EXHIBIT 2.1(D)
Amendment To Agreement And Plan Of Merger
THIS AMENDMENT (the "Amendment") is made as of November 24, 1999 to the
Agreement and Plan of Merger (the "Agreement") among Nutrition For Life
International, Inc., a Texas corporation ("NFLI"), NL Acquisition Company, a
Delaware corporation which is the successor in interest to Advanced
Nutraceuticals, Inc. ("NL"), AC Acquisition Company, a Delaware corporation
("AC"), Ash Corp., a Mississippi corporation ("ASH"), Xxxxx X. Xxxxxx and Xxxx
Xxxxxx (collectively, the "Shareholders").
WHEREAS, NFLI, NL, AC, ASH and the Shareholders entered into the Agreement
as of October 25, 1999;
WHEREAS, subsequent to the date of the Agreement, a merger transaction was
completed in which Bactolac Pharmaceutical Inc. merged into BPI Acquisition
Company, a wholly-owned subsidiary of NFLI and, in connection with the merger,
the name of BPI Acquisition Company was changed to Bactolac Pharmaceutical
Inc.;
WHEREAS, the parties have determined that it would be in their respective
best interests to amend the Agreement to, among other things, include Bactolac
Pharmaceutical Inc. ("BPI") as a party to the Agreement and to provide for the
merger of ASH with and into BPI.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements, representations, warranties, provisions and covenants herein
contained, the parties hereto hereby agree as follows:
1. The Agreement is amended by the addition of BPI as a party to the
Agreement.
2. Sections 1, 2, 3 and 4 of the Agreement is hereby deleted in its
entirety, and the following substituted therefor:
1. THE MERGER
1.1 The Merger. Upon the terms and subject to the conditions set forth in
this Agreement, ASH shall be merged with and into BPI at the Effective Time of
the Merger. Following the Merger, the separate corporate existence of ASH shall
cease and BPI shall continue as the Surviving Corporation.
1.2 Effective Time Of The Merger. At the Closing, BPI and ASH shall file
Articles of Merger in such form as is required by and executed in accordance
with the relevant provisions of the corporate laws of the States of Delaware and
Mississippi. The Merger shall become effective at such time as the Articles of
Merger are duly filed with the Delaware Secretary of State or at such subsequent
time as BPI and ASH shall agree and as shall be specified in the Articles of
Merger.
1.3 Certificate Of Incorporation, Bylaws, Board Of Directors And Officers
Of The Surviving Corporation.
(i) The Certificate of Incorporation of BPI as in effect immediately
prior to the Effective Time of the Merger shall be the Articles of Incorporation
of the Surviving Corporation until thereafter changed or amended as provided
therein or by applicable law.
(ii) At the Effective Time of the Merger, the Bylaws as in effect
immediately prior to the Effective Time of the Merger shall be the Bylaws of the
Surviving Corporation until thereafter changed or amended as provided therein or
by applicable law.
(iii) Directors and officers of BPI in office immediately prior to
the Effective Time of the Merger, shall be the directors and officers,
respectively, of the Surviving Corporation, and each shall hold his or her
respective office or offices from and after the Effective Time of the Merger
until his or her successor shall have been elected and shall have qualified or
as otherwise provided in the Bylaws of the surviving corporation.
1.4 Certain Information With Respect To The Capital Stock Of BPI and ASH.
The respective designations and numbers of outstanding shares and voting rights
of each class of outstanding capital stock of BPI and ASH as of the date of this
Agreement are as follows:
(i) As of the date of this Agreement, the authorized and outstanding
capital stock of ASH consists of 30,000000 shares of common stock, $.001 par
value of which 10,000,000 shares are issued and outstanding.
(ii) As of the date of this Agreement, the authorized capital stock
of BPI consists of 10,000 shares of common stock, $.001 par value, of which 100
shares are issued and outstanding.
1.5 Effect Of Merger. At the Effective Time of the Merger, the effect of
the Merger shall be as provided in the applicable provisions of the Delaware
General Corporation Law and the Mississippi Business Corporation Act. Except as
herein specifically set forth, the identity, existence, purposes, powers,
objects, franchises, privileges, rights and immunities of BPI shall continue
unaffected and unimpaired by the Merger and the corporate franchises, existence
and rights of ASH shall be merged with and into BPI, and BPI, as the Surviving
Corporation, shall be fully vested therewith. At the Effective Time of the
Merger, the separate existence of ASH shall cease and, in accordance with the
terms of this Agreement, the Surviving Corporation shall possess all the rights,
privileges, immunities and franchises, of a public, as well as of a private,
nature, and all property, real, personal and mixed, and all debts due on
whatever account, including subscriptions to shares, and all and every other
interest of or belonging to or due to BPI and ASH shall be taken and deemed to
be transferred to, and vested in, the Surviving Corporation without further act
or deed.
2. CONVERSION OF STOCK
2.1 Conversion Of ASH Stock. At the Effective Time of the Merger and without
any action on the part of the holders of ASH Stock, the ASH Stock shall be
converted into the right to receive (i) $1,400,000 in NFLI Preferred Stock, (ii)
$750,000 in cash, without interest, (iii) a subordinated
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promissory note (the "Note"), in substantially the form attached as Exhibit
2.1(iii), having an aggregate principal amount of $500,000, and (iv) up to
$3,000,000 in NFLI Preferred Stock as set forth in the Earnout Agreement
substantially in the form attached hereto as Exhibit 2.1(a). The amount of cash,
principal amount of the Note and number of shares of NFLI Preferred Stock to be
received by each holder of ASH Stock prior to the Effective Time of the Merger
is set forth in Schedule 2.1. The Statement of Designation of Series A Preferred
Stock is attached hereto as Exhibit 2.1(b).
2.2 Effect Of Merger On BPI Stock. At the Effective Time of the Merger
without any action on the part of the holders of BPI Stock, each share of BPI
Stock issued and outstanding immediately prior to the Effective Time of the
Merger shall remain outstanding as one share of BPI Stock.
3. DELIVERY OF MERGER CONSIDERATION
3.1 Exchange Procedure. At the Effective Time of the Merger the holders
of the ASH Stock shall, on surrender of certificates representing the ASH Stock
("Certificates"), receive their respective number of shares of NFLI Preferred
Stock which constitute the Merger Consideration as set forth on Schedule 2.1
hereto.
3.2 Delivery Of Certificates. Each holder shall deliver to BPI, ANI and
NFLI at the Closing the Certificates representing the shares of ASH Stock owned
by him or her, duly endorsed in blank by the holder, or accompanied by blank
stock powers. Each holder agrees promptly to cure any deficiencies with respect
to the endorsement of his or her Certificates or other documents of conveyance
with respect to such ASH Stock or with respect to the stock powers accompanying
any ASH Stock. All shares of NFLI Preferred Stock issued upon conversion of
shares of ASH Stock shall be deemed to have been issued in full satisfaction of
all rights pertaining to the ASH Stock. Until surrender as contemplated by this
Section 3, each Certificate shall be deemed at any time after the Effective Time
of the Merger to represent only the right to receive upon such surrender the
Merger Consideration.
4. CLOSING
Subject to the terms and conditions of this Agreement, the closing of the
Merger and the transactions contemplated by this Agreement (the "Closing") will
take place on the second business day after the satisfaction or waiver (subject
to applicable law) of the conditions set forth in Sections 8 and 9, unless
another time or date is agreed to in writing by the parties hereto (the actual
time and date of the Closing being referred to herein as the "Closing Date").
The Closing shall be held at the offices of NFLI, 0000 Xxxxxx, Xxxxxxx, Xxxxx
00000, unless another place is agreed to in writing by the parties hereto.
3. Section 6 of the Agreement is amended by the addition of the
following:
6.7 Due Organization of BPI. BPI is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, and has
the requisite corporate power and authority to carry on its business as it is
now being conducted. BPI is duly qualified to do business
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and is in good standing in each jurisdiction in which the nature of its business
or the ownership or leasing of its properties make such qualification necessary,
except where the failure to be so authorized or qualified would not have a
material adverse effect on the business, operations, properties, assets or
condition (financial or otherwise), of NFLI, NL and BPI taken as a whole (as
used herein with respect to NFLI, NL and BPI, or with respect to any other
person, a "Material Adverse Effect"). True, complete and correct copies of the
Certificate of Incorporation and Bylaws (the "BPI Charter Documents") have been
provided to ASH and the Shareholders.
6.8 Authorization. The representatives of BPI executing this Agreement
have the authority to enter into and bind BPI to the terms of this Agreement.
BPI has the full legal right, corporate power and authority to enter into this
Agreement and the Merger.
6.9 Capital Stock of BPI. The authorized capital stock of BPI is as set
forth in Section 1.4. All of the issued and outstanding shares of the capital
stock of BPI have been duly authorized and validly issued, are fully paid and
non-assessable, and further, such shares were offered, issued, sold and
delivered by BPI in compliance with all applicable state and federal laws
concerning the issuance of securities. Further, none of such shares were issued
in violation of any pre-emptive rights of any past or present stockholder.
4. Sections 7, 8, 9, 10, 11, 12 and 13 of the Agreement are amended by
deletion of the word "Newco" in each place appearing in those sections, and the
substitution of "BPI," in each place where Newco previously appeared.
5. Section 11.1(ii) of the Agreement is amended by deletion of the date,
November 5, 1999, and substitution of the date, December 3, 1999.
6. Section 13.7(a) is amended to provide that notice to BPI shall be
provided at 00 Xxxxxxxx, Xxxxxxxx, Xxx Xxxx 00000, Facsimile: (000) 000-0000,
Attention: President.
Except as expressly set forth herein, the Agreement is unamended and
remains in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the day and year first above written.
NUTRITION FOR LIFE INTERNATIONAL, INC.
By:__________________________________
Name:
Title:
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NL ACQUISITION COMPANY
By:__________________________________
Name:
Title:
AC ACQUISITION COMPANY
By:__________________________________
Name:
Title:
BACTOLAC PHARMACEUTICAL INC.
By:__________________________________
Name:
Title:
ASH CORP.
By:__________________________________
Name:
Title:
_____________________________________
XXXXX X. XXXXXX
_____________________________________
XXXX XXXXXX
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Schedule 2.1
The holders of ASH Stock shall receive cash, Notes and NFLI Preferred Stock
as follows:
Shares of NFLI
Preferred Stock to Cash to be Notes to be
be Received by Received by Received by
Number of Shares Former Holders of Former Holders Former Holders of
Name of ASH Stock ASH Stock at of ASH Stock at ASH Stock at
Closing Closing Closing
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Xxxxxxx Xxxxxx 1,000,000 4,929.6 $125,000
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Xxxx Xxxxxxxxx, Trustee 1,000,000 4,929.6 125,000
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Xxxxx X. Xxxxxx 5,500,000 27,112.8 345,000 345,000
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Xxxx Xxxxxx 2,500,000 12,324 155,000 155,000
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