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Exhibit 2
PLAN OF MERGER
THIS AGREEMENT made and entered into this 6th day of July 2000, by and
between P.D.C. INNOVATIVE INDUSTRIES, INC. ("PDCI"), a Nevada corporation with
its Florida office at Corporate Park, 3701 Northwest 126th Avenue, Bay 5, Coral
Springs, Florida 33065, and STERILE-PRO, INC, ("STERILE-PRO"), a Florida
corporation, with offices at Corporate Park, 3701 Northwest 126th Avenue, Bay 5,
Coral Springs, Florida 33065.
WHEREAS, the Parties agree that it would be in their respective best
interests to merge;
NOW, THEREFORE, in consideration of the provisions and the
representations, warranties and agreements herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereby agree as follows:
SECTION 1.
TERMS AND CONDITIONS OF STOCK EXCHANGE AND MERGER.
(a) On the "Effective Date", as hereinafter defined, the following
shall be or shall have been done:
(i) PDCI and STERILE-PRO shall have obtained approval for this
Agreement and the transactions described herein by their respective
boards of directors and shareholders/owners pursuant to the applicable
provisions of Nevada and Florida law;
(ii) STERILE-PRO shall merge into PDCI and cease to exist;
(iii) The terms conditions of the merger shall be as set forth
in Articles of Merger (hereinafter referred to as the "Articles of
Merger") and as further provided herein. The Articles of Merger shall
constitute an agreement of merger for purposes of the General
Corporation Law of the State of Nevada;
(iv) STERILE-PRO's 8% Series A $1,000,000.00 Senior
Subordinated Convertible Redeemable Debenture due July 5, 2002 (the
"Sterile-Pro Debenture"), together with underlying shares of
STERILE-PRO's common stock, Par Value $0.001 per share (the
"Sterile-Pro Common Stock"), into which the Sterile-Pro Debenture is
convertible from time to time, shall be converted into an identical
PDCI debenture (the "PDCI Debenture"), together with shares of
underlying common stock, Par Value $0.001 per share, of PDCI into which
the new PDCI Debenture may be converted (the "PDCI Common Stock");
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(v) All of the issued and outstanding shares of the Common
Stock, Par Value $0.001 per share, of STERILE-PRO shall be converted
into 30,500,000 shares of PDCI Common Stock, Par Value $0.001 per
share, which shall be fully paid and non-assessable. In lieu of the
issuance of any fractional shares, the shares of PDCI's Common Stock to
which STERILE-PRO's shareholders are entitled shall be rounded off to
the next highest whole number. Until surrendered and exchanged as
herein provided, each outstanding certificate which, prior to the
Effective Date, represented a STERILE-PRO security, shall be deemed for
all corporate purposes to evidence ownership of the appropriate number
of securities of PDCI into which the STERILE-PRO security shall have
been so converted;
(vi) Subject to Sub-section (v), above, each holder of a
certificate representing issued and outstanding securities of
STERILE-PRO immediately prior to the Effective Date of the Merger,
shall, upon surrender of such certificate to PDCI after the Effective
Date, be entitled to receive a certificate representing the appropriate
number of shares of securities of PDCI as described above. Until
actually surrendered, each such STERILE-PRO certificate shall, by
virtue of the Merger, be deemed for all purposes to evidence ownership
of the appropriate number of securities of PDCI;
(vii) If any certificate representing a PDCI security is to be
issued in a name other than that in which the certificate surrendered
is registered, it shall be a condition of such issuance that the
certificate so surrendered shall be properly endorsed or otherwise in
proper form for transfer and that the person requesting such issuance
shall either pay to PDCI or its transfer agent any transfer or other
taxes required by reason of the issuance of certificates representing a
PDCI security in a name other than that of the registered holder of the
certificate surrendered, or establish to the satisfaction of PDCI or
its transfer agent that such tax has been paid or is not applicable;
(viii) The officers and directors of STERILE-PRO shall resign
their positions; and
(ix) STERILE-PRO shall divest itself of all of its assets.
(b) This merger shall become effective ("Effective Date") at the close
of business on the day when the Articles of Merger, certified as to requisite
stockholder approval, shall have been filed in the Office of the Secretary of
State of the State of Nevada. The Articles of Merger shall be filed as soon as
practicable after the date this Agreement is signed.
(c) The 30,500,000 shares of Common Stock of PDCI, Par Value $0.001 per
share, to be
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issued to the current holders of the Common Stock, Par Value $0.001 per share,
of STERILE-PRO have not been registered under the Securities Act of 1933 and may
not be resold unless those shares are registered under the Act or an exemption
from such registration is available. Each such existing holder of Common Stock
of STERILE-PRO who receives such restricted securities or any other restricted
securities of PDCI shall represent and warrant that he is acquiring the
securities for his own account, for investment, and not with the view to the
sale or distribution of the securities. Furthermore, any certificate
representing restricted securities of PDCI will contain a legend thereon
incorporating language substantially as follows:
"The Securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the "Act").
The Securities have been acquired for investment and may not be sold or
transferred in the absence of an effective registration statement for
the Securities under the Act unless, in the opinion of counsel
satisfactory to the company, registration is not required under the
Act."
(d) Notwithstanding the restrictions set forth in Section 1(c), above,
the rights to transfer restricted securities may be permitted if, in the opinion
of counsel satisfactory to PDCI, the securities may be transferred pursuant to
an exemption from registration under the Act.
SECTION 2.
REPRESENTATIONS AND WARRANTIES OF STERILE-PRO.
(a) Organization and Authority. STERILE-PRO is duly organized, validly
existing, and in good standing under the laws of the jurisdiction of its
incorporation, with full corporate power and authority to own its property and
assets and to conduct its business in the manner and in the places in which it
is now conducted. STERILE-PRO is qualified to do business as a domestic
corporation in the State of Florida, and the character of the properties owned
or leased by STERILE-PRO and the nature of the business conducted by it does not
require such qualification in any other jurisdiction, except where the failure
to so qualify would not have a material adverse affect on STERILE-PRO or its
business.
(b) Corporate Action. All corporate action necessary on the part of
STERILE-PRO to authorize the execution and delivery of this Agreement and the
Articles of Merger and the performance or satisfaction of STERILE-PRO's
obligations hereunder and thereunder has been or will have been duly taken prior
to the Effective Date. This Agreement and the Articles of Merger constitute the
valid and binding obligations of PDCl enforceable in accordance with their
respective terms.
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(c) Capitalization. As at the Effective Date, STERILE-PRO's entire
capitalization shall consist of:
(i) 100,000,000 shares of Common Stock, Par Value $.001 per
share, of which 27,010,000 shares shall be issued and outstanding; and
(ii) one 8% Series A $1,000,000.00 Senior Subordinated
Convertible Redeemable Debenture due July 5, 2002, convertible, from
time to time, into shares of Common Stock, Par Value $.001, per share,
upon conversion into which no shares of the underlying Common Stock
shall have been issued.
As of the date of this Agreement and as at Effective Date, all of the
outstanding capital stock of STERILE-PRO is and will be duly issued in
accordance with all applicable laws, rules and regulations, is and will be fully
paid and non-assessable. As of the date of this Agreement and as at Effective
Date, there are and will be no outstanding subscriptions, rights, options,
warrants or other agreements obligating STERILE-PRO to issue, sell or transfer
any stock or other securities of STERILE-PRO, except as otherwise described in
this Agreement.
(d) Articles of Incorporation and Bylaws. The Articles of Incorporation
and bylaws of STERILE-PRO are true, correct and complete. The minute books of
STERILE-PRO contain true and complete records of all meetings and consents in
lieu of meetings of its Board of Directors and shareholders since the date of
incorporation and accurately reflect all transactions referred to therein.
(e) No Material Adverse Changes. As of the date of this Agreement,
there shall be no material adverse change in the assets, operations, conditions
(financial of otherwise) or prospective business of STERILE-PRO; there shall be
no damage, destruction or loss materially affecting the assets, prospective
business, operations or condition (financial or otherwise) of STERILE-PRO,
whether or not covered by insurance; there shall be no declaration, setting
aside or payment of any dividend or distribution with respect to any redemption
or repurchase of STERILE-PRO's capital stock; there shall no sale of an asset
(other than in the ordinary course of business or otherwise approved by PDCI) or
mortgage or pledge by STERILE-PRO of any properties or assets.
(f) Taxes. STERILE-PRO has prepared and filed all appropriate federal,
state and local tax returns of every kind and category (including, without
limitation, income taxes, estimated taxes, excise taxes, sales taxes, inventory
taxes, use taxes, gross receipt taxes, franchise taxes and property taxes) for
all periods prior to and through the date hereof for which any such returns have
been required to be filed by it and has paid all taxes shown to be due by said
returns or on any assessments received by it, or has made adequate provisions
for the payment thereof.
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(g) Compliance with Laws. STERILE-PRO and all business conducted by it
has complied with all federal, state, county and local laws, ordinances,
regulation, inspections, orders, judgments, injunctions, awards or decrees
applicable to it or its business which, if not complied with, would materially
and adversely affect its business.
(h) Compliance with Other Instruments. Neither the execution nor
delivery of this Agreement nor the consummation of the transactions contemplated
hereby will result in any violation of or be in conflict with any term of any
contract or other instrument to which STERILE-PRO is a party or of any judgment,
statute, rule or regulation applicable to STERILE-PRO, or result in the creation
of any lien, charge or encumbrance on any of its properties or assets, or result
in the acceleration of any obligation of STERILE-PRO under any deed of trust,
mortgage, lease, or similar instrument to which it is a party.
(i) No Breach. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby will not:
(i) violate any provisions of the Articles of Incorporation or
Bylaws of STERILE-PRO;
(ii) violate, conflict with or result in the breach of any of
the terms of, result in a material modification of, or otherwise give
any other contracting party the right to terminate, or which constitute
a default under, any contract or other agreement to which STERILE-PRO
is a party or by or to which it or any of its assets or properties may
be bound or subject;
(iii) violate any order, judgment, injunction, award or decree
of any court, arbitrator or governmental or regulatory body against, or
binding upon, STERILE-PRO or upon the properties or business of either
of them; or
(iv) violate any statute, law or regulation of any
jurisdiction applicable to the transactions contemplated herein.
(j) Litigation. There is no outstanding order, judgment, injunction,
award or decree of any court, government or regulatory body or arbitration
tribunal against or involving STERILE-PRO. There is no action, suit or claim or
legal, administrative or arbitral proceeding or any investigation (whether or
not the defense thereof or liabilities in respect thereof are covered by
insurance) pending or threatened against or involving STERILE-PRO or any of its
respective properties or assets. There is no fact, event or circumstances that
may give rise to any suit, action, claim, investigation or proceeding except as
disclosed in the letter described above. There is no action, suit or claim or
legal, administrative or arbitral proceeding pending or threatened that would
give rise to any right of indemnification on the part of any director of
STERILE-PRO or its respective
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heirs, executors or administrators of such directors or officers.
(k) Labor Relations. STERILE-PRO is not a party to any collective
bargaining agreement governing its employees. There is no pending or threatened
election for union representation of STERILE-PRO's employees.
(l) Leases. The document titled "STERILE-PRO's LEASES" which shall be
incorporated by reference and made part of this Agreement contains a correct and
complete list and brief description of all leases or agreements under which
STERILE-PRO is lessee of or holds, or operates any property, real or personal,
owned by any third party. Each of such leases and agreements is in full force
and effect and constitutes a legal, valid, and binding obligation of the
respective parties thereto enforceable in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium, or other similar laws
relating to the enforcement of creditors' rights generally and to the
availability of equitable remedies which are subject to the discretion of the
Court before which any proceeding therefor may be brought.
(m) Tangible Assets. The document titled "Tangible Assets" which shall
be incorporated by reference and made part of this Agreement contains a correct
and complete list and brief description of all machinery, equipment, furniture,
leasehold improvements fixtures, vehicles, structures, owned or leased by
STERILE-PRO, any related capitalized items or other tangible property material
to the business of STERILE-PRO (the "Tangible Assets"). Except as set forth in
this document, STERILE-PRO holds all rights, title and interest in all the
properties, interests and assets, real, personal and mixed, free and clear of
all liens, pledges, mortgage, security interests, conditional sales contracts or
any other encumbrances or liens for current taxes not yet delinquent.
(n) Accounts Receivable. All of STERILE-PRO's accounts and other
receivables or thereafter acquired are collectible in full, less any reserves
set up for doubtful receivables on its books.
(o) Inventories. STERILE-PRO's inventories, as applicable, or
thereafter acquired are valued at cost or market and consist of items which are
of a quality and quantity usable and/or saleable in the ordinary course of
STERILE-PRO's business.
(p) Liabilities. As of the date of this Agreement, except as set forth
in a document titled "STERILE-PRO's LIABILITIES", STERILE-PRO does not have any
direct or indirect indebtedness, liability, claim, loss, damage, deficiency,
obligation or responsibility, known or unknown, fixed or unfixed, liquidated or
unliquidated, secured or unsecured, accrued or absolute, contingent or
otherwise, including, without limitation, any liability on account of taxes,
any other governmental charge or lawsuit brought, whether or not of a kind
required by generally accepted accounting principles (all of the foregoing
collectively defined as "Liabilities). As of the Effective
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Date, STERILE-PRO will not have any liabilities, other than liabilities incurred
since the date of the signing of this Agreement in the ordinary course of
business. There is no circumstance, condition, event or arrangement which may
hereafter give rise to any Liabilities not in the ordinary course of business,
except as set forth in the document titled "STERILE-PRO's Liabilities".
(q) Conduct of Business. Between the date of this Agreement and the
Effective Date, STERILE-PRO shall conduct its business only in the ordinary
course thereof consistent with prudent business judgment and past practice and
in such a manner that the representations and warranties contained in this
Section 2 shall be true and correct at and as of the Effective Date (except for
changes contemplated, permitted or required by this Agreement) and so that the
conditions to be satisfied by STERILE-PRO at the Effective Date shall have been
satisfied. STERILE-PRO shall not incur expenses or liabilities between the date
this Agreement is signed and the Effective Date other than in the normal course
of business.
(r) Unusual Events. Until the Effective Date, STERILE-PRO shall
supplement or amend all relevant documents incorporated by reference and made
part of this Agreement with respect to any matter thereafter arising or
discovered which, if existing or known at the date of this Agreement, would have
been set forth or described in such documents; provided, however, that for the
purpose of the rights and obligations of the parties hereunder, any such
material supplemental disclosure shall not be deemed to have been disclosed to
PDCI until the date STERILE-PRO delivers it to PDCI, unless agreed to in writing
by PDCI.
(s) Changes in Business Relationship. STERILE-PRO is not aware of any
material changes or threatened changes in its business or client relationships,
including any discontinuance of contractual relationships.
(t) Full Disclosure. No representation or warranty of STERILE-PRO and
no statement contained in any document incorporated by reference and made part
of this Agreement furnished by STERILE-PRO to PDCI pursuant hereto or in
connection with the transactions contemplated hereby contain or at the Effective
Date will contain any untrue statement of a material fact or omit or will omit
to state a material fact necessary to make such fact not misleading or necessary
to provide PDCI with full information as to STERILE-PRO and its affairs.
(u) Status of Representations and Warranties as at Effective Date. The
representations and warranties contained in this Section 2 shall be true and
complete on the Effective Date with the same force and effect as though such
representations and warranties had been made on and as at the Effective Date.
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SECTION 3.
REPRESENTATIONS AND WARRANTIES OF PDCI.
(a) Reporting Company. PDCI is required to and does file reports with
the Securities and Exchange Commission pursuant to Section 13(a) or 15(d) of The
Securities Exchange Act of 1934.
(b) Capitalization. As at the Effective Date, PDCI's entire
capitalization shall consist of:
(i) 100,000,000 shares of Common Stock, Par Value $.001 per
share, of which 14,500,000 shares are issued and outstanding.
As of the date of this Agreement and as at Effective Date, all of the
outstanding capital stock of PDCI is and will be duly issued in accordance with
all applicable laws, rules and regulations, is and will be fully paid and non-
assessable. As of the date of this Agreement and as at Effective Date, there are
and will be no outstanding subscriptions, rights, options, warrants or other
agreements obligating PDCI to issue, sell or transfer any stock or other
securities of PDCI, except as otherwise described in this Agreement.
(c) Organization and Authority. PDCI is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Nevada,
with full corporate power and authority to own its property and assets and to
conduct its business in the manner and the places in which it is now conducted.
(d) Corporate Action. All corporate action necessary on the part of
PDCI to authorize the execution and delivery to PDCI of this Agreement and the
Articles of Merger and the performance of its obligations thereunder has been or
will have been duly taken prior to the Effective Date. This Agreement and the
Articles of Merger constitute the valid and binding obligations of PDCI
enforceable in accordance with their respective terms. The execution and
delivery of and the consummation of the transactions provided for in this
Agreement and the Articles of Merger will not violate any provision of the
Certificate of Incorporation, Articles of Incorporation or Bylaws of PDCI, as
applicable, any provision of law, or any judgment, order or decree of any court
or agency or government, applicable to PDCI, or result in a breach of, default
under, or acceleration of any obligation under any indenture or agreement to
which PDCI is a party.
(e) Compliance with Other Instruments. Neither the execution nor
delivery of this Agreement nor the consummation of the transactions contemplated
hereby will result in any violation of or be in conflict with any term or any
contract or other instrument to which PDCI is a party or of any judgment,
decree, order, statute, rule or regulation applicable to PDCI, or result in the
creation of any lien, charge or encumbrance on any of its properties or assets,
or result in the
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acceleration of any obligation of PDCI under any deed of trust, mortgage, lease,
or similar instrument to which it is a party.
(f) Compliance with Laws. PDCI has complied with all federal, state,
county, local laws, ordinances, regulations, inspections, orders, judgments,
injunctions, awards or decrees applicable to it or its business which, if not
complied with, would materially and adversely affect its status as a public
company.
(g) Articles of Incorporation and Bylaws. PDCI's Articles of
Incorporate and Bylaws and any amendments to each, are true, correct and
complete. The minute books of PDCI contain true and complete records of all
meetings and consents in lieu of meetings of their respective Board of Directors
and shareholders since the date of incorporation and accurately reflect all
transactions; referred to therein.
(h) Financial Statements and Liabilities. PDCI's Financial Statements
set forth in its Form 10-KSB and Form 10-QSB dated March 22, 2000, and May 25,
2000, respectively, are true and correct, and, together with the disclosure made
in said Reports, fully disclose all of PDCI's liabilities.
(i) Disclosures. No representation or warranty of PDCI in this
Agreement, and no statement contained in any document incorporated by reference
and made a part of this Agreement or other document furnished or to be furnished
by PDCI to STERILE-PRO pursuant hereto or in connection with the transactions
contemplated hereby contains or at the Effective Date will contain any untrue
statement of a material fact or omit or will omit to state a material fact
necessary to make it not misleading or necessary to provide PDCl with full
information as to PDCI and its affairs.
(j) No Material Adverse Changes. As of the date of this Agreement,
there shall be no material adverse change in the assets, operations, conditions
(financial of otherwise) or prospective business of PDCI; there shall be no
damage, destruction or loss materially affecting the assets, prospective
business, operations or condition (financial or otherwise) of PDCI, whether or
not covered by insurance; there shall be no declaration, setting aside or
payment of any dividend or distribution with respect to any redemption or
repurchase of PDCI's capital stock; there shall no sale of an asset (other than
in the ordinary course of business or otherwise approved by STERILE-PRO) or
mortgage or pledge by PDCI of any properties or assets.
(k) Taxes. PDCI has prepared and filed all appropriate federal, state
and local tax returns of every kind and category (including, without limitation,
income taxes, estimated taxes, excise taxes, sales taxes, inventory taxes, use
taxes, gross receipt taxes, franchise taxes and property taxes) for all periods
prior to and through the date hereof for which any such returns have been
required to be filed by it and has paid all taxes shown to be due by said
returns or on any
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assessments received by it, or has made adequate provisions for the payment
thereof.
(l) Agreements. The document titled "PDCI's MATERIAL CONTRACTS" which
shall be incorporated by reference into this Agreement sets forth any material
contract or arrangement to which PDCI is a party or by or to which it or its
assets, properties or business are bound or subject whether oral or written. All
of the agreements set forth in said document are valid, binding enforceable,
subsisting agreements, in full force and effect. PDCI is not in default under
any of them (nor is any other party to any of such agreements, nor does any
condition exist which with notice or lapse of time or both would constitute
default thereunder).
(m) Insurance Policies. The document titled "PDCI's INSURANCE POLICIES"
which shall be incorporated by reference and made part of this Agreement
contains a complete and correct list and summary description of all insurance
policies held by PDCI and in force and effect at the date hereof, including but
not limited to key-man insurance, workers' compensation and employer liability,
automobile insurance, malpractice insurance, product liability and title
insurance.
(n) Labor Relations. PDCI is not a party to any collective bargaining
agreement governing its employees. There is no pending or threatened election
for union representation of PDCI's employees.
(o) Conduct of Business. Between the date of this Agreement and the
Effective Date, PDCI shall conduct its business only in the ordinary course
thereof consistent with prudent business judgment and past practice and in such
a manner that the representations and warranties contained in this Section 3
shall be true and correct at and as of the Effective Date (except for changes
contemplated, permitted or required by this Agreement) and so that the
conditions to be satisfied by PDCI at the Effective Date shall have been
satisfied. PDCI shall not incur expenses or liabilities between the date this
Agreement is signed and the Effective Date other than in the normal course of
business.
(p) Unusual Events. Until the Effective Date, PDCI shall supplement or
amend all relevant documents incorporated by reference and made part of this
Agreement with respect to any matter thereafter arising or discovered which, if
existing or known at the date of this Agreement, would have been set forth or
described in such documents; provided, however, that for the purpose of the
rights and obligations of the parties hereunder, any such material supplemental
disclosure shall not be deemed to have been disclosed to STERILE-PRO until the
date PDCI delivers it to PDCI, unless agreed to in writing by STERILE-PRO.
(q) Changes in Business Relationship. PDCI is not aware of any material
changes or threatened changes in its business or client relationships, including
any discontinuance of contractual relationships.
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(r) Full Disclosure. No representation or warranty of PDCI and no
statement contained in any document incorporated by reference and made part of
this Agreement furnished by PDCI to STERILE-PRO pursuant hereto or in connection
with the transactions contemplated hereby contain or at the Effective Date will
contain any untrue statement of a material fact or omit or will omit to state a
material fact necessary to make such fact not misleading or necessary to provide
STERILE-PRO with full information as to PDCI and its affairs.
(s) Representations and Warranties as at Effective Date. The
representations and warranties contained in this Section 3 shall be true and
complete on the Effective Date with the same force and effect as though such
representations and warranties had been made on and as at the Effective Date.
SECTION 4.
COVENANTS OF STERILE-PRO.
(a) Conduct of Business. From the date of this Agreement through the
Effective Date, STERILE-PRO shall conduct its business in the ordinary course.
(b) Preservation of Business. From the date hereof through the
Effective Date, STERILE-PRO shall use its best efforts to preserve its business
organization intact, keep available the services of its present officers,
employees, consultants and agents, maintain its present suppliers and customers
and preserve its goodwill.
(c) Insurance. STERILE-PRO at all times will have in effect and
maintain insurance now in force on or with respect to its properties and assets
and its business and will at all times have in effect and maintain insurance
coverage against all hazards, casualties, liabilities, and losses in the amount
and of the character and kind normally carried by corporations engaged in a
business similar to that conducted by it.
(d) Litigation. STERILE-PRO shall promptly notify PDCI of any lawsuits,
claims, proceedings or investigations which after the date hereof are threatened
or commenced against it or any of their respective officers, directors,
employees, consultants, agents, shareholders or other representatives with
respect to the affairs of PDCI.
(e) Dissenting Shareholders. Dissenters rights shall not be demanded
prior to or after the Effective Date by any of the shareholders of STERILE-PRO
pursuant to the provisions of Nevada or Florida Law, if any, as to dissenters
rights.
(f) Compliance with Laws. PDCI will comply in all material respects
with federal and
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state regulations necessary to effectuate the exchange of all outstanding
capital stock of STERILE-PRO for shares of capital stock of PDCI, as
contemplated by this Agreement
(g) Continued Effectiveness of Representations and Warranties. From the
date hereof through the Effective Date, STERILE-PRO shall conduct its business
in such a manner so that the representations and warranties contained in Section
2 shall continue to be true and correct on and as of the Effective Date and as
if made on the date of this Agreement, and shall:
(i) promptly give notice to PDCI of any event, condition or
circumstances occurring from the date hereof through the Effective Date
which would render any of the representations or warranties untrue,
incomplete, insufficient or constitute a violation or breach of this
Agreement; and
(ii) supplement the information contained herein in order that
such information is kept current, complete and accurate.
SECTION 5.
COVENANTS OF PDCI.
(a) Conduct of Business. From the date of this Agreement through the
Effective Date, STERILE-PRO shall conduct its business in the ordinary course.
(b) Preservation of Business. From the date hereof through the
Effective Date, STERILE-PRO shall use its best efforts to preserve its business
organization intact, keep available the services of its present officers,
employees, consultants and agents, maintain its present suppliers and customers
and preserve its goodwill.
(c) Insurance. STERILE-PRO at all times will have in effect and
maintain insurance now in force on or with respect to its properties and assets
and its business and will at all times have in effect and maintain insurance
coverage against all hazards, casualties, liabilities, and losses in the amount
and of the character and kind normally carried by corporations engaged in a
business similar to that conducted by it.
(d) Compliance with Laws. PDCI will comply in all material respects
with federal and state regulations necessary to effectuate the exchange of all
outstanding capital stock of STERILE-PRO for shares of capital stock of PDCI, as
contemplated by this Agreement
(e) Litigation. PDCI shall promptly notify STERILE-PRO of any lawsuits,
claims, proceedings or investigations which after the date hereof are threatened
or commenced against it or against any of their respective officers, directors,
employees, consultants, agents, shareholders
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or other representatives with respect to the affairs of PDCI.
(f) Continued Effectiveness of Representations and Warranties. From the
date hereof to the Effective Date, PDCI shall conduct its business in such a
manner so that the representations and warranties contained in Section 3 shall
continue to be true and correct on and as of the Effective Date and as if made
on the date of this Agreement, and shall:
(i) promptly give notice to STERILE-PRO of any event,
condition or circumstances occurring from the date hereof through the
Effective Date which would render any of the representations or
warranties untrue, incomplete, insufficient or constitute a violation
or breach of this Agreement; and
(ii) supplement the information contained herein in order that
such information is kept current, complete and accurate.
SECTION 6.
CONDITIONS OF OBLIGATIONS OF PDCI.
The obligations of PDCI to consummate this Agreement and the
transactions contemplated hereby are subject to the satisfaction at or before
the Effective Date of every one of the following conditions, any of which PDCI
may in its sole discretion waive:
(a) Representations and Warranties. The representations and warranties
of STERILE-PRO set forth in Section 2 hereof shall be true and correct at and as
of the Effective Date with the same effect as though such representations and
warranties had been made on and as of the date of this Agreement, and any
letter, statement, list, certificate or other written information furnished by
STERILE-PRO pursuant hereto or in connection on with the transactions
contemplated hereby shall be true and correct in all material respects at and as
of the date or dates stated therein.
(b) Performance of STERILE-PRO. STERILE-PRO shall have performed and
complied with all agreements and conditions required by this Agreement to be
performed or complied with by it either prior to or at the Effective Date.
(c) Governmental Permits and Approvals. Any and all permits and
approvals from any governmental or regulatory body required for the lawful
consummation of the transaction contemplated shall have been obtained.
(d) Third Party Consents. All consents, Permits and approvals from
parties to any
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contracts or other agreements with Pdci which may be required in connection with
the performance by STERILE-PRO of its obligations under such contacts or other
agreements after the Effective Date shall have been obtained.
(e) Litigation. No action, suit or proceeding shall have been
instituted before any court or governmental or regulatory body or instituted or
threatened by a governmental or regulatory body to restrain, modify or prevent
the carrying out of the transactions contemplated hereby or to seek damages or a
discovery order in connection with such transactions, or which has or may have,
in the opinion of PDCI, a materially adverse effect on the assets, properties,
business, operations or condition (financial or otherwise) of STERILE-PRO.
(f) Absence of Adverse Changes. Since the date of this Agreement, there
shall have been no change in the financial condition, business, or properties of
STERILE-PRO which materially and adversely affects the conduct of its business
or its condition, financial or otherwise.
(g) Satisfaction of Indebtedness. All indebtedness and obligations of
STERILE-PRO to any of its shareholders and affiliates [other than to the
Holder(s) of STERILE-PRO's 8% Series A $1,000,000.00 Senior Subordinated
Convertible Redeemable Debenture due July 5, 2002, convertible, from time to
time, into shares of Common Stock, Par Value $.001, per share] shall have been
satisfied and discharged, and any documentation evidencing such satisfaction or
discharge shall have been received as requested by PDCI.
(h) No Restraining Order. There shall not have been any action or
proceeding instituted or threatened before any court or governmental agency to
restrain or prohibit, or obtain substantial damages in respect of, this
Agreement or the consummation of the transactions contemplated hereby, which in
the opinion of PDCI make it inadvisable to consummate such transaction.
(i) Compliance Certificate. PDCI shall have received a Certificate
signed by the President of STERILE-PRO dated as of the Effective Date and
satisfactory in form and substance to PDCI certifying to the fulfillment of the
conditions specified in Section 6.
SECTION 7.
CONDITIONS TO THE OBLIGATIONS OF STERILE-PRO.
The obligations of STERILE-PRO to consummate this Agreement and the
transactions contemplated hereby are subject to the satisfaction at or before
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the Effective Date of each and every one of the following conditions, any of
which STERILE-PRO may in its sole discretion waive:
(a) Representations and Warranties. The representations and warranties
of PDCI set forth in Section 3 hereof shall be true and correct at and as of the
Effective Date with the same effect as though such representations and
warranties had been made on and as of the date of this Agreement, and any
letter, statement, list, certificate or other written information furnished by
PDCI pursuant hereto or in connection on with the transactions contemplated
hereby shall be true and correct in all material respects at and as of the date
or dates stated therein.
(b) Performance of PDCI. PDCI shall have performed and complied with
all agreements and conditions required by this Agreement to be performed or
complied with by it either prior to or at the Effective Date.
(c) Governmental Permits and Approvals. Any and all permits and
approvals from any governmental or regulatory body required for the lawful
consummation of the transaction contemplated shall have been obtained.
(d) Third Party Consents. All consents, Permits and approvals from
parties to any contracts or other agreements with STERILE-PRO which may be
required in connection with the performance by PDCI of its obligations under
such contacts or other agreements after the Effective Date shall have been
obtained.
(e) Litigation. No action, Suit or proceeding shall have been
instituted before any court or governmental or regulatory body or instituted or
threatened by a governmental or regulatory body to restrain, modify or prevent
the carrying out of the transactions contemplated hereby or to seek damages or a
discovery order in connection with such transactions, or which has or may have,
in the opinion of STERILE-PRO, a materially adverse effect on the assets,
properties, business, operations or condition (financial or otherwise) of PDCI.
(f) Absence of Adverse Changes. Since the date of this Agreement, there
shall have been no change in the financial condition, business, or properties of
STERILE-PRO which materially and adversely affects the conduct of its business
or its condition, financial or otherwise.
(g) Satisfaction of Indebtedness. All indebtedness and obligations of
PDCI to any of its shareholders and affiliates shall have been satisfied and
discharged, and any documentation evidencing such satisfaction or discharge
shall have been received as requested by STERILE-PRO.
(h) No Restraining Order. There shall not have been any action or
proceeding instituted or threatened before any court or governmental agency to
restrain or prohibit, or obtain substantial damages in respect of, this
Agreement or the consummation of the transactions contemplated hereby, which in
the opinion of STERILE-PRO make it inadvisable to consummate
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such transaction.
(i) Securities Certificates. At the Effective Date, each Shareholder
and Debenture Holder of STERILE-PRO shall receive a certificate or certificates
representing the number of shares of common stock and/or Debentures of PDCI to
which they are entitled.
(j) Compliance Certificate. STERILE-PRO shall have received a
certificate signed by the President of PDCI dated as of the Effective Date and
satisfactory in form and substance to PDCI certifying to the fulfillment of the
conditions specified in Section 7.
SECTION 8.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All representations, warranties, agreements, covenants, and obligations
herein made by or in any of the documents incorporated by reference and made a
part of this Agreement shall be deemed to have been relied upon by each of the
other parties, shall survive the Effective Date for a period of two years
thereafter, and shall not merge in the performance of any obligation by any
party hereto.
SECTION 9.
TERMINATION.
(a) This Agreement may be terminated at any time prior to the filing of
the Articles of Merger in the office of the Secretary of the State of Nevada by:
(i) Mutual consent of STERILE-PRO and PDCI;
(ii) PDCI if, at the Effective Date, any of the conditions set
forth in Section 6 shall not have been satisfied;
(iii) STERILE-PRO if, at the Effective Date, any of the
conditions set forth in Section 7 shall not have been satisfied;
(iv) PDCI, if STERILE-PRO has breached any material
representation warranty, covenant or agreement contained in this
Agreement;
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(v) STERILE-PRO, if PDCI has breached any material
representation, warranty, covenant or agreement contained in this
Agreement;
(vi) PDCI, if any legal proceeding is commenced or threatened
by any governmental or regulatory agency or other person directed
against the consummation of the transaction or any other transaction
under this Agreement; and
(vi) STERILE-PRO, if any legal proceeding is commenced or
threatened by any governmental or regulatory agency or other person
directed against the consummation of the transaction or any other
transaction under this Agreement;
(b) If this Agreement shall be terminated as provided in Section 9 (a),
the Articles of merger shall be deemed to have been abandoned and shall be void
and of no further effect, without any liability on the part of any of the
parties thereto or the stockholders, directors, officers, employees or agents of
any of them.
SECTION 10.
INDEMNIFICATION.
(a) Obligation of STERILE-PRO to Indemnify. Subject to the limitations
on the survival of representations and warranties contained in Section 8,
STERILE-PRO, its respective officers, directors and employees hereby agree to
indemnify, defend and hold PDCI harmless from and against any losses,
liabilities, damages, deficiencies, costs or expenses (including interest,
penalties and reasonable attorney's fees and disbursements) based upon, arising
out of or otherwise due to any material inaccuracy in or any breach of any
representation, warranty, covenant or agreement of STERILE-PRO contained in this
Agreement or in any document or other writing delivered pursuant to this
Agreement.
(b) Obligation of PDCI to Indemnify. Subject to the limitations on the
survival of representations and warranties contained in Section 8, PDCI, its
respective officers, directors and employees, hereby agree to indemnify, defend
and hold STERILE-PRO harmless from and against any losses, liabilities, damages,
deficiencies, costs or expenses (including interest, penalties and reasonable
attorneys fees and disbursements) based upon, arising out of or otherwise due to
any material inaccuracy in or any breach of any representation, warranty,
covenant or agreement of PDCI contained in this Agreement or in any document or
other writing delivered pursuant to this Agreement.
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SECTION 11.
MISCELLANEOUS.
(a) Notices. All notices or requests, demands and other communications
hereunder shall be deemed to have been duly given if in writing and delivered or
mailed postage prepaid to the parties as follows:
If to PDCI:
Corporate Park, 3701 Northwest 126th Avenue
Bay 5
Coral Springs, Florida 33065
Attn: Sandra Sowers, President
If to STERILE-PRO:
Corporate Park, 3701 Northwest 126th Avenue
Bay 5
Coral Springs, Florida 33065
Attn: Sandra Sowers, President
The address of any Party for any such notice, request or other
communication may be changed by giving notice of such change to the other
parties as herein above provided.
(b) Fees and Expenses. Each of the Parties will bear its own costs and
expenses in connection with the negotiation and the consummation of this
Agreement.
(c) Amendment. This Agreement may be amended by mutual agreement of the
Parties at any time prior to the Effective Date. All amendments must be in
writing equal in dignity to this Agreement.
(d) Further Assurances. The Parties shall execute such documents and
other papers and take such further actions as may be reasonably required or
desirable to carry out the provisions hereof and the transactions contemplated
hereby. Each such Party shall use it best efforts to fulfill or obtain the
fulfillment of the conditions.
(e) Law Governing. This Agreement shall be deemed to have been entered
into under the Laws of the State of Florida, and the rights and obligations of
the parties hereunder shall be governed and determined according to the Laws of
Florida, without regard to applicable conflicts of laws.
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(f) Resolution of Disputes - Arbitration. All disputes concerning this
Agreement or any claim or issue of any nature (whether brought by the Parties
hereto or by any other person whatsoever) arising from or relating to this
Agreement or to the corporate steps taken to enter into it (including, without
limitation, claims for alleged fraud, breach of fiduciary duty, breach of
contract, tort, etc.] together with the right of the Arbitrators themselves to
arbitrate the threshold issue of arbitrability itself, which cannot be resolved
within reasonable time through discussions between the opposing entities, shall
be resolved solely and exclusively by means of arbitration to be conducted in
the City of Coral Springs, Florida, which arbitration will proceed in accordance
with the rules of the American Arbitration Association (or any successor
organization thereto) then in force for resolution of commercial disputes. The
decision of the Arbitrators shall be final, conclusive, and binding upon the
opposing entities, and a judgment upon the award may be obtained and entered in
any federal or state court of competent jurisdiction. Each entity or Party
involved in litigation or arbitration shall be repsonsible for its own costs and
expenses of any litigation or arbitration proceeding, including its own
attorney's fees (for any litigation, arbitration, and any appeals).
(g) Entire Agreement and Counterparts. This Agreement and the documents
incorporated by reference and made a part of it and any other instruments and
agreements to be delivered in conjunction herewith constitute the entire
agreement between the parties with respect to the transactions contemplated
herein and supersede all prior agreements and understandings, whether written or
oral, of the Parties with respect thereto. This Agreement may be executed in one
or more counterparts, all of which taken together shall constitute one
instrument.
(h) Construction. This Agreement shall be construed within the fair
meaning of each of its terms and not against the party drafting the document.
IN WITNESS WHEREOF, this Agreement has been executed by the Parties
hereto under their respective seals, as of the day and year first above written.
P.D.C. INNOVATIVE INDUSTRIES, INC.
By: /s/ Sandra Sowers ATTEST: /s/
---------------------------- ----------------------------
Sandra Sowers, President and
Director
By: /s/ Sandra Sowers ATTEST: /s/
---------------------------- ----------------------------
Sandra Sowers, Secretary
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By: /s/ David Sowers ATTEST: /s/
---------------------------- ----------------------------
David Sowers, Chief Executive
Officer and Director
STERILE-PRO, INC.
By: /s/ Sandra Sowers ATTEST: /s/
---------------------------- ----------------------------
Sandra Sowers, President and
Director
By: /s/ Sandra Sowers ATTEST: /s/
---------------------------- ----------------------------
Sandra Sowers, Secretary
By: /s/ David Sowers ATTEST: /s/
---------------------------- ----------------------------
David Sowers, Chief Executive
Officer and Director
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CERTIFICATE OF STERILE-PRO, INC.
PURSUANT TO SECTION 6 OF PLAN OF MERGER DATED JULY 6, 2000
Sandra Sowers, President of STERILE-PRO, INC. ("STERILE-PRO"), does hereby
certify as of the date hereof the following:
1. The representations and warranties by STERILE-PRO as set forth in
Section 2 of the Plan of Merger dated July 6, 2000 (the "Plan") are true and
correct as of the date hereof, and any statement, list, certificate or other
written information furnished by STERILE-PRO pursuant to the Plan or in
connection with the transactions contemplated thereby is true and correct in
all material respects as of the date set forth therein.
2. STERILE-PRO has performed and complied with all agreements and
conditions required by the Plan.
3. None of the shareholders of STERILE-PRO has or will exercised his or
her dissenters rights pursuant to the General Corporation Law of Florida.
IN WITNESS WHEREOF, I have signed this certificate as of the 6th day of
July 2000.
/s/ Sandra Sowers
-------------------------------
Sandra Sowers, President
<PAGE> 22
CERTIFICATE OF P.D.C. INNOVATIVE INDUSTRIES, INC.
PURSUANT TO SECTION 7 OF PLAN OF MERGER DATED JULY 2, 2000
Sandra Sowers, President of P.D.C. INNOVATIVE INDUSTRIES, INC. ("PDCI"),
does hereby certify as of the date hereof the following:
1. The representations and warranties by PDCI as set forth in Section 3 of
the Plan of Merger dated July 6, 2000 (the "Plan"), are true and correct as of
the date hereof, and any statement, list, certificate or other written
information furnished by PDCI pursuant to the Plan or in connection with the
transactions contemplated thereby is true and correct in all material respects
as of the date set forth therein.
2. PDCI has performed and complied with all agreements and conditions
required by the Plan.
IN WITNESS WHEREOF, I have signed this certificate as of the 6th day of
July 2000.
/s/ Sandra Sowers
-------------------------------
Sandra Sowers, President
