EXHIBIT 2.2
MERGER AGREEMENT AND PLAN OF REORGANIZATION DATED
APRIL 24, 2002 BY AND AMONG NOXSO CORPORATION, NOXSO
ACQUISITION CORP., AND ▇▇▇▇ ENERGY CORPORATION,
AS AMENDED
MERGER AGREEMENT AND PLAN OF REORGANIZATION
APRIL 24, 2002
BY AND AMONG
NOXSO CORPORATION
A VIRGINIA CORPORATION ("NOXSO")
NOXSO ACQUISITION CORP.
A DELAWARE CORPORATION ("MERGERCO")
AND
▇▇▇▇ ENERGY CORPORATION
A TEXAS CORPORATION ("▇▇▇▇")
MERGER AGREEMENT AND PLAN OF REORGANIZATION made as of the 24th day of
April 2002, by and among ▇▇▇▇ Energy Corporation, a Texas corporation ("▇▇▇▇"),
having its principal place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Noxso Corporation, a Virginia corporation, having its
principal place of business at ▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
("NOXSO"), and Noxso Acquisition Corp., a newly formed Delaware corporation
having its principal place of business at ▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ("MERGERCO").
WHEREAS, Noxso is authorized to issue 20,000,000 shares of common
stock, par value $.01 per share (the "NOXSO COMMON STOCK"), of which 1,135,000
shares are issued and outstanding on the date hereof (the "OUTSTANDING NOXSO
MERGER SHARES");
WHEREAS, ▇▇▇▇ is authorized to issue 50,000,000 shares of its common
stock, par value $.001 per share (the "▇▇▇▇ COMMON STOCK"), of which 14,110,875
shares are issued and outstanding as of the date hereof and 25,000,000 shares of
preferred stock, par value $.001 per share, of which none are outstanding as of
the date hereof (the "▇▇▇▇ PREFERRED Stock");
WHEREAS, Mergerco is a wholly-owned subsidiary of Noxso and is
authorized to issue 100 shares of its common stock, $.01 par value (the
"MERGERCO SHARES"), all of which Mergerco Shares are owned by Noxso;
WHEREAS, neither ▇▇▇▇, Mergerco nor Noxso has outstanding any options,
warrants or other securities convertible and/or exercisable into any of their
respective securities;
WHEREAS, Noxso intends to conduct a private placement (the "PRIVATE
PLACEMENT") of its securities exclusively to accredited investors in a
transaction exempt from the registration requirements of Section 5 of the
Securities Act of 1933, as amended (the "SECURITIES ACT"), pursuant to Rule 506
and Regulation D promulgated thereunder, pursuant to which it will sell in the
Private Placement shares of Noxso Common Stock at a purchase price of $1.00 per
share on a $1,000,000 minimum best efforts basis;
WHEREAS, following the closing of the Merger and the Private Placement
and based upon certain assumptions set forth in Section 1(g)(1)(i)(ii) of this
Agreement, the issued and outstanding Noxso Common Stock shall be owned as
follows: 7.5% of the issued and outstanding (assuming $2,000,000 or less of
gross proceeds is received by Noxso in the Private Placement), shall be owned by
current Noxso shareholders (the "OLD NOXSO SHAREHOLDERS"), and 92.5% of the
issued and outstanding Noxso Common Stock (assuming $2,000,000 or less of gross
proceeds is received by Noxso in the Private Placement), shall be owned by
current shareholders of ▇▇▇▇ and purchasers In the Private Placement
(collectively, the NEW NOXSO SHAREHOLDERS");
WHEREAS, if in the Private Placement Noxso sells more than $2,000,000
of gross proceeds of Noxso Common Stock, all issuances of Noxso Common Stock in
the Private Placement representing shares issued for sales in excess of
$2,000,000 shall dilute the 92.5% and 7.5% ownership interests of the New Noxso
Shareholders and the Old Noxso Shareholders;
WHEREAS, the respective Boards of Directors of Noxso and Mergerco deem
it advisable and generally to the advantage and welfare of ▇▇▇▇ and Mergerco and
their respective
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shareholders that Mergerco be merged with and into ▇▇▇▇ under the terms and
conditions hereinafter set forth (the "MERGER"), the Merger to be effected
pursuant to the Texas Business Corporation Act (the "TBCA") and Delaware General
Corporation Law (the "DGCL"), and to be a tax free reorganization under SECTION
368(A)(1)(A) of the Internal Revenue Code of 1986, as amended (the "CODE").
NOW, THEREFORE, in consideration of the premises, the parties hereto do
mutually agree as follows:
1. VOTE ON MERGER
(a) As soon as practicable after the date hereof, ▇▇▇▇ shall
obtain the required approval of its shareholders to the Merger in accordance
with the TBCA.
(b) As soon as practicable after the date hereof, Mergerco
shall obtain the written consent of its shareholder to approve the Merger in
accordance with DGCL.
(c) If the Merger is approved by the shareholders of ▇▇▇▇ and
Mergerco in accordance with the laws of the States of Texas and Delaware,
subject to the further conditions and provisions of this Agreement, a closing of
the transactions contemplated by this Agreement shall be held (the "CLOSING"),
and a certificate of merger and all other documents or instruments deemed
necessary or appropriate by the parties hereto to effect the Merger shall be
executed and filed with the Secretaries of State of the States of Texas and
Delaware as promptly as possible thereafter. The certificate of merger (the
"CERTIFICATE OF MERGER") so filed shall be in the form as the Boards of
Directors of ▇▇▇▇ and Mergerco shall mutually approve. The date and time that
such Certificate of Merger is accepted for filing by the Secretaries of State of
the States of Texas and Delaware shall be the "EFFECTIVE TIME."
(d) EFFECT OF THE MERGER. At the Effective Time, the effect
of the Merger shall be as provided in this Agreement and the applicable
provisions of the TBCA. Without limiting the generality of the foregoing, and
subject thereto, at the Effective Time all the property, rights, privileges,
powers and franchises of ▇▇▇▇ and Mergerco shall vest in ▇▇▇▇ as the surviving
corporation in the Merger (referred to hereinafter sometimes as the "SURVIVING
CORPORATION"), and all debts, liabilities and duties of ▇▇▇▇ and Mergerco shall
become the debts, liabilities and duties of the Surviving Corporation.
(e) ARTICLES OF INCORPORATION; BY-LAWS
(1) At the Effective Time, the Articles of Incorporation
of ▇▇▇▇, as in effect immediately prior to the Effective Time, shall be the
Articles of Incorporation of the Surviving Corporation until thereafter amended
as provided by law and such Articles of Incorporation of the Surviving
Corporation.
(2) The By-Laws of ▇▇▇▇, as in effect immediately prior
to the Effective Time, shall be, at the Effective Time, the By-Laws of the
Surviving Corporation until thereafter amended.
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(f) DIRECTORS AND OFFICERS. The initial directors of the
Surviving Corporation shall be the directors of ▇▇▇▇ immediately prior to the
Effective Time, until their respective successors are duly elected or appointed
and qualified. The initial officers of the Surviving Corporation shall be the
officers of ▇▇▇▇ immediately prior to the Effective Time, until their respective
successors are duly appointed. At the Closing, (i) the directors of ▇▇▇▇
immediately prior to the Effective Time shall be appointed as new directors of
Noxso and the existing directors of Noxso shall resign, and (ii) the officers of
▇▇▇▇ shall become the officers of Noxso and the existing officers of Noxso shall
resign.
(g) EFFECT ON CAPITAL STOCK. Subject to the terms and
conditions of this Agreement, at the Effective Time, by virtue of the Merger and
without any action on the part of Mergerco, ▇▇▇▇ or the holders of any of the
following securities, the following shall occur:
(1) CONVERSION OF ▇▇▇▇ COMMON STOCK; ISSUANCE TO OLD
NOXSO SHAREHOLDERS OF ADDITIONAL NOXSO COMMON STOCK. Each share of ▇▇▇▇ Common
Stock issued and outstanding immediately prior to the Effective Time will be
cancelled and extinguished and automatically converted (subject to SECTIONS
1(H)(4) AND 1(H)(5)) into the right to receive such number of shares (the
"EXCHANGE RATIO") of Noxso Common Stock (the "NOXSO MERGER SHARES"), upon
surrender of the certificate representing such share of ▇▇▇▇ Common Stock in the
manner provided in SECTION 1(H)(3) (or in the case of a lost, stolen or
destroyed certificate), upon delivery of an affidavit (and bond, if required) in
the manner provided in SECTION 1(H)(3)), so that assuming (i) $2,000,000 or less
of shares of Noxso Common Stock are sold in the Private Placement, and (ii)
Noxso uses $275,000 of the net proceeds in the Private Placement to repay the
$275,000 aggregate principal amount of its outstanding notes (the "PURCHASE
NOTES") issued by Noxso to evidence the prior repurchase of outstanding Noxso
Common Stock from certain Old Noxso Shareholders (A) the Old Noxso Shareholders
shall own 7.5% of the issued and outstanding Noxso Common Stock, and (B) the New
Noxso Shareholders shall own 92.5% of the issued and outstanding Noxso Common
Stock. The 7.5% and the 92.5% are collectively hereinafter referred to as the
"POST-MERGER OWNERSHIP PERCENTAGES." Notwithstanding anything to the contrary
provided herein or elsewhere, to ensure that the Post-Merger Ownership
Percentage of 7.5% for the Old Noxso Shareholders is not diluted as a result of
the issuance of shares of Noxso Common Stock in the Private Placement to raise
up to the initial $2,000,000 of gross proceeds, if the 860,000 shares of Noxso
Common Stock owned by Old Noxso Shareholders would represent less than 7.5% of
the outstanding Noxso Common Stock following the closing of the Merger and the
issuance at any closing of the Private Placement of such number of shares of
Noxso Common Stock necessary so as to raise the initial $2,000,000 of gross
proceeds, then, at each closing of the Private Placement where shares of Noxso
Common Stock are issued to raise up to the initial $2,000,000 of gross proceeds,
Noxso shall issue to the Old Noxso Shareholders, on a proportionate basis to
their percentage ownership interests, such number of shares of Noxso Common
Stock so that such Old Noxso Shareholders will own in the aggregate 7.5% of the
issued and outstanding Noxso Common Stock ("ANTI-DILUTION SHARE ISSUANCES");
PROVIDED, HOWEVER, that the Old Noxso Shareholders shall not receive any
Anti-Dilution Share Issuances of Noxso Common Stock for issuances of Noxso
Common Stock in the Private Placement to raise in excess of the initial
$2,000,000 of gross proceeds.
(2) CAPITAL STOCK OF MERGERCO. Each share of Common
Stock, $0.01 par value per share, of Mergerco (the "MERGERCO COMMON STOCK")
issued and outstanding
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immediately prior to the Effective Time shall be converted into one validly
issued, fully paid and non-assessable share of Common Stock, $.001 par value per
share, of the Surviving Corporation. Each certificate evidencing ownership of
shares of Mergerco Common Stock shall evidence ownership of such shares of
capital stock of the Surviving Corporation.
(3) ADJUSTMENTS TO EXCHANGE RATIO. The Exchange Ratio
shall be adjusted to reflect appropriately the effect of any share split,
reverse share split, share dividend (including any dividend or distribution of
securities convertible into Noxso Merger Common Stock or ▇▇▇▇ Common Stock),
reorganization, recapitalization, reclassification or other like change with
respect to any Noxso Merger Shares or ▇▇▇▇ Common Stock occurring on or after
the date hereof and prior to the Effective Time.
(4) FRACTIONAL SHARES. No fraction of a Noxso Merger
Share will be issued by virtue of the Merger, but in lieu thereof the number of
shares of Noxso Merger Shares shall be rounded to the nearest whole number.
(h) SURRENDER OF CERTIFICATES.
(1) EXCHANGE AGENT. Interwest Transfer Company, Inc.,
Noxso's Transfer Agent shall act as the exchange agent (the "EXCHANGE AGENT")
in the Merger.
(2) NOXSO TO PROVIDE MERGER SHARES. As promptly as
practicable after the Effective Time, Noxso shall make available to the Exchange
Agent for exchange in accordance with this ARTICLE 1, that number of Noxso
Merger Shares as is issuable pursuant to SECTION 1(G)(1) in exchange for
outstanding shares of ▇▇▇▇ Common Stock and any dividends or distributions to
which holders of shares of ▇▇▇▇ Common Stock may be entitled pursuant to SECTION
1(H)(4).
(3) EXCHANGE PROCEDURES. As soon as practicable, after
the Effective Time, Noxso shall cause the Exchange Agent to mail to each holder
of record (as of the Effective Time) of a certificate or certificates (the
"CERTIFICATES") which, immediately prior to the Effective Time, represented
outstanding shares of ▇▇▇▇ Common Stock whose shares were converted into the
right to receive Noxso Merger Shares pursuant to this Agreement (i) a letter of
transmittal in customary form (which shall specify that delivery shall be
effected, and risk of loss and title to the Certificates shall pass, only upon
delivery of the Certificates to the Exchange Agent and shall contain such other
provisions as Noxso may reasonably specify) and (ii) instructions for use in
effecting the surrender of the Certificates in exchange for certificates
representing Noxso Merger Shares and any dividends or other distributions
pursuant to SECTION 1(H)(4). Upon surrender of Certificates for cancellation to
the Exchange Agent or to such other agent or agents as may be appointed by
Noxso, together with such letter of transmittal, duly completed and validly
executed in accordance with the instructions thereto, the holders of such
Certificates shall be entitled to receive in exchange therefor certificates
representing the number of whole Noxso Merger Shares into which their shares of
▇▇▇▇ Common Stock were converted at the Effective Time and any dividends or
distributions payable pursuant to SECTION 1(H)(4), and the Certificates so
surrendered shall forthwith be cancelled. Until so surrendered, outstanding
Certificates will be deemed from and after the Effective Time, for all corporate
purposes, subject to SECTION 1(H)(4) as to the payment of dividends, to evidence
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only the ownership of the number of full Noxso Merger Shares into which such
shares of ▇▇▇▇ Common Stock shall have been so converted and any dividends or
distributions payable pursuant to SECTION 1(H)(4).
(4) DISTRIBUTIONS WITH RESPECT TO UNEXCHANGED SHARES
AND ADDITIONAL MERGER CONSIDERATION. No dividends or other distributions
declared or made after the date of this Agreement with respect to Noxso Merger
Shares with a record date after the Effective Time will be paid to the holders
of any unsurrendered Certificates with respect to the Noxso Merger Shares
represented thereby until the holders of record of such Certificates shall
surrender such Certificates. Subject to applicable law, following surrender of
any such Certificates, the Exchange Agent shall promptly deliver to the record
holders thereof, without interest, certificates representing whole Noxso Merger
Shares issued in exchange therefor along with the amount of any such dividends
or other distributions with a record date after the Effective Time payable with
respect to such whole Noxso Merger Shares.
(5) TRANSFER OF OWNERSHIP. If Noxso Merger Shares are
to be issued in a name other than that in which the Certificates surrendered in
exchange therefor are registered, it will be a condition of the issuance thereof
that the Certificates so surrendered will be properly endorsed and otherwise in
proper form for transfer and that the persons requesting such exchange will have
paid to Noxso or any agent designated by it any transfer or other taxes required
by reason of the issuance of Noxso Merger Shares in any name other than that of
the registered holder of the Certificates surrendered, or established to the
satisfaction of Noxso or any agent designated by it that such tax has been paid
or is not payable.
(6) REQUIRED WITHHOLDING. Each of the Exchange Agent,
Noxso and the Surviving Corporation shall be entitled to deduct and withhold
from any consideration payable or otherwise deliverable pursuant to this
Agreement to any holder or former holder of shares of ▇▇▇▇ Common Stock such
amounts as may be required to be deducted or withheld therefrom under the Code
or under any provision of state, local or foreign tax law. To the extent such
amounts are so deducted or withheld, such amounts shall be treated for all
purposes under this Agreement as having been paid to the person to whom such
amounts would otherwise have been paid.
(7) NO LIABILITY. Notwithstanding anything to the
contrary in this SECTION 1(H)(7), neither the Exchange Agent, Noxso, the
Surviving Corporation nor any party hereto shall be liable to a holder of Noxso
Merger Shares or ▇▇▇▇ Common Stock for any amount properly paid to a public
official pursuant to any applicable abandoned property, escheat or similar law.
(i) NO FURTHER OWNERSHIP RIGHTS IN SHARES OF ▇▇▇▇ COMMON STOCK.
All Noxso Merger Shares issued in accordance with the terms hereof shall be
deemed to have been issued in full satisfaction of all rights pertaining to such
shares of ▇▇▇▇ Common Stock, and there shall be no further registration of
transfers on the records of the Surviving Corporation of shares of ▇▇▇▇ Common
Stock which were outstanding immediately prior to the Effective Time. If, after
the Effective Time, Certificates are presented to the Surviving Corporation for
any reason, they shall be cancelled and exchanged as provided in this ARTICLE 1.
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(j) LOST, STOLEN OR DESTROYED CERTIFICATES. In the event that
any Certificates shall have been lost, stolen or destroyed, the Exchange Agent
shall issue in exchange for such lost, stolen or destroyed Certificates, upon
the making of an affidavit of that fact by the holder thereof, certificates
representing the Noxso Merger Shares into which the shares of ▇▇▇▇ Common Stock
represented by such Certificates were converted pursuant to SECTION 1(G) and any
dividends or distributions payable pursuant to SECTION 1(H)(4); PROVIDED,
HOWEVER, that Noxso may, in its discretion and as a condition precedent to the
issuance of such certificates representing the Noxso Merger Shares, cash and
other distributions, require the owner of such lost, stolen or destroyed
Certificates to deliver a bond in such sum as it may reasonably direct as
indemnity against any claim that may be made against Noxso, the Surviving
Corporation or the Exchange Agent with respect to the Certificates alleged to
have been lost, stolen or destroyed.
(k) TAX CONSEQUENCES. The parties hereto intend that the Merger
shall constitute a reorganization within the meaning of SECTION 368 of the Code.
The parties hereto adopt this Agreement as a "plan of reorganization" within the
meaning of SECTION 1.368-2(G) and SECTION 1.368-3(A) of the United States Income
Tax Regulations.
(l) TAKING OF NECESSARY ACTION; FURTHER ACTION. If, at any
time after the Effective Time, any further action is necessary or desirable to
carry out the purposes of this Agreement and to vest the Surviving Corporation
with full right, title and possession to all assets, property, rights,
privileges, powers and franchises of ▇▇▇▇ and Mergerco, then ▇▇▇▇ and Mergerco
will cause their respective current officers to take all such lawful and
necessary action. Noxso shall cause Mergerco to perform all of its obligations
relating to this Agreement and the transactions contemplated hereby.
(m) EXPENSE PAYMENT. Upon execution of this Agreement, ▇▇▇▇
shall loan to Noxso $35,000 (the "$35,000 LOAN"), which shall be used together
with $40,000 from the Private Placement net proceeds to pay all Liabilities (as
defined in SECTION 4(H) of this Agreement) of Noxso, so that at the Effective
Time neither Noxso nor Mergerco shall have any Liabilities. The $35,000 Loan
shall be repaid from the net proceeds of the Private Placement.
2. REPRESENTATIONS AND WARRANTIES BY ▇▇▇▇.
(a) ▇▇▇▇ is a duly organized and validly existing corporation
in good standing under the laws of the State of Texas, authorized to issue
50,000,000 shares of ▇▇▇▇ Common Stock and 25,000,000 shares of ▇▇▇▇ Preferred
Stock. At the Closing, there will be issued and outstanding 14,110,875 shares of
▇▇▇▇ Common Stock, all of which will be fully paid and non-assessable. SCHEDULE
2(A) attached hereto sets forth the name and amount of shares of ▇▇▇▇ Common
Stock owned by each ▇▇▇▇ shareholder. There are no issued or outstanding rights,
options or warrants to purchase ▇▇▇▇ Common Stock or any issued or outstanding
securities of any nature convertible into ▇▇▇▇ Common Stock. The issued and
outstanding shares of ▇▇▇▇ Common Stock have all been issued pursuant to an
appropriate exemption from the registration requirements of the Securities Act
and from any applicable registration requirements of the various states.
(b) ▇▇▇▇ has full power and authority to enter into this
Agreement and, subject to obtaining the approval of its shareholders, to
consummate the transactions
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contemplated hereby. This Agreement and the transactions contemplated hereby
have been duly approved by the Board of Directors of ▇▇▇▇. This Agreement has
been duly executed and delivered by ▇▇▇▇ and constitutes a valid and binding
obligation of ▇▇▇▇, enforceable against ▇▇▇▇ in accordance with its terms,
except that such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights.
(c) ▇▇▇▇ is qualified as foreign corporations in all
jurisdictions where its business or ownership of assets or properties so
requires, except where the failure to be so qualified would not have a material
adverse effect on the business or financial condition of ▇▇▇▇ (a "▇▇▇▇ MATERIAL
ADVERSE EFFECT").
(d) The financial statements of ▇▇▇▇, consisting of its
opening balance sheet at February 1, 2001, together with accompanying notes,
have been audited by independent public accountants and fairly present the
financial position, results of operations and other information purported to be
shown therein of ▇▇▇▇, at the date and for the respective periods to which they
apply. The unaudited financial statements of ▇▇▇▇, consisting of its balance
sheet at December 31, 2001, its statement of operations, statement of
stockholders' equity and statement of cash flows for the eleven (11) months
ended December 31, 2001, have been prepared in accordance with generally
accepted accounting principles, have been adjusted for all normal and recurring
accruals, and fairly present the financial position, results of operations and
other information purported to be shown therein of ▇▇▇▇, at the date and for the
respective periods to which they apply. The audited financial statements and the
unaudited financial statements of ▇▇▇▇ are hereinafter referred to as the "▇▇▇▇
FINANCIAL STATEMENTS." The ▇▇▇▇ Financial Statements have been delivered to
Noxso.
(e) The business of ▇▇▇▇ has only been operated in the ordinary
course. There has not been any material change in the financial condition of
▇▇▇▇ from that set forth in the ▇▇▇▇ Financial Statements.
(f) ▇▇▇▇ does not have any material direct or indirect
indebtedness, liability, claim, loss, damage, deficiency, obligation or
responsibility, fixed or unfixed, ▇▇▇▇▇▇ or inchoate, liquidated or
unliquidated, secured or unsecured, accrued, absolute, contingent or otherwise
(all of the foregoing being collectively referred to as "LIABILITIES") of a kind
required by generally accepted accounting principles ("GAAP") to be set forth on
a financial statement that is not fully and adequately reflected or reserved
against on the ▇▇▇▇ Financial Statements. ▇▇▇▇ does not have any Liabilities,
whether or not of a kind required by GAAP to be set forth on a financial
statement, other than (i) Liabilities incurred in the ordinary course of
business since the date of the latest balance sheet included in the ▇▇▇▇
Financial Statements that are consistent with past practice and are included in
the latest ▇▇▇▇ Financial Statements, (ii) Liabilities that are fully reflected
on or reserved against on the latest balance sheet included in the ▇▇▇▇
Financial Statements, or (iii) as specifically disclosed in the ▇▇▇▇ Financial
Statements.
(g) All federal, state, county and local income, excise,
property and other material tax returns required to be filed by ▇▇▇▇ have been
filed and all required taxes, fees assessments have been paid or an adequate
reserve therefor has been set up in the ▇▇▇▇ Financial Statements. All tax
returns filed by ▇▇▇▇ are true, correct and complete. The income tax returns
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of ▇▇▇▇ have never been audited by any authority empowered to do so, where any
such audit could reasonably be expected to have a ▇▇▇▇ Material Adverse Effect.
All taxes required by law to be withheld or collected have been so withheld or
collected and, to the extent required, paid to the proper governmental body.
(h) ▇▇▇▇ has good and marketable title in all material respects
to all its furniture, fixtures, equipment and other owned assets and such assets
are owned free and clear of all material security interests, pledges, liens,
restrictions and encumbrances of every kind and nature.
(i) All of the agreements, contracts, and commitments of ▇▇▇▇
are in full force and effect, and, to the best of ▇▇▇▇'▇ knowledge, all other
parties to such agreements, contracts, and commitments have performed all
obligations required to be performed by them to date thereunder in all material
respects and are not in default thereunder in any material respect.
(j) There are no legal, administrative, arbitral or other
proceedings, claims, actions or governmental investigations of any nature
against ▇▇▇▇ which could reasonably be expected to have a ▇▇▇▇ Material Adverse
Effect or which challenge the validity or propriety of the transactions
contemplated by this Agreement and, to ▇▇▇▇'▇ knowledge, there is no reasonable
basis for any such proceeding, claim, action or governmental investigation. ▇▇▇▇
is not a party to or bound by any order, judgment or decree which could
reasonably be expected to have a ▇▇▇▇ Material Adverse Effect.
(k) As of the date hereof, ▇▇▇▇ has not issued or committed
itself to issue, and prior to the Closing will not issue or commit itself to
issue any additional common shares or any options, rights, warrants, or other
securities convertible into common shares.
(l) Since inception, ▇▇▇▇ has in all material respects operated
its business and conducted its affairs in compliance with all applicable laws,
rules and regulations, except where the failure to so comply could not
reasonably be expected to have a ▇▇▇▇ Material Adverse Effect. ▇▇▇▇ has all
licenses, permits, orders, and approvals from all governmental bodies required
for the conduct of its businesses and is not in violation of any such license,
permit, order, or approval, where the lack of such license, permit, etc. would
have a ▇▇▇▇ Material Adverse Effect. All such licenses, permits, orders and
approvals are in full force and effect, and no suspension or cancellation
thereof has been threatened.
(m) The payment of all compensation to officers and directors
of ▇▇▇▇, as well as all loans to or transactions with officers and directors of
▇▇▇▇ have been reflected in the ▇▇▇▇ Financial Statements.
(n) Since December 31, 1996, neither ▇▇▇▇, nor any promoter,
officer or director of ▇▇▇▇ nor any person intended to become an officer or
director of ▇▇▇▇, has been the subject of:
(1) a petition under the Federal bankruptcy laws or any
other insolvency law nor has a receiver, fiscal agent or similar officer been
appointed by a court for the business or property of such person, or any
partnership in which he was a general partner at or
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within five years before the time of such filing, or any corporation or business
association of which he was an executive officer at or within five years before
the time of such filing;
(2) a conviction in a criminal proceeding or a named
subject of a pending criminal proceeding (excluding traffic violations which do
not relate to driving while intoxicated);
(3) any order, judgment or decree, not subsequently
reversed, suspended or vacated, of any court of competent jurisdiction,
permanently or temporarily enjoining him from, or otherwise limiting, 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 United
States 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 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, state or other securities laws or commodities laws;
(4) any order, judgment or decree, not subsequently
reversed, suspended or vacated, of any Federal, state or local authority
barring, suspending or otherwise limiting for more than sixty (60) days the
right of such person to engage in any activity described in the preceding
subparagraph, or to be associated with persons engaged in any such activity;
(5) a finding by a court of competent jurisdiction in
a civil action or by the Securities and Exchange Commission (the "COMMISSION")
to have violated any securities law, regulation or decree and the judgment in
such civil action or finding by the Commission has not been subsequently
reversed, suspended or vacated; or
(6) a finding by a court of competent jurisdiction in
a civil action or by the Commodity Futures Trading Commission to have violated
any federal commodities laws, and the judgment in such civil action or finding
by the Commodity Futures Trading Commission has not been subsequently reversed,
suspended or vacated.
(o) Except for the consent and approval of the shareholders
of Mergerco and ▇▇▇▇ and the filing of the Certificate of Merger, no consents or
approvals of, or filings or registrations with, any third party or any public
body or authority are necessary in connection with (i) the execution and
delivery by ▇▇▇▇ of this Agreement and (ii) the consummation by ▇▇▇▇ of the
Merger and the other transactions contemplated hereby.
(p) ▇▇▇▇ does not know of any person who rendered any service
in connection with the introduction of Noxso, Mergerco or ▇▇▇▇ to each other,
and knows of no
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claim for a "finder's fee" or similar type of fee in connection with the Merger
and the other transactions contemplated hereby.
(q) The execution and delivery by ▇▇▇▇ of this Agreement, the
consummation and performance of the transactions herein contemplated, and
compliance with the terms of this Agreement by ▇▇▇▇ will not conflict with,
result in a breach of or constitute a default under any indenture, mortgage,
deed of trust or other material agreement, instrument or Contract to which ▇▇▇▇
is now a party or by which it or any of its assets or properties is bound or the
Articles of Incorporation, as amended, or the bylaws of ▇▇▇▇, in each case as
amended, or any law, order, rule or regulation, writ, injunction, judgment, or
decree of any government, governmental instrumentality or court, domestic or
foreign, having jurisdiction over ▇▇▇▇ or any of its business or properties,
which conflict, breach or default could reasonably be expected to have a ▇▇▇▇
Material Adverse Effect.
(r) All information provided and/or to be provided in writing
by ▇▇▇▇ regarding ▇▇▇▇ expressly for use in the private placement memorandum
(the "MEMORANDUM"), to be used in connection with the Private Placement shall be
true, complete and accurate in all material respects and there shall be no
omissions of material fact necessary to make the statements and information
therein in light of the circumstances in which made not misleading.
(s) ▇▇▇▇ is in compliance with all applicable published rules
and regulations (and applicable standards and requirements) of the United States
Environmental Protection Agency (the "EPA"), and of any similar state agencies
of the State of Texas. There is no suit, claim, action or proceeding now pending
before any court, governmental agency or board, or other forum, nor is any of
the same threatened by any person or entity; and, there is no fact or
circumstances actually known to ▇▇▇▇ which could reasonably be anticipated to be
the basis for any such suit, claim, action or proceeding for (i) non-compliance
by ▇▇▇▇ with any environmental law, rule, regulation or requirement, or (ii)
relating to the release or threatened release into the environment by the ▇▇▇▇
of any pollutant, toxic or Hazardous Materials, oil, or waste generated by ▇▇▇▇.
▇▇▇▇ has not released any Hazardous Materials (as hereinafter defined) at any
site owned or leased by ▇▇▇▇ or shipped any Hazardous Materials for treatment,
storage or disposal at any other site or facility. For purposes of this SECTION
4(S), "HAZARDOUS MATERIALS" shall mean and include any solid, hazardous or toxic
waste, substance or material as defined in the United States Resource
Conservation and Recovery Act; the Clean Air Act; the Clean Water Act; the Toxic
Substance Control Act; the Comprehensive Environmental Response, Compensation,
and Liability Act; applicable state laws for the protection of the environment,
and the regulations promulgated under any of the foregoing.
3. REPRESENTATIONS AND WARRANTIES RELATING TO MERGERCO. Noxso and
Mergerco, jointly and severally represent and warrant follows:
(a) Mergerco is a duly organized and validly existing
corporation in good standing under the laws of the State of Delaware, authorized
to issue only the Mergerco Shares. The issued and outstanding capital stock of
Mergerco consists only of the Mergerco Shares all of which are fully paid and
non-assessable and which are owned by Noxso. There are no issued or outstanding
rights, options or warrants to purchase Mergerco Shares or any issued or
outstanding securities of any nature convertible into Mergerco Shares. The
Mergerco Shares have all been
-11-
issued pursuant to an appropriate exemption from the registration requirements
of the Securities Act and from any applicable registration requirements of the
various states.
(b) Mergerco has been organized solely for the purpose of
consummating the Merger and, since its inception, Mergerco has had no business
activity of any nature other than those related to its organization or as
contemplated by this Agreement.
(c) Mergerco has full power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. This Agreement
and the transactions contemplated hereby have been duly approved by the Boards
of Directors of Noxso and Mergerco, and by the shareholder of Mergerco. This
Agreement has been duly executed and delivered by Mergerco, and constitutes a
valid and binding obligation of Mergerco, enforceable against Mergerco in
accordance with its terms, except that such enforcement may be subject to
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights.
(d) Mergerco is qualified as a foreign corporation in all
jurisdictions where its business or ownership of assets or properties so
requires, except where the failure to be so qualified would not have a material
adverse effect on the business or financial condition of Mergerco (a "MERGERCO
MATERIAL ADVERSE EFFECT"). The business of Mergerco does not require it to be
registered as an investment company or investment adviser as such terms are
defined under the Investment Company Act and the Investment Advisers Act of
1940, each as amended.
(e) Mergerco has no subsidiaries.
(f) Except in connection with the Merger, Mergerco has had no
business and no financial or other transactions of any nature whatsoever.
(g) Mergerco has no liabilities (including, but not limited
to, tax liabilities) nor are there any claims against Mergerco (whether such
liabilities or claims are contingent or absolute, direct or indirect, and
matured or unmatured).
(h) All federal, state, county and local income, excise,
property or other tax returns required to be filed by Mergerco have been filed
and all required taxes, fees or assessments have been paid.
(i) Mergerco has no fixtures, furniture, equipment, inventory
or accounts receivable.
(j) Mergerco has no Contracts or commitments to which it is a
party, except for this Agreement and other documents and instruments
contemplated hereby in connection with the Merger.
(k) There are no legal, administrative, arbitral or other
proceedings, claims, actions or governmental investigations of any nature
against Mergerco, or challenging the validity or propriety of the transactions
contemplated by this Agreement and, to Mergerco's and Noxso's best knowledge,
there is no reasonable basis for any other proceeding, claim, action or
governmental investigation against Mergerco. Mergerco is not a party to or bound
by any order,
-12-
judgment or decree which could reasonably be expected to have a Mergerco
Material Adverse Effect.
(l) Since the inception of Mergerco there have been (i) no
salaried or otherwise compensated employees and no bonuses paid to any officer
or director of Mergerco; (ii) no loans made to or any transactions with any
officer or director of Mergerco; (iii) no dividends or other distributions
declared or paid by Mergerco; and (iv) no purchase by Mergerco of any Mergerco
Shares.
(m) Since its inception, Mergerco has not issued or committed
itself to issue, and until after the Effective Time will not issue or commit
itself to issue any Mergerco Shares or any options, rights, warrants, or other
securities convertible into Mergerco Shares except for the issuance of the
Mergerco Shares to Noxso.
(n) Mergerco has no patents, patent applications, trademarks,
trademark registrations, trade names, copyrights, copyright registrations or
applications therefor.
(o) Since its inception, Mergerco has in all material respects
conducted its affairs in compliance with all applicable laws, rules and
regulations except where the failure to so comply could not reasonably be
expected to have a Mergerco Material Adverse Effect.
(p) Since December 31, 1996, no officer or director of
Mergerco has been the subject of:
(1) a petition under the Federal bankruptcy laws or any
other insolvency law nor has a receiver, fiscal agent or similar officer been
appointed by a court for the business or property of such person, or any
partnership in which he was a general partner at or within two years before the
time of such filing, or any corporation or business association of which he was
an executive officer at or within two years before the time of such filing;
(2) a conviction in a criminal proceeding or a named
subject of a pending criminal proceeding (excluding traffic violations which do
not relate to driving while intoxicated);
(3) any order, judgment or decree, not subsequently
reversed, suspended or vacated, of any court of competent jurisdiction,
permanently or temporarily enjoining him from, or otherwise limiting, 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 United
States 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 such activity;
(ii) Engaging in any type of business practice; or
-13-
(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, state or other securities laws or commodities laws;
(4) any order, judgment or decree, not subsequently
reversed, suspended or vacated, of any Federal, state or local authority
barring, suspending or otherwise limiting for more than 60 days the right of
such person to engage in any activity described in the preceding sub-paragraph,
or to be associated with persons engaged in any such activity;
(5) a finding by a court of competent jurisdiction in
a civil action or by the Commission to have violated any securities law,
regulation or decree and the judgment in such civil action or finding by the
Commission has not been subsequently reversed, suspended or vacated; or
(6) a finding 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.
(q) Mergerco has no pension plan, profit sharing or similar
employee benefit plan.
(r) Except for the consent and approval of the shareholders
of Mergerco and ▇▇▇▇ and the filing of the Articles of Merger, no consents or
approvals of, or filings or registrations with, any third party or any public
body or authority are necessary in connection with (i) the execution and
delivery by Mergerco of this Agreement and (ii) the consummation by Mergerco of
the Merger and the other transactions contemplated hereby.
(s) Mergerco knows of no person who rendered any service in
connection with the introduction of Noxso, Mergerco or ▇▇▇▇ to each other, and
that they know of no claim for a "finder's fee" or similar type of fee in
connection with the Merger and the other transactions contemplated hereby.
(t) Mergerco has no employees.
(u) The execution and delivery by Mergerco of this Agreement,
the consummation and performance of the transactions herein contemplated, and
compliance with the terms of this Agreement by Mergerco will not conflict with,
result in a breach of or constitute a default under any indenture, mortgage,
deed of trust or other agreement, instrument or Contract to which Mergerco is
now a party or by which it or any of its assets or properties is bound or the
Articles of Incorporation, as amended, or the bylaws of Mergerco, in each case
as amended, or any law, order, rule or regulation, writ, injunction, judgment or
decree of any government, governmental instrumentality or court, domestic or
foreign, having jurisdiction over Mergerco or any of its business or properties,
which conflict, breach or default could reasonably be expected to have a
Mergerco Material Adverse Effect.
(v) All information provided and/or to be provided in writing
by Mergerco and/or Noxso regarding Mergerco for expressly for use in the private
placement memorandum
-14-
(the "MEMORANDUM"), to be used in connection with the Private Placement shall be
true, complete and accurate in all material respects and there shall be no
omissions of material fact necessary to make the statements and information
therein in light of the circumstances in which made not misleading.
4. REPRESENTATIONS AND WARRANTIES RELATING TO NOXSO. Noxso and
Mergerco, jointly and severally, represent and warrant as follows:
(a) Noxso is a duly organized and validly existing corporation
in good standing under the laws of the State of Virginia, authorized to issue
only 20,000,000 shares of Noxso Common Stock and no shares of preferred stock.
Immediately prior to the Effective Time and the issuance of any securities in or
in connection with the Merger, there will be issued and outstanding 1,135,000
shares of Noxso Common Stock, all of which will be fully paid and non-assessable
(the "OUTSTANDING NOXSO MERGER SHARES"). SCHEDULE 4(A) attached hereto sets
forth the name and amount of shares of Noxso Common Stock owned by each Noxso
shareholder. Except as contemplated to be issued in the Merger and disclosed in
this Agreement, there are no issued or outstanding options, warrants or other
rights, contingent or otherwise, to purchase or acquire shares of Noxso Common
Stock or any issued or outstanding securities of any nature convertible into
shares of Noxso Common Stock. The issued and outstanding shares of Noxso Common
Stock have all been issued pursuant to an effective registration statement or an
appropriate exemption from the registration requirements of the Securities Act
and from any applicable registration requirements of the various states.
(b) Since June 4, 1997, the business of Noxso has been limited
solely to the search for an acquisition or merger partner and, except for
transactions related thereto or related to its status as a publicly held
company, it has not engaged in any other business or activity.
(c) Noxso has full power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. This Agreement
and the transactions contemplated hereby have been duly approved by the Board of
Directors of Noxso. This Agreement has been duly executed and delivered by Noxso
and constitutes a valid and binding obligation of Noxso enforceable against
Noxso in accordance with its terms, except that such enforcement may be subject
to bankruptcy, insolvency, reorganization, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights.
(d) Noxso is qualified as a foreign corporation in all
jurisdictions where its business or ownership of assets or properties so
requires, except where the failure to be so qualified would not have a material
adverse effect on the business or financial condition of Noxso (a "NOXSO
MATERIAL ADVERSE EFFECT"). The business of Noxso does not require it to be
registered as an investment company or investment adviser as such terms are
defined under the Investment Company Act of 1940 and the Investment Advisers Act
of 1940, each as amended.
(e) Noxso has no subsidiaries except for Mergerco.
(f) The financial statements of Noxso, consisting of its
balance sheet as at March 31, 2001, and its statement of operations, its
statement of stockholders' equity and its statement of cash flows for the fiscal
year ended March 31, 2001, all together with
-15-
accompanying notes, as set forth in Noxso's Annual Report on Form 10-KSB for the
fiscal year ended March 31, 2001, have been audited by independent public
accountants and fairly present the financial position, results of operations and
other information purported to be shown therein of Noxso, at the date and for
the respective periods to which they apply. The unaudited financial statements
of Noxso, consisting of its balance sheet as at December 31, 2001 and 2000, its
statement of income, statement of stockholders' equity and statement of cash
flows for the nine months ended December 31, 2001, as set forth in Noxso's
Quarterly Report on Form 10-QSB for the quarter ended December 31, 2001 (the
"DECEMBER 31, 2001 FORM 10-QSB," and collectively with the Form 10-KSB and
Noxso's quarterly reports on Form 10-QSB for the quarters ended June 30, 2001
and September 30, 2001 (the "SEC REPORTS")), have been prepared in accordance
with generally accepted accounting principles, have been adjusted for all normal
and recurring accruals, and fairly present the financial position, results of
operations and other information purported to be shown therein of Noxso, at the
date and for the respective periods to which they apply. The audited financial
statements and the unaudited financial statements of Noxso are hereinafter
referred to as the "NOXSO FINANCIAL STATEMENTS." The Noxso Financial Statements
have been delivered to ▇▇▇▇.
(g) The business of Noxso, as described in the SEC Reports,
has only been operated in the ordinary course. There has not been any material
change in the financial condition of Noxso from that set forth in the December
31, 2001 Form 10-QSB.
(h) Taking into account the payment of $75,000 of Liabilities
(as defined below) from (i) the $35,000 Loan to be made upon execution of this
Agreement, and (ii) $40,000 from the Private Placement, there are, and at the
Effective Time will be, no indebtedness, obligations or any liabilities of any
kind (including, but not limited to, tax liabilities, legal fees, consulting
fees, accrued salaries, accounting fees) or claims against Noxso and/or Mergerco
(whether such liabilities or claims are contingent or absolute, direct or
indirect, and matured or unmatured) (collectively, "LIABILITIES"). SCHEDULE
4(H), annexed hereto, lists as of the date hereof all Liabilities of Noxso
(including contingent) and the exact name and address of the persons owed funds
to and the exact amount of funds so owed.
(i) All federal, state, county and local income, excise,
property and other material tax returns required to be filed by Noxso and
Mergerco have been filed and all required taxes, fees assessments have been paid
or an adequate reserve therefor has been set up in the Noxso Financial
Statements. All tax returns filed by Noxso and Mergerco are true, correct and
complete. The income tax returns of Noxso have never been audited by any
authority empowered to do so, where any such audit could reasonably be expected
to have a Noxso Material Adverse Effect. All taxes required by law to be
withheld or collected have been so withheld or collected and, to the extent
required, paid to the proper governmental body.
(j) Noxso has no fixtures, furniture, equipment, inventory or
accounts receivable.
(k) Noxso has no material Contracts to which it is a party,
except those between the parties hereto, and as described in the SEC Reports.
-16-
(l) There are no legal, administrative, arbitral or other
proceedings, claims, actions or governmental investigations of any nature
against Noxso, or challenging the validity or propriety of the transactions
contemplated by this Agreement and, to Mergerco's and Noxso's best knowledge,
there is no reasonable basis for any such proceeding, claim, action or
governmental investigation. Noxso is not a party to or bound by any order,
judgment or decree which will, or might reasonably be expected to have a Noxso
Material Adverse Effect.
(m) There have been: (i) no salaried or otherwise compensated
employees and no bonuses paid to any officer or director of Noxso; (ii) no cash
dividends or other cash distributions declared or paid by Noxso; and (iii) no
purchase by Noxso of any Noxso Merger Shares.
(n) As of the date hereof, Noxso has not issued or committed
itself to issue, and prior to the Effective Time will not issue or commit itself
to issue any additional common shares (other than the Noxso Merger Shares) or
any options, rights, warrants, or other securities convertible into common
shares, except as expressly contemplated in writing by this Agreement.
(o) Noxso has furnished to ▇▇▇▇ true and complete copies,
including exhibits and, as applicable, amendments thereto, of (i) each Quarterly
Report on Form 10-QSB and (ii) each Annual Report on Form 10-KSB issued by Noxso
since March 31, 1999. None of such filings contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading a the time of such
filings. None of the documents and/or orders set forth in this SECTION 4(O) has
been amended, altered and/or otherwise changed.
(p) Noxso has no patents, patent applications, trademarks,
trademark registrations, trade names, copyrights, copyright registrations or
applications therefor.
(q) Since its inception, Noxso has in all material respects
operated its business and conducted its affairs in compliance with all
applicable laws, rules and regulations.
(r) Except as set forth in the SEC Reports or otherwise
disclosed in writing to ▇▇▇▇, there are no loans, leases or other contracts
outstanding between Noxso and any officer or director of Noxso or any person
related to any officer or director of Noxso.
(s) Since December 31, 1996, no officer, promoter, control
person, affiliate or director of Noxso and/or Mergerco has been the subject of:
(1) a petition under the Federal bankruptcy laws or any
other insolvency law nor has a receiver, fiscal agent or similar officer been
appointed by a court for the business or property of such person, or any
partnership in which he was a general partner at or within two years before the
time of such filing, or any corporation or business association of which he was
an executive officer at or within two years before the time of such filing;
(2) a conviction in a criminal proceeding or a named
subject of a pending criminal proceeding (excluding traffic violations which do
not relate to driving while intoxicated);
-17-
(3) any order, judgment or decree, not subsequently
reversed, suspended or vacated, of any court of competent jurisdiction,
permanently or temporarily enjoining him from, or otherwise limiting, 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 United
States 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 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, state or other securities laws or commodities laws;
(4) any order, judgment or decree, not subsequently
reversed, suspended or vacated, of any Federal, state or local authority
barring, suspending or otherwise limiting for more than 60 days the right of
such person to engage in any activity described in the preceding sub-paragraph,
or to be associated with persons engaged in any such activity;
(5) a finding by a court of competent jurisdiction in
a civil action or by the Commission to have violated any securities law,
regulation or decree and the judgment in such civil action or finding by the
Commission has not been subsequently reversed, suspended or vacated; or
(6) a finding 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.
(t) Noxso has no pension plan, profit sharing or similar
employee benefit plan.
(u) Except for the consent and approval of the shareholders
of Mergerco and ▇▇▇▇ and the filing of the Certificate of Merger, no consents or
approvals of, or filings or registrations with, any third party or any public
body or authority are necessary in connection with (i) the execution and
delivery by Noxso of this Agreement and (ii) the consummation of the Merger and
the other transactions contemplated hereby.
(v) Noxso knows of no person who rendered any service in
connection with the introduction of Noxso, Mergerco or ▇▇▇▇ to each other, which
is being compensated through a separate agreement between itself and ▇▇▇▇, and
they know of no claim for a "finder's fee" or similar type of fee in connection
with the Merger and the other transactions contemplated hereby.
-18-
(w) None of the information supplied or to be supplied by or
about Noxso for inclusion in the Memorandum concerning the Merger contains or
will contain any untrue statement of a material fact or omit or omits to state
any material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they are made,
not misleading.
(x) Noxso is in compliance with all applicable published
rules and regulations (and applicable standards and requirements) of the United
States Environmental Protection Agency (the "EPA"), and of any similar state
agencies of the State of Virginia. There is no suit, claim, action or proceeding
now pending before any court, governmental agency or board, or other forum, nor
is any of the same threatened by any person or entity; and, there is no fact or
circumstances actually known to Noxso which could reasonably be anticipated to
be the basis for any such suit, claim, action or proceeding for (i)
non-compliance by Noxso with any environmental law, rule, regulation or
requirement, or (ii) relating to the release or threatened release into the
environment by the Noxso of any pollutant, toxic or Hazardous Materials, oil, or
waste generated by Noxso. Noxso has not released any Hazardous Materials (as
hereinafter defined) at any site owned or leased by Noxso or shipped any
Hazardous Materials for treatment, storage or disposal at any other site or
facility. For purposes of this SECTION 4(X), "HAZARDOUS MATERIALS" shall mean
and include any solid, hazardous or toxic waste, substance or material as
defined in the United States Resource Conservation and Recovery Act; the Clean
Air Act; the Clean Water Act; the Toxic Substance Control Act; the Comprehensive
Environmental Response, Compensation, and Liability Act; applicable state laws
for the protection of the environment, and the regulations promulgated under any
of the foregoing.
(y) In connection with the bankruptcy proceeding of Noxso in
the United States Bankruptcy Court for the Eastern District of Tennessee,
Chattanooga Division (the "BANKRUPTCY COURT"), the Bankruptcy Court's "Order
Approving Disclosure Statement and Confirming Second Amended Plan of
Reorganization Under Chapter 11 of the Bankruptcy Code" entered December 9, 1999
(the "APPROVING ORDER"), which, among other items (i) confirms Noxso's Second
Plan of Reorganization with Modifications Through December 2, 1999, filed with
the Bankruptcy Court on December 7, 1999 (the "SECOND PLAN"), and (ii) approves
Noxso's Disclosure Statement With Respect to the Second Plan of Reorganization
dated October 27, 1999 and filed with the Bankruptcy Court on October 27, 1999
(the "SECOND DISCLOSURE STATEMENT") is a final order of the Bankruptcy Court and
since the date the Approving Order was issued by the Bankruptcy Court has not
been directly and/or indirectly appealed, modified, amended and/or in any way
changed. Noxso has complied with the Approving Order, the Second Plan and Second
Disclosure Statement in all respects and has not violated and is not now in
violation of the Approving Order and/or the Second Plan. (z) The execution and
delivery by Noxso of this Agreement, the consummation and performance of the
transactions herein contemplated, and compliance with the terms of this
Agreement by Noxso will not conflict with, result in a breach of or constitute
default under any indenture, mortgage, deed of trust or other agreement,
instrument or Contract to which Noxso is now a party or by which it or any of
its assets or properties is bound or the Articles of Incorporation, as amended,
or the by-laws of Noxso, in each case as amended, or any law, order, rule or
regulation, writ, injunction, judgment or decree of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over Noxso or
any of its business or properties.
-19-
(aa) Noxso is and will at all times through and include the
date of the Closing of the Merger, be in compliance and comply with all rules
and regulations of the Federal Securities laws including, but not limited to,
the filing of all reports to be required thereunder.
(bb) Noxso's Common Stock is eligible for quotation and is
quoted under the symbol "NXSO" on the NASD Bulletin Board and knows of no facts,
circumstances and/or other events that could lead to the Noxso Common stock
being no longer eligible for quotation on the NASD Bulletin Board.
5. RIGHTS AND LIABILITIES OF SURVIVING CORPORATION. At and after
the Effective Time, ▇▇▇▇, as the surviving corporation, shall succeed to and
possess, without further act or deed, all of the estate, rights, privileges,
powers, and franchises, both public and private, and all of the property, real,
personal, and mixed, of each of the constituent corporations; all debts due to
either of the constituent corporations on whatever account shall be vested in
▇▇▇▇; all claims, demands, property, rights, privileges, powers, and franchises
and every other interest of either of the constituent corporations shall be as
effectively the property of ▇▇▇▇ as they were of the respective constituent
corporations; the title to any real estate by deed or otherwise in either of the
constituent corporations shall not revert or be in any way impaired by reason of
the Merger, but shall be vested in ▇▇▇▇; all rights of creditors and all liens
upon any property of either of the constituent corporations shall be preserved
unimpaired, limited in lien to the property affected by such lien at the
Effective Time; all debts, liabilities, and duties of the respective constituent
corporations shall thenceforth attach to ▇▇▇▇ and may be enforced against it to
the same extent as if such debts, liabilities, and duties had been incurred or
contracted by it.
6. REASONABLE EFFORTS; NOTIFICATION.
(a) Upon the terms and subject to the conditions set forth in
this Agreement, each of the parties agrees to use commercially reasonable
efforts to take, or cause to be taken, all actions, and to do, or cause to be
done, and to assist and cooperate with the other parties in doing, all things
necessary, proper or advisable to consummate and make effective the Merger and
the other transactions contemplated by this Agreement, including using
commercially reasonable efforts to accomplish the following: (i) the obtaining
of all necessary actions or non-actions, waivers, consents, approvals, orders
and authorizations from governmental entities and the making of all necessary
registrations, declarations and filings (including registrations, declarations
and filings with governmental entities, if any) and (ii) the execution or
delivery of any additional instruments necessary to consummate the transactions
contemplated by, and to fully carry out the purposes of, this Agreement.
(b) Each of ▇▇▇▇, Mergerco and Noxso shall give prompt notice
to the other of any representation or warranty made by it contained in this
Agreement becoming untrue or inaccurate in any material respect, or any failure
of such party to comply with or satisfy in any respect any covenant, condition
or agreement to be complied with or satisfied by it under this Agreement, in
each case, such that the conditions set forth in SECTIONS 8 AND 9 could
reasonably be expected to not be satisfied; PROVIDED, HOWEVER, that no such
notification shall affect the representations, warranties, covenants or
agreements of the parties or the conditions to the obligations of the parties
under this Agreement.
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7. FURTHER ASSURANCES OF TITLE. As and when requested by ▇▇▇▇ or by
its successors or assigns, Mergerco shall execute and deliver or cause to be
executed and delivered all such deeds and instruments and will take or cause to
be taken all such further action as ▇▇▇▇ may deem necessary or desirable in
order to invest in and confirm to ▇▇▇▇ title to and possession of its property
acquired by ▇▇▇▇ by reason or as a result of the Merger and otherwise to carry
out the intent and purposes hereof, and the officers and directors of Mergerco
and ▇▇▇▇ are fully authorized in the name of Mergerco, ▇▇▇▇ or otherwise to take
any and all such action.
8. CONDITIONS TO OBLIGATIONS TO MERGERCO AND NOXSO. The obligation
of Mergerco and Noxso to consummate the Merger is subject to satisfaction of the
following conditions prior to the Effective Time:
(a) That Noxso, the sole shareholder of Mergerco, shall by
written consent in accordance with Virginia and Delaware law, duly approve the
Merger.
(b) That ▇▇▇▇ shall have performed and complied in all
material respects with the provisions and conditions of this Agreement to be
performed and complied with, and that the representations and warranties made by
▇▇▇▇ in this Agreement are true and correct in all material respects, both when
made and as of the Effective Time subject to ▇▇▇▇ making such modifications to
the ▇▇▇▇ Disclosure Schedule as may be necessary provided that no such
modification shall constitute an ▇▇▇▇ Material Adverse Effect.
(c) That this Agreement and the transactions contemplated
hereby shall have been approved by appropriate corporate action of ▇▇▇▇,
including by required consent and/or vote of the ▇▇▇▇ shareholders, and that
corporate votes and/or resolutions to that effect in form and substance
reasonably satisfactory to Mergerco and its counsel have been delivered to
Mergerco.
(d) That shares of Noxso Common Stock have been purchased by
Noxso for $275,000 in the aggregate and the Purchase Notes are paid by Noxso
with net proceeds from the Private Placement.
(e) That net proceeds of $40,000 from the Private Placement
have been used together with the $35,000 Loan to pay all outstanding Liabilities
of Noxso, so that at the Effective Time neither Noxso nor Mergerco has any
outstanding Liabilities.
(f) That Noxso shall have sold at least $1,000,000 of gross
proceeds of shares of Noxso Common Stock in the Private Placement.
(g) That Noxso shall have filed a statement pursuant to Rule
14f-1 under the Securities Exchange Act of 1934 at least ten (10) days prior to
the Effective Date.
(h) That ▇▇▇▇▇▇ ▇▇▇▇ shall have obtained an irrevocable option
to buy the Noxso Merger Shares to be received by the ▇▇▇▇ shareholders in the
Merger for an aggregate purchase price of $175,000. Such option shall be
exercisable only in the event that Noxso's consolidated balance sheet for either
(i) the quarter ending June 30, 2003, or (ii) at any date prior to June 30, 2003
(regardless of whether Noxso's consolidated balance sheet reflects after any
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such date total consolidated assets of less than $5,000,000) does not reflect
total consolidated assets of at least $5,000,000.
(i) That all of the ▇▇▇▇ shareholders shall have acknowledged
that the Noxso Merger Shares are restricted securities under the Securities Act
and represent that such ▇▇▇▇ shareholder (i) is acquiring the Noxso Merger
Shares for his own account without a view to distribution within the meaning of
the Securities Act; (ii) has received from Noxso its filings with the Commission
and all other information that he has deemed necessary to make an informed
investment decision with respect to an investment in Noxso in general and the
Noxso Merger Shares in particular; (iii) is financially able to bear the
economic risks of an investment in Noxso; and (iv) has such knowledge and
experience in financial and business matters in general and with respect to
investments of a nature similar to the Noxso Merger Shares so as to be capable,
by reason of such knowledge and experience, of evaluating the merits and risks
of, and making an informed business decision with regard to, the acquisition of
the Noxso Merger Shares. Such acknowledgment shall also indicate that each ▇▇▇▇
shareholder understands and agrees that the certificates evidencing the Noxso
Merger Shares shall bear the usual restrictive legend pertaining to Rule 144
under the Securities Act and that the Noxso Merger Shares will not be
transferable except under an effective registration statement under the
Securities Act or in accordance with available exemptions from registration
under the Securities Act.
(j) Compliance with the provisions of this SECTION 8 shall be
evidenced by the certificate of the President and Secretary of ▇▇▇▇.
9. CONDITIONS TO OBLIGATIONS OF ▇▇▇▇. The obligations of ▇▇▇▇ to
consummate the Merger are subject to satisfaction of the following conditions
prior to the Effective Time:
(a) That the shareholders of ▇▇▇▇, in accordance with Texas
law, shall have approved the Merger.
(b) That none of the shareholders of ▇▇▇▇ shall have asserted
dissenter's rights.
(c) That the Boards of Directors and Officers of Noxso and
Mergerco shall have resigned and are replaced by those designated by ▇▇▇▇.
(d) That no material transactions shall have been entered into
by Mergerco or Noxso other than transactions in the ordinary course of business
since December 31, 2001, except for those transactions contemplated by this
Agreement.
(e) That no material adverse change shall have occurred in the
financial condition of either Mergerco or Noxso since December 31, 2001.
(f) That Mergerco and Noxso shall each have performed and
complied in all material respects with the provisions and conditions of this
Agreement to be performed and complied with and that the representations and
warranties made by Mergerco and Noxso herein are true and correct in all
material respects, both when made and as of the Effective Time.
-22-
(g) That Noxso shall have complied fully with the applicable
securities or "blue sky" laws of any state or other governmental body in
connection with the Merger.
(h) That Noxso and Mergerco shall provide to ▇▇▇▇ executed
documentation from all persons owed funds by Noxso, which documentation shall be
in form and substance satisfactory to ▇▇▇▇'▇ counsel, that evidence that no
Liabilities exist.
(i) That ▇▇▇▇ shall have received an opinion from counsel to
Mergerco and Noxso in substantially the form of EXHIBIT 9(H).
(j) That ▇▇▇▇ shall have received a good standing certificate
and certified by-laws of Noxso and Mergerco as of the date of Closing.
(k) That ▇▇▇▇ shall have received such other documents that
it reasonably has requested.
(l) Compliance with the provisions of this SECTION 9 shall be
evidenced by the certificate of the President and Secretary of Noxso and the
certificate of the President and Secretary of Mergerco to be delivered at
Closing.
10. ABANDONMENT. This Agreement and the Merger may be abandoned (a)
by ▇▇▇▇, on the one hand, or Noxso and Mergerco, on the other hand, acting by
their respective Boards of Directors, in the event of the failure at the Closing
of any condition in favor of such party to which the consummation of the Merger
is subject, or (b) by the mutual consent of the parties, acting each by its
Board of Directors, at any time after such adoption by such shareholders and
prior to the Effective Time. In the event of abandonment of this Agreement, the
same shall become wholly void and of no effect and except as set forth in
SECTION 11(B) hereof, there shall be no further liability or obligation
hereunder on the part of any of the parties, their respective Boards of
Directors or any other party to this Agreement.
11. CLOSING OR TERMINATION; EXPENSES.
(a) In the event the Closing of this Agreement shall not take
place by June 3, 2002, then any party shall have the right to terminate this
Agreement in which event no party shall have any further right or obligation as
against any other, except as set forth in SECTION 11(B).
(b) In the event the Merger fails to close on or before June
3, 2002 because of (i) the failure of Noxso and/or Mergerco to materially assist
▇▇▇▇ in the preparation of the Memorandum and other steps necessary to complete
the Private Placement Memorandum; (ii) the failure of any of the conditions set
forth in SECTION 9 of this Agreement, other than those conditions set forth in
SECTIONS 9(A) AND 9(B), or (iii) any material action taken and/or failed to be
taken by Noxso and/or Mergerco to assist ▇▇▇▇ in the preparation of the
documents related to and the closing of the Merger and other actions as
described in this Merger Agreement, then Noxso shall repay the $35,000 Loan and
shall be Noxso's sole liability in connection with the termination and/or
abandonment of this Agreement. In the event that the Merger fails to close for
any other reasons, neither Noxso, ▇▇▇▇ nor Mergerco shall have any liability to
any other party.
-23-
(c) Each of the parties shall bear its respective expenses in
connection with this Agreement, except that ▇▇▇▇ agrees to pay the expenses
related to the Private Placement, which shall include legal and accounting
expenses and filing fees to be paid to comply with applicable state securities
laws.
12. DELIVERY OF CORPORATE PROCEEDINGS OF NOXSO. At the Closing,
Noxso shall deliver to ▇▇▇▇'▇ counsel the originals or certified copies of all
of the corporate proceedings of Noxso, duly certified by its Secretary, relating
to this Agreement.
13. DELIVERY OF CORPORATE PROCEEDINGS OF MERGERCO. At the Closing,
Mergerco shall deliver to ▇▇▇▇'▇ counsel the originals of all of the corporate
proceedings of Mergerco, duly certified by its Secretary, relating to this
Agreement.
14. LIMITATION OF LIABILITY. The representations and warranties made
by any party to this Agreement are intended to be relied upon only by the other
parties to this Agreement, and by no other person. Nothing contained in this
Agreement shall be deemed to confer upon any person not a party to this
Agreement any third party beneficiary rights or any other rights of any nature
whatsoever, and only to the extent expressly referred to herein.
15. FURTHER INSTRUMENTS AND ACTIONS. Each party shall deliver such
further instruments and take such further action as may be reasonably requested
by any other in order to carry out the intents and purposes of this Agreement.
16. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York without regard to
the conflicts of laws principles thereof. The parties hereto hereby irrevocably
agree that any suit or proceeding arising directly and/or indirectly pursuant to
or under this Agreement, shall be brought solely in a federal or state court
located in the City, County and State of New York. By its execution hereof, the
parties hereby covenant and irrevocably submit to the IN PERSONAM jurisdiction
of the federal and state courts located in the City, County and State of New
York and agree that any process in any such action may be served upon any of
them personally, or by certified mail or registered mail upon them or their
agent, return receipt requested, with the same full force and effect as if
personally served upon them in New York City. The parties hereto waive any claim
that any such jurisdiction is not a convenient forum for any such suit or
proceeding and any defense or lack of IN PERSONAM jurisdiction with respect
thereto. In the event of any such action or proceeding, the party prevailing
therein shall be entitled to payment from the other party hereto of its
reasonable counsel fees and disbursements in an amount judicially determined.
17. RULES OF CONSTRUCTION. The parties hereto agree that they have
been represented by counsel during the negotiation and execution of this
Agreement and, therefore, waive the application of any law, regulation, holding
or rules of construction providing that ambiguities in an agreement or other
documents will be construed against the party drafting such agreement or
document.
18. ASSIGNMENT. No party may assign either this Agreement or any of
its rights, interests, or obligations hereunder without the prior written
approval of the other parties. Subject to the preceding sentence, this Agreement
shall be binding upon and shall inure to the benefit of
-24-
the parties hereto and their respective successors and permitted assigns. Any
purported assignment in violation of this SECTION 18 shall be void.
19. NOTICES. All notices, requests, consents, and other
communications under this Agreement shall be in writing and shall be delivered
by hand, sent via overnight courier, sent by facsimile, or mailed by first class
mail, certified or registered mail, return receipt requested, postage prepaid.
If to ▇▇▇▇:
▇▇▇▇ Energy Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (Suite 1600)
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
e-mail: ▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
With a copy to:
Gusrae, ▇▇▇▇▇▇ & Bruno, PLLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
e-mail: LNUSBAUM@GKBLAW. COM
If to Noxso and Mergerco:
Noxso Corporation
▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇, President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
e-mail: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
With a copy to:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
e-mail: ▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
-25-
or to such other person or entity or at such other address as any party shall
designate by notice to the other in accordance with this SECTION 19.
20. NOTICES. Notices provided in accordance with SECTION 19 shall
be deemed delivered (i) upon personal delivery with signature required, (ii) one
Business Day after they have been sent to the recipient by reputable overnight
courier service (charges prepaid and signature required) (iii) upon
confirmation, answer back received, of successful transmission of a facsimile
message containing such notice if sent between 9:00 a. m. and 5:00 p. m. , local
time of the recipient, on any Business Day, and as of 9:00 a. m. local time of
the recipient on the next Business Day if sent at any other time, or (iv) three
(3) Business Days after deposit in the mail. The term "BUSINESS DAY" as used in
this SECTION 20 shall mean any day other than Saturday, Sunday or a day on which
banking institutions are not required to be open in New York, New York. Copies
of any notices hereunder may be sent by e-mail, but transmission by such means
alone shall not constitute delivery of notice under SECTION 19.
21. BINDING AGREEMENT. This Agreement represents the entire
agreement among the parties hereto with respect to the matters described herein
and is binding upon and shall inure to the benefit of the parties hereto and
their legal representatives, successors and permitted assigns. This Agreement
may not be assigned and, except as stated herein, may not be altered or amended
except in writing executed by the party to be charged.
22. COUNTERPARTS. This Agreement may be executed in counterparts,
all of which, when taken together, shall constitute the entire Agreement.
23. SEVERABILITY. The provisions of this Agreement shall be
severable, so that the unenforceability, validity or legality of any one
provision shall not affect the enforceability, validity or legality of the
remaining provisions hereof.
24. NO SHOP. From the date hereof through and including the closing
of the Merger, no party to this Agreement (nor their respective agents or any of
this respective affiliates) shall directly and/or indirectly (i) enter into any
agreement or negotiations (whether oral, in writing or otherwise) with any party
(whether an affiliate or otherwise) for the direct and/or indirect purpose of
effectuating an acquisition, merger, joint venture, capital raise or similar
transaction with any third party, or (ii) take any action to or would have the
effect of negatively impacting the parties ability of effectuating the
transaction contemplated by this Agreement, except for those contemplated in
this Agreement and ▇▇▇▇ negotiating such other actions to acquire assets,
entities and related items in the oil and gas business.
25. REGISTRATION STATEMENT FILING. Within ninety (90) days following
the closing of the Merger, Noxso shall file a registration statement under the
Securities Act, as amended, to register all Noxso Merger Common Stock, the
equity securities sold in the Private Placement and the 1,135,000 shares of
Noxso's Common Stock outstanding immediately prior to the Merger. Noxso will use
its reasonable best efforts to cause such registration statement (the
"REGISTRATION STATEMENT") to become effective within ninety (90) days of its
filing with the SEC. ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇
and certain other persons owning in the aggregate
-26-
760,000 shares of Noxso Common Stock (assuming the purchase by Noxso of 275,000
shares of Noxso Common Stock pursuant to the Purchase Notes), shall agree with
Noxso in writing for a period commencing on the date of this Agreement and
terminating one (1) year from the date of Closing not to sell any of their Noxso
Common Stock except that such persons may sell immediately after the effective
date of the Registration Statement (i) twenty (20%) percent of their respective
Noxso Common Stock and (ii) such number of additional shares of their Noxso
Common Stock as shall equal not more than (a) ten (10%) percent of the weekly
trading volume of the Noxso Common Stock for the week prior to the week of any
proposed sale (the "PRIOR WEEKLY VOLUME"), if in such prior week 25,000 or less
shares of Noxso Common Stock are traded, (b) fifteen (15%) percent of the Prior
Weekly Volume if in such prior week 50,000 or less shares of Noxso Common Stock
are traded, and (c) twenty (20%) percent of the Prior Weekly Volume if in such
prior week 100,000 or less and/or more shares are traded.
26. COMMISSION REPORTING. With a view to making available the
benefits of certain rules and regulations of the Commission which may at any
time permit the sale of Noxso Common Stock to the public without registration,
from and after the Closing, the new management of Noxso will use its reasonable
best efforts:
(a) Make and keep public information available as those terms
are understood and defined in Rule 144 under the Securities Act, at all times;
(b) File with the Commission in a timely manner all reports
and other documents required of Noxso under the Securities Exchange Act of 1934;
and (c) Continue a listing with a recognized securities manual for a period of
at least three (3) years after the Closing.
27. NO PUBLIC DISCLOSURE. No party to this Agreement shall, without
each of the other parties' express written consent, make any announcement or
otherwise disclose any information regarding the Merger other than (i) a Current
Report on Form 8-K to be filed in connection with the execution of this
Agreement, or (ii) as otherwise required or deemed advisable in counsel's
opinion to ensure compliance with Noxso's public disclosure requirements under
the Federal Securities laws.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-27-
IN WITNESS WHEREOF, the parties hereto have made and executed this
Agreement as of the day and year first above written.
▇▇▇▇ ENERGY CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Vice President
NOXSO CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President
NOXSO ACQUISITION CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President
F:\WP\▇▇▇▇\TD3568.DOC
SCHEDULES
1. SCHEDULE 2(A) Name / Amount of Persons Owning ▇▇▇▇ Common Stock
2. SCHEDULE 4(A) Name / Amount of Persons Owning Noxso Common Stock
3. SCHEDULE 4(H) List of Noxso Liabilities
SCHEDULE 2(A)
NAME OF ▇▇▇▇ SHAREHOLDERS AMOUNT OF SHARES OWNED
SCHEDULE 4(H)
NAME OF NOXSO SHAREHOLDERS AMOUNT OF SHARES OWNED
SCHEDULE OF NOXSO LIABILITIES
NAME OF CREDITOR/
SERVICE PROVIDER, ETC. DOLLAR AMOUNT OWED NATURE OF OBLIGATION
--------------------- ------------------ --------------------
EXHIBIT 9(H)
OPINION OF NOXSO LEGAL COUNSEL
AMENDMENT NO. 1 TO MERGER AGREEMENT AND
PLAN OF REORGANIZATION
AMENDMENT NO. 1 TO MERGER AGREEMENT AND PLAN OF REORGANIZATION made as
of the 2nd day of May, 2002, by and among ▇▇▇▇ Energy Corporation, a Texas
corporation ("▇▇▇▇"), Noxso Corporation, a Virginia corporation ("Noxso"), and
Noxso Acquisition Corp., a Delaware corporation ("MERGERCO").
WHEREAS, ▇▇▇▇, Noxso, and Mergerco entered into a Merger Agreement and
Plan of Reorganization dated as of April 24, 2002 (the "MERGER AGREEMENT"); and
WHEREAS, the parties wish to amend certain provisions of the Merger
Agreement;
NOW, THEREFORE, in consideration of the premises, the parties hereto do
mutually agree as follows:
1. CLOSING OR TERMINATION. The June 3, 2002 date contained in
SECTIONS 11(A) AND 11(B) of the Merger Agreement is hereby changed to July 3,
2002.
2. EXPENSES. SECTION 11(C) of the Merger Agreement is hereby
amended to state as follows:
(c) Each of the parties shall bear its respective
expenses in connection with this Agreement, except that ▇▇▇▇
agrees to pay the expenses related to (i) the Private Placement,
which shall include legal and accounting expenses and filing fees
to be paid to comply with applicable state securities laws, and
(ii) the preparation and filing of Noxso's annual report on Form
10-KSB for the fiscal year ended March 31, 2002, which shall
include legal and accounting expenses. Noxso shall permit ▇▇▇▇'▇
counsel, to the greatest extent possible, to, on behalf of ▇▇▇▇,
prepare and file the document.
IN WITNESS WHEREOF, the parties hereto have made and executed this
Amendment as of the day and year first above written.
▇▇▇▇ ENERGY CORPORATION NOXSO CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------- --------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇, President
Title: Executive Vice President
NOXSO ACQUISITION CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, President
F:\WP\▇▇▇▇\TD3595.DOC
AMENDMENT NO. 2 TO MERGER AGREEMENT AND
PLAN OF REORGANIZATION
AMENDMENT NO. 2 TO MERGER AGREEMENT AND PLAN OF REORGANIZATION made as
of the 30th day of June, 2002, by and among ▇▇▇▇ Energy Corporation, a Texas
corporation ("▇▇▇▇"), Noxso Corporation, a Virginia corporation ("NOXSO"), and
Noxso Acquisition Corp., a Delaware corporation ("MERGERCO").
WHEREAS, ▇▇▇▇, Noxso, and Mergerco entered into a Merger Agreement and
Plan of Reorganization dated as of April 24, 2002 as amended by Amendment No. 1
to the Merger Agreement dated as of May 2, 2002 (collectively the "MERGER
AGREEMENT"); and
WHEREAS, the Merger Agreement provides that the closing of the
transactions contemplated therein must occur by July 3, 2002 or the parties may
terminate the Merger Agreement; and
WHEREAS, the parties have agreed that in consideration for ▇▇▇▇ paying
$6,000 to Noxso (the "LEGAL EXPENSES PAYMENT") representing certain legal fees
incurred by Noxso in connection with the transactions contemplated by the Merger
Agreement and related matters, the Merger Agreement shall be extended for an
additional thirty-one (31) days to August 3, 2002; and
NOW, THEREFORE, in consideration of the premises, the parties hereto
do mutually agree as follows:
1. CLOSING OR TERMINATION. In consideration of the payment by ▇▇▇▇
to Noxso of the Legal Expenses Payment, the July 3, 2002 Termination Date set
forth in SECTIONS 11(A) AND 11(B) of the Merger Agreement, is hereby changed to
August 3, 2002.
2. MERGER AGREEMENT REMAINS IN EFFECT. Except as amended by this
Amendment No. 2, the Merger Agreement remains in full force and effect without
any other amendments and/or changes.
IN WITNESS WHEREOF, the parties hereto have made and executed this
Amendment as of the day and year first above written.
▇▇▇▇ ENERGY CORPORATION NOXSO CORPORATION
By: By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------ -----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇, President
Title:
NOXSO ACQUISITION CORP.
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, President
F:\WP\▇▇▇▇\TF3234.DOC
