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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K/A
AMENDMENT NO. 1 TO
CURRENT REPORT PURSUANT TO
SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
May 10, 2000
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Date of report (Date of earliest event reported)
INTERNATIONAL FUEL TECHNOLOGY, INC.
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(Exact Name of Registrant as Specified in its Charter)
Nevada
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(State or Other Jurisdiction of Incorporation)
000-25367 88-0357508
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(Commission File Number) (IRS Employer Identification No.)
7777 Bonhomme, Suite 1920, St. Louis, Missouri 63105
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(Address of Principal Executive Offices) (Zip Code)
(314) 727-3333
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(Registrant's Telephone Number, Including Area Code)
N/A
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(Former Name or Former Address, if Changed Since Last Report)
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INTERNATIONAL FUEL TECHNOLOGY, INC.
FORM 8-K/A
The registrant hereby amends the following items, financial statements,
exhibits or other portions of its Current Report on Form 8-K originally filed
with the Securities and Exchange Commission on November 4, 1999 to: (i) correct
the description of the merger transaction and (ii) file the original Agreement
and Plan of Merger between Blencathia Acquisition Corporation and International
Fuel Technology, Inc. and a related agreement entered into between International
Fuel Technology, Inc. and TPG Capital Corporation. Except as amended below, the
Form 8-K is unchanged.
ITEM 1. CHANGES IN CONTROL OF REGISTRANT
(a) Pursuant to an Agreement and Plan of Merger (the "Merger Agreement")
dated as of October 27, 1999 between Blencathia Acquisition Corporation
("Blencathia"), a Delaware corporation, and International Fuel Technology, Inc.
("International Fuel" or the "Company"), a Nevada corporation, all the
outstanding shares of common stock of Blencathia were exchanged for 300,000
shares of common stock of International Fuel, $.01 par value, in a transaction
in which International Fuel was the surviving company. The Merger Agreement was
adopted by the unanimous consent of the Board of Directors of Blencathia and
approved by the unanimous consent of the shareholders of Blencathia on October
27, 1999. The Merger Agreement was adopted by the unanimous consent of the Board
of Directors of International Fuel on October 19, 1999. Prior to the merger,
Blencathia had 5,000,000 shares of common stock outstanding of which it redeemed
and retired 4,700,000 shares. Pursuant to the Merger Agreement, International
Fuel agreed to exchange 300,000 shares of common stock of International Fuel for
the remaining 300,000 shares of common stock of Blencathia. The officers,
directors, and by-laws of International Fuel will continue without change as the
officers, directors, and by-laws of the successor issuer. In a related
transaction following the Blencathia merger, International Fuel paid
consideration consisting of $100,000 cash to TPG Capital Corporation ("TPG"), a
former shareholder of Blencathia, pursuant to an agreement entered into in
October, 1999 (the "Consulting Agreement"), under which International Fuel
engaged TPG to provide services in connection with effecting a business
combination between International Fuel and a publicly reporting company. Under
the terms of the Consulting Agreement, International Fuel also agreed to place
the International Fuel shares granted to Blencathia shareholders under the
Merger Agreement into escrow and to register and sell such shares on behalf of
Blencathia shareholders for aggregate consideration of $500,000. A copy of each
of the Merger Agreement and the Consulting Agreement is filed as an exhibit to
this Form 8-K and each is incorporated in its entirety herein. The foregoing
description is modified by such reference.
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EXHIBITS
2.1 Agreement and Plan of Merger between Blencathia Acquisition
Corporation and Registrant dated October 7, 1999.
10.1 Agreement between TPG Capital Corporation and Registrant dated
effective October 29, 1999.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
INTERNATIONAL FUEL TECHNOLOGY, INC.
Date: May 10, 2000 By: /s/ WILLIAM J. LINDENMAYER
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William J. Lindenmayer, President
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EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER between BLENCATHIA ACQUISITION CORPORATION, a
Delaware corporation ("Blencathia"), and INTERNATIONAL FUEL TECHNOLOGY, INC., a
Nevada corporation ("International Fuel"), Blencathia and International Fuel
being sometimes referred to herein as the "Constituent Corporations."
WHEREAS, the board of directors of each Constituent Corporation deems it
advisable that the Constituent Corporations merge into a single corporation in a
transaction intended to qualify as a reorganization within the meaning of
(S)368(a)(1)(A) of the Internal Revenue Code of 1986, as amended ("the Merger");
NOW, THEREFORE, in consideration of the premises and the respective mutual
covenants, representations and warranties herein contained, the parties agree as
follows:
1. Surviving Corporation. Blencathia shall be merged with and into
International Fuel which shall be the surviving corporation in accordance with
the applicable laws of International Fuel's state of incorporation.
2. Merger Date. The Merger shall become effective (the "Merger Date") upon
the completion of:
2.1. Adoption of this agreement by Blencathia pursuant to the General
Corporation Law of Delaware and by International Fuel pursuant to the Nevada
Revised Statutes and the Nevada General Corporation Law.
2.2. Execution and filing by International Fuel of the Articles of
Merger with the Secretary of State of the State of Nevada in accordance with the
Nevada Revised Statutes and the Nevada General Corporation Law; and
2.3. Execution and filing by Blencathia of the Certificate of Merger
with the Secretary of State of the State of Delaware in accordance with the
General Corporation Law of Delaware.
3. Time of Filings. The Articles of Merger shall be filed with the
Department of State of the State of Nevada and the Certificate of Merger shall
be filed with the Secretary of State of Delaware upon the approval, as required,
of this agreement by the Constituent Corporations and the fulfillment or waiver
of the terms and conditions herein.
4. Governing Law. The surviving corporation shall be governed by the laws
of the state of incorporation of International Fuel.
5. Articles of Incorporation. The Articles of Incorporation of
International Fuel shall be the Articles of Incorporation of the surviving
corporation from and after the Merger Date, subject to the right of
International Fuel to amend its Certificate of Incorporation in accordance with
the laws of the State of its incorporation.
6. Bylaws. The Bylaws of the surviving corporation shall be the Bylaws of
International
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AGREEMENT AND PLAN OF MERGER PAGE NUMBER 2
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Fuel as in effect on the date of this agreement.
7. Board of Directors and Officers. The officers and directors of
International Fuel, or such other persons as shall be selected by International
Fuel, shall be the officers and directors of the surviving corporation following
the Merger Date.
8. Name of Surviving Corporation. The name of the surviving corporation
will continue as "International Fuel Technology, Inc." unless changed by
International Fuel.
9. Conversion. The mode of carrying the Merger into effect and the manner
and basis of converting the shares of Blencathia into shares of International
Fuel are as follows:
9.1. The aggregate number of shares of Blencathia Common Stock issued
and outstanding on the Merger Date shall, by virtue of the Merger and without
any action on the part of the holders thereof, be converted into an aggregate of
300,000 shares of International Fuel Common Stock adjusted by any increase for
fractional shares and reduced by any Dissenting Shares (defined below),
9.2. Upon completion of the Merger, there shall be 16,693,901 shares
of International Fuel Common Stock issued and outstanding, subject to such
adjustments, held as follows: 300,000 common shares held by the former
shareholders of Blencathia and 16,393,901 common shares held by the shareholders
of International Fuel.
9.3. All outstanding Common or Preferred Stock of Blencathia and all
warrants, options or other rights to its Common or Preferred Stock shall be
retired and canceled as of the Merger Date.
9.4. Each share of Blencathia Common Stock that is issued and
outstanding owned by Blencathia as treasury stock shall, by virtue of the Merger
and without any action on the part of Blencathia, be retired and canceled as of
the Merger Date.
9.5. Each certificate evidencing ownership of shares of International
Fuel Common Stock issued and outstanding on the Merger Date or held by
International Fuel in its treasury shall continue to evidence ownership of the
same number of shares of International Fuel Common Stock.
9.6. International Fuel Common Stock shall be issued to the holders of
Blencathia Common Stock in exchange for their shares on a pro rata basis in
accordance with each holder's relative ownership of the Blencathia Common Stock
that is being exchanged.
9.7. The shares of International Fuel Common Stock to be issued in
exchange for Blencathia Common Stock hereunder shall be proportionately reduced
by any shares owned by Blencathia shareholders who shall have timely objected to
the Merger (the "Dissenting Shares") in accordance with the provisions of the
General Corporation Law of Delaware, as provided therein.
10. Exchange of Certificates. As promptly as practicable after the Merger
Date, each holder of an outstanding certificate or certificates theretofore
representing shares of Blencathia
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AGREEMENT AND PLAN OF MERGER PAGE NUMBER 3
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Common Stock (other than certificates representing Dissenting Shares) shall
surrender such certificate(s) for cancellation to the party designated herein to
handle such exchange (the "Exchange Agent"), and shall receive in exchange a
certificate or certificates representing the number of full shares of
International Fuel Common Stock into which the shares of Blencathia Common Stock
represented by the certificate or certificates so surrendered shall have been
converted. Any exchange of fractional shares will be rounded up to the next
highest number of full shares. International Fuel may, in its discretion,
require a bond in customary form before issuing any share certificate where a
corresponding share certificate has not been delivered by a shareholder of
Blencathia because of loss or other reason.
11. Unexchanged Certificates. Until surrendered, each outstanding
certificate that prior to the Merger Date represented Blencathia Common Stock
(other than certificates representing Dissenting Shares) shall be deemed for all
purposes, other than the payment of dividends or other distributions, to
evidence ownership of the number of shares of International Fuel Common Stock
into which it was converted. No dividend or other distribution payable to
holders of International Fuel Common Stock as of any date subsequent to the
Merger Date shall be paid to the holders of outstanding certificates of
Blencathia Common Stock; provided, however, that upon surrender and exchange of
such outstanding certificates (other than certificates representing Dissenting
Shares), there shall be paid to the record holders of the certificates issued in
exchange therefor the amount, without interest thereon, of dividends and other
distributions that would have been payable subsequent to the Merger Date with
respect to the shares of International Fuel Common Stock represented thereby.
12. Effect of the Merger. On the Merger Date, the separate existence of
Blencathia shall cease (except insofar as continued by statute), and it shall be
merged with and into International Fuel. All the property, real, personal, and
mixed, of each of the Constituent Corporations, and all debts due to either of
them, shall be transferred to and vested in International Fuel, without further
act or deed. International Fuel shall thenceforth be responsible and liable for
all the liabilities and obligations, including liabilities to holders of
Dissenting Shares, of each of the Constituent Corporations, and any claim or
judgment against either of the Constituent Corporations may be enforced against
International Fuel.
13. Representations and Warranties of Blencathia. Blencathia represents and
warrants that:
13.1. Corporate Organization and Good Standing. Blencathia is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Delaware, and is qualified to do business as a foreign
corporation in each jurisdiction, if any, in which its property or business
requires such qualification.
13.2. Reporting Company Status. Blencathia has filed with the
Securities and Exchange Commission a registration statement on Form 10-SB which
became effective pursuant to the Securities Exchange Act of 1934 and is a
reporting company pursuant to (S) 12(g) thereunder.
13.3. Reporting Company Filings. Blencathia has timely filed and is
current on all reports required to be filed by it pursuant to (S) 13 of the
Securities Exchange Act of 1934.
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AGREEMENT AND PLAN OF MERGER PAGE NUMBER 4
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13.4. Capitalization. Blencathia's authorized capital stock consists
of 120,000,000 shares of Common Stock, $.0001 par value, of which 5,000,000
shares are issued and outstanding, and 20,000,000 shares of non-designated
preferred stock of which no shares are designated or issued.
13.5. Issued Stock. All the outstanding shares of its Common Stock are
duly authorized and validly issued, fully paid and non-assessable.
13.6. Stock Rights. Except as set out by attached schedule, there are
no stock grants, options, rights, warrants or other rights to purchase or obtain
Blencathia Common or Preferred Stock issued or committed to be issued.
13.7. Corporate Authority. Blencathia has all requisite corporate
power and authority to own, operate and lease its properties, to carry on its
business as it is now being conducted and to execute, deliver, perform and
conclude the transactions contemplated by this agreement and all other
agreements and instruments related to this agreement.
13.8. Authorization. Execution of this agreement has been duly
authorized and approved by Blencathia's board of directors.
13.9. Subsidiaries. Except as set out by attached schedule, Blencathia
has no subsidiaries.
13.10. Financial Statements. Blencathia's financial statements dated
June 30, 1999, copies of which will have been delivered by Blencathia to
International Fuel prior to the Merger Date (the "Blencathia Financial
Statements"), fairly present the financial condition of Blencathia as of the
date therein and the results of its operations for the periods then ended in
conformity with generally accepted accounting principles consistently applied.
13.11. Absence of Undisclosed Liabilities. Except to the extent
reflected or reserved against in the Blencathia Financial Statements, Blencathia
did not have at that date any liabilities or obligations (secured, unsecured,
contingent, or otherwise) of a nature customarily reflected in a corporate
balance sheet prepared in accordance with generally accepted accounting
principles.
13.12. No Material Changes. Except as set out by attached schedule,
there has been no material adverse change in the business, properties, or
financial condition of Blencathia since the date of the Blencathia Financial
Statements.
13.13. Litigation. Except as set out by attached schedule, there is
not, to the knowledge of Blencathia, any pending, threatened, or existing
litigation, bankruptcy, criminal, civil, or regulatory proceeding or
investigation, threatened or contemplated against Blencathia or against any of
its officers.
13.14. Contracts. Except as set out by attached schedule, Blencathia
is not a party to any material contract not in the ordinary course of business
that is to be performed in whole or in part at or after the date of this
agreement.
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AGREEMENT AND PLAN OF MERGER PAGE NUMBER 5
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13.15. Title. Except as set out by attached schedule, Blencathia has
good and marketable title to all the real property and good and valid title to
all other property included in the Blencathia Financial Statements. Except as
set out in the balance sheet thereof, the properties of Blencathia are not
subject to any mortgage, encumbrance, or lien of any kind except minor
encumbrances that do not materially interfere with the use of the property in
the conduct of the business of Blencathia.
13.16. Tax Returns. Except as set out by attached schedule, all
required tax returns for federal, state, county, municipal, local, foreign and
other taxes and assessments have been properly prepared and filed by Blencathia
for all years for which such returns are due unless an extension for filing any
such return has been filed. Any and all federal, state, county, municipal,
local, foreign and other taxes and assessments, including any and all interest,
penalties and additions imposed with respect to such amounts have been paid or,
if any is outstanding as at the date hereof, provision has been made prorated to
the Merger Date hereof to be an adjustment to the credit of International Fuel
payable to International Fuel on the Merger. The provisions for federal and
state taxes reflected in the Blencathia Financial Statements are adequate to
cover any such taxes that may be assessed against Blencathia in respect of its
business and its operations during the periods covered by the Blencathia
Financial Statements and all prior periods.
13.17. No Violation. Consummation of the Merger will not constitute or
result in a breach or default under any provision of any charter, bylaw,
indenture, mortgage, lease, or agreement, or any order, judgment, decree, law,
or regulation to which any property of Blencathia is subject or by which
Blencathia is bound.
14. Representations and Warranties of International Fuel. International
Fuel represents and warrants that:
14.1. Corporate Organization and Good Standing. International Fuel is
a corporation duly organized, validly existing, and in good standing under the
laws of the State of Nevada and is qualified to do business as a foreign
corporation in each jurisdiction, if any, in which its properly or business
requires such qualification.
14.2. Capitalization. International Fuel's authorized capital stock
consists of 150,000,000 shares of Common Stock, $0.01 par value, of which
16,393,901 shares are issued and outstanding. There are no preferred shares
authorized.
14.3. Issued Stock. All the outstanding shares of its Common Stock are
duly authorized and validly issued, fully paid and non-assessable.
14.4. Stock Rights. Except as set out by attached schedule, there are
no stock grants, options, rights, warrants or other rights to purchase or obtain
international Fuel Common or Preferred Stock issued or committed to be issued.
14.5. Corporate Authority. International Fuel has all requisite
corporate power and authority to own, operate and lease its properties, to carry
on its business as it is now being conducted and to execute, deliver, perform
and conclude the transactions contemplated by this
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AGREEMENT AND PLAN OF MERGER PAGE NUMBER 6
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Agreement and all other agreements and instruments related to this agreement.
14.6. Authorization. Execution of this agreement has been duly
authorized and approved by International Fuel's board of directors.
14.7. Subsidiaries. Except as set out by attached schedule,
International Fuel has no subsidiaries.
14.8. Financial Statements. International Fuel's financial statements
dated as of ________copies of which will have been delivered by International
Fuel to Blencathia prior to the Merger Date (the "International Fuel Financial
Statements"), fairly present the financial condition of International Fuel as of
the date therein and the results of its operations for the periods then ended in
conformity with generally accepted accounting principles consistently applied.
14.9. Absence of Undisclosed Liabilities. Except to the extent
reflected or reserved against in the International Fuel Financial Statements,
International Fuel did not have at that date any liabilities or obligations
(secured, unsecured, contingent, or otherwise) of a nature customarily reflected
in a corporate balance sheet prepared in accordance with generally accepted
accounting principles.
14.10. No Material Changes. Except as set out by attached schedule,
there has been no material adverse change in the business, properties, or
financial condition of International Fuel since the date of the International
Fuel Financial Statements.
14.11. Litigation. Except as set out by attached schedule, there is
not, to the knowledge of International Fuel, any pending, threatened, or
existing litigation, bankruptcy, criminal, civil, or regulatory proceeding or
investigation, threatened or contemplated against International Fuel or against
any of its officers.
14.12. Contracts. Except as set out by attached schedule,
International Fuel is not a party to any material contract not in the ordinary
course of business that is to be performed in whole or in part at or after the
date of this agreement.
14.13. Title. Except as set out by attached schedule, International
Fuel has good and marketable title to all the real property and good and valid
title to all other property included in the International Fuel Financial
Statements. Except as set out in the balance sheet thereof, the properties of
International Fuel are not subject to any mortgage, encumbrance, or lien of any
kind except minor encumbrances that do not materially interfere with the use of
the property in the conduct of the business of International Fuel.
14.14. Tax Returns. Except as set out by attached schedule, all
required tax returns for federal, state, county, municipal, local, foreign and
other taxes and assessments have been properly prepared and filed by
International Fuel for all years for which such returns are due unless an
extension for filing any such return has been filed. Any and all federal, state,
county, municipal, local, foreign, and other taxes and assessments, including
any and all interest, penalties and additions imposed with respect to such
amounts have been paid or, if any is outstanding as at the date hereof,
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AGREEMENT AND PLAN OF MERGER PAGE NUMBER 7
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provisions for federal and state taxes reflected in the International Fuel
Financial Statements are adequate to cover any such taxes that may be assessed
against International Fuel in respect of its business and its operations during
the periods covered by the International Fuel Financial Statements and all prior
periods.
14.15. No Violation. Consummation of the Merger will not constitute
or result in a breach or default under any provision of any charter, bylaw,
indenture, mortgage, lease, or agreement, or any order, judgment, decree, law,
or regulation to which any property of International Fuel is subject or by which
International Fuel is bound.
15. Conduct of Blencathia Pending the Merger Date. Blencathia covenants
that between the date of this Agreement and the Merger Date:
15.1. No change will be made in Blencathia's articles of
incorporation or bylaws.
15.2. Blencathia will not make any change in its authorized or issued
capital stock, declare or pay any dividend or other distribution or issue,
encumber, purchase, or otherwise acquire any of its capital stock other than as
provided herein.
15.3. Blencathia will use its best efforts to maintain and preserve
its business organization, employee relationships, and goodwill intact, and will
not enter into any material commitment except in the ordinary course of
business.
16. Conduct of International Fuel Pending the Merger Date. International
Fuel covenants that between the date of this agreement and the Merger Date:
16.1. No change will be made in International Fuel's certificate or
articles of incorporation or bylaws.
16.2. International Fuel will not make any change in its authorized
or issued capital stock, declare or pay any dividend or other distribution or
issue, encumber, purchase, or otherwise acquire any of its capital stock
otherwise than as provided herein.
16.3. International Fuel will use its best efforts to maintain and
preserve its business organization, employee relationships, and goodwill intact,
and will not enter into any material commitment except in the ordinary course of
business.
17. Conditions Precedent to Obligation of Blencathia. Blencathia's
obligation to consummate the Merger shall be subject to fulfillment on or before
the Merger Date of each of the following conditions, unless waived in writing by
Blencathia:
17.1. International Fuel's Representations and Warranties. The
representations and warranties of International Fuel set forth herein shall be
true and correct at the Merger Date as though made at and as of that date,
except as affected by transactions contemplated hereby.
17.2. International Fuel's Covenants. International Fuel shall have
performed all
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AGREEMENT AND PLAN OF MERGER PAGE NUMBER 8
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covenants required by this agreement to be performed by it on or before the
Merger Date.
17.3. Approval. This agreement shall have been approved by
International Fuel in such manner as is required by law including all
appropriate action by directors and, if required, by shareholders.
17.4. Supporting Documents of International Fuel. International Fuel
shall have delivered to Blencathia supporting documents in form and substance
satisfactory to Blencathia to the effect that:
(i) International Fuel is a corporation duly organized, validly
existing, and in good standing.
(ii) International Fuel's authorized and issued capital stock is as
set forth herein.
(iii) The execution and adoption of this agreement have been duly
authorized by International Fuel in such manner as is required by law including
all appropriate action by directors and, if required, by shareholders.
18. Conditions Precedent to Obligation of International Fuel.
International Fuel's obligation to consummate the Merger shall be subject to
fulfillment on or before the Merger Date of each of the following conditions,
unless waived in writing by International Fuel:
18.1. Blencathia's Representations and Warranties. The
representations and warranties of Blencathia set forth herein shall be true and
correct at the Merger Date as though made at and as of that date, except as
affected by transactions contemplated hereby.
18.2. Blencathia's Covenants. Blencathia shall have performed all
covenants required by this agreement to be performed by it on or before the
Merger Date.
18.3. Approval. This agreement shall have been approved by Blencathia
in such manner as is required by law including all appropriate action by
directors and, if required, by shareholders.
18.4. Supporting Documents of Blencathia. Blencathia shall have
delivered to International Fuel supporting documents in form and substance
satisfactory to International Fuel to the effect that:
(i) Blencathia is a corporation duly organized, validly existing, and
in good standing.
(ii) Blencathia's authorized and issued capital stock is as set forth
herein.
(iii) The execution and adoption of this agreement have been duly
authorized by Blencathia in such manner as is required by law including all
appropriate action by directors and, if required, by shareholders.
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AGREEMENT AND PLAN OF MERGER PAGE NUMBER 9
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19. Access. From the date hereof to the Merger Date, International Fuel and
Blencathia shall provide each other with such information and permit each
other's officers and representatives such access to its properties and books and
records as the other may from time to time reasonably request. If the Merger is
not consummated, all documents received in connection with this agreement shall
be returned to the party furnishing such documents, and all information so
received shall be treated as confidential.
20. Closing.
20.1. The transfers and deliveries to be made pursuant to this
agreement (the "Closing") shall be made by and take place at the offices of the
Exchange Agent or other location designated by the Constituent Corporations
without requiring the meeting of the parties hereof. All proceedings to be taken
and all documents to be executed at the Closing shall be deemed to have been
taken, delivered and executed simultaneously, and no proceeding shall be deemed
taken nor documents deemed executed or delivered until all have been taken,
delivered and executed.
20.2. Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission required by this agreement or any
signature required thereon may be used in lieu of an original writing or
transmission or signature for any and all purposes for which the original could
be used, provided that such copy, facsimile telecommunication or other
reproduction shall be a complete reproduction of the entire original writing or
transmission or original signature.
20.3. At the Closing, Blencathia shall deliver to the Exchange Agent
in satisfactory form, if not already delivered to International Fuel:
(i) A list of the holders of record of the shares of Blencathia Common
Stock being exchanged, with an itemization of the number of shares held by each,
the address of each holder, and the aggregate number of shares of International
Fuel Common Stock to be issued to each holder;
(ii) Evidence of the execution and adoption of this agreement in such
manner as is required by law including all appropriate action by directors and,
if required, by shareholders;
(iii) Certificate of the Secretary of State of Delaware as of a recent
date as to the good standing of Blencathia;
(iv) Certified copies of the resolutions of the board of directors of
Blencathia authorizing the execution of this agreement and the consummation of
the Merger;
(v) The Blencathia Financial Statements;
(vi) Secretary's certificate of incumbency of the officers and
directors of Blencathia;
(vii) Any document as may be specified herein or required to satisfy
the conditions, representations and warranties enumerated elsewhere herein; and
(viii) the share certificates for the outstanding Common Stock of
Blencathia to be
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AGREEMENT AND PLAN OF MERGER PAGE NUMBER 10
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exchanged hereunder or, where any such certificate is not delivered, an
affidavit of lost certificate or other reason for non-delivery.
20.4. At the Closing, International Fuel shall deliver to the Exchange
Agent in satisfactory form, if not already delivered to Blencathia:
(i) A list of its shareholders of record;
(ii) Evidence of the execution and adoption of this agreement in such
manner as is required by law including all appropriate action by directors and,
if required, by shareholders;
(iii) Certificate of the Secretary of State of its state of
incorporation as of a recent date as to the good standing of International Fuel;
(iv) Certified copies of the resolutions of the board of directors of
International Fuel authorizing the execution of this agreement and the
consummation of the Merger;
(v) The International Fuel Financial Statements;
(vi) Secretary's certificate of incumbency of the officers and
directors of International Fuel;
(vii) Any document as may be specified herein or required to satisfy
the conditions, representations and warranties enumerated elsewhere herein; and
(viii) the share certificates of International Fuel to be delivered
to the shareholders of Blencathia hereunder, in proper names and amounts, and
bearing legends, if any, required and appropriate under applicable securities
laws.
21. Survival of Representations and Warranties. The representations and
warranties of the Constituent Corporations set out herein shall survive the
Merger Date.
22. Arbitration.
22.1. Scope. The parties hereby agree that any and all claims (except
only for requests for injunctive or other equitable relief) whether existing
now, in the past or in the future as to which the parties or any affiliates may
be adverse parties, and whether arising out of this agreement or from any other
cause, will be resolved by arbitration before the American Arbitration
Association within the State of Nevada.
22.2. Consent to Jurisdiction, Situs and Judgement. The parties
hereby irrevocably consent to the jurisdiction of the American Arbitration
Association and the situs of the arbitration (and any requests for injunctive or
other equitable relief) within the State of Nevada. Any award in arbitration may
be entered in any domestic or foreign court having jurisdiction over the
enforcement of such awards.
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AGREEMENT AND PLAN OF MERGER PAGE NUMBER 11
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22.3. Applicable Law. The law applicable to the arbitration and this
agreement shall be that of the State of Nevada, determined without regard to its
provisions which would otherwise apply to a question of conflict of laws.
22.4. Disclosure and Discovery. The arbitrator may, in its discretion,
allow the parties to make reasonable disclosure and discovery in regard to any
matters which are the subject of the arbitration and to compel compliance with
such disclosure and discovery order. The arbitrator may order the parties to
comply with all or any of the disclosure and discovery provisions of the Federal
Rules of Civil Procedure, as they then exist, as may be modified by the
arbitrator consistent with the desire to simplify the conduct and minimize the
expense of the arbitration.
22.5. Rules of Law. Regardless of any practices of arbitration to the
contrary, the arbitrator will apply the rules of contract and other law of the
jurisdiction whose law applies to the arbitration so that the decision of the
arbitrator will be, as much as possible, the same as if the dispute had been
determined by a court of competent jurisdiction.
22.6. Finality and Fees. Any award or decision by the American
Arbitration Association shall be final, binding and non-appealable except as to
errors of law or the failure of the arbitrator to adhere to the arbitration
provisions contained in this agreement. Each party to the arbitration shall pay
its own costs and counsel fees except as specifically provided otherwise in this
agreement.
22.7. Measure of Damages. In any adverse action, the parties shall
restrict themselves to claims for compensatory damages and\or securities issued
or to be issued and no claims shall be made by any party or affiliate for lost
profits, punitive or multiple damages.
22.8. Covenant Not to Sue. The parties covenant that under no
conditions will any party or any affiliate file any action against the other
(except only requests for injunctive or other equitable relief) in any forum
other than before the American Arbitration Association, and the parties agree
that any such action, if filed, shall be dismissed upon application and shall be
referred for arbitration hereunder with costs and attorney's fees to the
prevailing party.
22.9. Intention. It is the intention of the parties and their
affiliates that all disputes of any nature between them, whenever arising,
whether in regard to this agreement or any other matter, from whatever cause,
based on whatever law, rule or regulation, whether statutory or common law, and
however characterized, be decided by arbitration as provided herein and that no
party or affiliate be required to litigate in any other forum any disputes or
other matters except for requests for injunctive or equitable relief. This
agreement shall be interpreted in conformance with this stated intent of the
parties and their affiliates.
22.10. Survival. The provisions for arbitration contained herein shall
survive the termination of this agreement for any reason.
<PAGE>
AGREEMENT AND PLAN OF MEMBER PAGE NUMBER 12
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23. General Provisions.
23.1. Further Assurances. From time to time, each party will execute
such additional instruments and take such actions as may be reasonably required
to carry out the intent and purposes of this agreement.
23.2. Waiver. Any failure on the part of either party hereto to comply
with any of its obligations, agreements, or conditions hereunder may be waived
in writing by the party to whom such compliance is owed.
23.3. Brokers. Each party agrees to indemnify and hold harmless the
other party against any fee, loss, or expense arising out of claims by brokers
or finders employed or alleged to have been employed by the indemnifying party.
23.4. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been given if delivered in person or sent
by prepaid first-class certified mail, return receipt requested, or recognized
commercial courier service, as follows:
If to Blencathia, to:
Blencathia Corporation
1504 R Street, N.W.
Washington, D,C. 20009
If to International Fuel, to:
International Fuel Technology, Inc.
7777 Bonhomme Avenue
Suite 1920
Clayton, Missouri 63105
24. Governing Law. This agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Nevada.
25. Assignment. This agreement shall inure to the benefit of, and be
binding upon, the parties hereto and their successors and assigns; provided,
however, that any assignment by either party of its rights under this agreement
without the written consent of the other party shall be void.
26. Counterparts. This agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Signatures sent by
facsimile transmission shall be deemed to be evidence of the original execution
thereof.
27. Exchange Agent and Closing Date. The Exchange Agent shall be Cassidy &
Associates, Washington, D.C. The Closing shall take place upon the fulfillment
by each party of
<PAGE>
AGREEMENT AND PLAN OF MERGER PAGE NUMBER 13
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all the conditions of Closing required herein, but not later than 5 days
following execution of this agreement unless extended by mutual consent of the
parties.
28. Review of Agreement. Each party acknowledges that it has had time to
review this agreement and, as desired, consult with counsel. In the
interpretation of this agreement, no adverse presumption shall be made against
any party on the basis that it has prepared, or participated in the preparation
of, this agreement.
29. Schedules. All schedules attached hereto, if any, shall be
acknowledged by each party by signature or initials thereon.
30. Effective Date. This effective date of this agreement shall be the
date the Articles of Merger are filed with the Secretary of State of the State
of Nevada.
<PAGE>
AGREEMENT AND PLAN OF MERGER PAGE NUMBER 14
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Signature Page to Agreement and Plan of Merger
between Blencathia Corporation and
International Fuel Technologies, Inc.
IN WITNESS WHEREOF, the parties have executed this agreement.
BLENCATHIA ACQUISITION CORPORATION
By /s/ James M. Cassidy
-------------------------------------
INTERNATIONAL FUEL TECHNOLOGIES, INC.
By /s/ Jonathon R. Burst
-------------------------------------
President
<PAGE>
EXHIBIT 10.1
AGREEMENT setting forth the terms and conditions upon which TPG CAPITAL
CORPORATION ("TPG") is engaged by INTERNATIONAL FUEL TECHNOLOGIES, INC. together
with any successors (collectively "International Fuel") to effect transactions
("the Transactions") intended to combine International Fuel with a United States
reporting company and for related matters.
10 Services Provided.
Following its engagement, TPG and its affiliates will:
1.1. Advise International Fuel on the structure of the Transactions and
actions to be taken by International Fuel in preparation for the completion of
the Transactions;
1.2. Combine International Fuel with an existing United States corporation
("the Business Combination") which is a reporting company under (S) 12(g) of the
Securities Exchange Act of 1934, as amended.
1.3. Prepare, assist in preparing or review the agreement for the Business
Combination ("Business Combination Agreement");
1.4. Prepare and file with the Securities and Exchange Commission a
Form 8-K describing the Business Combination with the Company ("the Company"
hereinafter shall mean International Fuel following the Business Combination,
unless the context requires otherwise);
1.5. Take any other actions reasonably required of it to complete the
Transactions as contemplated by this Agreement.
20 Business Combination.
TPG will provide, at its expense, a United States corporation with audited
financial statements showing no material assets or liabilities which is a
reporting company under (S) 12(g) of the Securities Exchange Act of 1934 ("the
1934 Act"), and is current in its reporting requirements under Section 13 of the
1934 Act.
30 Payments.
3.1. In full satisfaction for the services of TPG Capital and its
affiliates in regard to the Transactions, International Fuel will make the
payments to TPG Capital described herein. All payments hereunder will be deemed
accrued when paid and are non-refundable.
3.2. On execution this agreement, International Fuel will deposit $100,000
with the Exchange Agent named in the Business Combination Agreement. The
Exchange Agent shall pay $50,000 to TPG Capital upon the Closing of the Business
Combination and $50,000 on the filing of a Form 8-K reporting the Business
Combination.
<PAGE>
3.3. International Fuel will deposit with an escrow agent satisfactory to
the parties shares of its common stock issued under Rule 504 of Regulation
D in the name of the shareholder of the United States corporation, without
restrictive legend, to be exchanged for the shares of the United States
corporation as part of the Business Combination in the manner described herein.
3.4. Thirty days following the Closing of the Business Combination the
selected escrow agent will distribute to the former shareholder of the United
States corporation a number of escrowed shares then equal to $100,000 in value
based upon the prior 5-day average closing bid price on the NASD OTC Bulletin
Board of common stock of International Fuel. Each thirty days thereafter the
escrow agent shall make an identical distribution of the Rule 504 shares until
the total value of such distributions shall equal $500,000.
3.5. In the event that there are any escrowed Rule 504 shares remaining
following such distributions, such shares shall be returned to the Company or
shall be otherwise distributed according to its instructions. If the number of
escrowed Rule 504 shares is not sufficient to satisfy the value of the total
distributions to be made hereunder, the Company shall issue additional shares
under Rule 506 of Regulation D to satisfy any such shortfall. For the purpose of
such issuance the value of the Rule 506 shares will be determined in the same
manner as the value of the Rule 504 shares.
40 Expenses.
4.1. TPG will bear its expenses incurred in regard to the Transactions,
including, without limitation, travel, telephone, duplication costs, and
postage.
4.2. International Fuel will pay its own and third-party expenses (other
than those of TPG) including, without limitation, Federal, state and Nasdaq
filing fees, underwriting and market making costs, corporate financial
relations, accounting fees, duplicating costs and other expenses of the Company.
TPG will not incur any expenses on behalf of the Company unless permitted by it
to do so in writing.
50 Agreement to Complete Transactions.
5.1. International Fuel agrees that it will timely take all steps
necessary to complete the Transactions to include, without limitation, causing
audited financial statements to be prepared in proper form for International
Fuel; obtaining consents of the Board of Directors and the shareholders of
International Fuel, as required; causing all necessary documents to be properly
and timely prepared, executed, approved or ratified, and filed, as appropriate;
making timely and fully all required payments related to the registration and
listing of the Company's securities for public trading, including filing fees;
and timely taking all other actions reasonably required of it to complete the
Transactions.
5.2. In the event that at any time International Fuel determines not to
continue with the Transactions TPG hereby grants to International Fuel the right
to buyout the interest of TPG in this agreement on the terms contained herein,
in which case TPG agrees not to seek specific enforcement
<PAGE>
Agreement for Business Combination Page Number 3
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of this agreement. In the event that International Fuel elects not to continue
with the Transactions (or if International Fuel does not timely take all such
steps and do all such things as may be reasonably required of it to complete the
Transactions) TPG will be entitled to (i) retain the securities in International
Fuel acquired or to be acquired by TPG or its affiliates under this agreement as
though the Business Combination had occurred and (ii) receive in full all
payments to be due to it or its affiliates through and upon completion of the
Transactions as though those events had occurred provided, however, that
International Fuel will not be obligated to make any payment under this
paragraph if the failure to complete the Transactions is due to any actions or
failure to act by TPG or its affiliates. Upon payment of the buyout fee provided
for herein, all obligations of the parties under this agreement will cease
except for obligations which expressly or by their nature survive termination.
5.3. TPG represents and warrants that it will timely take all steps
reasonable and necessary to complete the Transactions and to cause the
securities of the Company to trade in the United States secondary market. Toward
such end, and without limitation on the duties of TPG provided herein, TPG
agrees at any time that it appears to TPG that it will better contribute to the
completion of the Transactions and the commencement of trading of the Company's
securities TPG will, without any further charge, provide for the preparation,
filing and effectiveness of a registration statement on Form SB-2 (or other
appropriate form) covering such of its securities as are designated by the
Company as well as the securities owned by TPG.
60 Performance of Services by Others.
From time to time, the achievement of certain results desired by the
Company, including the promotion of interest in its public securities, may be
enhanced by the services of other parties. These parties may include
consultants, advertising agencies, financial analysts and similar persons who
may, directly or indirectly, assist in creating interest in the Company's
securities. All compensation, costs and expenses of such parties, if engaged by
the Company, will be borne by it.
70 Actions and Understandings following the Business Combination.
7.1. International Fuel understands the obligations and responsibilities
that will arise in regard to its becoming a reporting company and the trading of
its securities in the public market. International Fuel understands that in
order to achieve the greatest market interest in its securities it, its officers
and its directors, all or some, will be required to continuously interact with
the financial community. This interaction will include, without limitation,
timely filing of reports under the Securities Exchange Act of 1934, including
audited financial statements; annual reports to shareholders and shareholder
meetings; issuing periodic press releases; and meetings and discussions with
existing and prospective brokers, market makers, investment bankers and
institutions.
7.2. International Fuel understands that the completion of the
Transactions will not, in itself, result in capital investment in the Company.
The public status of the Company and its introduction to market makers and
others in the financial community may result in investment interest. However,
<PAGE>
Agreement for Business Combination Page Number 4
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investment interest will depend upon the success of the Company, market
conditions and other factors over which neither TPG nor its affiliates have any
control.
7.3. International Fuel understands that the ultimate judgement of the
financial community of the investment merits of the Company will depend upon the
Company's ability to successfully carry out its business plans and operations,
to operate at a proft and similar business considerations. International Fuel
represents in good faith that it currently has no reason to believe that it will
not be able to complete the Transactions and to achieve its business
objectives.
7.4. During the Transactions and so long as TPG or an affiliate is a
shareholder of the Company, it will provide TPG continuing and reasonable access
as requested to all information concerning the Company's operations, past,
current and intended, including, without limitation, full access to the
financial records of the Company.
80 Compliance with Securities Law.
Now and following the Business Combination, as applicable, International
Fuel represents and warrants that:
8.1. International Fuel and its affiliates will at all times observe and
comply with Federal and State securities laws, rules and regulations incident to
the issuance and trading of the securities of the Company and will take all
steps reasonably required within its control to prohibit any persons, whether or
not affiliated with International Fuel, from engaging in any transactions in
contravention of such laws, rules and regulations.
8.2. International Fuel and its affiliates will furnish all information and
documents concerning it and its affiliates required for the preparation and
filing of a Form 8-K by the Company and will assure that such information is
complete and accurate and does not contain any material misstatement or omit any
material information. Toward that end, International Fuel and its affiliates
will timely provide all requested information and documents, including officers'
and directors' questionnaires.
8.3. International Fuel and its affiliates will not at any time knowingly
engage in any activity which would constitute a prohibited market manipulation
of the securities of the Company and will take all steps reasonably required
within its control to prohibit any officer, director, other affiliate, agent or
employee from engaging in such conduct.
8.4. The Company will not at any time issue securities registered on
Form S-8 or issued pursuant to Regulation S of the General Rules and Regulations
of the Securities and Exchange Commission without (i) prior written notification
to TPG and (ii) a written opinion of qualified counsel that neither the issuance
nor intended use of such securities will violate any law, rule, or regulation
under the Securities Act of 1933 or the Securities Exchange Act of 1934.
8.5. The Company will not issue any securities to any person for the
promotion or maintenance of a trading market in the Company's securities without
first receiving an opinion of qualified counsel that such issuance will be in
accord with securities laws, rules and regulations and
<PAGE>
Agreement for Business Combination Page Number 5
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will not, directly or indirectly, receive from such persons any capital by loan,
investment or otherwise resulting from the sale or pledge of such securities.
8.6. For not less than 36 months following execution of this agreement,
the Company will timely make all required Federal, state and other filings
necessary to allow the public trading of the Company's securities and, if the
Company's securities are then quoted on the Nasdaq Stock Market or listed on any
regional or national exchange, will take all actions necessary to maintain such
status for the Company's securities.
8.7. For so long as TPG or its designee is an owner of any of the
securities to be received by it under this agreement, TPG shall have the right
to enforce the provisions of this paragraph.
90 Notices.
Any notices required or permitted under this agreement shall be deemed to
have been given when delivered in writing by hand, certified mail (return
receipt requested) or commercial courier, such as FedEx, to the following
addresses or to such other addresses as may have been given to each party in the
manner provided for in this paragraph.
In the case of International Fuel to
International Fuel Technologies, Inc.
7777 Bonhomme Avenue
Suite 1920
Clayton, Missouri 63105
In the case of TPG to
TPG Capital Corporation
1504 R Street N.W.
Washington, D.C. 20009
100 Arbitration.
10.1. Scope. The parties hereby agree that any and all claims (except only
for requests for injunctive or other equitable relief) whether existing now, in
the past or in the future as to which the parties or any affiliates may be
adverse parties, and whether arising out of this agreement or from any other
cause, will be resolved by arbitration before the American Arbitration
Association within the District of Columbia.
10.2. Consent to Jurisdiction, Situs and Judgement. The parties hereby
irrevocably consent to the jurisdiction of the American Arbitration Association
and the situs of the arbitration (and of any action for injunctive or other
equitable relief) within the District of Columbia. Any
<PAGE>
Agreement for Business Combination Page Number 6
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award in arbitration may be entered in any domestic or foreign court having
jurisdiction over the enforcement of such awards.
10.3. Applicable Law. The law applicable to the arbitration and this
agreement shall be that of the District of Columbia, determined without regard
to its provisions which would otherwise apply to a question of conflict of laws.
10.4. Disclosure and Discovery. The arbitrator may, in its discretion,
allow the parties to make reasonable disclosure and discovery in regard to any
matters which are the subject of the arbitration and to compel compliance with
such disclosure and discovery order. The arbitrator may order the parties to
comply with all or any of the disclosure and discovery provisions of the Federal
Rules of Civil Procedure, as they then exist, as may be modified by the
arbitrator consistent with the desire to simplify the conduct and minimize the
expense of the arbitration.
10.5. Rules of Law. Regardless of any practices of arbitration to the
contrary, the arbitrator will apply the rules of contract and other law of the
jurisdiction whose law applies to the arbitration so that the decision of the
arbitrator will be, as much as possible, the same as if the dispute had been
determined by a court of competent jurisdiction.
10.6. Finality and Fees. Any award or decision by the American Arbitration
Association shall be final, binding and non-appealable except as to errors of
law or the failure of the arbitrator to adhere to the arbitration provisions
contained in this agreement. Each party to the arbitration shall pay its own
costs and counsel fees except as specifically provided otherwise in this
agreement.
10.7. Measure of Damages. In any adverse action, the parties shall
restrict themselves to claims for compensatory damages and\or securities issued
or to be issued and no claims shall be made by any party or affiliate for lost
profits, punitive or multiple damages.
10.8. Covenant not to Sue. The parties covenant that under no conditions
will any party or any affiliate file any action against the other (except only
requests for injunctive or other equitable relief) in any forum other than
before the American Arbitration Association, and the parties agree that any such
action, if filed, shall be dismissed upon application and shall be referred for
arbitration hereunder with costs and attorney's fees to the prevailing party.
10.9. Intention. It is the intention of the parties and their affiliates
that all disputes of any nature between them, whenever arising, whether in
regard to this agreement or any other matter, from whatever cause, based on
whatever law, rule or regulation, whether statutory or common law, and however
characterized, be decided by arbitration as provided herein and that no party or
affiliate be required to litigate in any other forum any disputes or other
matters except for requests for injunctive or equitable relief, This agreement
shall be interpreted in conformance with this stated intent of the parties and
their affiliates.
10.10. Survival. The provisions for arbitration contained herein shall
survive the termination of this agreement for any reason.
110 Assignment.
6
<PAGE>
Agreement for Business Combination Page Number 7
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In order to better carry out the Transactions, TPG may assign all or parts
of this agreement provided that the assignee agrees to all the terms and
conditions of this agreement pertaining to such assignment. An assignment will
not relieve TPG of any of its obligations under this agreement.
120 Confidentiality.
As a result of entering into this agreement International Fuel will have
access to information which TPG regards as confidential and proprietary
regarding TPG's methods of carrying out the Transactions (collectively the
"Business of TPG"). International Fuel agrees that it will not, except as
reasonably required pursuant to this Agreement, use itself, or divulge, furnish,
or make accessible to any person any knowledge, knowhow, techniques, or
information with respect to TPG or the Business of TPG without the prior written
agreement of TPG.
130 Termination.
TPG may terminate this agreement, without further obligation or liability,
at anytime (i) that TPG has a reasonable basis to believe that any aspect of the
transactions covered by this agreement would constitute a fraud or deception on
the market or (ii) that the Company fails to meet its obligations under this
agreement in a manner which would constitute a material breach. In any such
case, TPG will be entitled to retain all payments to it made or accrued prior to
such termination.
140 Miscellaneous.
14.1. Covenant of Further Assurances. The parties agree to take any
further actions and to execute any further documents which may from time to time
be necessary or appropriate to carry out the purposes of this agreement.
14.2. Scope of Agreement. This agreement constitutes the entire
understanding of the parties. No undertakings, warranties or representations
have been made other than as contained herein, and no party shall assert
otherwise. This agreement may not be changed or amended orally.
14.3. Currency. All references to currency in this agreement are to United
States Dollars.
14.4. Review of Agreement. Each party acknowledges that it has had time to
review this agreement and, as desired, consult with counsel. In the
interpretation of this agreement, no adverse presumption shall be made against
any party on the basis that it has prepared, or participated in the preparation
of, this agreement.
150 EFFECTIVE DATE.
The effective: date of this agreement is October 28, 1999.
7
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Agreement for Business Combination Page Number 8
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IN WITNESS WHEREOF, the parties have approved and executed this agreement.
TPG CAPITAL CORPORATION
/s/ James M. Cassidy
- --------------------------------
President
CLIENT CORPORATION
/s/ Jonathon R. Burst
- --------------------------------
President
8
<PAGE>
Agreement for Business Combination Page Number 9
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Warranties by Officers, Directors and Other Affiliates
Each of the undersigned officers, directors and other affiliates of
International Fuel agree that they have read this agreement and that they (i)
will not violate any of the provision of this agreement relating to compliance
with securities laws, rules and regulations (ii) will not violate any provision
of this agreement relating to confidentiality of the business of TPG and (iii)
consent to be governed by the provisions of this agreement relating to
arbitration in the case of any claims arising from their warranties herein.
9
