PLAN OF MERGER
OAK BROOK CAPITAL I, INC.
AND
AGTECH ENVIRONMENTAL, INC.
THIS PLAN AND AGREEMENT OF MERGER (hereinafter called "this Agreement"),
dated as of September 13, 1999, is by and between OAK BROOK CAPITAL I, INC., a
Colorado corporation (hereinafter referred to as "Oak Brook" and/or "Surviving
Corporation"), and AGTECH ENVIRONMENTAL, INC., a Delaware corporation
(hereinafter called "AgTech" and/or "Disappearing Corporation"), said
corporations being hereafter sometimes collectively referred to as the
"Constituent Corporations", and Xxxx X. Xxxxxxxx ("Xxxxxxxx"), and Xxxxxx
Xxxxxx ("Xxxxxx").
WITNESSETH:
WHEREAS, Oak Brook is a corporation duly organized and existing under the
laws of the State of Colorado, having been incorporated in 1998, and AgTech
is a corporation duly organized and existing under the laws of the State of
Delaware, having been incorporated in 1998; and
WHEREAS, the authorized capital stock of Oak Brook consists of FORTY
MILLION (40,000,000) shares of no par value Common Stock, of which ONE MILLION
TWO HUNDRED TWENTY-EIGHT THOUSAND (1,228,000) shares are issued and
outstanding, and TEN MILLION (10,000,000) shares of Preferred Stock, $100.00
par value, of which ZERO (0) shares are issued and outstanding; and
WHEREAS, the authorized capital stock of AgTech consists of (i) NINE
MILLION (9,000,000) shares of Class A Common Stock, $0.01 par value, of which
THREE MILLION EIGHT HUNDRED EIGHTY-FIVE THOUSAND THREE HUNDRED FIFTY-SEVEN
(3,885,357) shares are issued and outstanding; (ii) EIGHTEEN MILLION
(18,000,000) shares of Class B Common Stock, $0.01 par value of which THREE
MILLION FIVE HUNDRED FORTY THOUSAND (3,540,000) shares are issued and
outstanding; and (iii) SIX MILLION (6,000,000) shares of Class C Common Stock,
$0.01 par value, of which FOUR MILLION EIGHT HUNDRED TWENTY-FOUR
THOUSAND ONE
HUNDRED (4,824,100) shares are issued and outstanding; and
WHEREAS, the Boards of Directors of the Constituent Corporations deem it
advisable for the general welfare and advantage of the Constituent
Corporations and their respective shareholders that the Constituent
Corporations merge pursuant to this Agreement and pursuant to the applicable
provisions of the laws of the States of Colorado and Delaware; and
WHEREAS, Xxxxxx and Xxxxxxxx each own 552,600 shares of the issued and
outstanding common stock of Oak Brook;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereby agree, in accordance with the
applicable provisions of the laws of the States of Colorado and Delaware, that
the Constituent Corporations shall merge, to wit: AgTech Environmental, Inc.,
a Delaware corporation, one of the Constituent Corporations, which is not a
new corporation, and which shall cease its existence under the laws of the
State of Delaware pursuant to the Merger (said corporation hereafter being
sometimes called the "Disappearing Corporation"), and the terms and conditions
of the Merger hereby agreed upon (hereafter called the "Merger") which the
parties covenant to observe, keep and perform and the mode of carrying the
same into effect are and shall be as hereafter set forth:
ARTICLE I
CONDITIONS
The Merger shall be subject to the following conditions:
(a)the approval of the boards of directors of both Constituent
Corporations;
(b)the approval of that number of shareholders of both Constituent
Corporations, as required by the by-laws, articles of incorporation, and/or
the law of the States of Colorado and Delaware, as applicable.
ARTICLE II
EFFECTIVE TIME OF THE MERGER
At the effective time of the Merger, the separate existence of AgTech
shall cease and Oak Brook shall become the surviving corporation.
Consummation of this Agreement shall be effected on the date on which a
Certificate and Articles of Merger in substantially the form annexed hereto
is filed in the office of the Secretaries of State of the State of Colorado and
State of Delaware, all after satisfaction of the respective requirements of
the applicable laws of each of said states prerequisite to such filings.
ARTICLE III
GOVERNING LAW; ARTICLES OF INCORPORATION
The laws which are to govern the Surviving Corporation are the laws of
the State of Colorado. The Articles of Incorporation of Oak Brook, as
heretofore amended, shall, prior to the effective time of the Merger, be
amended to the extent set forth in Paragraph Third of the Articles of Merger,
attached hereto, to amend the name of Oak Brook to AEI Environmental, Inc. As
so amended, such Articles of Incorporation shall remain in effect thereafter
until the same shall be further amended or altered in accordance with the
provisions thereof.
ARTICLE IV
BY-LAWS
The By-Laws of Oak Brook, at the effective time of the Merger shall be
the By-Laws of the Surviving Corporation until the same shall be altered or
amended in accordance with the provisions thereof.
ARTICLE V
DIRECTORS AND OFFICERS
1. Directors. On and after the Effective Date, the Directors of Oak
Brook at the effective time of the Merger shall be as set forth below, until
their respective successors are duly elected and qualified at the next annual
meeting of shareholders of Oak Brook. As of the effective time of the
Merger, the previous directors of Oak Brook shall resign.
The names and addresses of the Directors of the Surviving Corporation,
Oak Brook, are as follows:
Name Address
Xx XxXxxxxx 00000 Xxxxx Xxxxx Xxxxx, Xxxxxxxxx, XX
Xxxxxx X. Xxxx, Xx. X.X. Xxx 0000, Xxxxxxxxxx, XX
Xxxx Xxxxxxxx 000 X. Xxxxx Xxxxxx, Xxxxxxxx, XX
Xxxx Xxxxxxxx 000 Xxxxxxxxx Xxxx, Xxxxx X, Xxxxxxxx, XX
Xxxx X. Xxxx 000 X. Xxxxxxxx Xxxxxx, Xxxxxxxx, XX
2. Officers. The names, titles and addresses of the persons who,
upon the Effective Date, shall constitute the officers of Oak Brook, and who
shall hold office, subject to the By-Laws, until the first meeting of
directors following the next annual meeting of shareholders, are as follows:
Name Title Address
Xxxx Xxxxxxxx Chief Executive Officer 000 Xxxxxxxxx Xxxx, Xxxxx X
Xxxxxxxx, XX
Xxxx X. Xxxxxxxx Secretary; 000 X. Xxxxx Xx.
Xxxx Xxxxxxxx Xxxxxxxx, XX
ARTICLE VI
CONVERSION OF SHARES IN THE MERGER
The mode of carrying into effect the Merger provided in this Agreement,
and the manner and basis of converting the shares of the Constituent
Corporations into shares of the Surviving Corporation are as follows:
1. Oak Brook Common Stock. No Shares of Common Stock, no par value,
of Oak Brook issued and outstanding at the effective time of the Merger shall
be converted as a result of the Merger, and all of such shares shall remain
issued shares of Common Stock of the Surviving Corporation.
2. AgTech Common Stock. At the effective time of the Merger, (i)
each share of $0.01 par value Class A Common Stock of AgTech issued and
outstanding shall be converted into and become one (1) share of Common Stock
of the Surviving Corporation; (ii) each share of $0.01 par value Class B
Common Stock of AgTech issued and outstanding shall be converted into and
become 0.28249 shares of Common Stock of the Surviving Corporation; and (iii)
each share of $0.01 par value Class C Common Stock of AgTech issued and
outstanding shall be converted into and become two thirds (2/3) shares of
Common Stock of the Surviving Corporation. Each holder of outstanding Common
Stock of AgTech shall surrender shares of Common Stock of AgTech, regardless
of class, for shares of Oak Brook, upon the ratios set forth above. Upon
surrender to Oak Brook of one or more stock certificates for Common Stock of
AgTech, each AgTech shareholder shall be entitled to receive one or more stock
certificates for the full number of shares of Common Stock of Oak Brook into
which the Common Stock of AgTech so surrendered shall have been converted as
aforesaid together with any dividends on the Common Stock of AgTech as to
which the payment date shall have occurred on or prior to the date of the
surrender of said shares.
The common share allocation (the "Allocation") of the Surviving Corporation
will be as follows:
10,271,780 fully diluted, common shares of Oak Brook will be issued and
outstanding, inclusive of:
Option Holders of Class B Common Stock in AgTech who may exercise and
purchase up to NINE HUNDRED FORTY-TWO THOUSAND THREE HUNDRED
FIFTY-NINE (942,359) shares of Oak Brook
AgTech shareholders will own approximately 97.44% of the 10,271,780 fully
diluted, common shares of Oak Brook issued and outstanding, inclusive of the
shares to be transferred pursuant to Section 8 hereof.
3. Surrender of AgTech's Certificates. As soon as practicable after
the Merger becomes effective, the Stock Certificates representing Common Stock
of AgTech issued and outstanding at the time the Merger becomes effective
shall be surrendered for exchange to the Surviving Corporation as above
provided. Until so surrendered for exchange, each such Stock Certificate
nominally representing Common Stock of AgTech shall be deemed for all
corporate purposes (except for the payment of dividends, which shall be
subject to the exchange of stock certificates as above provided) to evidence
the ownership of the number of shares of Common Stock of the Surviving
Corporation which the holder thereof would be entitled to receive upon its
surrender to the Surviving Corporation.
4. Issuance of Shares Subsequent to Merger. As soon as practicable
after the Merger becomes effective, the Surviving Corporation shall issue to
the shareholders of the Disappearing Corporation, on the basis set forth in
Section 2 above, the necessary shares of Common Stock in the Surviving
Corporation. Xxxxxxxx and Xxxxxx agree to personally cause such action to be
taken by the Surviving Corporation.
5. Fractional Interests. No fractional shares of Common Stock of
the Surviving Corporation or certificate or scrip representing the same shall
be issued. In lieu thereof each holder of AgTech Common Stock having a
fractional interest arising upon such conversion will be rounded up into one
full additional share of Common Stock of the Surviving Corporation by the
transfer agent.
6. Status of Common Stock. All shares of Common Stock of the
Surviving Corporation into which shares of Common Stock of AgTech are
converted as herein provided shall be fully paid and non-assessable and shall
be issued in full satisfaction of all rights pertaining to such shares of
Common Stock of AgTech.
7. Independent Appraisal, Right to Dissent and Obtain Payment for
Shares; Procedures for Protection of Dissenter's Rights. In order to establish
a "fair value" for the shares of AgTech Common Stock which are paid in cash
in lieu of conversion into Oak Brook Common Stock, as provided above in this
Article VI, the Board of Directors of AgTech shall establish the value of
AgTech's stock prior to the Merger, and shall afford to such shareholders of
AgTech all of the rights, and implement the procedures for protection of
dissenters' rights, pursuant to the provisions of the Delaware General
Corporation Law, Section 262, et seq., as amended, the terms and provisions
of which are hereby incorporated by reference and made a part hereof.
8. Shares of Xxxxxx and Xxxxxxxx. Xxxxxx and Xxxxxxxx agree to cause
nine hundred sixty-five thousand two hundred (965,200) shares of Oak Brook
owned by them to be transferred to such person or persons as AgTech shall
direct in writing within sixty (60) days following the effective time of the
Merger.
ARTICLE VII
EFFECT OF THE MERGER
At the effective time of the Merger, the Surviving Corporation shall
succeed to, without other transfer, and shall possess and enjoy, all the
rights, privileges, immunities, powers and franchises both of a public and a
private nature, and be subject to all the restrictions, disabilities and
duties of the Disappearing Corporation, and all the rights, privileges,
immunities, powers and franchises of the Disappearing Corporation on whatever
account, for stock subscriptions as well as for all other things in action or
belonging to the Disappearing Corporation, shall be vested in the Surviving
Corporation; and all property, rights, privileges, immunities, powers and
franchises, and all and every other interest shall be thereafter as
effectually the property of the Surviving Corporation as if it was the
Disappearing Corporation, and the title to any real estate vested by deed or
otherwise in the Disappearing Corporation shall not revert or be in any way
impaired by reason of the Merger; provided, however, that all rights of
creditors and all liens upon any property of either of said Constituent
Corporations shall be preserved unimpaired, limited in lien to the property
affected by such liens at the effective time of the Merger.
ARTICLE VIII
ACCOUNTING MATTERS
The assets and liabilities of the Disappearing Corporation as at the
effective time of the Merger shall be taken up on the books of the Surviving
Corporation at the amounts they are carried at that time on the books of the
Surviving Corporation. The amount of capital of the Surviving Corporation
after the Merger shall be equal to the sum of the aggregate stated and paid-in
capital of the Disappearing Corporation and of the aggregate amount of the
stated and paid-in capital of the Surviving Corporation. The surplus of the
Surviving Corporation after the Merger, including any surplus arising in the
Merger, shall be available to be used for any legal purposes for which
surplus may be used.
ARTICLE IX
SHAREHOLDER APPROVAL;
FILING OF CERTIFICATE AND ARTICLES OF MERGER
This Agreement shall be submitted to the shareholders of each of the
Constituent Corporations for approval. If such requisite shareholder approval
is obtained, Articles of Merger in substantially the form annexed hereto as
Exhibit A shall be signed, verified and delivered to the Secretary of State
of the State of Colorado as provided by Section 0-000-000 of the Colorado
Business Corporation Act., and a Certificate of Merger in substantially the
form annexed hereto as Exhibit B shall be signed, verified and delivered to
the Secretary of State of the State of Delaware as provided by Section 252 of
Delaware General Corporation Law.
ARTICLE X
OAK BROOK REPRESENTATIONS AND WARRANTIES
Oak Brook, Werner and Xxxxxxxx, jointly and severally, represent and
warrant to AgTech, as follows:
1. Organization, Etc. Oak Brook is a corporation duly organized,
validly existing and in good standing under the laws of the State of Colorado.
Oak Brook has corporate power to carry on its business as it is now being
conducted and is qualified to do business in every jurisdiction in which the
character and location of the assets owned by it or the nature of the
business transacted by it require qualification.
2. Capitalization. Oak Brook's capitalization consists of FORTY
MILLION (40,000,000) authorized shares, no par value Common Stock, of which
ONE MILLION TWO HUNDRED TWENTY-EIGHT THOUSAND (1,228,000) shares are
outstanding, and TEN MILLION (10,000,000) shares of Preferred Stock, $100.00
par value, of which ZERO (0) shares are outstanding as of the date hereof.
Each issued share is validly issued, fully paid, non-assessable and each
outstanding share is entitled to one vote.
3. List of Information. Oak Brook has delivered to AgTech a list of
information concerning Oak Brook and its subsidiaries dated the date hereof.
The information set forth in such list and the copies of documents referred
to in such list and furnished to AgTech are complete and accurate.
4. Further Warranties and Representations:
(a) Oak Brook has and on the closing date will have good and marketable
title to all tangible/intangible assets in its records and books of account,
free and clear of all liens, encumbrances and charges and except for current
taxes and assessments not delinquent and liens, encumbrances and charges shown
in its records and books of account which are not substantial in character or
amount, and do not materially detract from the value or interfere with the
use of properties subject thereto or affected thereby.
(b) Oak Brook has and on the closing date will have good and marketable
title to the machinery, equipment, merchandise, materials, supplies and other
property of every kind, tangible or intangible, or shown as assets in its
records and books of account, free and clear of all liens, encumbrances and
charges and except for liens, encumbrances and charges, in any, which do not
materially detract from the value of or interfere with the use of the
properties subject thereto or affected thereby.
(c) There are no pending claims, all taxes imposed by the U.S. or by any
foreign country or by any state, municipality, subdivision or instrumentality
of the U.S. or of any foreign county or by any other taxing authority, which
are due or payable by Oak Brook, and all price redetermination or
renegotiation claims asserted or that may be asserted against it, have been
paid in full or are adequately provided for by reserves shown in the records
and books of account of Oak Brook's and will be so paid or provided for on
the closing date. Oak Brook has no knowledge of any unassessed tax deficiency
proposed or threatened against it.
(d) Except for agreements described in and appended to the Disclosure
Schedule, if any, none of which materially and adversely affects the earnings,
business, properties, or assets of Oak Brook, Oak Brook is not a party to:
(1)any sales agency agreement not subject to termination without
liability on notice of sixty (60) days or less;
(2)any pension, retirement or profit sharing plan or agreement not
cancelable within sixty (60) days without liability;
(3)any management or consultation agreement not terminable at will
without liability;
(4)any union agreement or loan agreement;
(5)any contract, accepted order or commitment for the purchase of
materials, products or supplies having a total contract price in excess of
$50,000; or
(6)any other agreement which materially affects the business,
properties or assets of Oak Brook's, or which was entered into other than in
the ordinary and usual course of business.
Adequate reserves will be provided and set up on the books of account of Oak
Brook, and will continue to be so provided and set up throughout the expansion
of the project, for any contract, order or commitment expected to be
performed.
(e) Oak Brook is enjoying and on the closing date will enjoy good
working relationships under all of the agreements, dealer, sales
representation and other agreements necessary to the normal operation of its
business. All or substantially all of the real and personal properties used
in the business of Oak Brook are and on the closing date will be in good and
operable condition. Oak Brook is adequately insured with respect to risks
normally insured against by companies similarly situated. The "Disclosure
Schedule" shall contain a list, and be accompanied by copies, of all existing
insurance policies of Oak Brook's, including but not limited to group
insurance and pension plans. All such policies are in full force and
effect.
(f) The Disclosure Schedule shall also contain a list of all claims for
insured losses filed by Oak Brook during the three (3) year period immediately
preceding the date of this Agreement, including but not limited to workmen's
compensation, automobile and general and product liability.
(g) Except for liabilities to be discharged at the closing of the
Merger, Oak Brook has no liabilities whether known, unknown or contingent.
5. Litigation and Proceedings. There is no suit, action or legal or
administrative proceeding pending, or to the knowledge of Oak Brook
threatened, against it or any of its consolidated subsidiaries, which, if
adversely determined, might materially and adversely affect the financial
condition of Oak Brook or the conduct of its businesses nor is there any
decree, injunction or order of any court, governmental department or agency
outstanding against Oak Brook or any of its consolidated subsidiaries having
any such effect.
6. Material Contracts. Oak Brook is not in default in any respect
under the terms of any material outstanding contract, agreement, lease or
other commitment.
7. No Conflict with Other Instruments. At the effective time of the
Merger, the consummation of the transactions contemplated by this Agreement
will not result in the breach of any term or provision of or constitute a
default under any indenture, mortgage, deed of trust or other material
agreement or instrument to which Oak Brook or any of its subsidiaries is a
party.
8. Governmental Authorizations. Oak Brook has all licenses,
franchises, permits and other governmental authorizations which are valid and
sufficient for all businesses presently carried on by Oak Brook and its
consolidated subsidiaries.
9. Exchange Act of 1934, Section 12 Reporting. Oak Brook has a class
of securities reported under Section 12(g) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), is (and covenants that, prior to the
Effective Date, it will remain) current in its reporting obligations under
Section 13, 14 and 15(d) of the Exchange Act, has timely filed all documents
required to be filed by it with the Securities and Exchange Commission and has
conducted (and covenants that, prior to the Effective Date, it will continue
to conduct) its operation according to its ordinary and usual course of
business consistent with its status as a reporting company under the Exchange
Act.
10. Absence of Certain Changes or Events. From January 1, 1999 to
the date hereof, there has not been:
(i) Any change in the corporate status, businesses, operations or
financial condition of Oak Brook, other than changes in the ordinary course
of business.
(ii) any declaration, setting aside or payment of any dividend or
other distribution with respect to Oak Brook's Common Stock; or any purchase,
redemption or acquisition of such stock by Oak Brook; and
(iii) any other event or condition of any character which has
materially and adversely affected the corporate status, businesses, operations
or financial condition of Oak Brook and its consolidated subsidiaries taken
as a whole.
11. Liabilities. Oak Brook covenants and agrees to discharge all of
its liabilities prior to closing of the transaction contemplated herein.
12. Financial Statements. Oak Brook has delivered to AgTech copies
of its audited consolidated balance sheet as at December 31, 1998, and related
statements of consolidated earnings and earnings retained in the business for
the fiscal year ended on such date, in each case including the notes thereto.
All of such financial statements are true and complete and have been prepared
in accordance with generally accepted accounting principles consistently
followed throughout the periods indicated, except as otherwise indicated in
the notes thereto. Each of such balance sheets presents a true and complete
statement as of its date of the corporation's financial condition and assets
and liabilities subject to year-end adjustments. Except as and to the extent
reflected or reserved against therein (including the notes thereto), Oak Brook
did not have, as of the date thereof, any liabilities or obligations (whether
accrued, absolute, contingent or otherwise) of a nature customarily reflected
in a consolidated corporate balance sheet or the notes thereto, prepared in
accordance with generally accepted accounting principles. Each of such
statements of earnings and earnings retained in the business presents a true
and complete statement of the results of operations of Oak Brook for the
period indicated.
13. Start Up. Oak Brook is a start up company and has had no sales,
has not conducted operations, and does not now have or ever had any debt for
borrowed funds, any inventory or employees.
14. S-8 Registration. Oak Brook shall have filed an S-8 Registration
for 140,000 shares of Common Stock issued pursuant to the 1998 Consultation
Services Agreement Plan of Oak Brook ("S-8 Registration"). The shares issued
pursuant to the S-8 Registration will be fully transferable in compliance
with the Securities Act of 1933.
ARTICLE XI
AGTECH'S REPRESENTATIONS AND WARRANTIES
AgTech represents and warrants to Oak Brook, as follows:
1. Organization. AgTech is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. AgTech
has corporate power to carry on its business as it is now being conducted and
is qualified to do business in every jurisdiction in which the character and
location of the assets owned by it or the nature of the business transacted
by it require qualification.
2. Capitalization. AgTech's capitalization consists of (i) NINE
MILLION (9,000,000) shares of Class A Common Stock, $0.01 par value, of which
THREE MILLION EIGHT HUNDRED EIGHTY-FIVE THOUSAND THREE HUNDRED FIFTY-SEVEN
(3,885,357) shares are outstanding; (ii) EIGHTEEN MILLION (18,000,000) shares
of Class B Common Stock, $0.01 par value of which THREE MILLION FIVE HUNDRED
FORTY THOUSAND (3,540,000) shares are outstanding; and (iii) SIX MILLION
(6,000,000) shares of Class C Common Stock, $0.01 par value, of which FOUR
MILLION EIGHT HUNDRED TWENTY-FOUR THOUSAND ONE HUNDRED (4,824,100) shares are
outstanding. Each issued share is validly issued, fully paid, non-assessable
and each outstanding share is entitled to one vote.
3. Shares to be Issued. At the effective time of the Merger, each
share of no par value Common Stock of AgTech shall be converted into and become
shares of Common Stock of the Surviving Corporation, pursuant to the conversion
terms of Article VI. Upon surrender to Oak Brook of one or more stock
certificates for Common Stock of Oak Brook, each AgTech shareholder shall be
entitled to receive one or more stock certificates for the full number of
shares of Common Stock of Oak Brook into which the Common Stock of AgTech so
surrendered shall have been converted as aforesaid together with any dividends
on the Common Stock of AgTech as to which the payment date shall have occurred
on or prior to the date of the surrender of said shares.
4. Financial Statements. AgTech has retained the services of an
independent certified public accounting firm known as Xxxxxx & Associates, of
Milwaukee, Wisconsin for the purpose of preparing audited financial
statements, including a balance sheet, consolidated statement of income and
statement of sources and uses of funds, for the period ending June 30, 1999.
APP agrees to deliver to Oak Brook on or before sixty (60) days from the date
of this Agreement a true and correct copy of the audit report for its period
ending June 30, 1999 as prepared by the independent certified public
accountants.
5. Further Warranties and Representations:
(a) AgTech has and on the closing date will have good and
marketable title to all tangible/intangible assets in its records and books of
account, free and clear of all liens, encumbrances and charges and except for
current taxes and assessments not delinquent and liens, encumbrances and
charges shown in its records and books of account which are not substantial
in character or amount, and do not materially detract from the value or
interfere with the use of properties subject thereto or affected thereby.
(b) AgTech has and on the closing date will have good and
marketable title to the machinery, equipment, merchandise, materials, supplies
and other property of every kind, tangible or intangible, or shown as assets
in its records and books of account, free and clear of all liens, encumbrances
and charges and except for liens, encumbrances and charges, in any, which do
not materially detract from the value of or interfere with the use of the
properties subject thereto or affected thereby.
(c) There are no pending claims, all taxes imposed by the U.S. or
by any foreign country or by any state, municipality, subdivision or
instrumentality of the U.S. or of any foreign country or by any other taxing
authority, which are due or payable by AgTech, and all price redetermination
or renegotiation claims asserted or that may be asserted against it, have been
paid in full or are adequately provided for by reserves shown in the records
and books of account of AgTech and will be so paid or provided for on the
closing date. AgTech has no knowledge of any unassessed tax deficiency
proposed or threatened against it.
(d) Except for agreement described in and appended to the
Disclosure Schedule, if any, none of which materially and adversely affects
the earnings, business, properties, or assets of AgTech, AgTech is not a
party to:
(1)any sales agency agreement not subject to termination
without liability on notice of sixty (60) days or less;
(2)any pension, retirement or profit sharing plan or agreement
not cancelable within sixty (60) days without liability; or
(3)any union agreement or loan agreement.
(e) AgTech is enjoying and on the closing date will continue to enjoy
good working relationships under all agreements, dealer, sales representation
and other agreements necessary to the normal operation of its business. All
or substantially all of the real and personal properties used in the business
of AgTech are and on the closing date will be in good and operable condition.
AgTech is adequately insured with respect to risks normally insured against
by companies similarly situated.
6. Litigation and Proceedings. There is no suit, action or legal or
administrative proceeding pending, or to the knowledge of AgTech threatened,
against it or any of its consolidated subsidiaries, which, if adversely
determined, might materially and adversely affect the financial condition of
AgTech and its consolidated subsidiaries or the conduct of their businesses
nor is there any decree, injunction or order of any court, governmental
department or agency outstanding against AgTech or any of its consolidated
subsidiaries having any such effect.
7. Material Contracts. AgTech is not in default in any material
respect under the terms of any material outstanding contract, agreement,
lease or other commitment.
8. No Conflict with Other Instruments. At the effective time of the
Merger, the consummation of the transactions contemplated by this Plan will
not result in the breach of any term or provision or constitute a default
under any indenture, mortgage, deed of trust or other material agreement or
instrument to which AgTech or any of its subsidiaries is a party.
9. Governmental Authorizations. AgTech and each of its consolidated
subsidiaries have all licenses, franchises, permits and other governmental
authorizations which are valid and sufficient for all businesses presently
carried on by AgTech and its consolidated subsidiaries.
10. Brokers. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried on by AgTech directly with
Xxxxx Xxxxxx and Xxxx Xxxxxxxx, and without the intervention of any other
person.
11. Covenants and Obligations of Breaching Party. Each party agrees
to indemnify and hold harmless the other party for and from all liability,
loss, cost, damage or expense, including reasonable attorneys fees and costs
of litigation, which the other party may sustain or incur or which the other
party may be threatened by reason of or arising out of any breach or any
untrue or misrepresented statement of fact contained in the warranties,
representations and agreements set forth in this Agreement, or any omission
therein of a material fact necessary to make the statements contained therein
accurate or the breach by a party of any representation made under or in
connection with this Agreement or the transactions contemplated hereby or the
nonfulfillment of any covenant or agreement on the part of the party under or
in connection with this Agreement or the transactions contemplated hereby.
The non-breaching party shall promptly notify the breaching party in writing
of any claims for indemnification and provide the breaching party the
opportunity to cure claims for indemnification or defend indemnifiable claims
by third parties at the expense of the breaching party.
12. Nature and Survival of Representations. All statements contained
in any certificate or other instrument delivered by or on behalf of either
party pursuant hereto, or in connection with the transactions contemplated
hereby, shall be deemed to be representations and warranties by such
disclosing party to the receiving party. All representations, warranties,
rights to indemnification and agreements made by each party in this
Agreement, or pursuant hereto, shall survive the closing.
ARTICLE XII
CONDUCT OF BUSINESSES PENDING THE MERGER
From and after the date of this Agreement and prior to the effective time
of the Merger, neither of the Constituent Corporations will, without the prior
written consent of the other:
1. Amend its Certificate of Incorporation or By-Laws except, in the
case as may be necessary to enable them to carry out the provisions of this
Agreement;
2. Engage in any material activity or transaction or incur any
material obligation (by contract or otherwise) except in the ordinary course
of business;
3. Issue rights or options to purchase or subscribe to any shares of
its capital stock or subdivide or otherwise change any such shares;
4. Issue or sell any shares of its capital stock or securities
convertible into shares of its capital stock; or
5. Declare or pay any dividends on or make any distributions in
respect of any shares of its capital stock.
6. From and after the date of this Agreement and prior to the
effective time of the Merger, AgTech will use its best efforts to preserve
its business organizations; to keep available to Oak Brook the services of
AgTech's present officers and employees; and to preserve for Oak Brook the
goodwill of AgTech's suppliers, customers and others having business relations
with any of them. During the same period, AgTech will not put into effect
any material increase in the compensation or other benefits applicable to
officers or other key personnel.
7. Oak Brook shall not engage in any business and will not enter
into any contracts or commitment, borrow any money or retain any employees.
ARTICLE XIII
ADDITIONAL AGREEMENTS
The Constituent Corporations further agree as follows:
1. Access and Information. Oak Brook and AgTech hereby agree that
each will give to the other and to the other's accountants, counsel and other
representatives full access during normal business hours throughout the period
prior to the Merger to all of its properties, books, contracts, commitments
and records, and that each will furnish the other during such period with all
such information concerning its affairs as such other party may reasonably
request. In the event of the termination of this Agreement each party will
deliver to the other all documents, work papers and other material obtained
from the other relating to the transactions contemplated hereby, whether so
obtained before or after the execution hereof, and will use its best efforts
to have any information so obtained and not heretofore made public kept
confidential.
2. Expenses. Upon a termination of this Agreement as provided in
Section C of Article XIV hereof, each party will pay all costs and expenses
of its performance of and compliance with all agreements and conditions
contained herein to be performed or complied with, including fees, expenses and
disbursements of its accountants and control.
3. Further Assurances. If at any time the Disappearing Corporation
shall consider or be advised that any further assignment or assurance in law
or other action is necessary or desirable to vest, perfect, or confirm, of
record or otherwise, in the Disappearing Corporation, the title to any
property or rights of AgTech acquired or to be acquired by or as a result of
the Merger, the proper officers and directors of Oak Brook and the
Disappearing Corporation, respectively, shall be and they hereby are severally
and fully authorized to execute and deliver such proper deeds, assignments and
assurances in law and take such other action as may be necessary or proper in
the name of Oak Brook or the Disappearing Corporation to vest, perfect or
confirm title to such property or rights in the Disappearing Corporation and
otherwise carry out the purposes of this Agreement.
ARTICLE XIV
CONDITIONS PRECEDENT; TERMINATION; GENERAL PROVISIONS
A. Conditions Precedent to AgTech's Obligations. The obligations of
AgTech to effect the Merger shall be subject to the following conditions
(which may be waived in writing by AgTech):
1. The representations and warranties of Oak Brook, Xxxxxxxx and
Xxxxxx herein contained shall be true as of and at the effective time of the
Merger with the same effect as though made at such time; Oak Brook, Xxxxxxxx
and Xxxxxx shall have performed all obligations and
complied with all covenants required by this Agreement to be performed or
complied with by them prior to the effective time of the Merger; and Oak Brook
shall have delivered to AgTech a certificate, dated the effective date of the
Merger and signed by its President or one of its Vice Presidents and its
Secretary or one of its Assistant Secretaries, to such effect.
2. No material changes in the corporate status, businesses,
operations or financial condition of Oak Brook, and its consolidated
subsidiaries shall have occurred since January 1, 1999 (whether or not covered
by insurance), other than changes in the ordinary course of business, none of
which has been materially adverse in relation to Oak Brook and its
subsidiaries, taken as a whole, and no other event or condition of any
character shall have occurred or arisen since that date which shall have
materially and adversely affected the corporate status, businesses, operations
or financial condition of Oak Brook, and its subsidiaries, taken as a whole.
3. AgTech shall have received such written consents and
confirmations (or opinions of counsel to the effect that such consents or
confirmations are not required), as it may reasonably request to the effect
that the Surviving Corporation will succeed upon consummation of the Merger to
all of AgTech's right, title and interest in and to its material contracts,
agreements, leases and other commitments and that the Surviving Corporation
shall possess and enjoy all material licenses, franchises, permits and other
governmental authorizations possessed by AgTech at the date hereof.
4. Oak Brook, acting through its Board of Directors, shall, subject
to and in accordance with applicable law and its Certificate of Incorporation
and its By-Laws, (i) promptly and duly call, give notice of, convene and hold
as soon as practicable a meeting of the holders of Oak Brook Common Stock for
the purpose of voting to approve and adopt this Agreement and the transactions
contemplated hereby, and (ii) recommend approval and adoption of this
Agreement and the transactions contemplated hereby, by the stockholders of the
Company and include the Proxy Statement such recommendations and (iii) take
all reasonable action to solicit and obtain such approval.
Oak Brook shall, as promptly, as practicable (or at such other time
as may be mutually agreed by Oak Brook and AgTech), cause the definitive
Proxy Statement to be mailed to the stockholders of Oak Brook.
As of the effective time of the Merger the Oak Brook stockholders
will have voted to approve and adopt this Agreement and the transactions
contemplated hereby and such vote has not been rescinded.
5. Oak Brook is a fully reporting company under the Exchange Act and
is in full compliance with the requirements of the Exchange Act.
6. The shares issued pursuant to the S-8 registration are fully
transferable in compliance with the Securities Act of 1933.
B. Conditions Precedent to Oak Brook's Obligations. The obligations
of Oak Brook to effect the Merger shall be subject to the following
conditions (which may be waived in writing by Oak Brook):
1. The representations and warranties of AgTech herein contained
shall be true as of and at the effective time of the Merger with the same
effect as though made at such time; AgTech shall have performed all
obligations and complied with all covenants required by this Agreement to be
performed or complied with by it prior to the effective time of the Merger;
and AgTech shall have delivered to Oak Brook a Certificate, dated the
effective date of the Merger; and signed by its Chairman of the Board and
President or one of its Vice Presidents and its Secretary or one of its
Assistant Secretaries, to such effect.
2. Oak Brook shall have received such written consents and
confirmations (or opinions of counsel to the effect that such consents or
confirmations are not required), as it may reasonably request to the effect
that the Surviving Corporation will succeed upon consummation of the Merger to
all of AgTech's right, title and interest in and to its material contracts,
agreements, leases and other commitments and that the Surviving Corporation
shall possess and enjoy all material licenses, franchises, permits and other
governmental authorizations possessed by Oak Brook at the date hereof.
3. The AgTech stockholders have voted to approve and adopt this
Agreement and the transactions contemplated hereby.
C. Termination and Abandonment. Anything herein or elsewhere to the
contrary notwithstanding, this Agreement may be terminated and abandoned at
any time before the effective time of the Merger, whether before or after
adoption or approval of this Agreement by the Directors of the Constituent
Corporations under any one or more of the following circumstances:
1. By the mutual consent of the Boards of Directors of the
Constituent Corporations;
2. By AgTech if, prior to the effective time of the Merger, each of
the conditions set forth in Paragraphs 1 through 5, inclusive, of Section A
of this Article XIV shall not have been met;
3. By Oak Brook if, prior to the effective time of the Merger, each
of the conditions set forth in Paragraphs 1 through 4 inclusive of Section B
of this Article XIV shall not have been met;
4. By either of the Constituent Corporations if any action or
proceeding before any court or other governmental body or agency shall have
been instituted or threatened to restrain or prohibit the Merger and such
Constituent Corporation deem it advisable to proceed with the Merger; or
5. By either of the Constituent Corporations if the Certificate of
Merger shall not have been filed as provided in Article II hereof on or before
September 30, 1999.
Upon any such termination and abandonment, neither party shall have any
liability or obligation hereunder to the other.
D. General. The headings in this Agreement shall not affect in
anyway its meaning or interpretation. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument. So long as the basic intent of the Merger is not obviated, in
the event that any provision of this Plan of Merger is held to be invalid or
illegal for any reason, such determination shall not effect the remaining
provisions which shall be construed and enforced as if such illegal or
invalid provision had never been included. All section headings, titles and
subtitles contained herein are inserted for convenience and reference only
and are to be ignored in any construction of the provisions hereof.
E. Amendments. Any of the terms or conditions of this Agreement may
be modified or waived at any time before the effective time of the Merger by
the party which is, or the shareholders of which are, entitled to the benefit
thereof upon the authority of the Board of Directors of such party, provided
that any such modification or waiver shall in the judgment of the party making
it not affect substantially or materially or adversely the benefits to such
party or its shareholders intended under this Agreement.
This Agreement has been signed by the Chairman or President of each of
the Constituent Corporations and attested by the signature of its Secretary
or an Assistant Secretary, all as of the day and year first above written.
OAK BROOK CAPITAL I, INC.,
a Colorado corporation
ATTEST:
/s/ Xxxxxx Xxxxxx /s/ Xxxx X. Xxxxxxxx
_____________________________ __________________________________
, Secretary Xxxx X. Xxxxxxxx, Chairman
AGTECH ENVIRONMENTAL, INC.,
a Delaware corporation:
ATTEST:
/s/ Xxxx X. Xxxxxxxx
_____________________________ __________________________________
Xxxx X. Xxxxxxxx, Vice Chairman
XXXXXXXX:
/s/ Xxxx X. Xxxxxxxx
__________________________________
Xxxx X. Xxxxxxxx
XXXXXX:
/s/ Xxxxxx Xxxxxx
__________________________________
Xxxxxx Xxxxxx
