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) October 27, l997
Creative Technologies Corp.
___________________________________________
(Exact name of registrant as specified in its charter)
New York
_______________________________
(State or other Jurisdiction of Incorporation)
0-15754 11-2721083
_____________ ________________________
(Commission File No.) (I.R.S. Employer Identification No.)
170 53rd Street, Brooklyn, New York 11232
______________________________________________-
(Address of principal executive offices) (zipcode)
Registrants telephone number including area code 718-492-8400
Item. 1. Changes in Control of Registrant
On October 22, l997, Creative Technologies Corp. (the
Company) executed and closed a transaction pursuant to an
Agreement and Plan of Merger (the Agreement) between the Company,
CTC Acquisition Corporation (Subsidiary), Ace Surgical Supply
Co., Inc. (Ace) and David Guttmann and Barry Septimus, the
stockholders (the Stockholders ) of Ace. Subsidiary is New York
corporation which was wholly -owned by the Company. Ace was a
privately held New York corporation, which distributes medical,
janitorial and dietary products in the tri-state area from its
warehouse in Brooklyn, New York.
At the closing, Ace merged into Subsidiary in a merger
carried out pursuant to the laws of the State of New York (the
Merger). In connection with the Merger, the Stockholders of Ace
transferred l00% ownership of Ace and two affiliated companies to
the Company and Stockholders of Ace received an aggregate of
1,000,000 shares of Common Stock, $.09 par value, (the Shares) of
the Company and 3,500 1997 Series A 12% Preferred Stock (the
"1997 Preferred Stock").
The rights, preferences and conditions of the 1997 Preferred
Stock are as follows:
(a) the 1997 Preferred Stock shall have a stated
value of One Thousand Dollars ($1,000) per share;
(b) the holders of the 1997 Preferred Stock shall
be entitled to a cumulative dividend at the rate of One
Hundred Twenty Dollars ($120.00) per share per annum,
when, as and if declared by the Board of Directors of
the Company;
(c) the holders of the 1997 Preferred Stock shall
be entitled to receive One Thousand Dollars ($1,000)
per share and accrued and accumulated dividends thereon
at the rate aforesaid, if any, and no more on
liquidation of the Company before any payment is made
to the holders of Common Stock;
(d) the holders of the 1997 Preferred Stock shall
not be entitled to any vote at any meeting of the
shareholders of the Company unless the dividends are in
arrears longer than one year at which time the holders
of the 1997 Preferred Stock shall be entitled to 1,000
votes per share and shall vote along with the holders
of Common Stock as one Class;
(e) the shares of the 1997 Preferred Stock shall
not be convertible;
(f) the shares shall be redeemed for cash at a
redemption price of $1,000 per share, plus accrued, but
unpaid dividends, out of funds legally available
therefor, on the later of twenty years from issuance or
October 1, 2017.
(h) the holders of the Preferred Shares will
share pro-rata with the holders of the 1996 and 1996-A
Preferred Stock in the event of a liquidation or a
dissolution of the Company.
Prior to this transaction, the Company had approximately
2,611,394 shares of Common Stock and 1,770 shares of Preferred
Stock outstanding. As a result of the Merger, Ace became a
wholly-owned subsidiary of the Company and the former owners of
Ace control approximately 35% of the voting stock of the
Company.
Prior to the Merger , Mr. Guttmann owned 92,222 shares of
Common Stock of the Company, a portion of which is held for the
benefit of certain family members. In addition, he has stock
options, exercisable at $2.05 per share, to purchase l6,666
shares of Common Stock and owns 450 shares of l996 Preferred
Stock and l20 shares of l996-A Preferred Stock which are
convertible into approximately 149,850 and l92,000 shares of
Common Stock of the Company, respectively. In addition, Ace
owned 720 shares of l996-A Preferred Stock which was exercisable
to purchase l,l52,000 shares of Common Stock. Prior to the
Merger, half of such shares were distributed to Mr. Guttmann and
half to Barry Septimus. Upon the Merger , Mr. Guttmann will own
an additional 500,000 shares of Common Stock and 1,750 shares of
1997 Preferred Stock. Mr. Guttmann has been the Chief Executive
Officer and Chairman of the Board of the Company prior and
subsequent to the Merger.
Barry Septimus's wife was the owner of l69,711 shares of
Common Stock and owns 100 shares of 1996-A Preferred Stock, which
are exercisable to purchase l60,000 shares of Common Stock. Mr.
Septimus disclaims beneficial ownership of these shares.
Pursuant to the Merger, Mr. Septimus will own 500,000 shares of
Common Stock and 1,750 shares of 1997 Preferred Stock of the
Company. In addition, he received 360 shares of 1996-A Preferred
Stock from ACE.
The Officers and Directors of the Company prior to the
Merger will continue as the Officers and Directors of the Company
after the Merger.
Reference is made to Item 2 and the exhibits and financial
statements referenced under Item 7 hereof for additional
disclosures.
Item 2. Acquisition or Disposition of Assets.
On October 27, l997 the Company acquired Ace by merging
Ace into a subsidiary of the Company. Under the Agreement, the
holders of Ace stock received an aggregate of 1,000,000 shares
of the Company's Common Stock, $.09 par value, and 3,500 shares
of 1997 Preferred Stock. The consideration paid by the Company
was determined by negotiations between the Stockholders of Ace
and a committee made up of certain members of the Board of
Directors of the Company. The amount of Shares of 1997 Preferred
Stock received by the Stockholders of Ace was calculated by
multiplying 1,000,000 (number of shares of Common Stock issued to
them) by the average of the Bid prices of the Common Stock of the
Company for thirty days prior to the closing and subtracting such
product from 4,000,000 and dividing the sum by 1,000 (the stated
value of each of the 1997 Preferred Stock).
David Guttmann, a principal shareholder, Chief Executive
Officer and Chairman of the Company owned 50% of Ace. In
addition, the wife of Barry Septimus, the other 50% owner of Ace,
is a principal shareholder of the Company. The Company subleases
its offices and warehousing space from Ace. The Company and Ace
both have their executive offices and warehousing space at 170
53rd Street, Brooklyn, N.Y. and it is expected that the Merger of
the two companies will allow for certain expenses to be
eliminated. Furthermore, the Company and Ace each obtained a
line of credit from Century Business Credit Corporation
("Century"). Ace, Consolidated Disposables, Inc. and Universal
Medical Products Inc., companies controlled by David Guttmann and
merged along with Ace into the Subsidiary of the Company, and
David Guttmann guranteed the obligations of the Company to
Century. The Company in return, guaranteed the obligation of
Ace and Consolidated Disposables, Inc. to Century. Reference is
made to the Company's Form 10-KSB for the year ended December 31,
l996 for a description of the lease agreement with Ace and line
of credit with Century.
Ace is a distributor of medical, janitorial and dietary
products, primarily to customers in New York, New Jersey and
Connecticut. At June 30, 1997, the principal assets of Ace
consisted of inventory in the approximate amount of $549,000,
accounts receivable of approximately $3,131,000 and property,
equipment and leasehold improvements - at cost, less accumulated
depreciation and amortization of approximately $258,000. In
addition, Ace owned 720 shares of 1996-A Preferred Stock of the
Company which was distributed to its shareholders prior to the
Merger. At June 30, 1997, Ace had notes payable - financial
institutions of $2,028,000 and accounts payable and accrued
expenses of $2,104,000.
The Company has received an opinion from Chartered Capital
Advisers, Inc., independent investment advisers, that the amount
of Common Stock and Preferred Stock issued as consideration in
the Merger is fair to the Company and its stockholders from a
financial point of view.
Reference is made to Item 1 and the exhibits and financial
statements referenced under Item 7 hereof for additional
disclosures.
Item 7. Financial and Exhibits.
(a) Financial Statements of Business Acquired
(b) Pro Forma Financial Information
Pro forma and audited financial statements will be filed at a
later date within the time period prescribed by Item 7(a) (4) and
(b) (2).
(c) Exhibits
1 Certificate of Amendment of the Certificate of
Incorporation of Creative Technologies Corp.
2 Agreements and Plan of Merger dated
October, l997 by and among the Company,Subsidiary, Ace, David
Guttmann and Bary Septimus
3 Fairness Opinion of
Chartered Capital Advisers, Inc. Dated October 27, l997.
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.
Creative Technologies Corp.
By: Richard Helfman, President
/S/Richard Helfman
Date: October 27, l997
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
CREATIVE TECHNOLOGIES CORP.
(Pursuant to Section 805 of the Business Corporation Law)
1. The name of the corporation is Creative Technologies
Corp. The name under which it was formed is Creative
Technologies Corp.
2. The date its certificate of incorporation was filed by
the Department of State is January 2, 1985.
3. The certificate of incorporation is hereby amended by
adding the following new Article Thirteenth, which states the
number, designation, relative rights, preferences, and
limitations which have been fixed by resolution of the
corporation's Board of Directors for shares of the 1997 Series A
12% Preferred Stock:
"ARTICLE THIRTEENTH: There is hereby created a
series of the Preferred Stock of this corporation to
consist of 4,000 of the 5,000,000 shares of Preferred
Stock, $.01 par value per share, which this corporation
now has authority to issue.
1. The distinctive designation of the series
shall be "1997 Series A 12% Preferred Stock"; the
number of shares of 1997 Series A 12% Preferred Stock
shall be 4,000.
2. (a) The holders of the 1997 Series A 12%
Preferred Stock in preference to the holders of Junior
Stock (as hereinafter defined) shall be entitled to
receive cash dividends at the rate of $120 per annum
per share, but only out of funds legally available
therefor. Dividends for each holder shall accrue from
the date on which the Company issues the shares, and
shall be payable in quarterly installments on the first
day of July, October, January and April of each year.
(b) Dividends on the 1997 Series A 12%
Preferred Stock shall be cumulative. Accordingly, so
long as any of the Series A 12% Preferred Stock remains
outstanding, no dividends whatever shall be paid or
declared, nor shall any distribution be made, on any
Junior Stock, other than a dividend or distribution
payable in Junior Stock or rights or warrants to
purchase Junior Stock, unless all dividends on the 1997
Series A 12% Preferred Stock for all past dividend
periods shall have been paid and the full dividends
thereon for the then current dividend period shall have
been paid or declared and a sum sufficient for the
payment thereof set apart.
3. The 1997 Series A 12% Preferred Stock shall
be preferred as to assets over the Junior stock so
that, in the event of the voluntary or involuntary
liquidation, dissolution or winding up of this
corporation, the holders of 1997 Series A 12% Preferred
Stock shall be entitled to have set apart for them or
to be paid out of the assets of this corporation (after
provision for the holders of Senior Stock), before any
distribution is made to or set apart for the holders of
Junior Stock, an amount in cash equal to, and in no
event more than, $1,000 per share of 1997 Series A 12%
Preferred Stock, plus all accrued and unpaid dividends
thereon. If, upon such liquidation, dissolution or
winding-up of this corporation, the assets of this
corporation available for distribution to the holders
of its stock shall (after provision for the holders of
Senior Stock) be insufficient to permit the
distribution in full of the amounts receivable as
aforesaid by the holders of 1997 Series A 12% Preferred
Stock, then all such assets of this corporation shall
be distributed ratably among the holders of 1997 Series
A 12% Preferred Stock in proportion to the amounts
which each would have been entitled to receive if such
assets were sufficient to permit distribution in full
as aforesaid. Neither the consolidation nor merger of
this corporation nor the sale, lease or transfer by
this corporation of all or any part of its assets shall
be deemed to be a liquidation, dissolution or
winding-up of this corporation for the purposes of this
paragraph 3.
4. (a) This corporation shall be obligated to
redeem all of the Series A 12% Preferred Stock, but
only out of funds legally available therefor, on the
later of Twenty years from its issuance or October 1,
2017, at a redemption price equal to $1,000 per share,
plus all accrued and unpaid dividends thereon.
5. (a) The holders of the Series A 12%
Preferred Stock shall have no voting rights except as
expressly provided by law and unless and so long as the
dividends are in arrears in excess of one year.
6. The term "Junior Stock" shall mean the Common
Stock and those series of Preferred Stock which, by the
terms of the Certificate of Incorporation or of the
instrument by which the Board of Directors, acting pursuant
to authority granted in the Certificate of Incorporation,
shall spacificaly designate that the special rights and
limitations of each such class of stock and series of
Preferred Stock shall be subordinate to the 1997 Series A
12% Preferred Stock in respect of the right of the holders
thereof to receive dividends or to participate in the assets
of this corporation distributable to stockholders upon any
liquidation, dissolution or winding up of this corporation."
4. This amendment was adopted by the Board of Directors
under the authority of Section 502 of the Business Corporation
law.
IN WITNESS WHEREOF, we hereunto sign our names and affirm
that the statements made herein are true under penalties of
perjury this 26th day of September, l997.
CREATIVE TECHNOLOGIES CORP.
By:/s/ Richard Helfman
Richard Helfman, President
By:/s/ David Selengut
David Selengut, Secretary
PLAN AND AGREEMENT OF MERGER
Plan and Agreement of Merger dated October 27, 1997
1997 ("Agreement") by and among Creative Technologies Corp., a
New York corporation ("CTC"), CTC Acquisition Corp., a New York
corporation ("CTC Subsidiary"), Ace Surgical Supply Co., Inc., a
New York corporation ("Ace"), and Barry Septimus and David
Guttmann (the "Shareholders"). CTC Subsidiary and Ace are
hereinafter collectively referred to as the "Constituent
Corporations".
W I T N E S S E T H
WHEREAS, CTC owns all of the issued and outstanding
shares of the Common Stock, $.01 par value per share, of CTC
Subsidiary;
WHEREAS, the Shareholders own all of the issued and
outstanding shares of Common Stock, no par value, of Ace;
WHEREAS, CTC desires to have CTC Subsidiary merge with
Ace, and Ace and the Shareholders desire that Ace merge with and
into CTC Subsidiary, upon the terms and subject to the conditions
herein set forth and in accordance with the laws of the State of
New York;
NOW, THEREFORE, the parties hereto agree as follows:
1. MERGER OF CONSTITUENT CORPORATIONS
1.1 Merger
Simultaneously with the execution of this Agreement, ACE
shall be merged into CTC Subsidiary, which shall be the surviving
corporation (the "Surviving Corporation"), and CTC Subsidiary
shall merge ACE into itself (the "Merger"). The corporate
existence of CTC Subsidiary shall continue unaffected and
unimpaired by the Merger with all of its rights, powers, purposes
and franchises unaffected. The separate existence and corporate
organization of ACE shall cease, and thereupon Ace and CTC
Subsidiary shall be a single corporation.
1.2 Name of Surviving Corporation
The name of the Surviving Corporation shall be changed to
Ace Surgical Supply Co., Inc.
1.3 Certificate of Merger
The Merger shall be consummated by the execution and filing
of a Certificate of Merger with respect to the Merger with the
Secretary of State of the State of New York. Such filing shall be
made on or as soon as practicable after the date of execution of
this Agreement. Upon the filing of the Certificate of Merger all
the property, real, personal and mixed, and franchises of each of
the Constituent Corporations and all debts due on whatever
account to either of them, including subscriptions to shares,
other causes of action, and every other asset belonging to either
of them shall be taken and deemed to be transferred to and vested
in the Surviving Corporation without further act or deed. The
Surviving Corporation shall be responsible for all the
liabilities and obligations of the Constituent Corporations.
1.4 Effective Date of Merger
The Merger shall be deemed made effective as of September
30, 1997. The date of consummation of the Merger shall be the
date of execution of this Agreement (the "Closing Date").
1.5 Conversion of Shares
The manner and basis of converting the shares of stock of
each of the Constituent Corporations into shares of stock of the
Surviving Corporation are as follows:
(a) each share of the 100 shares of the Common
Stock, $.01 par value per share, of CTC Subsidiary
issued and outstanding on the Closing Date shall
continue to be issued and outstanding (although the
certificates will be reissued as Ace Surgical Supply
Co., Inc., the name of the surviving corporation after
the name change);
(b) each share of the 200 shares of Common Stock,
no par value, of Ace ("Ace Shares") issued and
outstanding on the Closing Date shall thereupon be
converted, without any action on the part of the holder
thereof into 5,000 Shares of Common Stock of CTC, $.09
par value ("CTC Common Stock"), (resulting in an
aggregate issuance of 1,000,000 shares of CTC Common
Stock) and 17.5 shares of Preferred Stock ("CTC
Preferred Stock") (resulting in an aggregate issuance
of 3,500 shares of CTC Preferred Stock.) The CTC
Preferred Stock shall have the designations, rights,
preferences and conditions sets forth in Section 1.6.
Simultaneously with the execution hereof each holder of an
outstanding certificate or certificates which immediately prior
thereto represented Ace Shares shall surrender the same to CTC
and such holder shall be entitled to receive upon such surrender
in exchange therefor a certificate or certificates representing
the number of shares of CTC Common Stock and Preferred Stock into
which the shares heretofore represented by the Ace certificate so
surrendered shall have been converted pursuant to this Section
1.5.
1.6 Description of CTC Preferred Stock
The CTC Preferred Stock to be issued to the Shareholders
shall have the following designation, rights, preferences, and
conditions:
(a) the CTC Preferred Stock shall be designated
"1997 Series A 12% Cumulative Preferred Stock;"
(b) the CTC Preferred Stock shall have a stated
value of One Thousand Dollars ($1,000) per share;
(c) the holders of the CTC Preferred Stock shall
be entitled to a cumulative dividend at the rate of One
Hundred Twenty Dollars ($120.00) per share per annum,
when, as and if declared by the Board of Directors of
CTC;
(d) the holders of the CTC Preferred Stock shall
be entitled to receive One Thousand Dollars ($1,000)
per share and accrued and accumulated dividends thereon
at the rate aforesaid, if any, and no more on
liquidation of CTC before any payment is made to the
holders of Common Stock;
(e) the holders of the CTC Preferred Stock shall
not be entitled to any vote at any meeting of the
shareholders of CTC unless the dividends are in arrears
longer than one year at which time the holders of the
CTC Preferred Stock shall be entitled to 1,000 votes
per share and shall vote along with the holders of
Common Stock as one Class;
(f) the shares of the CTC Preferred Stock shall
not be convertible;
(g) the shares shall be redeemed for cash at a
redemption price of $1,000 per share, plus accrued, but
unpaid dividends, out of funds legally available
therefor, on the later of twenty years from issuance or
October 1, 2017.
(h) the holders of the Preferred Shares will
share pro-rata with the holders of the 1996 and 1996-A
Preferred Stock in the event of a liquidation or a
dissolution of CTC.
1.7 Closing
The Closing under this Plan and Agreement of Merger shall
take place simultaneously with the execution hereof. The date of
the Closing is herein referred to as the "Closing Date".
2. ARTICLES OF INCORPORATION; BY-LAWS; BOARD OF DIRECTORS AND
OFFICERS
2.1 Articles of Incorporation
The Articles of Incorporation of Ace shall be the Articles
of Incorporation of the Surviving Corporation and the Articles of
Incorporation of Ace shall be deemed amended to that extent and
may be further amended as provided by law, from and after the
Closing Date. Said Articles of Incorporation, as the same may be
amended from time to time as provided by law, shall be, and may
be separately certified as, the Articles of Incorporation of the
Surviving Corporation.
2.2 By-Laws
The By-Laws of CTC Subsidiary as in effect on the Closing
Date shall be the By-Laws of the Surviving Corporation until the
same shall thereafter be altered, amended or repealed in
accordance with law, the Articles of Incorporation of the
Surviving Corporation or said By-Laws.
2.3 Directors and Officers
Such of the directors and officers of Ace as shall not have
resigned prior to or at the Closing shall be the directors and
officers of the Surviving Corporation. There shall also be
elected at or immediately following the Closing in the manner
provided by the Articles of Incorporation or the By-Laws of the
Surviving Corporation such additional directors and officers as
CTC may designate.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS BY THE
SHAREHOLDERS
3.1 Shareholders' Representations and Warranties
The Shareholders severally make the following
representations and warranties regarding themselves and Ace to
CTC and CTC Subsidiary as an inducement to enter into this
Agreement:
(A) Corporate
(i) Ace is a corporation duly organized, validly
existing, and in good standing under the laws of the state of New
York and has the corporate power to own its properties and carry
on its business as and where its business is now conducted, and
is duly qualified as a foreign corporation in the jurisdictions
in which the conduct of its business or the ownership of its
property requires qualification.
(ii) The authorized capital stock of Ace and the number
of shares issued and outstanding is set forth on Schedule 3.1 A-
2; the said shares of Ace which are issued and outstanding are
legally and validly issued, fully paid, and non-assessable
securities.
(iii) There are no outstanding subscriptions, options,
warrants, calls, commitments, or agreements to which Ace or any
Shareholder is a party or by which Ace or any Shareholder is
bound which relate to the issuance or sale of any shares of the
Common Stock of Ace.
(iv) The Shareholders are the sole and absolute owners
of the number of shares of Ace's capital stock set opposite their
respective names in Schedule 3.1 A-2 hereof, and all of such
shares are free and clear of all liens, encumbrances and rights
whatsoever, and of all restrictions on the exchange herein
contemplated by the Shareholders.
(v) The copies of the Articles of Incorporation of Ace,
including all amendments to date, and its By-Laws as now in
effect (all of which have heretofore been furnished to CTC
Subsidiary) and, to the best of the knowledge of the
Shareholders, the minutes of all shareholders and directors
meetings which are all contained in its minute books are true and
complete.
(vi) The performance of this Agreement by the
Shareholders will comply with all relevant law and will not
conflict with or result in a breach of any of the terms of any
agreement or instrument to which Ace or any of the Shareholders
is a party or by which they may be bound.
(vii) The execution, delivery and performance of this
Agreement by Ace have been duly authorized and approved by all
requisite action of Ace's Board of Directors and this Agreement
has been duly executed and delivered by Ace and constitutes the
valid and binding obligation of Ace enforceable in accordance
with its terms.
(viii) Ace does not have any subsidiaries.
(B) Personal Property
The personal property owned by Ace includes, without
limitation, all of the furniture, fixtures, tools, machinery,
equipment, and inventory used by it in its business. Ace owns all
of the personal property, in each case free and clear of all
mortgages, liens, encumbrances and claims of any nature, except
as expressly set forth in Schedule 3.1B. All the furniture,
fixtures, tools, machinery, and equipment owned by Ace are in
substantially good operating condition as same were at June 30,
1997, ordinary wear and tear excepted, and are substantially the
same as those used by Ace in the conduct of its business on and
after June 30, 1997, and are adequate and sufficient for all
current operations of Ace's business.
(C) Inventory
The inventory of Ace consists of items of a quality and
quantity usable and saleable in the normal course of Ace's
business.
(D) Accounts Receivable
All accounts receivable of Ace are as shown on its books and
records and are not subject to claims or set-offs.
(E) Contracts Disclosed
Ace is a party to the written or oral contracts, including
purchase orders, with customers, suppliers and employees and
service contracts previously delivered to CTC. All of said
contracts were made in the ordinary and regular course of
business. The originals of said written contracts and purchase
orders are being delivered to CTC Subsidiary simultaneously with
the execution of this Agreement. Ace is not in default with
respect to any material term of any contract, has performed all
of the terms and conditions required to be performed by it
through the date hereof, and has not received any notice of
cancellation of any of said contracts. To the best of the
Shareholders' knowledge, the other parties to said contracts are
not in material default thereunder.
(F) Litigation and Claims
There are no claims, actions, suits, administrative or other
proceedings or investigations pending or threatened to the
Shareholders' knowledge, involving Ace's business or assets
thereof or any products thereof heretofore sold to any party, and
the Shareholders and Ace do not know of, or have reasonable
grounds to know of, any basis for any claims, actions, suits,
administrative or other proceedings or investigations of such
nature, at law or in equity, or before or by any federal, state,
or local governmental department, commission, board, bureau or
agency, except as set forth in Schedule 3.1 F.
(H) Environmental Matters
Ace is in full compliance with, and has obtained all permits
required under, all laws, regulations and requirements of all
federal, state, and local government agencies. There are no
existing or contemplated suits, investigations or claims by any
governmental agency or any party asserting a claim of any
violation.
(I) Non-Violation of Laws, etc.
The consummation of the transactions contemplated herein
will not result in a violation by Ace of any provision of its
Articles of Incorporation or By-Laws, or any law or order, rule,
regulation, writ, injunction or decree of any governmental
instrumentality or court having jurisdiction over it, or result
in any breach or violation of any agreement or instrument by
which it or any of its assets may be bound or affected.
(J) Financial
(i) The combined Balance Sheet and Statement of Income
and Retained Earnings of Ace and Affiliates as at June 30, 1997
(herein called the "Balance Sheet Date"),and for the six months
then ended, fairly present the financial condition of Ace and
Affiliates as at the Balance Sheet Date and the results of its
operations for the period indicated, and such financial
statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis.
(ii) Since the Balance Sheet Date referred to in the
prior subparagraph there has not been any materially adverse
change in the operations of the business of Ace; since the
Balance Sheet Date there have been no events or transactions
having a materially adverse effect on Ace's financial statements
described in said prior subparagraph or which should be disclosed
in order to make them not misleading, except that Ace and
Consolidated Disposables Inc. distributed to their respective
shareholders substantially all of the "earnings and profits"
earned by the companies as "Subchapter S" corporations remaining
as of the Balance Sheet Date.
(iii) Since the Balance Sheet Date there has been no
damage, destruction, or loss, whether covered by insurance or
not, materially and adversely affecting the properties or
business of Ace or any other event or condition materially and
adversely affecting its business or property.
(iv) To the best of the knowledge of the Shareholders
there is no material liability of any nature whatever in any
amount not reflected in the financial statements of Ace as at and
for the period ended the Balance Sheet Date, or the related notes
thereto, except for those incurred in connection with the normal
and ordinary course of business between the Balance Sheet Date
and the date hereof.
(v) Ace has filed with the appropriate governmental
agencies all tax and other returns required to be filed through
the date hereof, except that certain tax returns may not have
been filed as of the date hereof because of extensions of time to
file which have been granted.
(vi) All federal and state income, profits and
franchise taxes and all federal and state sales, use, occupancy,
property, excise or other taxes assessed or due from Ace have
been fully paid, or an adequate reserve therefor set up on the
books.
(vii) Adequate reserves have been established for all
accounts receivable of Ace and all such accounts receivable are
subject to no counterclaims or setoffs and are good and
collectible at the aggregate recorded amounts thereof, less the
amount of the existing reserve for doubtful accounts, as shown on
the books of Ace.
3.2 The representations, warranties and covenants of
Shareholders contained in this Agreement shall survive the
closing for a period of one (1) year.
3.3 Shareholders shall severally indemnify and hold harmless CTC
and CTC Subsidiary in respect to any damages resulting from
misrepresentations, breach of warranties or non-fulfillment of
any obligations on the part of such Shareholders under this
Agreement, including reasonable attorney's fees. Notwithstanding
the foregoing, no claims shall be asserted by CTC or CTC
Subsidiary until the aggregate of such unasserted claims exceed
$50,000. The indemnification shall take into consideration any
tax benefits derived by CTC or CTC Subsidiary. CTC and CTC
Subsidiary shall not be entitled to rescission as a remedy.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS CTC and CTC
SUBSIDIARY
4.1 CTC's and CTC Subsidiary's Representations and Warranties
CTC and CTC Subsidiary and each of them, jointly and
severally make the following representations and warranties to
the Shareholders as an inducement to enter into this Agreement:
(A) Corporate
(i) CTC and CTC Subsidiary are corporations duly
organized, validly existing and in good standing under the laws
of the State of New York and each has the power to own its
property and carry on its business as and where such business is
now conducted.
(ii) The authorized capital stock of CTC is 20,000,000
shares of Common Stock, $.09 par value per share, of which
2,611,394 shares were issued and outstanding prior to the Merger,
and 5,000,000 shares of Preferred Stock, $.01 par value per
share, 1,770 of which were issued and outstanding prior to the
Merger.
(iii) The Shares of CTC Common Stock and Preferred
Stock to be issued to the Shareholders pursuant to Section 1.5
hereof will, when issued, be legally and validly issued
securities, fully paid and non-assessable, and no holder of CTC's
Common stock will have any pre-emptive right of subscription or
purchase with respect to such shares of CTC Common Stock.
(iv) Each of CTC and CTC Subsidiary has all requisite
corporate power to enter into this Agreement and to consummate
the transactions contemplated hereby. The necessary filings with
the New York State Department of State required to complete the
authorization for the issuance of the CTC Common and Preferred
Stock have been made and a true copy of such filing has been
delivered to the Shareholders.
(v) The performance of this Agreement by CTC and CTC
Subsidiary will comply with all relevant law and will not
conflict with, or result in a breach of, any of the terms of any
agreement or instrument to which CTC or CTC Subsidiary is a party
or by which either may be bound or constitute a default
thereunder.
(vi) The execution, delivery and performance of this
Agreement by CTC and CTC Subsidiary have been duly authorized and
approved by all requisite action of CTC's and CTC Subsidiary's
Boards of Directors and this Agreement has been duly executed and
delivered by CTC and CTC Subsidiary and constitutes the valid and
binding obligation of CTC and CTC Subsidiary enforceable in
accordance with its terms.
(vii) CTC Subsidiary is a wholly owned subsidiary of
CTC.
(B) Property and Business
(i) The Annual Report of CTC on Form 10 KSB for the
year ended December 31, 1996, copies of which have been delivered
to the Shareholders, accurately describes the properties,
business and capital structure of CTC as at their respective
dates.
(ii) Neither CTC nor CTC Subsidiary is prohibited by
agreement or law from carrying on its business substantially on
the basis now conducted.
(C) Financial
(i) The financial statements of CTC included in said
Annual Report on Form 10 KSB fairly present the financial
condition of CTC at the dates thereof and the results of
operations for the periods indicated, and all of such have been
prepared in accordance with generally accepted accounting
principles, consistently applied.
(ii) Since June 30, 1997, the latest date of said
financial statements, there has been no damage, destruction, or
loss, whether covered by insurance or not, materially and
adversely affecting the properties or business of CTC or any
other event or condition materially and adversely affecting the
business or property of CTC.
(iii) CTC has filed with the appropriate governmental
agencies all tax and other returns required to be filed by it
through the date hereof, except that certain tax returns may not
have been filed as of the date hereof because of extensions of
time to file which have been granted.
(iv) There is no suit or action or legal,
administrative, arbitration, or other proceeding or governmental
investigation, pending, or so far as any officer or director of
CTC knows, or has reasonable grounds for knowing, threatened,
materially affecting the business, contractual arrangements,
property or leasehold interests or which might materially and
adversely affect the financial condition or results of operations
of CTC or the conduct of its business.
(v) CTC Subsidiary has had no business operations to
date.
4.2 The representations, warranties and covenants of CTC and CTC
Subsidiary contained in this Agreement shall survive the closing
for a period of one (1) year.
4.3 CTC and CTC Subsidiary shall severally indemnify and hold
harmless Shareholders in respect to any damages resulting from
misrepresentations, breach of warranties or non-fulfillment of
any obligations on the part of CTC and CTC Subsidiary under this
Agreement, including reasonable attorney's fees. Notwithstanding
the foregoing, no claims shall be asserted by Shareholders until
the aggregate of such unasserted claims exceed $50,000. The
indemnification shall take into consideration any tax benefits
derived by Shareholders. Shareholders shall not be entitled to
recision as a remedy.
5. ADDITIONAL OBLIGATIONS TO BE PERFORMED BY THE SHAREHOLDERS
AT THE CLOSING.
5.1 To be Delivered by the Shareholders
At the Closing the Shareholders agree to do or cause to be
done the following:
(A) Resolutions of the Board of Directors
The Shareholders will deliver to CTC Subsidiary a certified
copy of the resolutions of the Board of Directors of Ace
approving this Agreement, authorizing its execution and delivery,
and authorizing the acts of its officers and employees in
implementing and carrying out the terms hereof.
(B) Investment Letters
Each of the Shareholders will execute and deliver to CTC
Subsidiary a standard investment letter relating to the CTC
Common and Preferred Stock.
6. CONDITIONS PRECEDENT TO CLOSING
6.1 Condition Precedent to Obligations of CTC and CTC Subsidiary
Each and every obligation of CTC and CTC Subsidiary to be
performed on, at, or prior to the Closing shall be subject to the
satisfaction prior to or concurrently with the performance of
such obligation, of the following conditions:
(A) Stock Certificates
There shall have been tendered for delivery to CTC in
transferable form, certificates representing 100% of the issued
and outstanding shares of capital stock of Ace.
(B) The Shareholders shall have Universal Medical Products, Inc.
and Consolidated Disposables, Inc., both incorporated under the
laws of the State of New York, merged into Ace prior to, or
simultaneously with the Closing Date. Ace will continue the
obligation of Consolidated Disposables, Inc. to pay consulting
fees to Mrs. Guttmann and Mrs. Septimus at the rate of $10,000
per month.
6.2. Conditions Precedent to the Shareholders' Obligations
Each and every obligation of the Shareholders to be
performed on, at, or prior to the Closing shall be subject to the
satisfaction prior to or concurrently with the performance of
such obligation, of the following conditions:
(A) Certificates of Resolutions
There shall be delivered to the Shareholders at the Closing
certified copies of the resolutions of the Boards of Directors of
CTC and CTC Subsidiary authorizing the execution and delivery of
this Agreement and authorizing the acts of the officers of CTC
and CTC Subsidiary in implementing and carrying out the terms
hereof.
(B) Stock Certificates
There shall have been tendered for delivery to the respective
Shareholders the shares of CTC Common Stock and Preferred Stock
to which each Selling Shareholder is entitled at the Closing as
herein provided in exchange for his Ace Shares.
(C) Other Matters
Such other matters incidental to the transaction herein
contemplated as the Shareholders and their counsel may reasonably
request.
7. INVESTMENT UNDERTAKING
7.1 Restricted Stock Legend
All shares of CTC Common Stock and Preferred Stock to be
issued and delivered pursuant to Section 1.5 shall bear a legend
to the following effect:
"The shares represented by this Certificate have not been
registered under the Securities Act of 1933. The shares have been
acquired for investment and not with a view to, or for sale in
connection with, any distribution thereof within the meaning of
the Securities Act of 1933, as amended, and the Rules and
Regulations of the Securities and Exchange Commission and may not
be sold, transferred, or otherwise disposed of in the absence of
(i) an effective Registration Statement with respect to such
shares under said Act; (ii) an opinion of counsel satisfactory to
the issuer that such registration is not required; or (iii) the
receipt by the issuer of a 'no action letter' from the Securities
and Exchange Commission with respect to any such sale, transfer
or disposition."
8. MISCELLANEOUS PROVISIONS
8.1 Notices
All notices, demands or requests required or permitted under
this Agreement shall be in writing and shall be deemed to have
been given when delivered personally against receipt therefor or
when mailed registered or certified mail, postage prepaid, return
receipt requested, as follows:
(a) To CTC, CTC Subsidiary and Ace:
Creative Technologies Corp.
170 53rd Street
Brooklyn, New York
(b) To the Shareholders
David Guttmann
170 53rd Street
Brooklyn, New York
A copy of all communications sent to CTC, CTC Subsidiary and
Ace shall be sent by ordinary mail to its counsel,
David Selengut, Esq.
c/o Bernstein & Wasserman, LLP
950 Third Avenue, 10th Floor
New York, New York 10022
A copy of all communications sent to the Shareholders shall
be sent by ordinary mail to their counsel,
Oscar D. Folger, Esq.
521 Fifth Avenue
New York, New York 10175
Any party may change his or its address or designated person
by notice given in the manner hereinabove provided.
8.2 Headings
The headings of the articles, sections and paragraphs of
this Agreement are inserted for convenience of reference only and
shall not constitute a part hereof.
8.3 Schedules
All schedules referred to in this Agreement as being
attached hereto are incorporated in this Agreement by reference
and made a part hereof.
8.4 Assignability
This Agreement shall not be assignable by the Shareholders.
8.5 Entire Agreement
This Agreement, together with the related agreements herein
described, contains the entire understanding of the parties
hereto with respect to the subject matter herein. There are no
restrictions, promises, warranties, covenants or undertakings
other than those expressly set forth herein.
8.6 Amendment or Waiver
No amendment of this Agreement or waiver of any of its
provisions shall be effective against any party to this Agreement
unless reduced in writing and signed by such party. The waiver by
any party of any right hereunder or of any breach of any of the
terms hereof or any defaults hereunder shall not be deemed a
waiver of any other rights or any subsequent breach or default,
whether of the same or of a similar nature, and shall not in any
way affect the terms hereof except to the extent of such waiver.
8.7 Governing Law
This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York.
8.8 Binding Effect
This Agreement shall be binding upon and shall enure to the
benefit of the parties hereto, their respective legal
representatives, successors and to the extent herein permitted
assigns.
IN WITNESS WHEREOF, each of the parties hereto has
executed this Agreement the day and year first above written,
Corporate Seal CREATIVE TECHNOLOGIES CORP.
ATTEST:s/David Selengut By: Richard Helfman
Secretary
Corporate Seal CTC ACQUISITION CORP.
ATTEST:s/David Selengut By:s/Richard Helfman
Secretary President
Corporate Seal ACE SURGICAL SUPPLY CO., INC.
ATTEST:s/David Guttmann By:s/Lala Bessler
Secretary
President
Shareholders:
s/David Guttmann s/Barry Septimus
David Guttmann Barry Septimus
CHARTERED CAPITAL ADVISERS, INC.
145 FOURTH AVENUE
NEW YORK, NY 10003
212-505-9743. 212-533-9680 (FAX)
October 27, 1997
Board of Directors
Creative Technologies Corp.
170 53RD Street
Brooklyn, NY 11232
Dear Members of the Board of Directors:
We understand that Creative Technologies Corp. ("CTC") has negotiated a
merger (the "Merger") with Ace Surgical Supply Co., Inc. ("Ace"). Under the
terms of the proposed merger, Ace would merge with a wholly owned subsidiary
of CTC and would subsequently become a wholly owned subsidiary of CTC. The
shareholders of ACE would receive as consideration (the "Consideration")
1,000,000 shares of CTC common stock and 3,500 shares of CTC preferred stock
(the "Preferred Stock"). Both classes of securities will be unregistered and
will bear a restrictive stock legend. Features of the Preferred Stock would
include: (1)stated value of $1,000 per share; (2) cumulative dividends at
an annual rate of 12%; and (3) mandatory redemption on the later of October 1,
2007 or the twenty - year anniversary date of its issuance. ACE is owned by
the chief executive of CTC and another CTC shareholder, each of whom is the
beneficial owner of more than 5% of the common stock of CTC.
You have requested our opinion with respect to the fairness of the
Consideration to be provided by CTC in the Merger, from a financial point of
view, to CTC and its shareholders. Chartered Capital Advisers, Inc. is
customarily engaged in the valuation of business and their securities in
connection with mergers and acquisitions, private placements, shareholder
transactions, estate and gift taxes, litigation, and for other purposes.
In connection with rendering our opinion we have, among other things:
(1) Reviewed the draft of the Plan and Agreement of
Merger by and among CTC, CTC Acquisition Corp., ACE, Barry Septimus, and
David Guttmann;
(2) Analyzed financial information with respect to CTC, including but not
limited to unaudited financial statements as of and for the six months ended
June 30, 1997, and audited financial statements as of and for the five years
ended December 31, 1996;
(3) Analyzed financial statements with respect to ACE, including but not
limited to audited financial statements as of and for the four years ended
December 31, 1996, reviewed financial statements as of and for the year ended
December 31, 1992, and unaudited financial statements as of and for the eight
months ended August 31, 1997;
(4) Analyzed various documents filed by CTC with the Securities and Exchange
Commission, including the Forms 10-KSB for the four years ending December 31,
1996, and the Form 10-QSB for the two quarters ended June 30, 1997;
(5) Visited the facilities of CTC and ACE, and held discussions with certain
members of the management of CTC and ACE and their advisers concerning the
past, current, and planned operations, financial condition, and business
prospects of CTC and ACE;
(6) Reviewed product brochures, catalogs, and various management reports of
CTC and ACE detailing financial performance and financial condition during 1997;
(7) Analyzed historical stock prices of CTC;
(8) Discussed with the legal advisors of CTC the results of their due
diligence;
(9) Considered financial data of CTC and ACE, and have compared that data
with similar data for publicly held companies with investment characteristics
applicable to CTC and ACE;
(10) Considered financial data of CTC and ACE, and have compared that data
with similar data for certain business combinations and other transcations
that have recently been effectuated; and
(11) Considered such other information, financial studies, and analyses as we
deemed relevant, and performed such analyses, studies, and investigations as
we deemed appropriate.
Chartered Capital Advisers, Inc. has assumed and relied upon, without
independent verification, the accuracy and completeness of the information
reviewed by us. We have not performed an appraisal of the assets, liabilities,
or intellectual property of CTC or ACE. We have assumed that the Merger will
be completed on a tax-free basis. We have assumed that the representations of
management have been made in good faith, and that they reflect the best
currently available management judgments as to the matters covered. Our
opinion is necessarily based upon economic, market, and other conditions as
in effect on, and the information made available to us as of, the date of this
letter. Our opinion is limited to the fairness of the Merger as of the date
hereof, from a financial point of view. We make no representations with
respect to the business decision to undertake the Merger, or any other terms
of the Merger. This opinion does not represent our opinion as to the value
of CTC or ACE as of the dated of this letter.
We understand that in considering the Merger, the Board of Directors of CTC
may have considered a wide range of financial and nonfinancial factors, many
of which may be beyond the scope of this letter. This letter is not intended
to subsitute for the Board's exercise of its own business judgment in
reviewing the Merger.
Based upon and subject to the foregoing considerations, it is our opinion as
financial advisors that the Consideration to be provided by CTC in the Merger
is fair from a financial point of view to CTC.
The foregoing opinion is to be used solely for the information and assistance
of CTC. Accordingly, it is understood and agreed that no person other than
CTC and its officers and directors shall be allowed to use or rely upon this
opinion.
Very truly yours,
Chartered Capital Advisers, Inc.
Ronald G. Quintero, CPA, CFA, CTP, CIRA
Managing Director
