AGREEMENT AND PLAN OF MERGER
among
Alfa International Holdings Corp.
and
▇▇▇▇▇▇▇▇▇ Corp.
and
Journey of Light, Inc.
------------------
May 19, 2005
------------------
TABLE
OF CONTENTS
Page
1.
The Merger
9
1.1
Merger
9
1.2
Filing and Effectiveness
9
1.3
Certificate of Inc. & By-Laws of Surviving
Corporation
9
1.4
Certificate of Incorporation & By-Laws
of Alfa
10
1.5
Directors; Officers
10
1.6
Effect of the Merger
10
1.7
Name Change
10
2.
Status and Conversion of Securities
10
2.1
Alfa
10
2.2
▇▇▇▇▇▇▇▇▇ Corp.
11
2.3
Journey of Light, Inc.
11
2.4
Calculation of Merger Price /
Conversion of Securities
12
2.5
Payment of Merger Price
13
2.6
Closing of Transfer Books
14
Page
2.7
No Further Rights
14
3.
Representations & Warranties of JOL
14
3.1
Due Incorporation and Qualification;
Authorization
14
3.2
Outstanding Securities
15
3.3
Options or Other Rights
16
3.4
No Breach
16
3.5
Title to Shares
16
3.6
Financial Statements
16
3.7
Absence of Certain Changes or Events
17
3.8
Absence of Undisclosed Liabilities
17
3.9
Information Supplied
17
3.10
Brokers
18
4.
Representations and Warranties of Alfa and the
Merger-Sub
18
4.1
Due Incorporation
18
4.2
Corporate Power
18
4.3
Options or Other Rights
19
Page
4.4
Corporate Status
19
4.5
No Breach
19
4.6
Financial Statements
20
4.7
Absence of Certain Changes or Events
20
4.8
Absence of Undisclosed Liabilities
20
4.9
Information Supplied
21
5.
Covenants and Agreements
21
5.1
Expenses
21
5.2
Further Assurances
21
6.
Conditions Precedent to the Obligation of
Alfa and the Merger-Sub to Effect the Merger
22
6.1
Representations and Warranties
22
6.2
Litigation
22
6.3
Certified Copies of Board Resolutions
and Consents
22
6.4
The Qutopia Project
23
Page
7.
Conditions Precedent to the Obligation of
JOL to Effect the Merger
23
7.1
Representations and Warranties
23
7.2
Litigation
23
7.3
Certified Copies of Board Resolutions
and Consents
24
8.
Termination
24
9.
Indemnification
24
10
..
Miscellaneous
25
10.1
Publicity
25
10.2
Notices
25
10.3
Entire Agreement
26
10.4
Modification
26
10.5
Waiver
26
10.6
Governing Law
26
10.7
Binding Effect; No Assignment
27
10.8
Variations in Pronouns
27
Page
10.9
Counterparts
27
10.10
Exhibits & Schedules
27
10.11
Headings
27
10.12
Confidentiality
27
SCHEDULES:
Schedule 1.3.1 Certificate of Incorporation of the Merger-Sub
Schedule 1.3.2 By-Laws of the Merger -Sub
Schedule 1.4.1 Certificate of Incorporation of Alfa
Schedule 1.4.2 By-Laws of Alfa
Schedule 3.6 JOL Liabilities
Schedule 3.7 Changes or Events - JOL
Schedule 4.6 Alfa Liabilities
Schedule 4.7 Changes or Events - Alfa
EXHIBITS:
Exhibit A: Alfa's December 31, 2004 Report on Form 10-KSB, and
Alfa's March 31, 2005 Report on Form 10-QSB.
Exhibit B: JOL's certified financial statements for its fiscal
years ended December 31, 2004 and December 31, 2005.
Exhibit C: Alfa Warrants & Options outstanding
Exhibit D: JOL Warrants & Options outstanding
Exhibit E: Form of Alfa Warrant; Form of JOL Warrant;
Exhibit F: Form of Unanimous Joint Consent of the Directors and
Sole Shareholder of the Merger-Sub
Exhibit G: Form of Certified Resolution of the Board of
Directors of JOL
Exhibit G1: Form of Resolution of the Board of Directors of JOL
Exhibit H: Form of Certified Resolutions of the Board of
Directors of Alfa
Exhibit H1: Form of Resolution of the Board of Directors of Alfa
Exhibit I: Blank
Exhibit J: Form of Certificate of Merger - New York
Exhibit K: Form of Certificate of Merger - Delaware
Exhibit L: Form of Written Consent a majority of the
shareholders of JOL
Exhibit M: Form of Written Consent a majority of the
shareholders of Alfa
Exhibit N: Draft Memorandum of Understanding
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated May 19, 2005 (the "Merger
Agreement"), among Alfa International Holdings Corp., a Delaware
corporation ("Alfa"), ▇▇▇▇▇▇▇▇▇ Corp., a New York corporation
(the "Merger-Sub") and Journey of Light, Inc., a Delaware
corporation ("JOL"). The Merger-Sub shall be the surviving
corporation of the proposed merger between the Merger-Sub and JOL
and, in such capacity, the Merger-Sub shall sometimes be referred
to herein as the "Surviving Corporation."
W I T N E S S E T H:
WHEREAS, the Merger-Sub was recently formed and constituted
as a wholly-owned subsidiary of Alfa for the purpose of merging
with JOL as provided for in this Agreement, and
WHEREAS, the respective Boards of Directors of Alfa, the
Merger-Sub and JOL have determined that it is advisable and in
the best interests of their respective equity owners to
consummate the business combination transaction provided for
herein in which JOL would merge (the "Merger") with and into the
Merger-Sub; and
WHEREAS, Alfa, the Merger-Sub and JOL desire to make certain
agreements in connection with the Merger.
NOW, THEREFORE, in consideration of the mutual premises,
covenants, and agreements set forth in this Agreement, and for
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. The Merger.
1.1 Merger. At the Effective Time (as defined in
Section 1.2), JOL shall be merged with and into the Merger-Sub
(the "Merger") in accordance with the provisions of this Merger
Agreement and the New York Business Corporation Law and the
Delaware Corporation Law and the separate existence of JOL shall
thereupon cease. The Merger-Sub shall be the surviving
corporation in the Merger, and the name of the Surviving
Corporation shall become "Journey of Light, Inc." As a result of
the Merger, all outstanding shares of capital stock of JOL (the
"JOL Capital Stock"), and any options, warrants or other
securities convertible into JOL Capital Stock shall be converted
in the manner provided in Article 2.
1.2 Filing and Effectiveness. As soon as practicable
after the satisfaction or waiver of the conditions hereinafter
set forth, JOL and the Merger-Sub shall deliver for filing with
the Secretary of the State of New York pursuant to the New York
Business Corporation Law and with the Secretary of the State of
Delaware pursuant to the Delaware Corporation Law duly executed
Certificates of Merger, substantially in the form of Exhibits J
and K (the "Certificates of Merger"). The Merger shall become
effective on the date and at the time that the Certificates of
Merger are filed with the Secretary of State of New York and the
Secretary of State of Delaware (the "Effective Time").
1.3 Certificate of Incorporation and By-Laws of
Surviving Corporation. At the Effective Time, (i) the Articles of
Incorporation of the Merger-Sub, as in effect immediately prior
to the Effective Time, shall be the Articles of Incorporation of
the Surviving Corporation until amended as provided in the New
York Business Corporation Law and (ii) the By-Laws of the Merger-
Sub as in effect immediately prior to the Effective Time shall be
the By-Laws of the Surviving Corporation. The Certificate of
Incorporation and By-Laws of the Merger-Sub as in effect as of
the date hereof and to be in effect as of the Effective Time are
attached hereto as Schedules 1.3-1 and 1.3-2, respectively.
1.4 Certificate of Incorporation and By-Laws of Alfa. The
Certificate of Incorporation and the By-Laws of Alfa as in effect
on the date hereof and to be in effect as of the Effective Time
are attached hereto as Schedules 1.4-1 and 1.4-2, respectively.
1.5 Directors; Officers. The Directors and officers of
the Merger-Sub at the Effective Time shall continue as the
Directors and officers of the Surviving Corporation to hold
office subject to the By-laws of the Surviving Corporation.
1.6 Effect of the Merger. At the Effective Time, the
Merger-Sub as the Surviving Corporation, (i) shall continue to
possess all of its respective property, rights, privileges,
immunities, powers and purposes and shall succeed respectively to
all of the property, rights, privileges, immunities, powers and
purposes of JOL, and (ii) shall continue to be subject to all of
its respective liabilities, obligations and penalties and shall
succeed respectively to all of the liabilities, obligations and
penalties of JOL, all as more fully provided for under the
applicable provisions of the New York Business Corporation Law
and the Delaware Corporation Law.
1.7 Name Change. As soon as practicable on or after the
Effective Time, the Merger-Sub shall amend its Certificate of
Incorporation to (i) change its corporate name to "Journey of
Light, Inc.", and (ii) to reduce its authorized capital stock to
1,000 shares of Merger-Sub Common Stock.
2. Status and Conversion of Securities.
2.1 Alfa. Alfa is currently authorized to issue
50,000,000 shares of its $0.001 par value common stock ("Alfa
Common Stock") and 1,000,000 shares of its $0.001 par value
preferred stock (the "Preferred Stock"), 108,850, shares of which
Preferred Stock have been, as of the date of this Merger
Agreement, issued and designated Series B Redeemable Convertible
Preferred Stock (the "Series B Preferred Stock"). The 108,850
shares of Series B Preferred Stock are convertible into 4,354,000
shares of Alfa Common Stock. As of the date of this Merger
Agreement there are 11,655,552 shares of Alfa Common Stock issued
and outstanding. Alfa also has outstanding 5,124,000 common stock
purchase warrants (the "Alfa Warrants") at various exercise
prices per share as indicated on Exhibit C attached hereto. The
aforementioned 11,655,552 shares of Alfa Common Stock plus the
4,354,000 shares of Alfa Common Stock into which the Series B
Preferred Stock is convertible plus any additional shares of Alfa
Common Stock that are issued prior to the Effective Time as a
result of the exercise of Alfa Warrants or otherwise, are
hereinafter referred to as the "Outstanding Alfa Common Stock".
The holders of the shares of Outstanding Alfa Common Stock are
hereinafter referred to as the "Alfa Shareholders".
2.2 ▇▇▇▇▇▇▇▇▇ Corp. The Merger-Sub is authorized to
issue 13,000,000 shares of its common stock, $0.01 par value (the
"the Merger-Sub Common Stock") and 12,000,000 shares of its
preferred stock, $0.01 par value . As of the date of this Merger
Agreement, 1,000 shares of the Merger-Sub Common Stock (the
"Outstanding Merger-Sub Common Stock") are issued and outstanding
and shall remain outstanding (the "Surviving Corporation Common
Stock") and none of the Merger-Sub's preferred stock is either
issued or outstanding, so that at the Effective Time, Alfa shall
be the holder of all of the issued and outstanding shares of the
Surviving Corporation Common Stock.
2.3 Journey of Light, Inc. JOL is authorized to
issue 50,000,000 shares of common stock, par value $.0001 per
share (the "JOL Common Stock"). As of the date of this Merger
Agreement there are 15,561,000 shares of JOL Common Stock issued
and outstanding. JOL also has outstanding 62,235 common stock
purchase warrants each exercisable for the purchase of one share
of JOL Common Stock at one dollar ($1.00) per share and 922,000
common stock purchase warrants each exercisable for the purchase
of one share of JOL Common Stock at eight dollars ($8.00) per
share (collectively, the "JOL Warrants") as indicated on Exhibit
D attached hereto. The aforementioned 15,561,000 shares of JOL
Common Stock together with any additional shares of JOL Common
Stock that are issued prior to the Effective Time as a result of
the exercise of JOL Warrants, are hereinafter referred to as the
"Outstanding JOL Common Stock". The holders of the shares of
Outstanding JOL Common Stock are hereinafter referred to as the
"JOL Shareholders".
2.4 Calculation of Merger Price / Conversion of Securities.
2.4.1 The number of shares of Alfa Common Stock to be
issued to the JOL Shareholders in exchange for each share of the
Outstanding JOL Common Stock is equal to that number (the "Merger
Price Number") which is calculated by dividing the Outstanding
Alfa Common Stock by the Outstanding JOL Common Stock and
carrying out such calculation to two (2) decimal places.
2.4.2 At the Effective Time by virtue of the Merger:
(a) Each share of the Outstanding JOL Common Stock which is
issued and outstanding immediately prior to the Effective Time,
shall, automatically and without any action on the part of the
holder thereof, become and be converted into the right to receive
the number of fully paid and non-assessable shares of Alfa Common
Stock that is calculated by multiplying the number one (1) by the
Merger Price Number in accordance with paragraph 2.5 hereof (the
"Merger Price").
(b) Each Alfa Warrant which is issued and outstanding
immediately prior to the Effective Time shall continue in full
force in accordance with the terms and conditions contained in
such Alfa Warrant.
(c) Each JOL Warrant which is issued and outstanding
immediately prior to the Effective Time shall automatically and
without any action on the part of the holder thereof, become and
be converted into the right to receive one (1) fully paid and
nonassessable Alfa Warrant, exercisable at the "Exercise Price"
(as defined in such JOL Warrant for which it is being exchanged)
for the purchase of the number of shares of Alfa Common Stock
that is calculated by multiplying the number one (1) by the
Merger Price Number in accordance with paragraph 2.5 hereof (the
"Merger Price"). Each Alfa Warrant issued pursuant to this
paragraph 2.4.2(c) will be in the form of the Alfa Warrant
attached hereto as Exhibit E.
At the Effective Time all rights in respect of the JOL
Warrants and the shares of Outstanding JOL Common Stock shall
cease to exist, other than the right to receive the Merger Price.
2.5 Payment of Merger Price. The Merger Price shall be
paid to the JOL Shareholders and to the holders of the JOL
Warrants, (collectively the "Sellers") as follows:
(i) Upon receipt by Alfa of the certificates representing
the shares of the Outstanding JOL Common Stock, Alfa will, in
exchange for each share of Outstanding JOL Common Stock held by
each Seller, issue to such Seller the number of shares of Alfa
Common Stock that is calculated by multiplying the number one by
the Merger Price Number. No fractional shares of Alfa Common
Stock will be issued and all such fractional shares resulting
from the calculation in this paragraph 2.5(i) will be rounded up
to the nearest whole share amount.
(ii) Upon receipt by Alfa of the certificates representing
the JOL Warrants, Alfa will, in exchange for each JOL Warrant
held by each Seller, issue to such Seller the number of Alfa
Warrants, each exercisable at the "Exercise Price" (as defined in
such JOL Warrant for which it is being exchanged) for the
purchase of the number of shares of Alfa Common Stock that is
calculated by multiplying the number one (1) by the Merger Price
Number.
The Alfa Common Stock and the Alfa Warrants which the
Sellers will receive pursuant to paragraph 2.5 and the Alfa
Common Stock to be issued upon the exercise of such Alfa Warrants
will be "unregistered securities" as that term is defined under
the Securities Act of 1933, as amended (the "Act") and as such
will be subject to significant restrictions against sale or
further transfer.
2.6 Closing of Transfer Books. At the Effective Time,
the stock transfer books of JOL shall be closed and no transfers
of the JOL Capital Stock shall thereafter be made. If, after the
Effective Time, valid certificates representing the JOL Common
Stock or the JOL Warrants (collectively the "Securities") are
presented to the Surviving Corporation, such certificates shall
be cancelled and exchanged for the Merger Price as provided for
herein.
2.7 No Further Rights. From and after the Effective Time
the Sellers shall cease to have any rights as stockholders of JOL
or the Surviving Corporation, other than the right to receive the
Merger Price in accordance with the terms hereof.
3. Representations and Warranties of JOL. JOL represents
and warrants to Alfa and the Merger-Sub as follows:
3.1 Due Incorporation and Qualification; Authorization.
JOL is a corporation duly organized, validly existing and in good
standing under the laws of the state of Delaware and has the
corporate power and lawful authority to own and lease its assets
and properties and to carry on its business as now being, and as
heretofore, conducted. JOL is not qualified or otherwise
authorized as a foreign corporation to transact business in any
jurisdiction other than New York and Delaware, and its failure to
so qualify will not have a Materially Adverse Effect on JOL. The
Merger and the actions contemplated by this Merger Agreement were
approved by the written consent of a majority of the shareholders
of JOL dated as of May 19, 2005 and attached hereto as Exhibit L.
The Board of Directors of JOL duly approved this Merger Agreement
by the Certified Resolution of the Board of Directors of JOL
attached hereto as Exhibit ▇. ▇▇▇ has the full legal right and
power and all authority and approval required to enter into,
execute and deliver this Merger Agreement and to perform fully
its obligations hereunder. This Merger Agreement has been duly
executed and delivered and constitutes the legal, valid and
binding obligation of JOL enforceable in accordance with its
terms. No approval or consent of any foreign, federal, state,
county, local or other governmental or regulatory body, and, no
approval or consent of any other person is required in connection
with the execution and delivery by JOL of this Merger Agreement
and the consummation and performance by JOL of the transactions
contemplated hereby. As used herein, a "Material Adverse Effect"
shall mean a material adverse effect on the businesses,
properties, assets, liabilities, condition (financial or
otherwise) or results of operations of an entity (or group of
entities taken as a whole). Notwithstanding the foregoing, a
Material Adverse Effect shall not include any change in political
or economic matters of general applicability.
3.2 Outstanding Securities. JOL is authorized to issue
50,000,000 shares of JOL Common Stock, of which the number of
shares outstanding immediately prior to the Effective Time will
be equal to the number of shares of Outstanding JOL Common Stock
(as defined in Section 2.3 hereof). JOL is authorized to and has,
as of the date of this Merger Agreement, issued the JOL Warrants
as described in Section 2.3 and Exhibit D hereof. The Securities
comprise all of the securities of JOL. No other class of capital
stock or security of JOL is authorized or outstanding. All of the
Securities are duly authorized, validly issued, are of record
owned by the Sellers and are fully paid and nonassessable.
3.3 Options or Other Rights. Other than the purchase
rights associated with the JOL Warrants there are no outstanding
rights, subscriptions, warrants, calls, unsatisfied preemptive
rights, options or other agreements of any kind to acquire any
securities of JOL from JOL. At the Effective Time the unexercised
JOL Warrants will be exchanged for the right to receive similar
Alfa Warrants adjusted to reflect the Merger Price.
3.4 No Breach. The execution, delivery and performance of
this Merger Agreement and the consummation of the transactions
contemplated hereby will not conflict with or result in the
breach or violation of any of the terms or conditions of, or
constitute (or with notice or lapse of time or both constitute) a
default under (i) any provision of the Articles of Incorporation
or By-laws of JOL or (ii) to the best of JOL's knowledge, (a) any
contract or other agreement to which JOL is a party or by or to
which it or any of its assets or properties may be bound or
subject; (b) any order, judgment, injunction, award or decree of
any court, arbitrator or governmental or regulatory body against,
or binding upon JOL or upon the securities, properties or
business of JOL; or (c) any statute, law or regulation of any
jurisdiction as such statute, law or regulation relates to JOL or
to the securities, properties or business of JOL.
3.5 Title to Shares. To the best of JOL's knowledge, each
of the Sellers owns beneficially and of record the Securities, as
recorded in the books and records of JOL, free and clear of any
lien or other encumbrance.
3.6 Financial Statements. JOL has delivered, or on or
before the date of this Agreement (the "Closing Date") will
deliver, to Alfa copies of its balance sheet, operating
statements and schedule of shareholder's equity (collectively the
"JOL Financial Statements") as at the end of its most recent two
fiscal years, such JOL Financial Statements having been, or prior
to the Effective Time will be, certified by any independent
certified public accountant. Said JOL Financial Statements are
complete, accurate and fairly present the financial condition of
JOL as of the date thereof, all in conformity with generally
accepted accounting principles applied on a consistent basis.
JOL has no material liabilities, either fixed or contingent, not
reflected in such financial statements, other than for contracts
or obligations incurred in the ordinary and usual course of
business or as set forth in Schedule 3.6, and no such contracts
or obligations constitute liens or other liabilities which, if
disclosed, would alter substantially the financial condition of
JOL as reflected in the JOL Financial Statements. All liabilities
for the current and for all prior years, including any income and
sales taxes or other taxes for which JOL has any liability, have
been paid in full or have been adequately provided for in the JOL
Financial Statements in accordance with generally accepted
accounting principles.
3.7 Absence of Certain Changes or Events. Except as set
forth in Schedule 3.7 hereto or as contemplated hereby, since the
date of the JOL Financial Statements, no change, event, or
development or combination of changes or developments (including
any worsening of any condition currently existing) has occurred
or is reasonably expected to have, individually or in the
aggregate, a Material Adverse Effect on JOL.
3.8 Absence of Undisclosed Liabilities. Except for matters
reflected or reserved against in the JOL Financial Statements,
JOL did not have at such date and has not incurred since that
date, any liabilities or obligations (whether absolute, accrued,
contingent, fixed or otherwise, or whether due or to become due)
of any nature, except liabilities or obligations which were
incurred in connection with this Merger Agreement and the
transactions contemplated hereby, or which were incurred in the
ordinary course of business consistent with past practice.
3.9 Information Supplied. Nothing in this Merger Agreement
or any schedule, exhibit, certificate, document, or statement in
writing which has been supplied by or on behalf of JOL, in
connection with the transactions contemplated hereby, contains
any untrue statement of a material fact, or omits any statement
of a material fact required to be stated or necessary in order to
make the statements contained herein or therein not misleading.
There is no fact known to JOL which materially and adversely
affects JOL or the Surviving Corporation, which has not been set
forth in this Merger Agreement or in the schedules, exhibits,
certificates, documents, or statements in writing furnished by
JOL in connection with the transactions contemplated by this
Merger Agreement.
3.10 Brokers. All negotiations relative to this Merger
Agreement and the transactions contemplated hereby have been
carried out by JOL directly with Alfa and the Merger-Sub without
the intervention of any person on behalf of JOL in such manner as
to give rise to any valid claim by any person against JOL, Alfa,
or the Surviving Corporation for a finder's fee, brokerage
commission, or similar payment.
4. Representations and Warranties of Alfa and the Merger-Sub.
Alfa and the Merger-Sub represent and warrant to JOL as follows:
4.1 Due Incorporation. Alfa and the Merger-Sub are
corporations duly organized, validly existing and in good
standing under the laws of the States of Delaware and New York,
respectively, and each has the corporate power and lawful
authority to own, lease and operate its assets, properties and
business and to carry on its business as now being and as
heretofore conducted.
4.2 Corporate Power. Each of Alfa and the Merger-Sub
has the full legal right and power and all authority and approval
required to enter into, execute and deliver this Merger Agreement
and to perform fully its respective obligations hereunder. This
Merger Agreement has been duly executed and delivered and is the
valid and binding obligation of both Alfa and the Merger-Sub
enforceable in accordance with its terms. The Board of Directors
and sole shareholder of the Merger-Sub have duly approved the
Merger and this Merger Agreement by the Unanimous Joint Written
Consent of the Merger-Sub's Board of Directors and Sole
Shareholder dated May 19, 2005 and attached hereto as Exhibit F.
Alfa's Board of Directors duly approved the Merger and this
Merger Agreement at a special meeting held May 19, 2005. The
resolutions adopted at that meeting are attached hereto as
Exhibit H.
4.3 Options or Other Rights. Except as specified in
Exhibit C attached, as of the date of this Merger Agreement there
are no outstanding rights, subscriptions, warrants, calls,
unsatisfied preemptive rights, options, or other agreements of
any kind to acquire any securities of Alfa from Alfa.
4.4 Corporate Status. Alfa was incorporated in Delaware
on October 8, 2004 and is a publicly traded company whose shares
of common stock are traded in the over-the-counter market and
quoted on the NASDAQ OTC Electronic Bulletin Board under the
symbol "TYBR." The Merger-Sub was incorporated on November 4,
2003 under the laws of the State of New York and has not been
engaged in active business operations. Prior to the Effective
Time the Merger-Sub shall have no assets or liabilities other
than the $1,000 of shareholder equity representing Alfa's cash
payment for the Outstanding Merger-Sub Common Stock. There are
no known claims against the Merger-Sub.
4.5 No Breach. The execution, delivery and performance of
this Merger Agreement and the consummation of the transactions
contemplated hereby will not conflict with or result in the
breach or violation of any of the terms or conditions of, or
constitute (or with notice or lapse of time or both constitute) a
default under (i) any provision of the Articles of Incorporation
or By-laws of either Alfa or the Merger-Sub or (ii) to the best
of the knowledge of Alfa and the Merger-Sub, (a) any contract or
other agreement to which either Alfa or the Merger-Sub is a party
or by or to which it or any of its assets or properties may be
bound or subject; (b) any order, judgment, injunction, award or
decree of any court, arbitrator or governmental or regulatory
body against, or binding upon either Alfa or the merger-Sub or
upon the securities, properties or business of either Alfa or the
merger-Sub; or (c) any statute, law or regulation of any
jurisdiction as such statute, law or regulation relates to Alfa
or the merger-Sub or to the securities, properties or business of
either Alfa or the merger-Sub.
4.6 Financial Statements. Alfa has delivered, or on or
before the Closing Date will deliver, to JOL copies of its
balance sheet, operating statements and schedule of shareholder's
equity (collectively the "Alfa Financial Statements") as at the
end of its most recent two fiscal years, such Alfa Financial
Statements having been certified by its independent certified
public accountant. Said Alfa Financial Statements are complete,
accurate and fairly present the financial condition of Alfa as of
the date thereof, all in conformity with generally accepted
accounting principles applied on a consistent basis. Alfa has no
material liabilities, either fixed or contingent, not reflected
in such financial statements, other than for contracts or
obligations incurred in the ordinary and usual course of business
or as set forth in Schedule 4.6, and no such contracts or
obligations constitute liens or other liabilities which, if
disclosed, would alter substantially the financial condition of
Alfa as reflected in the Alfa Financial Statements. All
liabilities for the current and for all prior years, including
any income and sales taxes or other taxes for which Alfa has any
liability, have been paid in full or have been adequately
provided for in the Alfa Financial Statements in accordance with
generally accepted accounting principles.
4.7 Absence of Certain Changes or Events. Except as set
forth in Schedule 4.7 hereto or as contemplated hereby, since the
date of the Alfa Financial Statements, no change, event, or
development or combination of changes or developments (including
any worsening of any condition currently existing) has occurred
or is reasonably expected to have, individually or in the
aggregate, a Material Adverse Effect on Alfa.
4.8 Absence of Undisclosed Liabilities. Except for
matters reflected or reserved against in the Alfa Financial
Statements, Alfa did not have at such date and has not incurred
since that date, any liabilities or obligations (whether
absolute, accrued, contingent, fixed or otherwise, or whether due
or to become due) of any nature, except liabilities or
obligations which were incurred in connection with this Merger
Agreement and the transactions contemplated hereby, which were
incurred in the ordinary course of business consistent with past
practice.
4.9 Information Supplied. Nothing in this Merger
Agreement or any schedule, exhibit, certificate, document, or
statement in writing which has been supplied by or on behalf of
Alfa or the merger-Sub, in connection with the transactions
contemplated hereby, contains any untrue statement of a material
fact, or omits any statement of a material fact required to be
stated or necessary in order to make the statements contained
herein or therein not misleading. There is no fact known to Alfa
or the merger-Sub which materially and adversely affects Alfa or
the Merger-Sub or the Surviving Corporation, which has not been
set forth in this Merger Agreement or in the schedules, exhibits,
certificates, documents, or statements in writing furnished by
Alfa or the merger-Sub in connection with the transactions
contemplated by this Merger Agreement.
5. Covenants and Agreements. The parties covenant and agree
as follows:
5.1 Expenses. The Surviving Corporation shall, except as
otherwise specifically provided herein, bear all expenses
incurred in connection with the preparation, execution and
performance of this Merger Agreement and the transactions
contemplated hereby, including, without limitation, all fees and
expenses of agents, representatives, counsel and accountants.
5.2 Further Assurances. Each of the parties shall
execute such documents and other papers and take such further
actions as may be reasonably required or desirable to carry out
the provisions hereof and the transactions contemplated hereby
including the filing of the Certificates of Merger. Each party
shall use its best efforts to fulfill or obtain the fulfillment
of the conditions to its obligations to effect the Merger.
6. Conditions Precedent to the Obligation of Alfa and the
Merger-Sub to Effect the Merger. The obligation of Alfa and the
Merger-Sub to effect the Merger is subject to the fulfillment on
or prior to the Effective Time of the following conditions, any
one or more of which may be waived by Alfa and the merger-Sub:
6.1 Representations and Warranties. The representations
and warranties of JOL contained in this Merger Agreement shall be
true and accurate on and as of the Effective Time with the same
effect as though made on the Closing Date and JOL shall have
performed all obligations and complied with all covenants
required by this Merger Agreement to be performed or complied
with by it prior to such Effective Time; and JOL shall have
delivered to Alfa and the Merger-Sub a certificate dated at such
Effective Time and signed by the Chairman of the Board of
Directors, Chief Executive Officer or the President of JOL to the
foregoing effect, to the best knowledge of the person giving such
certificate.
6.2 Litigation. No action, suit or proceeding shall have
been instituted before any court or governmental or regulatory
body or threatened by any governmental or regulatory body, to
restrain, modify or prevent the carrying out of the transactions
contemplated hereby, or to seek damages or a discovery order in
connection with such transactions, or that has or may have, in
the opinion of Alfa or the Merger-Sub, a materially adverse
effect on the assets, properties, business, operations or
condition (financial or otherwise) of JOL.
6.3 Certified Copies of Board Resolutions and Consents.
JOL's corporate secretary shall deliver to Alfa and the Merger-
Sub certified copies of (i) the Resolution of the Board of
Directors of JOL in the form attached hereto as Exhibit G, and
(ii) the written consent of a majority of the JOL Shareholders in
the form attached hereto as Exhibit L, authorizing the execution
and delivery and the performance by JOL of its obligations under
this Merger Agreement.
6.4 The Qutopia Project. JOL, or a joint-venture company
of which JOL is a member, or a third party company with which JOL
has a contractual profit-sharing agreement with respect to the
Qutopia Project shall have signed a memorandum of understanding
with the Ministry of Tourism of the Sultanate of Oman with
respect to the development of a real estate project in Oman known
as the "Qutopia Project" as more fully described in the draft
memorandum of understanding attached hereto as Exhibit M.
7. Conditions Precedent to the Obligation of JOL to Effect the
Merger. The obligation of JOL to effect the Merger is subject,
at its option, to the fulfillment on or prior to the Effective
Time of the following conditions, any one or more of which may be
waived by JOL:
7.1 Representations and Warranties. The representations
and warranties of Alfa and the Merger-Sub contained in this
Merger Agreement shall be true and accurate on and as of the
Effective Time with the same effect as though made on the Closing
Date and Alfa and the merger-Sub shall have performed all
obligations and complied with all covenants required by this
Merger Agreement to be performed or complied with by them prior
to such Effective Time; and Alfa and the merger-Sub shall have
delivered to JOL a certificate dated at such Effective Time and
signed by the Chairman of the Board of Directors, Chief Executive
Officer or the President of Alfa and the Merger-Sub to the
foregoing effect, to the best knowledge of the person giving such
certificate.
7.2 Litigation. No action, suit or proceeding shall have
been instituted before any court or governmental or regulatory
body or threatened by any governmental or regulatory body, to
restrain, modify or prevent the carrying out of the transactions
contemplated hereby, or to seek damages or a discovery order in
connection with such transactions, or that has or may have, in
the opinion of JOL, a materially adverse effect on the assets,
properties, business, operations or condition (financial or
otherwise) of either Alfa or the Merger-Sub.
7.3 Certified Copies of Board Resolutions and Consents.
Alfa's and the Merger-Sub's respective corporate secretaries
shall deliver to JOL a certified copy of the Resolutions of the
Board of Directors of Alfa in the form attached hereto as Exhibit
H and a certified copy of the Unanimous Joint Consent of the
Directors and Sole Shareholder of the Merger-Sub in the form
attached hereto as Exhibit F authorizing the execution, delivery
and performance by Alfa and the Merger-Sub respectively of their
obligations under this Merger Agreement.
8. Termination. This Merger Agreement may be terminated at
any time prior to the Effective Time (a) by the mutual consent of
the Boards of Directors of Alfa and JOL, or (b) by either Alfa or
JOL if the Merger shall not have been consummated on or before
December 31, 2005.
9. Indemnification.
A. In order to induce Alfa and the Merger-Sub to enter into
this Agreement, and for other good and valuable consideration,
receipt whereof is acknowledged, JOL agrees to indemnify Alfa and
the Merger-Sub and their successors and assigns, and to hold them
harmless in respect of (i) all liabilities of JOL of any nature,
whether accrued, contingent, absolute or otherwise, as of the
Effective Time, which are not disclosed or provided for in the
financial statements delivered hereunder; (ii) any damage or
deficiency arising from any misrepresentation or breach of
warranty made by JOL herein; and (iii) all actions, suits,
proceedings, demands, assessments, fines, judgments, costs,
expenses, or reasonable attorney's fees incident to the
foregoing;
B. In order to induce JOL to enter into this Agreement, and
for other good and valuable consideration, receipt whereof is
acknowledged, Alfa and the merger-Sub agree to indemnify JOL and
its successors and assigns, and to hold them harmless in respect
of (i) any damage or deficiency arising from any
misrepresentation or breach of warranty made by Alfa and/or the
Merger-Sub herein; and (ii) all actions, suits, proceedings,
demands, assessments, fines, judgments, costs, expenses, or
reasonable attorney's fees incident to the foregoing.
10. Miscellaneous.
10.1 Publicity. No publicity release or announcement
concerning this Merger Agreement or the transactions contemplated
hereby shall be made without advance approval thereof by Alfa.
10.2 Notices. Any notice or other communication required
or permitted hereunder shall be in writing and shall be
delivered, as follows (or to such other address as any party
shall designate by notice given as herein provided):
if to Alfa or the Merger-Sub, to:
Alfa International Holdings Corp., or
▇▇▇▇▇▇▇▇▇ Corp.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: President
if to JOL to:
Journey of Light, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: President
10.3 Entire Agreement. This Merger Agreement (including
the Exhibits) contains the entire agreement among the parties
with respect to the Merger and related transactions, and
supersedes all prior agreements, written or oral, with respect
thereto.
10.4 Modification. This Merger Agreement may be amended,
supplemented, or modified by action taken by or on behalf of the
respective Boards of Directors of the parties hereto at any time
prior to the Effective Time. No such amendment, supplement, or
modification shall be effective unless set forth in a written
instrument duly executed by or on behalf of each party hereto.
10.5 Waiver. Any waiver by any party of a breach of any
term of this Merger Agreement shall not operate as or be
construed to be a waiver of any other breach of that term or of
any breach of any other term of this Agreement. The failure of a
party to insist upon strict adherence to any term of this
Agreement on one or more occasions will not be considered a
waiver or deprive that party of the right thereafter to insist
upon strict adherence to that term or any other term of this
Agreement. Any waiver must be in writing and be authorized by a
resolution of the Board of Directors or by an officer of the
waiving party.
10.6 Governing Law. This Merger Agreement shall be
governed by the laws of the State of New York applicable to
contracts entered into and to be fully performed therein, without
giving effect to the rules governing the conflict of laws. Any
action, suit, or proceeding arising out of, based on, or in
connection with this Merger Agreement or any other transactions
contemplated hereby, or any document relating hereto or delivered
in connection with the transactions contemplated hereby, may be
brought only and exclusively in the Federal or State Courts
located in the City, County and State of New York; and each party
covenants and agrees not to assert, by way of motion, as a
defense or otherwise, in any such action, suit or proceeding, any
claim that it is not subject personally to the jurisdiction of
such court if it has been duly served with process, that its
property is exempt or immune from attachment or execution, that
the action, suit, or proceeding is brought in an inconvenient
forum, that the venue of the action, suit, or proceeding is
improper.
10.7 Binding Effect; No Assignment. This Merger Agreement
shall be binding upon and inure to the benefit of the parties and
their respective successors and legal representatives. This
Merger Agreement is not assignable except by operation of law.
10.8 Variations in Pronouns. All pronouns and any
variations thereof refer to the masculine, feminine or neuter,
singular or plural, as the context may require.
10.9 Counterparts. This Merger Agreement may be executed
by the parties hereto in separate counterparts, each of which
when so executed and delivered shall be an original, but all such
counterparts shall together constitute one and the same
instrument.
10.10 Exhibits & Schedules. The Exhibits and Schedules are
a part of this Merger Agreement as if fully set forth herein.
10.11 Headings. The headings in this Merger Agreement are
for reference only, and shall not affect the interpretation of
this Merger Agreement.
10.12 Confidentiality. In the event that the transactions
contemplated herein are not consummated for any reason, the
parties hereto covenant and agree, each with the other, that,
except as otherwise authorized in writing none of the parties
hereto or any of their directors, officers, representatives,
agents or employees will disclose to third parties, directly or
indirectly, any confidential information or confidential data
relating to any of the parties hereto, their business or affairs
discovered as a result of such party making available to any
other party and its representatives the information requested by
them in connection with the transactions contemplated herein.
IN WITNESS WHEREOF, the parties have executed this Merger
Agreement the date first above written.
▇▇▇▇▇▇▇▇▇ Corp. Journey of Light, Inc.
By:_______________________ By:__________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
President Secretary-Treasurer
Alfa International Holdings Corp.
By:_________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice-President
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