AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement"), dated as of May 17, 1996 by
and among
WATER-JEL TECHNOLOGIES, INC., a New York corporation ("WJI"),
JOURNEYCRAFT, INC., a New York corporation ("JCI"),
THERACOM, INC., a New York corporation ("THI"),
JCI ACQUISITION CORPORATION, a New York corporation and wholly owned subsidiary
of WJI ("JCI Subsidiary"),
THI ACQUISITION CORPORATION, a New York corporation and wholly owned subsidiary
of WJI ("THI Subsidiary"), and
WERNER HAASE, having an office c/o JCI ("Haase" or the "Shareholder").
WJI, JCI Subsidiary, THI Subsidiary, JCI and THI are each sometimes referred to
herein as a "Constituent Corporation" or collectively as the "Constituent
Corporations." JCI is sometimes referred to herein as the "Surviving
Corporation." JCI Subsidiary and THI Subsidiary are hereinafter sometimes
referred to collectively as the "Subsidiaries" and individually (and sometimes
also collectively) as "Subsidiary." Haase is a major shareholder of JCI and THI.
WITNESSETH THAT:
WHEREAS, the Boards of Directors of the Constituent Corporations have
each determined that it is in the best interest of each Constituent Corporation
and its respective stockholders to consummate a merger in the manner set forth
herein; and
NOW, THEREFORE, in consideration of the mutual agreements and covenants
contained herein, the parties hereby agree as follows:
I. Definitions
For purposes of this Agreement, the following terms shall have the
following meanings:
1
A. "JCI Common Stock" shall mean the common stock of JCI. "THI
Common Stock" shall mean the common stock of THI.
B. "Effective Date" or "Closing Date" shall mean the effective
date of the Merger, which shall be the date and time of filing of the
articles of merger required to be filed hereunder.
C. "WJI Common Stock" shall mean the common stock of WJI.
D. "Merger" shall mean collectively the merger of JCI Subsidiary with
and into JCI and the merger of THI Subsidiary into THI, and in
consideration for which the stockholders of JCI and THI will receive
certain shares of WJI Common Stock in accordance with the terms of this
Agreement.
E. "Subsidiary's Common Stock" as to each Subsidiary shall mean
the common stock of such Subsidiary.
F. "Surviving Corporations" shall mean JCI and THI, the
corporations that survive the Merger.
G. "Affiliate" means any person that directly or indirectly,
through one or more intermediaries, controls or is controlled by, or is
under common control with, any such person.
II. Merger
A. Surviving Corporation. Upon the due approval and adoption of this
Agreement by the stockholders of each of the Constituent Corporations
other than WJI and the satisfaction or waiver of the conditions set
forth herein to the obligations of the parties hereto, articles of
merger shall be filed with the Secretary of State of the State of New
York in accordance with the laws of such State. Effective as of the
close of business on the date on which the articles of merger are
filed, (1) JCI Subsidiary shall merge with and into JCI, and JCI as the
Surviving Corporation shall continue its corporate existence under the
laws of the State of New York, and (2) THI Subsidiary shall merge with
and into THI, and THI as the Surviving Corporation shall continue its
corporate existence under the laws of the State of New York. The date
and time of such filings is herein referred to as the "Effective Date"
or the "Closing Date."
B. Further Documentation. From time to time as and when
requested by the Surviving Corporations or WJI or their
2
successors or assigns, WJI, JCI, THI and Subsidiaries and their proper
(or former) officers and directors, shall execute and deliver, or cause
to be executed and delivered, all deeds and other instruments and shall
take or cause to be taken all such other and further actions as the
Surviving Corporations or WJI may deem necessary or appropriate in
order to more fully vest in the Surviving Corporation title to and
possession of all of the rights, privileges, powers, immunities,
purposes and franchises of JCI, THI and the Subsidiaries and to
carry-out the intent and purposes of this Agreement.
III. Closing. Concurrently with the filing of the articles of merger the parties
shall execute and deliver to and among themselves the Closing Documents (as
hereinafter defined) at a closing (the "Closing") to occur at the offices of
Oscar D. Folger, 521 Fifth Avenue, New York, New York 10175 on the Closing Date.
The term "Closing Documents" means the agreements, instruments and documents
which are contemplated by this Agreement to be executed and delivered by the
parties on the Closing Date.
IV. Certificate of Incorporation, By-laws, Directors and Officers
A. Certificate of Incorporation. The Certificate of
Incorporation of the Surviving Corporations in effect on the Effective
Date shall be the Certificate of Incorporation of the Surviving
Corporation until amended as provided by law.
B. By-Laws. The by-laws of the respective Surviving
Corporations in effect on the Effective Date shall be the by-laws of
the Surviving Corporations until amended or repealed as provided by
law.
C. Directors and Officers of JCI and THI. The initial directors
of the Surviving Corporations shall be Haase and two designees of
Haase, and shall hold office as provided in the by-laws of the
Surviving Corporation. The officers of each Surviving Corporation on
the Effective Date shall be Haase, who shall be President, CEO and
Treasurer, and Nurit Kahane who shall be Executive Vice President, and
shall hold office as provided in the by-laws of the Surviving
Corporations.
D. Directors of WJI. Effective upon the Closing, the directors
of WJI shall be Haase, Norman Doctoroff and a designee of Haase subject
to any restrictions in Section 14(f) of the Securities Exchange Act of
1934. Each such person shall hold office as provided in the by-laws of
WJI as
3
amended pursuant to this Agreement.
V. Conversion and Exchange of Shares
A. Conversion of Shares. The manner and basis of converting the
shares of each Constituent Corporation shall be as follows:
1. Upon consummation of the Merger, all 100 shares of
JCI Subsidiary Common Stock outstanding immediately
prior to the Effective Date shall, by virtue of the
Merger and without any action on the part of the
holder thereof, be converted into and exchanged for
all of the issued and outstanding shares of capital
stock of JCI. All such 100 shares have been fully
paid and are non-assessable, and were issued for an
aggregate capital contribution of $10. Upon
consummation of the Merger, all 100 shares of THI
Subsidiary Common Stock outstanding immediately prior
to the Effective Date shall, by virtue of the Merger
and without any action on the part of the holder
thereof, be converted into and exchanged for all of
the issued and outstanding shares of capital stock of
THI. All such 100 shares have been fully paid and
are non-assessable, and were issued for an aggregate
capital contribution of $10.
2. The shares of JCI Common Stock and THI Common Stock
which shall be outstanding immediately prior to the
Effective Date shall, by virtue of the Merger and
without any action on the part of the holder thereof,
be converted as of the Effective Date into the
immediate right to receive in the aggregate 3,500,000
shares of WJI Common Stock, with the portion thereof
to be allocated to the JCI Common Stock and the THI
Common Stock, respectively, to be as to be designated
by JCI and THI to WJI not less than three business
days prior to the Closing. The shares of WJI to be
issued as aforesaid are referred to herein as the
"Transaction Shares."
3. The Transaction Shares shall not upon issuance be
registered under the Securities Act of 1933, as
amended (the "Act"). WJI has no obligation to
register the Transaction Shares.
4. Each holder of record on the Effective Date of
4
shares of JCI Common Stock or THI Common Stock (the
"JCI-THI shareholders") shall be entitled, upon the
surrender to WJI of the certificate for his shares of
JCI Common Stock or his THI Common stock for
cancellation, to receive a certificate or
certificates representing a portion of the total
number of Transaction Shares which is proportional to
the portion of the Transaction Shares being issued
for all JCI common stock and all THI common stock,
respectively.
B. No Change in WJI Shares.
Except for the issuance of shares of WJI Common
Stock upon conversion of shares of JCI Common Stock and THI
Common Stock pursuant to this Agreement, the Merger shall
effect no change in the shares of WJI Common Stock and none of
WJI's shares shall be converted as a result of the Merger.
VI. Certain Other Agreements
A. JCI and THI covenant that as of the Effective Date there will be
outstanding only the shares of JCI Common Stock and THI common stock
which are disclosed in the Disclosure Schedule, and that there will not
be outstanding any options, warrants or similar instruments or
agreements or arrangements for the issuance of any additional shares of
capital stock of such party.
B. Upon the effectiveness of the Merger, WJI and Target Capital Corp.
("Target") shall enter into a consulting agreement, which agreement
shall replace a current agreement between WJI and the sole shareholder
of Target and on the same terms and conditions and for the balance of
the term thereof, except that Target shall perform services thereunder
only as a consultant and on a non full-time basis and except also that
the term of this Agreement shall be extended for three years if during
the period commencing on the date hereof and ending June 30, 1997 WJI
shall have obtained at least $4,000,000 in equity capital from one or
more sources (including, without limitation, funds obtained from the
exercise of currently outstanding warrants).
C. On the Effective Date WJI will enter into a five-year employment
agreement with Nurit Kahane at an annual salary of $250,000.
5
D. By notice to the other parties given on or before June 15, 1996,
each party may update, amend and supplement its Disclosure Schedule
hereunder, effective as if such update, amendment or supplement had
been made as of the date of this Agreement or on such other date as is
set forth in such notice.
E. Peter Cohen's salary shall from and after the Effecrive Date accrue
at the rate of $175,000 per annum.
VII. Representations and Warranties of JCI, THI and Haase.
Subject to the limitations on joint and several liability set forth in
Section 16(d), JCI, THI and Haase jointly and severally represent and warrant to
WJI and the Subsidiaries with respect to each of JCI and THI (each of JCI and
THI being sometimes referred to in this Section as "Corporation")that, except as
set forth in the disclosure schedule which was executed and delivered by JCI to
WJI on the date hereof (for each such Corporation, the "Corporation Disclosure
Schedule") with a reference to the relevant Section of this Agreement:
A. Organization and Capitalization. Corporation is a corporation duly
organized, validly existing and in good standing under the laws of the
State of New York. All of the issued and outstanding shares of Common
Stock are duly authorized, validly issued, fully paid and
nonassessable; and there are no other equity securities of any class
authorized, issued, reserved for issuance or outstanding, and there are
no preemptive rights as to any shares. There are no outstanding
options, warrants, agreements or rights to subscribe for or to
purchase, or commitments to issue, shares of Corporation capital stock.
Except as set forth on the Corporation Disclosure Schedule, Corporation
does not own, directly or indirectly, any outstanding capital stock or
securities convertible into capital stock of any other corporation or
any participating interest in any partnership, joint venture or other
business enterprise. All subsidiaries and the directors and officers of
each subsidiary are listed on the Corporation Disclosure Schedule.
B. Power and Authority. Corporation has all requisite power and
authority to own, lease and operate its properties and to conduct its
businesses as presently conducted and as proposed to be conducted and
is duly qualified or licensed as a foreign corporation in good standing
in each jurisdiction in which the failure to qualify would have a
material adverse effect upon the business or properties of Corporation.
All
6
such jurisdictions are listed in the Corporation Disclosure
Schedule.
C. Certificate of Incorporation and By-Laws of Corporation. The copies
of the Certificate of Incorporation of Corporation, certified by the
Secretary of State of New York and the bylaws of Corporation, certified
by its Secretary, heretofore delivered to WJI, are true, complete and
correct.
D. Authority for Agreement. The Board of Directors and the shareholders
of Corporation have approved this Agreement, has authorized the
execution and delivery hereof, recommended (or will recommend
reasonably in advance of the stockholders meeting), the adoption and
approval of this Agreement to such corporation's stockholders, and has
directed that this Agreement be submitted to such stockholders for
adoption and approval at a special meeting of such stockholders or by
the written unanimous consent of such stockholders to be obtained
without a meeting. Corporation has full power, authority and legal
right to enter into this Agreement and, upon appropriate vote of its
stockholders in accordance with law, to consummate the transactions
contemplated hereby.
E. No Violation to Result. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby:
1. are not in violation or breach of, do not conflict
with or constitute a material default under, and will
not accelerate or permit the acceleration of the
performance required by, any of the terms of the
charter documents or by-laws of Corporation or (after
the consents referred to in the Corporation
Disclosure Schedule are obtained) any note, debt
instrument, security agreement or mortgage, or any
other contract or agreement, written or oral, to
which Corporation or its shareholders is a party or
by which Corporation or any of such shareholders or
any of their respective properties or assets are
bound;
2. will not be an event which, after notice or lapse of
time or both, will result in any such violation,
breach, conflict, default, or acceleration;
3. will not result in a violation under any law,
7
judgment, decree, order, rule, regulation or other
legal requirement of any governmental authority,
court or arbitration tribunal whether federal, state,
provincial, municipal or local (within the U.S. or
otherwise) at law or in equity, and applicable to
Corporation or any of its shareholders; and
4. will not result in the creation or imposition of any
lien, encumbrance, security agreement, equity,
option, claim, charge, pledge or restriction in favor
of any third person upon any of the properties or
assets of Corporation
F. No Existing Defaults. Corporation is not in default in any
material respect:
1. under any of the terms of any note, debt instrument,
security agreement or mortgage or under any other
commitment, contract, agreement, license, lease or
other instrument, whether written or oral, to which
Corporation is a party or by which it or any of its
properties or assets are bound;
2. under any law, judgment, decree, order, rule
regulation or other legal requirement or any
governmental authority, court or arbitration tribunal
whether federal, state, provincial, municipal or
local (within the U.S. or otherwise), at law or in
equity, and applicable to Corporation or to any of
its properties or assets; or
3. in the payment of any of monetary obligations or
debts.
There exists no condition or event which, after notice or lapse of
time or both, would constitute a material default in connection with any of the
foregoing.
G. Financial Statements.
The unaudited financial statements of Corporation as of and
for the period ended December 31, 1995 and 1995 (which financial
statements, including, without limitation, any notes thereto and
reports thereon are hereinafter collectively called the "Corporation
Financial Statements," and which financial statements for the year
ended December
8
31, 1995 are hereinafter referred to as the "Corporation
1995 Financial Statements"), all of which have been delivered to WJI
and are included in the Corporation Disclosure the Corporation
Disclosure Schedule fairly present the financial position of
Corporation and the results of operations as of the respective dates
and for the periods indicated thereon and have been prepared in
accordance with generally accepted accounting principles applied on a
consistent basis. Corporation does not have any material liability or
obligation not reflected in the 1994 balance sheet included in the
Corporation 1995 Financial Statements, and all provisions, reserves and
allowances provided for therein are adequate, except for liabilities or
obligations incurred between December 31, 1995 and the date of this
Agreement in the ordinary and usual course of business consistent with
the representations and warranties set forth herein and that would not
have been in conflict with said representation if they had been
incurred between the date hereof and the Effective Date. Corporation
does not have any material contingent liability or obligation except as
set forth in the Corporation Disclosure Schedule.
1. No Adverse Changes. From December 31, 1995 to the
date of this Agreement, except as disclosed on the
Corporation Disclosure Schedule, and except as
otherwise permitted herein:
2. Corporation has not sustained any damage, destruction
or loss, by reason of fire, explosion, earthquake,
casualty, labor trouble, requisition or taking of
property by any government or agency thereof,
windstorm, embargo, riot, act of God or the public
enemy, flood, volcanic eruption, accident, other
calamity or other similar or dissimilar event
(whether or not covered by insurance) materially
adversely affecting the business, properties,
financial condition or operations of Corporation; and
3. there have been no changes in the condition
(financial or otherwise), business, net worth,
assets, properties, liabilities or obligations
(fixed, contingent, known, unknown or otherwise) of
Corporation which in the aggregate have had or may
have a material adverse effect on the business,
properties, financial condition or operations of
Corporation, and there has been no occurrence,
circumstance or combination thereof
9
which is reasonably expected to result in any such
material adverse effect before or after the Effective
Date.
H. Employee Plans and Agreements. Corporation does not have any
employee benefit plans other than existing health insurance, vacation
and other plans which are set forth in the Corporation Disclosure
Schedule. Corporation has no pension or profit sharing plan.
I. Full Disclosure. The information furnished by Corporation or
by any its directors or officers to WJI or Subsidiary pursuant to this
Agreement (whether furnished prior to, at, or subsequent to the date
hereof), the information contained in the Exhibits and the Corporation
Disclosure Schedule, in this
Agreement, and the other information furnished to WJI or Subsidiary by
Corporation, or by any of its directors or officers at any time prior
to the Effective Date (pursuant to the request of WJI or Subsidiary or
otherwise), does not and will not contain any untrue statement of a
material fact and does not and will not omit to state any material fact
necessary to make all such information not misleading.
J. Taxes. Corporation has prepared (or caused to be prepared) and
timely and properly filed (or caused to be timely and properly filed)
with the appropriate federal, state, provincial, municipal or local
authorities (within the U.S. or otherwise) all tax returns, information
returns and other reports required to be filed and has paid or accrued
(or caused to be so paid or accrued) in full all taxes, interest,
penalties, assessments or deficiencies, if any, due to, or claimed to
be due by, any taxing authority. The balance sheets included in the
Corporation 1995 Financial Statements include appropriate provisions
for all taxes, interest, penalties, assessments or deficiencies, if
any, for the periods indicated thereon to the extent not theretofore
paid. Corporation has not executed or filed with any taxing authority
any agreement extending the period for assessment or collection of any
taxes. Corporation is not a party to any pending action or proceeding,
nor, to its knowledge, is any such action or proceeding threatened, by
any governmental authority for the assessment or collection of taxes,
and no claim for assessment or collection of taxes has been asserted
against Corporation, and during the course of any audit currently in
process or not completed, no issues have been suggested by any
representative of any such governmental authority that, if asserted,
would result in a proposed
10
assessment of taxes, interest or penalties,
against Corporation which would have a materially adverse effect on
Corporation.
K. Pending Transactions. The Corporation Disclosure Schedule sets forth
a list of all pending transactions (whether or not Corporation is
legally bound to enter therein) which are out of the ordinary course of
business and would involve the expenditure or commitment of in excess
of $50,000. WJI acknowledges that Corporation has numerous commitments
for the purchase and sale of inventory which exceed $50,000 but are in
the ordinary course of business.
L. Intellectual Property. The Corporation Disclosure Schedule contains
a true and complete list of all trademarks, certification marks, trade
names, service marks, copyrights, patents, patent applications and
product composition formulae owned or used by Corporation. Corporation
owns or possesses adequate licenses or other rights to use all
trademarks, certification marks, trade names, service marks,
copyrights, patents, patent applications, trade secrets, product
composition formulae, computer programs, product development records
and other proprietary processes and information used in its business,
and the same are sufficient in all material respects to conduct the
business as currently conducted and as proposed to be conducted. Except
as described in the Corporation Disclosure Schedule, Corporation is not
required to pay any royalty, license fee or similar type of
compensation in connection with the conduct of its business as it is
now or heretofore has been conducted or as proposed to be conducted.
All patents, patent applications and rights to inventions or
discoveries (whether or not patentable) owned or held by any officer,
director, stockholder, employee, consultant or agent of Corporation and
relating to and its business have been duly and effectively transferred
to Corporation: and, except as described on the Corporation Disclosure
Schedule, the operations of Corporation do not infringe, and no one has
asserted that such operations do infringe, the patents, patent
applications, trademarks, certifications marks, trade names, service
marks, trade secrets or other intellectual property rights of anyone.
M. Machinery and Equipment. Corporation owns or has adequate rights to
all machinery and equipment (including, without limitation, machinery
and equipment under development or construction) used or necessary for
use in its trade or business, and all such material machinery and
equipment is in substantially good operating condition, free and clear
of any
11
material liens, claims or encumbrances.
N. Brokers. Corporation has not expressly or impliedly engaged
any broker, finder, investment banker, or agent with respect to this
Agreement or any transaction contemplated hereby, or agreed to pay any
fee to any such person or entity.
O. Contracts. The Corporation Disclosure Schedule contains a
true and complete list of each contract or agreement outside of the
ordinary course of business which require aggregate payments by
Corporation, or receipt by Corporation, of, in excess of $100,000, and
to which Corporation is a party, or by which Corporation is bound, in
any respect.
P. Litigation. Except as set forth in the Corporation Disclosure
Schedule, there is no material litigation, suit, proceeding, action,
claim or (to the knowledge of Corporation) investigation, at law or in
equity, pending or (to the knowledge of Corporation) threatened against
or affecting Corporation or involving any of its property or assets,
before any court, agency, authority or arbitration tribunal, including,
without limitation, any product liability, workers' compensation or
wrongful dismissal claims, or claims, actions, suits or proceedings
relating to toxic materials, hazardous substances, pollution or the
environment. There are no facts which, if known to customers,
governmental authorities or other persons, might result in any such
litigation, suit, proceeding, action, claim or investigation. Except as
set forth in the Corporation Disclosure Schedule, Corporation is not
subject to or in default with respect to any notice, order, writ,
injunction or decree of any court, agency, authority or arbitration
tribunal.
Q. Compliance with Laws. Corporation has complied with all
laws, municipal by-laws, regulations, rules, orders, judgments, decrees
and other requirements and policies imposed by any governmental
authority applicable to it, its properties or the operation of its
business.
R. Employee Compensation and Agreements with Affiliates. The
Corporation Disclosure Schedule contains a true and complete list of
all employees of Corporation earning or receiving more than $30,000
annually from Corporation. Except as set forth and described on the
Corporation Disclosure, neither Haase nor any other officer of
Corporation has, either directly or indirectly:
12
1. an interest in any corporation, partnership,
proprietorship, association or other person or entity
which furnishes or sells those services or products
which are furnished to or sold by Corporation; or
2. a beneficial interest in any contract or agreement to
which Corporation is a party or by which Corporation
or its properties are bound.
S. Bank Accounts. The Corporation Disclosure Schedule contains
a true and complete list of (i) all accounts of Corporation with any
bank, trust company or other deposit taking institution, together with
the names of the persons authorized to draw thereon, and (ii) the names
of all persons holding powers of attorney from Corporation and a
summary statement of the terms thereof.
T. True Copies. All documents furnished or caused to be
furnished to WJI or Subsidiary by Corporation are true and correct
copies, and there are no amendments or modifications thereto except as
set forth in such documents.
U. No Impending Adverse Facts. Neither Corporation nor Haase is
aware of any proposed reduction or termination of any business
relationship which is material to the assets, finances, prospects or
business of JCI.
V. Survival of Representations and Warranties; Notice of
Changes.
1. The representations and warranties of Corporation and
Haase made in this Agreement, including the
representations as to Corporation, are correct, true
and complete as of the date hereof in all material
respects and will be correct, true and complete as at
the Effective Date with the same force and effect as
though such representations and warranties had been
made at the Effective Date, and shall survive the
Effective Date for six months.
2. Corporation and Haase shall give to WJI prompt
written notice of any fact or circumstance which
would render incorrect the representation and
warranty in Section (i).
13
VIII. Representations and Warranties of WJI and the Subsidiary.
A. WJI and Subsidiary jointly and severally represent and warrant to
JCI and THI that, except as set forth in the disclosure schedule which
was executed and delivered by WJI and Subsidiary to JCI on the date
hereof (the "WJI Disclosure Schedule") with a reference to the relevant
Section of this Agreement:
B. Reports and Financial Statements.
1. WJI has previously furnished the Company with true
and complete copies of its (i) Annual Report on Form
10-KSB for the year ended August 31, 1995, as filed
with the Securities & Exchange Commission (the
"Commission" or "SEC"), (ii) Quarterly Report on Form
10-QSB filed for the fiscal quarter ended February
29, 1996 (the "WJI Quarterly Reports"), and (iii)
proxy statements relating to the most recent meeting
of its stockholders, and (iv) all Form 8-K's filed by
WJI with the Commission from and after August 31,
1995. The financial statements included in such
reports were prepared in accordance with generally
accepted accounting principles, consistently applied,
and present fairly the financial position and the
results of operations of WJI for the periods
indicated.
a) WJI does not have any liabilities, whether
or not accrued, contingent or otherwise,
that individually or in the aggregate, are
reasonably likely to have a material adverse
effect on the financial condition, business,
assets or prospects (financial or otherwise)
on WJI other than liabilities disclosed in
its SEC filings, or for which WJI has made
adequate reserves as reflected in its
financial statements.
b) Since the date of such financial statements,
there has been no material adverse change in
the financial condition, business, assets,
or prospects (financial or otherwise) of
WJI.
c) Since April 30, 1993, WJI has filed (i) all
forms, reports, statements and other
documents required to be filed with (A) all
annual reports on Form 10-K, (2) all
14
quarterly reports on Form 10-Q, (3) all
proxy statements relating to meetings of
stockholders (whether annual or special),
(4) all current reports on Form 8-K and (5)
all other reports, schedules, registration
statements or other documents (collectively
referred to as the "Company SEC Reports"),
and (B) any other applicable state
securities authorities and (ii) all forms,
reports, statements and other documents
required to be filed with any other
applicable federal or state regulatory
authorities, including, without limitation,
state insurance and health regulatory
authorities, except where the failure to
file any such forms, reports, statements or
other documents would not be reasonably
likely to have a material adverse effect on
the financial condition, business, assets
or prospects (financial or otherwise) of
WJI (all such forms, reports statements and
other documents in clauses (i) and (ii) of
this Section being referred to herein,
collectively, as the "Company Reports")
The Company Reports (i) were prepared in
all material respects in accordance with
the requirements of applicable law
(including, with respect to the Company SEC
Reports, the Securities Act or the Exchange
Act, as the case may be) and (ii) did not
at the time they were filed contain any
untrue statement of a material fact or omit
to state a material fact required to be
stated therein or necessary in order to
make the statements therein, in the light
of the circumstances under which they were
made, not misleading.
2. As of their respective dates, such reports,
statements and other written materials did not
contain any untrue statement of a material fact or
omit to state a material fact required to be stated
therein or necessary to make the statements therein,
in light of the circumstances under which they were
made, not misleading.
3. The audited consolidated financial statements and any
unaudited interim financial statements of WJI
included in such reports have been prepared in
accordance with generally accepted accounting
principles applied on a consistent basis and fairly
present the financial position of WJI and
15
its subsidiaries as at the dates thereof and the
results of their operations and changes in financial
position for the periods then ended, except as
indicated therein or in the notes thereto.
C. Organization and Capitalization of WJI. WJI is a corporation duly
organized, validly existing and in good standing under the laws of the
State of New York. All of the issued and outstanding shares of WJI are
duly authorized, validly issued, fully paid and nonassessable; and
there are no other equity securities of any class of WJI authorized,
issued, reserved for issuance or outstanding; and there are no
preemptive rights as to any shares. Except as described on the WJI
Disclosure Schedule, there are no outstanding options, warrants,
agreements or rights to subscribe for or to purchase, or commitments to
issue, shares of WJI Common Stock.
D. Organization and Capitalization of WJI Subsidiary. Each Subsidiary
is a corporation duly organized, validly existing and in good standing
under the laws of the State of New York with an authorized capital
consisting solely of 200 shares Common Stock ("Subsidiary's Common
Stock"), of which 100 shares are issued and outstanding; all of such
100 issued and outstanding shares of such Subsidiary's Common Stock are
duly authorized, validly issued, fully paid and nonassessable; and
there are no other equity securities of any class of such Subsidiary
authorized, issued, reserved for issuance or outstanding. There are no
outstanding options, warrants, agreements or rights to subscribe for or
to purchase, or commitments to issue, shares of any Subsidiary's Common
Stock. All securities offered or sold by WJI since its inception either
were offered and sold pursuant to an effective registration under the
Securities Act of 1933, as amended, and any applicable state securities
laws or were exempt from registration under such acts and laws.
E. Stock of Subsidiaries. WJI owns or prior to the Effective
date will own 100 shares of each Subsidiary's Common Stock, which
shares represent all of the issued and outstanding shares of such
Subsidiary.
F. Power and Authority. The Board of Directors of WJI, and the Board of
Directors of each Subsidiary have approved this Agreement. Each of WJI
and each Subsidiary has all requisite power and authority to own, lease
and operate its properties and to conduct its business as presently
conducted
16
and as proposed to be conducted and is duly qualified or licensed
as a foreign corporation in good standing in each jurisdiction in
which the failure to qualify would have a material adverse effect on
the business or properties of WJI.. All such jurisdictions are listed
in the WJI Disclosure Schedule.
G. Certificate of Incorporation and By-Laws of WJI and Certificate of
Incorporation and By-Laws of each Subsidiary. The copies of the
Certificate of Incorporation and Certificate of Incorporation of WJI
and each Subsidiary, each certified by the Secretary of State of the
State of New York, and the By-Laws of WJI and each Subsidiary,
certified by their respective Secretaries, heretofore delivered by WJI
and each Subsidiary to JCI, are true, complete and correct.
H. Authority for Agreement. The Board of Directors of each of
WJI and each Subsidiary has approved this Agreement and has authorized
the execution and delivery hereof. WJI and each Subsidiary each has
full power, authority and legal right to enter into this Agreement and
to consummate the transactions contemplated hereby.
I. No Violation to Result. Except as set forth in the WJI
Disclosure Schedule, the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby:
1. are not in violation or breach of, do not conflict
with or constitute a material default under, and will
not accelerate or permit the acceleration of the
performance required by, any of the terms of the
charter documents or by-laws of WJI or Subsidiary or
(after the consents referred to in the WJI Disclosure
Schedule are obtained) any note, debt instrument,
security agreement or mortgage, or any other contract
or agreement, written or oral, to which WJI or
Subsidiary is a party or by which WJI or Subsidiary
or any of their properties or assets are bound;
2. will not be an event which, after notice or lapse of
time or both, will result in any such violation,
breach, conflict, default, or acceleration;
3. will not result in violation under any law, judgment,
decree, order, rule, regulation or other
17
legal requirement of any governmental authority,
court or arbitration tribunal whether federal, state,
provincial, municipal or local (within the U.S. or
otherwise) at law or in equity, and applicable to WJI
or Subsidiary; and
4. will not result in the creation or imposition of any
lien, possibility of lien, encumbrance, security
agreement, equity, option, claim, charge, pledge or
restriction in favor of any third person upon any of
the properties or assets of WJI or Subsidiary.
J. No Existing Defaults. Except as set forth in the WJI
Disclosure Schedule, WJI and Subsidiary are not in material default in
any material respect:
1. under any of the terms of any note, debt instrument,
security agreement or mortgage or under any other
commitment, contract, agreement, license, lease or
other instrument, whether written or oral, to which
it is a party or by which it or any of its properties
or assets is bound;
2. under any law, judgment, decree, order, rule,
regulation or other legal requirement or any
governmental authority, court or arbitration tribunal
whether federal, state, provincial, municipal or
local (within the U.S. or otherwise), at law or in
equity, and applicable to it or to any of its
properties or assets; or
3. in the payment of any of its monetary obligations or
debts.
4. There exists no condition or event which, after
notice or lapse of time or both, would constitute a
default in connection with any of the foregoing.
K. WJI and Subsidiary Employee Plans and Agreements. WJI does
not have any employee benefit plan other than its existing health
insurance package which includes life insurance, group long-term
disability, and vacations.
L. Full Disclosure. The information furnished by WJI and
Subsidiary, or by any of the directors or officers of WJI or Subsidiary
to JCI pursuant to this Agreement (whether
18
furnished prior to, at, or subsequent to the date hereof), the
information contained in the Exhibits and the WJI Disclosure Schedule
referred to in this Agreement, and the other information furnished to
JCI by WJI or Subsidiary, or by any of the directors or officers of WJI
or Subsidiary at any time prior to the Effective Date (pursuant to the
request of JCI otherwise), does not and will not contain any untrue
statement of a material fact and does not and will not omit to state
any material fact necessary to make all such information not
misleading.
M. Taxes. WJI and Subsidiary have each prepared (or caused to be
prepared) and timely and properly filed (or caused to be timely and
properly filed) with the appropriate federal, state, provincial,
municipal or local authorities (within the U.S. or otherwise) all tax
returns, information returns and other reports required to be filed and
have paid or accrued (or caused to be so paid or accrued) in full all
taxes, interest, penalties, assessments or deficiencies, if any, due
to, or claimed to be due by, any taxing authority. The balance sheets
included in the WJI 1995 Financial Statements include appropriate
provisions for all such taxes, interest, penalties, assessments or
deficiencies, if any, for the periods indicated thereon to the extent
not theretofore paid. Neither WJI nor Subsidiary has executed or filed
with any taxing authority any agreement extending the period for
assessment or collection of any taxes. Neither WJI nor Subsidiary is a
party to any pending action or proceeding, nor, to its knowledge, is
any such action or proceeding threatened, by any governmental authority
for the assessment or collection of taxes, and no claim for assessment
or collection of taxes has been asserted against WJI or Subsidiary, and
during the course of any audit currently in process or not completed,
no issues have been suggested by any representative of any such
governmental authority that, if asserted, would result in a proposed
assessment of taxes, interest or penalties, against WJI or Subsidiary
which may have a material adverse effect on WJI.
N. Pending Transactions. The WJI Disclosure Schedule sets forth
a list of all pending transactions (whether or not WJI is legally bound
to enter therein) which are out of the ordinary course of business and
would involve the expenditure or commitment of in excess of $50,000.
O. Intellectual Property. The WJI Disclosure Schedule contains a true
and complete list of all trademarks, certification marks, trade names,
service marks, copyrights,
19
patents, patent applications and product composition formulae owned or
used by WJI and Subsidiary. WJI and Subsidiary own or possess adequate
licenses or other rights to use all trademarks, certification marks,
trade names, service marks, copyrights, patents, patent applications,
trade secrets, product composition formulae, computer programs, product
development records and other proprietary processes and information
used in its business, and the same are sufficient in all material
respects to conduct the business as now conducted or as proposed to be
conducted. Except as described in the WJI Disclosure Schedule, neither
WJI nor Subsidiary is required to pay any royalty, license fee or
similar type of compensation in connection with the conduct of its
business as it is now or heretofore has been conducted. All patents,
patent applications and rights to inventions or discoveries (whether or
not patentable) owned or held by any officer, director, stockholder,
employee, consultant or agent of WJI or Subsidiary and relating to its
business in any manner have been duly and effectively transferred to
WJI or Subsidiary; and, except as described on the WJI Disclosure
Schedule, the operations of WJI and Subsidiary do not infringe, and no
one has asserted that such operations do infringe, the patents, patent
applications, trademarks, certifications marks, trade names, service
marks, trade secrets or other intellectual property rights of anyone.
P. Machinery and Equipment. WJI or Subsidiary owns or has adequate
rights to all machinery and equipment (including, without limitation,
machinery and equipment under development or construction) used or
necessary for use in its trade or business, and all such material
machinery and equipment is in substantially good operating condition,
free and clear of any material liens, claims or encumbrances.
Q. Brokers. Neither WJI nor Subsidiary has expressly or
impliedly engaged any broker, finder, investment banker, or agent with
respect to this Agreement or any transaction contemplated hereby, or
agreed to pay any fee to any such person or entity.
R. Contracts. The WJI Disclosure Schedule contains a true and
complete list of each contract or agreement, requiring aggregate
payments by WJI or Subsidiary, or receipts by WJI or Subsidiary, in
excess of $100,000, to which WJI or Subsidiary is a party, or by which
WJI or Subsidiary is bound, in any respect.
20
S. Litigation. Except as set forth in the WJI Disclosure Schedule,
there is no material litigation, suit, proceeding, action, claim or (to
the knowledge of WJI) investigation, at law or in equity, pending or
(to the knowledge of WJI) threatened against or affecting WJI or
Subsidiary or involving any of their property or assets, before any
court, agency, authority or arbitration tribunal, including, without
limitation, any product liability, workers' compensation or wrongful
dismissal claims, or claims, actions, suits or proceedings relating to
toxic materials, hazardous substances, pollution or the environment.
There are no facts which, if known to customers, governmental
authorities or other persons, might result in any such litigation,
suit, proceeding, action, claim or investigation. Except as set forth
in the WJI Disclosure Schedule, neither WJI nor Subsidiary is subject
to or in default with respect to any notice, order, writ, injunction or
decree of any court, agency, authority or arbitration tribunal.
T. Compliance with Laws. WJI and Subsidiary have each complied with
all laws, municipal by-laws, regulations, rules, orders, judgments,
decrees and other requirements and policies imposed by any governmental
authority applicable to it, its properties or the operation of its
business.
U. Licenses, Permits and Approvals. WJI and Subsidiary each have all
material licenses, permits, approvals, qualifications or the like,
issued or to be issued to WJI and Subsidiary by any government or any
governmental unit, agency, body or instrumentality, whether federal,
state, provincial, municipal or local (within the U.S. or otherwise)
necessary for the conduct of its trade or business, and all such items
are in full force and effect, and are listed in the WJI Disclosure
Schedule.
1. Employee Compensation and Agreements with Affiliates.
The WJI Disclosure Schedule contains a true and
complete list of all employees of WJI and Subsidiary
earning or receiving more than $60,000 annually from
WJI. Except as set forth and described on the WJI
Disclosure Schedule, no directors or officers and no
employees listed thereon nor any Affiliate of any
such person has, either directly or indirectly:
2. an interest in any corporation, partnership,
proprietorship, association or other person or entity
which furnishes or sells those services or
21
products which are furnished to or sold by WJI or
Subsidiary; or
3. a beneficial interest in any contract or agreement to
which WJI or Subsidiary is a party or by which WJI
or Subsidiary or it properties are bound.
V. Bank Accounts. The WJI Disclosure Schedulecontains a true
and complete list of (i) all accounts of WJI with any bank, trust
company or other deposit taking institution, together with the names of
the persons authorized to draw thereon, and (ii) the names of all
persons holding powers of attorney from WJI and a summary statement of
the terms thereof.
W. True Copies. All documents furnished or caused to be
furnished to JCI by WJI or Subsidiary are true and correct copies, and
there are no amendments or modifications thereto except as set forth in
such documents.
X. Survival of Representations and Warranties; Notice of
Changes.
1. The representations and warranties of each of WJI and
Subsidiary made in this Agreement are correct, true
and complete as of the date hereof and will be
correct, true and complete as at the Effective Date
with the same force and effect as though such
representations and warranties had been made at the
Effective Date, and shall survive the Effective Date
for six months.
2. WJI shall give to JCI prompt written notice of any
fact or circumstance which would render incorrect the
representation and warranty made by WJI in Section
(i).
IX. Conduct and Transactions Prior to Closing and Certain Agreements
A. Access to Properties and Records.
Each Constituent Corporation shall afford to the officers,
employees, attorneys, accountants and other authorized representatives
of the other, free and full access to all of its assets, properties,
books and records, in order to afford each Constituent Corporation as
full an opportunity of review, examination and investigation as it
shall desire
22
to make of the affairs of the other, and each shall be permitted to
make extracts from, or take copies of, such books, records (including
the stock record and minute books) or other documentation or to obtain
temporary possession of any thereof as may be reasonably necessary; and
each shall furnish or cause to be furnished to the other such
reasonable financial and operating data and other information about its
business, properties and assets which any of such Constituent
Corporation's respective officers, employees, attorneys, accountants or
other authorized representatives may request.
B. Interim Covenants of each Constituent Corporation. From the date of
this Agreement until the Effective Date, except to the extent expressly
permitted by this Agreement or otherwise consented to by an instrument
in writing signed by each other Constituent Corporation or as otherwise
set forth in the WJI Disclosure Schedule or the JCI Disclosure
Schedule, each Constituent Corporation shall conduct its operations
only in the ordinary course, narrowly construed, and it shall not make
any change in its constituent documents, i.e., Certificate of
Incorporation or by-laws.
C. Information. Each party will furnish to the other all
information concerning the other which is reasonably required for
inclusion in any filing with any governmental or regulatory body in
connection with the transactions contemplated by this Merger Agreement
or otherwise required by law.
D. Notice of Breach.
1. WJI and Subsidiary will immediately give notice to
JCI of the occurrence of any event or the failure of
any event to occur that results in a breach of any
representation or warranty by WJI and Subsidiary or a
failure by WJI and Subsidiary to comply with any
covenant, condition or agreement contained herein.
2. JCI will immediately give notice to WJI and
Subsidiary of the occurrence of any event or the
failure of any event to occur that results in a
breach of any representation or warranty by JCI or a
failure by JCI to comply with any covenant, condition
or agreement contained herein.
E. Representations. WJI, Subsidiary, JCI, THI and Haase (a)
will take all action necessary to render accurate as of
23
the Effective Date their respective representations and warranties
contained herein, (b) will refrain from taking any action which would
render any such representation or warranty inaccurate in any material
respect as of such time, and (c) will perform or cause to be satisfied
each covenant or condition to be performed or satisfied by them.
F. Negotiations with Third Parties. The Constituent Corporations will
not, without the prior written approval of the others, furnish any
information to, or initiate or participate in discussions or
negotiations with, third parties relating to any merger, sale or other
disposition of any substantial part of its assets or stock or any other
sale by stockholders of such Constituent Corporations of any of their
shares of its Common Stock.
X. Conditions to WJI and Subsidiary Obligations
All obligations of WJI and Subsidiary under this Agreement are subject
to the fulfillment and satisfaction, prior to or at the time at which the
Effective Date is scheduled to occur, of each of the following conditions, any
one or more of which may be waived by WJI and Subsidiary.
A. Representations and Warranties True at the Effective Date. At the
Effective Date, the representations and warranties of JCI and Haase set
forth in this Agreement will be true and correct in all material
respects at and as of such time, and at the Effective Date JCI shall
have delivered to WJI and Subsidiary a certificate to such effect
signed by the President and the Chief Financial Officer of JCI.
B. Performance. Each of the obligations of JCI to be performed by it
on or before the Effective Date pursuant to the terms of this Agreement
shall have been duly performed in all material respects at the
Effective Date, and at the Effective Date JCI shall have delivered to
WJI and Subsidiary a certificate to such effect signed by its President
and Chief Financial Officer.
C. Authority. All action required to be taken by, or on the part of,
JCI to authorize the execution, delivery and performance of this
Agreement by JCI and the consummation of the transactions contemplated
hereby shall have been duly and validly taken by its Board of Directors
and stockholders.
D. Opinion of Counsel. WJI and Subsidiary shall have been
24
furnished an opinion or opinions of Blau, Kramer, Wactlar & Lieberman,
P.C., counsel to JCI, dated the date of the Effective Date, in form and
substance reasonably satisfactory to WJI and Subsidiary.
E. Fairness Opinion. WJI shall have been furnished the opinion
of independent investment bankers that the transactions contemplated
hereby are fair to the shareholders of WJI from a financial point of
view.
F. Due Diligence Satisfactory. The results of WJI's due
diligence investigations of JCI and THI shall be reasonably
satisfactory to WJI.
G. Changes in the Disclosure Schedule Satisfactory. Any changes
made in JCI's and THI's Disclosure Schedule shall be satisfactory to
WJI.
XI. Conditions to Obligations of JCI
All obligations of JCI under this Agreement are subject to the
fulfillment and satisfaction, prior to or at the time at which the Effective
Date is scheduled to occur, of each of the following conditions, any one or more
of which may be waived by JCI.
A. Representations and Warranties True at the Effective Date. At the
Effective Date, the representations and warranties by WJI set forth in
this Agreement will be true and correct in all material respects at and
as of such time, and at the Effective Date, WJI and Subsidiary shall
have delivered to JCI a certificate to such effect signed by the
President and the Chief Financial Officer of WJI and Subsidiary.
B. WJI and Subsidiary's Performance. Each of the obligations of WJI and
Subsidiary to be performed by it on or before the Effective Date
pursuant to the terms of this Agreement shall have been duly performed
in all material respects at the Effective Date, and at the Effective
Date WJI and Subsidiary shall have delivered to JCI a certificate to
such effect signed by the President and the Chief Financial Officer of
WJI and Subsidiary.
C. Authority. All action required to be taken by, or on the
part of, WJI and Subsidiary to authorize the execution, delivery and
performance of this Agreement by WJI and the consummation of the
transactions contemplated hereby shall have been duly and validly taken
by the Board of Directors of
25
each of WJI and Subsidiary.
D. Opinion of Counsel of WJI and Subsidiary. JCI shall have
been furnished an opinion or opinions of Oscar D. Folger, Esq., counsel
to WJI and Subsidiary, dated the Effective Date, in form and substance
reasonably satisfactory to JCI.
E. Tax-Free Assurance. JCI shall have received reasonable
assurances, including an opinion of tax counsel, regarding the tax-free
nature of the transactions contemplated hereby.
F. Fairness Opinion. WJI shall have been furnished the opinion
of independent investment bankers that the transactions contemplated
hereby are fair to the shareholders of WJI from a financial point of
view.
G. Due Diligence Satisfactory. The results of JCI's and THI's due
diligence investigations of WJI shall be reasonably satisfactory to JCI
and THI.
H. Shareholder Approval. The shareholders of JCI and THI shall have
approved this Agreement and the transactions contemplated thereby.
I. Changes in the Disclosure Schedule Satisfactory. Any changes made in
WJI's Disclosure Schedule shall be satisfactory to JCI and THI.
XII. Best Efforts
Each party shall use its best efforts to cause all conditions to the
Closing to be fulfilled as soon as possible.
XIII. Termination
Any party who has not theretofore breached any material provision of
this Agreement (including such party's obligations to use its best efforts to
satisfy conditions for the Closing) may terminate this Agreement by notice to
the other parties if all conditions to the Closing shall not have been satisfied
by the close of business on July 31, 1996. Such termination shall not limit any
other right or remedies which the terminating party may have against any other
party.
XIV. Indemnity.
A. Subject to the limitations on joint and several
26
liability set forth in Section 16(d), JCI, THI and Haase, on the one
hand, and WJI and the Subsidiaries, on the other hand (respectively,
the "Indemnifying Party"), hereby jointly and severally agree to
indemnify the other (respectively, the "Indemnified Party") and hold
the Indemnified Party harmless against and in respect of the following:
1. any and all loss, liability or damage suffered or
incurred by any Indemnified Party by reason of any
untrue representation, breach of warranty or
non-fulfillment of any covenant by any Indemnifying
Party; and
2. any and all actions, suits, proceedings, claims,
demands, assessments, judgments, costs, and expenses,
including, without limitation, legal fees and
expenses, incident to any of the foregoing or
incurred in investigating or attempting to avoid the
same or to oppose the imposition thereof, or in
enforcing this indemnity.
B. The responsibility of the Indemnifying Parties under this Section
shall expire on the 180th day after the date of this Agreement for all
matters as to which no written claim has been made theretofore.
XV. Release
Haase hereby generally releases and discharges JCI and THI and their
affiliates from any and all claims, obligations and agreements except for
Haase's rights under this Agreement and his rights for salary and other employee
benefits accruing in the ordinary course consistent with the representations and
warranties made by Haase, JCI and THI hereunder.
XVI. Miscellaneous
A. Successors, Assigns and Third Parties. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their
respective successors and assigns; provided, however, that, except as
otherwise expressly provided herein, none of the parties hereto may
make any assignment of this Agreement or any interest herein without
the prior written consent of the other parties hereto. Nothing herein
expressed or implied is intended or shall be construed to confer upon
or give to any person, firm or corporation, other than the parties
hereto and their respective successors and
27
assigns, any rights or remedies under or by reason of this Agreement.
B. Governing Law. This Agreement shall in all respects be
interpreted, construed and governed by and in accordance with the
internal substantive laws of the State of New York, disregarding
principles of conflict of laws and the like.
C. Severability. Each section, subsection and lesser section of this
Agreement constitutes a separate and distinct undertaking, covenant
and/or provision hereof. In the event that any provision of this
Agreement shall finally be determined to be unlawful, such provision
shall be deemed severed from this Agreement, but every other provision
of this Agreement shall remain in full force and effect.
D. Notices. Except as otherwise expressly provided herein, any
notice, consent, or other communication required or permitted to be
given hereunder shall be in writing and shall be deemed to have been
given when received, and shall be addressed as follows:
If to WJI or Subsidiary, to it at:
c/o WJI at its New Jersey headquarters,
with a copy to:
Oscar D. Folger, Esq.
Law Offices of Oscar D. Folger
Fifth Avenue - 24th Floor
New York, New York 10175
If to JCI or to Haase, to him or it at JCI's New York headquarters,
with a copy to:
David Lieberman, Esq.
Blau, Kramer, Wactlar & Lieberman
100 Jericho Quadrangle
Suite 225
Jericho New York 11753
or at such other address or addresses as the party addressed may from time to
time designate in writing. Any communication dispatched by telegram or telex
shall be confirmed by letter.
28
A. Expenses. All legal and other costs and expenses incurred in
connection herewith and the transactions contemplated hereby shall be
paid by the party incurring such expenses. Without limiting the
generality of the foregoing, any and all fees and expenses of any
attorneys of the Constituent Corporations incurred in connection with
this Agreement or the transactions contemplated hereby shall be borne
by the Constituent Corporation incurring such expense and shall not be
assumed by any other Constituent Corporation.
B. Headings. The headings in this Agreement are intended solely for
convenience of reference and shall be given no effect in the
construction or interpretation of this Agreement.
C. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of
which shall constitute the same agreement. This Agreement may be
signed by facsimile.
D. Limitation on Joint and Several Liability. Haase and JCI shall be
jointly and severally liable for all agreements, indemnities,
representations and warranties made herein by either. Haase and THI
shall be jointly and severally liable for all agreements, indemnities,
representations and warranties made herein by either. Notwithstanding
anything to the contrary contained in this Agreement, neither THI nor
JCI shall have any liability for any representation or warranty made
herein by the other of them or by Haase regarding any matter which
relates to such other of them, or for any agreement or indemnity made
herein by the other of them or Haase.
IN WITNESS WHEREOF, the parties hereto have caused their signatures to
be affixed to this Agreement as of the date first above written.
WATER-JEL TECHNOLOGIES, INC.
By: /s/ Yitz Grossman
______________________________
Yitz Grossman, Chairman
JCI ACQUISITION CORPORATION
THI ACQUISITION CORPORATION
By: /s/ Yitz Grossman
______________________________
Yitz Grossman, Chairman
JOURNEYCRAFT, INC.
THERACOM, INC.
By: /s/ Werner Haase
______________________________
Werner Haase, Chairman
/s/ Werner Haase
_________________________________
Werner Haase