AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement") is made and entered
into as of this 30th day of December, 1999, by and among Shanecy Holdings, Inc.,
a Nevada corporation with a place of business at 1530 - 000 Xxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0 ("SHI"), Shanecy, Inc., a Delaware
corporation with a place of business at 1530 - 000 Xxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxx Xxxxxxxx X0X 0X0 (the "Company" or the "SHI Shareholder"), Thesseus
Holdings, Inc., a Nevada corporation with a place of business at 000 X. Xxxxxx
Xxxxxx, Xxxxx 000, Xxxxxx Xxxx, Xxxxxx 00000 ("THI"), and Thesseus International
Asset Fund N.V., a Netherlands Antilles corporation with a place of business at
Zeelandia Office Park, 16 Kaya W.F.G. (Jombi) Xxxxxxx, Curacao, Netherlands
Antilles (the "Fund" or the "the THI Shareholder").
RECITALS:
(A) The Directors of SHI and THI have each determined that the merger of
THI with and into SHI would be advantageous and beneficial to the respective
shareholders, employees, and customers of those companies.
(B) The Company owns 100% of the issued and outstanding shares of common
stock of SHI (the "SHI Shares"), and Thesseus owns 100% of the issued and
outstanding shares of common stock of THI (the "THI Shares").
(C) It is the intention of the parties hereto that: (i) THI shall be merged
with and into SHI (the "Merger") in exchange for the delivery to the THI
Shareholder of 2,000,000 shares of restricted common stock of the Company to be
held by SHI (the "Merger Stock"), as more specifically set forth below; (ii) the
Merger shall qualify as a transaction in securities exempt from registration or
qualification under the Securities Act of 1933 (the "Act") and under the
applicable securities laws of the state of Nevada; and (iii) the Merger shall
qualify as a tax-free reorganization under Section 368 of the Internal Revenue
Code of 1986 as amended (the "Code").
NOW, THEREFORE, for the mutual consideration set out herein, the parties hereto
agree as follows:
1. Merger. SHI, the SHI Shareholder, THI and the THI Shareholder agree
that effective upon execution of this Agreement and the filing of articles of
merger with the Secretary of State of Nevada (which shall be substantially in
the form attached hereto as Exhibit "A"), THI shall be merged with and into SHI.
SHI shall be the surviving corporation and SHI shall retain its name. Pursuant
to the Merger, the THI Shareholder shall surrender all of the THI Shares, which
shall be canceled and, upon the closing of that certain Acquisition Agreement
dated December 30, 1999 between SHI and the SHI
Shareholder (the "SHI Acquisition Agreement"), the THI Shareholder shall receive
in exchange the Merger Stock. No other consideration shall be payable to the THI
Shareholder in connection with the Merger. The issuance of the Merger Stock will
not be registered pursuant to the Securities Act.
2. Delivery of THI Shares. Upon the execution of this Agreement, the
THI Shareholder will deliver to SHI for cancellation the certificate(s)
representing all of THI Shares, duly endorsed (or with duly executed stock
powers) so as to transfer title to all of THI Shares to SHI, free and clear of
all liens, claims and encumbrances. The Merger shall not be effected unless
certificates representing all of THI Shares are delivered to SHI, free and clear
of all liens, claims and encumbrances.
3. Representations and Warranties of THI and the THI Shareholder. THI
and the THI Shareholder, jointly and severally, as a material inducement to SHI
and the SHI Shareholder to enter into this Agreement and consummate the
transactions contemplated hereby, make the following representations and
warranties to SHI and the SHI Shareholder, which representations and warranties
are true and correct in all material respects at this date:
(a) Shareholder of THI. The THI Shareholder is the sole owner, of
record and beneficially, of all the issued and outstanding shares of THI's
capital stock.
(b) Financial Statements. Attached hereto as Schedule 3(b) is a pro
forma balance sheet and income statement, unaudited, of THI as of December 30,
1999 (the "THI Financial Statements"), giving effect to the closing of that
certain Acquisition Agreement dated December 30, 1999 between THI and the Fund
(the "THI Acquisition Agreement"), whereby THI acquired all of the Fund's
interest in Brunswick Capital Partners, Inc. ("BCP") and InfoBase Direct
Marketing Services, Inc. ("IDMS"). The THI Financial Statements and financial
information contained therein present fairly the financial condition of THI for
the period covered (subject to normal year-end audit adjustments which will not
be material to THI, taken as a whole, in amount or effect), and are prepared in
accordance with generally accepted accounting principles, consistently applied.
The books and records of THI, financial and otherwise, are in all material
respects complete and correct and have been maintained in accordance with good
business and accounting practices.
(c) Undisclosed Liabilities. THI is newly formed, and has not engaged
in business other than to establish its operations. THI does not have any
liabilities or obligations of any kind, whether known or unknown, or whether
absolute, accrued, contingent, matured or otherwise, whether due or to become
due except liabilities or obligations that arose in the ordinary course of
business in establishing such operations.
(d) Materially Adverse Change. Since the date of its formation, the
business of THI has been operated in the ordinary course and there has not been:
(i) Any materially adverse change in the business, condition
(financial or otherwise), results of operations, prospects, properties, assets,
liabilities, earnings or net worth of THI for such period or at any time during
such period;
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(ii) Any material damage, destruction or loss (whether or not
covered by insurance) affecting THI or its respective assets, properties or
businesses;
(iii) Any declaration, setting aside or payment of any
dividend or other distribution in respect of any shares of the capital stock of
THI, or any direct or indirect redemption, purchase or other acquisition of any
such stock or any agreement to do so;
(iv) Any issuance or sale by THI, or agreement by THI or the
THI Shareholder, to sell or pledge any of THI's securities, nor have any
irrevocable proxies been given with respect to THI's securities;
(v) Any statute, rule, regulation or order adopted by any
governmental body, agency or authority (including orders of regulatory
authorities with jurisdiction over THI) that materially and adversely affects
THI or its business or financial conditions;
(vi) Any material increase in the rate of compensation or in
bonus or commission payments payable or to become payable to any of the salaried
employees of THI; or
(vii) Any other events or conditions of any character that may
reasonably be expected to have a materially adverse effect on THI or its
business or financial condition.
(e) Litigation. There are no actions, suits, claims, investigations or
legal, administrative or arbitration proceedings pending or, to the knowledge of
THI or the THI Shareholder, threatened against THI, whether at law or in equity,
or before or by any federal, state, municipal, local, foreign or other
governmental department, commission, board, bureau, agency or instrumentality,
nor does THI or the THI Shareholder know of any basis for any such action, suit,
claim, investigation or proceeding.
(f) Compliance: Governmental Authorizations. THI has complied in all
material respects with all federal, state, local or foreign laws, ordinances,
regulations and orders applicable to its business, including without limitation,
federal and state securities, banking collection and consumer protection laws
and regulations that, if not complied with, would materially and adversely
affect its businesses. THI has all federal, state, local and foreign
governmental licenses and permits necessary for the conduct of its business.
Such licenses and permits are in full force and effect. THI does not know of any
violations of any such licenses or permits. No proceedings are pending or
threatened to revoke or limit the use of such licenses or permits.
(g) Due Organization. THI is a corporation duly organized and validly
existing; its status is active; it is qualified to do business and in good
standing in each state where the property owned, leased or operated, or the
business conducted, by it requires such qualification and where failure to so
qualify would have a material adverse effect on its financial condition,
properties, business or results of operations. THI has the power to own its
properties and assets and to carry on its business as now presently conducted.
True and complete copies of the Articles of Incorporation and Bylaws of THI have
been heretofore delivered to SHI.
(h) Tax Matters. As a newly-formed entity, THI has not yet filed any
federal, state and local tax or related returns and reports. There are no tax
liens with respect to any properties owned by THI.
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(i) Agreements. Other than the THI Acquisition Agreement, this
Agreement and any related agreements, THI has no material agreements, and there
is no act that (alone or with the happening or occurrence of any other event)
would constitute a material default by THI under any such agreements. Neither
THI nor the THI Stockholder have knowledge of any material default by the other
parties to such agreements.
(j) Title to Property and Related Matters. THI has good and marketable
title to all of its properties, interests in properties and assets, real,
personal and mixed, owned by it at the date of this Agreement, of any kind or
character, free and clear of any liens or encumbrances, except for liens for
current taxes not yet delinquent.
(k) Licenses; Trademarks; Trade Names. THI does not have nor does it
own any licenses, trademarks, trade names, service marks (other than the common
law rights to the ownership and use of the names "Brunswick Capital Partners,"
"InfoBase Direct Marketing Services, Inc." and any derivations thereof),
copyrights, patents or any applications for any of the foregoing that relate to
its businesses.
(l) Due Authorization. This Agreement has been duly authorized,
executed and delivered by THI and constitutes a valid and binding agreement of
THI, enforceable in accordance with its terms, except as such enforcement may be
limited by applicable bankruptcy, insolvency, moratorium, and other similar laws
relating to, limiting or affecting the enforcement of creditors rights generally
or by the application of equitable principles. Neither the execution and
delivery of this Agreement, nor the consummation of the transactions
contemplated hereby, nor compliance with any of the provisions hereof, will
violate in any material respect any order, writ, injunction or decree of any
court or governmental authority, or violate or conflict with in any material
respect or constitute a default under (or give rise to any right of termination,
cancellation or acceleration under), any provisions of THI's Articles of
Incorporation or Bylaws, the terms or conditions or provisions of any note,
bond, lease, mortgage, obligation, agreement, understanding, arrangement or
restriction of any kind to which THI is a party or by which THI or its
properties may be bound, or violate in any material respect any statute, law,
rule or regulation applicable to THI. No consent or approval by any governmental
authority is required in connection with the execution and delivery by THI of
this Agreement or the consummation of the transactions contemplated hereby.
(m) Capitalization. The authorized capitalization of THI consists of an
1,000,000 shares of common stock, par value $0.001 per share, of which 1,000
shares are issued and outstanding in favor of the THI Shareholder. All
outstanding securities have been duly authorized, validly issued, and are fully
paid and nonassessable, and all such securities were issued in compliance with
applicable federal and state securities laws and regulations. There are no
outstanding or presently authorized securities, warrants, preemptive rights,
subscription rights, options or related commitments or agreements of any nature
to issue any of THI's securities.
(n) Full Disclosure. THI has disclosed to SHI in the Exhibits or
Schedules to this Agreement or independently, or made available to SHI,
documents, books and records pertaining to, all events, conditions and facts
materially affecting the properties, business and prospects of THI that are
known to THI and the THI Shareholder. THI has not and will not have, at the
Closing Date, withheld disclosure or availability of any events,
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conditions and facts of which it may have knowledge and that may materially and
adversely affect the properties, businesses or prospects of THI.
(o) Brokerage Fees. THI has not incurred, and will not incur, any
liability for brokerage or finder's fees or similar charges in connection with
this Agreement.
(p) Share Ownership. The THI Shares to be surrendered in the Merger are
owned of record and beneficially, by the THI Shareholder, free and clear of all
liens and encumbrances of any kind and nature, and, to THI's knowledge, have not
been sold, pledged, assigned or otherwise transferred. There are no agreements
(other than this Agreement) to sell, pledge, assign or otherwise transfer such
securities.
(q) Obligation of the THI Shareholder. This Agreement constitutes the
valid and legally binding obligation of the THI Shareholder. Neither the
execution of this Agreement, nor the consummation of the transactions
contemplated hereby, will constitute in any material respect a violation of or
default under, or conflict in any material respect with, any judgment, decree,
statute or regulation of any governmental authority applicable to the THI
Shareholder or any contract, commitment, agreement or restriction of any kind to
which any of the THI Shareholder is a party or by which the THI Shareholder is
bound. The execution and delivery of this Agreement does not, and the
consummation of the transactions described herein will not, violate in any
material respect applicable law, or any mortgage, lien, agreement, indenture,
lease or understanding (whether oral or written) of any kind outstanding
relative to the THI Shareholder.
(r) Closing and Effect of THI Acquisition Agreement. Contemporaneous
herewith, THI and the THI Shareholder have effected the transfer to THI of the
THI Shareholder's interests in BCP and IDMS. The THI Shareholder acknowledges
and agrees that all representations, warranties and covenants set forth in the
THI Acquisition Agreement, and the indemnification provisions related thereto,
shall continue in full force and effect and to the benefit of SHI as if herein
made. Attached hereto as Exhibit "B" is a true and correct copy of the THI
Acquisition Agreement.
(s) Approvals Required. No approval, authorization, consent, order or
other action of, or filing with, any person, firm or corporation or any court,
administrative agency or other governmental authority is required in connection
with the execution and delivery by THI or the THI Shareholder of this Agreement
or the consummation of the transactions described herein, except to the extent
that THI or the THI Shareholder may be required to file reports in accordance
with relevant regulations under federal and state securities laws upon execution
of this Agreement or consummation of the transactions contemplated hereby.
4. Representations and Warranties of SHI and the SHI Shareholder. SHI
and the SHI Shareholder, as a material inducement to THI and the THI Shareholder
to enter into this Agreement and consummate the transactions contemplated
hereby, makes the following representations and warranties to THI and the THI
Shareholder, which representations and warranties are true and correct in all
material respects at this date:
(a) Shareholder of SHI. The SHI Shareholder is the sole owner, of
record and beneficially, of all the issued and outstanding shares of SHI's
capital stock.
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(b) Financial Statements. Attached hereto as Schedule 4(b) is a
consolidated pro forma balance sheet and income statement, unaudited, of the
Company and SHI as of December 30, 1999 (the "Company Financial Statements"),
giving effect to the closing of the SHI Acquisition Agreement whereby SHI will
acquire title to the Merger Stock. The Company Financial Statements and
financial information contained therein present fairly the financial condition
of the Company for the period covered (subject to normal year-end audit
adjustments which will not be material to the Company, taken as a whole, in
amount or effect), and are prepared in accordance with generally accepted
accounting principles, consistently applied. The books and records of the
Company and SHI, financial and otherwise, are in all material respects complete
and correct and have been maintained in accordance with good business and
accounting practices.
(c) Undisclosed Liabilities. SHI is newly formed, and has not engaged
in business other than to establish its operations. SHI does not have any
liabilities or obligations of any kind, whether known or unknown, or whether
absolute, accrued, contingent, matured or otherwise, whether due or to become
due except liabilities or obligations that arose in the ordinary course of
business in establishing such operations. Other than as set forth on the Company
Financial Statements or in public filings with the U.S. Securities and Exchange
Commission (the "Filings"), the Company does not have any material liabilities
or obligations of any kind, whether known or unknown, or whether absolute,
accrued, contingent, matured or otherwise, whether due or to become due, except
liabilities or obligations that arose in the ordinary course of business.
(d) Materially Adverse Change. Since the date of its formation, the
business of SHI has been operated in the ordinary course and there has been no
materially adverse change with respect thereto. Other than as set forth on the
Company Financial Statements or the Filings, there has been no material adverse
change in the business, the assets or the financial or other condition of the
Company, and there has not been:
(i) Any materially adverse change in the business, condition
(financial or otherwise), results of operations, prospects, properties, assets,
liabilities, earnings or net worth of the Company;
(ii) Any material damage, destruction or loss (whether or not
covered by insurance) affecting the Company or its respective assets, properties
or businesses;
(iii) Any declaration, setting aside or payment of any
dividend or other distribution in respect of any shares of the capital stock of
the Company, or any direct or indirect redemption, purchase or other acquisition
of any such stock or any agreement to do so;
(iv) Any issuance or sale by the Company, or agreement by the
Company, to sell or pledge any of its securities, nor have any irrevocable
proxies been given with respect to its securities;
(v) Any statute, rule, regulation or order adopted by any
governmental body, agency or authority (including orders of regulatory
authorities with jurisdiction over the Company) that materially and adversely
affects the Company or its business or financial conditions;
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(vi) Any material increase in the rate of compensation or in
bonus or commission payments payable or to become payable to any of the salaried
employees of the Company;
(vii) Any merger, consolidation, or reorganization, or any
amendment to the certificate of incorporation or bylaws of the Company,
provided, however, that the Company intends to file an amended and restated
certificate of incorporation to, among other things: change the name of the
Company from Shanecy, Inc. to Inc.ubator Capital, Inc.; increase the number of
authorized shares of capital stock from 20,000,000 shares to 100,000,000 shares;
authorize the issuance of "blank check" preferred stock and a series of
preferred stock identified as the Series A Preferred Stock; eliminate cumulative
voting for the election of directors; and classify its board of directors into
three classes; or
(vii) Any other events or conditions of any character that may
reasonably be expected to have a materially adverse effect on the Company or its
business or financial condition.
(e) Litigation. There are no actions, suits, claims, investigations or
legal, administrative or arbitration proceedings pending or, to the knowledge of
SHI or the SHI Shareholder, threatened against SHI or the SHI Shareholder,
whether at law or in equity, or before or by any federal, state, municipal,
local, foreign or other governmental department, commission, board, bureau,
agency or instrumentality, nor does SHI or the SHI Shareholder know of any basis
for any such action, suit, claim, investigation or proceeding.
(f) Compliance: Governmental Authorizations. SHI and the SHI
Shareholder have each complied in all material respects with all federal, state,
local or foreign laws, ordinances, regulations and orders applicable to its
business, including without limitation, federal and state securities, banking
collection and consumer protection laws and regulations that, if not complied
with, would materially and adversely affect its businesses. SHI and the SHI
Shareholder have all federal, state, local and foreign governmental licenses and
permits necessary for the conduct of their respective businesses. Such licenses
and permits are in full force and effect. Neither SHI nor the SHI Shareholder
knows of any violations of any such licenses or permits. No proceedings are
pending or threatened to revoke or limit the use of such licenses or permits.
(g) Due Organization. Each of SHI and the SHI Shareholder is a
corporation duly organized and validly existing; its status is active; it is
qualified to do business and in good standing in each state where the property
owned, leased or operated, or the business conducted, by it requires such
qualification and where failure to so qualify would have a material adverse
effect on its financial condition, properties, business or results of
operations. Each of SHI and the SHI Shareholder has the power to own its
properties and assets and to carry on its business as now presently conducted.
True and complete copies of the Articles of Incorporation and Bylaws of SHI and
the SHI Shareholder have been heretofore delivered to THI.
(h) Tax Matters. As a newly-formed entity, SHI has not yet filed any
federal, state and local tax or related returns and reports. There are no tax
liens with respect to
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any properties owned by SHI. With respect to the SHI Shareholder, it has made
all requisite federal, state and local tax filings, or sought appropriate
extensions therefor. No taxing authority has asserted any claim that could
result in the imposition of any tax for which the SHI Shareholder is or may be
liable that could have a material adverse effect upon the business or prospects
of the SHI Shareholder. There is no pending proceeding relating to any tax for
which the SHI Shareholder is or may be liable or that could materially adversely
affect any tax liability of the SHI Shareholder and, to the best its knowledge,
no such proceeding is contemplated.
(i) Agreements. Other than the SHI Acquisition Agreement, this
Agreement or any agreements referred to in the Company Financial Statements or
the Filings, neither SHI nor the SHI Shareholder has any material agreements,
and there is no act that (alone or with the happening or occurrence of any other
event) would constitute a material default by either SHI or the SHI Shareholder
under any such agreements. Neither SHI nor the SHI Stockholder have knowledge of
any material default by the other parties to such agreements.
(j) Title to Property and Related Matters. Each of SHI and the SHI
Shareholder has good and marketable title to all of its properties, interests in
properties and assets, real, personal and mixed, owned by it at the date of this
Agreement or to be acquired by it pursuant to the SHI Acquisition Agreement, of
any kind or character, free and clear of any liens or encumbrances, except for
liens for current taxes not yet delinquent.
(k) Licenses; Trademarks; Trade Names. SHI does not have nor does it
own any licenses, trademarks, trade names, service marks, copyrights, patents or
any applications for any of the foregoing that relate to its businesses.
(l) Due Authorization. This Agreement has been duly authorized,
executed and delivered by SHI and constitutes a valid and binding agreement of
SHI, enforceable in accordance with its terms, except as such enforcement may be
limited by applicable bankruptcy, insolvency, moratorium, and other similar laws
relating to, limiting or affecting the enforcement of creditors rights generally
or by the application of equitable principles. Neither the execution and
delivery of this Agreement, nor the consummation of the transactions
contemplated hereby, nor compliance with any of the provisions hereof, will
violate in any material respect any order, writ, injunction or decree of any
court or governmental authority, or violate or conflict with in any material
respect or constitute a default under (or give rise to any right of termination,
cancellation or acceleration under), any provisions of SHI's Articles of
Incorporation or Bylaws, the terms or conditions or provisions of any note,
bond, lease, mortgage, obligation, agreement, understanding, arrangement or
restriction of any kind to which SHI is a party or by which SHI or its
properties may be bound, or violate in any material respect any statute, law,
rule or regulation applicable to SHI. No consent or approval by any governmental
authority is required in connection with the execution and delivery by SHI of
this Agreement or the consummation of the transactions contemplated hereby.
(m) Capitalization of SHI. The authorized capitalization of SHI
consists of an 1,000,000 shares of common stock, par value $0.001 per share, of
which 1,000 shares are issued and outstanding in favor of the SHI Shareholder.
All outstanding securities have
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been duly authorized, validly issued, and are fully paid and nonassessable, and
all such securities were issued in compliance with applicable federal and state
securities laws and regulations. There are no outstanding or presently
authorized securities, warrants, preemptive rights, subscription rights, options
or related commitments or agreements of any nature to issue any of SHI's
securities.
(n) Capitalization of SHI Shareholder. The entire authorized capital of
the SHI Shareholder currently consists of 20,000,000 shares of common stock, par
value $0.001. All such securities are duly authorized, of which 17,990,000
shares of common stock are currently outstanding, all of which are validly
issued, fully paid and nonassessable. No shares of preferred stock have been
authorized and issued but the SHI Shareholder has agreed to seek shareholder
approval of the amendment of its articles of incorporation to permit the
issuance of preferred stock, and otherwise as described in Section 4(d)(vii)
above. The Merger Stock will be, at the time of issuance, duly authorized,
validly issued, fully paid and non-assessable, and free and clear of all liens,
claims and encumbrances whatsoever. Other than as set forth in the Filings, none
of the securities of the SHI Shareholder are reserved for issuance, and there
are no agreements, commitments or arrangements providing for the issuance or
sale of any capital stock or other interest of the SHI Shareholder, or any
issued or outstanding options, warrants or rights to purchase, or any security
or instrument convertible into or exchangeable for, any capital stock or other
interest of the SHI Shareholder.
(o) Full Disclosure. SHI and the SHI Shareholder have disclosed to THI
in the Exhibits or Schedules to this Agreement or independently, or made
available to THI, documents, books and records pertaining to, all events,
conditions and facts materially affecting the properties, business and prospects
of SHI that are known to SHI and the SHI Shareholder. SHI and the SHI
Shareholder have not withheld disclosure or availability of any events,
conditions and facts of which either of them may have knowledge and that may
materially and adversely affect the properties, businesses or prospects of SHI
or the SHI Shareholder.
(p) Brokerage Fees. SHI has not incurred, and will not incur, any
liability for brokerage or finder's fees or similar charges in connection with
this Agreement.
(q) Obligation of the SHI Shareholder. This Agreement constitutes the
valid and legally binding obligation of the SHI Shareholder. Neither the
execution of this Agreement, nor the consummation of the transactions
contemplated hereby, will constitute in any material respect a violation of or
default under, or conflict in any material respect with, any judgment, decree,
statute or regulation of any governmental authority applicable to the SHI
Shareholder or any contract, commitment, agreement or restriction of any kind to
which any of the SHI Shareholder is a party or by which the SHI Shareholder is
bound. The execution and delivery of this Agreement does not, and the
consummation of the transactions described herein will not, violate in any
material respect applicable law, or any mortgage, lien, agreement, indenture,
lease or understanding (whether oral or written) of any kind outstanding
relative to the SHI Shareholder.
(r) Closing and Effect of SHI Acquisition Agreement. Contemporaneous
herewith, SHI and the SHI Shareholder have enter into the SHI Acquisition
Agreement,
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whereby SHI shall acquire the Merger Stock, and SHI and the SHI Shareholder
shall move promptly to consummate such transaction. The SHI Shareholder
acknowledges and agrees that all representations, warranties and covenants set
forth in the SHI Acquisition Agreement, and the indemnification provisions
related thereto, shall continue in full force and effect and to the benefit of
SHI as if herein made. Attached hereto as Exhibit "C" is a true and correct copy
of the SHI Acquisition Agreement. In the event that the acquisition of the
Merger Stock has not been consummated on or before February 29, 2000, SHI and
the SHI Shareholder shall move promptly to dissolve SHI or take such other
appropriate action in order to secure the return of all assets originally the
property of THI to THI.
(s) Approvals Required. No approval, authorization, consent, order or
other action of, or filing with, any person, firm or corporation or any court,
administrative agency or other governmental authority is required in connection
with the execution and delivery by SHI or the SHI Shareholder of this Agreement
or the consummation of the transactions described herein, except to the extent
that SHI or the SHI Shareholder may be required to file reports in accordance
with relevant regulations under federal and state securities laws upon execution
of this Agreement or consummation of the transactions contemplated hereby.
5. Exchange of Documentation. Upon the execution of this Agreement,
THI, the THI Shareholder, SHI and the SHI Shareholder shall exchange the
following documentation:
(a) THI and the THI Shareholder. THI and the THI Shareholder shall
deliver to SHI and the SHI Shareholder: (i) the certificate(s) evidencing the
THI Shares; (ii) evidence of due authorization and approval by the Board of
Directors and Shareholder of THI of the execution of this Agreement and the
Merger contemplated thereby; (iii) all of the Exhibits and Schedules required
herein, and copies of the documents referred to therein, in form reasonably
acceptable to SHI; and (iv) from the THI Shareholder, an "investment letter"
agreeing that the shares of the Merger Stock are being acquired for investment
purposes only and not with a view to public resale or distribution in violation
of any applicable securities laws, substantially in the form of Exhibit "D"
attached hereto.
(b) SHI and SHI Shareholder. SHI and the SHI Shareholder shall deliver
to THI and the THI Shareholder: (i) evidence of due authorization and approval
by the Board of Directors and Shareholder of SHI of the execution of this
Agreement and the Merger contemplated thereby; (ii) all of the Exhibits and
Schedules required herein, and copies of the documents referred to therein, in
form reasonably acceptable to THI.
Upon the closing of the transactions contemplated by the SHI Acquisition
Agreement, the SHI Shareholder shall deliver the certificate(s) evidencing the
Merger Stock to the THI Shareholder.
6. Nature of Representations and Warranties. All of the parties hereto
are executing and carrying out the provisions of this Agreement in reliance on
the representations, warranties, covenants and agreements contained in this
Agreement, and
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any investigation that they might have made or any other representations,
warranties, covenants, agreements, promises or information, written or oral,
made by the other party or parties or any other person shall not be deemed a
waiver of any breach of any such representation, warranty, covenant or
agreement. In the event of any breach of representation, warranty, covenant or
agreement hereunder, or of any loss, cost, damage or expense otherwise sustained
or alleged to have been sustained by any party hereto, the indemnification
provisions of the THI Acquisition Agreement or the SHI Acquisition Agreement
(determined by that agreement providing the basis for relief pursuant to
Sections 3(r) and 4(q), as the case may be) shall govern the resolution of any
such issue.
7. Miscellaneous.
(a) Notices. All notices or other communications required or permitted
hereunder shall be in writing and shall be deemed to have been duly given if
delivered in person or sent by overnight delivery, confirmed telecopy or prepaid
first class registered or certified mail, return receipt requested, to the
addresses first set forth above, or such other addresses as are given to the
other parties to this Agreement in the manner set forth herein. Any such notices
shall be effective when delivered in person or sent by telecopy, one business
day after being sent by overnight delivery or three business days after being
sent by registered or certified mail. Any of the foregoing addresses may be
changed by giving notice of such change in the foregoing manner, except that
notices for changes of address shall be effective only upon receipt.
(b) Further Assurances. At any time, and from time to time, each party
will execute such additional instruments and take such further action as may be
reasonably requested by the other party to confirm or perfect title to any
property transferred hereunder or otherwise to carry out the intent and purposes
of this Agreement.
(c) Costs and Expenses. Each party hereto agrees to pay its own costs
and expenses incurred in negotiating this Agreement and consummating the
transactions described herein.
(d) Time. Time is of the essence.
(e) Survival of Representations. All covenants, agreements,
representations and warranties made herein shall continue in full force and
effect through all applicable statutes of limitation. All covenants and
agreements by or on behalf of the parties hereto that are contained or
incorporated in this Agreement shall bind and inure to the benefit of the
successors and assigns of all parties hereto.
(f) Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof. It
supersedes all prior negotiations, letters and understandings relating to the
subject matter hereof.
(g) Amendment. This Agreement may not be amended, supplemented or
modified in whole or in part except by an instrument in writing signed by the
party or parties against whom enforcement of any such amendment, supplement or
modification is sought.
(g) Assignment. This Agreement may not be assigned by any party hereto
without the prior written consent of the other party.
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(h) Choice of Law. This Agreement shall be interpreted, construed and
enforced in accordance with the laws of the State of Nevada, without regard to
any applicable conflicts of law provisions.
(i) Headings. The section and subsection headings in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this agreement.
(j) Pronouns. All pronouns and any variations thereof shall be deemed
to refer to the masculine, feminine, neuter, singular or plural as the context
may require.
(k) Number and Gender. Words used in this Agreement, regardless of the
number and gender specifically used, shall be deemed and construed to include
any other number, singular or plural, and any other gender, masculine, feminine
or neuter, as the context indicates is appropriate.
(l) Construction. The parties hereto and their respective legal counsel
participated in the preparation of this Agreement; therefore, this Agreement
shall be construed neither against nor in favor of any of the parties hereto,
but rather in accordance with the fair meaning thereof.
(m) Effect of Waiver. The failure of any party at any time or times to
require performance of any provision of this Agreement will in no manner affect
the right to enforce the same. The waiver by any party of any breach of any
provision of this Agreement will not be construed to be a waiver by any such
party of any succeeding breach of that provision or a waiver by such party of
any breach of any other provision.
(n) Severability. The invalidity, illegality or unenforceability of any
provision or provisions of this Agreement will not affect any other provision of
this Agreement, which will remain in full force and effect, nor will the
invalidity, illegality or unenforceability of a portion of any provision of this
Agreement affect the balance of such provision. In the event that any one or
more of the provisions contained in this Agreement or any portion thereof shall
for any reason be held to be invalid, illegal or unenforceable in any respect,
this Agreement shall be reformed, construed and enforced as if such invalid,
illegal or unenforceable provision had never been contained herein.
(o) Enforcement. Should it become necessary for any party to institute
legal action to enforce the terms and conditions of this Agreement, the
successful party will be awarded reasonable attorneys' fees at all trial and
appellate levels, expenses and costs. Any suit, action or proceeding with
respect to this Agreement shall be brought before a single arbitrator pursuant
to the Commercial Arbitration Rules of the American Arbitration Association in
Las Vegas, Nevada.
(p) Remedy. The parties hereto acknowledge and agree that any party's
remedy at law for a breach or threatened breach of any of the provisions of this
Agreement would be inadequate and such breach or threatened breach shall be per
se deemed as causing irreparable harm to such party. Therefore, in the event of
such breach or threatened breach, the parties hereto agree that, in addition to
any available remedy at law, including but not limited to monetary damages, an
aggrieved party, without posting any bond, shall be entitled to obtain, and the
offending party agrees not to oppose the aggrieved party's request for,
equitable relief in the form of specific enforcement, temporary restraining
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order, temporary or permanent injunction, or any other equitable remedy that may
then be available to the aggrieved party.
(q) Binding Nature. This Agreement will be binding upon and will inure
to the benefit of any successor or successors of the parties hereto.
(r) No Third-Party Beneficiaries. No person shall be deemed to possess
any third-party beneficiary right pursuant to this Agreement. It is the intent
of the parties hereto that no direct benefit to any third party is intended or
implied by the execution of this Agreement.
(s) Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all of which together
will constitute one and the same instrument.
(t) Facsimile Signature. This Agreement may be executed and accepted by
facsimile signature and any such signature shall be of the same force and effect
as an original signature.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
THESSEUS HOLDINGS, INC. SHANECY HOLDINGS, INC.
By: By:
----------------------------- ----------------------------
Xxxxx Xxxxxx Xxxxx Xxxxxxx
Its President Its President
THESSEUS INTERNATIONAL SHANECY, INC.
ASSET FUND N.V.
By: By:
----------------------------- ----------------------------
Xxxxx Xxxxxx Xxxxx Xxxxxxx
Its President Its President
ATTACHMENTS:
Exhibit "A" Articles of Merger
Exhibit "B" THI Acquisition Agreement
Exhibit "C" SHI Acquisition Agreement
Exhibit "D" Investment Letter
Schedule 3(b) THI Financial Statements
Schedule 4(b) Company Financial Statements
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