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) January 18, 1996
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NOUVEAU INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
Delaware 33-00139-A 23-2832617
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
212 Phillips Road, Exton, Pennsylvania 19341
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (201) 418-7300
Health Management, Inc., 525 Washington Boulevard, Jersey City, New Jersey 07310
(Former name or former address, if changed since last report.)
The Exhibit Index is on Page 5
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ITEM 1. CHANGES IN CONTROL OF REGISTRANT
On January 17, 1996 the Registrant entered into an agreement
and plan of merger (the "Merger Agreement") among the Registrant, Nouveau
Acquisition Corp. ("NAC"), a Delaware corporation, and wholly owned subsidiary
of the Registrant, and Nouveau International, Inc. ("NII"), a Pennsylvania
corporation, whereby NAC was merged with and into NII, effective January 18,
1996 (the "Merger").
As a result of the Merger NII is the surviving corporation and
is now a wholly-owned subsidiary of the Registrant. Pursuant to the Merger
Agreement (i) each share of NAC common stock, par value $.001, outstanding prior
to the consummation of the Merger was converted into one share of common stock
of NII, par value $1.00 ("NII Common Stock"), and (ii) each share of NII common
stock outstanding immediately prior to the merger was converted into one share
of common stock, par value $.001, of the Registrant. Immediately prior to the
Merger 4,499,985 shares of the Registrant's common stock were outstanding. As a
result of the Merger, 6,750,000 shares of common stock of the Registrant were
issued to Gary W. Black, Sr. who was the owner of all of the 6,750,000 shares of
NII Common Stock outstanding at the time of the Merger. Such 6,750,000 shares
constitute 60% of the 11,249,985 outstanding shares of common stock of the
Registrant and effectively transfer control of the Registrant from Gary D.
Peiffer and Phillip Herman to Gary W.
Black, Sr.
Upon the execution and delivery of the Merger Agreement, Gary
W. Black, Sr. was elected a member of Registrant's board of directors and the
existing board consisting of Gary D. Peiffer and Phillip Herman subsequently
resigned.
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
By virtue of the Merger described in Item 1 above, the
Registrant became the sole stockholder of NII and for the purposes of this Item
2 is deemed to have acquired all of the assets of NII on January 18, 1996, the
effective date of the Merger. The primary assets of NII consist of (i) its
proprietary rights to manufacture of hot food vending machines which are capable
of storing, cooking and dispensing pizzas and other hot food items; (ii) its
proprietary rights in specially designed packaging to cook and serve the hot
food items; (iii) its proprietary rights in special dough formulations which
allow dough to be microwaved without affecting texture or taste; (iv) various
licensing and distribution agreements which require licenses and distributions
to purchase minimum annual amounts of pizzas or machines, as the case may be;
and (v) finished inventory.
Registrant has no current intention to change the purpose for
which the assets of NII are currently used.
ITEM 4. CHANGES IN REGISTRANT'S CERTIFYING ACCOUNTANTS
On January 29, 1996, the Registrant dismissed Laurence Mullins, C.P.A.,
(the "Former Accountants") as its certifying accountants and retained Richard A.
Eisner & Company, LLP as its certifying accountants. By resolution dated as of
January 29, 1996, the Registrant's Board of Directors approved the change in
auditors.
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In connection with the report of the Former Accountants issued with
respect to the audit of the Registrant's fiscal year ended December 31, 1994,
which is the most recent fiscal year for which an audit was performed, and for
the period from the date of the last audited financial statements for the fiscal
year ended December 31, 1994 to January 29, 1996, there were no disagreements
with the Former Accountants on any matter of accounting principles or practices,
financial statement disclosure, or auditing scope or procedure, which
disagreements, if not resolved to the satisfaction of the Former Accountants,
would have caused them to make reference to the subject matter of the
disagreement in their report.
The report of the Former Accountants with respect to the Registrant's
financial statements for the fiscal year ended December 31, 1994 contained an
explanatory paragraph describing an uncertainty affecting the Registrant. The
uncertainty related to the ability of the Registrant to continue as a going
concern as the Registrant had virtually no operations or liquid assets.
A letter from the Former Accountants addressed to the Securities and
Exchange Commission in accordance with Item 304(a)(3) of Regulation S-K stating
that they agree with the Registrant's response to Item 4 of the Registrant's
Current Report on Form 8-K, will be filed within 10 business days after the
filing of this Report or within two business days of receipt of such letter by
the Registrant.
ITEM 5. OTHER EVENTS
On January 16, 1996, the Registrant, which was formerly known
as Health Management, Inc. ("HMI") reincorporated from the State of Florida to
the State of Delaware by merging into Nouveau Health Management, Inc., a
Delaware corporation. Each share of common stock of HMI was converted into
1.5204793 shares of common stock of Nouveau Health Management, Inc. Nouveau
Health Management, Inc. simultaneously changed its name to Nouveau
International, Inc. The terms of the reincorporation merger are contained in the
Agreement and Plan of Merger between Health Management, Inc. and Nouveau Health
Management, Inc., dated as of January 11, 1996, filed as an exhibit hereto.
In connection with the reincorporation merger, the Registrant
completed a private placement of preferred stock and common stock purchase
warrants for a total of $3,500,000 in gross proceeds.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION, EXHIBITS
(a) Financial statements of business acquired. It is presently
impracticable to provide the financial statements required to be included in
this Current Report on Form 8-K with respect to the businesses acquired. Such
financial statements will be filed by amendment as soon as practicable.
(b) Pro forma financial information. It is presently
impracticable to provide the pro forma financial information required to be
included in this Current Report on Form 8-K. Such pro forma financial
information will be filed by amendment as soon as practicable.
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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 THEREUNTO DULY AUTHORIZED.
NOUVEAU INTERNATIONAL, INC.
BY: /S/ GARY W. BLACK, SR.
NAME: GARY W. BLACK, SR.
TITLE: CHIEF EXECUTIVE OFFICER
DATE: January 30, 1996
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EXHIBIT INDEX
10.1 Agreement and Plan of Merger, dated as of January 17, 1996, among
Nouveau International, Inc., Nouveau Acquisition Corp. and Nouveau
International, Inc.
10.2 Agreement and Plan of Merger, dated as of January 11, 1996, between
Health Management, Inc. and Nouveau Health Management, Inc.
10.3 Press release dated January 18, 1996 with respect to merger between
Health Management, Inc. and Nouveau Health Management, Inc.
10.4 Press release dated January 19, 1996 with respect to reincorporation
and conversion of common stock of Health Management, Inc.
Exhibit 10.1
AGREEMENT AND PLAN OF MERGER,
DATED AS OF JANUARY 17, 1996,
AMONG
NOUVEAU INTERNATIONAL, INC.,
(A DELAWARE CORPORATION)
NOUVEAU ACQUISITION CORP.,
(A DELAWARE CORPORATION)
AND
NOUVEAU INTERNATIONAL, INC.
(A PENNSYLVANIA CORPORATION)
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AGREEMENT AND PLAN OF MERGER, dated as of January 16, 1996, among
NOUVEAU INTERNATIONAL, INC., a Delaware corporation with executive offices
located at 525 Washington Boulevard, 29th Floor, Jersey City, New Jersey 07310
("Nouveau-Delaware"), NOUVEAU ACQUISITION CORPORATION, a Delaware corporation
and a wholly-owned subsidiary of Nouveau-Delaware with executive offices at 525
Washington Boulevard, 29th Floor, Jersey City, New Jersey 07310 ("NAC") and
NOUVEAU INTERNATIONAL, INC., a Pennsylvania corporation with executive offices
at 212 Phillips Road, Exton, Pennsylvania 19341 ("Nouveau"), Nouveau in its
capacity as the surviving corporation being sometimes referred to herein as the
"Surviving Corporation," and NAC and Nouveau being sometimes referred to herein
as the "Constituent Corporations."
W I T N E S S E T H:
WHEREAS, Nouveau-Delaware, NAC, and Nouveau desire to merge NAC with
and into Nouveau (the "Merger") in accordance with the laws of the States of
Delaware and Pennsylvania and in accordance with this Agreement, so that, upon
consummation of the Merger, NAC will cease to exist and Nouveau will be the
surviving corporation; and
WHEREAS, this Agreement has been approved by the Board of Directors and
stockholders of each of Nouveau-Delaware, NAC, and Nouveau; and
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NOW THEREFORE, in consideration of the respective covenants, promises,
and obligations contained herein, the parties hereto hereby agree as follows:
I. DEFINITIONS.
Commission. Securities and Exchange Commission.
Constituent Corporations. As defined in the introductory
paragraph hereof.
DGCL. The General Corporation Law of the State of Delaware.
ERISA. The Employee Retirement Income Security Act of 1974,
as amended.
ERISA Affiliate. Any trade or business, whether or not incorporated,
which together with Nouveau is or at any time during such time as when such
trade or business was an affiliate of Nouveau was treated as a "single employer"
within the meaning of Section 414(b), (c), (m) or (o) of the Code or Section
4001 of ERISA.
Exchange Act. Securities Exchange Act of 1934, as amended.
Effective Time. As defined in Section 4.1 hereof.
Last Nouveau-Delaware Balance Sheet. The balance sheet of
Nouveau-Delaware at June 30, 1995.
Last Nouveau-Delaware Balance Sheet Date. September 30,
1995.
Last Nouveau Balance Sheet. The consolidated balance sheet
and the notes thereto as of September 30, 1995.
Last Nouveau Balance Sheet Date. September 30, 1995.
Merger. As defined in the first recital hereof.
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NAC. As defined in the introductory paragraph hereof.
Nouveau. As defined in the introductory paragraph hereof.
Nouveau Common Stock. Common Stock, without par value of
Nouveau.
Nouveau-Delaware. As defined in the introduction paragraph.
Nouveau-Delaware Common Stock. Common stock, par value $.001
per share, of Nouveau-Delaware.
Nouveau-Delaware Private Placement. The private offering and sale by
Nouveau-Delaware of a minimum of 42, and a maximum of 70, units, each unit
comprised of one share of Series A 4% Cumulative Convertible Redeemable
Preferred Stock and 1,429 common stock purchase warrants, which transaction
shall close immediately prior to, or simultaneously with, the execution hereof.
Nouveau-Delaware Series A Preferred Stock. Series A 4%
Cumulative Convertible Redeemable Preferred Stock, par value $.001
per share, of Nouveau-Delaware.
Nouveau Subsidiaries. Nouveau Vend Int'l, Inc. and Nouveau
Foods Int'l, Inc.
Old Certificates. Certificates representing shares of
Nouveau Common Stock outstanding immediately prior to the
Effective Time.
PBCL. Pennsylvania Business Corporation Law.
Reorganization Plan. The joint plan of reorganization of
Nouveau and its subsidiaries as approved by the U.S. Bankruptcy Court for the
Eastern District of Pennsylvania by order entered on December 8, 1995.
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Securities Act. Securities Act of 1933, as amended.
Surviving Corporation. As defined in the introductory
paragraph hereof.
Taxes. Taxes, fees, levies, duties, tariffs, imposts, and governmental
impositions or charges of any kind in the nature of (or similar to) taxes,
payable to any federal, state, local or foreign taxing authority, including
(without limitation) (i) income, franchise, profits, gross receipts, ad valorem,
net worth, value added, sales, use, service, real or personal property, special
assessments, capital stock, license, payroll, withholding, employment, social
security, workers' compensation, unemployment compensation, utility, severance,
production, excise, stamp, occupation, premiums, windfall profits, transfer and
gains taxes, and (ii) interest, penalties, additional taxes and additions to tax
imposed with respect thereto.
Tax Return. Returns, reports, and information statements with respect
to Taxes required to be filed with the IRS or any other taxing authority,
domestic or foreign, including, without limitation, consolidated, combined and
unitary tax returns (including returns required in connection with any Employee
Plan).
II. NAME OF SURVIVING CORPORATION; CERTIFICATE
OF INCORPORATION AND BY-LAWS; BOARD OF
DIRECTORS; OFFICERS.
SECTION 2.1 NAME OF SURVIVING CORPORATION. The corporation which
shall survive the Merger is Nouveau. The name
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of the Surviving Corporation shall be "Nouveau International, Inc."
SECTION 2.2 CERTIFICATE OF INCORPORATION AND BY-LAWS. The certificate
of incorporation and the by-laws of Nouveau as in effect at the Effective Time
shall, from and after the Effective Time, be the certificate of incorporation
and the by-laws of the Surviving Corporation until such time as they are
amended.
SECTION 2.3 BOARD OF DIRECTORS AND OFFICERS. The directors of Nouveau
at the Effective Time shall continue to be the directors, and the officers of
Nouveau at the Effective Time shall continue to be the officers, of the
Surviving Corporation, each to serve, in each case (subject to the by-laws of
the Surviving Corporation), until their respective successors shall have been
elected and qualified.
III. STATUS OF SECURITIES.
SECTION 3.1 CAPITAL STOCK OF NOUVEAU.
(a) Nouveau Common Stock.
(i) Each share of Nouveau Common Stock outstanding
at the Effective Time shall be converted into, and exchanged for, one share of
Nouveau-Delaware Common Stock, except that shares of Nouveau Common Stock held
in Nouveau's treasury or owned by Nouveau-Delaware or NAC at the Effective Time
shall be cancelled.
(ii) Subject to the provisions of the last clause
of the first sentence of Section 3.1(a)(i), after the Effective Time, each
holder of an Old Certificate theretofore representing shares of Nouveau Common
Stock, upon surrender thereof to Nouveau-
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Delaware, shall be entitled to receive in exchange therefor one share of
Nouveau-Delaware Common Stock for each share of Nouveau Common Stock represented
by such holder's Old Certificates. Nouveau-Delaware shall make available as soon
as practicable after the Effective Time certificates representing the shares of
Nouveau-Delaware Common Stock into and for which the shares of Nouveau Common
Stock theretofore represented by such surrendered Old Certificates have been
exchanged and converted. Until surrendered and exchanged, each Old Certificate
shall, after the Effective Time, be deemed for all corporate purposes to
represent only the right to receive the shares of Nouveau-Delaware Common Stock
to which the holder thereof is entitled pursuant to this Section 3.1. No
dividend or liquidating or other distribution, if any, payable subsequent to the
Effective Time to holders of record of shares of Nouveau Common Stock at a time
prior to the Effective Time shall be paid to the holders of Old Certificates;
provided, however, that upon surrender and exchange of such Old Certificates
there shall be paid (subject to the last sentence of this Section 3.1(a)(ii)) to
the record holders of the shares of Nouveau-Delaware Common Stock issued in
exchange therefor the amount, without interest thereon, of dividends and
liquidating or other distributions, if any, declared by Nouveau payable to
holders of record of shares of Nouveau Common Stock at a time prior to the
Effective Time, but payable subsequent to the Effective Time. No dividends shall
be paid on the shares of Nouveau-Delaware Common Stock issuable in the Merger in
exchange
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for shares of Nouveau Common Stock; provided, however, that no dividend or other
payment payable after the Effective Time with respect to the shares of
Nouveau-Delaware Common Stock issuable in exchange for shares of Nouveau Common
Stock shall be paid to the holder of any unsurrendered Old Certificate until
such holder surrenders such certificate. If Old Certificates are not surrendered
and exchanged for shares of Nouveau-Delaware Common Stock prior to two years
after the Effective Time (or, in any particular case, prior to the date before
the second anniversary of the Effective Time on which such shares of
Nouveau-Delaware Common Stock, the dividends and liquidating or other
distributions, if any, would otherwise escheat to, or become the property of,
any governmental unit or any agency thereof), (i) the shares of Nouveau-Delaware
Common Stock into and for which the shares of Nouveau Common Stock theretofore
represented by such Old Certificates shall have been converted, (ii) all
dividends and other amounts which theretofore have become payable to holders of
record on or after the Effective Time with respect to such shares of
Nouveau-Delaware Common Stock, (iii) the amount of dividends and liquidating or
other distributions, if any, declared by Nouveau payable to holders of record of
shares of Nouveau Common Stock at a time prior to the Effective Time, but
payable subsequent to the Effective Time, and (iv) any other amounts which
subsequently become payable with respect to such shares of Nouveau-Delaware
Common Stock, shall become the property of Nouveau-Delaware (and, to the extent
not in its possession, shall
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be paid over to it), free and clear of all claims or interest of any other
person previously entitled thereto.
(iii) If any shares of Nouveau-Delaware Common
Stock issuable in exchange for shares of Nouveau Common Stock is to be issued in
a name other than that in which the Old Certificate surrendered for exchange is
issued, the Old Certificate so surrendered shall be properly endorsed and
otherwise in proper form for transfer and the person requesting such exchange
shall pay to Nouveau-Delaware any transfer or other taxes required by reason of
the issuance of such shares of Nouveau-Delaware Common Stock in any name other
than that of the registered holder of the Old Certificate surrendered, or
establish to the satisfaction of Nouveau-Delaware that such tax has been paid or
is not payable.
(iv) As of the Effective Time, no transfer of the
shares of Nouveau Common Stock outstanding prior to the Effective Time shall be
made on the stock transfer books thereof. If, after the Effective Time, Old
Certificates are presented to NouveauDelaware or Nouveau, they shall be
exchanged pursuant to Section 3.1(a)(ii).
SECTION 3.2 CAPITAL STOCK OF NAC. All shares of capital stock of NAC,
whether outstanding or held in the treasury of NAC, shall be converted into, and
exchanged for, an aggregate of ten shares of Nouveau Common Stock.
SECTION 3.3 CAPITAL STOCK OF NOUVEAU-DELAWARE. All shares
of capital stock of Nouveau-Delaware, whether outstanding or held
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in the treasury of Nouveau-Delaware, shall be unchanged and remain
capital stock of Nouveau-Delaware.
IV. FILING; EFFECTIVE TIME.
SECTION 4.1 FILING; EFFECTIVE TIME. As soon as reasonably practicable
after the execution of this Agreement and the consummation of the Merger and the
other transactions contemplated hereby, appropriate certificates of merger in
the form required by the DGCL and the PBCL shall be executed and filed in the
office of the Secretary of State of the State of Delaware and the Secretary of
Commonwealth of the Commonwealth of Pennsylvania, which certificates shall
provide that the Merger shall become effective upon the filing of each of such
certificates (the "Effective Time").
SECTION 4.2 DOCUMENTS TO BE DELIVERED IMMEDIATELY PRIOR TO
THE EFFECTIVE TIME.
(a) Immediately prior to the Effective Time, Nouveau-
Delaware shall deliver to Nouveau the following documentation:
(i) a Certificate of the Principal Executive
Officer of Nouveau-Delaware;
(ii) a "comfort letter" from Laurence E. Mullins,
CPA, Nouveau-Delaware's accountants;
(iii) the opinion of Shereff, Friedman, Hoffman &
Goodman, LLP, counsel to Nouveau-Delaware; and
(iv) such additional documentation as Nouveau may
reasonably request.
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(b) Immediately prior to the Effective Time, Nouveau
shall deliver to Nouveau-Delaware the following documentation:
(i) a Certificate of the Principal Executive
Officer of Nouveau;
(ii) a comfort letter from Richard A. Eisner &
Company, LLP, Nouveau's accountants;
(iii) the opinion of John L. Thomas, Esq., counsel
to Nouveau; and
(iv) the opinion of Kramer, Levin, Naftalis,
Nessen, Kamin & Frankel, special counsel to Nouveau; and
(v) such additional documentation as Nouveau-
Delaware may reasonably request.
V. CERTAIN EFFECTS OF THE MERGER.
SECTION 5.1 SURVIVING CORPORATION. When the Merger becomes effective,
the separate existence of NAC shall cease, NAC shall be merged into Nouveau, and
the Surviving Corporation shall possess all the rights, privileges, powers, and
franchises as well of a public as of a private nature, and shall be subject to
all the restrictions, disabilities, and duties of each of the Constituent
Corporations; and all and singular, the rights, privileges, powers, and
franchises of each of the Constituent Corporations, and all property, real,
personal, and mixed, and all debts due to either of the Constituent Corporations
on whatever account, as well for stock subscriptions as all other things in
action or belonging to each of the Constituent Corporations shall
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be vested in the Surviving Corporation; and all property, rights, privileges,
powers, and franchises, and all and every other interest shall be thereafter as
effectually the property of the Surviving Corporation as they were of the
several and respective Constituent Corporations; and the title to any real
estate vested by deed or otherwise, under the laws of the State of Delaware, the
Commonwealth of Pennsylvania, or any other jurisdiction, in either of the
Constituent Corporations, shall not revert or be in any way impaired by reason
of the Merger; but all rights of creditors and all liens upon any property of
either of the Constituent Corporations shall be preserved unimpaired, and all
debts, liabilities, and duties of the respective Constituent Corporations shall
thenceforth attach to the Surviving Corporation, and may be enforced against it
to the same extent as if such debts, liabilities, and duties had been incurred
or contracted by it.
SECTION 5.2 TAX FREE REORGANIZATION. Nouveau-Delaware, NAC and Nouveau
intend this agreement be treated as a plan of reorganization within the meaning
of Section 368(a) of the Internal Revenue Code of 1986, as amended (the "Code"),
and regulations promulgated thereunder.
VI. REPRESENTATIONS AND WARRANTIES.
SECTION 6.1 REPRESENTATIONS AND WARRANTIES OF NOUVEAUDELAWARE AND NAC.
Each of Nouveau-Delaware and NAC represents and warrants to Nouveau as follows:
(a) Other than NAC, Nouveau-Delaware has no
subsidiaries except as otherwise disclosed on Schedule 6.01(a) or
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affiliated corporation or owns, directly or indirectly, any interest in any
other enterprise (whether or not such enterprise is a corporation). Each of
Nouveau-Delaware and NAC is a corporation duly organized, validly existing, and
in good standing under the laws of the State of Delaware, with all requisite
power and authority, and all necessary consents, authorizations, approvals,
orders, licenses, certificates, and permits of and from, and declarations and
filings with, all federal, state, local, and other governmental authorities and
all courts and other tribunals, to own, lease, license, and use its properties
and assets and to carry on the businesses in which it is now engaged and the
businesses in which it contemplates engaging. Each of Nouveau-Delaware and NAC
is duly qualified to transact the businesses in which it is engaged and is in
good standing as a foreign corporation in every jurisdiction in which its
ownership, leasing, licensing, or use of property or assets or the conduct of
its businesses makes such qualification necessary.
(b) The authorized capital stock of Nouveau-Delaware consists
of 25,000,000 shares of Common Stock, par value $.001 per share, of which
approximately 4,499,985 shares are outstanding (subject to reduction for
dissenters' rights in connection with the merger of Health Management, Inc., a
Florida Corporation, with and into Nouveau-Delaware), and 1,000,000 shares of
preferred stock, par value $.001 per share, of which no shares of
NouveauDelaware Series A Preferred Stock are outstanding other than shares to be
sold in the HMI Private Placement. Each of such
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outstanding shares of Nouveau-Delaware Common Stock and NouveauDelaware Series A
Preferred Stock is validly authorized and issued, fully paid, and nonassessable,
and has not been issued and is not owned or held in violation of any preemptive
right of stockholders. Except as set forth in Schedule 6.1(b) hereto or as
otherwise disclosed in, or contemplated by, this Agreement, there is no
commitment, plan, or arrangement to issue, and no outstanding option, warrant,
or other right calling for the issuance of, any share of capital stock of
Nouveau-Delaware or NAC or any security or other instrument convertible into, or
exercisable or exchangeable for, capital stock of Nouveau-Delaware or NAC. There
is outstanding no security or other instrument convertible into, or exercisable
or exchangeable for, capital stock of Nouveau-Delaware of NAC.
(c) Nouveau-Delaware has delivered to Nouveau true and correct
copies of the following: consolidated audited balance sheets of Nouveau-Delaware
as of December 31, 1994, 1993, and 1992; unaudited consolidated balance sheet of
Nouveau-Delaware as of June 30, 1995; audited consolidated statements of income,
statements of stockholders' equity, and statements of cash flows of
Nouveau-Delaware for the years ended December 31, 1994, 1993, and 1992; and the
unaudited consolidated statement of income, statement of stockholders' equity,
and statement of cash flows of Nouveau-Delaware for the six months ended June
30, 1995. Each such consolidated balance sheet presents fairly the consolidated
financial condition, assets, liabilities, and stockholders' equity
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of Nouveau-Delaware as of its date; each such consolidated statement of income
and consolidated statement of stockholders' equity presents fairly the
consolidated results of operations of Nouveau-Delaware for the period indicated;
and each such consolidated statement of cash flows presents fairly the
information purported to be shown therein. The consolidated financial statements
referred to in this Section 6.1(c) have been prepared in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved and are in accordance with the books and records of
NouveauDelaware. Since December 31, 1994 and since June 30, 1995:
(i) Except as set forth on Schedule 6.1(c)(i), there
has at no time been a material adverse change in the financial
condition, results of operations, businesses, properties,
assets, liabilities, or future prospects of Nouveau-Delaware
and Nouveau-Delaware has conducted no operations;
(ii) Except as set forth in Schedule 6.1(c)(ii)
hereto, Nouveau-Delaware has not authorized, declared, paid,
or effected any dividend or liquidating or other distribution
in respect of its capital stock or any direct or indirect
redemption, purchase, other acquisition, combination, split,
or reorganization of any stock of Nouveau-Delaware;
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(iii) The operations and businesses of Nouveau-
Delaware have been conducted in all respects only in the
ordinary course;
(iv) Nouveau-Delaware has not suffered an
extraordinary loss (whether or not covered by insurance)
or waived any right of substantial value.
(v) Nouveau-Delaware has not, except in the ordinary
course of business and consistent with prior practice, sold,
transferred, leased or loaned to others or otherwise disposed
of any of its assets (or committed to do any of the
foregoing), including the payment of any loans owed to any
affiliate, or canceled, waived, released or otherwise
compromised any debt or claim, or any right of significant
value;
(vi) Nouveau-Delaware has not suffered any damage,
destruction or loss (whether or not covered by insurance)
which has had or is reasonably likely to have a Material
Adverse Effect on Nouveau-Delaware;
(vii) Since June 30, 1995, Nouveau-Delaware has
not made or committed to make any capital expenditures
or capital additions;
(viii) Since June 30, 1995, Nouveau-Delaware has not
instituted any litigation, action or proceeding before any
court, governmental body or arbitration tribunal relating to
it or its property;
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(ix) Since June 30, 1995, Nouveau-Delaware has not
acquired, or agreed to acquire, by merging or consolidating
with, or by purchasing a substantial equity interest in or a
substantial portion of the assets of, or by any other manner,
any business or any corporation, partnership, association or
other business organization or division thereof, or otherwise
acquired, or agreed to acquire, any assets;
(x) Since June 30, 1995, Nouveau-Delaware has not
increased, or agreed or promised to increase, the compensation
of any officer, director or agent of Nouveau-Delaware,
directly or indirectly, including by means of any bonus,
pension plan, profit sharing, deferred compensation, savings,
insurance, retirement, or any other employee benefit plan;
(xi) Nouveau-Delaware has not made or changed any
election concerning Taxes, changed an annual accounting
period or adopted or changed any accounting method; or
(xii) except as disclosed on Schedule 6.1(c)(xii),
Nouveau-Delaware or any subsidiary of Nouveau-Delaware has not
filed any amended Tax Return, granted any waiver of any
statute of limitation with respect to any Taxes or any
extension of the period for the assessment of any Taxes,
received notification of an examination, audit or pending
assessment with respect to Taxes, entered into any closing
agreement with respect to Taxes, settled or
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compromised any Tax claim or assessment or surrendered any
right to claim a refund of Taxes or obtained or entered into
any Tax ruling, agreement, contract, understanding,
arrangement or plan.
There is no fact known to Nouveau-Delaware which materially adversely affects,
or in the future (as far as Nouveau-Delaware can foresee) may materially
adversely affect, the consolidated financial condition, results of operations,
businesses, properties, assets, liabilities, or future prospects of
NouveauDelaware, or, after the Merger, the Surviving Corporation; provided,
however, that Nouveau-Delaware expresses no opinion as to political or economic
matters of general applicability.
(d) Except as set forth on Schedule 6.1(d), neither
Nouveau-Delaware nor any subsidiary of Nouveau-Delaware has any liability of any
nature, accrued or contingent, whether due or to become due, including without
limitation liabilities for Taxes. The amounts set up as provisions for Taxes on
the Last NouveauDelaware Balance Sheet are sufficient for all accrued and unpaid
Taxes of Nouveau-Delaware and any subsidiary of Nouveau-Delaware (including
interest and penalties, if any, thereon and Taxes being contested), whether or
not due and payable and whether or not disputed, under tax laws, as in effect on
the Last NouveauDelaware Balance Sheet Date or now in effect, for the period
ended on such date and for all fiscal periods prior thereto. The execution,
delivery, and performance of this Agreement by NouveauDelaware and NAC will not
cause any Taxes to be payable or cause
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any lien, charge, or encumbrance to secure any Taxes to be created either
immediately or upon the nonpayment of any Tax. The Internal Revenue Service has
audited and settled or the statute of limitations has run upon all federal
income tax returns of Nouveau-Delaware for all taxable years up to, and
including, the taxable year ended December 31, 1992. Nouveau-Delaware and any
subsidiary of Nouveau-Delaware each has filed all federal, state, local, and
foreign Tax Returns required to be filed by it, has delivered to Nouveau a true
and correct copy of each such return which was filed in the past three years,
has paid (or has established on the Last Nouveau-Delaware Balance Sheet a
reserve for) all Taxes, assessments, and other governmental charges payable or
remittable by it or levied upon it or its properties, assets, income, or
franchises which are due and payable, and has delivered to Nouveau a true and
correct copy of any report as to adjustments received by it from any taxing
authority during the past six years and a statement as to any litigation,
governmental or other proceeding (formal or informal), or investigation pending,
threatened, or in prospect with respect to any such report or the subject matter
of such report.
(e) There is no litigation, arbitration, claim, governmental
or other proceeding (formal or informal), or investigation pending, threatened,
or in prospect (or any basis therefor known to Nouveau-Delaware) with respect to
NouveauDelaware, NAC, or any of their respective businesses, properties, or
assets. Neither Nouveau-Delaware nor NAC is in violation of,
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or in default with respect to, any law, rule, regulation, order, judgment, or
decree; nor is Nouveau-Delaware or NAC required to take any action in order to
avoid such violation or default. There is no outstanding consent, order,
judgment, writ, injunction, award, or decree of any court, arbitration or other
tribunal against or involving Nouveau-Delaware, NAC, their respective
businesses, or any of their respective properties or assets.
(f) Neither Nouveau-Delaware nor NAC owns any assets or
properties.
(g) Except as set forth on Schedule 6.1(g), neither
Nouveau-Delaware nor NAC is subject to any contracts, agreements, instruments,
leases, licenses, arrangements, or understandings. Nouveau-Delaware and NAC has
furnished to Nouveau their respective certificates of incorporation (or other
charter document) and by-laws and all amendments thereto, as presently in
effect. Neither Nouveau-Delaware nor NAC has engaged within the last five years
in, is engaging in, or intends to engage in any transaction with, or has had
within the last five years, now has, or intends to have any contract, agreement,
instrument, lease, license, arrangement, or understanding with any stockholder,
any director, officer, or employee of Nouveau-Delaware or NAC, except for
agreements listed in Schedule 6.1(g), any relative or affiliate of any
stockholder of Nouveau-Delaware or NAC, any such director, officer, or employee,
or any other corporation or enterprise in which any stockholder of
Nouveau-Delaware, any such director,
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officer, or employee, or any such relative or affiliate then had or now has a 5%
or greater equity or voting or other substantial interest, other than those
listed and so specified in Schedule 6.1(g). The stock ledgers and stock transfer
books and the minute book records of Nouveau-Delaware and NAC relating to all
issuances and transfers of stock by Nouveau-Delaware and NAC and all proceedings
of the stockholders and the Board of Directors and committees thereof of
Nouveau-Delaware and NAC since their respective incorporations, all of which
have been made available to Nouveau, are the original stock ledgers and stock
transfer books and minute book records of Nouveau-Delaware and NAC or exact
copies thereof. Neither Nouveau-Delaware nor NAC is in violation or breach of,
or in default with respect to, any term of its certificate of incorporation (or
other charter document) or by-laws.
(h) Neither Nouveau-Delaware nor NAC (i) has any employees,
(ii) has contributed to any pension, profit-sharing, option, other incentive
plan, or any other type of employee benefit plan, (iii) maintains or has
maintained, is or was not a party to, or otherwise participates or participated
in, on its own behalf or on behalf of any former employees, any pension,
profit-sharing, option, other incentive plan, or any other type of employee
benefit plan, or (iv) has any obligation to, or customary arrangement with,
former employees, if any, for bonuses, incentive compensation, vacations,
severance pay, sick pay, sick leave,
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insurance, service award, relocation, disability, tuition refund, or other
benefits, whether oral or written.
(i) Neither Nouveau-Delaware or NAC, any director, officer,
agent, employee, or other person associated with, or acting on behalf of,
Nouveau-Delaware or NAC, nor any stockholder of Nouveau-Delaware has, directly
or indirectly: (i) used any corporate funds for unlawful contributions, gifts,
entertainment, or other unlawful expenses relating to political activity; made
any unlawful payment to foreign or domestic government officials or employees or
to foreign or domestic political parties or campaigns from corporate funds;
violated any provision of the Foreign Corrupt Practices Act of 1977, as amended;
or (ii) made any bribe, rebate, payoff, influence payment, kickback, or other
unlawful payment.
(j) Each of Nouveau-Delaware and NAC has all requisite power
and authority to execute, deliver, and perform this Agreement. All necessary
corporate proceedings of NouveauDelaware and NAC have been duly taken to
authorize the execution, delivery, and performance of this Agreement thereby.
This Agreement has been duly authorized, executed, and delivered by each of
Nouveau-Delaware and NAC, constitutes the legal, valid, and binding obligation
of Nouveau-Delaware and NAC, and is enforceable as to them in accordance with
its terms. Other than the certificates of merger to be filed in Delaware and
Pennsylvania and filings required under federal securities laws which are due
after the Closing, no consent, authorization,
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approval, order, license, certificate, or permit of or from, or declaration or
filing with, any federal, state, local, or other governmental authority or any
court or other tribunal is required by Nouveau-Delaware or NAC for the
execution, delivery, or performance of this Agreement thereby. No consent of any
party to any contract, agreement, instrument, lease, license, arrangement, or
understanding to which Nouveau-Delaware or NAC is a party, or to which
Nouveau-Delaware or NAC or any of their respective properties or assets are
subject, is required for the execution, delivery, or performance of this
Agreement; and the execution, delivery, and performance of this Agreement will
not violate, result in a breach of, conflict with, or (with or without the
giving of notice or the passage of time or both) entitle any party to terminate
or call a default under, entitle any party to receive rights or privileges that
such party was not entitled to receive before this Agreement was executed under,
or create any obligation on the part of Nouveau-Delaware or NAC to which it was
not subject immediately before this Agreement was executed under, any term of
any such contract, agreement, instrument, lease, license, arrangement, or
understanding, or violate or result in a breach of any term of the certificate
of incorporation (or other charter document) or by-laws of Nouveau-Delaware or
NAC, or violate, result in a breach of, or conflict with any law, rule,
regulation, order, judgment, or decree binding on Nouveau-Delaware or NAC or to
which any of their respective businesses, properties, or assets are subject.
Neither Nouveau-Delaware nor NAC, nor any of their
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respective officers, directors, employees, or agents has employed any broker or
finder or incurred any liability for any fee, commission, or other compensation
payable by any person on account of alleged employment as a broker or finder, or
alleged performance of services as a broker or finder, in connection with, or as
a result of, this Agreement, the Merger, or the other transactions contemplated
by this Agreement other than the engagement of Hampshire Securities Corporation
and Americorp Securities, Inc. in connection with the Nouveau-Delaware Private
Placement.
(k) No representation or warranty by Nouveau-Delaware or NAC
in this Agreement contains, or at the Effective Time will contain, an untrue
statement of material fact or omits, or at the Effective Time will omit, to
state a material fact required to be stated therein or necessary to make the
statements made not misleading.
(l) The Nouveau-Delaware Common Stock has not been registered
under Section 12 of the Exchange Act. The NouveauDelaware Common Stock is traded
in the over-the-counter market. All periodic reports of Nouveau-Delaware
pursuant to Section 15(d) under the Exchange Act have been filed.
Nouveau-Delaware has heretofore provided to Nouveau, true and complete copies of
all forms, reports, schedules, statements and other documents required to be
filed by it under the Exchange Act of 1934 since January 1, 1992 as such
documents have been amended since the time of their filing (the "SEC
Documents"). The SEC Documents, including
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without limitation any financial statements and schedules included therein, at
the time filed or, if subsequently amended, as so amended, (i) did not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading and (ii) complied in all respects with the applicable requirements of
the Exchange Act and the applicable rules and regulations of the SEC thereunder.
The financial statements of Nouveau-Delaware included in the SEC documents
comply as to form in all material respects with applicable accounting
requirements and with the published rules and regulations of the SEC with
respect thereto, have been prepared in accordance with GAAP, applied on a
consistent basis during the periods involved (except as may be indicated in the
notes thereto or, in the case of the unaudited statements, as permitted by Form
10-Q of the SEC) and fairly present (subject in the case of the unaudited
statements, to customary year end audit adjustments) the financial position of
Nouveau-Delaware as at the dates thereof and the results of its operations and
cash flows.
(m) The Nouveau-Delaware Private Placement was
conducted in compliance with the Securities Act and applicable
state securities laws.
SECTION 6.2 REPRESENTATIONS AND WARRANTIES OF NOUVEAU.
Nouveau represents to Nouveau-Delaware and NAC as follows:
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(a) Except as set forth in Schedule 6.2(a)(i), Nouveau owns
directly all the outstanding shares of capital stock of Nouveau Subsidiaries.
Other than the Nouveau Subsidiaries, neither Nouveau nor any Nouveau
Subsidiaries has any subsidiaries or affiliated corporation or owns any interest
in any other enterprise (whether or not such enterprise is a corporation).
Nouveau and each of the Nouveau Subsidiaries is a corporation duly organized,
validly existing, and in good standing under the laws of its respective
jurisdiction of incorporation, with all requisite power and authority, and all
necessary consents, authorizations, approvals, orders, licenses, certificates,
and permits of and from, and declarations and filings with, all federal, state,
local, and other governmental authorities and all courts and other tribunals, to
own, lease, license, and use its properties and assets and to carry on the
businesses in which it is now engaged and the businesses in which it
contemplates engaging. Nouveau and each of the Nouveau Subsidiaries is duly
qualified to transact the businesses in which it is engaged and is in good
standing as a foreign corporation in every jurisdiction in which its ownership,
leasing, licensing, or use of property or assets or the conduct of its
businesses makes such qualification necessary, except where the failure to so
qualify would not have a material adverse effect..
(b) The authorized capital stock of Nouveau consists of
10,000,000 shares of Nouveau Common Stock, of which 6,750,000
shares are outstanding. Except as set forth in Schedule 6.2(b),
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each of such outstanding shares of Nouveau Common Stock and each outstanding
share of capital stock of each Nouveau Subsidiary is validly authorized and
issued, fully paid, and nonassessable, has not been issued and is not owned or
held in violation of any preemptive right of stockholders, in each case free and
clear of all liens, security interests, pledges, charges, encumbrances,
stockholders' agreements, and voting trusts. There is no commitment, plan, or
arrangement to issue, and no outstanding option, warrant, or other right calling
for the issuance of, any share of capital stock of Nouveau or of any Nouveau
Subsidiary or any security or other instrument convertible into, or exercisable
or exchangeable for capital stock of Nouveau or any Nouveau Subsidiary. Except
as provided in Schedule 6.2(b) hereto, there is outstanding no security or other
instrument convertible into, or exercisable or exchangeable for, capital stock
of Nouveau or of any Nouveau Subsidiary.
(c) Nouveau has delivered to Nouveau-Delaware true and correct
copies of the following: unaudited consolidated balance sheets of Nouveau as of
December 31, 1994 and 1993; unaudited consolidated balance sheet of Nouveau as
of September 30, 1995; unaudited consolidated statements of income, consolidated
statements of stockholders' equity, and consolidated statements of cash flows of
Nouveau for the years ended December 31, 1994 and 1993; and the unaudited
consolidated statement of income, consolidated statement of stockholders'
equity, and consolidated statement of cash flows of Nouveau for the six months
ended June
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30, 1995. Each such consolidated balance sheet presents fairly the financial
condition, assets, liabilities, and stockholders' equity of Nouveau and the
Nouveau Subsidiaries as of its date; each such consolidated statement of income
and consolidated statement of stockholders' equity presents fairly the results
of operations of Nouveau and the Nouveau Subsidiaries for the period indicated;
and each such consolidated statement of cash flows presents fairly the
information purported to be shown therein. To the best of the Company's
knowledge the financial statements referred to in this Section 6.2(c) have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved and are in accordance with
the books and records of Nouveau and the Nouveau Subsidiaries. Since December
31, 1994 and since September 30, 1995:
(i) Except as set forth in Schedule 6.2(c)(i) hereto,
there has at no time been a material adverse change in the
financial condition, results of operations, businesses,
properties, assets, liabilities, or future prospects of
Nouveau or the Nouveau Subsidiaries;
(ii) Neither Nouveau nor any Nouveau Subsidiary has
authorized, declared, paid, or effected any dividend or
liquidating or other distribution in respect of its capital
stock or any direct or indirect redemption,
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purchase, or other acquisition of any stock of Nouveau
and the Nouveau Subsidiaries;
(iii) Except as set forth in Schedule 6.2(c)(iii)
hereto, the operations and businesses of Nouveau and the
Nouveau Subsidiaries have been conducted in all respects only
in the ordinary course;
(iv) There has been no accepted purchase order or
quotation, arrangement, or understanding for future sale of
the products or services of Nouveau or either of the Nouveau
Subsidiaries which Nouveau or either of the Nouveau
Subsidiaries expects will not be profitable; and
(v) Neither Nouveau nor either of the Nouveau
Subsidiaries has suffered an extraordinary loss (whether or
not covered by insurance) or waived any right of substantial
value.
(vi) Neither Nouveau nor either of the Nouveau
Subsidiaries has suffered any damage, destruction or loss
(whether or not covered by insurance) which has had or is
reasonably likely to have a Material Adverse Effect on Nouveau
or either of the Nouveau Subsidiaries;
(vii) Except as set forth in the Business Plan of
Nouveau and on Schedule 6.2(c)(vii), neither Nouveau nor
either of the Nouveau Subsidiaries has made or committed to
make any capital expenditures or capital additions or
betterment in excess of an aggregate of $10,000;
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(viii) Neither Nouveau nor either of the Nouveau
Subsidiaries has instituted any litigation, action or
proceeding before any court, governmental body or arbitration
tribunal relating to it or its property;
(ix) Neither Nouveau nor either of the Nouveau
Subsidiaries has acquired, or agreed to acquire, by merging or
consolidating with, or by purchasing a substantial equity
interest in or a substantial portion of the assets of, or by
any other manner, any business or any corporation,
partnership, association or other business organization or
division thereof, or otherwise acquired, or agreed to acquire,
any assets which are material, individually or in the
aggregate, to Nouveau;
(x) Nouveau has not made or changed any election
concerning Taxes, changed an annual accounting period or
adopted or changed any accounting method; or
(xi) except in the ordinary course of business and
consistent with prior practice, Nouveau has not filed any
amended tax return or extended the applicable statute of
limitations for any taxable period, received notification of
an examination, audit or pending assessment with respect to
Taxes, entered into any closing agreement with respect to
Taxes, settled or compromised any Tax claim or assessment or
surrendered any right to claim a refund of Taxes or obtained
or
29
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entered into any Tax ruling, agreement, contract,
understanding, arrangement or plan.
Except as set forth in Schedule 6.2(c), there is no fact known to Nouveau or
either of the Nouveau Subsidiaries which materially adversely affects or in the
future (as far as Nouveau or either of the Nouveau Subsidiaries can foresee) may
materially adversely affect the financial condition, results of operations,
businesses, properties, assets, liabilities, or future prospects of Nouveau or
either of the Nouveau Subsidiaries; provided, however, that Nouveau and the
Nouveau Subsidiaries express no opinion as to political or economic matters of
general applicability.
(d) Neither Nouveau nor either of the Nouveau Subsidiaries has
any liability of any nature, accrued or contingent, including without limitation
liabilities for Taxes, and liabilities to customers or suppliers, other than the
following:
(i) Liabilities as disclosed on Schedule 6.2(d)
for which full provision has been made on the Last
Nouveau Balance Sheet;
(ii) Other liabilities arising since December 8, 1995
and prior to the Effective Time in the ordinary course of
business (which shall not include liabilities to customers on
account of defective products or services) which are not
inconsistent with the representations and warranties of
Nouveau or any other provision of this Agreement;
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(iii) Liabilities disclosed in the Reorganization
Plan, a copy of which has been provided to Nouveau-
Delaware; and
(iv) Liabilities incurred in connection with this
transaction, including but not limited to professional fees
and expenses.
Without limiting the generality of the foregoing, the amounts set up as
provisions for Taxes on the Last Nouveau Balance Sheet are sufficient for all
accrued and unpaid Taxes of Nouveau and the Nouveau Subsidiaries, whether or not
due and payable and whether or not disputed, under tax laws, as in effect on the
Last Nouveau Balance Sheet Date or now in effect, for the period ended on such
date and for all fiscal periods prior thereto. Each of Nouveau and each of the
Nouveau Subsidiaries has filed all federal, state, local, and foreign Tax
Returns required to be filed by it, except with respect to franchise taxes
referenced in Schedule 6.2(a) hereto; has delivered to Nouveau-Delaware a true
and correct copy of each such return which was filed since its respective date
of incorporation; has paid (or has established on the Last Nouveau Balance Sheet
a reserve for) all Taxes, assessments, and other governmental charges payable or
remittable by it or levied upon it or its properties, assets, income, or
franchises which are due and payable; and has delivered to Nouveau-Delaware a
true and correct copy of any report as to adjustments received by it from any
taxing authority since its respective date of incorporation and a statement as
to any litigation, governmental or other proceeding
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(formal or informal), or investigation pending, threatened, or in prospect with
respect to any such report or the subject matter of such report.
(e) Except as set forth in the Bankruptcy Plan of
Reorganization, a copy of which has been delivered to NouveauDelaware, there is
no litigation, arbitration, claim, governmental or other proceeding (formal or
informal), or, to the knowledge of Nouveau, investigation pending, threatened,
or in prospect (or any basis therefor known to Nouveau), with respect to Nouveau
or either of the Nouveau Subsidiaries or any of their respective businesses,
properties, or assets. Neither Nouveau nor either of the Nouveau Subsidiaries is
affected by any present or threatened strike or other labor disturbance nor to
the knowledge of Nouveau or either of the Nouveau Subsidiaries is any union
attempting to represent any employee of Nouveau or of either of the Nouveau
Subsidiaries as collective bargaining agent. Neither Nouveau nor either of the
Nouveau Subsidiaries are parties to any collective bargaining agreements. To
Nouveau's knowledge, neither Nouveau nor either of the Nouveau Subsidiaries is
in violation of, or in default with respect to, any law, rule, regulation,
order, judgment, or decree; nor is Nouveau or either of the Nouveau Subsidiaries
required to take any action in order to avoid such violation or default.
(f) Except as set forth in Schedule 6.2(f), neither
Nouveau nor either of the Nouveau Subsidiaries owns any real
property. Each of Nouveau and each Nouveau Subsidiary has good
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title to all personal properties and assets used in its businesses or owned by
it (except real and other properties and assets as are held pursuant to leases
or licenses described in Schedule 6.2(f) hereto), free and clear of all liens,
mortgages, security interests, pledges, charges, and encumbrances, except such
as are described in Schedule 6.2(f) hereto. Set forth in Schedule 6.2(f) hereto
is a true and complete list of all real and other properties and assets owned by
Nouveau and each of the Nouveau Subsidiaries or leased or licensed by Nouveau or
by the Nouveau Subsidiaries from or to a third party, including with respect to
such properties and assets owned by Nouveau or by either of the Nouveau
Subsidiaries a statement of cost, book value, and (except for land) reserve for
depreciation of each item for tax purposes, and net book value of each item for
financial reporting purposes, and with respect to such properties and assets
leased or licensed by Nouveau or by either of the Nouveau Subsidiaries from or
to a third party, a description of such lease or license. All such real and
other properties and assets (including Intangibles) owned by Nouveau or by the
Nouveau Subsidiaries are reflected on the Last Nouveau Balance Sheet. Except for
vending machines which are currently being renovated or repaired, all real and
other tangible properties and assets owned by Nouveau or by the Nouveau
Subsidiaries or leased or licensed by Nouveau or by either of the Nouveau
Subsidiaries from or to a third party are in good and usable condition
(reasonable wear and tear which is not such as to
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<PAGE>
affect adversely the operation of the businesses of Nouveau or of
either of the Nouveau Subsidiaries excepted).
(g) Set forth in Schedule 6.2(g) hereto is a true and correct
list of all material contracts, agreements, instruments, leases, licenses,
arrangements, or understandings with respect to Nouveau and each of the Nouveau
Subsidiaries, identifying whether the matter disclosed therein relates to
Nouveau or to such Nouveau Subsidiary. Nouveau has furnished to Nouveau-Delaware
(i) the certificate of incorporation (or other charter document) and by-laws of
Nouveau, and all amendments thereto, as presently in effect, certified by the
Secretary of such corporation and (ii) true and correct copies of all contracts,
agreements, and instruments referred to in Schedule 6.2(g) hereto. Neither
Nouveau nor either of the Nouveau Subsidiaries nor any other party to any such
contract, agreement, instrument, lease, or license is now, or expects in the
future to be, in violation or breach of, or in default with respect to complying
with, any material term thereof, and each such contract, agreement, instrument,
lease, or license is in full force and is the legal, valid, and binding
obligation of the parties thereto and is enforceable as to them in accordance
with its terms (subject to applicable bankruptcy, insolvency, and other laws
affecting the enforceability of creditors' rights generally). Each such
financing or other arrangement or understanding is a valid and continuing
arrangement or understanding; neither Nouveau nor either of the Nouveau
Subsidiaries, nor any other party to any such arrangement or
34
<PAGE>
understanding has given notice of termination or taken any action inconsistent
with the continuance of such arrangement or understanding; and the execution,
delivery, and performance of this Agreement will not prejudice any such
arrangement or understanding in any way. Except as set forth in Schedule 6.2(g)
hereto, neither Nouveau nor any Nouveau Subsidiary is party to, or bound by, any
contract, agreement, instrument, lease, license, arrangement, or understanding,
or subject to any charter or other restriction, which has had a material adverse
effect on the financial condition, results of operations, businesses,
properties, assets, liabilities, or future prospects of Nouveau, of the Nouveau
Subsidiaries, or, after the Merger, of the Surviving Corporation. Except as set
forth in Schedule 6.2(g), neither Nouveau nor either of the Nouveau Subsidiaries
has engaged within the last five years in, is engaging in, or intends to engage
in any transaction with, or has had within the last five years, now has, or
intends to have any contract, agreement, instrument, lease, license,
arrangement, or understanding with, any stockholder of Nouveau, any director,
officer, or employee of Nouveau or of either of the Nouveau Subsidiaries (except
for employment agreements listed in Schedule 6.2(g)), any relative or affiliate
of any stockholder of Nouveau, any such director, officer, or employee, or any
other corporation or enterprise in which any stockholder of Nouveau, any such
director, officer, or employee, or any such relative or affiliate then had or
now has a 5% or greater equity or voting or other substantial interest,
35
<PAGE>
other than those listed and so specified in Schedule 6.2(g). The stock ledgers
and stock transfer books and the minute book records of Nouveau and each Nouveau
Subsidiary relating to all issuances and transfers of stock by Nouveau and each
Nouveau Subsidiary and all proceedings of the stockholders and the Board of
Directors and committees thereof of Nouveau and each of the Nouveau Subsidiaries
since their respective incorporations made available to NouveauDelaware are the
original stock ledgers and stock transfer books and minute book records of
Nouveau and each of the Nouveau Subsidiaries or exact copies thereof. Neither
Nouveau nor either of the Nouveau Subsidiaries is in violation or breach of, or
in default with respect to, any term of its certificate of incorporation (or
other charter document) or by-laws.
(h) Neither Nouveau, either of the Nouveau Subsidiaries nor
any party deemed to be an ERISA Affiliate (i) has contributed or been required
to contribute to any pension, profit-sharing, option, other incentive plan, or
any other type of employee benefit plan, including any employee pension benefit
plan within the meaning of Section 3(2)) of ERISA, (ii) maintains or maintained,
is or was a party to, or otherwise participates or participated in, on its own
behalf or on behalf of any former employees, any pension, profit-sharing,
option, other incentive plan, or any other type of employee benefit plan, or
(iii) has any obligation to, or customary arrangement with, former employees, if
any, for bonuses, incentive compensation, vacations, severance pay, sick pay,
sick leave, insurance, service award, relocation,
36
<PAGE>
disability, tuition refund, or other benefits, whether oral or written. All
employee welfare benefit plans of included under Section 3(1) of ERISA that have
been maintained by Nouveau have been operated in compliance in all material
respects with ERISA and all other laws applicable to the maintenance of such
welfare benefit plans.
(i) Neither Nouveau nor either of the Nouveau Subsidiaries,
any director, officer, agent, employee, or other person associated with, or
acting on behalf of, Nouveau or either of the Nouveau Subsidiaries, nor any
stockholder of Nouveau has, directly or indirectly: used any corporate funds for
unlawful contributions, gifts, entertainment, or other unlawful expenses
relating to political activity; made any unlawful payment to foreign or domestic
government officials or employees or to foreign or domestic political parties or
campaigns from corporate funds; violated any provision of the Foreign Corrupt
Practices Act of 1977, as amended; or made any bribe, rebate, payoff, influence
payment, kickback, or other unlawful payment.
(j) Nouveau has all requisite power and authority to execute,
deliver, and perform this Agreement. All necessary corporate proceedings of
Nouveau have been duly taken to authorize the execution, delivery, and
performance of this Agreement thereby. This Agreement has been duly authorized,
executed, and delivered by Nouveau, constitutes the legal, valid, and binding
obligation of Nouveau, and is enforceable as to Nouveau in accordance with its
terms, subject to applicable bankruptcy,
37
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insolvency, and other laws affecting the enforceability of creditor's rights
generally. No consent, authorization, approval, order, license, certificate, or
permit of or from, or declaration or filing with, any federal, state, local, or
other governmental authority or any court or other tribunal is required by
Nouveau or either of the Nouveau Subsidiaries for the execution, delivery, or
performance of this Agreement by Nouveau. No consent of any party to any
contract, agreement, instrument, lease, license, arrangement, or understanding
to which Nouveau or either of the Nouveau Subsidiaries is a party, or to which
either of them or any of their respective businesses, properties, or assets are
subject, is required for the execution, delivery, or performance of this
Agreement; and the execution, delivery, and performance of this Agreement will
not violate, result in a breach of, conflict with, or (with or without the
giving of notice or the passage of time or both) entitle any party to terminate
or call a default under, entitle any party to receive rights or privileges that
such party was not entitled to receive before this Agreement was executed under,
or create any obligation on the part of Nouveau or either of the Nouveau
Subsidiaries to which it was not subject immediately before this Agreement was
executed under, any term of any such contract, agreement, instrument, lease,
license, arrangement, or understanding, or violate or result in a breach of any
term of the certificate of incorporation (or other charter document) or by-laws
of Nouveau or either of the Nouveau Subsidiaries, or violate, result in a breach
of, or conflict with
38
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any law, rule, regulation, order, judgment, or decree binding on Nouveau or
Nouveau Subsidiary or to which any of their respective businesses, properties,
or assets are subject. Neither Nouveau nor any of its officers, directors,
employees, or agents has employed any broker or finder or incurred any liability
for any fee, commission, or other compensation payable by any person on account
of alleged employment as a broker or finder, or alleged performance of services
as a broker or finder, in connection with, or as a result of, this Agreement,
the Merger, or the other transactions contemplated by this Agreement.
(k) To the best of Nouveau's knowledge, no representation or
warranty by Nouveau in this Agreement or any representation, warranty or
statement in the private placement memo distributed in connection with the
Nouveau-Delaware Private Placement insofar as such representation or warranty or
statement relates to Nouveau, contains, or (except for changes beyond the
control of Nouveau and each Nouveau Subsidiary) at the Effective Time will
contain, an untrue statement of material fact or omits, or (except for changes
beyond the control of Nouveau and such Nouveau Subsidiary) at the Effective Time
will omit, to state a material fact required to be stated therein or necessary
to make the statements made not misleading.
(l) Set forth on Schedule 6.2(l) is a complete and correct
list of all (i) United States and foreign patents, trademark and trade name
registrations, trademarks and trade names, brandmarks and brand name
registrations, servicemarks and
39
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servicemark registrations, assumed names and copyrights and copyright
registrations, owned in whole or in part or used by Nouveau, and all
applications therefor (collectively the "Intellectual Property") and (ii)
licenses and other agreements to which Nouveau is a party or is otherwise bound
which relate to any of the foregoing. Except as expressly set forth on Schedule
6.2(l), (i) Nouveau owns or has the right to use all of the foregoing, (ii) to
Nouveau's knowledge, no proceedings have been instituted or are pending which
challenge the rights of Nouveau in respect thereto or the validity thereof;
(iii) to the best of Nouveau's knowledge, no other party is using any of the
foregoing which infringes Nouveau's rights with respect thereto and (iv) the
foregoing constitutes all of the intellectual property necessary for the conduct
of Nouveau's business as contemplated in the Placement Memorandum used in
connection with the Nouveau-Delaware Private Placement.
(m) There is no civil, criminal or administrative action, suit, demand,
claim, hearing, notice of violation, or to Nouveau's best knowledge,
investigation, proceeding, notice or demand letter pending relating to Nouveau
or any property or facility now or formerly owned, operated or leased by Nouveau
which relates in any way to any foreign, federal, state or local laws,
regulations, rules or ordinances relating to pollution or protection of the
environment, including without limitation, laws relating to releases of
hazardous substances as defined under the National Oil and Hazardous Substances
Pollution Contingency Plan, or any
40
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regulation, code, plan order, decree, judgment, injunction, notice or demand
letter issued, entered, promulgated or approved thereunder, except for such
actions, suits, demands, claims, hearings, notices of violation, proceedings,
notices or demand letters which are not in the aggregate reasonably likely to
have a material adverse effect on Nouveau.
VII. COVENANTS.
SECTION 7.1 COVENANTS OF NOUVEAU-DELAWARE AND NAC.
Nouveau-Delaware and NAC each hereby covenant to Nouveau as
follows:
(a) Until the Effective Time, Nouveau-Delaware and NAC will
immediately advise Nouveau in a detailed written notice of any fact or
occurrence or any pending or threatened occurrence of which it obtains knowledge
and which (if existing and known at the date of the execution of this Agreement)
would have been required to be set forth or disclosed in or pursuant to this
Agreement or which, if existing and known at any time prior to or at the
Effective Time, would make the performance by any party of a covenant contained
in this Agreement impossible or make such performance materially more difficult
than in the absence of such fact or occurrence.
(b) Before Nouveau-Delaware or NAC releases any information
concerning this Agreement, the Merger, or any of the other transactions
contemplated by this Agreement which is intended for, or may result in, public
dissemination thereof, Nouveau-Delaware and NAC shall cooperate with Nouveau,
shall
41
<PAGE>
furnish drafts of all documents or proposed oral statements to Nouveau for
comment, and shall not release any such information without the written consent
of Nouveau. Nothing contained herein shall prevent Nouveau-Delaware from
releasing any information if required to do so by law.
SECTION 7.2 COVENANTS OF NOUVEAU.
(a) Until the Effective Time, Nouveau will immediately
advise Nouveau-Delaware and NAC in a detailed written notice of any fact or
occurrence or any pending or threatened occurrence of which it obtains knowledge
and which, if existing and known at the date of the execution of this Agreement,
would have been required to be set forth or disclosed in or pursuant to this
Agreement or which, if existing and known at any time prior to or at the
Effective Time, would make the performance by any party of a covenant contained
in this Agreement impossible or make such performance materially more difficult
than in the absence of such fact or occurrence.
(b) Before Nouveau releases any information concerning this
Agreement, the Merger, or any of the other transactions contemplated by this
Agreement which is intended for, or may result in, public dissemination thereof,
Nouveau shall cooperate with Nouveau-Delaware and NAC, shall furnish drafts of
all documents or proposed oral statements to Nouveau-Delaware and NAC for
comment, and shall not release any such information without the written consent
of Nouveau-Delaware. Nothing contained herein
42
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shall prevent Nouveau from releasing any information if required
to do so by law.
(c) Immediately prior to the Closing, Gary W. Black,
Sr. and his designees shall be appointed to serve as the directors
of Nouveau-Delaware and each officer and director of Nouveau-
Delaware in office at such time shall resign.
VIII. MISCELLANEOUS.
SECTION 8.1 FURTHER ACTIONS. At any time and from time to time, each
party agrees, at its expense, to take such actions and to execute and deliver
such documents as may be reasonably necessary to effectuate the purposes of this
Agreement.
SECTION 8.2 AVAILABILITY OF EQUITABLE REMEDIES. Since a breach of
the provisions of this Agreement could not adequately be compensated by money
damages, any party shall be entitled, in addition to any other right or remedy
available to it, to an injunction restraining such breach or threatened breach
and to specific performance of any such provision of this Agreement, and no bond
or other security shall be required in connection therewith, and the parties
hereby consent to the issuance of such an injunction and to the ordering of
specific performance.
SECTION 8.3 REPRESENTATIONS, WARRANTIES AND COVENANTS OF PARTIES. The
statements contained in any document executed by Nouveau-Delaware or NAC
relating hereto or delivered to Nouveau in connection with the transactions
contemplated hereby or thereby, or in any statement, certificate, or other
instrument delivered by, or on behalf of, Nouveau-Delaware or NAC pursuant
hereto or
43
<PAGE>
thereto or delivered to Nouveau in connection with the transactions contemplated
hereby or thereby shall be deemed representations and warranties, covenants and
agreements, or conditions, as the case may be, of Nouveau-Delaware hereunder for
all purposes of this Agreement (including all statements, certificates, or other
instruments delivered pursuant hereto or thereto or delivered in connection with
this Agreement, the Merger, or any of the other transactions contemplated hereby
or thereby). The statements contained in any document executed by Nouveau
relating hereto or delivered to Nouveau-Delaware or NAC in connection with the
transactions contemplated hereby or thereby, or in any statement, certificate,
or other instrument delivered by, or on behalf of, Nouveau pursuant hereto or
thereto or delivered to Nouveau-Delaware or NAC in connection with the
transactions contemplated hereby or thereby shall be deemed representations and
warranties, covenants and agreements, or conditions, as the case may be, of
Nouveau hereunder for all purposes of this Agreement (including all statements,
certificates, or other instruments delivered pursuant hereto or thereto or
delivered in connection with this Agreement, the Merger, or any of the other
transactions contemplated hereby or thereby).
SECTION 8.4 ENTIRE AGREEMENT; MODIFICATION. This Agreement sets
forth the entire understanding of the parties with respect to the subject matter
hereof (except as provided in Section 8.03), supersedes all existing agreements
among them
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concerning such subject matter, and may be modified only by a written instrument
duly executed by each party hereto.
SECTION 8.5 NOTICES. Any notice or other communication required or
permitted to be given hereunder shall be in writing and shall be mailed by
certified mail, return receipt requested or by the most nearly comparable method
if mailed from or to a location outside of the United States or by Federal
Express, Express Mail, or similar overnight delivery or courier service or
delivered (in person or by telecopy, telex, or similar telecommunications
equipment) against receipt to the party to which it is to be given at the
address of such party set forth in the introductory paragraph to this Agreement
(or to such other address as the party shall have furnished in writing in
accordance with the provisions of this Section 8.5). Any notice shall be
addressed to the attention of the Corporate Secretary. A copy of any and all
notices to Nouveau-Delaware or NAC shall be delivered in accordance with this
section to Shereff, Friedman, Hoffman & Goodman, LLP, 919 Third Avenue, New
York, New York 10022, Attention: Andrew Levinson, Esq. A copy of any and all
notices to Nouveau shall be delivered in accordance with this section to Kramer,
Levin, Naftalis, Nessen, Kamin & Frankel, 919 Third Avenue, New York, New York,
10022, Attention: Richard Marlin, Esq. Any notice or other communication given
by certified mail (or by such comparable method) shall be deemed given at the
time of certification thereof (or comparable act), except for a notice changing
a party's address which will be deemed given at the time
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of receipt thereof. Any notice given by other means permitted by this Section
8.05 shall be deemed given at the time of receipt thereof.
SECTION 8.6 WAIVER. Any waiver by any party of a breach of any term of
this Agreement shall not operate as, or be construed to be, a waiver of any
other breach of that term or of any breach of any other term of this Agreement.
The failure of a party to insist upon strict adherence to any term of this
Agreement on one or more occasions will not be considered a waiver or deprive
that party of the right thereafter to insist upon strict adherence to that term
or any other term of this Agreement. Any waiver must be in writing and be
authorized by a resolution of the Board of Directors or by a duly authorized
officer of the waiving party.
SECTION 8.7 BINDING EFFECT. The provisions of this Agreement shall be
binding upon and inure to the benefit of Nouveau-Delaware, NAC and Nouveau and
their respective successors and assigns; provided, however, that no party hereto
shall have the right to assign its rights and obligations hereunder without the
prior written consent of the other parties hereto.
SECTION 8.8 NO THIRD-PARTY BENEFICIARIES. This Agreement does not
create, and shall not be construed as creating, any rights enforceable by any
person not a party to this Agreement, except as provided in Section 8.7.
SECTION 8.9 SEPARABILITY. If any provision of this Agreement is
invalid, illegal, or unenforceable, the balance of
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this Agreement shall remain in effect, and if any provision is inapplicable to
any person or circumstance, it shall nevertheless remain applicable to all other
persons and circumstances.
SECTION 8.10 HEADINGS. The headings in this Agreement are solely for
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement. SECTION 8.11 COUNTERPARTS; GOVERNING LAW. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument. It shall be governed by, and construed in accordance with, the laws
of the State of Delaware, without giving effect to conflict of laws.
47
<PAGE>
IN WITNESS WHEREOF, this Agreement has been executed by duly authorized
officers of each of the parties hereto as of the date first above written.
ATTEST: NOUVEAU INTERNATIONAL, INC.
(A DELAWARE CORPORATION)
/s/ Jeanne Solomon BY: /s/ Gary Peiffer
- --------------------------- -------------------------
NAME: Jeanne Solomon NAME: Gary Peiffer
TITLE: Assistant Secretary TITLE: President
Attest: NOUVEAU INTERNATIONAL INC.
(A PENNSYLVANIA CORPORATION)
/s/ Fred W. Johnson By: /s/ Gary W. Black, Sr.
- ------------------------- --------------------------
NAME: Fred W. Johnson NAME: Gary W. Black, Sr.
TITLE: TITLE: President
ATTEST: NOUVEAU ACQUISITION CORP.
/s/ Jeanne Solomon BY: /s/ Gary Peiffer
- --------------------------- -------------------------
NAME: Jeanne Solomon NAME: Gary Peiffer
TITLE: Assistant Secretary TITLE: President
48
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TABLE OF CONTENTS
PAGE
----
I. DEFINITIONS............................................................ 2
II. NAME OF SURVIVING CORPORATION; CERTIFICATE
OF INCORPORATION AND BY-LAWS; BOARD OF
DIRECTORS; OFFICERS.................................................... 4
Section 2.1 Name of Surviving Corporation........... 4
Section 2.2 Certificate of Incorporation and By-
Laws.................................... 5
Section 2.3 Board of Directors and Officers......... 5
III. STATUS OF SECURITIES................................................. 5
Section 3.1 Capital Stock of Nouveau................ 5
Section 3.2 Capital Stock of NAC.................... 8
Section 3.3 Capital Stock of Nouveau-Delaware....... 8
IV. FILING; EFFECTIVE TIME................................................ 9
Section 4.1 Filing; Effective Time.................. 9
Section 4.2 Documents to be Delivered Immediately
Prior to the Effective Time............. 9
V. CERTAIN EFFECTS OF THE MERGER.......................................... 10
Section 5.1 Surviving Corporation................... 10
Section 5.2 Tax Free Reorganization................. 11
VI. REPRESENTATIONS AND WARRANTIES........................................ 11
Section 6.1 Representations and Warranties of
Nouveau-Delaware and NAC................ 11
Section 6.2 Representations and Warranties of
Nouveau................................. 24
VII. COVENANTS............................................................ 41
Section 7.1 Covenants of Nouveau-Delaware and NAC... 41
Section 7.2 Covenants of Nouveau.................... 41
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Page
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VIII. MISCELLANEOUS....................................................... 42
Section 8.1 Further Actions......................... 42
Section 8.2 Availability of Equitable Remedies...... 43
Section 8.3 Representations, Warranties and
Covenants of Parties.................... 43
Section 8.4 Entire Agreement; Modification.......... 44
Section 8.5 Notices................................. 44
Section 8.6 Waiver.................................. 45
Section 8.7 Binding Effect.......................... 46
Section 8.8 No Third-Party Beneficiaries............ 46
Section 8.9 Separability............................ 46
Section 8.10 Headings................................ 46
Section 8.11 Counterparts; Governing Law............. 46
- ii -
Exhibit 10.2
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (the "Agreement"), dated as of
January 11, 1996, by and between Health Management, Inc., a Florida corporation
("HMIFlorida"), and Nouveau Health Management, Inc., a Delaware corporation
("HMI-Delaware" or the "Surviving Corporation") (HMI-Florida and HMI-Delaware
are sometimes hereinafter referred to as the "Constituent Corporations").
W I T N E S S E T H:
WHEREAS, HMI-Florida is a corporation duly organized on March
19, 1981 and validly existing under the laws of the State of Florida;
WHEREAS, HMI-Delaware is a corporation duly organized on
January 10, 1996 and validly existing under the laws of the State of Delaware;
WHEREAS, HMI-Florida is duly authorized to issue 10,500,000
shares of stock, consisting of 10,000,000 shares of common stock, par value
$.001 per share ("HMIFlorida Common Stock"), and 500,000 shares of preferred
stock, par value $.001 per share ("HMI-Florida Preferred Stock"), of which
2,959,593 of HMI-Florida Common Stock and no shares of HMI-Florida Preferred
Stock are validly issued and outstanding, fully paid and non-assessable;
WHEREAS, HMI-Delaware is duly authorized to issue 26,000,000
shares of stock, consisting of 25,000,000 shares of common stock, par value
$.00l per share ("HMIDelaware Common Stock"), and 1,000,000 shares of preferred
stock, par value $.00l per share ("HMI-Delaware Preferred Stock"), of which ten
(10) shares of HMI-Delaware
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Common Stock and no shares of HMI-Delaware Preferred Stock are issued and
outstanding, fully paid and non-assessable; and
WHEREAS, the Boards of Directors of the Constituent
Corporations have deemed it desirable and for the best interests of their
respective corporations to merge HMIFlorida with and into HMI-Delaware in
accordance with Section 252 of the General Corporation Law of the State of
Delaware ("DGCL") and with Section 607.1107 of the Florida Business Corporation
Act ("FBCA") and in accordance with the provisions of Section 368 of the
Internal Revenue Code of 1986, as amended.
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants herein contained, the parties hereto agree as follows:
1. Merger. HMI-Florida shall be merged (the "Merger") with and
into HMI-Delaware. HMI-Delaware shall survive the Merger and shall continue to
be governed by the laws of the State of Delaware, but the separate corporate
existence of HMI-Florida shall cease forthwith upon the Effective Date (as
hereinafter defined).
2. Effective Date. Subject to the conditions hereinafter set
forth, the Merger shall become effective (the "Effective Date") upon the filing
of a duly executed Certificate of Merger with the Secretary of State of the
State of Delaware.
3. Certificate of Incorporation; By-Laws. From and after the
Effective Date and until thereafter amended or supplemented or repealed in
accordance with their respective terms, the Certificate of Incorporation and the
By-laws of HMI-Delaware, in the forms attached hereto as Exhibits A and B,
respectively, shall be the Certificate of Incorporation and the By-laws of the
Surviving Corporation.
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4. Directors and Officers. The directors and officers of
HMI-Delaware immediately prior to the Effective Date shall be the directors and
officers of the Surviving Corporation, each to hold office (subject to the
By-laws of the Surviving Corporation) until their respective successors shall be
duly elected or appointed and qualified.
5. Conversion of Outstanding Stock of HMI-Florida. Forthwith
upon the Effective Date, each of the issued and outstanding shares of
HMI-Florida Common Stock, and all rights in respect thereof, shall be converted
into 1.5204793 fully paid and non-assessable shares of HMI-Delaware Common
Stock, and each certificate nominally representing shares of HMI-Florida Common
Stock shall for all purposes be deemed to evidence the ownership of the
appropriate number of shares of HMI-Delaware Common Stock; provided, however,
that no fractional shares of HMI-Delaware Common Stock shall be issued, and all
fractional shares equal to 0.50 shares of HMI-Delaware Common Stock or less
shall be eliminated and all fractional shares greater than 0.50 shares of
HMI-Delaware Common Stock shall be rounded to the next highest whole number of
shares of HMIDelaware Common Stock. The holders of such certificates shall not
be required to immediately surrender the same in exchange for certificates of
HMI-Delaware Common Stock but, as certificates nominally representing shares of
HMI-Florida Common Stock are surrendered for transfer, HMI-Delaware will cause
to be issued certificates representing shares of HMI-Delaware Common Stock, and,
at any time upon surrender by any holder of certificates nominally representing
shares of HMI-Florida Common Stock, HMI-Delaware will cause to be issued
therefor certificates for the appropriate number of shares of HMIDelaware Common
Stock.
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6. Options, Warrants and Rights. At the Effective Date, all
options, warrants or rights then outstanding which immediately prior thereto had
given the holder thereof the right to purchase shares of HMI-Florida Common
Stock shall, by virtue of the Merger and without further action on the part of
the holder thereof, be changed and converted into options, warrants or rights
giving the holder thereof the right to purchase the same number of shares of
HMI-Delaware Common Stock at the same exercise price per share and containing
such other terms and conditions as pertained under such options, warrants or
rights immediately prior to the Effective Date.
7. Retirement of Organization Stock. Forthwith upon the
Effective Date, each of the ten (10) shares of HMI-Delaware Common Stock
presently issued and outstanding shall be retired, and no shares of HMI-Delaware
Common Stock or other securities of HMI-Delaware shall be issued in respect
thereof.
8. Assets and Liabilities. At and after the Effective Date,
HMI-Delaware shall succeed to and possess, without further act or deed, all of
the estate, rights, privileges, powers and franchises (both public and private)
and all of the property (real, personal and mixed) of each of the Constituent
Corporations; all debts due to HMI-Florida shall be vested in HMI-Delaware; all
claims, demands, property, rights, privileges, powers and franchises and every
other interest of either of the Constituent Corporations shall be as effectively
the property of HMI-Delaware as they were of the respective Constituent
Corporation; the title to any real estate vested by deed or otherwise in
HMI-Florida shall not revert or be in any way impaired by reason of the Merger,
but shall be vested in HMI-Delaware; all rights of creditors and all liens upon
any property of either of the Constituent Corporations shall be
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preserved unimpaired, limited in lien to the property affected by such lien at
the Effective Date; all debts, liabilities and duties of the Constituent
Corporations shall thenceforth attach to HMI-Delaware and may be enforced
against it to the same extent as if such debts, liabilities and duties had been
incurred or contracted by it; and HMI-Delaware shall indemnify and hold harmless
the officers and directors of each of the Constituent Corporations against all
such debts, liabilities and duties and against all claims and demands arising
out of the Merger.
9. Further Assurance of Title. If at any time HMI-Delaware
shall consider or be advised that any acknowledgments or assurances in law or
other similar actions are necessary or desirable in order to acknowledge or
confirm in and to HMIDelaware any right, title or interest of HMI-Florida held
immediately prior to the Effective Date, HMI-Florida and its proper officers and
directors shall and will execute and deliver all such acknowledgments or
assurances in law and do all things necessary or desirable to acknowledge or
confirm such right, title or interest in HMI-Delaware as shall be necessary to
carry out the purposes of this Agreement, and HMI-Delaware and its proper
officers and directors are fully authorized to take any and all such action in
the name of HMI-Florida or otherwise.
10. Conditions to Merger. The consummation of the Merger is
subject to the satisfaction of the following conditions prior to the Effective
Date:
(a) This Agreement shall have been approved and
adopted by the requisite number of stockholders of each of the Constituent
Corporations;
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(b) Each of the Constituent Corporations shall have
received, or waived receipt of, such licenses, permits, consents, approvals,
authorizations, qualifications, and orders of governmental authorities and
parties to contracts with the Constituent Corporations as are necessary for
consummation of the transactions contemplated by this Agreement; and
(c) No preliminary or permanent injunction or other
order issued by any court of competent jurisdiction preventing the consummation
of the Merger shall be in effect.
11. Termination. This Agreement may be terminated and the
Merger and other transactions herein provided for abandoned at any time prior to
the Effective Date (whether before or after adoption and approval of this
Agreement by the stockholders of the Constituent Corporations) by action of the
Board of Directors of HMI-Florida, if said Board of Directors determines that
the consummation of the transactions provided for herein would not, for any
reason, be in the best interests of HMI-Florida and its stockholders.
12. Deferral. Consummation of the transactions herein provided
for may be deferred by the Board of Directors of HMI-Florida for a reasonable
period of time if said Board of Directors determines that such deferral would be
in the best interests of HMI- Florida and its stockholders.
13. Name and Principal Office. The name of the Surviving
Corporation shall be Nouveau International, Inc. and its principal executive
offices shall be 525 Washington Boulevard, 29th Floor, Jersey City, New Jersey
07310. The principal office of
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the Surviving Corporation in the State of Delaware shall be c/o Prentice Hall
Corporation System, Inc., 32 Loockerman Square, Suite L-100, Dover, Delaware
19901.
14. Descriptive Headings. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
15. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Delaware.
16. Expenses and Rights of Dissenting Shareholders.
HMI-Delaware shall pay all expenses of carrying this Agreement into effect and
of accomplishing the Merger, including amounts, if any, to which dissenting
shareholders of HMI-Florida may be entitled by reason of this Merger. To the
extent required by the FBCA, HMI-Delaware shall file with the Department of
State of the State of Florida an agreement that it will promptly pay to the
dissenting shareholders of HMI-Florida the amount, if any, to which they shall
be entitled under the provisions of the FBCA with respect to the rights of
dissenting shareholders.
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<PAGE>
IN WITNESS WHEREOF, and intending to be legally bound, the
parties hereto have executed this Agreement as of the year and date first above
written.
ATTEST: HEALTH MANAGEMENT, INC.
a Florida corporation
By: /s/ Philip A. Herman By: /s/Gary D. Peiffer
------------------------ ------------------------
Name: Philip A. Herman Name: Gary D. Peiffer
Title: Title: President
(Corporate Seal)
NOUVEAU HEALTH MANAGEMENT,
ATTEST: INC.
a Delaware corporation
By: /s/ Philip A. Herman By: /s/Gary D. Peiffer
------------------------ ------------------------
Name: Philip A. Herman Name: Gary D. Peiffer
Title: Title: President
(Corporate Seal)
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CERTIFICATE OF THE SECRETARY
OF
NOUVEAU HEALTH MANAGEMENT, INC.
(a Delaware corporation)
I, Philip A. Herman, the Secretary of Nouveau Health Management, Inc.,
a Delaware corporation ("HMI-Delaware"), hereby certify that the Agreement and
Plan of Merger to which this certificate is attached, after having been first
duly signed on behalf of HMIDelaware by its President under its corporate seal,
was duly approved and adopted by a Written Consent dated as of January 11, 1996
of the holder of all of the outstanding stock of HMI-Delaware entitled to vote
thereon.
WITNESS my hand and seal this 11th day of January, 1996.
(SEAL) ______/S/Philip A. Herman____________
Secretary
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<PAGE>
Exhibit A
CERTIFICATE OF INCORPORATION
OF
NOUVEAU HEALTH MANAGEMENT, INC.
THE UNDERSIGNED, for the purpose of forming a corporation pursuant to
the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY as
follows:
FIRST: NAME.
The name of the Corporation is:
NOUVEAU HEALTH MANAGEMENT, INC.
SECOND: REGISTERED OFFICE; REGISTERED AGENT.
The registered office of the Corporation is to be
located at Prentice Hall Corporation System, Inc., 32 Loockerman Square, Suite
L-100, Dover, Delaware 19901. The name of its registered agent at that address
is Prentice Hall Corporation System, Inc.
THIRD: PURPOSE.
The purpose of the Corporation is to engage in any
lawful act or activity for which a corporation may be organized under the
General Corporation Law of the State of Delaware.
FOURTH: CAPITALIZATION.
The total number of shares of stock which the
Corporation shall have authority to issue is twenty-six million (26,000,000)
shares of which twenty-five million (25,000,000) shares shall be designated
"Common Stock" and one million (1,000,000) shares shall be designated "Preferred
Stock". Shares of Common Stock and Preferred Stock shall have a par value of
$.001 per share.
Common Stock
Subject to the prior or equal rights, if any, of any
Preferred Stock which hereafter may be authorized of any and all series stated
and expressed by the Board of Directors in the resolution or resolutions
providing for the issuance of such
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Preferred Stock, the holders of Common Stock shall be entitled (i) to receive
dividends when and as declared by the Board of Directors out of any funds
legally available therefor and (ii) in the event of any dissolution, liquidation
or winding up of the Corporation, to receive the remaining assets of the
Corporation, ratably according to the number of shares of Common Stock held. The
holders of Common Stock shall be entitled to one vote for each share of Common
Stock held on all matters submitted to a vote of stockholders of the
Corporation. No holder of Common Stock shall have any preemptive right to
purchase or subscribe for any part of any issue of stock of any class
whatsoever, whether now or hereafter authorized.
Preferred Stock
Authority is hereby expressly granted to the Board of
Directors from time to time to issue series of Preferred Stock and, in
connection with the creation of each such series, to fix by the resolution or
resolutions providing for the issue of shares thereof, the number of shares of
such series, and the powers, designations, preferences and relative,
participating, optional or other special rights, and the qualifications,
limitations and restrictions of such series, to the full extent now or hereafter
permitted by the laws of the State of Delaware.
FIFTH: LIABILITY OF DIRECTORS.
No director shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director; provided, however, that to the extent required by the
provisions of paragraph 102(b)(7) of the General Corporation Law of the State of
Delaware or any successor statute, or any other laws of the State of Delaware,
this provision shall not eliminate or limit the liability of a director (i) for
any breach of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under paragraph 174
of the General Corporation Law of the State of Delaware, (iv) for any
transaction from which the director derived an improper personal benefit or (v)
for any act or omission occurring prior to the date when the provision becomes
effective. If the General Corporation Law of the State of Delaware hereafter is
amended to authorize the further elimination or limitation on personal liability
of directors, then the liability of a director of the Corporation, in addition
to the limitation on personal liability provided herein, shall be limited to the
fullest extent permitted by the amended General Corporation Law of the State of
Delaware. Any repeal or modification of this Article Fifth by the stockholders
of the Corporation shall be prospective only, and shall not adversely affect any
limitation on the personal liability of a director of the Corporation existing
at the time of such repeal or modification.
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SIXTH: INDEMNIFICATION AND ADVANCEMENT OF EXPENSES.
1. Indemnification. The Corporation shall indemnify
each person who was or is made a party or is threatened to be made a party to or
is involved in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she, or a person of whom he or
she is the legal representative, is or was a director, officer, employee or
agent of the Corporation or is or was serving at the request of the Corporation
as director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer, employee or agent
or alleged action in any other capacity while service as a director, officer,
employee or agent, to the maximum extent authorized by the General Corporation
Law of the State of Delaware, as the same exists or may hereafter be amended
(but, in the case of any such amendment, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights than said law
permitted the Corporation to provide prior to such amendment), against all
expense, liability and loss (including attorneys' fees, judgments, fines, excise
taxes or penalties pursuant to the Employee Retirement Income Security Act of
1974, as amended, and amounts paid or to be paid in settlement) reasonably
incurred by such person in connection with such proceeding and such
indemnification shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of his or her heirs,
executors and administrators. The Corporation may, to the fullest extent
permitted by the General Corporation Law of the State of Delaware, purchase and
maintain insurance on behalf of any such person. The Corporation may create a
trust fund, grant a security interest or use other means (including without
limitation a letter of credit) to ensure the payment of such sums as may become
necessary to effect the indemnification as provided herein. The indemnification
provided herein shall not be deemed to limit the right of the Corporation to
indemnify any other person for any such expenses to the fullest extent permitted
by the General Corporation Law of the State of Delaware, nor shall it be deemed
exclusive of any other rights to which any person seeking indemnification from
the Corporation may be entitled under any agreement, the Corporation's By-Laws,
vote of stockholders or disinterested directors, or otherwise, both as to action
in such person's official capacity and as to action in another capacity while
holding such office.
2. Reimbursement and Advances. The Corporation, from
time to time, shall reimburse or advance to any person referred to in paragraph
1 the funds necessary for payment of expenses (including attorneys' fees, costs
and charges) incurred in connection with any action or proceeding referred to in
paragraph 1, upon receipt of a written undertaking by or on behalf of such
person to repay such
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amount(s) if a judgment or other final adjudication adverse to such person
establishes that he or she is not entitled to be indemnified by the Corporation
under this Article Sixth.
3. Serving at the Request of the Corporation. Without
limitation of any indemnification provided by paragraph 1, any person referred
to in paragraph 1 serving (a) another corporation, partnership, joint venture or
trust of which the majority of the voting power or residual economic interest is
held, directly or indirectly, by the Corporation, or (b) any employee benefit
plan of the Corporation, in any capacity, shall be deemed to be doing so at the
request of the Corporation.
4. Determination of Entitlement. Any person entitled
to indemnification or to the reimbursement or advancement of expenses as a
matter of right pursuant to this Article Sixth may elect to have the right to
indemnification (or the reimbursement or advancement of expenses) interpreted on
the basis of the applicable law in effect at the time of the occurrence of the
event or events giving rise to the action or proceeding, to the extent permitted
by law, or on the basis of the applicable law in effect at the time
indemnification is sought.
5. Contractual Right. The right to indemnification or
to the reimbursement or advancement of expenses pursuant to this Article Sixth
or a resolution or agreement authorized pursuant to this Article Sixth (a) is a
contract right pursuant to which the person entitled thereto may bring suit as
if the provisions hereof (or of any such resolution) were set forth in a
separate written contract between the Corporation and such person, (b) is
intended to be retroactive and, to the extent permitted by law, shall be
available with respect to events occurring prior to the adoption hereof, and (c)
shall continue to exist after the rescission or restrictive modification hereof
with respect to events occurring prior thereto. The Corporation shall not be
obligated under this Article Sixth to make any payment hereunder to the extent
the person seeking indemnification hereunder has actually received payment of
the amounts otherwise indemnifiable hereunder.
6. Judicial Claims. If a request for indemnification
or for the reimbursement or advancement of expenses pursuant to this Article
Sixth is not paid in full by the Corporation within thirty (30) days after a
written claim has been received by the Corporation, the claimant, at any time
thereafter, may bring suit against the Corporation to recover the unpaid amount
of the claim and, if successful in whole or in part, the claimant shall be
entitled also to be paid the expenses of prosecuting such claim. Neither the
failure of the Corporation (including its Board of Directors, independent legal
counsel or stockholders) to have made a determination prior to the commencement
of such action that indemnification of, or reimbursement or advancement of
expenses to, the claimant is proper in the circumstances, or an actual
determination by the Corporation (including its Board of Directors, independent
legal counsel or stockholders) that the claimant is not entitled to
indemnification or to
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the reimbursement or advancement of expenses, shall be a defense to the action
or create a presumption that the claimant is not so entitled.
7. Successor Corporation. For purposes of this
Article Sixth, the term "the Corporation" shall include any legal successor to
the Corporation, including any corporation which acquires all or substantially
all of the assets of the Corporation in one or more transactions.
8. Nonexclusivity. The rights granted pursuant to, or
provided by, the foregoing provisions of this Article Sixth shall be in addition
to, and shall not be exclusive of, any other rights to indemnification or the
reimbursement or advancement of expenses to which such person otherwise may be
entitled by law, contract or otherwise.
SEVENTH: INCORPORATOR.
The name and mailing address of the incorporator of
the Corporation is:
Jeanne R. Solomon, Esq.
Shereff, Friedman, Hoffman & Goodman, LLP
919 Third Avenue
New York, New York 10022
The undersigned, being the incorporator hereinbefore named, for
the purpose of forming a corporation to do business both within and without the
State of Delaware, and in pursuance of the General Corporation Law of the State
of Delaware, does make and file this Certificate this 11th day of January, 1996.
/S/ Jeanne R. Solomon
-----------------------------
Jeanne R. Solomon
Sole Incorporator
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Exhibit B
BY-LAWS
OF
HEALTH MANAGEMENT, INC.
ARTICLE I
OFFICES
Section 1.1. Registered Office. The registered office of the
Corporation within the State of Delaware shall be located at the principal place
of business in said State of the Corporation or individual acting as the
Corporation's registered agent in Delaware.
Section 1.2. Other Offices. The Corporation may also have offices and
places of business at such other places both within and without the State of
Delaware as the Board of Directors may from time to time determine or the
business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.1. Place of Meetings. All meetings of stockholders shall be
held at the principal office of the Corporation, or at such other place within
or without the State of Delaware as shall be stated in the notice of the meeting
or in a duly executed waiver of notice thereof.
Section 2.2. Annual Meetings. The annual meeting of stockholders for
the election of directors shall be held at such time on such day, other than a
legal holiday, as the Board of
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Directors in each such year determines. At the annual meeting, the stockholders
entitled to vote for the election of directors shall elect, by a plurality vote,
a Board of Directors and transact such other business as may properly come
before the meeting.
Section 2.3. Special Meetings. Special meetings of stockholders, for
any purpose or purposes, may be called by a majority of the Board of Directors.
Any such request shall state the purpose or purposes of the proposed meeting. At
any special meeting of stockholders, only such business may be transacted as is
related to the purpose or purposes set forth in the notice of such meeting.
Section 2.4. Notice of Meetings. Written notice of every meeting of
stockholders, stating the place, date and hour thereof and, in the case of a
special meeting of stockholders, the purpose or purposes thereof and the person
or persons by whom or at whose direction such meeting has been called and such
notice is being issued, shall be given not less than ten (10) nor more than
sixty (60) days before the date of the meeting, either personally or by mail, by
or at the direction of the Chairman of the Board, Secretary, or the persons
calling the meeting, to each stockholder of record entitled to vote at such
meeting. If mailed, such notice shall be deemed to be given when deposited in
the United States mail, postage prepaid, directed to the stockholder at his
address as it appears on the stock transfer books of the Corporation. Nothing
herein contained shall preclude the stockholders from waiving notice as provided
in Section 4.1 hereof.
Section 2.5. Quorum. The holders of a majority of the issued and
outstanding shares of stock of the Corporation entitled to vote, represented in
person or by proxy, shall be
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necessary to and shall constitute a quorum for the transaction of business at
any meeting of stockholders. If, however, such quorum shall not be present or
represented at any meeting of stockholders, the stockholders entitled to vote
thereat, present in person or represented by proxy, shall have power to adjourn
the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At any such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
noticed. Notwithstanding the foregoing, if after any such adjournment the Board
of Directors shall fix a new record date for the adjourned meeting, or if the
adjournment is for more than thirty (30) days, a notice of such adjourned
meeting shall be given as provided in Section 2.4 of these By-Laws, but such
notice may be waived as provided in Section 4.1 hereof.
Section 2.6. Voting. At each meeting of stockholders, each holder of
record of shares of stock entitled to vote shall be entitled to vote in person
or by proxy, and each such holder shall be entitled to one vote for every share
standing in his name on the books of the Corporation as of the record date fixed
by the Board of Directors or prescribed by law and, if a quorum is present, a
majority of the shares of such stock present or represented at any meeting of
stockholders shall be the vote of the stockholders with respect to any item of
business, unless otherwise provided by any applicable provision of law, by these
By-Laws or by the Certificate of Incorporation of the Corporation.
Section 2.7. Proxies. Every stockholder entitled to vote at a meeting
or by consent without a meeting may authorize another person or persons to act
for him by proxy. Each
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proxy shall be in writing executed by the stockholder giving the proxy or by his
duly authorized attorney. No proxy shall be valid after the expiration of three
(3) years from its date, unless a longer period is provided for in the proxy.
Unless and until voted, every proxy shall be revocable at the pleasure of the
person who executed it, or his legal representatives or assigns, except in those
cases where an irrevocable proxy permitted by statute has been given.
Section 2.8. Consents. Whenever a vote of stockholders at a meeting
thereof is required or permitted to be taken in connection with any corporate
action by any provision of law, the Certificate of Incorporation of the
Corporation or these By-Laws, the meeting, prior notice thereof and vote of
stockholders may be dispensed with if the holders of shares having not less than
the minimum number of votes that would have been necessary to authorize or take
such action at a meeting at which all shares entitled to vote thereon were
present and voted shall consent in writing to the taking of such action. Where
corporate action is taken in such matter by less than unanimous written consent,
prompt written notice of the taking of such action shall be given thereto.
Section 2.9. Stock Records. The Secretary or agent having charge of the
stock transfer books shall make, at least ten (10) days before each meeting of
stockholders, a complete list of the stockholders entitled to vote at such
meeting or any adjournment thereof, arranged in alphabetical order and showing
the address of and the number and class and series, if any, of shares held by
each. Such list, for a period of ten (10) days prior to such meeting, shall be
kept at the principal place of business of the Corporation or at the office of
the transfer agent or registrar of the Corporation and such other places as
required by statute and
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shall be subject to inspection by any stockholder at any time during usual
business hours. Such list shall also be produced and kept open at the time and
place of the meeting and shall be subject to the inspection of any stockholder
at any time during the meeting.
ARTICLE III
DIRECTORS
Section 3.1. Number. The number of directors of the Corporation which
shall constitute the entire Board of Directors shall initially be fixed by the
Incorporator and thereafter from time to time by a vote of a majority of the
entire Board of Directors and shall be not less than one nor more than fifteen.
The first Board of Directors shall consist of two (2) members.
Section 3.2. Resignation and Removal. Any director may resign at any
time upon notice of resignation to the Corporation. Any director may be removed
at any time by vote of the stockholders then entitled to vote for the election
of directors at a special meeting called for that purpose, either with or
without cause.
Section 3.3. Newly Created Directorships and Vacancies. Newly created
directorships resulting from an increase in the number of directors and
vacancies occurring in the Board of Directors for any reason whatsoever shall be
filled by vote of the Board of Directors. If the number of directors then in
office is less than a quorum, such newly created directorships and vacancies may
be filled by a vote of a majority of the directors then in office. Any director
elected to fill a vacancy shall be elected until the next meeting of
stockholders at which the
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election of directors is in the regular course of business, and until his
successor has been elected and qualified.
Section 3.4. Powers and Duties. Subject to the applicable provisions of
law, these By-Laws or the Certificate of Incorporation of the Corporation, but
in furtherance and not in limitation of any rights therein conferred, the Board
of Directors shall have the control and management of the business and affairs
of the Corporation and shall exercise all such powers of the Corporation and do
all such lawful acts and things as may be exercised by the Corporation.
Section 3.5. Place of Meetings. All meetings of the Board of Directors
may be held either within or without the State of Delaware.
Section 3.6. Annual Meetings. An annual meeting of each newly elected
Board of Directors shall be held immediately following the annual meeting of
stockholders, and no notice of such meeting to the newly elected directors shall
be necessary in order to legally constitute the meeting, provided a quorum shall
be present, or the newly elected directors may meet at such time and place as
shall be fixed by the written consent of all of such directors.
Section 3.7. Regular Meetings. Regular meetings of the Board of
Directors may be held upon such notice or without notice, and at such time and
at such place as shall from time to time be determined by the Board of
Directors.
Section 3.8. Special Meetings. Special meetings of the Board of
Directors may be called by a majority of the Board of Directors. Neither the
business to be transacted at, nor
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the purpose of, any regular or special meeting of the Board of Directors need be
specified in the notice or waiver of notice of such meeting.
Section 3.9. Notice of Meetings. Notice of each special meeting of the
Board of Directors (and of each regular meeting for which notice shall be
required) shall be given by the Secretary or an Assistant Secretary and shall
state the place, date and time of the meeting. Notice of each such meeting shall
be given orally or shall be mailed to each director at his residence or usual
place of business. If notice of less than three (3) days is given, it shall be
oral, whether by telephone or in person, or sent by special delivery mail or
telegraph. If mailed, the notice shall be deemed given when deposited in the
United States mail, postage prepaid. Notice of any adjourned meeting, including
the place, date and time of the new meeting, shall be given to all directors not
present at the time of the adjournment, as well as to the other directors unless
the place, date and time of the new meeting is announced at the adjourned
meeting. Nothing herein contained shall preclude the directors from waiving
notice as provided in Section 4.1 hereof.
Section 3.10. Quorum and Voting. At all meetings of the Board of
Directors a majority of the entire Board of Directors shall be necessary to and
shall constitute a quorum for the transaction of business at any meeting of
directors, unless otherwise provided by any applicable provision of law, by
these By-Laws, or by the Certificate of Incorporation of the Corporation. The
act of a majority of the directors present at the time of the vote, if a quorum
is present at such time, shall be the act of the Board of Directors, unless
otherwise provided by an applicable provision of law, by these By-Laws or by the
Certificate of Incorporation of
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the Corporation. If a quorum shall not be present at any meeting of the Board of
Directors, the directors present thereat may adjourn the meeting from time to
time, until a quorum shall be present.
Section 3.11. Compensation. The Board of Directors, by the affirmative
vote of a majority of the directors then in office, and irrespective of any
personal interest of any of its members, shall have authority to establish
reasonable compensation of all directors for services to the Corporation as
directors, officers or otherwise.
Section 3.12. Books and Records. The directors may keep the books of
the Corporation, except such as are required by law to be kept within the state,
outside of the State of Delaware, at such place or places as they may from time
to time determine.
Section 3.13. Action without a Meeting. Any action required or
permitted to be taken by the Board of Directors, or by a committee of the Board
of Directors, may be taken without a meeting if all members of the Board of
Directors or the committee, as the case may be, consent in writing to the
adoption of a resolution authorizing the action. Any such resolution and the
written consents thereto by the members of the Board of Directors or committee
shall be filed with the minutes of the proceedings of the Board of Directors or
committee.
Section 3.14. Telephone Participation. Any one or more members of the
Board of Directors, or any committee of the Board of Directors, may participate
in a meeting of the Board of Directors or committee by means of a conference
telephone call or similar
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communications equipment allowing all persons participating in the meeting to
hear each other at the same time. Participation by such means shall constitute
presence in person at a meeting.
Section 3.15. Committees of the Board. The Board of Directors, by
resolution adopted by a majority of the entire Board of Directors, may designate
one or more committees, each consisting of one or more directors. The Board of
Directors may designate one or more directors as alternate members of any such
committee. Such alternate members may replace any absent member or members at
any meeting of such committee. Each committee (including the members thereof)
shall serve at the pleasure of the Board of Directors and shall keep minutes of
its meetings and report the same to the Board of Directors. Except as otherwise
provided by law, each such committee, to the extent provided in the resolution
establishing it, shall have and may exercise all the authority of the Board of
Directors with respect to all matters. However, no such committee shall have
power or authority to:
(a) amend the Certificate of Incorporation of the
Corporation;
(b) adopt an agreement of merger or consolidation;
(c) recommend to the stockholders the sale, lease or
exchange of all or substantially all of the
Corporation's property and assets;
(d) recommend to the stockholders a dissolution of the
Corporation or a revocation of a dissolution; or
(e) amend these By-Laws.
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Unless expressly so provided by resolution of the Board of Directors, no such
committee shall have power or authority to (1) declare a dividend or (2)
authorize the issuance of shares of the Corporation of any class.
ARTICLE IV
WAIVER
Section 4.1. Waiver. Whenever a notice is required to be given by any
provision of law, by these By-Laws, or by the Certificate of Incorporation of
the Corporation, a waiver thereof in writing, whether before or after the time
stated therein, shall be deemed equivalent to such notice. In addition, any
stockholder attending a meeting of stockholders in person or by proxy without
protesting prior to the conclusion of the meeting the lack of notice thereof to
him, and any director attending a meeting of the Board of Directors without
protesting prior to the meeting or at its commencement such lack of notice,
shall be conclusively deemed to have waived notice of such meeting.
ARTICLE V
OFFICERS
Section 5.1. Executive Officers. The officers of the Corporation shall
be a President or Chief Executive Officer, a Treasurer and a Secretary. Any
person may hold two or more of such offices. The officers of the Corporation
shall be elected annually (and from time to time by the Board of Directors, as
vacancies occur), at the annual meeting of the Board of Directors following the
meeting of stockholders at which the Board of Directors was elected.
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Section 5.2. Other Officers. The Board of Directors may appoint such
other officers and agents, including a Chief Executive Officer, Vice President,
Assistant Vice Presidents, Secretaries, Assistant Secretaries and Assistant
Treasurers, as it shall at any time or from time to time deem necessary or
advisable.
Section 5.3. Authorities and Duties. All officers, as between
themselves and the Corporation, shall have such authority and perform such
duties in the management of the business and affairs of the Corporation as may
be provided in these By-Laws, or, to the extent not so provided, as may be
prescribed by the Board of Directors.
Section 5.4. Tenure and Removal. The officers of the Corporation shall
be elected or appointed to hold office until their respective successors are
elected or appointed. All officers shall hold office at the pleasure of the
Board of Directors, and any officer elected or appointed by the Board of
Directors may be removed at any time by the Board of Directors for cause or
without cause at any regular or special meeting.
Section 5.5. Vacancies. Any vacancy occurring in any office of the
Corporation, whether because of death, resignation or removal, with or without
cause, or any other reason, shall be filled by the Board of Directors.
Section 5.6. Compensation. The salaries and other compensation of all
officers and agents of the Corporation shall be fixed by or in the manner
prescribed by the Board of Directors.
Section 5.7. President. The President shall have general charge of the
business and affairs of the Corporation and, in the absence of the Chairman of
the Board, the President shall
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preside at all meetings of the stockholders and the directors. The President
shall perform such other duties as are properly required of him by the Board of
Directors.
Section 5.8. Vice President. Each Vice President, if any, shall
perform such duties as may from time to time be assigned to him by the Board of
Directors.
Section 5.9. Secretary. The Secretary shall attend all meetings of the
stockholders and all meetings of the Board of Directors and shall record all
proceedings taken at such meetings in a book to be kept for that purpose; he
shall see that all notices of meetings of stockholders and meetings of the Board
of Directors are duly given in accordance with the provisions of these By-Laws
or as required by law; he shall be the custodian of the records and of the
corporate seal or seals of the Corporation; he shall have authority to affix the
corporate seal or seals to all documents, the execution of which, on behalf of
the Corporation, under its seal, is duly authorized, and when so affixed it may
be attested by his signature; and in general, he shall perform all duties
incident to the office of the Secretary of a corporation, and such other duties
as the Board of Directors may from time to time prescribe.
Section 5.10. Treasurer. The Treasurer shall have charge of and be
responsible for all funds, securities, receipts and disbursements of the
Corporation and shall deposit, or cause to be deposited, in the name and to the
credit of the Corporation, all moneys and valuable effects in such banks, trust
companies, or other depositories as shall from time to time be selected by the
Board of Directors. He shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation; he shall render to the
President and to each member of the Board of Directors, whenever requested, an
account of all of his transactions as Treasurer
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and of the financial condition of the Corporation; and, in general, he shall
perform all of the duties incident to the office of the Treasurer of a
corporation, and such other duties as the Board of Directors may from time to
time prescribe.
Section 5.11. Other Officers. The Board of Directors may also elect or
may delegate to the President the power to appoint such other officers as it may
at any time or from time to time deem advisable, and any officers so elected or
appointed shall have such authority and perform such duties as the Board of
Directors or the President, if he shall have appointed them, may from time to
time prescribe.
ARTICLE VI
PROVISIONS RELATING TO STOCK CERTIFICATES AND STOCKHOLDERS
Section 6.1. Form and Signature. The shares of the Corporation shall
be represented by a certificate signed by the President or any Vice President
and by the Secretary or any Assistant Secretary or the Treasurer or any
Assistant Treasurer, and shall bear the seal of the Corporation or a facsimile
thereof. Each certificate representing shares shall state upon its face (a) that
the Corporation is formed under the laws of the State of Delaware, (b) the name
of the person or persons to whom it is issued, (c) the number of shares which
such certificate represents and (d) the par value, if any, of each share
represented by such certificate. Section 6.2. Registered Stockholders. The
Corporation shall be entitled to recognize the exclusive right of a person
registered on its books as the owner of shares of stock to receive dividends or
other distributions, and to vote as such owner, and to hold liable for calls
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and assessments a person registered on its books as the owner of stock, and
shall not be bound to recognize any equitable or legal claim to or interest in
such shares on the part of any other person.
Section 6.3. Transfer of Stock. Upon surrender to the Corporation or
the appropriate transfer agent, if any, of the Corporation, of a certificate
representing shares of stock duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, and, in the event that the
certificate refers to any agreement restricting transfer of the shares which it
represents, proper evidence of compliance with such agreement, a new certificate
shall be issued to the person entitled thereto, the old certificate shall be
cancelled and the transaction shall be recorded upon the books of the
Corporation.
Section 6.4. Lost Certificates, etc. The Corporation may issue a new
certificate for shares in place of any certificate theretofore issued by it,
alleged to have been lost, mutilated, stolen or destroyed, and the Board of
Directors may require the owner of such lost, mutilated, stolen or destroyed
certificate, or his legal representatives, to make an affidavit of the fact
and/or to give the Corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the Corporation on account of the
alleged loss, mutilation, theft or destruction of any such certificate or the
issuance of any such new certificate.
Section 6.5. Record Date. For the purpose of determining the
stockholders entitled to notice of, or to vote at, any meeting of stockholders
or any adjournment thereof, or to express written consent to any corporate
action without a meeting, or for the purpose of determining stockholders
entitled to receive payment of any dividend or other distribution or allotment
of
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any rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful action,
the Board of Directors may fix, in advance, a record date. Such date shall not
be more than sixty (60) nor less than ten (10) days before the date of any such
meeting, nor more than sixty (60) days prior to any other action.
Section 6.6. Regulations. Except as otherwise provided by law, the
Board of Directors may make such additional rules and regulations, not
inconsistent with these By-Laws, as it may deem expedient, concerning the issue,
transfer and registration of certificates for the securities of the Corporation.
The Board of Directors may appoint, or authorize any officer or officers to
appoint, one or more transfer agents and one or more registrars and may require
all certificates for shares of capital stock to bear the signature or signatures
of any of them.
ARTICLE VII
GENERAL PROVISIONS
Section 7.1. Dividends and Distributions. Dividends and other
distributions upon or with respect to outstanding shares of stock of the
Corporation may be declared by the Board of Directors at any regular or special
meeting, and may be paid in cash, bonds, property, or in stock of the
Corporation. The Board of Directors shall have full power and discretion,
subject to the provisions of the Certificate of Incorporation of the Corporation
or the terms of any other corporate document or instrument to determine what, if
any, dividends or distributions shall be declared and paid or made.
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<PAGE>
Section 7.2. Checks, etc. All checks or demands for money and notes or
other instruments evidencing indebtedness or obligations of the Corporation
shall be signed by such officer or officers or other person or persons as may
from time to time be designated by the Board of Directors.
Section 7.3. Seal. The corporate seal shall have inscribed thereon the
name of the Corporation, the year of its incorporation and the words "Corporate
Seal Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or otherwise reproduced.
Section 7.4. Fiscal Year. The fiscal year of the Corporation shall be
determined by the Board of Directors.
Section 7.5. General and Special Bank Accounts. The Board of Directors
may authorize from time to time the opening and keeping of general and special
bank accounts with such banks, trust companies or other depositories as the
Board of Directors may designate or as may be designated by any officer or
officers of the Corporation to whom such power of designation may be delegated
by the Board of Directors from time to time. The Board of Directors may make
such special rules and regulations with respect to such bank accounts, not
inconsistent with the provisions of these By-Laws, as it may deem expedient.
ARTICLE IX
ADOPTION AND AMENDMENTS
Section 9.1. Power to Amend. These By-Laws may be amended or repealed
and any new By-Laws may be adopted by the Board of Directors; provided that
these By-Laws and any
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<PAGE>
other By-Laws amended or adopted by the Board of Directors may be amended, may
be reinstated, and new By-Laws may be adopted, by the stockholders of the
Corporation entitled to vote at the time for the election of directors.
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EXHIBIT 10.3
Company Contact: Richard Engel
Telephone Number: 1 (610) 524-8393
FOR IMMEDIATE RELEASE
HEALTH MANAGEMENT, INC. MERGES WITH NOUVEAU INTERNATIONAL, INC.,
COMPLETES PRIVATE PLACEMENT
January 18, 1996, Exton, Pennsylvania: Health Management, Inc., a
Florida corporation (OTC:BB HEMI.U), has entered into a definitive agreement to
merge with Nouveau International, Inc. It is anticipated that the merger will be
consummated today.
As part of the transaction, Health Management, Inc. has reincorporated
in the state of Delaware, changed its name to Nouveau International, Inc. and
completed a private placement of preferred stock and common stock purchase
warrants for a total of $3,500,000 in gross proceeds.
Nouveau International, Inc., based in Exton, Pennsylvania, manufactures
and markets patented and proprietary robotic hot food vending machines and
frozen ready-to-eat foods under the names Pizza Chef(R), Nouveau Chef(TM) and
Pasta Chef(TM) which are distributed in patented cook-in packages.
The new entity will be headed by Mr. Gary W. Black, Sr. Mr. Black is
the Chairman of the Board and the Chief Executive Officer of the Exton-based
company. Mr. Black is the inventor of the hot food vending machines and
proprietary food and packaging products, as well as the holder of numerous other
U.S. and international patents in the fields of aerospace and defense hardware.
Nouveau International, Inc. is under contract to supply over 4,000 hot
food robotic vending machines and proprietary food products including contracts
from overseas customers for more than $40,000,000 of machines of which more than
$25,000,000 is for 1996 delivery. Mr. Black stated "We are pleased that this
financing and merger will afford Nouveau the opportunity to take advantage of
our international business opportunities and begin delivery on our multi-year
contracts."
EXHIBIT 10.4
Company Contact: Richard Engel
Telephone Number: 1 610-524-8393
FOR IMMEDIATE RELEASE
HEALTH MANAGEMENT, INC. ANNOUNCES STOCK SPLIT
AS A RESULT OF REINCORPORATION IN CONNECTION WITH MERGER WITH
NOUVEAU INTERNATIONAL, INC.
January 19, 1996, Exton, Pennsylvania: It was announced today that
Health Management, Inc. (OTC:BB HEMI.U), which, on January 16, 1996, was
reincorporated in the state of Delaware, had converted each outstanding share of
its common stock into 1.5204793 shares of common stock, par value $.001 per
share of Nouveau International, Inc. Commencing on January 22, 1996, the OTC:BB
trading symbol for such common stock will be "VEND" and the CUSIP number for the
issue will be 66976T107.
On January 17, 1996, Health Management, Inc. had entered into a
definitive agreement to merge with Nouveau International, Inc. The share
conversion is being effected as a result of the consummation of the merger on
January 18, 1996.
