AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (the "Agreement"), entered into
this 12th day of November 1997, is by, between, and among Mid-Way Medical and
Diagnostic Center, Inc., a corporation organized and existing under the laws of
the state of Florida ("Mid-Way"), Mid-Way Acquisitions Corp., a corporation
organized and existing under the laws of the state of Nevada ("Mid-Way
Acquisitions"), and Xxxx Jewelry, Inc., a corporation organized and existing
under the laws of the state of Delaware ("Xxxx").
RECITALS:
WHEREAS, Mid-Way Acquisitions is a wholly owned subsidiary of Mid-Way;
WHEREAS, Xxxx desires to merge with and into Mid-Way Acquisitions, and
Mid-Way desires to merge Mid-Way Acquisitions with Xxxx, so that Xxxx will be
the surviving corporation, all upon the terms and subject to the conditions of
this Merger Agreement and in accordance with the laws of the States of Delaware
and Nevada;
WHEREAS, the terms and conditions of the Merger, the mode of carrying the
same into effect, the manner of converting the capital stock of Xxxx into the
right to receive common stock of Mid-Way and such other terms and conditions as
may be required or permitted to be stated in this Merger Agreement are set forth
below; and
WHEREAS, for federal income tax purposes, it is intended by the parties
hereto that the Merger shall qualify as a reorganization within the meaning of
Sections 368(a)(l)(A) and (a)(2)(D) of the Internal Revenue Code of 1986, as
amended (the "Code"), and that this Merger Agreement shall constitute a "Plan of
Reorganization" for purposes of Section 368 of the Code;
NOW, THEREFORE, based upon the stated premises, which are incorporated
herein by reference, and for and in consideration of the mutual covenants and
agreements set forth herein, the mutual benefits to the parties to be derived
herefrom, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, Mid-Way, Mid-Way Acquisitions, and Xxxx approve
and adopt this Agreement and Plan of Reorganization and mutually covenant and
agree with each other as follows:
1. Merger of Xxxx into Mid-Way Acquisitions.
1.1 Incorporation of Agreement of Merger. The agreement of merger attached
hereto as Exhibit "A" is incorporated herein by reference. Mid-Way, Mid-Way
Acquisitions, and
Xxxx agree to take such action to execute and deliver such further instruments
as may be necessary to carry out the terms of said agreement of merger.
1.2 Shares to be Issued. On the effective date of the merger, 2,500,000
shares of Mid-Way's common stock shall be delivered to the sole shareholder of
Xxxx.
2. Representations and Warranties of Xxxx. Xxxx represents and warrants to
Mid-Way and Mid-Way Acquisitions as set forth below. These representations and
warranties are made as an inducement for Mid-Way and Mid-Way Acquisitions to
enter into this Agreement and, but for the making of such representations and
warranties and their accuracy, such entities would not be parties hereto.
2.1 Organization and Authority. Xxxx is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
with full power and authority to enter into and perform the transactions
contemplated by this Agreement.
2.2 Capitalization. As of the date of the closing, Xxxx will have a total
of no more than 1,500 shares of common stock issued and outstanding. All of the
shares will have been duly authorized and validly issued and will be fully paid
and nonassessable. There are no options, warrants, conversion privileges, or
other rights presently outstanding for the purchase of any authorized but
unissued stock of Xxxx.
2.3 Performance of This Agreement. The execution and performance of this
Agreement and the transaction contemplated hereby have been authorized by the
board of directors of Xxxx.
2.4 Financials. True copies of the financial statements of Xxxx consisting
of the balance sheets as of the fiscal years ended December 31, 1996 and 1995,
and the six months ended June 30, 1997, and statements of operations and cash
flow for each of the fiscal years ended December 31, 1996, 1995, and 1994, and
the six months ended June 30, 1997, and statement of changes in stockholder's
equity from inception to June 30, 1997, have been delivered by Xxxx to Mid-Way
and Mid-Way Acquisitions. The year-end statements have been examined and
certified by Xxxxx, Xxxxxx & Company LLP, Certified Public Accountants. Said
financial statements are true and correct in all material respects and present
an accurate and complete disclosure of the financial condition of Xxxx as of
June 30, 1997, and the earnings for the periods covered, in accordance with
generally accepted accounting principles applied on a consistent basis.
2.5 Liabilities. There are no material liabilities of Xxxx, whether
accrued, absolute, contingent or otherwise, which arose or relate to any
transaction of Xxxx, its agents or servants occurring prior to June 30, 1997,
which are not disclosed by or reflected in said financial statements. As of the
date hereof, there are no known circumstances, conditions, happenings, events or
arrangements, contractual or otherwise, which may hereafter give rise to
liabilities, except in the normal course of business of Xxxx.
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2.6 Absence of Certain Changes or Events. Except as set forth in this
Agreement, since June 30, 1997, there has not been (i) any material adverse
change in the business, operations, properties, level of inventory, assets, or
condition of Xxxx, or (ii) any damage, destruction, or loss to Xxxx (whether or
not covered by insurance) materially and adversely affecting the business,
operations, properties, assets, or conditions of Xxxx.
2.7 Litigation. There are no legal, administrative or other proceedings,
investigations or inquiries, product liability or other claims, judgments,
injunctions or restrictions, either threatened, pending, or outstanding against
or involving Xxxx or its subsidiaries, if any, or their assets, properties, or
business, nor does Xxxx or its subsidiaries know, or have reasonable grounds to
know, of any basis for any such proceedings, investigations or inquiries,
product liability or other claims, judgments, injunctions or restrictions. In
addition, there are no material proceedings existing, pending or reasonably
contemplated to which any officer, director, or affiliate of Xxxx is a party
adverse to Xxxx or any of its subsidiaries or has a material interest adverse to
Xxxx or any of its subsidiaries.
2.8 Taxes. All federal, state, foreign, county and local income, profits,
franchise, occupation, property, sales, use, gross receipts and other taxes
(including any interest or penalties relating thereto) and assessments which are
due and payable have been duly reported, fully paid and discharged as reported
by Xxxx, and there are no unpaid taxes which are, or could become a lien on the
properties and assets of Xxxx, except as provided for in the financial
statements of Xxxx, or have been incurred in the normal course of business of
Xxxx since that date. All tax returns of any kind required to be filed have been
filed and the taxes paid or accrued.
2.9 Accuracy of All Statements Made by Xxxx. No representation or warranty
by Xxxx in this Agreement, nor any statement, certificate, schedule, or exhibit
hereto furnished or to be furnished by or on behalf of Xxxx pursuant to this
Agreement, nor any document or certificate delivered to Mid-Way and Mid-Way
Development by Xxxx pursuant to this Agreement or in connection with actions
contemplated hereby, contains or shall contain any untrue statement of material
fact or omits or shall omit a material fact necessary to make the statement
contained therein not misleading.
3. Representations and Warranties of Mid-Way and Mid-Way Acquisitions.
Mid-Way and Mid-Way Acquisitions, jointly and severally, represent and warrant
to Xxxx as set forth below. These representations and warranties are made as an
inducement for Xxxx to enter into this Agreement and, but for the making of such
representations and warranties and their accuracy, Xxxx would not be a party
hereto.
3.1 Organization and Good Standing.
a. Mid-Way is a corporation duly organized, validly existing and in good
standing under the laws of the State of Florida with full power and authority to
enter into and perform the transactions contemplated by this Agreement.
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b. Mid-Way Acquisitions is a corporation duly organized, validly existing
and in good standing under the laws of the State of Nevada with full power and
authority to enter into and perform the transactions contemplated by this
Agreement.
3.2 Capitalization.
a. The authorized capital stock of Mid-Way consists of 50,000,000 shares of
common stock, $0.00 1 per share par value. As of the date of this Agreement,
Mid-Way has a total of 11,000,000 shares of common stock outstanding. As of the
date of the closing, taking into account the cancellation of 9,400,000 and a
2.5-for-one forward split of the outstanding shares as described below, Mid-Way
will have a total of no more than 4,000,000 shares of common stock issued and
outstanding. All of the shares will have been duly authorized and validly issued
and will be fully paid and nonassessable. Except for Mid-Way's obligations
hereunder with respect to the shares to be issued pursuant to subsection 1.2
hereof, there are no options, warrants, conversion privileges, or other rights
presently outstanding for the purchase of any authorized but unissued stock of
Mid-Way.
b. The authorized capital stock of Mid-Way Acquisitions consists of 10,000
shares of common stock, $0.001 per share par value. As of the date of this
Agreement, Mid-Way Acquisitions has a total of 10 shares of common stock
outstanding, all of which are owned by Mid-Way. All of the outstanding shares
have been duly authorized and validly issued and are fully paid and
nonassessable. There are no options, warrants, conversion privileges, or other
rights presently outstanding for the purchase of any authorized but unissued
stock of Mid-Way Acquisitions.
3.3 Performance of This Agreement. The execution and performance of this
Agreement and the transaction contemplated hereby have been authorized by the
boards of directors of Mid-Way and Mid-Way Acquisitions.
3.4 Financials. True copies of the financial statements of Mid-Way
consisting of the balance sheets as of the fiscal years ended December 31, 1996
and 1995, and the three months ended March 31, 1997, and statements of
operations and cash flow for each of the fiscal years ended December 31, 1996,
1995, and 1994, and the three months ended March 31, 1997, and statement of
changes in stockholder's equity from inception to March 31, 1997, have been
delivered by Mid-Way to Xxxx. The financial statements have been examined and
certified by Xxxxx X. Xxxxxxxx, P.C., Certified Public Accountant. Said
financial statements are true and correct in all material respects and present
an accurate and complete disclosure of the financial condition of Mid-Way as of
March 31, 1997, and the earnings for the periods covered, in accordance with
generally accepted accounting principles applied on a consistent basis.
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3.5 Liabilities.
a. There are no material liabilities of Mid-Way, whether accrued, absolute,
contingent or otherwise, which arose or relate to any transaction of Mid-Way,
its agents or servants which are not disclosed by or reflected in said financial
statements. As of the date hereof, there are no known circumstances, conditions,
happenings, events or arrangements, contractual or otherwise, which may
hereafter give rise to liabilities, except in the normal course of business of
Mid-Way.
b. Mid-Way Acquisitions has no liabilities in the aggregate in excess of
$1,000.
3.6 Litigation. There are no legal, administrative or other proceedings,
investigations or inquiries, product liability or other claims, judgments,
injunctions or restrictions, either threatened, pending, or outstanding against
or involving Mid-Way or Mid-Way Acquisitions, or their subsidiaries, if any, or
their assets, properties, or business, nor does Mid-Way or Mid-Way Acquisitions
or their subsidiaries know, or have reasonable grounds to know, of any basis for
any such proceedings, investigations or inquiries, product liability or other
claims, judgments, injunctions or restrictions. In addition, there are no
material proceedings existing, pending or reasonably contemplated to which any
officer, director, or affiliate of Mid-Way or Mid-Way Acquisitions is a party
adverse to either entity or any of their subsidiaries or has a material interest
adverse to such entities or any of their subsidiaries.
3.7 Taxes. All federal, state, foreign, county and local income, profits,
franchise, occupation, property, sales, use, gross receipts and other taxes
(including any interest or penalties relating thereto) and assessments which are
due and payable have been duly reported, fully paid and discharged as reported
by Mid-Way and Mid-Way Acquisitions, and there are no unpaid taxes which are, or
could become a lien on the properties and assets of Mid-Way or Mid-Way
Acquisitions, except as provided for in the financial statements of Mid-Way, or
have been incurred in the normal course of business of Mid-Way or Mid-Way
Acquisitions since that date. All tax returns of any kind required to be filed
have been filed and the taxes paid or accrued.
3.8 Legality of Shares to be Issued. The shares of common stock of Mid-Way
to be issued by Mid-Way pursuant to this Agreement, when so issued and
delivered, will have been duly and validly authorized and issued by Mid-Way and
will be fully paid and nonassessable.
3.9 Accuracy of All Statements Made by Mid-Way and Mid-Way Acquisitions. No
representation or warranty by Mid-Way or Mid-Way Acquisitions in this Agreement,
nor any statement, certificate, schedule, or exhibit hereto furnished or to be
furnished by Mid-Way or Mid-Way Acquisitions pursuant to this Agreement, nor any
document or certificate delivered to Xxxx pursuant to this Agreement or in
connection with actions contemplated hereby, contains or shall contain any
untrue statement of material fact or omits to state or shall omit to state a
material fact necessary to make the statement contained therein not misleading.
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4. Covenants of the Parties.
4.1 Corporate Records.
a. Simultaneous with the execution of this Agreement by Xxxx, such entity
shall deliver to Mid-Way and Mid-Way Acquisitions copies of the articles of
incorporation, as amended, and the current bylaws of Xxxx, and copies of the
resolutions duly adopted by the board of directors of Xxxx approving this
Agreement and the transactions herein contemplated.
b. Simultaneous with the execution of this Agreement by Mid-Way and Mid-Way
Acquisitions, such entities shall deliver to Xxxx copies of the articles of
incorporation, as amended, and the current bylaws of Mid-Way and Mid-Way
Acquisitions, and copies of the resolutions duly adopted by the boards of
directors of Mid-Way and Mid-Way Acquisitions approving this Agreement and the
transactions herein contemplated.
4.2 Access to Information.
a. Mid-Way and Mid-Way Acquisitions and their authorized representatives
shall have full access during normal business hours to all properties, books,
records, contracts, and documents of Xxxx, and Xxxx shall furnish or cause to be
furnished to Mid-Way and Mid-Way Acquisitions and their authorized
representatives all information with respect to its affairs and business as
Mid-Way and Mid-Way Acquisitions may reasonably request. Mid-Way and Mid-Way
Acquisitions shall hold, and shall cause their representatives to hold
confidential, all such information and documents, other than information that
(i) is in the public domain at the time of its disclosure to Mid-Way and Mid-Way
Acquisitions; (ii) becomes part of the public domain after disclosure through no
fault of Mid-Way or Mid-Way Acquisitions; (iii) is known to Mid-Way or Mid-Way
Acquisitions or any of its officers or directors prior to disclosure; or (iv) is
disclosed in accordance with the written consent of Xxxx. In the event this
Agreement is terminated prior to closing, Mid-Way and Mid-Way Acquisitions
shall, upon the written request of Xxxx, promptly return all copies of all
documentation and information provided by Xxxx hereunder.
x. Xxxx and its authorized representatives shall have full access during
normal business hours to all properties, books, records, contracts, and
documents of Mid-Way and Mid-Way Acquisitions, and Mid-Way and Mid-Way
Acquisitions shall furnish or cause to be furnished to Xxxx and its authorized
representatives all information with respect to their affairs and business as
Xxxx may reasonably request. Xxxx shall hold, and shall cause its
representatives to hold confidential, all such information and documents, other
than information that (i) is in the public domain at the time of its disclosure
to Xxxx; (ii) becomes part of the public domain after disclosure through no
fault of Xxxx; (iii) is known to Xxxx or any of its officers or directors prior
to disclosure; or (iv) is disclosed in accordance with the written consent of
Mid-Way and Mid-Way Acquisitions. In the event this Agreement is terminated
prior to closing, Xxxx shall, upon the written request of Mid-Way or Mid-Way
Acquisitions, promptly return all copies of all documentation and information
provided by Mid-Way or Mid-Way Acquisitions hereunder.
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4.3 Actions Prior to Closing. From and after the date of this Agreement and
until the closing date:
a. Mid-Way and Mid-Way Acquisitions and Xxxx shall each carry on its
business diligently and substantially in the same manner as heretofore, and
neither party shall make or institute any unusual or novel methods of purchase,
sale, management, accounting or operation.
b. Neither Mid-Way or Mid-Way Acquisitions nor Xxxx shall enter into any
contract or commitment, or engage in any transaction not in the usual and
ordinary course of business and consistent with its business practices.
c. Neither Mid-Way or Mid-Way Acquisitions nor Xxxx shall amend its
articles of incorporation or bylaws or make any changes in authorized or issued
capital stock, except as provided in this Agreement.
d. Mid-Way and Mid-Way Acquisitions and Xxxx shall each use its best
efforts (without making any commitments on behalf of the company) to preserve
its business organization intact.
e. Neither Mid-Way or Mid-Way Acquisitions nor Xxxx shall do any act or
omit to do any act, or permit any act or omission to act, which will cause a
material breach of any material contract, commitment, or obligation of such
party.
f. Mid-Way and Mid-Way Acquisitions and Xxxx shall each duly comply with
all applicable laws as may be required for the valid and effective issuance or
transfer of stock contemplated by this Agreement.
g. Neither Mid-Way or Mid-Way Acquisitions nor Xxxx shall sell or dispose
of any property or assets, except products sold in the ordinary course of
business.
h. Mid-Way and Mid-Way Acquisitions and Xxxx shall each promptly notify the
other of any lawsuits, claims, proceedings, or investigations that may be
threatened, brought, asserted, or commenced against it, its officers or
directors involving in any way the business, properties, or assets of such
party.
4.4 Shareholders' Consent. Mid-Way and Mid-Way Acquisitions and Xxxx shall
promptly submit this Agreement and the transactions contemplated hereby for the
approval of their respective stockholders by written consent and, subject to the
fiduciary duties of the Boards of Directors of Mid-Way and Mid-Way Acquisitions
and Xxxx under applicable law, shall use their best efforts to obtain
stockholder approval and adoption of this Agreement and the transactions
contemplated hereby. In connection with such consents of stockholders, Mid-Way
and Mid-Way Acquisitions and Xxxx shall prepare an information statement to be
furnished to their respective shareholders setting forth information about this
Agreement and the transactions contemplated
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hereby. Mid-Way and Mid-Way Acquisitions and Xxxx shall promptly furnish to the
other all information, and take such other actions, as may reasonably be
requested in connection with any action to be taken in connection with the
immediately preceding sentence. Mid-Way and Mid-Way Acquisitions and Xxxx shall
have the right to review and provide comments to the information statement
furnished to the shareholders of the other prior to mailing.
4.5 No Covenant as to Tax or Accounting Consequences. It is expressly
understood and agreed that neither Mid-Way or Mid-Way Acquisitions nor its
officers or agents has made any warranty or agreement, expressed or implied, as
to the tax or accounting consequences of the transactions contemplated by this
Agreement or the tax or accounting consequences of any action pursuant to or
growing out of this Agreement.
4.6 Indemnification. Xxxx shall indemnify Mid-Way and Mid-Way Acquisitions
for any loss, cost, expense, or other damage (including, without limitation,
attorneys' fees and expenses) suffered by Mid-Way and Mid-Way Acquisitions
resulting from, arising out of, or incurred with respect to the falsity or the
breach of any representation, warranty, or covenant made by Xxxx herein, and any
claims arising from the operations of Xxxx prior to the closing date. Mid-Way
and Mid-Way Acquisitions, jointly and severally, shall indemnify and hold Xxxx
harmless from and against any loss, cost, expense, or other damage (including,
without limitation, attorneys' fees and expenses) resulting from, arising out
of, or incurred with respect to, or alleged to result from, arise out of or have
been incurred with respect to, the falsity or the breach of any representation,
covenant, warranty, or agreement made by Mid-Way or Mid-Way Acquisitions herein,
and any claims arising from the operations of Mid-Way or Mid-Way Acquisitions
prior to the closing date. The indemnity agreement contained herein shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of any party and shall survive the consummation of the transactions
contemplated by this Agreement.
4.7 Publicity. The parties agree that no publicity, release, or other
public announcement concerning this Agreement or the transactions contemplated
by this Agreement shall be issued by any party hereto without the advance
approval of both the form and substance of the same by the other parties and
their counsel, which approval, in the case of any publicity, release, or other
public announcement required by applicable law, shall not be unreasonably
withheld or delayed.
4.8 Expenses. Except as otherwise expressly provided herein, each party to
this Agreement shall bear its own respective expenses incurred in connection
with the negotiation and preparation of this Agreement, in the consummation of
the transactions contemplated hereby, and in connection with all duties and
obligations required to be performed by each of them under this Agreement.
4.9 Further Actions. Each of the parties hereto shall take all such further
action, and execute and deliver such further documents, as may be necessary to
carry out the transactions contemplated by this Agreement.
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4.10 Change of Domicile. Prior to the closing date, Mid-Way shall have
obtained shareholder approval to change the domicile of Mid-Way to the State of
Nevada.
4.11 Change of Name. Prior to the closing date, Mid-Way shall have obtained
shareholder approval to change the name of such entity to "Xxxx International,
Inc.," or some other name suggested by Xxxx. Prior to the closing date, Mid-Way
Acquisitions shall have obtained shareholder approval to change the name of such
entity to "Xxxx Jewelry, Inc.," or some other name suggested by Xxxx.
4.12 Forward Split. Prior to the closing date, Mid-Way shall have
accomplished a forward split of its outstanding stock at the rate of 2.5 shares
for each one share outstanding prior to closing.
4.13 Cancellation of Shares. Prior to the closing date, Mid-Way shall have
caused the cancellation of 9,400,000 shares held by Xxxxx Xxxxx.
4.14 Sale of Shares. Prior to closing Mid-Way shall have caused Xxxxx Xxxxx
to offer and sell 260,000 of his shares of Mid-Way to Xxxxxx X. Xxxxxx for
$26,000 and 140,000 shares to Xxxxxx Xxxxxxxx for $14,000.
5. Conditions Precedent to Mid-Way and Mid-Way Acquisitions's Obligations.
Each and every obligation of Mid-Way and Mid-Way Acquisitions to be performed on
the closing date shall be subject to the satisfaction prior thereto of the
following conditions:
5.1 Truth of Representations and Warranties. The representations and
warranties made by Xxxx in this Agreement or given on its behalf hereunder shall
be substantially accurate in all material respects on and as of the closing date
with the same effect as though such representations and warranties had been made
or given on and as of the closing date.
5.2 Performance of Obligations and Covenants. Xxxx shall have performed and
complied with all obligations and covenants required by this Agreement to be
performed or complied with by it prior to or at the closing.
5.3 Officer's Certificate. Mid-Way and Mid-Way Acquisitions shall have been
furnished with a certificate (dated as of the closing date and in form and
substance reasonably satisfactory to Mid-Way and Mid-Way Acquisitions), executed
by an executive officer of Xxxx, certifying to the fulfillment of the conditions
specified in subsections 5.1 and 5.2 hereof.
5.4 No Litigation or Proceedings. There shall be no litigation or any
proceeding by or before any governmental agency or instrumentality pending or
threatened against any party hereto that seeks to restrain or enjoin or
otherwise questions the legality or validity of the transactions contemplated by
this Agreement or which seeks substantial damages in respect thereof.
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5.5 No Material Adverse Change. As of the closing date there shall not have
occurred any material adverse change, financially or otherwise, which materially
impairs the ability of Xxxx to conduct its business or the earning power thereof
on the same basis as in the past.
5.6 Shareholders' Approval. The holders of not less than a majority of the
outstanding common stock of Mid-Way shall have voted for authorization and
approval of this Agreement and the transactions contemplated hereby and
shareholders of Mid-Way holding no more than 5% of the outstanding common stock
of Mid-Way shall have exercised dissenters' rights pursuant thereto.
6. Conditions Precedent to Obligations of Xxxx. Each and every obligation
of Xxxx to be performed on the closing date shall be subject to the satisfaction
prior thereto of the following conditions:
6.1 Truth of Representations and Warranties. The representations and
warranties made by Mid-Way and Mid-Way Acquisitions in this Agreement or given
on their behalf hereunder shall be substantially accurate in all material
respects on and as of the closing date with the same effect as though such
representations and warranties had been made or given on and as of the closing
date.
6.2 Performance of Obligations and Covenants. Mid-Way and Mid-Way
Acquisitions shall have performed and complied with all obligations and
covenants required by this Agreement to be performed or complied with by them
prior to or at the closing.
6.3 Officer's Certificate. Xxxx shall have been furnished with a
certificate (dated as of the closing date and in form and substance reasonably
satisfactory to Xxxx), executed by an executive officer of Mid-Way and Mid-Way
Acquisitions, certifying to the fulfillment of the conditions specified in
subsections 6.1 and 6.2 hereof
6.4 No Litigation or Proceedings. There shall be no litigation or any
proceeding by or before any governmental agency or instrumentality pending or
threatened against any party hereto that seeks to restrain or enjoin or
otherwise questions the legality or validity of the transactions contemplated by
this Agreement or which seeks substantial damages in respect thereof.
6.5 No Material Adverse Change. As of the closing date there shall not have
occurred any material adverse change, financially or otherwise, which materially
impairs the ability of Mid-Way or Mid-Way Acquisitions to conduct its business.
6.6 No Liabilities of Mid-Way and Mid-Way Acquisitions. As of the closing
date the total liabilities of Mid-Way and Mid-Way Acquisitions shall not exceed
$1,000 in the aggregate.
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7. Securities Law Provisions. At closing Xxxx shall deliver to Mid-Way a
representation form from the shareholder of Xxxx (the "Shareholder") providing
representations essentially as follows:
7.1 Restricted Securities. The Shareholder represents that he is aware that
the shares issued to him will not have been registered pursuant to the
Securities Act of 1933, as amended (the "1933 Act"), or any state securities
act, and thus will be restricted securities as defined in Rule 144 promulgated
by the Securities and Exchange Commission (the "SEC"). Therefore, under current
interpretations and applicable rules, he will probably have to retain such
shares for a period of at least one year and at the expiration of such one year
period his sales may be confined to brokerage transactions of limited amounts
requiring certain notification filings with the SEC and such disposition may be
available only if the issuer is current in its filings with the SEC under the
Securities Exchange Act of 1934, as amended, or other public disclosure
requirements.
7.2 Non-distributive Intent. The Shareholder covenants and warrants that
the shares received are acquired for his own account and not with the present
view towards the distribution thereof and he will not dispose of such shares
except (i) pursuant to an effective registration statement under the 1933 Act,
or (ii) in any other transaction which, in the opinion of counsel acceptable to
the issuer, is exempt from registration under the 1933 Act, or the rules and
regulations of the SEC thereunder. In order to effectuate the covenants of this
subsection 7.2, an appropriate legend will be placed upon each of the
certificates of common stock of issued pursuant to this Agreement, and stop
transfer instructions shall be placed with the transfer agent for the
securities.
7.3 Evidence of Compliance with Private Offering Exemption. The Shareholder
hereby represents and warrants that he, either individually or together with his
representative, has such knowledge and experience in business and financial
matters that he is capable of evaluating the risks of this Agreement and the
transactions contemplated hereby, and that the financial capacity of such party
is of such proportion that the total cost of such person's commitment in the
shares would not be material when compared with his, her, or its total financial
capacity. Upon the written request of the issuer of the securities issued or
transferred pursuant to this Agreement, the Shareholder shall provide such
issuer with evidence of compliance with the requirements of any federal or state
exemption from registration. Mid-Way and Mid-Way Acquisitions and Xxxx shall
each file, with the assistance of the other and its respective legal counsel,
such notices, applications, reports, or other instruments as may be deemed by
each of them to be necessary or appropriate in an effort to document reliance on
such exemptions, unless an exemption requiring no filing is available in the
particular jurisdiction, all to the extent and in the manner as may be deemed by
such parties to be appropriate.
8. Change of Management. Upon and as a condition of closing this Agreement:
8.1 Prior to closing Mid-Way and Mid-Way Acquisitions will present to its
shareholders for approval the election of Xxxxxx X. Xxxxxx as the sole director
of Mid-Way and
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Mid-Way Acquisitions effective immediately following the closing of this
Agreement. Prior to closing Xxxx will furnish material information of Xx. Xxxxxx
as nominees to be elected by the shareholders of Mid-Way and Mid-Way
Acquisitions. Mid-Way and Mid-Way Acquisitions reserves the right to refuse to
cause the nomination of such person as the director of Mid-Way and Mid-Way
Acquisitions if, after review of the foregoing information concerning said
person, it is the opinion of Mid-Way and Mid-Way Acquisitions that the election
of such person would not be in the best interests of Mid-Way and Mid-Way
Acquisitions.
8.2 Xxxx reserves the right to terminate this Agreement if the nominee
selected by it is not elected or appointed as set forth above.
9. Closing.
9.1 Time and Place. The closing of this transaction ("closing") shall take
place at 00 Xxxx 000 Xxxxx, Xxxxx 000, Xxxx Xxxx Xxxx, Xxxx, at 1:00 p.m.,
December 2, 1997, or at such other time and place as the parties hereto shall
agree upon. Such date is referred to in this Agreement as the "closing date."
9.2 Documents To Be Delivered by Xxxx. At the closing Xxxx shall deliver to
Mid-Way and Mid-Way Acquisitions the following documents:
a. A dully executed copy of the agreement of merger in form as set forth in
Exhibit "A."
b. The representation forms of the Shareholder described in Section 7
hereof.
c. The certificate required pursuant to subsection 5.3 hereof.
d. A certified copy of the duly adopted resolutions of Ciro's shareholder
authorizing this Agreement and the transactions contemplated hereby.
e. Such other documents of transfer, certificates of authority, and other
documents as Mid-Way and Mid-Way Acquisitions may reasonably request.
9.3 Documents To Be Delivered by Mid-Way and Mid-Way Acquisitions. At the
closing Mid-Way and Mid-Way Acquisitions shall deliver to Xxxx the following
documents:
a. A dully executed copy of the agreement of merger in form as set forth in
Exhibit "A."
b. Certificates for the number of shares of common stock of Mid-Way as
determined in sub-section 1.2 hereof.
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c. The certificate required pursuant to subsection 6.3 hereof.
d. Certified copies of the duly adopted resolutions of Mid-Way and Mid-Way
Acquisitions's shareholders authorizing this Agreement and the transactions
contemplated hereby.
e. Such other documents of transfer, certificates of authority, and other
documents as Xxxx may reasonably request.
10. Termination. This Agreement may be terminated by Mid-Way and Mid-Way
Acquisitions or Xxxx by notice to the other if, (i) at any time prior to the
closing date any event shall have occurred or any state of facts shall exist
that renders any of the conditions to its or their obligations to consummate the
transactions contemplated by this Agreement incapable of fulfillment, or (ii) on
December 15, 1997, if the closing shall not have occurred. Following termination
of this Agreement no party shall have liability to another party relating to
such termination, other than any liability resulting from the breach of this
Agreement by a party prior to the date of termination.
11. Miscellaneous.
11.1 Notices. All communications provided for herein shall be in writing
and shall be deemed to be given or made when served personally or when deposited
in the United States mail, certified return receipt requested, addressed as
follows, or at such other address as shall be designated by any party hereto in
written notice to the other party hereto delivered pursuant to this subsection:
Mid-Way and
Mid-Way Acquisitions: 0000 Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxx, President
with copy to: Xxxxxx & Associates
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
Xxxx: 000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, President
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with copy to: Xxxxxx X. Xxxxx
Attorney at Law
00 Xxxx 000 Xxxxx
Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
11.2 Default. Should any party to this Agreement default in any of the
covenants, conditions, or promises contained herein, the defaulting party shall
pay all costs and expenses, including a reasonable attorney's fee, which may
arise or accrue from enforcing this Agreement, or in pursuing any remedy
provided hereunder or by the statutes of the State of Utah
11.3 Assignment. This Agreement may not be assigned in whole or in part by
the parties hereto without the prior written consent of the other party or
parties, which consent shall not be unreasonably withheld.
11.4 Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto, their heirs, executors,
administrators, successors and assigns.
11.5 Partial Invalidity. If any term, covenant, condition, or provision of
this Agreement or the application thereof to any person or circumstance shall to
any extent be invalid or unenforceable, the remainder of this Agreement or
application of such term or provision to persons or circumstances other than
those as to which it is held to be invalid or unenforceable shall not be
affected thereby and each term, covenant, condition, or provision of this
Agreement shall be valid and shall be enforceable to the fullest extent
permitted by law.
11.6 Entire Agreement. This Agreement constitutes the entire understanding
between the parties hereto with respect to the subject matter hereof and
supersedes all negotiations, representations, prior discussions, and preliminary
agreements between the parties hereto relating to the subject matter of this
Agreement.
11.7 Interpretation of Agreement. This Agreement shall be interpreted and
construed as if equally drafted by all parties hereto.
11.8 Survival of Covenants. Etc. All covenants, representations, and
warranties made herein to any party, or in any statement or document delivered
to any party hereto, shall survive the making of this Agreement and shall remain
in full force and effect until the obligations of such party hereunder have been
fully satisfied.
11.9 Further Action. The parties hereto agree to execute and deliver such
additional documents and to take such other and further action as may be
required to carry out fully the transactions contemplated herein.
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11.10 Amendment. This Agreement or any provision hereof may not be changed,
waived, terminated, or discharged except by means of a written supplemental
instrument signed by the party or parties against whom enforcement of the
change, waiver, termination, or discharge is sought.
11.11 Full Knowledge. By their signatures, the parties acknowledge that
they have carefully read and fully understand the terms and conditions of this
Agreement, that each party has had the benefit of counsel, or has been advised
to obtain counsel, and that each party has freely agreed to be bound by the
terms and conditions of this Agreement.
11.12 Headings. The descriptive headings of the various sections or parts
of this Agreement are for convenience only and shall not affect the meaning or
construction of any of the provisions hereof.
11.13 Counterparts. This Agreement may be executed in two or more partially
or fully executed counterparts, each of which shall be deemed an original and
shall bind the signatory, but all of which together shall constitute but one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto executed the foregoing Agreement and
Plan of Reorganization as of the day and year first above written.
Mid-Way: Mid-Way Medical and Diagnostic Center, Inc.
By /s/ Xxxxx Xxxxx
----------------------------------
Xxxxx Xxxxx, President
Mid-Way Acquisitions: Mid-Way Acquisitions Corp.
By /s/ Xxxxx Xxxxx
----------------------------------
Xxxxx Xxxxx, President
Xxxx: Xxxx Jewelry, Inc.
By /s/ Xxxxxx X. Xxxxxx
----------------------------------
Xxxxxx X. Xxxxxx, President
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