AGREEMENT AND PLAN OF REORGANIZATION
BY AND AMONG
WORLDWIDE EQUIPMENT CORP.
A FLORIDA CORPORATION
AND
US CANCER CARE, INC.
A DELAWARE CORPORATION
DATED: DECEMBER 5, 2000
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AGREEMENT AND PLAN OF REORGANIZATION
WORLDWIDE EQUIPMENT CORP.
AND
US CANCER CARE, INC.
This Agreement and Plan of Reorganization ("Agreement"), dated as of
December 5, 2000, among WORLDWIDE EQUIPMENT CORP. ("WEC"), US CANCER CARE, INC.
("USCC"), A DELAWARE Corporation; and the shareholders of US CANCER CARE, INC.
("USCC Shareholders").
W I T N E S S E T H:
WHEREAS, USCC and WEC are corporations duly organized under the laws of
the States of Delaware and Florida, respectively.
WHEREAS, the USCC Shareholders are the owners of all of the issued and
outstanding common and preferred stock of USCC. It is the intention that all of
the issued and outstanding common stock of USCC shall be acquired by WEC in
exchange solely for its voting stock. For federal income tax purposes it is
intended that this exchange shall qualify as a reorganization within the meaning
of SEC 368 (a)(1)(B) of the Internal Revenue Code of 1986, as amended (the
"Code").
WHEREAS, WEC and the USCC Shareholders agree that (i) all of the common
shares issued and outstanding of USCC shall be exchanged with WEC for 6,741,942
shares of the common stock of WEC, representing 83.24% of the outstanding common
shares; (ii) all the series A preferred stock of USCC shall be exchanged for
1000 Series B voting preferred shares of WEC and (iii) all the Series B
preferred stock of USCC shall be exchanged for 1000 Series C voting preferred
shares of WEC, and all the Series C preferred stock of USCC shall be exchanged
for 1000 Series D voting preferred shares of WEC.
WHEREAS, the parties hereto wish to enter into this Agreement, pursuant
to the provisions of the Florida Statutes.
NOW, THEREFORE, it is agreed among the parties as follows:
ARTICLE I
THE CONSIDERATION
1.1 THE TRANSACTION. Subject to the conditions set forth herein on the
"Effective Date" (as herein defined), all common Shareholders of USCC as of the
Effective Date shall exchange all of their shares of USCC for up to 6,741,942
common shares of WEC common stock and the Series A Preferred Stock of USCC shall
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be exchanged for 1000 Series B voting preferred shares of WEC and all the Series
B Preferred Stock of USCC shall be exchanged for 1000 Series C voting preferred
shares of WEC, and all the Series C Preferred Stock of USCC shall be exchanged
for 1000 Series D voting preferred shares of WEC. The transactions contemplated
by this Agreement shall be completed at a closing ("Closing") on a closing date
("Closing Date") which shall be as soon as possible after all regulatory
approvals and shareholder approvals are obtained in accordance with law as set
forth in this Agreement, but no later than 30 days after date hereof.
On the Closing Date, all of the documents to be furnished to WEC and
USCC, including the documents to be furnished pursuant to Article VII of this
Agreement, shall be delivered to M.A. Littman, to be held in escrow until the
Effective Date or the date of termination of this Agreement, whichever first
occurs, and thereafter shall be promptly distributed to the parties as their
interests may appear.
1.2 THE EXCHANGE. At the Effective Date, USCC shall become a wholly
owned subsidiary of WEC. USCC's shareholders shall receive voting stock as
follows:
WEC shall issue six million seven hundred forty-one thousand
nine hundred and forty-two (6,741,942) restricted shares of
its presently authorized and un-issued stock common stock for
each share of USCC common stock acquired which is presented
for exchange.
WEC shall issue 1000 restricted shares of its Series B voting
preferred stock in exchange of all the USCC issued and
outstanding Series A preferred stock. WEC shall issue 1000
restricted shares of its Series C voting preferred stock in
exchange of all the USCC issued and outstanding Series B
preferred stock. WEC shall issue 1000 restricted shares of its
Series D voting preferred stock in exchange of all the USCC
issued and outstanding Series C preferred stock.
1.3 THE EFFECTIVE DATE. If this Agreement is duly adopted by the
holders of the requisite number of shares, in accordance with the applicable
laws and subject to the other provisions hereof, such documents as may be
required by law to accomplish the Agreement shall be filed as required by law
and the appropriate share exchange to effectuate same, and it shall become
effective on December____ or such other date as designated by Michael A. Littman
shall be the Effective Date for the Agreement.
ARTICLE II
ISSUANCE AND EXCHANGE OF SHARES
2.1 THE TRANSACTION. The shares of $.001 par value common stock of WEC
shall be issued by it to USCC common shareholders at closing.
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2.2 THE EXCHANGE AGENT. The stock transfer books of USCC shall be
closed on the Effective Date, and thereafter no transfers of the stock of USCC
shall be made. USCC shall appoint an exchange agent ("Exchange Agent"), to
accept surrender of the certificates representing the common shares of USCC, and
to deliver in exchange for such surrendered certificates, shares of common stock
of WEC. The authorization of the Exchange Agent may be terminated by WEC after
six months following the Effective Date. Upon termination of such authorization,
any shares of USCC and any funds held by the Exchange Agent for payment to USCC
shareholders pursuant to this Agreement shall be transferred to WEC or its
designated agent who shall thereafter perform the obligations of the Exchange
Agent. If outstanding certificates for shares of USCC are not surrendered or the
payment for them not claimed prior to such date on which such payments would
otherwise escheat to or become the property of any governmental unit or agency,
the unclaimed items shall, to the extent permitted by abandoned property and
other applicable law, become the property of WEC (and to the extent not in its
possession shall be paid over to it), free and clear of all claims or interest
of any persons previously entitled to such items. Notwithstanding the foregoing,
neither the Exchange Agent nor any party to this Agreement shall be liable to
any holder of USCC shares for any amount paid to any governmental unit or agency
having jurisdiction of such unclaimed item pursuant to the abandoned property or
other applicable law of such jurisdiction.
2.3 NO FRACTIONAL SHARES. No fractional shares of WEC stock shall be
issued as a result of the Agreement. Shares shall be rounded to nearest whole
share.
ARTICLE III
REPRESENTATIONS, WARRANTIES
AND COVENANTS OF USCC
No representations or warranties are made by any director, officer,
employee or shareholder of USCC as individuals, except as and to the extent
stated in this Agreement or in a separate written statement, if any (the "USCC
Disclosure Statement"). USCC hereby represents, warrants and covenants to WEC
except as stated in the USCC Disclosure Statement, as follows:
3.1 ORGANIZATION AND GOOD STANDING. USCC is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware with full power and authority to own or lease its properties and to
carry on its business as presently being conducted and enter into and perform
each of the transactions, covenants and agreements provided for in this
Agreement.
3.2 EXECUTION AND PERFORMANCE AUTHORIZED. The execution, delivery and
performance of this Agreement and all other documents and related agreements
contemplated hereunder, have been duly approved by USCC's board of directors and
shareholders; such execution and delivery and the consummation by USCC of the
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transactions, covenants and agreements contemplated hereunder have been duly
authorized by the taking of all necessary corporate action; and no further
action is required to be taken by law and/or pursuant to the certificate of
incorporation, by-laws or otherwise of USCC to authorize the execution, delivery
and/or performance of this Agreement, and/or the taking of all action required
to be taken by USCC with respect to this Agreement and the consummation of the
transactions and performance of this Agreement and the other agreements
contemplated hereunder. The Agreement and the other documents contemplated
hereunder, are valid and binding and fully enforceable against USCC in
accordance with their respective terms, subject, as to enforcement of remedies,
to applicable bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the rights of creditors generally and the discretion of courts in
granting equitable remedies. No consent, authorization, approval, order,
license, certificate, or permit of or from, or declaration or filing with, any
federal, state, local, or other governmental authority or any court or other
tribunal is required by USCC for the execution, delivery, or performance of this
Agreement and the other agreements referred to herein.
3.3 ABSENCE OF LITIGATION. There is no material action, lawsuit,
proceeding or investigation of any kind or nature pending or, to its knowledge,
threatened against USCC before any court, tribunal or administrative agency or
board which it reasonably expects, individually or in the aggregate, to
materially and adversely: (a) affect the financial condition, results of
operations, or prospects of USCC, (b) affect its ability to perform its
obligations hereunder, or (c) render any one or more of this Agreement and/or
any of the agreements referred to herein and/or the transactions contemplated
hereunder void or voidable.
3.4 NO OTHER DEFAULT AND CONDUCT OF BUSINESS. The execution and
delivery of this Agreement and the other agreements referred to herein, and the
consummation of the transactions contemplated hereunder will not conflict with
or violate or require any consent under and will not result in any breach or
termination of certificate of incorporation or by-laws of USCC, any other
agreement to which USCC is a party or by which its properties are subject, or by
which it is bound, or any statute, judgment, order, or decree of any
governmental or regulatory authority. USCC is not in violation of, or in default
under, (i) any term or provision of its constitutional documents; (ii) any
material term or provision or any financial covenant of any indenture, mortgage,
contract, commitment or other agreement or instrument to which it is a party or
by which it or any or its properties or business is or may be bound or affected;
or (iii) any existing applicable law, rule, regulation, judgment, order or
decree of any governmental agency or court, domestic or foreign, having
jurisdiction over it or any of its properties or business. USCC owns, possesses
or has obtained all governmental and other licenses, permits, certifications,
registrations, approvals or consents and other authorizations necessary to own
or lease, as the case may be, and to operate its properties and to conduct its
business or operations as presently conducted and all such governmental and
other licenses, permits, certifications, registrations, approvals, consents and
other authorizations are outstanding and in good standing, and there are no
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proceedings pending or, to the best of its knowledge, threatened, or any basis
therefor existing, seeking to cancel, terminate or limit such licenses, permits,
certifications, registrations, approvals or consents or authorizations, or
related to the breach or failure to comply of USCC with any law, rule,
regulation, judgment, order or decree and USCC has operated its business in
material compliance with all applicable laws, rules, and regulations;
3.5 PERMITS AND FILINGS. There is no requirement applicable to USCC to
make any further filing with, or to obtain any permit, authorization, consent or
approval of, any governmental or other regulatory authority as a condition of
the lawful consummation of the transactions contemplated under this Agreement.
3.6 CORPORATE DOCUMENTS. USCC has furnished to WEC true, correct and
complete copies of its certificate of incorporation, by-laws and minute book,
and a certificate of good standing from the State of Delaware dated within
thirty (30) days of the Closing Date. The minute book contains a record, which
is complete and accurate in all material respects, of all meetings and all
corporate actions of the shareholders and Board of Directors of USCC. USCC is
not in material violation or breach of, or in default with respect to, (a) any
term of its constitutional documents or any agreement to which it is a party or
by which its assets are bound, or (b) any law, rule, regulation, judgment, order
or decree of any governmental agency or court having jurisdiction over it or its
assets.
3.7 CAPITALIZATION. The authorized capital stock of USCC consists of
shares of common stock of which 5,141,942 shares are issued and outstanding, and
5,000,000 shares of preferred stock, of which 1,000 shares have been issued and
designated Series A Preferred Stock, 1,000 shares have been issued and
designated Series B Preferred Stock; and 1,000 shares have been issued and
designated Series C Preferred Stock ("USCC Stock") ("Outstanding USCC Stock").
The shares of Outstanding USCC Stock are duly authorized, validly issued, fully
paid, and nonassessable. Except as set forth on Schedule 3.7, there are not as
of the date hereof any shares of capital stock issued and outstanding, or any
options, warrants, subscriptions, calls, rights, convertible securities or other
agreements or commitments to issue, transfer, or sell its capital stock.
3.8 TAX AND OTHER LIABILITIES. USCC has no liability of any nature,
accrued, absolute or contingent, secured or unsecured including without
limitation liabilities for payroll and other employee taxes, federal, state,
local, or foreign taxes or liabilities to customers or suppliers, other than
liabilities which are reflected on the Financial Statements, as defined in
Section 3.19. Except for the liabilities included on the Financial Statement, as
of the date of such Financial Statement, USCC had no liabilities, either fixed
or contingent, which would have been required to be recorded under GAAP as of
such date, and to the knowledge of USCC no such liabilities, other than
liabilities arising in the ordinary course of business and/or pursuant to this
Agreement have accrued and/or will accrue between such date and the Effective
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Date. USCC has filed all federal, state, municipal and local tax returns or
proper extensions (whether relating to income, sales, franchise, withholding,
real or personal property or otherwise) required to be filed under the laws of
the United States and all applicable states, and has paid in full all taxes
which are due pursuant to such returns or claimed to be due by any taxing
authority or otherwise due and owing. No penalties or other charges are or will
become due with respect to the late filing of any such return. To the best of
the knowledge of USCC, after due investigation, each such tax return heretofore
filed by USCC correctly and accurately reflects the amount of its tax liability
thereunder. USCC has withheld, collected and paid all other levies, assessments,
license fees and taxes to the extent required and, with respect to payments, to
the extent that the same have become due and payable;
3.9 LITIGATION AND CLAIMS. There is no material litigation,
arbitration, claim, governmental or other proceeding (formal or informal), or
investigation pending or, or to the knowledge of USCC threatened, with respect
to USCC or any of its business, properties, or assets.
3.10 PROPERTIES. As of the Effective Date, USCC will have good title to
all properties and assets used in its business or owned by it.
3.11 CONTRACTS AND OTHER INSTRUMENTS. USCC is not in material breach or
material violation of or default under any contract or instrument to which USCC
is a party and/or by which its assets are bound; and no event has occurred which
with the lapse of time or action by a third party could result in a material
breach or material violation of or default by USCC under any contract or other
instrument to which USCC is a party of by which it or any of its assets are
bound or affected, nor is there any court or regulatory order pending against or
affecting USCC and/or any of its assets.
3.12 EMPLOYEES. USCC has no employee and no welfare benefit plans (as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974
("ERISA") or otherwise of any kind, nature or description, other than a 401K
plan.
3.13 PRE CLOSING ACTIVITY. Prior to entering into this Agreement and
Plan of Reorganization, USCC entered into a Merger Agreement with Florida Cancer
Center - Beaches, P.A. USCC shall not enter into or consummate any transactions
prior to the Closing other than in the ordinary course of business and will pay
no dividend, or increase the compensation of any officer, director or employee
and will not enter into any transaction or agreement which would adversely
affects its financial condition. USCC shall deliver to WEC at or prior to the
Closing copies of any and all reports relating to the financial and/or business
condition of USCC which are created or published subsequent to the date hereof
together with any reports or communications sent to the stockholders of USCC
subsequent to the date hereof.
3.14 ACCURACY. No statement, representation or warranty contained
herein, in any certificate delivered pursuant to this Agreement and/or in any
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report filed with the Securities Exchange Commission (the "Commission") contains
or will contain any untrue statement of a material fact or omits to state any
material fact necessary to make such statement, representation or warranty not
misleading.
3.15 PURCHASE FOR INVESTMENT PURPOSES. The shareholders of USCC are
acquiring the WEC Common Stock as a result of this transaction for investment
purposes only and not with the view to the resale or distribution thereof. Each
of the shareholders of USCC is an "accredited investor" under the regulations
promulgated under the Securities Act of 1933 or otherwise meets one of the
definitions for persons entitled to acquire unregistered securities pursuant to
an exemption from registration under the 33 Act. Neither USCC nor its
shareholders have received and/or relied upon any representations or warranties
from WEC other than those contained in this Agreement and the attached schedules
or exhibits hereto. USCC represents and warrants that it and its shareholders
have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of its investment in WEC Stock.
3.16 INTELLECTUAL PROPERTY. All trade names, inventions, discoveries,
ideas, research, engineering, methods, practices, processes, systems, formulae,
designs, drawings, products, projects, improvements, developments, know-how, and
trade secrets which are used in the conduct of USCC's business, whether
registered or unregistered (collectively the "Proprietary Rights") are owned by
USCC. To the knowledge of each Seller and USCC, USCC created or developed such
Proprietary Rights and such Proprietary Rights are not subject to any
restriction, lien, encumbrance, right, title or interest in others. All of the
foregoing Proprietary Rights that are not in the public domain stand solely in
the name of USCC and not in the name of any shareholder, director, officer,
agent, partner or employee or anyone else known to USCC and none of the same
have any right, title, interest, restriction, lien or encumbrance therein or
thereon or thereto. To the knowledge of USCC, USCC's ownership and use of the
Proprietary Rights do not and will not infringe upon, conflict with or violate
in any material respect any patent, copyright, trade secret or other lawful
proprietary right of any other party, and no claim is pending or, to the
knowledge of USCC, threatened to the effect that the operations of USCC infringe
upon or conflict with the asserted rights of any other person under any of the
Proprietary Rights, and to the knowledge of USCC there is no reasonable basis
for any such claim (whether or not pending or threatened). No claim is pending,
or to the knowledge of USCC, threatened to the effect that any such Proprietary
Rights owned or licensed by USCC, or which USCC otherwise has the right to use,
is invalid or unenforceable by USCC and there is no reasonable basis for any
such claim (whether or not pending or threatened).
3.17 A. NO UNDISCLOSED LIABILITIES. USCC does not have any material
liabilities or obligations, including, without limitation, contingent
liabilities for the performance of any obligation, except for (i) liabilities or
obligations which are disclosed or fully provided for in USCC's Financial
Statements, (ii) liabilities or obligations disclosed in this Agreement or in
any Exhibit or Schedule to this Agreement, and (iii) liabilities not in excess
of $500,000 in the aggregate.
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B. ENVIRONMENTAL MATTERS. (i) USCC has not received notice of any
violation of or investigation relating to any environmental or pollution law,
regulation, or ordinance with respect to assets now or previously owned or
operated by USCC that has not been fully and finally resolved; (ii) All permits,
licenses and other authorizations which are required under United States,
federal, state, provincial and local laws with respect to pollution or
protection of the environment ("Environmental Laws") relating to assets now
owned or operated by USCC or any of its subsidiaries, including Environmental
Laws relating to actual or threatened emissions, discharges or releases of
pollutants, contaminants or hazardous or toxic materials or wastes
("Pollutants"), have been obtained and are effective, and, with respect to
assets previously owned or operated by USCC, were obtained and were effective
during the time of USCC's operation; (iii) To the knowledge of USCC, no
conditions exist on, in or about the properties now or previously owned or
operated by USCC or any third-party properties to which any Pollutants generated
by USCC were sent or released that could give rise on the part of USCC to
liability under any Environmental Laws, claims by third parties under
Environmental Laws or under common law or the occurrence of costs to avoid any
such liability or claim; and (iv) to the knowledge of USCC, all operators of
USCC's assets are in compliance with all terms and conditions of such
Environmental Laws, permits, licenses and authorizations, and are also in
compliance with all other limitations, restrictions, conditions, standards,
prohibitions, requirements, obligations, schedules and timetables contained in
such laws or contained in any regulation, code, plan, order, decree, judgment,
notice or demand letter issued, entered, promulgated or approved thereunder,
relating to USCC's assets.
3.18 CERTIFICATE. The representations, warranties, covenants and
agreements of USCC contained in this Agreement, including, without limitation,
those contained in this Article III, are true, accurate and correct in all
respects as of the date hereof and shall be true, accurate and correct and
complete, in all respects, as of the Closing.
3.19 FINANCIAL STATEMENTS AND CONDITION.
(a) USCC has delivered to WEC a true, correct, and complete
copy of its audited balance sheet, statement of income, statement of retained
earnings, and statement of cash flows of USCC for the fiscal year ended December
31, 1999 ("Audited Financial Statements"), and a true, correct, and complete
copy of its unaudited financial statements for the period ending October 31,
2000 (the "Interim Statements", the Audited Financial Statements and Interim
Statements collectively the "Financial Statements").
(c) The Financial Statements were prepared in accordance with
generally accepted accounting principles ("GAAP") consistently applied
throughout the period involved, are true, correct and complete in all material
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respects, are in accordance with the books and records of USCC and fairly
present (and will fairly present) together with the notes thereto, the financial
position and results of operations of USCC for the periods therein indicated.
(d) Since the date of the USCC Audited Financial Statements,
there have not been, nor prior to the Closing will there be, any material
adverse changes in the business or condition, financial or otherwise, of USCC.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS OF WEC
In order to induce USCC to execute and perform this Agreement, WEC does
hereby represent, warrant, covenant and agree (which representations,
warranties, covenants and agreements shall be and be deemed to be continuing and
survive the execution and delivery of this Agreement, the Closing and the
Effective Date) as follows:
4.1 ORGANIZATION AND QUALIFICATION.
(a) WEC is a corporation duly organized, validly existing, and
in good standing under the laws of Florida, with full power and authority to
own, or lease its properties and to carry on its business as presently conducted
and enter into and perform each of the transactions, covenants and agreements
provided for in this Agreement. WEC is duly qualified to transact the business
in which it is engaged and is in good standing as a foreign corporation in every
jurisdiction in which its ownership, leasing, licensing, or use of property or
assets or the conduct of its business makes such qualification necessary.
(b) WEC has furnished to USCC its Articles of Incorporation
and By-Laws, as presently in effect, certified by the Secretary of the
corporation. WEC is not in violation or breach of, or in default with respect
to, any term of its Certificate of Incorporation or By-Laws.
(c) Except as set forth in Schedule 4.1, WEC has no
outstanding preferred stock, conversion rights, options or warrants.
4.2 EXECUTION AND PERFORMANCE AUTHORIZED. The execution, delivery and
performance of this Agreement and all other documents and related agreements
contemplated hereunder, have been duly approved by WEC's board of directors and
shareholders; such execution and delivery and the consummation by WEC of the
transactions, covenants and agreements contemplated hereunder have been duly
authorized by the taking of all necessary corporate action; and no further
action is required to be taken by law and/or pursuant to the certificate of
incorporation, by-laws or otherwise of WEC to authorize the execution, delivery
and/or performance of this Agreement, and/or the taking of all action required
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to be taken by WEC with respect to this Agreement and the consummation of the
transactions and performance of this Agreement and the other agreements
contemplated hereunder. The Agreement and the other documents contemplated
hereunder, are valid and binding and fully enforceable against WEC in accordance
with their respective terms, subject, as to enforcement of remedies, to
applicable bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the rights of creditors generally and the discretion of courts in
granting equitable remedies. No consent, authorization, approval, order,
license, certificate, or permit of or from, or declaration or filing with, any
federal, state, local, or other governmental authority or any court or other
tribunal is required by WEC for the execution, delivery, or performance of this
Agreement and the other agreements referred to herein.
4.3 ABSENCE OF LITIGATION. There is no action, lawsuit, proceeding or
investigation of any kind or nature pending or, to its knowledge, threatened
against WEC before any court, tribunal or administrative agency or board.
4.4 NO OTHER DEFAULT. The execution and delivery of this Agreement and
the other agreements referred to herein, and the consummation of the
transactions contemplated hereunder will not conflict with or violate or require
any consent under and will not result in any breach or termination of
certificate of incorporation or by-laws of WEC, or any other agreement to which
WEC is a party or by which its properties are subject or by which it is bound.
Except as set forth on Schedule 4.4, WEC is not in violation of, or in default
under, (i) any term or provision of its constitutional documents; (ii) any
material term or provision or any financial covenant of any indenture, mortgage,
contract, commitment or other agreement or instrument to which it is a party or
by which it or any or its properties or business is or may be bound or affected;
or (iii) any existing applicable law, rule, regulation, judgment, order or
decree of any governmental agency or court, domestic or foreign, having
jurisdiction over it or any of its properties or business. Except as set forth
on Schedule 4.4, WEC owns, possesses or has obtained all governmental and other
licenses, permits, certifications, registrations, approvals or consents and
other authorizations necessary to own or lease, as the case may be, and to
operate its properties and to conduct its business or operations as presently
conducted and all such governmental and other licenses, permits, certifications,
registrations, approvals, consents and other authorizations are outstanding and
in good standing, and there are no proceedings pending or, to the best of its
knowledge, threatened, or any basis therefor existing, seeking to cancel,
terminate or limit such licenses, permits, certifications, registrations,
approvals or consents or authorizations, or related to the breach or failure to
comply of WEC with any law, rule, regulation, judgment, order or decree;
4.5 PERMITS AND FILINGS. There is no requirement applicable to WEC to
make any further filing with, or to obtain any permit, authorization, consent or
approval of, any governmental or other regulatory authority as a condition of
the lawful consummation of the transactions contemplated under this Agreement.
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4.6 CORPORATE DOCUMENTS. WEC has furnished to USCC true, correct and
complete copies of its certificate of incorporation, by-laws and minute book,
and a certificate of good standing from the State of Florida dated within thirty
(30) days of the Closing Date. The minute book contains a record, which is
complete and accurate in all material respects, of all meetings and all
corporate actions of the shareholders and Board of Directors of WEC. WEC is not
in material violation or breach of, or in default with respect to, (a) any term
of its constitutional documents or any agreement to which it is a party or by
which its assets are bound, or (b) any law, rule, regulation, judgment, order or
decree of any governmental agency or court having jurisdiction over it or its
assets.
4.7 CAPITALIZATION. The authorized capital stock of WEC consists of:
(i) 100,000,000 shares of WEC Common Stock of which 1,357,874 shares shall be
outstanding as of the Effective Date and (ii) 1,000,000 shares of preferred
stock of which 1,000,000 were designated Series A Preferred Stock of which
900,000 were issued, but none of which are outstanding ("WEC
Stock")("Outstanding WEC Stock"). The shares of Outstanding WEC Stock are duly
authorized, validly issued, fully paid, and nonassessable. Except as set forth
on Schedule 4.7, there are not as of the date hereof any shares of capital stock
issued and outstanding, or any options, warrants, subscriptions, calls, rights,
convertible securities or other agreements or commitments to issue, transfer, or
sell its capital stock.
4.8 AUTHORITY. WEC has all requisite power and authority to execute,
deliver, and perform this Agreement. All necessary corporate proceedings of WEC
have been or as of the Effective Date will have been duly taken to authorize the
execution, delivery, and performance of this Agreement by WEC. This Agreement
has been duly authorized, executed, and delivered by WEC, constitutes the legal,
valid, and binding obligation of, WEC, and is enforceable as to WEC in
accordance with its terms subject, as to enforcement of remedies, to applicable
bankruptcy, insolvency, reorganization, moratorium and other laws affecting the
rights of creditors generally and the discretion of courts in granting equitable
remedies. Except for the provisions of the Colorado Revised Statutes governing
the filing of the Statement, no consent, authorization, approval, order,
license, certificate, or permit of or from, or declaration or filing with, any
federal, state, local, or other governmental authority or any court or other
tribunal is required by WEC for the execution, delivery, or performance of this
Agreement by WEC.
4.9 WEC COMMON STOCK. All of the shares of WEC Stock to be issued by
WEC pursuant to this Agreement shall be duly and validly authorized and, when
issued to the shareholders of USCC in exchange for their USCC Stock, duly and
validly issued, fully paid and nonassessable and free and clear of all federal
and state issuance, stock and/or company taxes, liens, claims, encumbrances and
charges.
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4.10 TAX AND OTHER LIABILITIES. WEC has no liability of any nature,
accrued, absolute or contingent, secured or unsecured including without
limitation liabilities for payroll and other employee taxes, federal, state,
local, or foreign taxes or liabilities to customers or suppliers, other than
liabilities which are reflected on the audited Financial Statement, or incurred
in the ordinary course of business since the date of such Financial Statements
in an amount not to exceed $ 2000. Except for the liabilities included on the
Financial Statement, as of the date of such Financial Statement, WEC had no
liabilities, either fixed or contingent, which would have been required to be
recorded under GAAP as of such date, and to the knowledge of WEC no such
liabilities, other than liabilities arising in the ordinary course of business
and/or pursuant to this Agreement have accrued and/or will accrue between such
date and the Effective Date. WEC has filed all federal, state, municipal and
local tax returns (whether relating to income, sales, franchise, withholding,
real or personal property or otherwise) required to be filed under the laws of
the United States and all applicable states, and has paid in full all taxes
which are due pursuant to such returns or claimed to be due by any taxing
authority or otherwise due and owing. No penalties or other charges are or will
become due with respect to the late filing of any such return. To the best of
the knowledge of WEC, after due investigation, each such tax return heretofore
filed by WEC correctly and accurately reflects the amount of its tax liability
thereunder. WEC has withheld, collected and paid all other levies, assessments,
license fees and taxes to the extent required and, with respect to payments, to
the extent that the same have become due and payable;
4.11 LITIGATION AND CLAIMS. There is no litigation, arbitration, claim,
governmental or other proceeding (formal or informal), or investigation pending
or, or to the knowledge of WEC threatened, with respect to WEC or any of its
business, properties, or assets.
4.12 CERTIFICATE. The representations, warranties, covenants and
agreements of WEC contained in this Agreement, including, without limitation,
those contained in this Article III, are true, accurate and correct in all
respects as of the date hereof and shall be true, accurate and correct and
complete, in all respects, as of the Closing; and at the Closing WEC shall
deliver to USCC a certificate, executed by the chief executive officer of WEC
remaking, on behalf of WEC, each of the representations, warranties, covenants
and agreements of WEC set forth in this Agreement, including without limitation,
those set forth in this Article III hereof.
4.13 FINANCIAL STATEMENTS AND CONDITION.
(a) WEC has delivered to USCC: (i) a true, correct and
complete copy of its Form 10-SB dated August 30, 2000 ("Registration Statement")
filed pursuant to the Securities Exchange Act of 1934, as amended (the "34 Act")
which contains therein the audited balance sheet, statement of income, statement
of retained earnings, and statement of cash flows of WEC for the fiscal year
ended August 31, 1999, (ii) a true, correct, and complete copy of its audited
balance sheet, state of income, statement of retained earning, and statement of
<PAGE>
cash flows of WEC for the fiscal year ended August 31, 2000 (the "Audited
Financial Statements"), and (iii) a true, correct, and complete copy of its
unaudited financial statements for the period following the Audited Financial
Statements (the "Interim Statements", the Audited Financial Statements and
Interim Statements collectively the "Financial Statements").
(b) The Financial Statements were prepared in accordance with
generally accepted accounting principles ("GAAP") consistently applied
throughout the period involved, are true, correct and complete in all material
respects, are in accordance with the books and records of WEC and fairly present
(and will fairly present) together with the notes thereto, the financial
position and results of operations of WEC for the periods therein indicated.
(d) Since the dates of the Financial Statements, there have
not been, nor prior to the Closing will there be, any material adverse changes
in the business or condition, financial or otherwise, of WEC other than the
previous reverse stock split.
4.14 PUBLICLY TRADING. After the Effective Date, the WEC Common stock
received by the USCC common shareholders will be in a publicly trading entity
under the symbol WWEQ on the OTCBB, and subject to restrictions as set forth in
this Agreement and applicable laws.
4.15 BOARD ACTION. During the period from the date hereof until the
Closing there shall not be taken an action by the Board of Directors of WEC
without the prior written consent of USCC in each instance.
4.16 INTELLECTUAL PROPERTY. All trade names, inventions, discoveries,
ideas, research, engineering, methods, practices, processes, systems, formulae,
designs, drawings, products, projects, improvements, developments, know-how, and
trade secrets which are used in the conduct of WEC's business, whether
registered or unregistered (collectively the "Proprietary Rights") are owned by
WEC. To the knowledge of WEC, WEC created or developed such Proprietary Rights
and such Proprietary Rights are not subject to any restriction, lien,
encumbrance, right, title or interest in others. All of the foregoing
Proprietary Rights that are not in the public domain stand solely in the name of
WEC and not in the name of any shareholder, director, officer, agent, partner or
employee or anyone else known to WEC and none of the same have any right, title,
interest, restriction, lien or encumbrance therein or thereon or thereto. To the
knowledge of WEC, WEC's ownership and use of the Proprietary Rights do not and
will not infringe upon, conflict with or violate in any material respect any
patent, copyright, trade secret or other lawful proprietary right of any other
party, and no claim is pending or, to the knowledge of WEC, threatened to the
effect that the operations of WEC infringe upon or conflict with the asserted
rights of any other person under any of the Proprietary Rights, and to the
knowledge of WEC there is no reasonable basis for any such claim (whether or not
pending or threatened). No claim is pending, or to the knowledge of WEC,
<PAGE>
threatened to the effect that any such Proprietary Rights owned or licensed by
WEC, or which WEC otherwise has the right to use, is invalid or unenforceable by
WEC and there is no reasonable basis for any such claim (whether or not pending
or threatened).
4.17 A. LIENS. To the best of its knowledge after diligent inquiry,
no one other than WEC has any right, title, interest, lien, claim, security
interest, restriction or encumbrance in, on or to WEC's assets.
B. MATERIAL CONTRACTS. Except as otherwise disclosed in the
WEC Form 10SB or on Schedule 4.17(b), WEC does not have any material obligation,
contract, agreement, lease, sublease, commitment or understanding of any kind,
nature or description, oral or written, fixed or contingent due or to become
due, existing or inchoate.
C. NO UNDISCLOSED LIABILITIES. WEC does not have any material
liabilities or obligations, including, without limitation, contingent
liabilities for the performance of any obligation, except for (i) liabilities or
obligations which are disclosed or fully provided for in WEC's Financial
Statements, (ii) liabilities or obligations disclosed in this Agreement or in
any Exhibit or Schedule to this Agreement, and (iii) liabilities not in excess
of $2,000 in the aggregate.
D. ENVIRONMENTAL MATTERS. (i) WEC has not received notice of
any violation of or investigation relating to any environmental or pollution
law, regulation, or ordinance with respect to assets now or previously owned or
operated by WEC that has not been fully and finally resolved; (ii) All material
permits, licenses and other authorizations which are required under United
States, federal, state, provincial and local laws with respect to pollution or
protection of the environment ("Environmental Laws") relating to assets now
owned or operated by WEC or any of its subsidiaries, including Environmental
Laws relating to actual or threatened emissions, discharges or releases of
pollutants, contaminants or hazardous or toxic materials or wastes
("Pollutants"), have been obtained and are effective, and, with respect to
assets previously owned or operated by WEC, were obtained and were effective
during the time of WEC's operation; (iii) To the knowledge of WEC, no conditions
exist on, in or about the properties now or previously owned or operated by WEC
or any third-party properties to which any Pollutants generated by WEC were sent
or released that could give rise on the part of WEC to liability under any
Environmental Laws, claims by third parties under Environmental Laws or under
common law or the occurrence of costs to avoid any such liability or claim; and
(iv) to the knowledge of WEC, all operators of WEC's assets are in compliance
with all terms and conditions of such Environmental Laws, permits, licenses and
authorizations, and are also in compliance with all other limitations,
restrictions, conditions, standards, prohibitions, requirements, obligations,
schedules and timetables contained in such laws or contained in any regulation,
code, plan, order, decree, judgment, notice or demand letter issued, entered,
promulgated or approved thereunder, relating to WEC's assets.
<PAGE>
ARTICLE V
OBLIGATIONS OF THE PARTIES PENDING THE EFFECTIVE DATE
5.1 BOARD SUPPORT. This Agreement shall be duly submitted to the
shareholders of USCC for the purpose of considering and acting upon this
Agreement. The Board of Directors of USCC, subject to its fiduciary obligations
to shareholders, shall use its best efforts to obtain the requisite joinder of
USCC shareholders of this Agreement and the transactions contemplated herein.
5.2 ACCESS TO RECORDS. At all times prior to the Effective Date during
regular business hours, each party will permit the other to examine its books
and records and the books and records of its subsidiaries and will furnish
copies thereof on request. It is recognized that, during the performance of this
Agreement, each party may provide the other parties with information which is
confidential or proprietary information. During the term of this Agreement, and
for four years following the termination of this Agreement, the recipient of
such information shall protect such information from disclosure to persons,
other than members of its own or affiliated organizations and its professional
advisers, in the same manner as it protects its own confidential or proprietary
information from unauthorized disclosure, and not use such information to the
competitive detriment of the disclosing party. In addition, if this Agreement is
terminated for any reason, each party shall promptly return or cause to be
returned all documents or other written records of such confidential or
proprietary information, together with all copies of such writings and, in
addition, shall either furnish or cause to be furnished, or shall destroy, or
shall maintain with such standard of care as is exercised with respect to its
own confidential or proprietary information, all copies of all documents or
other written records developed or prepared by such party on the basis of such
confidential or proprietary information. No information shall be considered
confidential or proprietary if it is (a) information already in the possession
of the party to whom disclosure is made, (b) information acquired by the party
to whom the disclosure is made from other sources, or (c) information in the
public domain or generally available to interested persons or which at a later
date passes into the public domain or becomes available to the party to whom
disclosure is made without any wrongdoing by the party to whom the disclosure is
made.
5.3 SIGNIFICANT DEVELOPMENTS. WEC and USCC shall promptly provide each
other with information as to any significant developments in the performance of
this Agreement, and shall promptly notify the other if it discovers that any of
its representations, warranties and covenants contained in this Agreement or in
any document delivered in connection with this Agreement was not true and
correct in all material respects or became untrue or incorrect in any material
respect.
5.4 BEST EFFORTS. All parties to this Agreement shall take all such
action as may be reasonably necessary and appropriate and shall use their best
efforts in order to consummate the transactions contemplated hereby as promptly
as practicable.
<PAGE>
ARTICLE VI
PROCEDURE FOR EXCHANGE
6.1 PROCEDURES FOR EXCHANGE. At the Effective Date, the exchange shall
be effected as set forth in Florida Laws with common stock certificates of WEC
being exchanged for USCC common stock certificates as and when submitted to the
transfer agent.
ARTICLE VII
CONDITIONS PRECEDENT TO THE
CONSUMMATION OF THE EXCHANGE
The following are conditions precedent to the consummation of the
Agreement on or before the Effective Date:
7.1 CLOSING CERTIFICATE. USCC shall have performed and complied with
all of its respective obligations hereunder which are to be complied with or
performed on or before the Effective Date and WEC and USCC shall provide one
another at the Closing with a certificate to the effect that such party has
performed each of the acts and undertakings required to be performed by it on or
before the Closing Date pursuant to the terms of this Agreement.
7.2 AUTHORIZATION. This Agreement, the transactions contemplated herein
shall have been duly and validly authorized, approved and adopted, at meetings
of the shareholders of USCC duly and properly called for such purpose in
accordance with the applicable laws.
7.3 NO COURT ACTION. No action, suit or proceeding shall have been
instituted or shall have been threatened before any court or other governmental
body or by any public authority to restrain, enjoin or prohibit the transactions
contemplated herein, or which might subject any of the parties hereto or their
directors or officers to any material liability, fine, forfeiture or penalty on
the grounds that the transactions contemplated hereby, the parties hereto or
their directors or officers, have violated any applicable law or regulation or
have otherwise acted improperly in connection with the transactions contemplated
hereby, and the parties hereto have been advised by counsel that, in the opinion
of such counsel, such action, suit or proceeding raises substantial questions of
law or fact which could reasonably be decided adversely to any party hereto or
its directors or officers.
7.4 LEGAL APPROVAL. All actions, proceedings, instruments and documents
required to carry out this Agreement and the transactions contemplated hereby
<PAGE>
and the form and substance of all legal proceedings and related matters shall
have been approved by counsel for USCC and WEC.
7.5 BRING DOWN CERTIFICATE. The representations and warranties made by
USCC and WEC in this Agreement shall be true as though such representations and
warranties had been made or given on and as of the Effective Date, except to the
extent that such representations and warranties may be untrue on and as of the
Effective Date because of (1) changes caused by transactions suggested or
approved in writing by USCC or (2) events or changes (which shall not, in the
aggregate, have materially and adversely affected the business, assets, or
financial condition of WEC or USCC during or arising after the date of this
Agreement.)
7.6 CERTIFICATES. WEC shall have furnished USCC with a certified copy
of a resolution or resolutions duly adopted by the Board of Directors of WEC
approving this Agreement and the transactions contemplated by it and directing
the submission thereof to a vote of the shareholders of WEC.
7.7 CORPORATE RESOLUTION. USCC shall furnish WEC with a certified copy
of a resolution or resolutions duly adopted by the Board of Directors of USCC,
approving this Agreement and the transactions contemplated by it.
7.8 PAYMENT OF LIABILITIES. USCC shall pay at closing the liabilities
set forth on Schedule 7.8.
7.9 HYMOWITZ OPTION. At the Effective Date, Hymowitz shall receive
200,000 options to purchase WEC common stock at $.01 per share. The options
shall contain a cashless exercise provision and carry piggyback registration
rights. These options shall be granted in exchange for the forgiveness of any
and all accrued salary, compensation or other monies due Hymowitz by WEC.
ARTICLE VIII
TERMINATION AND ABANDONMENT
8.1 TERMINATION. Anything contained in this Agreement to the contrary
notwithstanding, the Agreement may be terminated and abandoned at any time
(whether before or after the approval and adoption thereof by the shareholders
of USCC) prior to the Effective Date:
(a) By mutual consent of USCC and WEC;
<PAGE>
(b) By USCC, or WEC, if any condition set forth in Article VII
relating to the other party has not been met or has not been
waived after notice and opportunity to cure;
(c) By USCC, or WEC, if any suit, action or other proceeding shall
be pending or threatened by the federal or a state government
before any court or governmental agency, in which it is sought
to restrain, prohibit or otherwise affect the consummation of
the transactions contemplated hereby;
(d) By any party, if there is discovered any material error,
misstatement or omission in the representations and warranties
of another party;
(e) By any party if the Agreement Effective Date is not within 30
days from the date hereof.
8.2 WAIVER. Any of the terms or conditions of this Agreement may be
waived at any time by the party which is entitled to the benefit thereof, by
action taken by its Board of Directors provided; however, that such action shall
be taken only if, in the judgment of the Board of Directors taking the action,
such waiver will not have a materially adverse effect on the benefits intended
under this Agreement to the party waiving such term or condition.
<PAGE>
ARTICLE IX
TERMINATION OF REPRESENTATION AND
WARRANTIES AND CERTAIN AGREEMENTS
9.1 SURVIVAL. The respective representations and warranties of the
parties hereto shall survive the consummation of the Agreement. The covenants
and agreements of the parties hereto shall survive in accordance with their
terms.
ARTICLE X
MISCELLANEOUS
10.1 ENTIRE AGREEMENT. This Agreement embodies the entire agreement
between the parties, and there have been and are no agreements, representations
or warranties among the parties other than those set forth herein or those
provided for herein.
10.2 COUNTERPART. To facilitate the execution of this Agreement, any
number of counterparts hereof may be executed, and each such counterpart shall
be deemed to be an original instrument, but all such counterparts together shall
constitute but one instrument. In addition, agreement of one or more of the USCC
Shareholders may be obtained by execution of this Agreement or acknowledgment by
an officer of USCC, that USCC has obtained such shareholder(s) consent to become
a party to this Agreement.
10.3 BEST EFFORTS. All parties to this Agreement agree that if it
becomes necessary or desirable to execute further instruments or to make such
other assurances as are deemed necessary, the party requested to do so will use
its best efforts to provide such executed instruments or do all things necessary
or proper to carry out the purpose of this Agreement.
10.4 AMENDMENT. This Agreement may be amended upon approval of the
Board of Directors of each party provided that the shares issuable hereunder
shall not be amended without approval of the requisite shareholders of WEC.
10.5 NOTICE. Any notices, requests, or other communications required or
permitted hereunder shall be delivered personally or sent by overnight courier
service, fees prepaid, addressed as follows:
If to WEC: Mitch Hymowitz,
599 Hartsdale Avenue, Suite 201
White Plains, New York 10607
<PAGE>
With a copy to: Atlas Pearlman,
350 East Las Olas Boulevard
Ft. Lauderdale, FL 33301
Attn: Joel Mayersohn, Esq.
If to USCC: Jeffrey A. Goffman
700 Ygnacio Valley Rd., Suite 300
Walnut Creek, CA 94596
With a copy to: Michael A. Littman, Esq.
7609 Ralston Road
Arvada, CO 80033
Bruce Whitley
Bay Venture Counsel
1999 Harrison, Suite 1300
Oakland, CA 94612
Nathan D. Goldman
Stoneburner Berry Goldman & Simmons, P.A.
225 Water Street, Suite 2050
Jacksonville, FL 32202
or such other addresses as shall be furnished in writing by any party, and any
such notice or communication shall be deemed to have been given as of the date
received.
10.6 PRESS RELEASE. No press release or public statement will be issued
relating to the transactions contemplated by this Agreement without prior
approval of USCC and WEC. However, either USCC or WEC may issue at any time any
press release or other public statement it believes on the advice of its counsel
it is obligated to issue to avoid liability under the law relating to
disclosures, but the party issuing such press release or public statement shall
make a reasonable effort to give the other party prior notice of and opportunity
to participate in such release or statement.
10.7 GOVERNING LAW;JURISDICTION. This Agreement shall be governed by
and construed in accordance with the laws of the State of Florida applicable to
contracts made and to be performed in the State of Florida. WEC and USCC
irrevocably consent to the jurisdiction of the United States federal courts and
the state courts located in the State of Florida in any suit or proceeding based
on or arising under this Agreement and irrevocably agree that all claims in
respect of such suit or proceeding may be determined in such courts. WEC and
USCC irrevocably waive the defense of an inconvenient forum to the maintenance
of such suit or proceeding. WEC and USCC agree that a final non-appealable
judgment in any such suit or proceeding shall be conclusive and may be enforced
in other jurisdictions by suit on such judgment or in any other lawful manner.
<PAGE>
IN WITNESS WHEREOF, the parties have set their hands and seals this
17th day of December 2000.
US Cancer Care, Inc.
BY:/s/Jeffrey A. Goffman
----------------------------------------
Chief Executive Officer
ATTEST: /s/Jeffrey A. Goffman
----------------------------------------
Secretary
WORLDWIDE EQUIPMENT CORP.
BY: /s/Mitchell Hymowitz
----------------------------------------
President
ATTEST:/s/Mitchell Hymowitz
----------------------------------------
Secretary
