Exhibit F
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
AMENDMENT NO. 1,
dated as of February 11, 1999,
to
AGREEMENT AND PLAN OF MERGER
dated as of December 8, 1998,
by and among
ZUELLIG GROUP N.A., INC.
▇▇▇▇▇▇, INC.
AND CERTAIN OTHER PARTIES
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
This AMENDMENT NO. 1 (this "Amendment"), dated as of February
11, 1999, is by and among ▇▇▇▇▇▇, Inc., a Colorado corporation (the "Company"),
QQB Holdings I, Inc., a Delaware corporation and a wholly owned subsidiary of
the Company, QQB Holdings II, Inc., a New York corporation and a wholly owned
subsidiary of the Company, QQB Holdings III, Inc., a Delaware corporation and a
wholly owned subsidiary of the Company, Zuellig Group N.A., Inc., a Delaware
corporation ("ZGNA"), Zuellig Botanicals, Inc., a Delaware corporation and a
wholly owned subsidiary of ZGNA ("ZBI"), Zuellig Botanical Extracts, Inc., a
Delaware corporation and a wholly owned subsidiary of ZBI, ZetaPharm, Inc., a
New York corporation and a wholly owned subsidiary of ZGNA, and ▇▇▇▇▇▇ Drug
Company, Inc., a Delaware corporation and a wholly owned subsidiary of ZGNA.
R E C I T A L S :
WHEREAS, the parties hereto have entered into that certain
Agreement and Plan of Merger (the "Agreement"), dated as of December 8, 1998;
and
WHEREAS, such parties wish to amend the Agreement and certain
related agreements pursuant to Section 10.6(a) of the Agreement;
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual representations, warranties, covenants and agreements contained in
the Agreement, the parties hereby agree as follows:
SECTION 1. DEFINITIONS.
(A) Capitalized terms used in this Amendment without
definition shall have the meaning ascribed to them in the Agreement.
(B) Section 1 of the Agreement is hereby amended to add the
following defined terms:
"Letter Agreement" shall mean the letter agreement
relating to the goodwill associated with the name and ▇▇▇▇ "Botanicals
International" and the name "Zuellig Botanical Extracts, Inc.", dated
as of the Closing Date, by and between the Company and ZBI,
substantially in the form of Exhibit M.
"License Agreement" shall mean the license agreement
relating to the name and ▇▇▇▇ "Botanicals
International" and the name "Zuellig Botanical Extracts, Inc.", dated
as of the Closing Date, by and between ZBI and Zuellig Botanical
Extracts, substantially in the form of Exhibit L.
"Transaction Documents" shall mean this Agreement,
the Governance Agreement, the Escrow Agreement, the Stock Option
Agreement, the Sourcing Agency Agreement, the Agreement Regarding
Employees, the Registration Rights Agreement, the Powders Option
Agreement, the License Agreement and the Letter Agreement.
SECTION 2. AMENDMENTS.
(A) Section 7.4 of the Agreement is amended in its entirety to
read as follows:
"7.4. Stockholder Approval.
At the stockholders meeting called by the Company
pursuant to Section 6.4 hereof, this Agreement and the transactions
contemplated hereby shall have been approved and adopted by a majority
of a quorum of the Company's stockholders pursuant to the rules of the
NASDAQ market, by the number of votes required under the Colorado
Business Corporation Act."
(B) Section 7.8 is hereby amended in its entirety to read as
follows:
"7.8. Transaction Documents.
The Company and each of the other parties thereto
shall have executed and delivered (i) the Escrow Agreement, (ii) the
Powders Option Agreement, (iii) the Governance Agreement, (iv) the
Sourcing Agency Agreement, (v) the Registration Rights Agreement, (vi)
the Agreement Regarding Employees, (vii) the Letter Agreement and
(viii) the License Agreement."
(C) Section 8.10 is hereby amended in its entirety to read as
follows:
"8.10. Transaction Documents.
ZGNA or its Subsidiary and each of the other parties
thereto shall have executed and delivered (i) the Escrow Agreement,
(ii) the Powders Option Agreement, (iii) the Governance Agreement, (iv)
the Sourcing Agency Agreement, (v) the Registration Rights Agreement,
(vi) the
Agreement Regarding Employees, (vii) the Letter Agreement and (viii)
the License Agreement."
(D) Section 9.1(b) of the Agreement is amended in its entirety
to read as follows:
"(b) by ZGNA or the Company if the Closing shall not
have occurred on or before May 31, 1999, except that ZGNA and the
Company shall have the right, in their mutual discretion, to extend the
time period in this Section 9.1(b) an additional 45 days; provided that
the right to terminate this Agreement pursuant to this Section 9.1(b)
shall not be available to any party whose failure to perform any of its
obligations under this Agreement results in the failure of the Closing
to be consummated by such date;"
(E) The following Section 10.9 is hereby added to the
Agreement:
"10.9. Arbitration.
(a) The parties shall initially attempt to resolve by
direct negotiation any dispute, controversy or claim arising out of or
relating to (i) this Agreement or the other Transaction Documents, (ii)
its or their breach, interpretation, termination or validity, or (iii)
the transactions contemplated hereby or thereby (each, a "Dispute").
(b) If the parties are not able to settle the Dispute
by direct negotiations within thirty (30) days after written notice by
one party to the other of the Dispute, any party may initiate an
arbitration to resolve the Dispute; the parties hereto agree that
arbitration pursuant to this Section shall be the sole means of
resolving Disputes, and that no party shall commence any proceeding in
any court or tribunal with respect to a Dispute. All such Disputes
shall be arbitrated in Denver, Colorado pursuant to the Commercial
Arbitration Rules of the American Arbitration Association except that
the parties expressly do not constitute the American Arbitration
Association as administrator of the arbitration as provided in Rule 3
of such Rules and the arbitration shall be administered by the Chair of
the Panel. Each of the Company, on the one hand, and ZGNA and ZBI, on
the other hand, shall select an arbitrator, and the two arbitrators
shall select a third arbitrator. The third arbitrator shall act as
Chair of the panel. The arbitrators shall be certified public
accountants, attorneys or other persons, in each case, who are
experienced in the buying and selling of businesses. If the two
arbitrators fail to agree upon the appointment of a third arbitrator
within 30 days,
the American Arbitration Association shall appoint the third
arbitrator.
(c) Judgment upon any award rendered by the
arbitrator(s), which may include specific performance of the
obligations of the parties under this Agreement, shall be binding and
may be entered in any court having jurisdiction. Nothing in this
Section shall preclude any party from seeking temporary or preliminary
injunctive equitable relief from a court of competent jurisdiction and
Section 10.9(a) and (b) shall not apply in that situation. No such
court order shall stay or otherwise impede the arbitration proceeding.
The statute of limitations, estoppel, waiver, laches, and similar
doctrines, which would otherwise be applicable in any action brought by
a party shall be applicable in any arbitration proceeding and the
commencement of an arbitration proceeding shall be deemed the
commencement of an action for those purposes. The Federal Arbitration
Act shall apply to the construction, interpretation and enforcement of
this arbitration provision.
(d) Nothing in this Agreement shall preclude the
arbitrator(s) from rendering an interim award (which may include
equitable relief) which may be enforced by the parties hereto as though
a final award.
(e) The Company, on the one hand, and ZGNA and ZBI,
on the other hand, shall jointly and equally bear all arbitration
expenses, provided, however, that any legal fees or expenses incurred
by any party in connection with such arbitration shall be borne by the
party incurring such expenses."
(F) The form of Escrow Agreement, attached to the Agreement as
Exhibit D, is amended and restated in its entirety in the form of Attachment I
hereto.
(G) The form of Governance Agreement, attached to the
Agreement as Exhibit E, is amended and restated in its entirety in the form of
Attachment II hereto.
(H) The form of License Agreement shall be attached to the
Agreement as Exhibit L, and shall be substantially in the form attached hereto
as Attachment III.
(I) The form of Letter Agreement shall be attached to the
Agreement as Exhibit M, and shall be substantially in the form attached hereto
as Attachment IV.
SECTION 3. MISCELLANEOUS.
3.1. Governing Law.
This Amendment shall be governed by and construed in
accordance with the laws of the State of Colorado applicable to contracts made
and to be performed entirely within such State, except that all issues relating
to the Delaware Mergers shall be governed by and construed in accordance with
the laws of the State of Delaware and all issues relating to the New York Merger
shall be governed by and construed in accordance with the laws of the State of
New York.
3.2. Paragraph and Section Headings.
The headings of the sections and subsections of this Amendment
are inserted for convenience only and shall not be deemed to constitute a part
thereof.
3.3. Successors and Assigns.
This Amendment shall inure to the benefit of and be binding
upon the successors and assigns of each of the parties.
3.4. Severability.
In the event that any part or parts of this Amendment shall be
held illegal or unenforceable by any court or administrative body of competent
jurisdiction, such determination shall not effect the remaining provisions of
this Amendment which shall remain in full force and effect.
3.5. Third Parties.
Nothing contained in this Amendment or in any instrument or
document executed by any party in connection with the transactions contemplated
hereby shall create any rights in, or be deemed to have been executed for the
benefit of, any person that is not a party hereto or thereto or a successor or
permitted assign of such a party.
3.6. Counterparts.
This Amendment may be executed in one or more counterparts,
each of which shall be deemed an original and all of which together shall be
considered one and the same agreement.
▇▇▇▇▇▇, INC. ZUELLIG GROUP N.A., INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------ --------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer Title: President
QQB HOLDINGS I, INC. ZUELLIG BOTANICAL EXTRACTS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------- --------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President Title: Secretary & Treasurer
QQB HOLDINGS II, INC. ZETAPHARM, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------- --------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President Title: Secretary & Treasurer
QQB HOLDINGS III, INC. ▇▇▇▇▇▇ DRUG COMPANY, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------- --------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President Title: Secretary & Treasurer
ZUELLIG BOTANICALS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Secretary & Treasurer