PLAN AND AGREEMENT OF REORGANIZATION
BY MERGER OF REINK CORP. WITH AND INTO
NEWMARKET STRATEGIC DEVELOPMENT CORP.
UNDER THE NAME OF REINK CORP.
This is a Plan and Agreement of Merger (the "Agreement") between Reink
Corp. ("Reink" or the "Merging Corporation"), a Florida corporation, and
Newmarket Strategic Development Corp. ("Newmarket" or the "Surviving
Corporation"), a Delaware corporation.
ARTICLE I
PLAN OF MERGER
1.01 PLAN ADOPTED. A plan of merger of Reink and Newmarket pursuant to
Section 252 of the General Corporation Law of the State of Delaware, Section
607.1107 of the Florida Statutes, and Section 368(a)(1)(a) of the Internal
Revenue Code is adopted as follows:
(a) Reink shall be merged with and into Newmarket, to exist and be
governed by the laws of the state of Delaware.
(b) The name of the Surviving Corporation shall be Newmarket Strategic
Development Corp. which will change its name to Reink Corp.
(c) When this Agreement shall be effective the separate corporate
existence of Reink shall cease, and the Surviving Corporation shall
succeed, without other transfer, to all the rights and property of Reink
and shall be subject to all the debts and liabilities of the Merging
Corporation in the same manner as if the Surviving Corporation had itself
incurred them. All rights of creditors and all liens on the property of
each constituent corporation shall be preserved unimpaired, limited in lien
to the property affected by the liens immediately prior to the merger.
(d) The Surviving Corporation will carry on business with the assets
of Reink as well as with the assets of Newmarket. Reink owns all of the
issued and outstanding securities of its subsidiary, Renewable Resources,
Inc. ("Renewable"), a New York corporation. Upon the Effective Date, the
surviving corporation shall own all of the issued and outstanding
securities of Renewable (as defined in Section 1.02 below).
(e) The shareholders of Reink will surrender all of their shares in
the manner hereinafter set forth.
(f) In exchange for the shares of Reink surrendered by its
shareholders, the Surviving Corporation will issue and transfer to these
shareholders, on the basis set forth in
Article IV below, shares of its Common Stock.
(g) The shareholders of Newmarket will retain their shares as shares
of the Surviving Corporation.
(h)(1) The First Article of the Articles of Incorporation of Newmarket
shall be amended to read as follows:
FIRST: THE NAME OF THIS CORPORATION IS REINK CORP.
(h)(2) Except as amended in subparagraph (h)(1), the Articles of
Incorporation of Newmarket shall continue in full force as the Articles of
Incorporation of the Surviving Corporation until further amended, altered,
or repealed as provided in the Articles or as provided by law.
1.02 TIME FRAMES. There shall be two (2) significant dates concerning
the Agreement. The effective date of the merger shall be June 28, 1999 (the
"Effective Date") which the parties to this Agreement agree shall be on or
before June 30, 1999. The execution date shall be May 19, 1999 (the "Execution
Date"), the date the Agreement is executed by Reink and Newmarket.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.01 NONSURVIVOR - REINK. As a material inducement to the Surviving
Corporation to execute this Agreement and perform its obligations under this
Agreement, Reink and Renewable represent and warrant to the Surviving
Corporation as of the Execution Date and through the Effective Date, as follows:
(a) Reink and Renewable have been duly incorporated and are validly
existing as corporations in good standing under the laws of the
jurisdiction of their respective incorporations, with full power and
authority (corporate and other) to own properties and conduct business and
are duly qualified to do business as a foreign corporation and are in good
standing in all other jurisdictions in which the nature of their business
or the character or location of its properties requires such qualification,
except where failure to so qualify will not materially affect their
business, properties or financial condition. The copies of the Certificate
of Incorporation, By-laws, and Certificate of Good Standing of Reink
delivered to Newmarket are complete and correct, copies of which are
attached hereto as Exhibits 2.01(a)-1, 2.01(a)-2, and 2.01(a)-3. The copies
of the Certificate of Incorporation, By-laws, and Certificate of Good
Standing of Renewable delivered to Newmarket are complete and correct,
copies of which are attached hereto as Exhibit 2.01(a)-4, 2.01(a)-5, and
2.01(a)-6.
(b) Reink has an authorized capitalization of $10,000.00 consisting of
10,000,000 shares of Common Stock, each of $.001 par value, of which
7,700,000 shares are validly issued and outstanding, fully paid, and
non-assessable as of the date of this Agreement. Renewable has an
authorized capitalization consisting of 200 shares of Common Stock, each of
no par value per share, of which 100 shares are validly issued and
outstanding, fully paid, and non-assessable as of the date of this
Agreement. There are no subscriptions, options or other agreements or
commitments obligating Reink or Renewable to issue any shares of capital
stock or securities convertible into its capital stock. There are no other
securities of either Reink or Renewable issued and outstanding.
(c) Reink has furnished the Surviving Corporation with (i) the
unaudited financial statement of Reink and Renewable for the period January
1, 1999 through March 31, 1999, which financial statement is attached as
Exhibit 2.01(c)-1; and (ii) the audited financial statements of Renewable
for the twelve (12) months ended December 31, 1997, and December 31, 1998,
1998, which financial statements are attached as Exhibits 2- 01(c)-2 and
2-01(c)-3. These financial statements (i) are in accordance with the books
and records of Reink and Renewable; (ii) fairly present the financial
condition of Reink and Renewable as of those dates and the results of its
operations as of and for the periods specified, all prepared in accordance
with generally accepted accounting principles applied on a basis consistent
with prior accounting periods; and (iii) contain and reflect, in accordance
with generally accepted accounting principles consistently applied,
reserves for all liabilities, losses, and costs in excess of expected
receipts and all discounts and refunds for services and products already
rendered or sold that are reasonably anticipated and based on events or
circumstances in existence or likely to occur in the future with respect to
any of the contracts or commitments of Reink and Renewable. Specifically,
but not by way of limitation, the financial statements disclose, in
accordance with generally accepted accounting principles, all of the debts,
liabilities, and obligations of any nature (whether absolute, accrued,
contingent, or otherwise, and whether due or to become due) of Reink and
Renewable at the date of each financial statement, and includes appropriate
reserves for all taxes and other liabilities accrued or due at that date
but not yet payable.
(d) All required federal, state and local tax returns of Reink and
Renewable have been accurately prepared and duly and timely filed, and all
federal, state and local taxes required to be paid with respect to the
periods covered by the returns have been paid. Reink and Renewable are not
delinquent in the payment of any tax or assessment, except as set forth in
Exhibit 2.01(d)-1 attached hereto.
(e) The execution and delivery by Reink of this
Agreement and any other agreement or instrument contemplated by this
Agreement, and the consummation of the transaction contemplated hereby and
thereby, have been duly authorized by all necessary corporate action by
Reink, copies of the corporate resolutions being attached hereto as Exhibit
2.01(e)-1. This Agreement, and any such other agreement or instrument, upon
execution and delivery by Reink (and assuming due execution and delivery
hereof and thereof by the other parties hereto and thereto), will
constitute the legal, valid and binding obligation of Reink, in each case
enforceable against Reink in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
moratorium, reorganization or similar laws from time to time in effect
which affect creditors' rights generally and by legal and equitable
limitations on the availability of specific performance and other equitable
remedies against Reink under or by virtue of this Agreement or such other
agreement or instrument.
(f) Except for those matters set forth in attached Exhibit 2.01(f)-1,
there is not pending or, to the knowledge of Reink or Renewable,
threatened, any material action, suit, proceeding, inquiry, arbitration or
investigation against Reink or Renewable, or any of the officers or
directors of Reink or Renewable, or any material action, suit, proceeding,
inquiry, arbitration, or investigation, which might result in any material
adverse change in the condition (financial or other), business prospects,
net worth, or properties of Reink or Renewable.
(g) The shareholders of Reink are acquiring the shares of the
surviving corporation for their own account and are purchasing such shares
for investment purposes and not with a view to distribution or resale, nor
with the intention of selling, transferring or otherwise disposing of all
or any part of such shares except in compliance with all applicable
provisions of the Securities Act of 1933, as amended (the "Act"), the rules
and regulations promulgated by the Securities and Exchange Commission
("SEC") thereunder, and applicable state securities laws. The shares
acquired by the shareholders of Reink from Newmarket are "restricted
securities" as that term is defined under Rule 144 of the Act, and any
sales of the shares made in reliance upon Rule 144 can be made only in
limited amounts in accordance with the terms and conditions of that Rule
and will require an opinion of counsel satisfactory to Newmarket and
company counsel that registration is not required under the Act or state
securities laws. Attached hereto as Exhibit 2.01(g)-1 is a schedule of all
Reink shareholders who are acquiring shares of the surviving corporation.
(h) Reink and its shareholders understand that any and all
certificates representing the shares of the surviving corporation and any
and all shares issued in replacement
thereof or in exchange therefor shall bear the following legend, or one
substantially similar thereto:
"The shares represented by this certificate have not been registered
under the Securities Act of 1933. The shares have been acquired for
investment and may not be sold, transferred or assigned in the absence
of an effective registration statement for these shares under the
Securities Act of 1933 or an opinion satisfactory to the Company's
counsel that registration is not required under said Act."
(i) During the past five years, none of the officers and/or
directors of Reink and Renewable have been:
(1) The subject of a petition under the federal bankruptcy
laws or any state insolvency law filed by or against them, or by
a receiver, fiscal agent or similar officer appointed by a court
for their business or property, or any partnership in which any
of them was a general partner at or within two years before the
time of such filing, or any corporation or business association
of which any of them was an executive officer at or within two
years before the time of such filing;
(2) Convicted in a criminal proceeding or a named subject of
a pending criminal proceeding (excluding traffic violations and
other minor offenses);
(3) The subject of any order, judgment, or decree not
subsequently reversed, suspended or vacated, of any court of
competent jurisdiction, permanently or temporarily enjoining any
of them from, or otherwise limiting, any of the following
activities:
(i) acting as a futures commission merchant,
introducing broker, commodity trading advisor, commodity
pool operator, floor broker, leverage transaction merchant,
any other person regulated by the Commodity Futures Trading
Commission, or an associated person of any of the foregoing,
or as an investment adviser, underwriter, broker or dealer
in securities, or as an affiliated person, director or
employee of any investment company, bank, savings and loan
association or insurance company, or engaging in or
continuing any conduct or practice in connection with any
such activity;
(ii) engaging in any type of business practice; or
(iii) engaging in any activity in connection
with the purchase or sale of any security or
commodity or in connection with any violation of
federal or state securities law or federal commodity
laws.
(4) The subject of any order, judgment or decree, not
subsequently reversed, suspended or vacated of any federal or
state authority barring, suspending or otherwise limiting for
more than sixty (60) days their right to engage in any activity
described in paragraph (3)(i) above, or be associated with
persons engaged in any such activity;
(5) Found by any court of competent jurisdiction in a civil
action or by the Securities and Exchange Commission to have
violated any federal or state securities law, and the judgment in
such civil action or finding by the Commission has not been
subsequently reversed, suspended or vacated; or
(6) Found by a court of competent jurisdiction in a civil
action or by the Commodity Futures Trading Commission to have
violated any federal commodities law, and the judgment in such
civil action or finding by the Commodity Futures Trading
Commission has not been subsequently reversed, suspended or
vacated.
(j) Each of the shareholders of Reink is the sole record and
beneficial owner of that portion of the shares set forth opposite his,
her or its name on Schedule 2.01(g)-1 attached hereto. Each of the
shareholders holds his, her or its respective shares free and clear of
any lien, pledge, encumbrance, charge, security interest, claim or
right of another and has the absolute right to sell and transfer such
shares to Newmarket without the consent of any other person or entity.
Upon transfer of such shares to Newmarket hereunder, Newmarket will
acquire good and marketable title to such shares free and clear of any
lien, pledge, encumbrance, charge, security interest, claim or right of
another, but subject to the restrictions set for the in paragraph
2.01(g).
(k) Neither the execution and delivery of this Agreement, nor
any such other agreement or instrument by Reink or Renewable, nor the
consummation of the transaction contemplated hereby or thereby, will
(i) violate any provisions of the Certificate of Incorporation or
By-laws of Reink or Renewable, (ii) violate, conflict with or result in
the breach or termination of, or otherwise give any other contracting
party the right to terminate, or constitute a material default under
the terms of, any mortgage, bond, indenture or material agreement to
which Reink or Renewable is a party or by which Reink or Renewable or
any of its property or assets may be bound or materially affected,
(iii) violate any judgment, order, injunction, decree or award of any
court,
administrative agency or governmental body against, or binding upon,
Reink or Renewable or upon the securities, property or business of
Reink or Renewable, or (iv) constitute a violation by Reink or
Renewable of any material applicable law or regulation of any
jurisdiction as such law or regulation relates to Reink or Renewable or
to the property or business of Reink or Renewable.
(l) All requisite consents of third parties, including, but
not limited to, governmental or other regulatory agencies, federal,
state or municipal, required to be received by or on the part of Reink
or Renewable in conjunction with the execution and delivery of this
Agreement and the performance of their respective obligations hereunder
have been obtained and are in full force and effect. Reink and
Renewable have fully complied with all conditions of such consents.
(m) Reink and Renewable have sufficient licenses, permits and
other governmental authorizations currently required for the conduct of
their business or the ownership of their property and are in all
material respects in compliance therewith and each owns or possesses
adequate right to use all material patents, patent applications,
trademarks, service marks, trade-names, trademark registrations,
service xxxx registrations, copyrights, and licenses necessary for the
conduct of such business and has not received any notice of conflict
with the asserted rights of others in respect thereof. To the best of
Reink's and Renewable's knowledge, none of the activities or business
of Reink or Renewable are in violation of, or cause Reink or Renewable
to violate, any law, rule, regulation or order of the United States,
any state, county or locality, or of any agency or body of the United
States or of any state, county or locality, the violation of which
would have a material adverse impact upon the condition (financial or
otherwise), business, property, prospective results of operations, or
net worth of Reink or Renewable.
(n) As of the Execution Date and through the Effective Date
(i) neither Reink nor Renewable has incurred and will not have incurred
any material liabilities or obligations, direct or contingent, and has
not entered into and will not have entered into any material
transactions other than in the ordinary course of business; (ii)
neither Reink nor Renewable has and will not have paid or declared any
dividends or have made any other distribution on its capital stock;
(iii) there has not been any change in the capital stock of, or any
incurrence of long-term debt by Reink or Renewable; (iv) neither Reink
nor Renewable has issued any options, warrants or other rights to
purchase the capital stock of Reink or Renewable; and (v) there has not
been and will not have been any material adverse change in the
business, financial condition or results of operations of Reink or
Renewable, or in the book value of the assets of Reink or Renewable,
arising for any reason whatsoever.
(o) Reink has furnished to Newmarket a written schedule
including, but not limited to, any and all material transactions
between Reink or Renewable and any of their respective directors,
officers, or principal shareholders, a schedule of which is attached as
Exhibit 2.01(o)-1.
2.02 SURVIVOR NEWMARKET. As a material inducement to execute this
Agreement and perform its obligations under this Agreement, Newmarket represents
and warrants to Reink as of the Execution Date and through the Effective Date,
as follows:
(a) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with full power and authority
(corporate and other) to own its properties and conduct its business
and is duly qualified to do business as a foreign corporation and is in
good standing in all other jurisdictions in which the nature of its
business or the character or location of its properties requires such
qualification, except where failure to so qualify will not materially
affect the Company's business, properties or financial condition. The
copies of the Certificate of Incorporation, By-laws, and Certificate of
Good Standing of Newmarket delivered to Reink are complete and correct,
copies of which are attached hereto as Exhibits 2.01(a)-1, 2.01(a)-2,
2.01(a)-3, and 2.01(a)-4.
(b) Newmarket has an authorized capitalization of $20,000.00
consisting of 20,000,000 shares of Common Stock, each of $.001 par
value, of which 2,000,000 shares are validly issued and outstanding,
fully paid, and non-assessable as of the date of this Agreement. There
are no subscriptions, options or other agreements or commitments
obligating Reink or Renewable to issue any shares of its capital stock
or securities convertible into its capital stock. There are no other
securities of Newmarket issued and outstanding.
(c) Newmarket has furnished the merging Corporation with the
unaudited financial statement of Newmarket for the period January 1,
1999 through March 31, 1999, which financial statement is attached as
Exhibit 2.02(c)-1; and (ii) the audited financial statements for the
twelve (12) months ended December 31, 1997 and December 31, 1998, which
financial statements are attached as Exhibit 2.02(c)-2 and 2.02(c)-3.
These financial statements (i) are in accordance with the books and
records of Newmarket; (ii) fairly present the financial condition of
Newmarket as of those dates and the results of its operations as of and
for the periods specified, all prepared in accordance with generally
accepted accounting principles applied on a basis consistent with prior
accounting periods; and (iii) contain and reflect, in accordance with
generally accepted accounting principles consistently applied,
reserves for all liabilities, losses, and costs in excess of expected
receipts and all discounts and refunds for services and products
already rendered or sold that are reasonably anticipated and based on
events or circumstances in existence or likely to occur in the future
with respect to any of the contracts or commitments of Newmarket.
Specifically, but not by way of limitation, the financial statements
disclose, in accordance with generally accepted accounting principles,
all of the debts, liabilities, and obligations of any nature (whether
absolute, accrued, contingent, or otherwise, and whether due or to
become due) of Reink at the financial statements, and includes
appropriate reserves for all taxes and other liabilities accrued or due
at that date but not yet payable.
(d) All required federal, state and local tax returns of
Newmarket have been accurately prepared and duly and timely filed, and
all federal, state and local taxes required to be paid with respect to
the periods covered by the returns have been paid. Newmarket is not
delinquent in the payment of any tax or assessment.
(e) The execution and delivery by Newmarket of this Agreement
and any other agreement or instrument contemplated by this Agreement,
and the consummation of the transaction contemplated hereby and
thereby, have been duly authorized by all necessary corporate action by
Newmarket, copies of the corporate resolutions being attached hereto as
Exhibit 2.01(c)-1. This Agreement, and any such other agreement or
instrument, upon execution and delivery by Newmarket (and assuming due
execution and delivery hereof and thereof by the other parties hereto
and thereto), will constitute the legal, valid and binding obligation
of Newmarket, in each case enforceable against Newmarket in accordance
with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, moratorium, reorganization or
similar laws from time to time in effect which affect creditors' rights
generally and by legal and equitable limitations on the availability of
specific performance and other equitable remedies against Newmarket
under or by virtue of this Agreement or such other agreement or
instrument.
(f) There is not pending or, to the knowledge of Newmarket,
threatened, any material action, suit, proceeding, inquiry, arbitration
or investigation against Newmarket, or any of the officers or directors
of Newmarket, or any material action, suit, proceeding, inquiry,
arbitration, or investigation, which might result in any material
adverse change in the condition (financial or other), business
prospects, net worth, or properties of Newmarket.
(g) The shares acquired by the shareholders of Reink from
Newmarket are "restricted securities" as that term is defined under
Rule 144 of the Act, and any sales of the shares
made in reliance upon Rule 144 can be made only in limited amounts in
accordance with the terms and conditions of that Rule and will require
an opinion of counsel satisfactory to the Company and Company counsel
that registration is not required under the Act or state securities
laws.
(h) All certificates representing the shares of the surviving
corporation issued in connection with this Agreement and any and all
shares issued in replacement thereof, shall bear the following legend,
or one substantially similar thereto:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933. The shares have
been acquired for investment and may not be sold, transferred
or assigned in the absence of an effective registration
statement for these shares under the Securities Act of 1933 or
an opinion satisfactory to the Company's counsel that
registration is not required under said Act."
(i) During the past five years, none of the officers
and/or directors of Newmarket have been:
(1) The subject of a petition under the federal
bankruptcy laws or any state insolvency law filed by or
against them, or by a receiver, fiscal agent or similar
officer appointed by a court for their business or property,
or any partnership in which any of them was a general partner
at or within two years before the time of such filing, or any
corporation or business association of which any of them was
an executive officer at or within two years before the time of
such filing;
(2) Convicted in a criminal proceeding or a named
subject of a pending criminal proceeding (excluding traffic
violations and other minor offenses);
(3) The subject of any order, judgment, or decree not
subsequently reversed, suspended or vacated, of any court of
competent jurisdiction, permanently or temporarily enjoining
any of them from, or otherwise limiting, any of the following
activities:
(i) acting as a futures commission merchant,
introducing broker, commodity trading advisor,
commodity pool operator, floor broker, leverage
transaction merchant, any other person regulated by
the Commodity Futures Trading Commission, or an
associated person of any of the foregoing, or as an
investment adviser, underwriter, broker or dealer in
securities, or as an affiliated person, director
or employee of any investment company, bank, savings
and loan association or insurance company, or
engaging in or continuing any conduct or practice in
connection with any such activity;
(ii) engaging in any type of business
practice; or
(iii) engaging in any activity in connection
with the purchase or sale of any security or
commodity or in connection with any violation of
federal or state securities law or federal commodity
laws.
(4) The subject of any order, judgment or decree, not
subsequently reversed, suspended or vacated of any federal or
state authority barring, suspending or otherwise limiting for
more than sixty (60) days their right to engage in any
activity described in paragraph (3)(i) above, or be associated
with persons engaged in any such activity;
(5) Found by any court of competent jurisdiction in a
civil action or by the Securities and Exchange Commission to
have violated any federal or state securities law, and the
judgment in such civil action or finding by the Commission has
not been subsequently reversed, suspended or vacated; or
(6) Found by a court of competent jurisdiction in a
civil action or by the Commodity Futures Trading Commission to
have violated any federal commodities law, and the judgment in
such civil action or finding by the Commodity Futures Trading
Commission has not been subsequently reversed, suspended or
vacated.
(j) Neither the execution and delivery of this Agreement, or
any such other agreement or instrument by Newmarket, nor the
consummation of the transaction contemplated hereby or thereby, will
(i) violate any provisions of the Certificate of Incorporation or
By-laws of Newmarket, (ii) violate, conflict with or result in the
breach or termination of, or otherwise give any other contracting party
the right to terminate, or constitute a material default under the
terms of, any mortgage, bond, indenture or material agreement to which
Newmarket is a party or by which Newmarket or any of its property or
assets may be bound or materially affected, (iii) violate any judgment,
order, injunction, decree or award of any court, administrative agency
or governmental body against, or binding upon, Newmarket or upon the
securities, property or business of Newmarket, or (iv) constitute a
violation by Newmarket of any material applicable law or regulation of
any jurisdiction as such law or regulation relates to Newmarket or to
the property or business of Newmarket.
(k) All requisite consents of third parties, including, but
not limited to, governmental or other regulatory agencies, federal
state or municipal, required to be received by or on the part of
Newmarket in conjunction with the execution and delivery of this
Agreement and the performance of its respective obligations hereunder
have been obtained and are in full force and effect. Newmarket has
fully complied with all conditions of such consents.
(l) Newmarket has sufficient licenses, permits and other
governmental authorizations currently required for the conduct of its
business or the ownership of its property and is in all material
respects in compliance therewith and owns or possesses adequate right
to use all material patents, patent applications, trademarks, service
marks, trade-names, trademark registrations, service xxxx
registrations, copyrights, and licenses necessary for the conduct of
such business and has not received any notice of conflict with the
asserted rights of others in respect thereof. To the best of
Newmarket's knowledge, none of the activities or business of Newmarket
are in violation of, or cause Newmarket to violate, any law, rule,
regulation or order of the United States, any state, county or
locality, or of any agency or body of the United States or of any
state, county or locality, the violation of which would have a material
adverse impact upon the condition (financial or otherwise), business,
property, prospective results of operations, or net worth of Newmarket.
(m) As of the Execution Date and through the Effective Date,
Newmarket (i) will not have incurred any material liabilities or
obligations, direct or contingent, and has not entered into and will
not have entered into any material transactions other than in the
ordinary course of business; (ii) will not have paid or declared any
dividends or have made any other distribution on its capital stock;
(iii) not have had any change in the capital stock of, or any
incurrence of long-term debt by Newmarket; (iv) will not have issued
any options, warrants or other rights to purchase the capital stock of
Newmarket; and (v) will not have had any material adverse change in the
business, financial condition or results of operations of Newmarket, or
in the book value of the assets of Newmarket, arising for any reason
whatsoever.
2.03 SECURITIES LAW. The parties will mutually arrange for and manage
all necessary procedures under the requirements of federal and Delaware
securities laws and the related supervisory commissions to the end that this
plan is properly processed to comply with registration formalities, or to take
full advantage of any appropriate exemptions from registration, and to otherwise
be in accord with all anti-fraud restrictions in this area.
ARTICLE III
COVENANTS, ACTIONS AND OBLIGATIONS
PRIOR TO THE EFFECTIVE DATE
3.01 INTERIM CONDUCT OF BUSINESS; LIMITATIONS. Except as limited by
this paragraph 3.01, between the Execution Date and the Effective Date, pending
consummation of the merger, each of the constituent corporations, will carry on
its business in substantially the same manner as before and will use its best
efforts to maintain its business organization intact, to retain its present
employees, and to maintain its relationships with suppliers and other business
contacts. Except with the prior consent in writing from the other, pending
consummation of the merger, each of the parties to this Agreement shall not:
(a) declare or pay any dividend or make any other
distribution on its shares;
(b) enter into any transaction other than those involved
in carrying on its ordinary course of business.
3.02 SUBMISSION TO SHAREHOLDER. This Agreement shall be submitted
separately to the shareholders of the constituent corporations, if required, in
the manner provided by the laws of the state of Florida and Delaware for
approval.
3.03 CONDITIONS PRECEDENT TO OBLIGATIONS OF REINK. Except as may be
expressly waived in writing by Reink, all of the obligations of Reink under this
Agreement are subject to the satisfaction, on the Execution Date and through the
Effective Date, of each of the following conditions by Newmarket:
(a) The representations and warranties made by Newmarket to
Reink in Section 2.02 of this Agreement and in any document delivered
pursuant to this Agreement shall be deemed to have been made again on
the Effective Date and shall then be true and correct in all material
respects. If Newmarket shall have discovered any material error,
misstatement, or omission in those representations and warranties on or
before the Effective Date, it shall report that discovery immediately
to Reink and shall either correct the error, misstatement, or omission
or obtain a written waiver from Reink.
(b) Newmarket shall have performed and complied with all
representations, agreements and conditions required by this Agreement
to be performed and complied with by it prior to or on the Effective
Date.
(c) Newmarket shall certify to Reink that:
(1) Newmarket is a corporation duly organized,
validly existing, and in good standing under the laws of the
State of Delaware, with full corporate power to carry on the
business in which it is engaged, and is legally qualified to
do business as a foreign corporation in good
standing in each jurisdiction in which the nature of its
business or the character or location of its properties
requires such qualification, except where failure to qualify
would materially and adversely affect the business or
properties of Newmarket. Newmarket has no subsidiaries.
(2) The execution, the delivery and the performance
of this Agreement by Newmarket has been duly authorized and
approved by requisite corporate action of Newmarket.
(3) This Agreement and instruments delivered to
Newmarket under this Agreement have been duly and validly
executed and delivered by Newmarket and constitute the valid
and binding obligations of Newmarket, enforceable in
accordance with their terms except as limited by the laws of
bankruptcy and insolvency.
(d) No action or proceeding by any governmental body or agency
shall have been threatened, asserted, or instituted to restrain or
prohibit the carrying out of the transactions contemplated by this
Agreement.
(e) All corporate and other proceedings and action taken in
connection with the transactions contemplated by this Agreement and all
certificates, opinions, agreements, instruments, and documents shall be
satisfactory in form and substance to counsel for Reink.
(f) Newmarket shall have delivered to Reink a certificate
dated the Effective Date executed in its corporate name by its
President or any Vice President, certifying to the satisfaction of the
conditions specified in subparagraphs (a) through (e) of this paragraph
3.03.
(g) As of the Effective Date, Newmarket shall have
received a written opinion from Feldman, Sherb, Xxxxxxx & Co.,
P.C. certifying that the exchange of shares between Reink and
Newmarket is a "tax free exchange" pursuant to Section
368(a)(1)(A) of the Internal Revenue Code.
(h) As of the Effective Date, Newmarket shall provide to
Reink a Board of Directors Resolution providing for the
appointment of Xxxxxx X. Xxxxxxxx, Xxxxxx X. Xxxxxx, and
Xxxxxxx X. Xxxxxxxx as directors of Newmarket, and the
resignation of Xxxxxx Xxxxxxxx as a director and officer of
Newmarket.
(i) At the Effective Date, Newmarket shall have -0-
assets and -0- liabilities.
3.04 CONDITIONS PRECEDENT TO OBLIGATIONS OF NEWMARKET.
Except as may be expressly waived in writing by Newmarket, all of the
obligations of Newmarket under this Agreement are subject to
the satisfaction, on the Execution Date and through the Effective Date, of each
of the following conditions by Reink:
(a) The representations and warranties made by Reink and
Renewable to Newmarket in Section 2.01 of this Agreement and in any
document delivered pursuant to this Agreement shall be deemed to have
been made again on the Effective Date and shall then be true and
correct in all material respects. If Reink and Renewable shall have
discovered any material error, misstatement, or omission in those
representations and warranties on or before the Effective Date, it
shall report that discovery immediately to Newmarket and shall either
correct the error, misstatement, or omission or obtain a written waiver
from Newmarket.
(b) Reink and Renewable shall have performed and complied with
all representations, agreements, and conditions required by this
Agreement to be performed and complied with by it prior to or on the
Effective Date.
(c) Reink and Renewable shall certify to Newmarket that:
(1) (a) Reink is a corporation duly organized,
validly existing, and in good standing under the laws of the
State of Florida, with full corporate power to carry on the
business in which it is engaged, and is legally qualified to
do business as a foreign corporation in good standing in each
jurisdiction in which the nature of its business or the
character or location of its properties requires such
qualification, except where failure to qualify would
materially and adversely affect the business or properties of
Reink.
(b) Reink has only one subsidiary, Renewable
Resources, Inc., a New York corporation. Reink owns all of the
issued and outstanding securities of Renewable. Renewable is a
corporation duly organized, validly existing, and in good
standing under the laws of the State of New York, with full
corporate power to carry on the business in which it is
engaged, and is legally qualified to do business as a foreign
corporation in good standing in each jurisdiction in which the
nature of its business or the character or location of its
properties requires such qualification, except where failure
to qualify would materially and adversely affect the business
or properties of Renewable.
(2) The execution, the delivery and the performance
of this Agreement by Reink has been duly authorized and
approved by requisite corporate action of Reink.
(3) This Agreement and instruments delivered to
Newmarket under this Agreement have been duly and validly
executed and delivered by Reink and constitute the valid
and binding obligations of Reink, enforceable in accordance
with their terms except as limited by the laws of bankruptcy
and insolvency.
(d) No action or proceeding by any governmental body or agency
shall have been threatened, asserted, or instituted to restrain or
prohibit the carrying out of the transactions contemplated by this
Agreement.
(e) All corporate and other proceedings and action taken in
connection with the transactions contemplated by this Agreement and all
certificates, opinions, agreements, instruments, and documents shall be
satisfactory in form and substance to Newmarket.
(f) Reink shall have delivered to Newmarket a certificate
dated the Effective Date executed in its corporate name by its
President or any Vice President, certifying to the satisfaction of the
conditions specified in subparagraphs (a) through (e) of this paragraph
3.03.
(g) As of the Effective Date, each stockholder of Reink shall
have delivered a Subscription Agreement certifying ownership of the
Reink shares to be exchanged for Newmarket shares.
ARTICLE IV
MANNER OF CONVERTING SHARES
4.01 MANNER. The holders of shares of Reink shall surrender their
shares to the surviving corporation pursuant to an Exchange Offer promptly after
the Effective Date, in exchange for shares of the Surviving Corporation to which
they are entitled under this Article IV.
4.02 BASIS. The shareholders of Reink shall be entitled to receive
7,700,000 shares of Common Stock of the Surviving Corporation, each of $.001 par
value.
4.03 SHARES OF SURVIVOR. The currently outstanding 2,000,000 shares of
Common Stock of Newmarket, each of $.001 par value, shall remain outstanding as
common stock, each of $.001 par value, of the Surviving Corporation.
ARTICLE V
DIRECTORS AND OFFICERS
5.01 VACANCY. If a vacancy shall exist on the Board of Directors of the
Surviving Corporation on the Effective Date of the merger, the vacancy may be
filled as provided in the By-laws of the Surviving Corporation.
5.02 DIRECTORS AND OFFICERS OF SURVIVOR. On the Effective Date, the
current director and officer of Newmarket will resign and appoint the following
directors and principal officers of the Surviving Corporation who shall hold
office until the next annual meeting of the shareholders of the Surviving
Corporation or until their respective successors have been elected or appointed
and qualified:
Directors: Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxxx
Officers: Xxxxxx X. Xxxxxx, President and CEO
Xxxxxx X. Xxxxxxxx, Executive Vice President
Xxxxxxx X. Xxxxx, Executive Vice President and
Chief Financial Officer
Xxxxxx X. Xxxx, Executive Vice President Production
ARTICLE VI
BY-LAWS
6.01 BY-LAWS OF SURVIVOR. The By-laws of Newmarket, as existing on the
Effective Date of the merger, shall continue in full force as the By-laws of the
Surviving Corporation until altered, amended, or repealed as provided in the
By-laws or as provided by law.
ARTICLE VII
POST-EFFECTIVE DATE MATTERS
7.01 DEFINITIVE MATTERS. Subsequent to the Effective Date of
the Agreement, the surviving corporation shall:
(a) prepare and disseminate to the surviving corporation's
shareholders the necessary information concerning the merger;
(b) prepare and file a Form 10-SB Registration Statement with the
Securities and Exchange Commission;
(c) make application to effect a listing in Standard & Poor's
Corporation and/or Xxxxx'x Service;
(d) not reverse split the common stock for a period of two (2)
years from the Effective Date of this Agreement; and
(e) shall not have more than 11,500,000 shares issued and
outstanding after the Private Placement Offering referred to in
sub-paragraph 7.02(a) below is completed, and shall not issue any
additional shares of its Common Stock for less than
$1.25 per share (U.S.) until such time as a Form 211 is filed and
effective with the NASD. After a public market develops for the
Company's Common Stock and until two (2) years from the Effective Date,
the Company shall not issue any additional shares of Common Stock for
less than fifty percent (50%) of the then current market price per
share.
7.02 BEST EFFORTS MATTERS. Subsequent to the Effective Date
of the Agreement, the surviving corporation shall use its best
efforts to:
(a) sell 1,600,000 shares of treasury stock through a Private
Placement offering pursuant to Rule 506 of Regulation D under the
Securities Act of 1933, as amended, at $1.25 per share (U.S.) to raise
$2,000,000 (U.S.);
(b) effect the filing of a Form 211 by a member firm of
the National Association of Securities Dealers, Inc.;
(c) timely file all tax returns and pay all taxes; and
(d) timely file all necessary SEC Reports.
ARTICLE VIII
NATURE AND SURVIVAL OF WARRANTIES, INDEMNIFICATION,
AND EXPENSES OF NONSURVIVOR
8.01 NATURE AND SURVIVAL OF REPRESENTATION AND WARRANTIES. All
statements contained in any memorandum, certificate, letter, document, or other
instrument delivered by or on behalf of Reink, Newmarket or the stockholders
pursuant to this Agreement shall be deemed representations and warranties made
by the respective parties to each other under this Agreement. The covenants,
representations, and warranties of the parties and the stockholders shall
survive for a period of three years after the Effective Date. No inspection,
examination or audit made on behalf of the parties or the stockholders shall act
as a waiver of any representation or warranty made under this Agreement.
8.02 EXPENSES. If the transactions contemplated by this Agreement are
not consummated, Reink shall pay such expenses of Reink. Newmarket shall bear
those expenses incurred by it in connection with this Agreement and the
transactions contemplated by this Agreement.
ARTICLE IX
TERMINATION
9.01 CIRCUMSTANCES. This Agreement may be terminated and the merger
may be abandoned at any time prior to the filing of the Articles of Merger with
the Secretary of State, notwithstanding the approval of the shareholders of
either of the constituent
corporations:
(a) By mutual consent of the Board of Directors of the
constituent corporations;
(b) At the election of the Board of Directors of either
constituent corporation if:
(1) The number of shareholders of either constituent
corporation, or of both, dissenting from the merger shall be so large
as to make the merger, in the opinion of either Board of Directors,
inadvisable or undesirable.
(2) Any material litigation or proceeding shall be
instituted or threatened against either constituent corporation, or any
of its assets, that, in the opinion of either Board of Directors,
renders the merger inadvisable or undesirable.
(3) Any legislation shall be enacted that, in the
opinion of either Board of Directors, renders the merger inadvisable or
undesirable.
(4) Between the Execution Date and the Effective
Date, there shall have been, in the opinion of either Board of
Directors, any materially adverse change in the business or condition,
financial or otherwise, of either constituent corporation.
(5) The provisions of 3.03(b) or 3.04(b) have not
been complied with at the Effective Date.
(C) IN THE EVENT THE MERGER WILL NOT qualify as a
reorganization under Section 368(a)(1)(a) of the Internal Revenue Code for
federal income tax purposes and that no gain or loss will be recognized to the
shareholders of Reink on the exchange of their common stock for stock of the
Surviving Corporation.
(d) As of the Effective Date, if without the prior written
consent in writing of Newmarket, Reink shall have:
(1) Declared or paid a cash dividend on its common
stock or declared or paid any other dividend or made any other
distribution on its shares.
(2) Created or issued any indebtedness for borrowed
money other than in the ordinary course of business.
(3) Entered into any transaction other than those
involved in carrying on its business in the usual manner.
9.02 NOTICE OF AND LIABILITY ON TERMINATION. If an election is made
to terminate this Agreement and abandon the merger:
(a) The President or any Vice President of the constituent
corporation whose Board of Directors has made the election shall give immediate
written notice of the election to terminate to the other constituent corporation
and set forth the reason(s) for such termination.
(b) The constituent corporation which has received the written
notice of termination shall have thirty (30) days from the receipt of the
written notice to cure the deficiency that resulted in the notice of
termination.
(c) On the giving and receipt of notice as provided in
subparagraph (a) and failure to cure as provided in subparagraph (b), this
Agreement shall terminate and the proposed merger shall be abandoned, and except
for payment of its own costs and expenses incident of this Agreement, there
shall be no liability on the part of either constituent corporation as a result
of the termination and abandonment.
ARTICLE X
INTERPRETATION AND ENFORCEMENT
10.01 FURTHER ASSURANCES. Reink agrees that from time to time, as and
when requested by the Surviving Corporation or by its successors or assigns, it
will execute and deliver or cause to be executed and delivered all deeds and
other instruments. Reink further agrees to take or cause to be taken any further
or other actions as the Surviving Corporation may deem necessary or desirable to
vest in, to perfect in, or to confirm of record or otherwise to the Surviving
Corporation title to and possession of all the property, rights, privileges,
powers, and franchises referred to in Article I of this Agreement, and otherwise
to carry out the intent and purposes of this Agreement.
10.02 NOTICES. Any notice or other communication required or permitted
under this Agreement shall be properly given when deposited with the United
States Postal Service for transmittal by certified or registered mail, postage
prepaid, addressed as follows:
If to Reink: Xxxxxx X. Xxxxxx
Reink Corp.
00000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
With a copy to:: Xxxxx X. Xxxxxx, P.A.
0000 Xxxxxx Xxxx, Xxxxx 000X
Xxxx Xxxxx, Xxxxxxx 00000
If to Newmarket: Xxxxxx Xxxxxxxxx
0000 Xxxxx Xxxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
10.03 ENTIRE AGREEMENT; COUNTERPART. This Agreement and the exhibits to
this Agreement contain the entire agreement between the parties with respect to
the contemplated transaction. This Agreement may be executed in any number of
counterparts, all of which taken together shall be deemed one original.
10.04 CONTROLLING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida applicable to
contracts made and to be performed entirely within the State of Florida. The
parties agree that any action brought by any party against another party in
connection with any rights or obligations arising out of this Agreement shall be
instituted properly in a federal or state court of competent jurisdiction with
venue only in the Fifteenth Judicial Circuit Court in and for Palm Beach County,
Florida or the United States District Court for the Southern District of
Florida, West Palm Beach Division. A party to this Agreement named as a
Defendant in any action brought in connection with this Agreement in any court
outside of the above named designated county or district shall have the right to
have the venue of said action changed to the above designated county or district
or, if necessary, have the case dismissed, requiring the other party to refile
such action in an appropriate court in the above designated county or federal
district.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
this 19th day of May, 1999.
REINK CORP.
BY:/S/ XXXXXX X. XXXXXX
--------------------
Xxxxxx X. Xxxxxx, President
WITNESS:
/S/ XXXXXXX X. XXXXXXXX
-----------------------
Xxxxxxx X. Xxxxxxxx
NEWMARKET STRATEGIC
DEVELOPMENT CORP.
BY:/S/ XXXXXX XXXXXXXXX
--------------------
Xxxxxx Xxxxxxxxx, President
WITNESS:
/S/ XXXXX X. XXXXXXXXX
----------------------
Xxxxx X. Xxxxxxxxx