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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 10, 1996
CUSTOMEDIX CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 1-7081 22-1844840
(State or other (Commission (I.R.S. Employer
jurisdiction of File Number) Identification
incorporation) Number)
53 NORTH PLAINS INDUSTRIAL ROAD, WALLINGFORD, CONNECTICUT 06492
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code:
(203) 284-9079
Page 1 of 23 Pages
Exhibit Index appears on Page 4
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Item 5. Other Events.
On June 10, 1996, Customedix Corporation (the "Company") executed an
Agreement and Plan of Merger with CUS Acquisition, Inc., a newly-formed Delaware
corporation to be wholly-owned by Dr. Gordon S. Cohen, Chairman of the Board and
Chief Executive Officer of the Company, and a partnership comprised of trusts
for the benefit of members of the Cohen family. Consummation of the merger is
subject, among other things, to approval by the stockholders of the Company. The
press release of Customedix Corporation, dated June 10, 1996, is incorporated
herein by reference.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(a) (b) Not applicable.
(c) Exhibits
Exhibit 2 - Agreement and Plan of Merger, dated as of June 10, 1996,
between Customedix Corporation and CUS Acquisition, Inc.
Exhibit 99 - Press Release of Customedix Corporation, dated June 10,
1996.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
June 12, 1996 CUSTOMEDIX CORPORATION
By: /s/ Martin L. Schulman
--------------------------------
Name: Martin L. Schulman
Title: President
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EXHIBIT INDEX
Sequentially
Numbered
Exhibit No. Description Page
2 Agreement and Plan of Merger,
dated as of June 10, 1996,
between Customedix Corporation
and CUS Acquisition, Inc.
99 Press Release of Customedix
Corporation, dated June 10, 1996.
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Exhibit 2
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.
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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
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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.
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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
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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.
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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
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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
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Exhibit 99
[CUSTOMEDIX LETTERHEAD]
NEWS
RELEASE
Summary: Customedix Corp. (AMEX:CUS
Board approves merger
Company contact: Joseph MacDougald
Director of Investor Relations
(203) 284-9079
FOR IMMEDIATE RELEASE:
WALLINGFORD, CONNECTICUT, June 10, 1996....CUSTOMEDIX CORPORATION (AMEX: CUS)
announced today that its Board of Directors had approved a merger between the
Corporation and a newly-formed entity owned by Dr. Gordon Cohen, Chairman of
the Board and Chief Executive Officer of Customedix, and a partnership
comprised of certain trusts for the benefit of members of the Cohen family.
Under the terms of the merger, all stockholders of CUSTOMEDIX, other than Dr.
Cohen and the Cohen family partnership, would receive $2.375 for each share of
CUSTOMEDIX stock owned by them. Consummation of the merger is subject, among
other things, to approval by the CUSTOMEDIX stockholders.
