EXHIBIT 2.1
PLAN AND AGREEMENT OF MERGER
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Relating to the Merger of
INGEN TECHNOLOGIES, INC.
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Into
CREATIVE RECYCLING TECHNOLOGIES, INC.
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Dated: March 15, 2004
PLAN AND AGREEMENT OF MERGER
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This PLAN AND AGREEMENT OF MERGER ("Agreement") entered into this 29th day of
March 2004, by and among INGEN TECHNOLOGIES, INC., a Nevada corporation ("ITI")
and CREATIVE RECYCLING TECHNOLOGIES, INC., a Georgia corporation ("CRTZ") (ITI
and CRTZ are sometimes collectively referred to herein as the "Constituent
Corporations").
BACKGROUND OF AGREEMENT
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WHEREAS, ITI is a corporation organized under the laws of the State of Nevada.
ITI has authorized capital of 15,000,000 shares of common stock, par value $0.01
per share, of which approximately 13,778,600 shares are issued and outstanding.
WHEREAS, CRTZ is a corporation organized under the laws of the State of Georgia.
The authorized stock of CRTZ consists of 1,800,000,000 shares of common stock
Class A authorized, with no par value, of which 10,844,190 shares are validly
issued and outstanding; Common Stock Class B, no par value, 200,000,000 shares
authorized, 200,000 shares issued and outstanding; Preferred Stock, Series A,
convertible, 20 shares authorized, 14 shares issued and outstanding; and,
Preferred Stock, Series B Convertible, stated value $15.00, 12,000 shares
authorized, 2,918 issued and outstanding.
WHEREAS, ITI proposes to merge into CRTZ, with shareholders of ITI (sometimes
hereinafter referred to as "Shareholders") surrendering their ITI stock in
exchange for common stock of CRTZ.
WHEREAS, the Boards of Directors of ITI and CRTZ have determined that a merger
of ITI into CRTZ is in the best interests of ITI and CRTZ, and such companies
desire to set forth in this Agreement their entire agreement respecting such
merger (sometimes hereinafter "Merger").
WHEREAS, the parties intend that the Merger qualify as a tax-free reorganization
within the meaning Of the provisions of Section 368 of the Internal Revenue Code
of 1986, as amended from time to time (the "Code").
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the parties hereto, intending to be legally bound hereby, agree as
follows:
ARTICLE I
MERGER
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SECTION 1.1 CLOSING.
The closing of the transaction contemplated by this Agreement shall take place
no later than one (1) business day after all conditions necessary to consummate
the Merger, as provided in this Agreement, have been complied with and the
approvals described in Section 4.1 and 4.2 have been obtained ("Closing") at the
offices of Ingen Technologies, Inc. 000 X. Xxxxxx Xxxx Xx., Xxxxxxxx, XX 00000
or such other place or date as the parties hereto may agree to in writing, at
which time the documents referred to in Articles VIII and IX will be exchanged
and, immediately thereafter, the filing of a Certificate of Merger and Articles
of Merger (as described in Section 4.3) will be performed.
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SECTION 1.2 MERGER.
ITI and a wholly owned subsidiary of CRTZ ("Merger Subsidiary") shall be merged
on the Effective Date, as defined in Section 4.4, into a single corporation in
accordance with the applicable provisions of the Nevada Corporation Code, by ITI
merging into Merger Subsidiary, the surviving corporation. (The Merger
Subsidiary shall sometimes hereinafter be referred to as the "Surviving
Corporation"). The separate existence of ITI shall cease upon the Effective
Date, and the Merger Subsidiary of CRTZ shall thereafter possess all of the
rights, privileges, immunities, powers, licenses, permits and franchises, both
of public and private nature, and all the property, real, personal and mixed,
all debts due on any account and all choices in action belonging to or inuring
to either of the Constituent Corporations, and shall be subject to all the
restrictions, disabilities and duties of each of the Constituent Corporations.
Any claim existing or action or proceeding pending by or against either of the
Constituent Corporations may be prosecuted as if the Merger had not taken place
or CRTZ may be substituted in its place. Neither the rights of creditors nor any
liens upon the property of either of the Constituent Corporations shall be
impaired by the Merger.
ARTICLE II
ARTICLES. BYLAWS, DIRECTORS AND OFFICERS
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SECTION 2.1 MERGER SUBSIDIARY ARTICLES AND BYLAWS.
The Articles of Incorporation and Bylaws of Merger Subsidiary as in effect on
the Effective Date shall continue in full force and effect, unless and until
subsequently amended, as the articles of incorporation and by laws of the
Surviving Corporation. However, CRTZ shall change its corporate name to "Ingen
Technologies, Inc.".
SECTION 2.2 CRTZ'S DIRECTORS AND OFFICERS.
The directors and officers of CRTZ in office on the Effective Date shall resign
as the directors and officers of the Surviving Corporation upon the Closing
hereunder and their successors shall be duly elected and qualified pursuant to
Section 2.3 below.
SECTION 2.3 ITI REPRESENTATION ON CRTZ BOARD.
Upon Closing hereunder and consummation of the Merger, the individuals who shall
serve as the Board of Directors of CRTZ in accordance with the Bylaws of the
Surviving Corporation shall be Xxxxx X. Sand, Chairman and CEO, and Xxxxxx X.
Xxxxxxx, Secretary.
ARTICLE III
CONVERSION, EXCHANGE AND CANCELLATION OF SHARES
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SECTION 3.1 CRTZ CAPITAL STOCK.
As of Closing hereunder, there shall be a total of 14,344,190 shares of Common
Series A CRTZ capital stock and no other common series or preferred stock
outstanding before issuance of stock to holders of ITI common stock as a result
of the subject Merger.
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Upon the Effective Date, each share of common stock of ITI which shall be issued
and outstanding immediately prior thereto, other than Dissenting Shares as
defined in Section 3.5, by reason of the Merger shall be converted automatically
into the right to receive a preferred share that is equal to five (5) shares of
CRTZ common stock for each one (1) share of common stock of ITI held immediately
prior thereto. The CRTZ Stock shall be registered in the name of, and in each
case delivered to, the holder of such ITI common stock on the Effective Date or
thereafter (as provided in Section 3.3 hereof) upon surrender of their share
certificate(s) of ITI stock (ITI Certificate) in proper form endorsed in blank,
or such lost certificate affidavits and bonds as are deemed appropriate by
CRTZ's officers.
SECTION 3.2 TREASURY SHARES.
Each share of ITI common stock, if any, held in the treasury of ITI shall, by
virtue of the Merger, be canceled and cease to exist, and no payment shall be
made with respect to such stock.
SECTION 3.3 EXCHANGE OF SHARES.
(a) DEPOSIT OF STOCK. On the Effective Date, or promptly thereafter, CR17 shall
make available, by transferring to the Surviving Corporation or its stock
transfer agent shares of CRTZ stock issued In exchange for outstanding shares of
common stock of ITI.
(b) SURRENDER AND EXCHANGE OF CERTIFICATES. On the Effective Date or as soon as
practicable thereafter, the CRTZ shall mail to each holder of record of ITI
Certificates and CRTX Certificates (i) a form letter of transmittal, and (ii)
instructions for the surrender of the ITI Certificate and the old CRTZ
Certificates in exchange for new certificates representing renamed and merged
CRTZ and Ingen Technologies, Inc. Stock.
Upon surrender Of the ITI Certificate and the old CRTZ Certificates to the
Surviving Corporation for cancellation or, if an Exchange Agent has been
designated, to the Exchange Agent or to another agent or agents selected by ITI,
together with the letter of transmittal, duly executed and completed, the holder
of the ITI Certificate shall be entitled to receive, in exchange, a certificate
representing that number of shares of CRTZ Stock into which the shares of ITI
Stock represented by the surrendered certificates were converted under the
provisions of this Article III, and the surrendered ITI Certificate shall
forthwith be canceled. The holder of old CRTZ Certificates will be issued a new
Certificate for the equal number of shares surrendered.
(c) DIVDENDS. No dividends or other distributions in respect of CRTZ Stock
declared after the Effective Date for CRTZ Stock and payable to holders of
record after the Effective Date shall be paid to the holder of any unsurrendered
ITl Certificate for the shares of CRTZ Stock until the holder of record
surrenders the ITI Certificate. Subject to the effect, if any, of applicable
law, after the subsequent surrender and exchange of am Certificate, the holder
shall be entitled to receive any dividends or other distributions, without
interest, which previously became payable for shares of CRTZ Stock represented
by the ITI Certificate.
(d) SHARE TRANSFERS PRIOR TO EXCHANGE. If any certificate representing shares of
CRTZ Stock is to be issued in a name, other than that in which the ITI
Certificate surrendered is registered, it shall be a condition of such
registration that the surrendered ITI Certificate shall be properly endorsed or
otherwise in proper form for transfer. In addition, the person requesting such
registration shall pay any transfer or other taxes required by reason of the
payment to a person other than the registered holder of the surrendered ITI
Certificate or establish to the satisfaction of the Surviving Corporation that
the tax has been paid or is not applicable.
(e) EFFECT OF SHARE EXCHANGE. All shares of CRTZ Stock for which shares of
common stock of ITI are exchanged shall be deemed to have been issued in full
satisfaction of all rights pertaining to the exchanged shares of common stock of
ITI.
(f) FRACTIONAL SHARES. No fractional shares of CRTZ Stock will be issued in
connection with the exchange, and no certificate for a fractional share of CRTZ
Stock will be issued. Each holder of a ITI certificate shall receive the number
of whole shares to which the holder is entitled under Section 3.1 of this
Agreement, rounded up or down to the nearest whole number or, if the fraction is
equal to 0.5, to the next greatest whole number. Each holder of an ITI
Certificate shall receive at least one share of CRTZ Stock.
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(g) COMPANY STOCK TRANSFER BOOKS. After the Effective Date, there shall be no
further registration of transfers on the stock transfer books of the Surviving
Corporation of the shares of common stock of ITI which were outstanding
immediately prior to the Effective Date. If, after the Effective Date, ITI
Certificates representing ITI common stock shares are, presented to the
Surviving Corporation, they shall be canceled and exchanged for CRTZ Stock as
provided in this Article III.
SECTION 3.4 ADJUSTMENTS.
If, between the date of this Agreement and the Effective Date the outstanding
shares of common stock of ITI (13,778,600 shares) or the CRTZ Stock (10,844,190
shares), as the case may be, change into a different number of shares or a
different class by reason of any issuance or cancellation of shares or any
reclassification, recapitalization, split-up, combination, exchange of shares or
readjustment, or due to a stock dividend declared with a record date within said
time period ("Adjustment Event"), then the number and class of shares of CRTZ
Stock to be issued and delivered in the Merger in exchange for each outstanding
share of common stock of ITI shall be appropriately adjusted upon the Adjustment
Event Section 3.5 Dissenting Shares.
Notwithstanding anything in this Agreement to the contrary, except as otherwise
provided by applicable law, shares of common stock of ITI that are outstanding
immediately prior to the Effective Date and that are held by stockholders who,
prior to the taking of the vote of the stockholders of ITI on the Merger, have
filed with ITI a written objection to the Merger, who have not voted the shares
in favor of the Merger, and who, after the taking of the vote, properly demanded
payment for the shares in accordance with the Maryland Corporation Code (the
"Dissenting Shares") shall not be exchangeable for the right to receive the
consideration provided in Section 3.1 of this Agreement. The holders of
Dissenting Shares shall be entitled to payment for the shares under the
applicable provision of the Nevada Corporation Code. However, if:
(a) Any holder of Dissenting Shares subsequently delivers a written withdrawal
of the holder's demand for appraisal of the shares (with the written approval of
CRTZ, if the withdrawal is not tendered within 60 days after the taking of the
vote), or
(b) Any holder fails to establish the holders entitlement to appraisal rights as
provided in the Maryland Corporation Code, or
(c) Neither any holder of Dissenting Shares nor the Surviving Corporation has
filed a petition demanding a determination of the value of all Dissenting Shares
within the time provided in the Maryland Corporation Code, the holder or holders
(as the case may be) shall forfeit the right to appraisal of the shares and the
shares shall then be deemed converted into, and to have been exchanged for, as
of the Effective Date, CRTZ Shares as provided in Section 3.1 of this Agreement,
without interest, upon surrender of the ITI certificate representing the
Dissenting Shares.
ARTICLE IV
MERGER PROCEDURE
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SECTION 4.1 APPROVAL BY ITI SHAREHOLDERS.
This Agreement shall be submitted to the ITI Shareholders for their approval at
a meeting to be held as soon as practicable after all disclosure filings and
other legal procedures required to be done, held, performed or accomplished
prior thereto have been properly and lawfully done, held, performed or
accomplished.
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SECTION 4.2 APPROVAL BY CRTZ SHAREHOLDERS.
This Agreement shall be submitted to the CRTZ shareholders for their approval at
a meeting to be held as soon as practicable after all disclosures, filings and
other legal procedures required to be done, held, performed and accomplished
prior thereto have been properly and lawfully done, held, performed or
accomplished. Section 4.3 Filing of Articles of Merger.
Forthwith upon the approval of this Agreement by the Shareholders of CRTZ and
has provided in Sections 4.1 and 4.2 hereof and change of CRTZ's corporate name
as provided in Section 2.1, if the Agreement has not then been terminated
pursuant to Article XI hereof, then Articles of Merger shall be filed by ITI and
recorded in accordance with the General and Business Corporation Law of
Maryland. Such documents, duly executed by the proper officers of the
Constituent Corporations, shall be held in the interim by a law firm selected
by ITI for dating and filing by that firm, without further instructions, upon
being advised that the approvals referred to in Sections 4.1 and 4.2 have been
obtained. The function of such law firm shall be purely ministerial and each
party hereto shall indemnify and hold such firm harmless from any conduct
consistent herewith. Section 4.4 Effective Date.
The Merger contemplated hereunder shall become effective at 5:00 p.m., Eastern
Standard Time, on the date on which both the Certificate of Merger has been
filed with the Secretary of State of Georgia and the Articles of Merger have
been filed with the Secretary of State of Georgia ("Effective Date").
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF ITI
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In order to induce CRTZ to enter into this Agreement and to consummate the
transactions contemplated hereby, ITI makes the following representations and
warranties to CRTZ:
SECTION 5.1 ORGANIZATION AND GOOD STANDING.
ITI is a corporation, duly organized, validly existing and in good standing
under the laws of the State of Nevada. ITI has no subsidiary or affiliated
companies. ITI has the power to carry on its business as and where conducted and
is entitled to own, lease or operate its business assets. ITI has delivered to
CRTZ complete and correct copies of its Articles of Incorporation, as amended,
and Bylaws, as amended, and In effect on the date of this Agreement. As of the
Effective Date the entire issued and outstanding capital stock of ITI shall
consist of the shares of common stock referred to in Schedule 5.1 held by the
Shareholders, and ITI shall not, as of such date, have any outstanding stock
options, warrants, or other obligations to issue its capital stock, except as
listed on Schedule 5.1.
SECTION 5.2 AUTHORIZATION OF AGREEMENT
This Agreement and all other agreements and Instruments to be executed in
connection herewith have been authorized by all requisite corporate action on
the part of ITI, have been duly executed and delivered him and, upon approval by
the Shareholders, shall constitute the legal, valid and binding obligation of
ITI enforceable in accordance with their respective terms.
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SECTION 5.3 OWNERSHIP OF SHARES.
The capitalization of ITI is set forth on Schedule 5.1. The Shareholders listed
on Schedule 5.1 are the lawful owners of all issued and outstanding shares of
capital stock of ITI in the denominations therein set forth, and have full power
and authority to approve this Agreement. Each issued share is validly issued,
fully paid, nonassessable and each outstanding share is entitled to one vote. No
shares were issued in violation of preemptive rights. Such shares are owned free
and clear of all liens, mortgages, pledges, security interests, restrictions,
prior assignments, spouses' rights, encumbrances and claims of any kind or
nature whatsoever, except as set forth on Schedule 5.1. As of the Effective
Date, ITI shall not have any outstanding stock options, warrants, or other
obligations to issue its capital stock.
SECTION 5.4 FINANCIAL STATEMENTS.
ITI is a recently operational entity and therefore has delivered to CRTZ the
following unaudited financial statements for the year ending December 31, 2004;
(a) Balance Sheet
(b) Statement of Operations
(c) Statement of Shareholders' Equity
All such financial reports are true and complete as of their respective dates,
and have been prepared in accordance with generally accepted accounting
principles and practices consistently applied, except as otherwise indicated in
the footnotes thereto. Each such report sets forth fairly and accurately as of
its date ITI's financial condition, results in operations and assets and
liabilities for the period then ended. Except as set forth on Schedule 5.4, on
the dates hereof and as of the Effective Date, there is and will have been no
material adverse change in the condition of ITI since December31, 2004.
SECTION 5.5 LITIGATION.
Except as listed on Schedule 5.5, there is no claim, action, investigation, suit
or proceeding of any nature pending before any court or governmental agency,
authority or body and, to the best of the knowledge of ITI, there is no such
claim, action, investigation, suit or proceeding threatened or contemplated by
any third party which, if it were to result in a decision adverse to ITI, would
materially and adversely affect the business operations, properties, assets or
conditions of ITI. Neither ITI nor its business and assets are subject to or
directly affected by any order, judgment, decree or ruling of any court or
governmental agency, except any of the foregoing as they may be of general
application to businesses similar to that conducted by ITI.
SECTION 5.6 NO CONFLICT WITH OTHER INSTRUMENTS.
As of the Effective Date, the consummation of the transactions contemplated
by this Agreement will not result in the breach of any term or provision of or
constitute a default under any indenture, mortgage, deed of trust, or other
material agreement or instrument to which ITI is a party.
SECTION 5.7 LICENSES AND PERMITS: GOVERNMENTAL AUTHORIZATIONS.
ITI has all licenses, franchises, permits, approvals and other governmental
authorizations necessary for the conduct of its business operations.
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ARTICLE VI
ADDITIONAL COVENANTS AND AGREEMENTS OF ITI
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ITI hereby covenants and agrees to the following, the fulfillment of each of
which shall constitute, at and as of the Effective Date, a condition precedent
to the obligations of CRTZ hereunder:
SECTION 6.1 EXISTENCE. RIGHTS AND FRANCHISES.
From and after the date of this Agreement and until the Effective Date, ITI
shall comply with all applicable laws and regulations, take all necessary
actions to keep in full force and effect its existence, rights and franchises,
and shall not amend its articles of incorporation or bylaws except as may be
necessary to carry out the provisions of this Agreement.
SECTION 6.2 CONDUCT OF BUSINESS BEFORE THE CLOSING.
From and after the date of this Agreement and until the Effective Date:
(a) DILIGENT CONDUCT. Except as consented to by CRTZ, ITI shall conduct its
business diligently In the ordinary course. ITI shall use its best efforts to
preserve its business organization intact, to keep available to CRTZ the
services of ITI's present officers and to preserve for the benefit of CRTZ the
goodwill of ITI's suppliers, customers and others having business relations with
ITI.
(b) PROPERTIES AND ASSETS. ITI shall not, without the prior written consent of
CRTZ, sell or transfer any of its assets, other than in the ordinary course of
business or subject any of its assets to any mortgage, pledge, lien, charge or
encumbrance of any kind.
(c) CONTRACTS: LIABILITIES. ITI shall not, without the prior written consent of
CRTZ: (i) amend, alter or terminate any contract to which it is a part except in
the ordinary course of business, (ii) enter into or become a party to any plan,
contract or agreement except in the ordinary course of business; (iii) borrow or
agree to borrow any funds, or otherwise become subject to, byway of guarantee or
otherwise, any Obligations or liability except in the ordinary course of
business and consistent with past practice; or (iv) pay or discharge any claim,
liability or obligation, except in the ordinary course of business and
consistent with past practice.
(d) DISTRIBUTIONS. Except as set forth on Schedule 6.2(d) hereto, ITI shall
continue to not make any distributions with respect to or in redemption or
partial redemption of any of its shares of capital stock, or any payment of any
indebtedness to shareholders or any bonus or other increases in compensation to
employees, including without limitation employees who are shareholders, except
compensation in the ordinary course of business. ITI may continue any payment
towards any/all promissory notes to valid shareholders.
SECTION 6.3 ACCESS AND INFORMATION.
ITI will afford to CRTZ and its counsel, accountants and other representatives
reasonable access to the books, records and assets of ITI and shall furnish to
CRTZ and its counsel, accountants and other representatives all information
which CRTZ may reasonably request.
SECTION 6.4 SHAREHOLDER APPROVAL.
ITI covenants to (i) comply with the provisions of Section 4.1 hereof; (ii) use
its best efforts to take all corporate action and obtain all waivers and
consents necessary to effectuate the provisions of this Agreement; (iii) use its
best efforts to insure that the Shareholders approve the Merger provided for
herein; and (iv) insure that each member of its Board of Directors votes his
shares of ITI, and encourage all other Shareholders to vote their shares, in
favor of such Merger.
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ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF CRTZ
--------------------------------------
In order to induce ITI to enter into this Agreement and to consummate the
transactions contemplated hereby, CRTZ makes the following representations and
warranties to ITI:
SECTION 7.1 ORGANIZATION AND GOOD STANDING: CAPITAL.
CRTZ is a corporation duly organized and validly existing and in good standing
under the laws of the State of Georgia. CRTZ has no existing subsidiary or
affiliated companies, except the Merger Subsidiary to be formed pursuant to this
Agreement. CRTZ has the power to carry on its business as and where conducted,
and is entitled to own, lease, or operate its business assets. CRTZ has
delivered to ITI complete and correct copies Of the articles of incorporation,
as amended, and bylaws of CRTZ as in effect on the date of this Agreement. As of
the Effective Date, the entire issued and outstanding capital stock of CRTZ
shall consist of the shares of common stock referred to in Schedule 7.3 held by
the Shareholders, and CRTZ shall not, as of such date, have any outstanding
stock options, warrants or other obligations to issue its capital stock except
as listed on Schedule 7.3.
SECTION 7.2 AUTHORIZATION OF AGREEMENT.
This Agreement and all other agreements and instruments to be executed in
connection herewith have been duly authorized by all requisite corporate action
on the part of CRTZ, have been duly executed and delivered by CRTZ and shall
constitute the legal, valid and binding obligations of CRTZ enforceable in
accordance with their respective terms.
SECTION 7.3 SHAREHOLDER APPROVAL.
CRTZ covenants to (i) comply with the provisions of Section 42 hereof; (ii) use
its best efforts to take all corporate action and obtain all waivers and
consents necessary to effectuate the provisions of this Agreement; (iii) use Its
best efforts to insure that the Shareholders approve the Merger provided for
herein; and (iv) insure that each member of its Board of Directors votes his
shares of CRTZ, and encourage all other Shareholders to vote their shares, in
favor of such Merger.
SECTION 7.4 ISSUANCE OF CRTZ STOCK.
CRTZ has full power and authority to issue the CRTZ Stock to the Shareholders
under this Agreement. When issued, the CRTZ Common Stock will be fully paid,
nonassessable, each share entitled to one (1) vote, free and clear of all liens,
mortgages, pledges, security interests, restrictions, prior assignments,
encumbrances and claims of any kind or nature whatsoever, except as otherwise
set forth on Schedule 7.4 and each share shall be registered and fully
transferable in the public market in compliance with all securities laws and
regulations.
SECTION 7.5 FINANCIAL STATEMENTS.
CRTZ has delivered to ITI the following audited financial statements for year
ending June 30, 1997,
(a) Balance Sheet
(b) Statement of Income
(c) Statement of Shareholders' Equity
(d) U.S. Securities Exchange Commission's Form 10KSB For the Fiscal Year Ending
June 30, 1997
All such financial reports are true and complete as of their respective dates,
and have been prepared in accordance with generally accepted accounting
principles and practices consistently applied, except as otherwise indicated in
the notes thereto. Each such report sets forth fairly and accurately as of its
date CRTZ's financial condition, results of operations and assets and
liabilities for the period then ended.
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SECTION 7.6 LITIGATION.
Except as set forth on Schedule 7.6, as of the Effective Date there are no
claims, actions, investigations, suits or proceedings pending before any court
or governmental agency, authority or body and, to the best of the knowledge of
CRTZ, there are no such actions, suits or proceedings threatened or contemplated
by any third party which would materially and adversely affect the business
operations, properties, assets or conditions of CRTZ. Neither CRTZ nor its
business and assets are subject to or directly affected by any order, judgment,
decree or ruling of any court or governmental agency, except any of the
foregoing as they may be of general application to businesses similar to that
conducted by CRTZ.
SECTION 7.7 NO CONFLICT WITH OTHER INSTRUMENTS.
As of the Effective Date, the consummation of the transactions contemplated by
this Agreement will not result in the breach of any term or provision of or
constitute a default under any Indenture, mortgage, deed of trust, or other
material agreement or instrument to which CRTZ is a party.
SECTION 7.8 EMPLOYEE RELATIONS..
Except as set forth in Schedule 7.8, CRTZ has no written employment agreements,
collective bargaining agreements, retirement, welfare, pension, profit sharing,
compensation, bonus, hospitalization, vacation or other employee benefit plan,
practice, agreement or undertaking, and no oral employment contracts obligating
CRTZ beyond the minimum requirements imposed on an employer under applicable
state or federal law. Except as set forth on Schedule 7.6, CRTZ has not ceased
operation at any facility or withdrawn from or terminated any pension plan or
other employee benefit plan in a manner which could subject it to liability
under the Employee Retirement Income Security Act of 1974, as amended ("ERISA").
SECTION 7.9 LIABILITIES AND CONTRACTUAL COMMITMENTS.
Except as reflected on the financial statements listed in Section 7.5 or in any
other schedule or exhibit to, or provisions of this Agreement, and other than
open purchase orders and other obligations entered into in the ordinary course
of business, CRTZ has no undisclosed liabilities or contractual commitments,
whether accrued, absolute, contingent or otherwise, to any third party or any
shareholder, director or employee of CRTZ, other than those set forth on
Schedule 7.9.
SECTION 7.10 BROKERAGE AND FINDERS FEES.
There is no broker, investment banker or finder involved on behalf of or by CR17
or any of its officers or directors, in connection with the transaction
contemplated under this Agreement. To the extent of any such claims contrary to
this representation, CRTZ shall be responsible for same.
ARTICLE VIII
COVENANTS AND AGREEMENTS OF CRTZ
--------------------------------
CRTZ hereby covenants and agrees to the following, the fulfillment of each of
which shall constitute a condition precedent to the obligations of ITI
hereunder.
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SECTION 8.1 CORPORATE EXISTENCE, RIGHTS AND FRANCHISES.
Between the date hereof and the Effective Date, CRTZ shall take all necessary
actions to keep in full force and effect its corporate existence, rights and
franchises. CRTZ shall by the Effective Date have changed its name from
"CREATIVE RECYCLING TECHNOLOGIES, INC." to "INGEN TECHNOLOGIES, INC.
CORPORATION."
SECTION 8.2 ACCESS AND INFORMATION.
CRTZ will afford to ITI, its counsel, accountants and other representatives
reasonable access to the books, records, and assets of CRTZ and shall furnish to
ITI and its counsel, accountants, and other representatives all information
which ITI may reasonably request.
ARTICLE IX
CONDITIONS PRECEDENT TO OBLIGATIONS OF CRTZ
-------------------------------------------
The Closing shall not take place unless all of the following conditions not
waived by CRTZ have been fulfilled before, or will be fulfilled on, the
Effective Date.
SECTION 9.1 CORRECTNESS OF REPRESENTATIONS AND WARRANTIES.
All the representations and warranties of ITI contained in this Agreement shall
be true and accurate in all material respects on the Effective Date with the
same material effect as if made on the Effective Date, and CRTZ shall have
received a certificate to that effect dated the Effective Date and executed by
the President of ITI.
SECTION 9.2 PERFORMANCE OF COVENANTS AND AGREEMENTS.
All of the covenants and agreements of ITI contained in this Agreement and
required to be performed before the Effective Date shall have been performed in
all material respects, and CRTZ shall have received a certificate to that effect
dated the Effective Date executed by the President of ITI.
SECTION 9.3 APPROVALS.
(a) SHAREHOLDERS. This Plan and Agreement of Merger shall have been duly
approved by the vote of the Shareholders in accordance with applicable law and
the Articles of Incorporation and Bylaws of ITI.
(b) THIRD PARTIES: REGULATORY BODIES. All notices to, declarations of filing
with and authorizations, consents, orders, registrations, or approvals
("Approvals") from, third parties and governmental agencies (copies of which
shall be provided to the other parties) required to complete the transactions
contemplated or planned pursuant to this Agreement or necessary to maintain in
full force and effect all agreements under which ITI operates or is bound shall
have been delivered, made or obtained.
(c) COMPANY BOARD OF DIRECTORS. All action required to be taken by the Board of
Directors of ITI to authorize the execution, delivery and performance of this
Agreement and the completion of the transactions planned under this Agreement
have been duly and validly taken by the Board of Directors of ITI.
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SECTION 9.4 DELIVERY OF DOCUMENTS BY ITI.
CRTZ shall have received on or prior to the Effective Date copies of all stock
books, minute books, tax returns, financial records, and all material
agreements, records and documents pertaining to the business and organization of
ITI.
SECTION 9.5 ADVERSE CHANGES.
No material adverse changes shall have occurred in the financial condition,
working capital, assets liabilities reserves, business, sales, customer list,
operations, or prospects or ITI since the date of the financial statements
contained in Schedule 5.4.
SECTION 9.6 NO GOVERNMENTAL PROCEEDING OR LITIGATION.
No suit, action; investigation, inquiry or other proceeding by any governmental
body has been instituted or threatened which questions the validity or legality
of the transactions planned under this Agreement or which, if successfully
asserted, would otherwise have a material adverse effect on the conduct of ITI's
business assets or on its properties, or would impose any material imitation on
the ability of CRTZ effectively to exercise full rights of ownership of ITI or
the assets or business of ITI.
ARTICLE X
CONDITIONS PRECEDENT TO OBLIGATIONS OF ITI
------------------------------------------
The Closing shall not take place unless all of the following conditions not
waived by ITI have been fulfilled before, or will be fulfilled on, the Effective
Date:
SECTION 10.1 CORRECTIVENESS OF REPRESENTATIONS AND WARRANTIES.
All the representations and warranties of CRTZ contained in this Agreement shall
be true and accurate in all material respects on the Effective Date with the
same material effect as if made on the Effective Date, and ITI shall have
received a certificate to that effect dated the Effective Date and executed by
the President of CRTZ.
SECTION 10.2 PERFORMANCE OF COVENANTS AND AGREEMENTS.
All of the covenants and agreements of CRTZ contained in this Agreement and
required to be performed before the Effective Date shall have been performed in
all material respects, and ITI shall have received a certificate to that effect
dated the Effective Date executed by the President of CRTZ.
SECTION 10.3 RESOLUTIONS OF CRTZ.
All action required to be taken by the Board of Directors of CRTZ to authorize
the execution, delivery and performance of this Agreement and the completion of
the transaction planned under this Agreement have been duly and validly taken by
the Board of Directors of CRTZ.
SECTION 10.4 APPROVALS.
The requisite approval of the Shareholders of CRTZ has been obtained, and the
other notices, declarations, filings, authorizations, consents, orders, and
approvals referred to in Section 9.3 (copies of which shall be provided to the
other parties) have been delivered, made or obtained.
SECTION 10.5 ADVERSE CHANGES.
No material adverse changes shall have occurred in the financial condition,
working capital, assets, liabilities, reserves, business, operations, or
prospects of CRTZ taken as a whole since the date of CRTZ's financial statements
listed in Schedule 7.4.
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SECTION 10.6 NO GOVERNMENTAL PROCEEDING OR LITIGATION.
No suit, action, investigation, inquiry or other proceeding by any governmental
body has been instituted or threatened which questions the validity or legality
of the transactions planned under this Agreement or which, if successfully
asserted, would otherwise have a material adverse effect on the conduct of
CRTZ's business assets or on its properties. ITI shall cooperate with CRTZ in
using their reasonable efforts to satisfy any such condition to completion of
the Merger.
ARTICLE XI
TERMINATION
-----------
In the event that either CRTZ or ITI shall refuse to dose the transactions
contemplated in this Agreement by reason of the failure of any condition
precedent to closing set forth in Articles IX and X (absent waiver by the
applicable party thereunder), then this Agreement shall terminate and neither
party shall have any obligation or liability to the other, hereunder by reason
of any provision hereof or any actions taken in contemplation or anticipation of
the Closing.
ARTICLE XII
INDEMNIFICATION
---------------
SECTION 12.1 INDEMNIFICATION BY CRTZ.
From and after the Closing, CRTZ and its successors and assigns shall indemnify
and hold ITI and its' directors, officers, employees, agents, counsel, assigns
or representatives harmless from and against any and all losses, liabilities,
obligations, damages (whether actual, punitive or consequential), deficiencies,
costs or expenses (including interest, penalties and reasonable attorney's fees
and disbursements), arising from, asserted against or associated with:
(a) A breach of any representation or warranty made by CRTZ herein;
(b) Failure by CRTZ to perform any covenant, obligation or agreement made
herein; or
(c) The past, present or future operations of CRTZ.
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ARTICLE XIII
MISCELLANEOUS PROVISIONS
------------------------
SECTION 13.1 APPLICATION.
This Agreement shall be construed and enforced in accordance with the laws of
the State of Nevada, except as to any technical Maryland requirement of
corporate merger pertaining to ITI.
SECTION 13.2 NOTICES.
All notices, requests, demands and other communications called for or
contemplated hereunder shall be in writing and shall be deemed to have been duly
given when (i) hand delivered; (ii) sent by telegram, telecopier, telex or wire
following by confirmatory letter; or (iii) sent by United States certified or
registered mail, postage prepaid, addressed to the parties, their successors in
interest, or their assignees at the following addresses (or at such other
addresses as the parties may designate by like written notice):
CRTZ: Xxxxxx X. Xxxxxx
000 Xxxxxx Xxxx
Xxxxxx, XX 00000
ITI: Xxxxx X. Sand
Chairman and CEO
Ingen Technologies, Inc.
000 X. Xxxxxx Xxxx Xx.
Xxxxxxxx, XX 00000
SECTION 13.3 PAYMENT OF EXPENSES.
Each party shall pay all fees and expenses incurred by it in connection with the
preparation, negotiation, execution, delivery and completion of this Agreement
and the transactions contemplated hereunder.
SECTION 13.4 ASSIGNMENT.
This Agreement shall not be assignable by any party without the written consent
of the other party hereto.
SECTION 13.5 AMENDMENT AND WAIVER.
Subject to the applicable law, this Agreement may be amended, modified, and
supplemented at anytime prior to or at the closing, whether before or after the
votes of the shareholders of ITI and CRTZ, by written agreement approved by the
Board of Directors of CRTZ and ITI; provided, however, that alter the votes of
shareholders of CRTZ and ITI no such amendment, modification or supplement may
be made which in any way materially adversely affects the rights of any class of
shareholders without a further vote by the affected shareholders to approve such
amendment, modification or supplement.
The conditions to each of the parties' obligations to consummate the Merger are
for the sole benefit of such party and may be waived by such party in whole or
in part to the extent permitted by applicable law; provided, however, that any
waiver by a party must be in writing.
14
SECTION 13.6 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All representations and warranties made hereunder by the parties hereto shall
survive the Closing and any investigation at anytime made by or on behalf of the
parties hereto. All representations and warranties herein which are made to the
best knowledge of a party shall require that such party make reasonable
investigation and inquiry with respect thereto to ascertain the correctness and
validity thereof.
SECTION 13.7 COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
SECTION 13.8 CAPTIONS.
Captions used herein are for convenience of reference only; such captions are
not a part hereof and shall not be used in construing this Agreement.
SECTION 13.9 REFERENCES TO SECTIONS.
References to articles and sections herein include all subsections subsidiary to
the sections referred to.
SECTION 13.10 ENTIRE AGREEMENT.
This Agreement contains the entire agreement of the parties regarding the
subject matter hereof. It supersedes any and all other agreements, either oral
or in writing, between the parties hereto with respect to the subject matter of
this Agreement. Each party to this Agreement acknowledges that no
representations, inducements, promises or agreements, oral or otherwise, have
been made by any party, or anyone acting on behalf of any party, which are not
embodied herein, and that no other agreement, statement or promise with respect
to the subject matter hereof not contained in this Agreement shall be valid or
binding.
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SECTION 13.11 WORD MEANINGS.
Any reference herein to the singular form of a word shall include reference to
the plural form thereof, and any reference herein to the plural form of a word
shall include reference to the singular form thereof, as the context may
require. Words such as "herein", "hereinafter", "hereof, and "hereunder" refer
to this Agreement as a whole and not merely to a subdivision in which such words
appear unless the context otherwise requires.
SECTION 13.12 EXHIBITS. SCHEDULES AND ATTACHMENTS.
Each exhibit, schedule and attachment to this Agreement is incorporated herein
by reference for all purposes.
SECTION 13.13 FURTHER ASSURANCES. DOCUMENTS.
Each party hereto agrees to use their best efforts to perform any further act,
to cooperate with the other parties and to execute, deliver and file any further
documents and instruments that may be reasonably necessary to carry out the
provisions of this Agreement and the transactions contemplated hereby as soon as
reasonably practicable.
IN WITNESS WHEREOF, the parties have executed or caused this Agreement to be
signed by their respective duly authorized officers on the date first mentioned
above.
Creative Recycling Technologies, Inc.
BY: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Xxxxxx X. Xxxxxx, President
Ingen Technologies, Inc.
BY: /s/ Xxxxx X. Sand
-------------------------------------
Xxxxx X. Sand, Chairman & CEO
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LIST OF SCHEDULES
-----------------
Schedule 5.1 Shares and Shareholders of ITI Common Stock Issued as of
Effective Date
Schedule 5.4 ITI Financial Statements - Material Changes, if any
Schedule 5.5 Litigation - ITI
Schedule 6.2(d) ITI Contemplated Distributions With Respect to Stock/
Indebtedness to Shareholders, etc.
Schedule 7.4 Shares and Shareholders of CRTZ Common Stock Issued as of
Effective Date
Schedule 7.5 CRTZ Financial Statements - Material Changes, if any
Schedule 7.6 Litigation - CRTZ
Schedule 7.9 CRTZ Liabilities Other Than Shown on Financial Statements
