AGREEMENT AND PLAN OF MERGER
among
Alfa International Corp.
and
Contact Sports, Inc., a New York corporation
and
Contact Sports, Inc., a New Jersey corporation
------------------------------
As of August 31, 2001
-------------------------------
TABLE OF CONTENTS
Page
1. The Merger 6
1.1 Merger 6
1.2 Filing and Effectiveness 6
1.3 Certificates of Incorporation 6
1.4 By-laws 7
1.5 Directors; Officers 7
1.6 Effect of the Merger 7
1.7 Closing 7
2. Status and Conversion of Securities 7
2.1 Alfa 7
2.2 The Company 7
2.3 Contact 8
2.4 The Predecessor 8
2.5 Conversion of Securities 8
2.6 Payment of Merger Price 8
2.7 Closing of Transfer Books 9
2.8 No Further Rights 9
3. Representations and Warranties of Contact and the Contact
Shareholders 9
3.1 Due Incorporation; Authorization 9
3.2 Outstanding Capital Stock 10
3.3 Options or Other Rights 10
3.4 Tax Claims 10
3.5 No Breach 10
3.6 Intangible Property 11
3.7 Title to Shares 11
3.8 Financial Statements 11
Page
4. Representations and Warranties of Alfa and the Company 11
4.1 Due Incorporation; Authorization 11
4.2 Options or Other Rights 12
4.3 No Breach 12
4.4 Corporate Status 13
5. Covenants and Agreements 13
5.1 Expenses 13
5.2 Further Assurances 13
5.3 Employment Agreement 14
5.4 Letter Agreements 14
6. Indemnification 14
7. Conditions Precedent to the Obligation of Alfa to Effect the
Merger 15
7.1 Representations and Warranties 15
7.2 Litigation 15
7.3 Certified Copies of Board Resolutions and Consents 15
7.4 Release of Escrow 15
7.5 Employment and Letter Agreements 15
8. Conditions Precedent to the Obligation of Contact to
Effect the Merger 15
8.1 Representations and Warranties 16
8.2 Litigation 16
8.3 Certified Copies of Board Resolutions and Consents 16
8.4 Employment and Letter Agreements 16
9. Brokers 16
10. Termination 17
11. Miscellaneous 17
11.1 Publicity 17
11.2 Notices 17
Page
11.3 Entire Agreement 17
11.4 Waivers and Amendments 18
11.5 Schedule of Stock Issuances 18
11.6 Governing Law 18
11.7 Binding Effect; No Assignment 18
11.8 Variations in Pronouns 18
11.9 Counterparts 19
11.10 Exhibits 19
11.11 Headings 19
12. Post Closing Actions 19
EXHIBITS:
Exhibit A: Form of New Jersey Certificate of Merger
Exhibit B: Form of New York Certificate of Merger
Exhibit C: Form of Unanimous Joint Consent of the Directors and all the
shareholders of Contact
Exhibit D: Form of Unanimous Joint Consent of the Directors and Sole
Shareholder of the Company
Exhibit E: Schedule of liabilities as of the Closing
Exhibit F: Form of Certified Resolutions of the Board of Directors of Alfa
Exhibit G: Audited financial statements for Contact for the periods ended
12/31/00 and 7/31/01 and audited financial statements for the Predecessor for
the period ended 12/31/99
Exhibit H: Alfa's December 31, 2000 Report on Form 10-KSB
Exhibit J: The Xxxxxxxx Agreement
Exhibit K: The Adelsheimer and NSGC Agreement
Exhibit L: The Aranson Agreement
Exhibit M: The Xxxxxxxx Agreement
Exhibit N: Stock Issuance Schedule
Exhibit O: Copies of Contact's 12/31/00 tax returns
Exhibit P: Joint Written Instructions to the Escrow Agent
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of August 31, 2001 (the "Merger
Agreement"), among Alfa International Corp., a New Jersey corporation
("Alfa"), Contact Sports, Inc., a New York corporation in the process of
being formed (the "Company") and Contact Sports, Inc., a New Jersey
corporation ("Contact").
The parties agree as follows:
1. The Merger.
1.1 Merger. At the Effective Time (as defined in Section 1.2), Contact
shall be merged with and into the Company (the "Merger") in accordance with
the provisions of this Merger Agreement, the New Jersey Business Corporation
Act and the New York Business Corporation Law and the separate existence of
Contact shall thereupon cease. The Company shall be the corporation surviving
the Merger (and in that capacity is sometimes referred to herein as the
"Surviving Corporation") and shall continue its corporate existence under the
laws of the State of New York.
1.2 Filing and Effectiveness. As soon as practicable after the
satisfaction or waiver of the conditions hereinafter set forth, Contact shall
deliver for filing with the Secretary of State of New Jersey pursuant to the
New Jersey Business Corporation Act a duly executed Certificate of Merger,
substantially in the form of Exhibit A (a "Certificate of Merger") and the
Company shall deliver for filing with the Secretary of State of New York
pursuant to the New York Business Corporation Law a duly executed Certificate
of Merger, substantially in the form of Exhibit B. The Merger shall become
effective on the date and at the time that the Certificates of Merger are
filed with the Secretaries of State of New Jersey and New York (the
"Effective Time").
1.3 Certificates of Incorporation. The Articles of Incorporation of
the Company, as in effect at the Effective Time, shall be the Articles of
Incorporation of the Surviving Corporation until amended as provided in the
New York Business Corporation Law.
1.4 By-laws. The By-laws of the Company, as in effect at the Effective
Time, shall be the By-laws of the Surviving Corporation until amended as
provided therein.
1.5 Directors; Officers. The Directors and officers of the Company at
the Effective Time shall continue as the Directors and officers of the
Surviving Corporation to hold office subject to the By-laws of the Surviving
Corporation.
1.6 Effect of the Merger. At the Effective Time, the Company as the
Surviving Corporation, (i) shall continue to possess all of its respective
property, rights, privileges, immunities, powers and purposes and shall
succeed respectively to all of the property, rights, privileges, immunities,
powers and purposes of Contact, and (ii) shall continue to be subject to all
of its respective liabilities, obligations and penalties and shall succeed
respectively to all of the liabilities, obligations and penalties of Contact,
all as more fully provided for under the applicable provisions of the New
York Business Corporation Law.
1.7 Closing. The closing ("Closing") of the transactions contemplated
by this Merger Agreement shall take place on August 31, 2001 at the offices
of Contact in Passaic, New Jersey or at such other time and place as the
parties hereto may mutually agree.
2. Status and Conversion of Securities.
2.1 Alfa. Alfa is currently authorized to issue 15,000,000 shares of
its $0.01 par value common stock ("Alfa Common Stock") and 1,000,000 shares
of preferred stock. As of the date of this Merger Agreement there are
8,988,648 shares of Alfa Common Stock issued and outstanding (the
"Outstanding Alfa Common Stock").
2.2 The Company. The Company was incorporated under the laws of the
State of New York on ___________, 2001 and is authorized to issue 200 shares
of its common stock, no par value (the "Company Common Stock"). Immediately
prior to the Effective Time, 200 shares of Company Common Stock will be
issued and outstanding and owned by Alfa (the "Outstanding Company Common
Stock").
2.3 Contact . Contact was incorporated under New Jersey law on July
25, 2000 and is authorized to issue 200 shares of common stock, no par value
(Contact Common Stock). As of the date of this Merger Agreement there are 100
shares of Contact Common Stock issued and outstanding ("Outstanding Contact
Common Stock"). All of the Outstanding Contact Common Stock is owned by the
following individuals: Xxx Xxxxxxxx ("Xxxxxxxx"), Xxxxxx Xxxxxxxx
("Xxxxxxxx"), Xxxxx X. Xxxxxxxxxxx ("Xxxxxxxxxxx"), and Xxxx X. Xxxxxxx
("Aranson") [collectively, the "Contact Shareholders"].
2.4 The Predecessor. Contact Sports, Inc., a New York corporation (the
"Predecessor") was incorporated under New York law on December 22, 1998, was
owned by the Contact Shareholders and was merged with and into Contact on
February 16, 2001 after which date the separate existence of the Predecessor
ceased.
2.5 Conversion of Securities. At the Effective Time by virtue of the
Merger each share of the Outstanding Contact Common Stock which is issued and
outstanding immediately prior to the Effective Time, shall, automatically and
without any action on the part of the holder thereof, become and be converted
into the right to receive five thousand five hundred (5,500) fully paid and
non-assessable shares of Alfa Common Stock in accordance with paragraph 2.6
hereof (the "Merger Price"). At the Effective Time all rights in respect of
the shares of Outstanding Contact Common Stock shall cease to exist other
than the right to receive the Merger Price.
2.6 Payment of Merger Price. The Merger Price shall be paid to the
Contact Shareholders as follows:
Upon receipt by Alfa of the certificates representing the shares of the
Outstanding Contact Common Stock, Alfa will issue five thousand five hundred
(5,500) shares of Alfa Common Stock to each of the Contact Shareholders in
exchange for each one (1) share of Outstanding Contact Common Stock held by
each such Contact Shareholder. The Alfa Common Stock which the Contact
Shareholders will receive pursuant to this paragraph 2.6 will be
"unregistered securities" as that term is defined under the Securities Act of
1933, as amended (the "Act") and as such will be subject to significant
restrictions against sale or further transfer.
2.7 Closing of Transfer Books. At the Effective Time, the stock
transfer books of Contact shall be closed and no transfer of the capital
stock of Contact shall thereafter be made. If, after the Effective Time,
certificates representing the Contact Common Stock are presented to the
Surviving Corporation, such certificates shall be cancelled and exchanged for
the Merger Price as provided for herein.
2.8 No Further Rights. From and after the Effective Time the Contact
Shareholders shall cease to have any rights as stockholders of Contact or the
Surviving Corporation, other than the right to receive the Merger Price in
accordance with the terms hereof.
3. Representations and Warranties of Contact and of the Contact
Shareholders. Contact and the Contact Shareholders represent and warrant to
Alfa and the Company as follows:
3.1 Due Incorporation; Authorization. Contact is a corporation duly
organized, validly existing and in good standing under the laws of the state
of New Jersey and has the corporate power and lawful authority to own and
lease its assets and properties and to carry on its business as now being,
and as heretofore, conducted. The Board of Directors and all of the
shareholders of Contact have duly approved the Merger and this Merger
Agreement by the Unanimous Joint Written Consent of Contact's Board of
Directors and shareholders dated August 30, 2001 and attached hereto as
Exhibit C. Contact and the Contact Shareholders have the full legal right
and power and all authority and approval required to enter into, execute and
deliver this Merger Agreement and to perform fully its and their obligations
hereunder. This Merger Agreement has been duly executed and delivered and
constitutes the legal, valid and binding obligation of Contact and the
Contact Shareholders enforceable in accordance with its terms. No approval
or consent of any foreign, federal, state, county, local or other
governmental or regulatory body, and, no approval or consent of any other
person is required in connection with the execution and delivery by Contact
or the Contact Shareholders of this Merger Agreement and the consummation
and performance by Contact or the Contact Shareholders of the transactions
contemplated hereby.
3.2 Outstanding Capital Stock. Contact is authorized to issue 200
shares of Contact Common Stock. One hundred shares of Contact Common Stock
are outstanding as of the date hereof. The Contact Common Stock comprises all
of the securities of Contact. No other class of capital stock or security of
Contact is authorized or outstanding. All of the Outstanding Contact Common
Stock is duly authorized, validly issued, is of record owned by the Contact
Shareholders and is fully paid and non-assessable. Other than the Outstanding
Contact Common Stock, Contact has no class of stock or security authorized,
issued or outstanding.
3.3 Options or Other Rights. There are no outstanding rights,
subscriptions, warrants, calls, unsatisfied preemptive rights, options or
other securities or agreements of any kind to acquire any securities of
Contact from Contact.
3.4 Tax Claims. As of the date hereof, Contact and the Predecessor
have filed all federal, state and local tax and information returns required
to be filed by them and there are no claims ("Tax Claims") being made, or
with the passage of time that could be made, for any unpaid taxes, fees,
penalties or interest from any local, state or federal authority. The Contact
Shareholders, at their expense, will file a final short year "S Corp." return
on behalf of Contact as soon as practicable after the Effective Time
(covering the period from January 1, 2001 through the Effective Time) and
will deliver a copy thereof to the Company promptly after filing. Attached
hereto as Exhibit O are copies of Contact's Federal and State tax returns for
the year ended 12/31/00.
3.5 No Breach. The execution, delivery and performance of this Merger
Agreement and the consummation of the transactions contemplated hereby will
not conflict with or result in the breach or violation of any of the terms or
conditions of, or constitute (or with notice or lapse of time or both
constitute) a default under (i) any provision of the Articles of
Incorporation or By-laws of Contact or (ii) (a) any contract or other
agreement to which Contact is a party or by or to which it or any of its
assets or properties may be bound or subject; (b) any order, judgement,
injunction, award or decree of any court, arbitrator or governmental or
regulatory body against, or binding upon Contact or upon the securities,
properties or business of Contact; (c) any shareholders' agreement among the
Contact Shareholders or (d) any statute, law or regulation of any
jurisdiction as such statute, law or regulation relates to Contact or to the
securities, properties or business of Contact.
3.6 Intangible Property. Contact has filed an application with the
United States Patent & Trademark Office ("USPTO") for the purpose of
registering the name "Contact Sports" and obtaining a registered trademark
thereon. As of the date hereof, the application is in its final stage of
approval by the USPTO and has been approved for publication in the federal
register.
3.7 Title to Shares. Each of the Contact Shareholders owns
beneficially and of record the Contact Common Stock, as recorded in the books
and records of Contact, free and clear of any lien or other encumbrance.
3.8. Financial Statements. Attached hereto as Exhibit G are (i)
Contact's audited balance sheets and income statements as of, and for the
periods ended December 31, 2000 and July 31, 2001, and (ii) the Predecessor's
audited balance sheet and income statement as of, and for the period ended
December 31, 1999 (collectively, the "Audited Financial Statements"). The
Audited Financial Statements present fairly the financial condition of
Contact and the Predecessor as at the dates thereof and the results of
operations for the periods covered thereby, and they have been prepared in
accordance with generally accepted accounting principles applied on a
consistent basis throughout the periods involved. Except as disclosed in the
Audited Financial Statements, Contact has no liabilities, loans or other
actual or contingent obligations of any nature outstanding from any vendors,
banks, lenders or from any party whatsoever, other than those listed on
Exhibit E attached hereto that have occurred in the ordinary course of
business since July 31, 2001. Contact presently has no consulting, employment
or personal service contracts with any party.
4. Representations and Warranties of Alfa and the Company. Alfa and the
Company represent and warrant to Contact as follows:
4.1 Due Incorporation; Authorization. Alfa is a corporation duly
organized, validly existing and in good standing under the laws of the State
of New Jersey and has the corporate power and lawful authority to own, lease
and operate its assets, properties and business and to carry on its business
as now being and as heretofore conducted. Prior to the Effective Time, the
Company will be a corporation duly organized, validly existing and in good
standing under the laws of the State of New York and will have the corporate
power and lawful authority to own, lease and operate its assets and
properties and to carry on its business. Each of Alfa and the Company has,
or will have, the full legal right and power and all authority and approval
required to enter into, execute and deliver this Merger Agreement and to
perform fully its respective obligations hereunder. This Merger Agreement
has been duly executed and delivered and is, or prior to the Effective Time
will be, the valid and binding obligation of both Alfa and the Company
enforceable in accordance with its terms. The Board of Directors and sole
shareholder of the Company will have duly approved the Merger and this Merger
Agreement by the Unanimous Joint Written Consent of the Company's Board of
Directors and Sole Shareholder dated __________, 2001 and attached hereto as
Exhibit D. Alfa's Board of Directors duly approved the Merger and this
Merger Agreement at a special meeting held August 30, 2001. The resolutions
adopted at that meeting are attached hereto as Exhibit F.
4.2 Options or Other Rights. As of the date of this Merger Agreement
there are no outstanding rights, subscriptions, warrants, calls, unsatisfied
preemptive rights, options, or other agreements of any kind to acquire any
securities of Alfa from Alfa except as specified in Alfa's Report to the
Securities and Exchange Commission ("SEC") on Form 10-KSB for the fiscal year
ended December 31, 2000 attached hereto as Exhibit H.
4.3 No Breach. The execution, delivery and performance of this Merger
Agreement and the consummation of the transactions contemplated hereby will
not conflict with or result in the breach or violation of any of the terms or
conditions of, or constitute (or with notice or lapse of time or both
constitute) a default under (i) any provision of the Articles of
Incorporation or By-laws of either Alfa or the Company or (ii) (a) any
contract or other agreement to which either Alfa or the Company is a party or
by or to which either of them or any of their assets or properties may be
bound or subject; (b) any order, judgement, injunction, award or decree of
any court, arbitrator or governmental or regulatory body against, or binding
upon either Alfa or the Company or upon the securities, properties or
business of either Alfa or the Company; or (c) any statute, law or regulation
of any jurisdiction as such statute, law or regulation relates to either Alfa
or the Company or to the securities, properties or business of either Alfa or
the Company.
4.4 Corporate Status. Alfa was incorporated in New Jersey on August
10, 1978 and is a publicly traded company whose shares of common stock are
traded in the over-the-counter market and quoted on the NASDAQ OTC Electronic
Bulletin Board under the symbol TYBR. The Company was incorporated on
____________, 2001 under the laws of the State of New York and has not been
engaged in active business operations. Prior to the Effective Time the
Company shall have no assets or liabilities other than the $1,000
of shareholder equity representing Alfa's cash payment for the
Outstanding Company Common Stock. There are no known claims against the
Company.
5. Covenants and Agreements. The parties covenant and agree as follows:
5.1 Expenses. The Contact Shareholders shall bear all expenses
incurred by Contact in connection with the preparation, execution and
performance of this Merger Agreement and the transactions contemplated
hereby, including, without limitation, all fees and expenses of agents,
representatives, counsel and accountants. Alfa shall bear all expenses
incurred by Alfa and the Company in connection with the preparation,
execution and performance of this Merger Agreement and the transactions
contemplated hereby, including, without limitation, all fees and expenses of
agents, representatives, counsel and accountants.
5.2 Further Assurances. Each of the parties shall execute such
documents and other papers and take such further actions as may be reasonably
required or desirable to carry out the provisions hereof and the transactions
contemplated hereby including the filing of the Certificates of Merger. Each
party shall use its best efforts to fulfill or obtain the fulfillment of the
conditions to its obligations to effect the Merger. Each party acknowledges
that the Company is in the process of being incorporated under the laws of
the State of New York and agrees to execute any and all such documents deemed
necessary or convenient by Alfa, or its counsel, to effect the transactions
contemplated by this Merger Agreement, including any documents which may
require the Company to be incorporated under the laws of a jurisdiction other
than New York. Each party acknowledges that the executed Merger Agreement and
associated documents will be held in escrow by Alfa's counsel until
confirmation of the Company's incorporation is received from the State of New
York (or from such other state, if deemed convenient) and that the Effective
Time will occur as soon as practicable thereafter.
5.3 Employment Agreement. At the Closing, the Surviving Corporation
and Xx. Xxx Xxxxxxxx ("Xxxxxxxx") shall execute and deliver the employment
agreement (the "Xxxxxxxx Agreement") in the form attached hereto as
Exhibit J.
5.4 Letter Agreements. At the Closing, the Surviving Corporation and
each of Aranson and Xxxxxxxx shall execute and deliver the letter agreements
attached hereto as Exhibits L and M. At the Closing, the Surviving
Corporation and Adelsheimer and National Sporting Goods Corporation ("NSGC")
shall execute and deliver the letter agreement attached hereto as Exhibit K.
6. Indemnification. The Contact Shareholders, and each of them, hereby
jointly and severally agree to indemnify, defend and hold both Alfa and the
Company harmless from and against any claims, including Tax Claims, arising
after the Effective Time (a) as a result of any liability of Contact or of
the Predecessor which liability is not disclosed in the Audited Financial
Statements, or (b) as a result of any liability resulting from the activities
prior to the Effective Time of either Contact or the Predecessor
(collectively, "Undisclosed Liabilities"). The Contact Shareholders shall
defend and promptly indemnify the Company and save and hold the Company
harmless from, against, for and in respect of, and pay any and all damages,
losses, obligations, liabilities, claims, encumbrances, deficiencies, Tax
Claims, costs and expenses, including without limitation, reasonable
attorneys' fees and other costs and expenses incident to or arising from, any
suit, action, investigation, Tax Claim, Undisclosed Liabilities, claim or
proceeding suffered, sustained, incurred or required to be paid by the
Company or Alfa by reason of any breach or failure of observance or
performance of any representation, warranty, covenant, agreement or
commitment made by Contact or the Contact Shareholders hereunder or relating
hereto or as a result of any such representation, warranty, covenant,
agreement or commitment being untrue or incorrect in any respect.
7. Conditions Precedent to the Obligation of Alfa to Effect the Merger.
The obligation of Alfa to effect the Merger is subject, at its option, to the
fulfillment on or prior to the Effective Time of the following conditions,
any one or more of which may be waived by Alfa:
7.1 Representations and Warranties. The representations and warranties
of Contact and of the Contact Shareholders contained in this Merger Agreement
shall be true and accurate on and as of the Effective Time.
7.2 Litigation. No action, suit or proceeding shall have been
instituted before any court or governmental or regulatory body or threatened
by any governmental or regulatory body, to restrain, modify or prevent the
carrying out of the transactions contemplated hereby, or to seek damages or a
discovery order in connection with such transactions, or that has or may
have, in the opinion of Alfa, a materially adverse effect on the assets,
properties, business, operations or condition (financial or otherwise) of
Contact.
7.3 Certified Copies of Board Resolution and Consent.
Contact's corporate secretary shall deliver to Alfa a certified copy of
the Joint Written Unanimous Consent of the Directors and all of the
shareholders of Contact in the form attached hereto as Exhibit C authorizing
the execution and delivery and the performance by Contact of its obligations
under this Merger Agreement.
7.4 Release of Escrow. Xxxxxxxx and Alfa shall have executed the Joint
Written Instructions to the Escrow Agent in the form attached hereto as
Exhibit P.
7.5 Employment and Letter Agreements. Xxxxxxxx shall have executed the
Xxxxxxxx Agreement in the form attached hereto as Exhibit J and Adelsheimer,
Aranson, Xxxxxxxx and NSGC shall have executed the letter agreements attached
hereto as Exhibits K, L and M
8. Conditions Precedent to the Obligation of Contact to Effect the
Merger. The obligation of Contact to effect the Merger is subject, at its
option, to the fulfillment on or prior to the Effective Time of the following
conditions, any one or more of which may be waived by Contact:
8.1 Representations and Warranties. The representations and warranties
of Alfa and the Company contained in this Merger Agreement shall be true and
accurate on and as of the Effective Time.
8.2 Litigation. No action, suit or proceeding shall have been
instituted before any court or governmental or regulatory body or threatened
by any governmental or regulatory body, to restrain, modify or prevent the
carrying out of the transactions contemplated hereby, or to seek damages or a
discovery order in connection with such transactions, or that has or may
have, in the opinion of Contact, a materially adverse effect on the assets,
properties, business, operations or condition (financial or otherwise) of
either Alfa or the Company.
8.3 Certified Copies of Board Resolutions and Consents.
Prior to the Effective Time, Alfa's and the Company's respective corporate
secretaries shall deliver to Contact a certified copy of the Resolution of
the Board of Directors of Alfa in the form attached hereto as Exhibit F and a
certified copy of the Unanimous Joint Consent of the Directors and Sole
Shareholder of the Company in the form attached hereto as Exhibit D
authorizing the execution, delivery and performance by Alfa and the Company
respectively of their obligations under this Merger Agreement.
8.4 Employment and Letter Agreements. Prior to the Effective Time, the
Company shall have executed the Xxxxxxxx Agreement in the form attached
hereto as Exhibit J and the Adelsheimer, Aranson and Xxxxxxxx agreements in
the forms attached hereto as Exhibits K, L and M.
9. Brokers. Alfa and the Company on the one hand, and Contact and the
Contact Shareholders on the other hand, covenant and represent to each other
that they had no dealings with any broker or finder in connection with this
Merger Agreement or the transactions contemplated hereby and no broker,
finder or other person is entitled to receive any broker's commission or
finder's fee or similar compensation in connection with any such transaction.
Alfa and the Company on the one hand, and Contact and the Contact
Shareholders on the other hand, each agree to defend, indemnify and hold
harmless the other from, against, for and in respect of any and all losses
sustained by the other as a result of any liability or obligation to any
broker or finder on the basis of any arrangement, agreement or acts made by
or on behalf of such other party with any person or persons whatsoever.
10. Termination. This Merger Agreement may be terminated at any time
prior to the Effective Time (i) by Alfa, in its sole discretion, in
accordance with the provisions of Section 12 hereof, or (ii) by the mutual
consent of the Boards of Directors of Alfa and Contact.
11. Miscellaneous.
11.1 Publicity. No publicity release or announcement concerning this
Merger Agreement or the transactions contemplated hereby shall be made
without written advance approval thereof by Alfa.
11.2 Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be delivered, as follows (or to such
other address as any party shall designate by notice given as herein
provided):
(i) if to Alfa or the Company, to:
Alfa International Corp.
000 Xxxxxxxxxx xxxxx
Xxxxxx Xxxx, X.X. 00000
Attn: President
(ii) if to Contact, to:
Contact Sports, Inc.
00 Xxxxxxxx Xxxxxx
Xxxxxxx, X.X. 00000
Attn: President
11.3 Entire Agreement. This Merger Agreement (including the Exhibits)
contains the entire agreement among the parties with respect to the Merger
and related transactions, and supersedes all prior agreements, written or
oral, with respect thereto.
11.4 Waivers and Amendments. This Merger Agreement may be amended,
superseded, cancelled, renewed or extended, and the terms hereof may be
waived, only by a written instrument signed by the parties, or, in the case
of a waiver, by the party waiving compliance.
11.5 Schedule of Stock Issuances. Attached hereto as Exhibit N is a
schedule listing the shares of Alfa Common Stock to be issued pursuant to
this Merger Agreement. The certificates representing all such shares shall
bear an appropriate restrictive legend in accordance with the rules and
regulations of the SEC and promulgated under the Act.
11.6 Governing Law. This Merger Agreement shall be governed by, construed
and enforced in accordance with the laws of the State of New York applicable
to contracts made and to be entirely performed therein and without regard to
principles of conflict of laws. Any litigation based hereon, or arising out
of, under or in connection with this Merger Agreement shall be brought and
maintained exclusively in the courts of the State of New York or in the
United States District Court for the Southern District of New York. Each of
Alfa, Contact, the Contact Shareholders and the Company hereby expressly and
irrevocably submit to the jurisdiction of the courts of the State of New York
and of the United States District Court for the Southern District of New
York for the purpose of any such litigation as set forth above. Each of Alfa,
Contact, the Contact Shareholders and the Company hereby expressly and
irrevocably waives, to the fullest extent permitted by law, any objection
which they may have or hereafter may have to the laying of venue of any such
litigation brought in any such court referred to above and any claim that any
such litigation has been brought in an inconvenient forum.
11.7 Binding Effect; No Assignment. This Merger Agreement shall be
binding upon and inure to the benefit of the parties and their respective
successors and legal representatives. This Merger Agreement is not
assignable except by operation of law.
11.8 Variations in Pronouns. All pronouns and any variations thereof
refer to the masculine, feminine or neuter, singular or plural, as the
context may require.
11.9 Counterparts. This Merger Agreement may be executed by the parties
hereto in separate counterparts; each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute one
and the same instrument.
11.10 Exhibits. The Exhibits are a part of this Merger Agreement as if
fully set forth herein.
11.11 Headings. The headings in this Merger Agreement are for reference
only, and shall not affect the interpretation of this Merger Agreement.
12. Post Closing Actions As of the Closing hereof Contact has not
delivered the Audited Financial Statements as required by Section 3.8 of this
Merger Agreement. The parties agree that the delivery to Alfa of such Audited
Financial Statements (i) is an absolute requirement to Alfa's obligations
hereunder and to its and the Company's obligation to enter into and
consummate the Merger and (ii) constitutes, in accordance with Section 7.1
hereof, a condition precedent to Alfa's and the Company's obligation to
effect the Merger. The execution of this Merger Agreement by Alfa and the
Company is not a waiver of Contact's obligation to deliver such Audited
Financial Statements to Alfa. The parties agree that Contact shall have
until September 30, 2001 (the "Delivery Date") to deliver such Audited
Financial Statements to Alfa. If the Audited Financial Statements are not
delivered to Alfa on or before the Delivery Date then Alfa may, at its sole
and absolute discretion, by notice to Contact, cancel this Merger Agreement
and the Merger without further obligation by Alfa or the Company. Xxxxxxxx
and Alfa agree that the execution of this Merger Agreement by the parties is
sufficient cause to send the Joint Written Instructions to the Escrow Agent
as specified in Section 7.4 hereof.
IN WITNESS WHEREOF, the parties have executed this Merger Agreement the
date first above written.
Contact Sports, Inc. Contact Sports, Inc.
A New York corporation A New Jersey corporation
By: ____________________ By:______________________
Xxxxxxx X. Xxxxxxxxx Xxxxxx Xxxxxxxx
President President
Alfa International Corp.
___________________________
Xxxxxx Xxxxxxxx
Individually
By:____________________
Xxxxx X. Xxxxxx
President
______________________________
Xxx Xxxxxxxx
Individually
_____________________________
Xxxxx X. Xxxxxxxxxxx
Individually
_____________________________
Xxxx X. Xxxxxxx
Individually
