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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 27)*
CUSTOMEDIX CORPORATION
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(Name of Issuer)
Common Stock, $0.01 par value
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(Title of Class of Securities)
232038 20 8
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(CUSIP Number)
Dr. Gordon S. Cohen, c/o Jeneric/Pentron, Inc.
53 N. Plains Industrial Rd., Wallingford, CT 06492 (800-243-3969)
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
JUNE 10, 1996
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box / /.
Check the following box if a fee is being paid with the statement / /. (A fee
is not required only if the reporting person: (1) has a previous statement on
file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
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SCHEDULE 13D
CUSIP NO. 232038 20 8 PAGE 2 OF 5 PAGES
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(1) Name of Reporting Person S.S. or I.R.S. Identification No.
of Above Person
(a) Gordon S. Cohen
(b) Cohen Family Trust Partnership
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(2) Check the Appropriate Box if a Member of a Group*
(a) / /
(b) /X/
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(3) SEC Use Only
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(4) Source of Funds*
PF, BK, SC
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(5) Check Box if Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e) / /
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(6) Citizenship or Place of Organization
(a) USA
(b) Connecticut
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Number of (7) Sole Voting Power (a) 1809792 shares, includes
Shares Bene- 435262 shares held by (b) the Cohen Family Trust
ficially Partnership. Also includes 126,500 shares held by
Owned by emancipated adult children of Dr. Cohen, as to which
he disclaims beneficial ownership.
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(8) Shared Voting Power
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Each Report- (9) Sole Dispositive Power (a) 1809792 shares, includes
ing Person 435262 shares held by (b) the Cohen Family Trust
With Partnership. Also includes 126,500 shares held by
emancipated adult children of Dr. Cohen, as to which
he disclaims beneficial ownership.
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(10) Shared Dispositive Power
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(11) Aggregate Amount Beneficially Owned by Each Reporting
Person
(a) 1809792 shares, includes 435,262 shares held by (b)
the Cohen Family Trust Partnership. Also includes 126,500
shares held by emancipated adult children of Dr. Cohen, as
to which shares he disclaims beneficial ownership.
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(12) Check Box if the Aggregate Amount in Row (11) Excludes
Certain Shares* / /
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(13) Percent of Class Represented by Amount in Row (11)
(a) 41.7 (b) 13.2 (54.9 total ownership)
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(14) Type of Reporting Person*
(a) IN (b) PN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
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Item 3. Source and Amount of Funds or Other Consideration.
Information set forth in response to Item 4 of this Amendment No. 27 is
incorporated herein by reference.
Item 4. Purpose of Transaction.
As reported in Amendment No. 26, on June 4, 1996, Dr. Cohen offered to
acquire all of the outstanding shares of Common Stock of the Issuer in a
negotiated merger transaction in which the Issuer's stockholders, other than Dr.
Cohen and the Partnership (the "Reporting Persons"), would receive $2-3/8 cash
per share.
On June 10, 1996, the Issuer announced that its Board of Directors had
approved a merger between the Issuer and CUS Acquisition, Inc., a newly-formed
Delaware corporation to be wholly-owned by the Reporting Persons (the "Merger").
Dr. Cohen is the sole director, and the President and Secretary, of CUS
Acquisition, Inc. Under the terms of the Merger, all stockholders of the Issuer,
other than the Reporting Persons, would receive $2.375 for each share of the
Issuer's stock owned by them. The Issuer would be the surviving corporation of
the Merger. As a result of the Merger, the Issuer's stock would cease to be
publicly traded and would be delisted from the American Stock Exchange. Upon
consummation of the Merger, the surviving corporation would be wholly-owned by
the Reporting Persons, and Dr.Cohen, as the director of CUS Acquisition, Inc.,
would be the initial director of the surviving corporation. Consummation of the
Merger is subject, among other things, to approval by the Issuer's
stockholders. A conformed copy of the Agreement and Plan of Merger, dated as of
June 10, 1996, between CUS Acquisition, Inc. and the Issuer, is annexed hereto
as Exhibit 1.
In connection with the acquisition of the Issuer's stock from the
stockholders of the Issuer, other than the Reporting Persons, pursuant to the
Merger, Dr. Cohen has received a commitment from New Jersey National Bank, the
Issuer's principal lender, providing for financing in an aggregate amount of up
to $3 million (the "Commitment"). Funding of the loan pursuant to the Commitment
is conditioned on, among other things, the Merger of CUS Acquisition, Inc. with
and into the Issuer, and is expected to close simultaneously with the Merger.
The Commitment expires on October 31, 1996. Copies of the Commitment, dated
March 22, 1996, of New Jersey National Bank, and a letter agreement, dated June
10, 1996, among New Jersey National Bank, CUS Acquisition, Inc. and Dr. Cohen,
are annexed hereto as Exhibits 2.1 and 2.2, respectively. It is currently
anticipated that additional funds required to effect the acquisition of the
Issuer's stock in connection with the Merger will be obtained from personal
funds of Dr. Cohen and/or from the working capital of the surviving corporation
of the Merger.
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AMENDMENT NO. 27 TO SCHEDULE 13D
Item 6. Contracts, Arrangements, Understandings or
Relationships With Respect to Securities of the Issuer.
The information set forth in Item 4 of this Amendment No. 27
is incorporated herein by reference.
Item 7. Material to be Filed as Exhibits.
Annexed hereto as Exhibit 1 is a conformed copy of the Agreement and
Plan of Merger, dated as of June 10, 1996, between CUS Acquisition, Inc. and the
Issuer.
Annexed hereto as Exhibits 2.1 and 2.2, respectively, are copies of the
Commitment, dated March 22, 1996, of New Jersey National Bank, and the letter
agreement, dated June 10, 1996, among New Jersey National Bank, CUS Acquisition,
Inc. and Dr. Cohen.
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Signatures
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Amendment is true, complete and
correct.
Dated: June 12, 1996
/s/ Gordon S. Cohen
____________________________
Dr. Gordon S. Cohen
THE COHEN FAMILY TRUST
PARTNERSHIP
/s/ Gordon S. Cohen
By:_________________________
Dr. Gordon S. Cohen
Managing Partner
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequentially
Numbered
Exhibit No. Description Page
- ----------- ----------- ------------
<S> <C>
1 Agreement and Plan of Merger,
dated as of June 10, 1996,
between Customedix Corporation
and CUS Acquisition, Inc.
2.1 Commitment Letter, dated March 22,
1996, of New Jersey National Bank
2.2 Letter Agreement, dated June 10,
1996, among New Jersey National
Bank, CUS Acquisition, Inc. and
Dr. Gordon S. Cohen.
</TABLE>
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Exhibit 1
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of June 10, 1996, between CUS
Acquisition, Inc., a Delaware corporation ("Buyer"), and Customedix Corporation,
a Delaware corporation (the "Company").
WHEREAS, the Boards of Directors of Buyer and the Company deem it
advisable and in the best interests of their respective shareholders that Buyer
shall merge into the Company (the "Merger") in accordance with the Delaware
General Corporation Law, such law being referred to herein as the "Corporation
Law," upon the terms and subject to the conditions set forth herein, and the
Buyer and the Company have directed that the principal terms of the Merger be
submitted to their respective stockholders for approval;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
THE MERGER
1.1. The Merger. At the Effective Time (as hereinafter defined), Buyer
shall be merged with and into the Company in accordance with the provisions of
this Agreement and the Corporation Law and the separate existence of Buyer shall
thereupon cease, and the Company, as the surviving corporation in the Merger
(the "Surviving Corporation"), shall continue its corporate existence under the
Delaware General Corporation Law.
1.2. Effective Time of the Merger. As soon as practicable after
satisfaction or waiver of the conditions set forth in Article VI, the Company
and Buyer (collectively, the "Constituent Corporations") will cause the Merger
to be consummated by the filing with the Secretary of State of Delaware of a
Certificate of Merger in such form or forms as may be required by the
Corporation Law (the time of such filing with the Secretary of State of Delaware
being the "Effective Time").
1.3. Effect of the Merger. At the Effective Time, the effect of the
Merger shall be as provided in the applicable provisions of the Delaware General
Corporation Law. Without limiting the generality of the foregoing, at the
Effective Time all the property, rights, privileges, powers and franchises of
each of the Constituent Corporations so merged shall vest in the Surviving
Corporation, and all debts, liabilities and duties of the Constituent
Corporations shall become the debts, liabilities and duties of the Surviving
Corporation.
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1.4. Conversion of Shares. At the Effective Time, and without any
action on the part of Buyer, the Company or the holder of any of the following
securities:
1.4.1. Each share of Common Stock, par value $.01 per
share, of the Company issued and outstanding immediately prior
to the Effective Time (other than Dissenting Shares (as
defined in Section 1.8) and shares to be canceled pursuant to
Section 1.4.2) (collectively, the "Shares") shall
automatically be converted into the right to receive $2.375 of
cash (the "Merger Consideration").
1.4.2. Each share of Common Stock held in the
treasury of the Company and each Share owned by Buyer
immediately prior to the Effective Time shall automatically be
canceled and extinguished, and no payment or other
consideration shall be made in respect thereof.
1.4.3. Each share of Common Stock, par value $.01 per
share, of Buyer issued and outstanding immediately prior to
the Effective Time shall thereafter be converted into one
validly issued, fully paid and nonassessable share of Common
Stock, par value $.01 per share, of the Surviving Corporation.
1.5. Surrender of Shares. From time to time following the Effective
Time, Buyer shall deposit or cause to be deposited in trust with a disbursing
agent to be designated by the Company (the "Disbursing Agent"), as agent for the
holders of Shares, the cash to which holders of Shares who have surrendered
their Shares to the Disbursing Agent shall be entitled pursuant to Section
1.4.1. Each holder of a certificate or certificates representing Shares
converted upon the Merger pursuant to Section 1.4.1 may, following the Merger,
surrender each such certificate to the Disbursing Agent, as agent for such
holder, to effect the surrender of such certificate on such holder's behalf. The
Surviving Corporation shall, promptly after the Effective Time, distribute to
such holders appropriate materials to facilitate such surrender. Each such
holder shall be entitled, promptly upon surrender of one or more certificates
representing such converted Shares and of such properly completed transmittal
materials as the Surviving Corporation shall require, to receive in exchange
therefor a check for the amount of cash to which such holder is entitled
pursuant to Section 1.4.1 in respect of the converted Shares represented by such
certificate or certificates. Until so surrendered and exchanged, each such
certificate shall, after the Effective Time, be deemed to represent only the
right to receive the Merger Consideration for each Share represented thereby and
until such surrender and exchange no Merger Consideration shall be delivered to
the holder of such certificate in respect
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thereof. If payment of any Merger Consideration is to be made to a person other
than the person in whose name a surrendered certificate is registered, it shall
be a condition to such payment that the surrendered certificate shall be
endorsed or shall be otherwise in proper form for transfer and that the person
requesting such payment shall have paid any transfer and other taxes required by
reason of such payment to a person other than the registered holder of the
surrendered certificate or shall have established to the satisfaction of the
Surviving Corporation or the Disbursing Agent that such tax either has been paid
or is not payable. If any Merger Consideration deposited with the Disbursing
Agent for purposes of payment in exchange for Shares remains unclaimed following
the expiration of six months after the Effective Time, such Merger Consideration
shall be delivered to the Surviving Corporation by the Disbursing Agent, and
thereafter the Disbursing Agent shall not be liable to any person claiming any
Merger Consideration and the surrender and exchange shall be effected directly
with the Surviving Corporation (subject to applicable abandoned property laws).
No interest for the benefit of any such holder shall accrue or be payable with
respect to any Merger Consideration. The Surviving Corporation or the Disbursing
Agent shall be authorized to deliver Merger Consideration attributable to any
certificate for Shares which has been lost or destroyed upon receipt of
satisfactory evidence of ownership of the Shares represented thereby and of
appropriate indemnification. From and after the Effective Time, the holders of
certificates evidencing Shares outstanding immediately prior to the Merger shall
cease to have any rights with respect to such Shares except as otherwise
provided herein or by law.
1.6. Stock Transfer Books. At the Effective Time, the stock transfer
books of the Company shall be closed and there shall be no further registration
of transfers of Shares thereafter on the records of the Company.
1.7. Appraisal Rights. If, but only if, the holders of any Shares
issued and outstanding immediately prior to the Effective Time shall, in
accordance with the applicable provisions of the Corporation Law, become
entitled to receive payment for the fair value of such Shares (the "Dissenting
Shares"), such payment shall be made by the Surviving Corporation; provided,
however, that if any holder of Dissenting Shares shall have forfeited his right
or is otherwise no longer entitled to receive payment of the fair value of his
Shares under the Corporation Law, such Dissenting Shares shall thereupon be
deemed to have been converted into and to have become exchangeable for the
Merger Consideration.
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ARTICLE II
CERTIFICATE OF INCORPORATION; BY-LAWS
2.1. Certificate of Incorporation. Unless otherwise determined by Buyer
prior to the Effective Time, at the Effective Time the certificate of
incorporation of the Company, as in effect immediately prior to the Effective
Time, shall be the certificate of incorporation of the Surviving Corporation
until thereafter amended as provided by law and such certificate of
incorporation, except that Article Fourth, Paragraph (A) of the certificate of
incorporation shall be amended to read in its entirety as follows: "The total
number of shares of Common Stock which the Corporation shall have authority to
issue is Three Thousand (3,000) shares with a par value of $.01 per share."
2.2. By-Laws. The by-laws of the Company, as in effect immediately
prior to the Effective Time, shall be the by-laws of the Surviving Corporation
until thereafter amended as provided by law, the certificate of incorporation of
the Surviving Corporation and such by-laws.
2.3. Directors and Officers. The directors of Buyer immediately prior
to the Effective Time shall be the initial directors of the Surviving
Corporation, each to hold office in accordance with the certificate of
incorporation and by-laws of the Surviving Corporation, and the officers of the
Company immediately prior to the Effective Time shall be the initial officers of
the Surviving Corporation, in each case until their respective successors are
duly elected or appointed and qualified.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Buyer as follows:
3.1. Authorization. The Company has the necessary corporate power and
authority to enter into this Agreement and, subject to obtaining the necessary
stockholder approval of the Merger, to carry out its obligations hereunder. The
execution and delivery of this Agreement by the Company, the performance by the
Company of its obligations hereunder and the consummation by the Company of the
transactions contemplated hereby have been duly authorized by the Company's
Board of Directors and no other corporate proceeding on the part of the Company
is necessary for the execution and delivery of this Agreement by the Company
and, subject to obtaining the necessary stockholder approval of the Merger, the
performance by the Company of its obligations hereunder and the consummation by
the Company of the transactions
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contemplated hereby. This Agreement has been duly executed and delivered by the
Company and (assuming the due authorization, execution and delivery by Buyer) is
a legal, valid and binding obligation of the Company, enforceable against it in
accordance with its terms subject to the approval of the Merger by the
stockholders of the Company.
3.2. Board Recommendation. The Special Committee of the Board of
Directors of the Company constituted for the purpose of considering the Merger
(the "Special Committee") and the entire Board of Directors of the Company have,
by resolutions duly adopted by a vote at separate meetings of such Special
Committee and of such Board, approved and adopted this Agreement and the
transactions contemplated hereby and recommended that the stockholders of the
Company approve and adopt this Agreement and the transactions contemplated
hereby and determined that the Merger is in the best interests of the
stockholders of the Company.
3.3. Required Filings and Consents. Except for applicable requirements,
if any, of the Securities Act of 1933, the Securities Exchange Act of 1934 (the
"Exchange Act") and the securities laws of the various states, and filing and
recordation of appropriate merger documents as required by the Corporation Law,
it is not required to submit any notice, report or other filing with any
governmental authority in connection with the execution or delivery by it of
this Agreement or the consummation of the transactions contemplated hereby.
3.4. Disclosure. The proxy statement relating to the Special Meeting of
Stockholders called to approve the Merger (the "Proxy Statement"), as corrected
pursuant to Section 5.2, or in any amendments thereof or supplements thereto,
will, on the date the Proxy Statement is first mailed to stockholders, at the
time of the Company Stockholders' Meeting or at the Effective Time, contain any
statement which, at such time and in light of the circumstances under which it
will be made, will contain any untrue statement of a material fact or will omit
to state any material fact required to be stated therein or necessary in order
to make the statements therein not false or misleading or necessary to correct
any statement in any earlier communication with respect to the Company
Stockholders' Meeting which has become false or misleading. Notwithstanding the
foregoing, the Company makes no representation or warranty with respect to any
information that has been supplied by the Buyer or the Buyer's accountants,
counsel, financial advisors or other authorized representatives for use in any
of the foregoing documents.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to the Company as follows:
4.1. Organization. It is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, with full
corporate power and authority to enter into this Agreement and to carry out its
obligations hereunder. The execution and delivery of this Agreement by it, the
performance by it of its obligations hereunder and the consummation by it of the
transactions contemplated hereby have been duly authorized by its Board of
Directors and no other corporate proceeding on the part of the Buyer is
necessary for the execution and delivery of this Agreement by the Buyer and,
subject to obtaining the necessary stockholder approval of the Merger, the
performance by the Buyer of its obligations hereunder and the consummation by
the Buyer of the transactions contemplated hereby. This Agreement has been duly
executed and delivered by it and (assuming the due authorization, execution and
delivery hereof by the Company) is a legal, valid and binding obligation of
Buyer, enforceable against it in accordance with its terms subject to the
approval of the Merger by the stockholders of the Buyer.
4.2. No Violation. It is not subject to or obligated under its
certificate of incorporation or by-laws, or any law, or rule or regulation of
any governmental authority, or any material contract to which it is a party or
by which it is bound, that would be breached or violated by the execution,
delivery or performance of this Agreement or the transactions contemplated
hereby.
4.3. Required Filings and Consents. Except for applicable requirements,
if any, of the Securities Act of 1933, the Securities Exchange Act of 1934 (the
"Exchange Act") and the securities laws of the various states, and filing and
recordation of appropriate merger documents as required by the Corporation Law,
it is not required to submit any notice, report or other filing with any
governmental authority in connection with the execution or delivery by it of
this Agreement or the consummation of the transactions contemplated hereby.
4.4. Disclosure. None of the information supplied by Buyer for
inclusion in the proxy statement relating to the Special Meeting of Stockholders
called to approve the Merger (the "Proxy Statement"), as corrected pursuant to
Section 5.2, or in any amendments thereof or supplements thereto, will, on the
date the Proxy Statement is first mailed to stockholders, at the time of the
Company Stockholders' Meeting or at the Effective Time, contain any statement
which, at such time and in light of the
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circumstances under which it will be made, will contain any untrue statement of
a material fact or will omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not false or
misleading or necessary to correct any statement in any earlier communication
with respect to the Company Stockholders' Meeting which has become false or
misleading. Notwithstanding the foregoing, Buyer makes no representation or
warranty with respect to any information that has been supplied by the Company
or the Company's accountants, counsel, financial advisors or other authorized
representatives or by any party other than Buyer for use in any of the foregoing
documents.
ARTICLE V
COVENANTS
5.1. Conduct of Business by the Company Pending the Merger. Prior to
the Effective Time, unless Buyer shall otherwise agree in writing or as
otherwise contemplated by this Agreement:
5.1.1. The business of the Company and its subsidiaries shall
be conducted only in the ordinary and usual course and in a manner
consistent with past practice.
5.1.2. The Company shall not, and shall ensure that each
subsidiary shall not, (a) sell or pledge or agree to sell or pledge any
capital stock of any Company subsidiary; (b) amend its certificate of
incorporation or by-laws; (c) split, combine or reclassify the
outstanding shares of its capital stock or declare, set aside or pay
any dividend payable in cash, stock or property or make any other
distributions with respect to its capital stock, except for dividends
declared and paid by any wholly-owned subsidiary in the ordinary course
of business and in a manner consistent with past practices; (d) redeem,
purchase or otherwise acquire or offer to redeem, purchase or otherwise
acquire any shares of capital stock; (e) form any new subsidiary or,
except in the ordinary course of business and consistent with past
practice, transfer any assets or liabilities to any Company subsidiary;
or (f) authorize or propose any of the foregoing, or enter into any
contract, agreement, commitment or arrangement to do any of the
foregoing.
5.1.3. The Company shall not, and shall ensure that each
Company subsidiary shall not, (a) issue or agree to issue any
additional shares of, or rights of any kind to acquire any shares of,
its capital stock of any class other than, in the case of the Company,
shares issuable upon exercise of options existing on the date hereof;
(b) acquire
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any material assets other than in the ordinary course of business; (c)
dispose of any material assets other than in the ordinary course of
business or encumber any of its material assets; (d) incur any
indebtedness for borrowed money or enter into any other material
transaction other than in the ordinary course of business; (e) amend
any of its material contracts except in the ordinary course of
business; (f) make any payments to any employee of the Company or any
Company subsidiary except in the ordinary course of business, and in
amounts and in a manner consistent with past practice, or grant or
establish any new programs or arrangements, or any new employee benefit
plan or employment, severance or consulting agreement (except as agreed
to in writing by Buyer), amend any existing employee benefit plan,
program or arrangement or any existing employment, severance or
consulting agreement or grant any increases in compensation or benefits
(other than actions taken in the ordinary course of business and
consistent with past practice or as otherwise provided in this
Agreement); (g) settle or compromise any litigation involving the
payment of, or an agreement to pay over time, an amount, in cash, notes
or other property, in excess of $25,000 singly or $100,000 in the
aggregate, unless a liability equal to or in excess of the amount of
any settlement or compromise has been reserved for such litigation in
the interim financial statements of the Company most recently filed
with the Securities and Exchange Commission (the "SEC"), other than the
litigation described in paragraph 6.1.2(b) hereof; or (h) enter into
any contract, agreement, commitment or arrangement with respect to any
of the foregoing.
5.1.4. The Company shall use its best efforts to preserve
intact the business organization of the Company and the Company
subsidiaries, to keep available the services of its and their current
officers and key employees, and to preserve the goodwill of those
having business relationships with the Company and the Company
subsidiaries.
5.2. Proxy Statement. The Company shall promptly file with the SEC, and
shall use all reasonable efforts to have cleared by the SEC, and promptly
thereafter shall mail to its stockholders, the Proxy Statement. Buyer and the
Company each agree promptly to correct any information provided by it for use in
the Proxy Statement which shall have become false or misleading in any material
respect. The Proxy Statement shall contain the recommendation of the Special
Committee and of the Board of Directors of the Company in favor of the Merger
and the Special Committee and the Board of Directors shall recommend that the
stockholders of the Company vote for and adopt the Merger and this Agreement.
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5.3. Stockholders' Meetings. The Company shall promptly take all
actions as are required under the Corporation Law and its certificate of
incorporation and by-laws to convene a meeting of its stockholders. The Company
shall use its best efforts (i) to solicit from its stockholders proxies in favor
of the transactions contemplated hereby and (ii) to take all other actions
necessary or, in the reasonable judgment of Buyer, advisable to secure the vote
or consent of stockholders required by the Corporation Law to effect the Merger.
5.4. Actions To Be Taken. Upon the terms and subject to the conditions
hereof, each of the parties hereto agrees to use its best efforts to take or
cause to be taken all actions and to do or cause to be done all things
necessary, proper or advisable to consummate the transactions contemplated by
this Agreement and shall use its best efforts to obtain all necessary waivers,
consents and approvals and to effect all necessary registrations and filings,
including without limitation filings under the Exchange Act.
5.5. Public Announcements. Buyer and the Company will consult with each
other before issuing any press release or otherwise making any public statements
with respect to the Merger and shall not issue any such press release or make
any such public statement prior to such consultation, except as may be required
by law.
5.6. No Solicitation. Subject to applicable law, neither the Company
nor any of the Company subsidiaries, nor any of its or their directors,
officers, employees, representatives or agents, shall, directly or indirectly,
encourage, solicit or initiate any inquiry or proposal, from any corporation,
partnership, agent, financial adviser, person, or other entity or group (other
than Buyer or an affiliate or an associate of Buyer or an officer, employee or
other authorized representative of Buyer or such affiliate or associate)
concerning any merger, sale of substantial assets, purchase or sale of shares of
capital stock or similar transactions involving the Company or any Company
subsidiary or division of the Company other than the transactions contemplated
by this Agreement.
5.7. Notification of Certain Matters. The Company and Buyer each agrees
to give prompt notice to the other of (i) the occurrence, or failure to occur,
of any event which occurrence or failure would be likely to cause any
representation or warranty contained in this Agreement to be untrue or
inaccurate in any material respect at any time from the date hereof to the
Effective Time, (ii) any communication which it receives from any governmental
agency, dissenting stockholder or other third party relating to the Merger or
any action or transaction relating thereto, or (iii) any material failure on its
part to comply with or satisfy any covenant, condition or agreement to be
complied
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with or satisfied by it hereunder; provided, however, that the delivery of any
notice pursuant to this Section shall not limit or otherwise affect the remedies
available hereunder to the party receiving such notice.
ARTICLE VI
CONDITIONS OF MERGER
6.1. General Conditions. The obligation of each party hereto to effect
the Merger shall be subject to fulfillment at or prior to the Effective Time of
the following conditions:
6.1.1. The Company's stockholders shall have duly approved and
adopted the Merger and this Agreement in accordance with the Delaware
General Corporation Law.
6.1.2. (a) No injunction, restraining order or other order
issued by a court of competent jurisdiction or governmental authority
that prohibits the consummation of the Merger shall be in effect, and,
except as provided in paragraph 6.1.2(b), no action or proceeding shall
be pending or overtly threatened which seeks or would seek to prohibit,
restrain or invalidate consummation of the Merger, or which challenges
in any respect the legality or validity of the Merger, or which seeks
to recover damages from the Company, the Buyer or any of their
respective officers, directors, stockholders or any other person in
connection with this Agreement or the transactions contemplated hereby.
(b) The Delaware Court of Chancery (the "Court") shall
have approved the settlement of four putative class action lawsuits
pending against the Company and its directors on the date hereof, which
have been consolidated under the caption In re Customedix Corporation
Shareholders Litigation, Cons. C.A. No. 14812, on substantially the
terms set forth in the Memorandum of Understanding, dated June 3, 1996
(the "Memorandum of Understanding"), executed by counsel for the
plaintiffs and counsel for Dr. Gordon Cohen.
6.1.3. There shall not have been taken any action, and no
statute, rule or regulation shall have been enacted, by any state or
federal government or governmental agency that would render the
consummation of the Merger illegal.
6.1.4. There shall have been obtained any and all permits,
approvals and consents of any governmental body or agency which counsel
for Buyer or the Company may reasonably deem necessary or appropriate
so that consummation of the transactions contemplated by this Agreement
will be in compliance with all applicable laws.
10
<PAGE> 11
6.2. Conditions to Obligations of Buyer to Effect the Merger. The
obligations of Buyer to effect the Merger shall be subject to the fulfillment at
or prior to the Effective Time of the following conditions (in addition to those
specified in Section 6.1):
6.2.1. All the terms, agreements and conditions of this
Agreement to be complied with or performed or fulfilled by the Company
at or prior to the Effective Time shall have been complied with,
performed and fulfilled in all material respects.
6.2.2. The representations and warranties of the Company
contained herein shall have been true and correct in all material
respects at the date of this Agreement and shall be true and correct in
all material respects at and as of the Effective Time as if made at and
as of such time.
6.2.3. The Company shall have furnished a certificate of its
President or Chief Financial Officer to evidence compliance with the
conditions set forth in Sections 6.2.1 and 6.2.2.
6.2.4. The number of shares of the Company Common Stock as to
which dissenting rights have been exercised by the holders thereof
shall not exceed 5% of the total number of shares of the Company Common
Stock outstanding on the Effective Time. Prior to the Effective Time,
the Company shall deliver to Buyer a list certified by its Secretary of
all stockholders who have exercised such dissenters' rights and the
number of shares of the Company Common Stock owned by each such
stockholder in respect of which such dissenters' rights have been
exercised. The Company will not, except with the prior written consent
of Buyer, voluntarily make any payment with respect to, or settle or
offer to settle, any demands by the Company stockholders exercising
dissenters' rights for payment of the fair value of their shares of the
Company Common Stock. The Company shall afford to Buyer the opportunity
to participate in all discussions and negotiations with stockholders
exercising dissenters' rights.
6.2.5. The commitment heretofore provided to Buyer for
financing to be used to pay the Merger Consideration, a copy of which
has heretofore been provided to the Company, as it may be amended or
modified from time to time with the consent of the Buyer, shall remain
in full force and effect as of the Effective Time.
6.3. Conditions to Obligation of the Company to Effect the Merger. The
obligation of the Company to effect the Merger shall be subject to the
fulfillment at or prior to the Effective Time
11
<PAGE> 12
of the following conditions (in addition to those specified in Section 6.1):
6.3.1. All the terms, agreements and conditions of this
Agreement to be complied with or performed or fulfilled by Buyer at or
prior to the Effective Time shall have been complied with, performed
and fulfilled in all material respects.
6.3.2. The representations and warranties of Buyer contained
herein shall have been true and correct in all material respects at the
date of this Agreement and shall be true and correct in all material
respects at and as of the Effective Time as if made at and as of such
time.
6.3.3. The Buyer shall have furnished a certificate of its
President to evidence compliance with the conditions set forth in
Sections 6.3.1 and 6.3.2.
6.3.4. The Buyer's stockholders shall have duly approved and
adopted the Merger and this Agreement in accordance with the Delaware
General Corporation Law.
6.3.5. The Company shall have received the consent of all
third parties, including without limitation the Company's lenders,
whose consent may be required under any agreement or instrument binding
the Company or its properties.
6.3.6. The Company shall have received an opinion of counsel
for the Buyer to the effect that (i) the Buyer is duly organized,
validly existing and in good standing under the laws of the State of
Delaware, (ii) this Agreement has been duly authorized, executed and
delivered by the Buyer and constitutes the Buyer's valid and binding
obligation, enforceable against Buyer in accordance with its terms, and
(iii) the execution and delivery of this Agreement by Buyer, and the
consummation of the transactions contemplated hereby, do not (x)
violate any provision of the certificate of incorporation or by-laws of
Buyer, (y) violate any statute, rule, regulation, judgment, order or
decree binding upon the Buyer or any of its assets, or (z) result in a
violation or breach of, or constitute (with or without notice and/or
the passage of time) a default under, any license, franchise, agreement
or instrument to which the Buyer or any of its properties is bound.
12
<PAGE> 13
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
7.1. Termination. This Agreement may be terminated and the Merger
contemplated hereby may be abandoned at any time prior to the Effective Time,
whether before or after approval of the Merger by the stockholders of the
Company:
(a) By mutual consent of the Boards of Directors of Buyer and the
Company;
(b) By either Buyer or the Company
(i) if the Effective Time shall not have occurred by
December 31, 1996, but only if the party terminating has not
caused the delay through action or inaction and is not in
material breach of any its obligations hereunder; or
(ii) if a court of competent jurisdiction or
governmental, regulatory or administrative agency or
commission shall have issued a final, non-appealable order,
decree or ruling or taken any other action, in each case
permanently restraining, enjoining or otherwise prohibiting
the transactions contemplated by this Agreement;
(c) By Buyer, if the Company shall have breached or failed to comply in
any material respect with any of its obligations under the Agreement, or any
representation or warranty of the Company shall have been incorrect in any
material respect when made or shall have since ceased to be true and correct in
any material respect.
(d) By the Company, if Buyer shall have breached or failed to comply in
any material respect with any of its obligations under the Agreement or any
representation or warranty of the Buyer shall have been incorrect in any
material respect when made or shall have ceased to be true and correct in any
material respect.
Upon the termination of this Agreement pursuant to this Section, this
Agreement shall forthwith become null and void, except that nothing herein shall
relieve any party from liability for any breach of this Agreement prior to such
termination.
7.2. Amendment. This Agreement may be amended by the parties hereto at
any time prior to the Effective Time, by action taken by Buyer and by the
Special Committee and the Board of Directors of the Company, whether before or
after approval of the Merger by the stockholders of the Company, but after such
approval no
13
<PAGE> 14
amendment shall be made that modifies the consideration to be given to the
holders of the Common Stock of the Company or in any other way materially
adversely affects the rights of such stockholders (other than a termination of
this Agreement pursuant to its terms). This Agreement may not be amended except
by an instrument in writing signed by the parties hereto.
7.3. Waiver. At any time prior to the Effective Time, any party hereto
may (a) extend the time for the performance of any of the obligations or other
acts of the other parties hereto, (b) waive any inaccuracies in the
representations and warranties contained herein or in any documents delivered
pursuant hereto and (c) waive compliance with any of the agreements or
conditions contained herein. Any agreement on the part of a party hereto to any
such extension or waiver shall be valid if set forth in an instrument in writing
signed by such party.
ARTICLE VIII
MISCELLANEOUS
8.1. Nonsurvival of Representations, Warranties and Agreements. No
representations, warranties or agreements in this Agreement or in any instrument
delivered pursuant to this Agreement, other than the provisions of Section 8.4
hereof, shall survive the Effective Time.
8.2. Closing. The closing of the transactions contemplated by this
Agreement shall take place at the offices of the Company, or at such other place
as shall be agreed upon by the parties hereto, as promptly as practicable after
approval of the Merger by the stockholders of the Company.
8.3. Expenses. Each of the parties hereto shall bear its own costs and
expenses in connection with entering into this Agreement; provided, however,
that the Company shall bear all expenses related to the preparation, printing,
filing and mailing of the Proxy Statement, the conduct of the Company
Stockholders' Meeting and the solicitation of proxies in connection therewith.
In the event that the Merger is not consummated as a result of the
nonsatisfaction of any condition to the obligations of the Buyer (other than the
nonsatisfaction of the condition contained in Section 6.2.5 which results from
any action taken or omitted to be taken by the Buyer or Dr. Gordon Cohen), and
the Buyer has substantially performed its obligations under this Agreement
required to be performed up to the time of termination of this Agreement or
abandonment of the Merger, then the Company will reimburse the Buyer, or pay
directly for the benefit of the Buyer, all documented out-of-pocket expenses of
the Buyer relating to this Agreement, the transactions contemplated hereby and
any activities related thereto.
14
<PAGE> 15
8.4. Indemnification. (a) Buyer and the Surviving Corporation agree
that (i) all rights to indemnification or reimbursement of expenses now existing
in favor of persons who were directors of the Company at any time on or prior to
the Effective Date or were officers of the Company immediately prior to the
Effective Date, as provided in the certificate of incorporation or by-laws of
the Company in effect on the date hereof, will continue in full force and
effect, and be honored by Buyer and the Surviving Corporation and (ii) Buyer and
the Surviving Corporation shall neither cause to be amended nor permit any
change in or amendment of any provision of the Company's certificate of
incorporation or by-laws relating to the right to indemnification or
reimbursement of expenses in a manner that would have the effect of restricting
or limiting such rights.
(b) The covenants and agreements in this Section 8.4 shall
survive the Merger and the Effective Date, shall continue without time limit,
and are intended to benefit each of the parties entitled to indemnification
pursuant to paragraph 8.4(a).
8.5. Notices. Any notices or other communications required or permitted
hereunder or otherwise in connection herewith shall be in writing, shall be
addressed as provided below and shall be deemed to have been duly given and
received (i) if delivered in person, (ii) if sent by overnight delivery service,
(iii) if mailed by first class United States mail, postage prepaid, registered
or certified with return receipt requested, or (iv) if sent by confirmed
facsimile transmission.
The addresses of the parties are as follows:
if to the Company to:
53 N. Plains Industrial Road
Wallingford, Connecticut 06492
Attention: President
with a copy to:
Brody & Ober
P.O. Box 572
135 Rennell Drive
Southport, Connecticut 06490
Attention: James M. Thorburn
if to Buyer to:
53 N. Plains Industrial Road
Wallingford, Connecticut 06492
Attention: President
15
<PAGE> 16
with a copy to:
Levett, Rockwood & Sanders
Professional Corporation
33 Riverside Avenue
Westport, Connecticut 06880
Attention: John Sanders
or to such other address as either party shall advise the other party in a
writing given in accordance with this Section.
8.6. Headings. The headings of the Articles and Sections of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
8.7. Applicable Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware, without regard to its
principles of conflicts of law.
8.8. Counterparts. This Agreement may be executed 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.
8.9. Entire Agreement. This Agreement constitutes the entire agreement
and supersedes all other prior agreements and understandings, both written and
oral, among the parties with respect to the subject matter hereof and, except as
otherwise expressly provided herein, is not intended to confer upon any other
person any rights or remedies hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
CUS ACQUISITION, INC.
By s/ Gordon S. Cohen
-----------------------------
Its President
CUSTOMEDIX CORPORATION
By s/ Martin L. Schulman
-----------------------------
Its President
16
<PAGE> 1
[NEW JERSEY NATIONAL BANK LETTERHEAD]
Exhibit 2.1
March 22, 1996
Dr. Gordon S. Cohen
53 North Plains Industrial Road
Wallingford, Ct. 06492
Dear Gordon,
We, New Jersey National Bank ("us", "Bank", "Lender") are pleased to inform you
that we have approved the following loan. Our agreement to make this loan is
contained in this Letter and is subject to the following terms and conditions:
Borrower: ("Borrower", "Debtor", "Obligor") shall mean NEWCO, a company formed
(under this name or another name) on a temporary basis for the purpose of
acquiring the common stock of Customedix Corporation as set forth below. As a
condition precedent to any funding pursuant to the terms of this letter, the
following shall occur either prior to or simultaneously with such funding: (1)
NEWCO shall be merged into Customedix Corporation and the following companies,
all subsidiaries of Customedix Corporation, shall assume repayment of the
Obligations to be created under this letter: Jeneric/Pentron Incorporated,
Hunterdon Transport, Inc., American Thermocraft Corporation, Transidyne General
Corporation and Denpac/Five Stars Incorporated.
Principal Amount of Loan:
$3,000,000 term loan facility (Loan or Facility)
Purpose:
Purchase all outstanding shares of Customedix Corp common stock except those
owned by Dr. Gordon S. Cohen and family interests.
Interest Rate:
Advances under the Loan shall accrue interest at the Prime rate of New Jersey
National Bank as charged by the Bank from time to time (floating rate). The
Bank will charge your Demand Deposit Account for amounts due.
<PAGE> 2
Definition: Prime Rate
Note rate will increase or decrease at the date of such change upward or
downward in the Bank's Prime Rate announced from time to time at its main
office (the Bank's Prime Rate being the lending rate set by the Bank from time
to time for purposes of fixing interest rates on various categories of loans
which the Bank determines are to be tied to such Prime Rate). Each change in
rate shall be in the same direction and to the same extent as each change in
the Bank's Prime Rate (but in no event higher than the maximum lawful rate),
without notice to the Debtor.
Prepayment of principal in part or in full may be made at anytime without
penalty.
Term:
The Loan will mature seven years from closing.
Terms of Payment:
Interest is payable monthly on the Principal balance outstanding. Commencing
with the first month of the third year, Principal will be payable monthly in an
amount equal to 1/60th of the amount outstanding at the end of the second year.
During the first two years, advances on the loan may be made from time to time
at Borrower's request or, if authorized in writing by Borrower, at the request
of the third party handling the redemption of shares of stock, in minimum
increments of $100,000. Borrower may authorize disbursal of funds borrowed
under the Loan directly to the third party handling redemption of shares.
Security:
Advances under the Facility will be secured with a first lien security interest
(parity basis with existing loans from Bank to Borrower) in all assets of the
Borrower(s), including but not limited to accounts receivable and inventory now
existing and hereafter acquired, equipment, contracts and contract rights, and
any other property of the Borrower together with proceeds and products of all
the above, including proceeds of insurance. In addition Borrower agrees to
assign to Bank all policies of Life Insurance owned by Borrower on the life of
Gordon S. Cohen, for the duration of the Loan.
Guaranty: Gordon S. Cohen, limited to $1,000,000. Guaranty will be limited to
monies actually advanced under this Facility and will be released when the
monies are repaid in full and the Facility is canceled.
<PAGE> 3
Bank Counsel:
Wilentz Goldman and Spitzer
90 Woodbridge Center Drive
Suite 900 Box 10
Woodbridge, NJ 07095-0958
Attn: Stuart A. Hoberman, Esq.
tel. (908)-636-8000
Place of Settlement:
offices of Bank or Bank's counsel
Documentation:
All documentation for this transaction shall be prepared by the Bank's
attorney. This commitment letter is an outline of the basic terms of the
transaction. Complete terms and conditions will be contained in the loan
documents. Counsel for Bank shall in its reasonable discretion make the final
determination as to form, sufficiency, and requirements of the documentation
for this loan. The documents shall be those customarily used by the Bank in the
course of normal commercial banking transactions. The cost of our
representation shall be borne by you.
Charges:
By accepting this commitment you agree to pay all closing expenses irrespective
of the loan herein contemplated being consummated. This includes your
attorney's fees, reasonable Bank counsel fees, processing fees, recording fees,
and other miscellaneous expenses.
WE HEREBY ADVISE YOU THAT THE INTEREST OF THE BORROWER AND THE LENDER ARE OR
MAY BE DIFFERENT AND MAY CONFLICT. THE LENDER'S ATTORNEY REPRESENTS ONLY THE
LENDER AND NOT THE BORROWER. THE BORROWER IS, THEREFORE, ADVISED TO EMPLOY AN
ATTORNEY OF THE BORROWER'S CHOICE LICENSED TO PRACTICE LAW IN NEW JERSEY TO
REPRESENT THE INTERESTS OF THE BORROWER.
Borrower and Lender agree that Borrower will reimburse Lender for all fees and
expenses of Lender's counsel incurred in representing the lender in this
transaction, including but not limited to, assistance in the preparation of
this loan commitment, drafting and negotiation of loan documents, review of
pre-closing documents and materials required by the Lender, and performance of
customary closing and post closing tasks. The
<PAGE> 4
fee of Lender's counsel will be based upon the actual amount of time expended
in such representation of Lender multiplied by the applicable hourly rates of
the attorneys and paralegals involved in such tasks. The hourly rate to be
charged by Lender's counsel for services to be provided to the Lender in
connection with this loan will range from $250 per hour for senior attorneys to
$150 per hour for associate attorneys and $65 for paralegals. If other
personnel become involved in the matter, we will advise you. Expenses shall
include all costs and disbursements incurred by Lender's counsel, including
postage, courier services, photocopying charges, secretarial overtime directly
related to the closing of the loan, telephone and fax charges, recording and
filing fees and other customary disbursements related to the closing of such
loans.
The Lender hereby estimates the Lender's legal fees and charges (exclusive of
expenses) for this loan to be approximately $3,500 to $5,000. The Lender further
estimates the expenses to be incurred by Lender's attorney to be approximately
$500. The foregoing estimates of fees and expenses are based on certain
assumptions, including but not limited to the assumptions that no presently
unforeseen circumstances will be encountered in closing this loan and that
resolution of negotiated issues will not consume an unusual length of time. If
the Lender or its counsel becomes aware that the foregoing estimates will be
materially exceeded, Lender will notify borrower.
Hazard Insurance:
At closing you shall provide evidence of fire, extended coverage, and vandalism
and malicious mischief coverage on contents (Bank to be named loss payee) as
well as such other insurance including, but not limited to, liability, business
interruption insurance, worker's compensation and employer's liability
insurance, as required by law or by the Bank.
Change of Ownership:
If this loan is made to a Partnership, no change to the Partnership may be made
without our approval. If this loan is made to a Corporation, Corporate stock
ownership or management may not change without our approval. In the event of
change without our approval, we may, at our option, declare the loan to be
immediately due and payable in full.
Condition of Borrower:
At our option, prior to the loan closing, this commitment may terminate upon the
occurrence of any of the following:
<PAGE> 5
(a) if any representation made by you or anyone acting on your behalf in
connection with the application for this loan is determined by us to be
false or incorrect in any material respect;
(b) if any adverse change develops or is identified by us with respect to you
or any guarantor or indemnitor for the loan or with respect to any
collateral for the loan or other Source of repayment of the loan at any
time prior to closing hereunder;
(c) if, on or before closing hereunder, litigation has been commenced against
you or any guarantor or indemnitor for the loan which we regard as
adversely affecting any such party's credit or ability to perform;
(d) if you or any guarantor or indemnitor for the loan shall, at the time of
closing hereunder, be insolvent, or shall be involved in any arrangement,
bankruptcy, reorganization, or insolvency proceeding, or shall have failed
to pay such party's obligations on a current basis as determined by us;
Opinion:
The Borrower's counsel shall provide a written opinion satisfactory to Bank and
its counsel.
Miscellaneous:
(a) The form and substance of all documents, are to be subject to the approval
of Bank counsel. Documents will include a Loan and Security Agreement which
will include certain financial covenants, including the maintenance of
Tangible Net Worth at or exceeding $2,300,000, Stockholder's Equity of at
least $7,000,000, Consolidated Current Ratio of at least 2.00 to 1 and the
maintenance of the ratio of Cash Flow (defined as Net profits plus
depreciation and amortization plus interest expense) to Current Maturities
of long term debt plus interest of at least 1 to 1. These financial
covenants shall be tested annually at the fiscal date and shall be
effective at June 30, 1996. Bank and Borrower will negotiate changes in
these Covenants for years subsequent to fiscal 1996.
(b) It is mutually agreed by and between Borrower and Bank that
<PAGE> 6
the respective parties waive trial by jury in any action, proceeding or
counterclaim brought by either of the parties against the other with
this commitment.
(c) There shall be no secondary financing nor shall there be any
encumbrances or security interest conveyed in any assets of Borrower
(other than existing loans and leases), without Bank's written
permission.
(d) During the term of the loan you are to provide the Bank with annual
audited consolidated as well as consolidating accountant prepared
financial statements and quarterly unaudited consolidated and
consolidating financial statements of the Borrower in a form
satisfactory to the Bank as well as monthly accounts receivable agings
and inventory detail.
(e) All loan documentation will include appropriate representations and
warranties, covenants and events of default with respect to compliance
with environmental laws and regulations and the absence of
contamination. The Borrower will agree to promptly notify the Bank
in writing of any environmental incident or receipt from any
regulatory authority with respect to any notice of violation,
administrative order or any other enforcement document and to
indemnify and hold the Bank harmless in the event environmental
claim is asserted against the Bank for any reason whatsoever.
(f) No change in the provisions of this commitment shall be valid and
binding unless in writing, executed in the name of and by an officer
of the Bank.
Acceptance:
This Commitment is not assignable and shall be accepted in writing within
thirty (30) days of the date hereof, and said Loan consummated no later than
July 31, 1996 or this Commitment shall be null and void.
This commitment is granted with reliance on the facts presented by Borrower(s).
Should any change occur prior to the closing of any loan provided herein
including, but not limited to a material adverse change in the Borrower(s), the
revised data is to be submitted to the Bank with request for confirmation of
the commitment. In the event of such material adverse change, the Bank may at
its sole discretion terminate the commitment.
<PAGE> 7
Please indicate your acceptance of our commitment by signing and returning the
enclosed copy.
We appreciate the opportunity to receive your business. If you have any
questions, please feel free to call at any time.
Very truly yours,
/s/ Stephen F. Bayer
- -------------------------------------
Stephen F. Bayer
Vice President
Agreed to and Accepted
this 29 day of March, 1996
-- -----
Borrower:
Attest: NEWCO
/s/ By: /s/
- --------------------------------- --------------------------------
[seal] Secretary Chairman
Guarantor:
/s/
- ---------------------------------
Gordon S. Cohen
<PAGE> 1
Exhibit 2.2
[NEW JERSEY NATIONAL BANK LETTERHEAD]
June 10, 1996
Dr. Gordon S. Cohen
53 North Plains Industrial Road
Wallingford, Ct. 06492
Re: Commitment letter dated March 22, 1996
Dear Gordon,
We, New Jersey National Bank, hereby amend our commitment letter dated March
22, 1996 to extend the date for consummation of the Loan from July 31, 1996 to
October 31, 1996.
All other terms and conditions remain unchanged.
Very Truly Yours,
/s/ Stephen F. Bayer
- ----------------------
Stephen F. Bayer, VP
Borrower:
Attest: NEWCO
/s/ By: /s/
- ---------------------------- -----------------------
[Seal] Secretary Chairman
Guarantor:
/s/
- ------------------------
Gordon S. Cohen
