. Xxxx Xxxxxxx
00000 Xxxxx Xxxxxxxx, Xxxxx X
Xxx Xxxx Xxxxxxxxxx, Xxxxxxxxxx 00000
(ii) If to BFS or the BFS Shareholders:
Biogime Franchise Services (U.S.A.), Inc.
Attention: Xx. Xxxx Xxxxxxx
00000 Xxxxx Xxxxxxxx, Xxxxx X
Xxx Xxxx Xxxxxxxxxx, Xxxxxxxxxx 00000
8.5 COUNTERPARTS. This Agreement may be executed in any number of
------------
counterparts, and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but on
agreement.
8.6 GOVERNING LAW. Except as may otherwise be required by the laws of the
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United States, this Agreement shall be governed by and construed in accordance
with the applicable laws of the State of Texas.
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IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
effective as of the day and year first above written.
ENTOURAGE INTERNATIONAL, INC.
By: ________________________________
Name: Xxxx X. Xxxxx
Title: Secretary
BFS ACQUISITION CORP.
By: _______________________________
Name: Xxxx X. Xxxxx
Title: President
BIOGIME FRANCHISE SERVICES
(U.S.A.), INC.
By: _______________________________
Name: Xxxx X. Xxxxxxx
Title: President
BFS SHAREHOLDERS
___________________________________
Xxxx X. Xxxxxxx
___________________________________
Xxxxxxx Xxxxxxx
___________________________________
Xxxxx Xxxxxxx
___________________________________
Xxxx Xxxxxxx
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___________________________________
Xxxxxxx Xxxxxxx
ORANGE NATIONAL BANK AS
CUSTODIAN FOR XXXX XXXXX XXX
By: _______________________________
Title: _____________________________
___________________________________
Xxxx Xxxxx, Xx.
___________________________________
Xxxx Xxxxx, Xx.
ORANGE NATIONAL BANK AS
CUSTODIAN FOR XXXX XXXXX, XX. XXX
XXX
By: _______________________________
Title: _____________________________
___________________________________
Xxxxxxx Xxxxxxx
16
SCHEDULE 1
MORTGAGES, LIENS AND ENCUMBRANCES
17
SCHEDULE 2
MATERIAL CONTRACTS
18
SCHEDULE 3
EMPLOYMENT RELATED CONTRACTS
19
SCHEDULE 4
LEGAL MATTERS
20
SCHEDULE 5
TRANSACTIONS NOT IN THE ORDINARY COURSE
21
