PLAN AND AGREEMENT OF MERGER
THIS PLAN AND AGREEMENT OF MERGER (hereinafter referred to as this "Agreement")
dated as of July 1, 1999 is made and entered into by and between Masterpiece
Technology Group, a Utah Corporation ("MPTG") and Maplecrest Software
Development, Inc., a Connecticut Corporation ("Maplecrest").
W-I-T-N-E-S-S-E-T-H:
WHEREAS, MPTG is a corporation organized and existing under the laws of the
State of Utah and is a public reporting corporation; and
WHEREAS, Maplecrest is a private corporation and existing under the laws of the
State of Connecticut;
NOW THEREFORE, in consideration of the premises, the mutual covenants herein
contained and other good and valuable consideration the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree that Maplecrest shall
be merged into MPTG (the "Merger") upon the terms and conditions hereinafter set
forth.
ARTICLE I
Merger
1.01 The Merger. Upon the terms and subject to the conditions hereof, at the
Effective Date (as defined in Section l.02), Maplecrest shall be merged with and
into MPTG in accordance with the General Corporation Law of the States of
Connecticut and Utah ("GCL"), whereupon the separate existence of Maplecrest
shall cease and MPTG shall be the surviving corporation (the "Surviving
Corporation") and shall continue its corporate existence under the laws of the
state of Utah. From and after the Effective Time, the status, rights and
liabilities of, and the effect of the Merger on, each of the Constituent
Corporations which is a party to the Merger and the Surviving Corporation shall
be as provided in the GCL. The address of the registered office of MPTG shall be
455 Wards Corner Road, Loveland, Ohio, 45140.
1.02. Filing of Certificate of Merger; Effective Time. As soon as practicable
after the satisfaction of the conditions to the consummation of the Merger set
forth herein, or waiver thereof, MPTG and Maplecrest will deliver for filing, or
cause to be delivered for filing, with the Department of Assessments and
Taxation of the State of Connecticut a duly executed Articles of Merger as
required by the GCL to effect the Merger. The Merger shall become effective on
the date and time when the Articles of Merger has been filed with the Department
of Taxation of the State of Connecticut. The date and time of such
effectiveness is herein referred to as the "Effective Date".
ARTICLE II
Certificate of Incorporation of MPTG
The Certificate of Incorporation of MPTG as in effect on the date hereof shall
be the Certificate of Incorporation of MPTG on the Effective Date without change
unless and until amended in accordance with applicable law.
ARTICLE III
Bylaws of MPTG; Board of Directors
3.01 By-Laws. The Bylaws of MPTG in effect on the date hereof shall not be
changed, amended or modified without the unanimous consent of the Board of
Directors and in accordance with applicable law.
ARTICLE IV
Effect of Merger on Stock of Constituent Corporation
4.01 On the Effective Date, (i) all outstanding shares of Maplecrest common
stock, $.001 par value ("Maplecrest Common Stock") shall be converted into one
million eight hundred and fifty thousand seven hundred and sixty five
(1,850,765) shares or more of MPTG stock, ("MPTG Stock"), so that upon Merger,
the Maplecrest shareholders (the "Sellers") shall own 40% of the fully diluted
stock of MPTG, except for those shares of Maplecrest Common Stock with respect
to which the holders thereof duly exercise their dissenters' rights under
Connecticut law, (ii) any fractional Maplecrest Common Stock interests to which
a holder of Maplecrest Common Stock would be entitled will be canceled with the
holder thereof being entitled to the next highest number of shares of Maplecrest
Common Stock which is canceled and (iii) each outstanding share of Maplecrest
Common Stock shall be retired and canceled.
4.02 All options and rights to acquire Maplecrest Common Stock under or
pursuant to any options or warrants which are outstanding on the Effective Date
of the Merger will automatically be converted into equivalent options and rights
to purchase that whole number of shares of MPTG Stock into which the number of
shares of Maplecrest Common Stock subject to such options or warrants
immediately prior to the Effective Date would have been converted in the merger
had such rights been exercised immediately prior thereto (with any fractional
piece of MPTG Stock interest resulting from the exercise being adjusted to the
next highest whole share such holder would have received for any such fraction
in the merger had he exercised such warrants or options immediately prior to the
Merger). The option price per share of Maplecrest Common Stock shall be the
option price per share of MPTG Stock in effect prior to the Effective Date. All
plans or agreements of Maplecrest under which such options and rights are
granted or issued shall be continued and assumed by MPTG unless and until
amended or terminated in accordance with their respective terms.
4.03 (a) MPTG shall act as exchange agent in the Merger.
(b) Prior to, or as soon as practicable, after the Effective Date, MPTG shall
mail to each person who was, at the time of mailing or at the Effective Date, a
holder of record of issued and outstanding Maplecrest Common Stock (i) a form
letter of transmittal and (ii) instructions for effecting the surrender of the
certificate or certificates, which immediately prior to the Effective Date
represented issued and outstanding shares of Maplecrest Common Stock
("Maplecrest Certificates"), in exchange for certificates representing MPTG
Stock. Upon surrender of a Maplecrest Certificate for cancellation to MPTG,
together with a duly executed letter of transmittal, the holder of such
Maplecrest Certificate shall subject to paragraph (f) of this section 4.03 be
entitled to receive in exchange therefor a certificate representing that number
of shares of MPTG Stock into which Maplecrest Common Stock theretofore
represented by the Maplecrest Certificate so surrendered shall have been
converted pursuant to the provisions of this Article IV; and the Maplecrest
Certificate so surrendered shall forthwith be canceled.
(c) No dividends or other distributions declared after the Effective Date with
respect to MPTG Stock and payable to holders of record thereof after the
Effective Date shall be paid to the holder of any unsurrendered Maplecrest
Certificate with respect to MPTG Stock which by virtue of the Merger are
represented thereby, nor shall such holder be entitled to exercise any right as
a holder of MPTG Stock until such holder shall surrender such Maplecrest
Certificate. Subject to the effect, if any, of applicable law and except as
otherwise provided in paragraph (f) of this Section 4.03, after the subsequent
surrender and exchange of a Maplecrest Certificate, the holder thereof shall be
entitled to receive any such dividends or other distributions, without any
interest thereon, which became payable prior to such surrender and exchange with
respect to MPTG Stock represented by such Maplecrest Certificate.
(d) If any stock certificate representing MPTG Stock is to be issued in a name
other than that in which the Maplecrest Certificate surrendered with respect
thereto is registered, it shall be a condition of such issuance that the
Maplecrest Certificate so surrendered shall be properly endorsed or otherwise in
proper form for transfer and that the person requesting such issuance shall pay
any transfer or other taxes required by reason of the issuance to a person other
than the registered holder of the Maplecrest Certificate surrendered or shall
establish to the satisfaction of MPTG that such tax has been paid or is not
applicable.
(e) After the Effective Date, there shall be no further registration of
transfers on the stock transfer books of Maplecrest of the Shares of Maplecrest
Common Stock, or of any other shares of stock of Maplecrest, which were
outstanding immediately prior to the Effective Date. If after the Effective
Date certificates representing such shares are presented to Maplecrest they
shall be canceled and, in the case of Maplecrest Certificates, exchanged for
certificates representing MPTG Stock as provided in this Article IV.
(f) No certificates or scrip representing fractional MPTG shall be issued upon
the surrender for exchange of Maplecrest Certificates. In lieu thereof, the
Exchange Agent shall issue to each holder of Maplecrest Common Stock a whole
share of MPTG Stock.
ARTICLE V
Corporate Existence, Maplecrest and Liabilities of Maplecrest
5.01 On the Effective Date the separate existence of Maplecrest shall cease.
Maplecrest shall be merged with and into MPTG in accordance with the provisions
of this Agreement. Thereafter, MPTG shall possess all the rights, privileges,
powers and franchises as well of a public as of a private nature, and shall be
subject to all the restrictions, disabilities and duties of each of the parties
to this Agreement and all and singular; the rights, privileges, powers and
franchises of Maplecrest and MPTG, and all property, real, personal and mixed,
and all debts due to each of them on whatever account, shall be vested in MPTG;
and all property, rights, privileges, powers and franchises, and all and every
other interest shall be thereafter and effectually the property of MPTG, as they
were of the respective constituent entities, and the title to any real estate
whether by deed or otherwise vested in Maplecrest and MPTG or either of them,
shall not revert to or be in any way impaired by reason of the Merger; but all
rights of creditors and all liens upon any property of the parties hereto, shall
be preserved unimpaired, and all debts, liabilities and duties of the respective
constituent entities, shall thenceforth attach to MPTG, and may be enforced
against it to the same extent as if said debts, liabilities and duties had been
incurred or contracted by it.
5.02 Maplecrest agrees that it will execute and deliver, or cause to be executed
and delivered, all such deeds, assignments and other instruments, and will take
or cause to be taken such further or other action as MPTG may deem necessary or
desirable in order to vest in and confirm to MPTG title to and possession of all
the property, rights, privileges, immunities, powers, purposes and franchises,
and all and every other interest, of Maplecrest and otherwise to carry out the
intent and purposes of this Agreement.
ARTICLE VI
Officers and Directors of MPTG
6.01 The directors and officers of MPTG at and as of the Effective Date shall be
as follows:
Name Title
Newell D. Crane Chairman and Chief Executive Officer
G. Richard Gressett President and Chief Operating Officer, Director
Ed Sachsehdorfer Chief Financial Officer
Robin H. Hirschfield Vice President
Margaret Crane Vice President
Charles S. Bowcock III Vice President
David Reiss Vice President
Joseph H. Torella Vice President
William Coyne Medical & Board Director
Dave Losciewicz Vice President
Morris Gorelick Board Director
David Leytze Board Director
6.02 MPTG shall nominate and use its best efforts to cause G. Richard Gressett,
and a designee of Mr. Gressett, to be elected to the MPTG Board of Directors for
a period of four years from the Closing. Newell D. Crane will further agree to
vote all of the MPTG Shares held by him, his nominees, affiliates and
transferees, in favor of the election of Mr. Gressett and his designee, for a
period of four years from the Closing. This provision shall not attach to the
MPTG Shares that are publicly sold by Mr. Crane either pursuant to a
registration statement or Rule 144 promulgated by the SEC.
ARTICLE VII
Approval by Shareholders; Amendment; Effective Date
7.01 This Agreement and the Merger contemplated hereby are subject to approval
by the requisite vote of shareholders in accordance with applicable Connecticut
law and are subject to approval by the requisite vote of the board of directors
of MPTG in accordance with applicable Utah law. As promptly as practicable
after approval of this Agreement by shareholders and directors in accordance
with applicable law, duly authorized officers of the respective parties shall
make and execute Articles of Merger and a Certificate of Merger and shall cause
such documents to be filed with the Secretary of State of Utah and the Secretary
of State of Connecticut, respectively, in accordance with the laws of the States
of Utah and Connecticut respectively. The Effective Date of the Merger shall be
the date on which the Merger becomes effective under the laws of Utah or the
date on which the Merger becomes effective under the laws of Connecticut,
whichever occurs later.
7.02 The Boards of Directors of Maplecrest and MPTG may amend this Agreement at
any time prior to the Effective Date, provided that an amendment made subsequent
to the approval of the merger by the shareholders of Maplecrest shall not (1)
alter or change the amount or kind of shares to be received in exchange for or
on conversion of all or any of the Maplecrest Common Stock (2) alter or change
any term of the Certificate of Incorporation of MPTG, or (3) alter or change any
of the terms and conditions of this Agreement if such alteration or change would
adversely affect the holders of Maplecrest Common Stock, or MPTG Common Stock.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES OF MAPLECREST
Maplecrest represents and warrants to MPTG that:
8.01. Corporate Existence and Power. Maplecrest is a corporation duly
organized, validly existing and in good standing under the laws of its state of
incorporation, and has all corporate power, authority and legal right to conduct
businesses as they are now being conducted and to own the properties and assets
they now own. Maplecrest is duly qualified or licensed to do business as a
foreign corporation and are in good standing in every jurisdiction where the
character of the property owned or leased by it or the nature of its activities
makes such qualification necessary.
8.02. Corporate Authorization. Subject to obtaining the shareholder approval
required under the GCL (a) Maplecrest has full corporate power and authority to
enter into this Agreement and to carry out the transactions contemplated hereby,
(b) the Board of Directors of Maplecrest has taken all action required by law,
its Articles of Incorporation and By-Laws or otherwise to authorize the
execution and delivery by Maplecrest of this Agreement and the performance by
Maplecrest of the transactions contemplated hereby, (c) this Agreement has been
duly and validly executed and delivered by Maplecrest and no other corporate
action is necessary in connection therewith, and (d) this Agreement is a valid
and binding agreement of Maplecrest enforceable against Maplecrest in accordance
with its terms, except to the extent that enforcement may be limited by
applicable bankruptcy, insolvency, reorganization or other similar laws
affecting creditors' rights generally and by general equitable principles
(regardless of whether enforcement is sought in equity or at law).
8.03. Consents and Approvals of Government Authorities. Except the filing and
recordation of a Certificate of Merger as required by the GCL, no consent,
approval or authorization of, or declaration, filing or registration with, any
governmental or regulatory authority, United States or foreign, is required in
connection with the execution, delivery and performance of this Agreement by
Maplecrest and the consummation of the transactions contemplated hereby.
8.04. No Violation. The execution, delivery and performance of this Agreement
by Maplecrest (a) will not violate Maplecrest's Articles of Incorporation or By-
Laws, (b) will not violate, or be in conflict with, or constitute a default (or
an event which, with or without due notice or lapse of time, or both, would
constitute a default) (a "Default") under, or result in the termination of or
accelerate the performance required by, or result in the creation or imposition
of any security interest, lien or other encumbrance upon, any material
properties or assets of Maplecrest under, any debt, obligation, contract, lease,
commitment, license, permit or other agreement to which Maplecrest is a party or
by which it is bound or to which it is subject, nor result in the loss of any
rights by Maplecrest, and (c) will not violate any law, judgment, decree, order,
regulation or rule of any court or governmental authority.
8.05 Litigation. There are no actions, suits, proceedings or investigations
pending against or, to the knowledge of Maplecrest, threatened against
Maplecrest or any of the Maplecrest Subsidiaries, before any court or arbitrator
or any governmental body, agency or official, and Maplecrest does not know or
have reason to know of any basis for any such action, suit, proceeding,
investigation or claim.
ARTICLE IX
REPRESENTATIONS AND WARRANTIES OF MPTG
MPTG represents and warrants to Maplecrest that:
9.01. Corporate Existence and Power. MPTG is a corporation duly organized,
validly existing and in good standing under the laws of its state of
incorporation, and has all corporate power, authority and legal right to conduct
businesses as they are now being conducted and to own the properties and assets
they now own. MPTG is duly qualified or licensed to do business as a foreign
corporation and are in good standing in every jurisdiction where the character
of the property owned or leased by it or the nature of its activities makes such
qualification necessary.
9.02. Corporate Authorization. Subject to obtaining the shareholder approval
required under the GCL (a) MPTG has full corporate power and authority to enter
into this Agreement and to carry out the transactions contemplated hereby, (b)
the Board of Directors of MPTG has taken all action required by law, its
Articles of Incorporation and By-Laws or otherwise to authorize the execution
and delivery by MPTG of this Agreement and the performance by MPTG of the
transactions contemplated hereby, (c) this Agreement has been duly and validly
executed and delivered by MPTG and no other corporate action is necessary in
connection therewith, and (d) this Agreement is a valid and binding agreement of
MPTG enforceable against MPTG in accordance with its terms, except to the extent
that enforcement may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws affecting creditors' rights generally and
by general equitable principles (regardless of whether enforcement is sought in
equity or at law).
9.03. Consents and Approvals of Government Authorities. Except for (a) for the
requirements of (a) the Exchange Act, (b) the Securities Act (c) applicable
state securities laws, and (d) the filing and recordation of a Certificate of
Merger as required by the GCL, no consent, approval or authorization of, or
declaration, filing or registration with, any governmental or regulatory
authority, United States or foreign, is required in connection with the
execution, delivery and performance of this Agreement by MPTG and the
consummation of the transactions contemplated hereby.
9.04. No Violation. The execution, delivery and performance of this Agreement
by MPTG (a) will not violate Maplecrest's Articles of Incorporation or By-Laws,
(b) will not violate, or be in conflict with, or constitute a default (or an
event which, with or without due notice or lapse of time, or both, would
constitute a default) (a "Default") under, or result in the termination of or
accelerate the performance required by, or result in the creation or imposition
of any security interest, lien or other encumbrance upon, any material
properties or assets of MPTG under, any debt, obligation, contract, lease,
commitment, license, permit or other agreement to which MPTG is a party or by
which it is bound or to which it is subject, nor result in the loss of any
rights by Maplecrest, and (c) will not violate any law, judgment, decree, order,
regulation or rule of any court or governmental authority.
9.05. Validity of MPTG Stock to be Issued. The MPTG Stock to be issued
pursuant to the Merger will, upon issuance, be validly issued, fully paid and
nonassessable.
9.06. Capitalization of MPTG. The authorized capital stock of MPTG consists of
32,608,308 shares of Common Stock, par value $.001 per share. As of the date
hereof, there are issued and outstanding 2,776,148 shares of MPTG Common Stock.
As of the Effective Date and including the Merger, there will be 4,626,913
shares of MPTG Common Stock issued and outstanding, including shares issuable
under this agreement. All issued and outstanding shares of MPTG Stock have been
duly authorized and validly issued and are fully paid and nonassessable. There
are no other outstanding shares of, no securities convertible into or
exchangeable for, no options or other rights (including any pre-emptive rights)
to acquire from MPTG, and no other contracts, understandings, arrangements or
obligations (whether or not contingent) providing for the issuance or sale by
MPTG, directly or indirectly, of any capital stock or other equity or debt
security of MPTG, other than pursuant to this Agreement. There are no
outstanding contractual obligations of MPTG or any MPTG subsidiaries to
repurchase, redeem or otherwise acquire any outstanding shares of MPTG Stock or
other securities issued by MPTG. No holder of any securities of MPTG has any
registration rights with respect thereto and no holder of any shares of capital
stock or ownership interest of MPTG is entitled to any dividend or distribution
in respect of such capital stock. There are no shares of any class or series of
capital stock of MPTG which are currently held by MPTG as treasury shares.
9.07. SEC Filings. MPTG has previously delivered to Maplecrest the following
(collectively, the "MPTG Filings"): (a) its annual report on Form 10-K for the
year ended 1998, (b) its proxy statements relating to MPTG's meetings of
shareholders (whether annual or special) held since June 1998, (c) all of its
other reports or registration statements filed with the SEC since March 1998
(including but not limited to quarterly reports on Form 10-Q, current reports on
Form 8-K, beneficial ownership reports on Forms 3 and 4, and registrations under
Section 12(g)), (d) all amendments and supplements to the foregoing, and (e) all
Schedule 13D's and amendments thereto received by MPTG. Each of the MPTG
Filings, (i) has been timely filed, subject to any allowable extensions, (ii)
was prepared in all material respects in accordance with the requirements of the
Securities Act of Exchange Act, as the case may be, and the Rules and
Regulations thereunder and (iii) did not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements contained therein, in light of the
circumstances under which they were made, not misleading. The MPTG Filings
constitute all of the documents required to be filed with the SEC as of the date
hereof.
9.08. No Material Adverse Change. Since December 1998, there has been no
material adverse change in the consolidated financial position, business,
operations, consolidated results of operations or prospects of MPTG and MPTG
Subsidiaries taken as a whole, from that reflected in the MPTG Audited Financial
Statements.
9.09 Litigation. The Company is currently in litigation: Del Crane Medical is
a subsidiary of Masterpiece. Del Crane Medical currently is a defendant in a
claim made by a terminated employee of Del Crane Supply Company. This employee
was fired for repeated insubordination, disrespect and refusal to perform his
duties. The claim alleges age and disability discrimination. However, the 61
year-old employee had been continuously employed as a warehouse employee and
then manager since 1990, including during and after a stroke in the spring of
1992.
It is anticipated that the defendant will move for a summary judgment after
deposition of the plaintiff. The Company carries insurance for such matters and
the insurance company has agreed to handle this case. Additionally, the
terminated employee worked for Del Crane Supply which is not affiliated with Del
Crane Medical, which is a subsidiary of Masterpiece.
Del Crane Medical is currently being investigated by the Office of
Inspector General for Health and Human Services for claims submitted since
January 1, 1993. Del Crane has had previous audits by Health and Human Services
and has been found to be in proper compliance. These audits and investigations
are a standard for compliance in the industry today. However, due to the
complexity and changing federal regulations, there can be no assurance the Del
Crane Medical will be found in compliance as part of this current audit.
ARTICLE X
CONDITIONS TO MPTG'S OBLIGATION
TO MAKE THE MERGER EFFECTIVE
The obligations of MPTG to cause the Merger to become effective are subject to
the satisfaction, at or before the Effective Date, of each of the following
conditions, all or any of which may be waived by MPTG in whole or in part:
10.01. Representations and Warranties True; Full Performance. The
representations and warranties of Maplecrest contained herein, and in the
written disclosures heretofore provided by Maplecrest to MPTG in writing, and in
all certificates and other documents delivered by Maplecrest to MPTG pursuant
hereto or in connection with the transactions contemplated hereby shall be in
all material respects true and accurate as of the date when made and at and as
of the Effective Date as though such representations and warranties were made at
and as of such date and time. Maplecrest shall have fully performed and complied
in all material respects with all obligations, covenants and agreements required
by this Agreement to be performed or complied with by it at or prior to the
Effective Date, except as otherwise permitted by this Agreement, and shall have
delivered to MPTG a certificate of Maplecrest dated as of the Effective Time,
signed by the President and Treasurer of Maplecrest and certifying in such
detail as MPTG may reasonably request the fulfillment of the conditions set
forth in this Section and the taking of all corporate action required to perform
all transactions contemplated by this Agreement.
10.02. Approval of Maplecrest Shareholders; Appraisal Rights. The approval
of the shareholders of Maplecrest of the Maplecrest Proposal, shall be obtained
on prior to the Effective Date and the holders of no more than 10% of each class
or series of Maplecrest Stock shall have elected to exercise appraisal rights
under the GCL.
10.03. Regulatory Approvals; Litigation. All permits and consents required
by federal and state securities laws shall have been obtained. No legal
proceeding by any person shall have been instituted which questions the validity
or legality of the transactions contemplated hereby, nor shall any court order
or decree have been issued enjoining the transactions contemplated hereby.
10.04. Material Adverse Changes. No material adverse change shall have
occurred in the business, financial position, results of operations, assets,
liabilities (absolute, accrued, contingent or otherwise), reserves, operations
or prospects of Maplecrest or Maplecrest Subsidiary since the date of this
Agreement, nor shall any event or events have occurred which may reasonably be
expected to have a material adverse effect on the business, financial condition,
results of operations, operations or prospects of Maplecrest.
10.06. Consents Under Agreements. Maplecrest shall have obtained the
consent or approval of each person whose consent or approval shall be required
in order to permit the succession by MPTG pursuant to the Merger to any
obligation, right or interest of Maplecrest under any contract, agreement, note,
mortgage, indenture, lease or other agreement or instrument, except those for
which failure to obtain such consents and approvals would not, in the reasonable
option of MPTG, individually or in the aggregate, have a material adverse effect
on the business, financial condition, results of operations, operations or
prospects of Maplecrest or MPTG upon the consummation of the Merger.
ARTICLE XI
CONDITIONS TO MAPLECREST'S OBLIGATION TO
MAKE THE MERGER EFFECTIVE
The obligation of Maplecrest to cause the Merger to become effective is subject
to the satisfaction, on or before the Effective Date, of each of the following
conditions, all or any of which may be waived by Maplecrest in whole or in part:
11.01. Representations and Warranties True. The representations and warranties
of MPTG contained herein and in the Schedules, and in the disclosures heretofore
provided by MPTG to Maplecrest in writing, and in all certificates and other
documents delivered by MPTG to Maplecrest pursuant hereto or in connection with
the transaction contemplated hereby shall be in all material respects true and
accurate as of the date when made and at and as of the Effective Date as through
such representations and warranties were made at and as of such date and time,
MPTG shall have fully performed and complied in all material respects with all
obligations required by this Agreement to be performed or complied with by them
at or prior to the Effective Date, except as otherwise permitted by this
Agreement, and shall have delivered to Maplecrest certificates of MPTG dated as
of the Effective Date, signed by the respective President and Treasurer of each
of MPTG and certifying in such detail as Maplecrest may reasonably request the
fulfillment of the conditions set forth in this Section and the taking of all
corporate action required to perform all the transactions contemplated by this
Agreement.
11.02. Performance. MPTG shall each have performed and complied in all
material respects with all agreements, obligations and conditions required by
this Agreement to be performed or complied with by it at or prior to the
Effective Date.
11.03. Approval of MAPLECREST Shareholders. The approval of the shareholders
of Maplecrest of the Maplecrest Proposal, shall have been obtained by the
Effective Date.
11.04. Regulatory Approvals; Litigation. All permits and consents required by
state securities laws shall have been obtained. No legal proceeding by any
person shall have been instituted which questions the validity or legality of
the transactions contemplated hereby, nor shall any court order or decree have
been issued enjoining the transactions contemplated hereby.
11.05. Material Adverse Changes. No material adverse change shall have
occurred in the business, financial position, results of operations, assets,
liabilities (absolute, accrued, contingent or otherwise), reserves, operations
or prospects of MPTG and the MPTG Subsidiaries, taken as a whole, since the date
of this Agreement, nor shall any event or events have occurred which may
reasonably be expected to have a material adverse effect on the business,
financial condition, results of operations, operations or prospects of MPTG and
the MPTG Subsidiaries, taken as a whole.
11.06. Opinion of MPTG Counsel. MPTG shall have delivered to Maplecrest an
opinion of counsel to MPTG, dated the Effective Date, in the form reasonably
acceptable to Maplecrest and its counsel. Such counsel shall be entitled to rely
on opinions of other counsel and certificates of governmental officials and/or
officers of MPTG and MPTG Subsidiaries.
ARTICLE XII
ADDITIONAL CONDITIONS TO THE MERGER
12.01. Conditions to the Obligations of Each Party. The obligations of each
party to consummate the Merger are subject to the satisfaction of the following
conditions:
(i) there shall not be any statute, rule or regulation, which makes
consummation of the Merger or performance of any of the transactions
contemplated hereby illegal or otherwise prohibited, or any order, decree,
injunction or judgment enjoining consummation of the Merger or performance of
such transaction; and
(ii) the issuance of the MPTG Stock to be issued in exchange for Maplecrest
Stock pursuant to the Merger shall have received all federal and state
authorizations necessary to carry out the transactions contemplated thereby.
12.02. Employment Agreements and Stock Options.
(a) Prior to the Effective Date, MPTG shall have entered into an Employment
Agreement with G. Richard Gressett (the "Gressett Agreement") effective the
Effective Date and providing for the employment of Mr. Gressett for a term of
three (3) years from the Effective Date. The Gressett Agreement shall be in
form acceptable to both MPTG and Mr. Gressett, and shall provide, among other
things, for (i) the employment of Mr. Gressett for a term of three years at a
base salary of $250,000 per year; (ii) the grant to Mr. Gressett options under
the MPTG Stock Option Plan, (iii) a severance benefit in the event of
termination of the agreement or a change in control.
(b) Prior to the Effective Date, MPTG shall have entered into an Employment
Agreement with Robin H. Hirschfield (the "Hirschfield Agreement") effective the
Effective Date and providing for the employment of Ms. Hirschfield for a term of
three (3) years from the Effective Date. The Hirschfield Agreement shall be in
form acceptable to both MPTG and Ms. Hirschfield, and shall provide, among other
things, for (i) the employment of Ms. Hirschfield for a term of three years at a
base salary of $120,000 per year; (ii) the grant to Ms. Hirschfield options
under the MPTG Stock Option Plan, (iii) a severance benefit in the event of
termination of the agreement or a change in control.
12.03. Designee to MPTG Board of Directors. Mr. Gressett and his designee
shall have been elected to the MPTG board of Directors. Newell Crane shall agree
to vote for Mr. Gressett and his designee as directors of MPTG in each of the
four (4) years following the Effective Date.
12.04. Bridge Financing. At or prior to the Effective Date (or subject to the
Effective Date if prior to the Effective Date), MPTG shall have entered into a
letter of intent for bridge financing in the aggregate amount of not less than
$500,000.
12.05. Proposed Public Offering. MPTG shall have entered into a letter of
intent for a public offering from which MPTG will realize gross proceeds of
approximately $8,000,000.
12.06. Transfer Of Condominium. MPTG shall have caused to be transferred to Mr.
Gressett all right, title and interest to the condominium owned by Maplecrest
and shall have assumed all liability for existing mortgages on the condominium.
12.07. Lockup Agreement. All Shareholders of MPTG, except for holders of
212,500 unrestricted shares of MPTG common stack, shall have agreed to be
subject to the same restrictions on the resale of their sales as the holders of
the MPTG common stock issued in the merger.
ARTICLE XIII
TERMINATION
13.01. Termination. This Agreement may be terminated and the Merger may be
abandoned at any time prior to the Effective Date (whether before or after
approval of this Agreement by the shareholders of Maplecrest):
(a) by mutual written consent of Maplecrest and MPTG;
(b) by either Maplecrest or MPTG, if the Merger has not been consummated by
December 31, 1999;
(c) by either Maplecrest or MPTG if there shall be any statute, rule or
regulation which makes consummation of the Merger illegal or otherwise
prohibited or any order, decree, injunction or judgment enjoining MPTG or
Maplecrest from consummating the Merger and such order, decree, injunction or
judgment shall have become final and non-appealable;
(d) by MPTG upon the occurrence of any event that would result in a failure of
any of the conditions set forth in Article X and XII hereof; or
(e) by Maplecrest upon the occurrence of any event that would result in a
failure of any of the conditions set forth in Articles XI and XII hereof; or
13.02. Effect of Termination. If this Agreement is terminated pursuant to this
Section, this Agreement shall become void and of no effect with no liability on
the part of any party hereto.
ARTICLE XIV
CLOSING
14.01. Closing. Unless this Agreement shall have been terminated and the
Merger herein contemplated shall have been abandoned, a closing will be held
following the satisfaction or waiver of the conditions specified in Articles X,
XI and XII, at the offices of Masterpiece Technology Group, Inc. or at such
other place as the parties shall agree to.
ARTICLE XV
MISCELLANEOUS
15.01. Notices. All notices, requests and other communications to any party
hereunder shall be in writing (including telex or similar writing) and shall be
given:
If to Maplecrest to:
G. Richard Gressett
Maplecrest Software
11 Lake Ave. Ext.
Danbury, CT 06811
with copies to:
Victor J. DiGioia, Esq.
Goldstein & DiGioia, LLP
369 Lexington Avenue
New York, New York 10017
If to MPTG to:
Newell D. Crane
Masterpiece Technology Group
455 Wards Corner Road
Loveland, OH 45140
with copies to:
Jim Parsons, Esq.
500 108 Avenue NE
Suite 1710
Bellevue WA 98004
or such other address as such party may hereafter specify by notice to the other
parties hereto. Each such notice, request or other communication shall be
effective (a) if given by facsimile, when the appropriate answer back is
received or (b) if given by any other means, when delivered at the address
specified in this Section.
15.02. Survival of Representations and Warranties. The representations and
warranties contained herein shall terminate at the Effective Date. This Section
shall not limit any covenant or agreement of the parties hereto which by its
terms contemplates performance after the Effective Date.
15.03. Waivers. At any time prior to the Effective Date, MPTG, on the one
hand, and Maplecrest, on the other hand, may (a) extend the time for the
performance of any agreement of another party hereto, (b) waive any inaccuracy
in the representations and warranties contained herein or in any document
delivered pursuant hereto or (c), waive compliance with any agreement or
condition contained herein. Any agreement on the part of any party to any such
extension or waiver shall be effective only if set forth in a writing signed on
behalf of such party and delivered to the other parties.
15.04. Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns; provided, that no party may assign or otherwise transfer
any of its rights or obligations under this Agreement without the consent of
each of the other parties hereto. This Agreement shall be binding upon and is
solely for the benefit of each of the parties hereto and their respective
successors and assigns, and nothing in this Agreement is intended to confer upon
any other person any rights or remedies of any nature whatsoever under or by
reason of this Agreement.
15.05. Governing Law. This Agreement shall be construed in accordance with
the laws of the State of Utah applicable to contracts made and to be performed
entirely therein.
15.06. Counterparts; Effectiveness. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same force
and effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received counterparts hereof signed by the other parties hereto.
15.07. Entire Agreement. This Agreement, including the Schedules and
Exhibits hereto, contains all of the terms, conditions and representations and
warranties agreed upon by the parties relating to the subject matter of this
Agreement and supersedes all prior and contemporaneous agreements, negotiations,
correspondence, undertakings and communications of the parties, oral or written,
respecting such subject matter.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective officers, all as of the day and year first above written.
MASTERPIECE TECHNOLOGY GROUP, INC.
A Utah Corporation
By: /s/ Newell Crane
Newell D. Crane, M.B.A., Ph.D.
President & CEO
MAPLECREST SOFTWARE DEVELOPMENT, INC.
A Connecticut Corporation
By: /s/ Richard Gressett
G. Richard Gressett
President & CEO
MASTERPIECE Technology Group
455 Wards Corner Road / Loveland, Ohio 45140 / 513-831-6647 ? FAX 513-831-5633
