AGREEMENT AND PLAN OF MERGER
AGREEMENT
AND PLAN OF MERGER
THIS
AGREEMENT AND PLAN OF MERGER (the “Agreement”)
is
entered into as of June 5, 2008, by and among Neuro-Hitech,
Inc.,
a
Delaware corporation (“Buyer”),
GKI
Acquisition Sub, Inc., a Delaware corporation (“Buyer
Sub”),
a
wholly-owned subsidiary of Buyer, GKI Acquisition Corporation, a Delaware
corporation (“GKI”)
and
Xxxxxxx X. Xxxx, Xxxxxxx Xxxxxxx and Xxxxxxx X. Xxxxx, the stockholders of
GKI
(the “Stockholders”).
RECITALS
WHEREAS,
Xxxxx Xxxxxxx owns all of the outstanding capital stock of MCR American
Pharmaceuticals, Inc., a Florida corporation (“MCR”),
and
AMBI Pharmaceuticals, Inc., a Florida corporation (“AMBI”
and
together with MCR, the “Companies”);
WHEREAS,
GKI and Xxxxx Xxxxxxx (“Xxxxxxx”)
previously entered into a Stock Purchase Agreement, dated June 5, 2007 (the
“Original
Agreement”),
between GKI and Xxxxxxx, pursuant to which GKI would acquire the stock of the
Companies;
WHEREAS,
GKI was formed expressly for the purpose of acquiring the Companies and has
engaged in no business since its formation other than negotiating the
acquisition of the Companies;
WHEREAS,
Buyer desires to acquire the Companies and is negotiating the amendment of
the
Original Agreement to enable the Buyer to purchase the Companies (the
“Companies’
Acquisition”);
WHEREAS,
in order to effect the Companies’ Acquisition by Buyer, prior to the closing of
the Companies’ Acquisition, Buyer Sub will merge (the “Merger”)
with
and into GKI and following the Merger, GKI shall be the surviving corporation
in
the Merger; and
WHEREAS,
the parties desire to make certain representations, warranties and agreements
in
connection with the Merger and to prescribe certain conditions to the
Merger.
NOW,
THEREFORE, in consideration of the foregoing and the representations,
warranties, covenants and agreements set forth in this Agreement, the parties
agree as follows:
1.
THE
MERGER
1.1 The
Merger.
At
the
Effective Time (as defined below), and subject to and upon the terms and
conditions of this Agreement and the applicable provisions of the Delaware
General Corporation Law (“Delaware
Law”),
Buyer
Sub shall be merged with and into GKI,
the
separate corporate existence of Buyer Sub shall cease, and GKI
shall
continue as the surviving corporation. GKI
as the
surviving corporation after the Merger is hereinafter sometimes referred to
as
the “Surviving
Corporation”
and
will be governed by the laws of the State of Delaware.
1.2 Effective
Time; Closing.
Subject
to the provisions of this Agreement, the parties hereto shall cause the Merger
to be consummated by filing a Certificate of Merger (“Certificate
of Merger”)
with
the Secretary of State of Delaware in accordance with the relevant provisions
of
Delaware Law (the time of such filing with the Secretary of State of Delaware
or
such later time as may be agreed in writing by GKI and Buyer and specified
in
Certificate of Merger, the “Effective
Time”)
as
soon as practicable on or after the date hereof.
1.3 Charter
Documents.
1.3.1 Certificates
of Incorporation and Formation.
At the
Effective Time, the certificate of incorporation of GKI, as in effect
immediately prior to the Effective Time, shall
be
the certificate of incorporation of the Surviving
Corporation.
1.3.2 Bylaws.
At the
Effective Time, the bylaws of GKI, as in effect immediately prior to the
Effective Time, shall be the bylaws of the Surviving Corporation.
1.4 Board
of Directors and Officers.
The
directors and corporate officers of Buyer Sub immediately prior to the Effective
Time, shall be the directors and corporate officers of the Surviving
Corporation.
1.5 Conversion
of Capital Stock.
At the
Effective Time, by virtue of the Merger, and without any action on the part
of
Buyer, Buyer Sub or GKI:
1.5.1 The
GKI
capital stock validly issued and outstanding prior to the Effective Time shall
be changed and converted into the number of shares of Buyer’s common stock
(“Buyer
Common Stock”)
set
forth on Exhibit
A.
(The
total number of shares of Buyer Common Stock issued pursuant to this
Section 1.5.1
shall be
referred to herein as the “Merger
Consideration”).
1.5.2 At
the
Effective Time, any shares of GKI capital stock held in the treasury of GKI
immediately prior to the Effective Time shall, by virtue of the Merger, be
canceled and retired and cease to exist as of the Effective Time and no
consideration shall be paid with respect thereto.
1.5.3 At
the
Effective Time, each share of Buyer Sub capital stock outstanding immediately
prior to the Effective Time will be changed and converted into an identical
outstanding share of the Surviving Corporation.
1.6 Exchange
of Certificates.
1.6.1 Concurrent
with the execution of this Agreement, the Stockholders will surrender stock
certificate(s) representing shares of GKI capital stock to Buyer. Until so
surrendered, such certificates will represent solely the right to receive the
Merger Consideration.
1.6.2 At
the
Effective Time, the stock transfer books of GKI will be closed and there will
not be any further registration of transfers of any shares of GKI’s capital
stock. If, at or after the Effective Time, certificates are presented to the
Surviving Corporation for transfer, they will be canceled and exchanged for
Merger Consideration.
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1.6.3 In
the
event GKI capital stock shall have been lost, stolen or destroyed, the Buyer
shall issue in exchange for such lost, stolen or destroyed GKI capital stock,
upon the making of an affidavit of that fact by the holder thereof, the amount
of Merger Consideration set forth opposite such Stockholder’s name on
Exhibit
A.
1.7 Further
Assurances.
GKI
agrees that if, at any time before or after the Effective Time, Buyer considers
or is advised that any further deeds, assignments or assurances are reasonably
necessary or desirable to vest, perfect or confirm in Buyer title to any
property or rights of GKI, Buyer and its proper officers and directors may
execute and deliver all such proper deeds, assignments and assurances and do
all
other things necessary or desirable to vest, perfect or confirm title to such
property or rights in Buyer and otherwise to carry out the purpose of this
Agreement, in the name of GKI or otherwise.
1.8 Securities
Law Issues.
1.8.1 Based
in
part on the representations of the Stockholders made in Section 2.11, the Buyer
Common Stock to be issued in the Merger will be issued pursuant to an exemption
from registration under Section 4(2) of the Securities Act of 1933, as amended
(the “Securities
Act”)
and/or
Rule 506 under Regulation D promulgated under the Securities Act and applicable
state securities laws.
1.8.2 The
shares of Buyer Common Stock will not have been registered and will be deemed
to
be “restricted securities” under federal securities laws and may not be resold
without registration under or exemption from the Securities Act. Each
certificate evidencing shares of Buyer Common Stock will bear the following
legend:
THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. SUCH SHARES MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION WITHOUT EXEMPTION UNDER THE
SECURITIES ACT OR AN OPINION OF LEGAL COUNSEL REASONABLY ACCEPTABLE TO
NEURO-HITECH, INC. THAT SUCH REGISTRATION IS NOT REQUIRED.
2.
REPRESENTATIONS
AND WARRANTIES OF GKI
AND THE STOCKHOLDERS
Except
as
set forth on the GKI Disclosure Letter (the “GKI
Disclosure Schedule”)
delivered to Buyer and Buyer Sub herewith, GKI and the Stockholders hereby
represent and warrant to Buyer and Buyer Sub as set forth in this Section 2.
2.1 Organization
and Good Standing.
GKI is
a corporation duly organized, validly existing and in good standing under the
laws of the state of its incorporation, has the corporate power and authority
to
carry on its business as now conducted and as proposed to be conducted. Other
than as set forth in Section 2.1 of the GKI Disclosure Schedule, GKI does not
own or lease any real property and has no employees.
3
2.2 Power,
Authorization and Validity.
2.2.1 Power
and Capacity.
GKI and
the Stockholders have the right, power, legal capacity and authority to enter
into and perform their obligations under this Agreement, and all agreements
to
which GKI or the Stockholders are or will be a party that are required to be
executed pursuant to this Agreement (the “GKI
Ancillary Agreements”).
The
execution, delivery and performance of this Agreement and the GKI Ancillary
Agreements have been duly and validly approved and authorized by GKI’s board of
directors and the Stockholders as required by applicable law and GKI’s
certificate of incorporation and bylaws.
2.2.2 No
Filings.
No
filing, authorization or approval, governmental or otherwise, is necessary
to
enable GKI to enter into, and to perform its obligations under, this Agreement
and the GKI Ancillary Agreements, except for (a) the filing of the Certificate
of Merger and (b) such filings as may be required to comply with federal and
state securities laws.
2.2.3 Binding
Obligation.
This
Agreement and the GKI Ancillary Agreements are, or when executed by GKI will
be,
valid and binding obligations of GKI and the Stockholders enforceable in
accordance with their respective terms; provided, however, that the Certificate
of Merger will not be effective until filed with the Delaware Secretary of
State.
2.3 Capitalization.
2.3.1 The
authorized capital stock of GKI consists of 1,000 shares of common stock, $1.00
par value per share, of which 1,000 shares are issued and outstanding and no
shares of preferred stock are issued or outstanding. The Stockholders hold
all
of the issued and outstanding GKI capital stock, and each of the Stockholders
holds good and marketable title to his GKI shares, free and clear of all liens,
agreements, voting trusts, proxies and other arrangements or restrictions of
any
kind whatsoever (other
than normal restrictions on transfer under applicable federal and state
securities laws).
All
issued and outstanding shares of GKI capital stock have been duly authorized
and
were validly issued, are fully paid and nonassessable, are not subject to any
right of rescission, are not subject to preemptive rights by statute, the
certificate of incorporation or bylaws of GKI, or any agreement or document
to
which GKI is a party or by which it is bound and have been offered, issued,
sold
and delivered by GKI in compliance with all registration or qualification
requirements (or applicable exemptions therefrom) of applicable federal and
state securities laws.
2.3.2 There
are
no existing (i) options, warrants, calls, preemptive rights, subscriptions
or other rights, convertible securities, agreements or commitments of any
character obligating GKI to issue, transfer or sell any shares of capital stock
or other equity interest in, GKI or securities convertible into or exchangeable
for such shares or equity interests, (ii) contractual obligations of GKI to
repurchase, redeem or otherwise acquire any capital stock of GKI or
(iii) voting trusts or similar agreements to which GKI or a Stockholder is
a party with respect to the voting of the capital stock of GKI.
4
2.4 Securityholder
Lists and Agreements.
2.4.1 Set
forth
on Section 2.4.1
of the
GKI Disclosure Schedule is a true, complete and correct list of all of the
Stockholders, showing the shares of GKI capital stock held by each such
Stockholder as of the date of this Agreement.
2.4.2 There
are
no agreements, written or oral, between GKI and any holder of its securities
or
among any holders of GKI’s securities relating to the acquisition (including
rights of first refusal, anti-dilution or pre-emptive rights), disposition,
registration under the Securities Act or voting of the capital stock of
GKI.
2.5 Subsidiaries.
GKI
does not have any subsidiaries or any interest, direct or indirect, in any
corporation, partnership, joint venture or other business entity.
2.6 No
Violation of Existing Agreements.
Neither
the execution and delivery of this Agreement nor any GKI Ancillary Agreement,
nor the consummation of the transactions contemplated hereby, will conflict
with, or (with or without notice or lapse of time, or both) result in a
termination, breach, impairment or violation of (a) any provision of the
certificate of incorporation or bylaws of GKI, as currently in effect,
(b) in any material respect, any material instrument or contract to which
GKI is a party or by which GKI is bound, or (c) any federal, state, local
or foreign judgment, writ, decree, order, statute, rule or regulation applicable
to GKI or its assets or properties. The
consummation of the Merger and the transfer to Buyer of all material rights,
licenses, franchises, leases and agreements of GKI will not require the consent
of any third party.
2.7 Litigation.
There
is no action, proceeding, claim or investigation pending against GKI. There
is
no reasonable basis for any security holder or former security holder of GKI,
or
any other person, firm, corporation, or entity, to assert a claim against
GKI.
2.8 Contracts
and Commitments.
Set
forth on Section 2.8 of the GKI Disclosure Schedule is a list of all of the
agreements, oral or written, to which GKI is a party. A copy of each agreement
or document listed on Section 2.8 of the GKI Disclosure Schedule has been
delivered to Buyer or Buyer’s counsel.
2.9 Compliance
with Laws.
GKI has
complied, and is in full compliance with all applicable laws, ordinances,
regulations, and rules, and all orders, writs, injunctions, awards, judgments,
and decrees applicable to it or to the assets, properties, and business
thereof.
2.10 No
Brokers.
Except
as set forth on Section 2.10 of the GKI’s Disclosure Schedule, neither GKI nor
any of its Stockholders is obligated for the payment of fees or expenses of
any
investment banker, broker or finder
2.11 Investment.
Each
Stockholder (A) understands that the Buyer Common Stock has not been, and will
not be, registered under the Securities Act or under any state securities laws,
and are being offered and sold in reliance upon federal and state exemptions
for
transactions not involving any public offering, (B) is acquiring the Buyer
Common Stock solely for his own account for investment purposes, and not with
a
view to the distribution thereof, (C) is a sophisticated investor with knowledge
and experience in business and financial matters, (D) has received certain
information concerning Buyer and has had the opportunity to obtain additional
information as desired in order to evaluate the merits and the risks inherent
in
holding the Buyer Common Stock, (E) is able to bear the economic risk and lack
of liquidity inherent in holding the Buyer Common Stock, and (F) is an
accredited investor as that term is defined in Regulation D promulgated under
the Securities Act.
5
2.12 Disclosure.
None of
the representations of GKI and the Stockholders in this Agreement, its exhibits
and schedules, nor any of the certificates or documents to be delivered by
GKI
to Buyer under this Agreement, taken together, contains any untrue statement
of
a material fact or omits to state any material fact necessary in order to make
the statements contained herein and therein, in light of the circumstances
under
which such statements were made, not misleading.
3.
REPRESENTATIONS
AND WARRANTIES OF BUYER
Except
as
set forth on the Buyer Disclosure Letter
delivered to GKI (the “Buyer
Disclosure Schedule”),
Buyer
hereby represents and warrants to GKI and the Stockholders, as set forth in
this
Section 3. Unless the context otherwise requires, references in this Section
3
to the “Buyer” shall include all of the Buyer’s direct and indirect
subsidiaries.
3.1 Organization
and Good Standing.
Buyer
is a corporation duly organized, validly existing and in good standing under
the
laws of the State of Delaware, and has the corporate power and authority to
own,
operate and lease its properties and to carry on its business as now conducted
and as proposed to be conducted.
3.2 Authorization
of Transaction.
Buyer
has full corporate power and authority to execute and deliver this Agreement
and
to perform its obligations hereunder. This Agreement constitutes the valid
and
legally binding obligation of Buyer, enforceable in accordance with its terms
and conditions. Buyer need not give any notice to, make any filing with, or
obtain any authorization, consent, or approval of any governmental authority
in
order to consummate the transactions
contemplated hereby.
3.3 Noncontravention.
The
execution and the delivery of this Agreement and the consummation of the
transactions contemplated hereby, do not and will not, with or without the
giving of notice or the passage of time or both, (A) violate any law to which
the Buyer is subject or any provision of its charter or bylaws or (B) conflict
with, result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate, terminate, modify,
or cancel, or require any notice under any agreement, contract, lease, license,
instrument, or other arrangement to which the Buyer is a party or by which
it is
bound or to which any of its assets is subject.
3.4 Capitalization.
3.4.1 The
authorized capital stock of the Buyer immediately after the Effective Time
and
after giving effect to the issuance of the Merger Consideration but prior to
the
closing of the Companies’ Acquisition is set forth on Section 3.4.1 of the
Buyer’s Disclosure Schedule.
3.4.2 All
of
the shares of Buyer Common Stock have been duly authorized and validly issued
and are fully paid and non-assessable. None of the Buyer Common Stock was issued
in violation of any preemptive rights or is subject to any preemptive rights
of
any person. No legend or other reference to any encumbrance appears upon any
certificate representing the shares of Buyer to be received by the Stockholders
as part of the Merger Consideration, except for customary legends with respect
to transfer
restrictions for restricted securities under federal and state securities
laws.
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3.4.3 Except
as
set forth on Section 3.4.3 of the Buyer’s Disclosure Schedule, there are no
outstanding options, warrants, agreements, conversion rights, preemptive rights
or other rights to subscribe for or purchase from the Buyer, or any plans,
contracts or commitments providing for the issuance of, or the granting of
rights to acquire, (i) any capital stock or other ownership interests of Buyer;
or (ii) any securities convertible into or exchangeable for any such capital
stock or other ownership interests. There are no outstanding contractual
obligations or plans of Buyer to transfer, issue, repurchase, redeem or
otherwise acquire any outstanding shares of capital stock or other ownership
interests of Buyer.
3.5 Buyer
Securities.
The
Merger Consideration shall be conveyed to the Stockholders free and clear of
all
liens (other than any transfer restrictions for restricted securities under
federal and state securities laws). Once issued in accordance with the terms
hereof, the Merger Consideration will be duly authorized, fully paid and
nonassessable.
3.6 Disclosure.
Buyer
is subject to, and in compliance with, the reporting requirements of Section
13
or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”).
Buyer
has made available to GKI through the XXXXX system true and complete
copies of Buyer’s annual report on Form 10-KSB for its fiscal year ended
December 31, 2007, its quarterly report on Form 10-Q for its fiscal quarter
ended March 31, 2008 and all other reports or documents required to be filed
by
Buyer pursuant to Section 13(a) or 15(d) of the Exchange Act since the filing
of
the most recent quarterly report on Form 10-Q (collectively, the “SEC
Filings”).
The
SEC Filings, including the financial statements included therein, when they
were
filed with the SEC (or, if any amendment with respect to any such document
was
filed, when such amendment was filed), were prepared in all material respects
in
accordance with the applicable requirements of the Exchange Act. The SEC
Filings, this Agreement, the exhibits and schedules hereto, and any certificates
or documents to be delivered to GKI pursuant to this Agreement, when taken
together, do not contain an untrue statement of a material fact or omit to
state
a material fact required to be stated therein or necessary in order to make
the
statements therein, in the light of the circumstances under which they were
made, not misleading.
3.7 Legal
Compliance.
Buyer
has complied with all applicable laws except where the failure to so comply
would not reasonably be expected, individually or in the aggregate, to result
in
an Adverse Consequence, and no action, suit, proceeding, hearing, investigation,
charge, complaint, claim, demand, or notice has been filed, commenced or, to
the
actual or constructive knowledge of Buyer after reasonable investigation
(“Knowledge”),
threatened against any of them alleging any failure so to comply.
For
purposes of this Agreement, “Adverse
Consequence(s)”
means
any actions, suits, proceedings, hearings, investigations, charges, complaints,
claims, demands, injunctions, judgments, orders, decrees, rulings, damages,
dues, penalties, fines, costs, amounts paid in settlement, liabilities,
obligations, taxes, liens, losses, expenses, and fees, including court costs
and
reasonable attorneys’ fees and expenses that result in a material adverse effect
to the financial condition of Buyer and its subsidiaries taken as a
whole.
7
3.8 Litigation.
Buyer
(i) is not subject to any outstanding injunction, judgment, order, decree,
ruling, or charge, and (ii) except as set forth on Section 3.8 of the Buyer’s
Disclosure Schedule, is not a party or, to the Knowledge of Buyer and its
respective directors and officers (and employees with responsibility for
litigation matters), is not threatened to be made a party to any action, suit,
proceeding, hearing, or investigation of, in, or before any court or
quasi-judicial or administrative agency of any federal, state, local, or foreign
jurisdiction or before any arbitrator that if determined adversely to Buyer
may
reasonably be expected to have an Adverse Consequence on the present or future
operations or financial condition of Buyer.
4.
MISCELLANEOUS
4.1 Survival
of Representations.
Except
for covenants that by their terms survive for a longer period, all
representations, warranties, covenants and indemnities of the parties contained
in this Agreement will remain operative and in full force and effect, regardless
of any investigation made by or on behalf of the other parties to this
Agreement, until the eighteen month anniversary of the Effective Date (the
“Survival
Period”).
4.2 Governing
Law.
The
internal laws of the State of Delaware (irrespective of its choice of law
principles) will govern the validity of this Agreement, the construction of
its
terms, and the interpretation and enforcement of the rights and duties of the
parties hereto.
4.3 Assignment;
Binding Upon Successors and Assigns.
None of
the parties to this Agreement may assign any of its respective rights or
obligations hereunder without the prior written consent of the other parties
hereto. This Agreement will be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted
assigns.
4.4 Severability.
If any
provision of this Agreement, or the application thereof, will for any reason
and
to any extent be invalid or unenforceable, the remainder of this Agreement
and
application of such provision to other persons or circumstances will be
interpreted so as reasonably to effect the intent of the parties hereto. The
parties further agree to replace such void or unenforceable provision of this
Agreement with a valid and enforceable provision that will achieve, to the
extent possible, the economic, business and other purposes of the void or
unenforceable provision.
4.5 Counterparts.
This
Agreement may be executed in any number of counterparts, each of which will
be
an original as regards any party whose signature appears thereon and all of
which together will constitute one and the same instrument. This Agreement
will
become binding when one or more counterparts hereof, individually or taken
together, will bear the signatures of both parties reflected hereon as
signatories.
4.6 Amendment
and Waivers.
Any
term or provision of this Agreement may be amended, and the observance of any
term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively) only by a writing signed
by
the party to be bound thereby. The waiver by a party of any breach hereof or
default in the performance hereof will not be deemed to constitute a waiver
of
any other default or any succeeding breach or default.
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4.7 No
Waiver.
The
failure of any party to enforce any of the provisions hereof will not be
construed to be a waiver of the right of such party thereafter to enforce such
provisions.
4.8 Expenses.
Each
party will bear its respective expenses and legal fees incurred with respect
to
this Agreement, and the transactions contemplated hereby.
4.9 Attorneys’
Fees.
Should
suit be brought to enforce or interpret any part of this Agreement, the
prevailing party will be entitled to recover, as an element of the costs of
suit
and not as damages, reasonable attorneys’ fees to be fixed by the court
(including costs, expenses and fees on any appeal).
4.10 Notices.
Any
notice or other communication required or permitted to be given under this
Agreement will be in writing, will be delivered personally or by registered
or
certified mail, postage prepaid and will be deemed given upon delivery, if
delivered personally, or three days after deposit in the mails, if mailed,
to
the following addresses:
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(a)
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If
to Buyer or Buyer Sub:
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Xxx
Xxxx Xxxxx, Xxxxx 0000
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Xxx
Xxxx, XX 00000
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Attention:
Chief Financial Officer
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with
a copy to:
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Arent
Fox LLP
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0000
Xxxxxxxxxxx Xxxxxx, XX
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Xxxxxxxxxx,
XX 00000
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Attn:
Xxxxxxx X. Xxxxxx, Esq.
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(b)
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If
to GKI:
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GKI
Acquisition Corp.
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000
Xxxxxxxxx Xxxxx, Xxxxx 0X
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Xxx
Xxxx, XX 00000
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Attention:
Chief Executive Officer
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with
a copy to:
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Xxxxx
and Xxxxx, LLP
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000
X. 00xx Xxxxxx, Xxxxx 0000
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Xxx
Xxxx, XX 00000
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Attn:
Xxxxxx X. Xxxxxx, Esq.
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9
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(c)
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If
to the Stockholders:
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Xxxxxxx
X. Xxxx
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000
Xxxxxxxxx Xxxxx, Xxxxx 0X
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Xxx
Xxxx, XX 00000
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Xxxxxxx
Xxxxxxx
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0
Xxxxxxxxx Xxxxxx
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Xxxxxxx
Xxxx, XX 00000
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Xxxxxxx
Xxxxx
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___________________
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___________________
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with
a copy to:
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Xxxxx
and Xxxxx, LLP
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000
X. 00xx Xxxxxx, Xxxxx 0000
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Xxx
Xxxx, XX 00000
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Attn:
Xxxxxx X. Xxxxxx, Esq.
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or
to
such other address as a party may have furnished to the other parties in writing
pursuant to this Section 4.10.
4.11 Absence
of Third Party Beneficiary Rights.
No
provisions of this Agreement are intended, nor will be interpreted, to provide
or create any third party beneficiary rights or any other rights or remedies
of
any kind in any client, customer, affiliate, stockholder, partner or any party
hereto or any other person or entity unless specifically provided otherwise
herein, and, except as so provided, all provisions hereof will be personal
solely between the parties that are signatories to this Agreement.
4.12 Public
Announcement.
No
public announcement of the consummation of the Merger and the transactions
contemplated hereby may be made by GKI or the Stockholders without the express
written consent of Buyer. Buyer may issue such press releases, and make such
other disclosures regarding the Merger, as it determines are required under
applicable securities laws or regulatory rules.
4.13 Confidentiality.
GKI,
the Stockholders and Buyer each recognize that they have received and will
receive confidential information concerning the other during the course of
the
Merger negotiations and preparations. Accordingly, GKI, the Stockholders and
Buyer each agrees (a) to use its respective best efforts to prevent the
unauthorized disclosure of any confidential information concerning the other
that was or is disclosed during the course of such negotiations and
preparations, and is clearly designated in writing as confidential at the time
of disclosure, and (b) to not make use of or permit to be used any such
confidential information other than for the purpose of effectuating the Merger
and related transactions. The obligations of this section will not apply to
information that (i) is or becomes part of the public domain, (ii) is disclosed
by the disclosing party to third parties without restrictions on disclosure,
(iii) is received by the receiving party from a third party without breach
of a
nondisclosure obligation to the other party or (iv) is required to be disclosed
by law.
10
4.14 Entire
Agreement.
This
Agreement and the exhibits hereto constitute the entire understanding and
agreement of the parties hereto with respect to the subject matter hereof and
supersede all prior and contemporaneous agreements or understandings,
inducements or conditions, express or implied, written or oral, between the
parties with respect hereto. The express terms hereof control and supersede
any
course of performance or usage of the trade inconsistent with any of the terms
hereof.
4.15 Certain
Interpretive Matters and Definitions.
4.15.1 Unless
the context of this Agreement otherwise requires, (A) words of any gender
include each other gender; (B) words (including defined terms) using the
singular or plural number also include the plural or singular number,
respectively; (C) the terms “hereof,” “herein,” “hereby” and derivative or
similar words refer to this entire Agreement and not to any particular provision
of this Agreement; and (D) the terms “Article,” “Section,” “Schedule” and
“Exhibit” without any reference to a specified document refer to the specified
Article, Section, Schedule and Exhibit, respectively, of this
Agreement.
4.15.2 The
words
“including,” “include” and “includes” are not exclusive and shall be deemed to
be followed by the words “without limitation”; if exclusion is intended, the
word “comprising” is used instead.
4.15.3 The
word
“or” shall be construed to mean “and/or” unless the context clearly prohibits
that construction.
4.15.4 Whenever
this Agreement refers to a number of days, such number shall refer to calendar
days unless business days are specified.
4.15.5 Any
representation or warranty contained herein as to the enforceability of a
contract, including this Agreement, shall be subject to the effect of any
bankruptcy, insolvency, reorganization, moratorium or other similar law
affecting the enforcement of creditors’ rights generally and to general
equitable principles (regardless of whether such enforceability is considered
in
a proceeding in equity or at law).
4.15.6 The
parties have participated jointly in the negotiation and drafting of this
Agreement. If an ambiguity or question of intent or interpretation arises,
this
Agreement shall be construed as if drafted jointly by the parties and no
presumption or burden of proof shall arise favoring or disfavoring any party
by
virtue of the authorship of any of the provisions hereof.
4.15.7 The
disclosures in the Schedules referenced in Article 2 and 3, shall relate only
to
the representations and warranties in the particular Section of Article 2 and
3
to which they expressly relate and not to any other representation or warranty
contained in Article 2 and 3, except that information and disclosures
contained in a Schedule shall be deemed to be disclosed and incorporated by
reference in such other Schedule(s) to the extent that there is a
cross-reference.
11
4.15.8 In
the
event of any inconsistency between the statements in the body of this Agreement
and those in the Schedules referenced in Article 2 and 3, other than exceptions
or other identified items set forth in such Schedules with respect to, and
specifically contemplated by, the representation or warranty to which such
Schedule relates, the statements in the body of this Agreement will
control.
[Signature
Page Next]
12
IN
WITNESS WHEREOF,
the
parties hereto have executed this Agreement as of the date first above
written.
| BUYER: |
COMPANY:
|
||||
| NEURO-HITECH, INC. |
GKI
ACQUISITION CORPORATION
|
||||
| By: |
|
/s/
Xxxxx Xxxxxxx
|
By:
|
/s/
Xxxxxxx X. Xxxx
|
|
| Its: |
|
Chief
Financial Officer
|
Its
|
President
|
|
| BUYER SUB: |
STOCKHOLDERS:
|
||||
| GKI ACQUISITION SUB, INC. | |||||
|
|
/s/
Xxxxxxx X. Xxxx
|
||||
|
|
Xxxxxxx
X. Xxxx
|
||||
| By: | /s/ Xxxxx Xxxxxxx | ||||
| Its: | President | ||||
|
/s/
Xxxxxxx Xxxxxxx
|
|||||
|
Xxxxxxx
Xxxxxxx
|
|||||
|
/s/
Xxxxxxx Xxxxx
|
|||||
|
Xxxxxxx
Xxxxx
|
|||||
EXHIBIT
A
|
Merger
Consideration
|
||
|
Xxxxxxx
X. Xxxx
|
680,000
Shares [40%]
|
|
|
Xxxxxxx
Xxxxxxx
|
510,000
Shares [30%]
|
|
|
Xxxxxxx
X. Xxxxx
|
510,000
Shares [30%]
|
