AGREEMENT OF MERGER OF
WATER-JEL TECHNOLOGIES, INC.
INTO X-CEED, INC.
AGREEMENT OF MERGER made the 20th day of February, 1998, by
and between X-Ceed, Inc., a Delaware corporation hereinafter called X-Ceed, and
Water-Jel Technologies, Inc., a New York corporation hereinafter called
Water-Jel.
WHEREAS, X-Ceed has an authorized capital of 30,000,000 shares
of Common Stock, $.01 par value per share, and 1,000,000 shares of Preferred
Stock, $.05 par value per share. 100 shares of the Common Stock have been duly
issued and are now outstanding; and
WHEREAS, the principal offices of X-Ceed in the State of
Delaware are presently located at 15 East North Street, in the City of Dover,
County of Kent and United Corporate Service is the agent in charge thereof upon
whom process against X-Ceed may be served within the County of Kent, State of
Delaware; and
WHEREAS, Water-Jel has authorized capital stock of 12,500,000
shares of Common Stock, $.08 par value per share, of which as of the date hereof
7,043,180 were duly issued and outstanding and 789,125 shares were reserved for
issuance upon exercise of options granted under various Stock Option Plans for
Officers and Employees and at least 2,716,597 shares were reserved for issuance
upon exercise of various outstanding warrants or options granted to various
persons and/or entities pursuant to various agreements and stock offerings; and
WHEREAS, the principal offices of Water-Jel are located at 488
Madison Avenue, New York, New York 10022, and the Secretary of State of the
State of New York has been designated as the party upon whom process against
Water-Jel may be served within the State of New York; and
WHEREAS, the Board of Directors of X-Ceed and of Water-Jel,
respectively, deem it advisable and generally to the advantage and welfare of
the two corporate parties and their respective shareholders that Water-Jel merge
with X-Ceed under and pursuant to the provisions of Section 252(c) of the
Delaware General Corporation Law and of Section 907 of the New York Business
Corporation Law; and
WHEREAS, the shareholders of Water-Jel have approved the
merger by a two-thirds vote at a duly convened meeting of shareholders on
February 20, 1998;
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements herein contained and of the mutual benefits hereby provided,
it is agreed by and between the parties as follows:
1. Merger. Water-Jel shall be and it hereby is merged
into X-Ceed.
2. Effective Date. This Agreement of Merger shall become
effective immediately upon compliance with the laws of the State of Delaware and
New York, the term of such effectiveness being hereinafter called the Effective
Date.
3. Surviving Corporation. X-Ceed shall survive the merger
herein contemplated and shall continue to be governed by the laws of the State
of Delaware, but the separate corporate existence of Water-Jel shall cease
forthwith upon the Effective Date.
4. Authorized Capital. The authorized capital stock of X-Ceed
following the effective date shall be 30,000,000 shares of Common Stock, par
value $.01 per share, and 1,000,000 shares of Preferred Stock, par value $.05
per share, unless and until the same shall be changed in accordance with the
laws of the State of Delaware.
5. Certificate of Incorporation. The Certificate of
Incorporation set forth in Exhibit A attached hereto shall be the Certificate of
Incorporation of X-Ceed following the Effective Date, unless and until the same
shall be amended or repealed in accordance with the provisions thereof, which
power to amend or repeal is hereby expressly reserved, and all rights or powers
of whatsoever nature conferred in such Certificate of Incorporation or herein
upon any shareholder or director or officer of X-Ceed or upon any other person
whomsoever are subject to this reserve power. Such Certificate of Incorporation
shall constitute the Certificate of Incorporation of X-Ceed separate and apart
from this Agreement of Merger and may be separately certified as the Certificate
of Incorporation of X-Ceed.
6. Bylaws. The Bylaws set forth as Exhibit B hereto shall be
the Bylaws of X-Ceed following the Effective Date unless and until the same
shall be amended or repealed in accordance with the provisions thereof.
7. Further Assurance of Title. If at any time X-Ceed shall
consider or be advised that any acknowledgments or assurances in law or other
similar actions are necessary or desirable in order to acknowledge or confirm in
and to X-Ceed any right, title or interest of Water-Jel held immediately prior
to the Effective Date, Water-Jel and its proper officers and directors shall and
will execute and deliver all such acknowledgments or assurances in law and do
all things necessary or proper to acknowledge or confirm such right, title, or
interest in X-Ceed as shall be necessary to carry out the purposes of this
Agreement of Merger, and X-Ceed and the proper officers and directors thereof
are fully authorized to take any and all such action in the name of Water-Jel or
otherwise.
8. Retirement of Organization Stock. Forthwith upon the
Effective Date, each of the 100 shares of the Common Stock of X-Ceed presently
issued and outstanding shall be retired, and no shares of Common Stock or other
securities of X-Ceed shall be issued in respect thereof.
9. Conversion of Outstanding Stock. Forthwith upon the
Effective Date, each of the issued and outstanding shares of Common Stock of
Water-Jel and all rights in respect thereof shall be converted into one full
paid and nonassessable share of Common Stock of X-Ceed, and each certificate
nominally representing shares of Common Stock of Water-Jel shall for all
purposes be
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deemed to evidence the ownership of a like number of shares of the Common Stock
of X-Ceed. The holders of such certificates shall not be required immediately to
surrender the same in exchange for certificates of Common Stock of X-Ceed but,
as certificates nominally representing shares of Common Stock of Water-Jel are
surrendered for transfer, X-Ceed will cause to be issued certificates
representing shares of Common Stock of X-Ceed and, at any time upon surrender by
any holder of certificates nominally representing shares of Common Stock of
Water-Jel for transfer, X-Ceed will cause to be issued certificates representing
shares of Common Stock of X-Ceed and, at any time upon surrender by any holder
of certificates nominally representing shares of Common Stock of Water-Jel,
X-Ceed will cause to be issued through its transfer agent therefor certificates
for a like number of shares of Common Stock of X-Ceed.
10. Retirement of Treasury Stock. Forthwith upon the Effective
Date, any shares of Common Stock of Water-Jel held in the Treasury of Water-Jel
on the Effective Date shall be retired and no shares of Common Stock or any
other securities of X-Ceed shall be issued in respect thereof.
11. Stock Options. Forthwith upon the Effective Date, each
outstanding option to purchase shares of Common Stock granted under Water-Jel's
1990 Stock Option Plan, the 1994 Stock Option Plan, the 1995 Stock Option Plan,
the 1998 Stock Option Plan, the outstanding Class A and Class B Warrants,
Underwriter's Warrants and all other options and warrants issued by Water-Jel
prior to the Effective Date shall be converted into and become an option or
warrant to purchase the same number of shares of the Common Stock of X-Ceed,
upon the same terms and conditions as set forth in each Plan, and every other
agreement affecting the issuance of shares upon exercise of options or warrants
in effect immediately prior to the Effective Date. The same number of shares of
Common Stock of X-Ceed shall be reserved for issuance upon the exercise of all
outstanding options or warrants as were so reserved for issuance by Water-Jel
immediately prior to the Effective Date.
12. Book Entries. The merger contemplated hereby shall be
treated as a pooling of interests and as of the Effective Date entries shall be
made upon the books of X-Ceed in accordance with the following:
(a) The assets and liabilities of Water-Jel shall be recorded at the
amounts at which they are carried on the books of Water-Jel immediately prior to
the Effective Date with appropriate adjustment to reflect the retirement of the
100 shares of Common Stock of X-Ceed presently issued and outstanding.
(b) There shall be credited to the Capital Account the aggregate amount of
the par value per share of all of the Common Stock of X-Ceed resulting from the
conversion of the outstanding Common Shares of Water-Jel.
(c) There shall be credited to the Capital Surplus Account an amount equal
to that carried on the Capital Surplus Account of Water-Jel immediately prior to
the Effective Date.
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(d) There shall be credited to the Earned Surplus Account an amount equal
to that carried on the Earned Surplus Account of Water-Jel immediately prior to
the Effective Date.
13. Directors. The names and post office addresses of the
directors of X-Ceed following the Effective Date, who shall be three in number
and who shall hold office from the Effective Date until the next annual meeting
of shareholders of X-Ceed to be held in 1999 and until their successors shall be
elected and shall qualify, are as follows:
Name Post Office Address
Werner Haase c/o Water-Jel Technologies, Inc.
488 Madison Avenue
New York, NY 10022
Norman Doctoroff c/o Water-Jel Technologies, Inc.
488 Madison Avenue
New York, NY 10022
John Birmingham c/o Water-Jel Technologies, Inc.
488 Madison Avenue
New York, NY 10022
14. Officers. The names and post office addresses of the first
officers of X-Ceed following the Effective Date, who shall be three in number
and who shall hold office from the Effective Date until their successors shall
be appointed and shall qualify or until they shall resign or be removed from
office, are as follows:
Name Offices Post Office Address
Werner Haase Chief Executive Officer c/o Water-Jel Technologies, Inc.
488 Madison Avenue
New York, NY 10022
Nurit Kahane Haase Senior Vice President c/o Water-Jel Technologies, Inc.
488 Madison Avenue
New York, NY 10022
James Edwards Chief Financial Officer c/o Water-Jel Technologies, Inc.
488 Madison Avenue
New York, NY 10022
15. Vacancies. If, upon the Effective Date, a vacancy shall
exist in the Board of Directors or in any of the offices of X-Ceed as the same
are specified above, such vacancy shall thereafter be filled in the manner
provided by law and the Bylaws of X-Ceed.
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IN WITNESS WHEREOF, each of the corporate parties hereto,
pursuant to authority duly granted by the Board of Directors, has caused this
Agreement of Merger to be executed by a majority of its directors and its
corporate seal to be hereunto affixed.
X-CEED, INC.
Corporate Seal
By: s/ Werner Haase
Werner Haase, Chairman
By: s/ John A. Bermingham
John A. Bermingham, Director
By: s/ Norman Doctoroff
Norman Doctoroff
WATER-JEL TECHNOLOGIES, INC.
Corporate Seal
By: s/ Werner Haase
Werner Haase
By: s/ John A. Bermingham
John A. Bermingham
By: s/ Norman Doctoroff
Norman Doctoroff
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