Agreement and Plan of Reorganization between Stein's Holdings, Inc. and Sanitec Services of Hawaii, Inc.

Summary

This agreement is between Stein's Holdings, Inc. and Sanitec Services of Hawaii, Inc. It outlines the terms for Stein's to acquire Sanitec, making Sanitec a wholly owned subsidiary. In exchange for all Sanitec shares, the sole Sanitec shareholder will receive 1,333,334 shares of Stein's common stock. The agreement also requires the parties to execute related documents, including a non-competition agreement, and to take necessary steps to complete the merger, such as filing merger documents with state authorities. The transaction is subject to shareholder approval and other standard closing conditions.

EX-10.1 3 ex10-1.txt AGREEMENT AND PLAN OF REORGANIZATION AGREEMENT AND PLAN OF REORGANIZATION This Agreement and Plan of Reorganization (herein, together with all Exhibits, "Agreement") is entered in to as of November 9, 2001 by and between Stein's Holdings, Inc., a Nevada corporation ("Stein's") and Sanitec Services of Hawaii, Inc., a Hawaii corporation ("Sanitec"). This Agreement sets forth the terms and conditions upon which Sanitec will be acquired by Stein's and operate as a wholly owned subsidiary (the "Merger"), pursuant to an Agreement and Plan of Merger (the "Merger Agreement") in substantially the form attached hereto as Exhibit A, which provides, among other things, for the conversion and exchange of all outstanding and issued shares of common stock of Sanitec ("Sanitec Shares") into 1,333,334 shares of voting $.001 par value common stock of Stein's ("Stein's Common Stock"). In consideration of the mutual promises and covenants contained herein, Sanitec and Stein's agree as follows: ARTICLE I Definitions As used in this Agreement, the following terms (whether used in singular or plural forms) shall have the following meanings: "Sanitec Shareholder" shall mean the sole shareholder of Sanitec, Sanitec USA National, Inc. ("SUSAN"), as of the date of closing. "Sanitec Shares" shall mean the Shares of the Common Stock of Sanitec to be exchanged for shares of Stein's common stock to the Sanitec Shareholders. "Closing Date" shall mean the date upon which the reorganization shall have occurred in accordance with the terms and conditions set forth herein. "Contract" means any written contract, mortgage, deed of trust, bond, indenture, lease, license, note, franchise, certificate, option, warrant, right, or other instrument, document or agreement, and any oral obligation, right or agreement. 1 "Controlled Group" means all trades or businesses (whether or not incorporated) under common control that, together with Sanitec, are treated as a single employer under Section 414(b) or 414(c) of the Code or Section 4001 of ERISA. "GAAP" means generally accepted accounting principles, as the term is defined by the American Institute of Certified Public Accountants under the first standard of reporting under its generally accepted accounting standards. "Knowledge" of Sanitec of or with respect to any matter means that any of the executive officers, directors or managers of Sanitec has, or after due inquiry and investigation would have, actual awareness or knowledge of such matter, and "Knowledge" of Stein's of or with respect to any matter means that any of the executive officers, directors, or senior managers of Stein's has, or after due inquiry and investigation would have, actual awareness or knowledge of such matter. "Legal Requirements" means applicable common law and any statute, ordinance, code or other law, rule regulation, order, technical or other standard requirement, judgment or procedure enacted, adopted, promulgated, applied or followed by any governmental authority, including judgments. "Lien" means any security agreement, financing statement filed with any governmental authority, conditional sale statement filed with any governmental authority, conditional sale or other title retention agreement, any lease consignment or bailment given for purposes of security, any lien, mortgage, indenture, pledge, option, encumbrance, adverse interest, constructive trust or other trust, claim, attachment, exception to or defect in title or other ownership interest (including but not limited to reservations, rights of entry, possibilities of reverter, encroachments, casement, rights of way, restrictive covenants leases and licenses) of any kind, which otherwise constitutes an interest in or claim against property, whether arising pursuant to any Legal Requirement, Contract or otherwise. "Reorganization" shall mean the acquisition by Stein's of the Sanitec Shares in exchange for the Stein's Shares as further defined herein. "Stein's Shares" shall mean the Shares of the Common Stock of Stein's to be issued to the Sanitec Shareholder. 2 ARTICLE 2 Merger Section 2.1 Plan and Agreement of Reorganization. A plan of reorganization is hereby adopted to as follows: A. Subject to the terms and conditions hereinafter set forth, on the Closing Date, and in the manner hereinafter proved, (i) the Sanitec Shareholder shall exchange the Sanitec Shares for the Stein's Shares in the amounts set forth herein; Sanitec shall become a wholly owned subsidiary of Stein's and Stein's shall be the parent corporation. B. Stein's and Sanitec, respectively, shall take, or cause to be taken, such action as may be necessary or appropriate in order to effectuate the transactions contemplated hereby. Such action shall include, but not be limited to, the filing of Articles of Merger with the Nevada and Hawaii Secretaries of State. In the event that after the Closing Date, any further action is necessary or desirable to carry out the purposes of this Agreement and to vest Stein's or the Sanitec Shareholder with full title to the securities to be exchanged hereby, the officers and directors of Stein's or the Sanitec Shareholder, as the case may be, shall take all such necessary action. Section 2.2 Effective Date of the Reorganization for Accounting Purposes. The transactions contemplated by this Agreement shall be effective as of a date to be mutually agreed upon for accounting purposes and for all other purposes to the extent permissible by law. Section 2.3 Consideration and Basis of Exchange of Shares. The manner and basis of exchanging the Sanitec Shares for the Common Shares of Stein's shall be as follows: A. On the Closing Date, the Sanitec Shareholder shall deliver to Stein's certificates aggregating 1,000 Sanitec Shares, or 100% of the issued and outstanding Sanitec Shares, duly endorsed in favor of Stein's with signatures guaranteed; the Sanitec Shareholders shall be issued, in exchange for the Sanitec Shares held of record on the Closing Date, an aggregate of 1,333,334 Stein's Shares. The Sanitec Shareholder and Stein's agree that the Sanitec Shares and the Stein's Shares exchanged hereby shall be "restricted securities" as that term is defined in Rule 144 under the Securities Act of 1933, as amended (the "1933 Act") and all 3 certificates issued under this Agreement shall bear an appropriate legend to such effect. Sanitec will have received the necessary approval of its shareholders to this transaction. B. The Stein's Board of Directors will fill its one vacancy by appointing Mary Reidinger as a new member of the Board. C. Stein's, Sanitec and the Sanitec Shareholder shall enter into a Non-Competition Agreement, a copy of which is attached hereto as Exhibit 2.3 and incorporated herein by this reference which provides, among other things, that the Sanitec shareholder shall not compete with Stein's or Sanitec in the State of Hawaii for a period of ten years. Section 2.4 Closing. Closing of this Agreement shall be held at a date to be mutually agreed upon by the parties at the offices of Stein's, or such other place as the parties may mutually agree. The parties shall exchange such other documents and take such other actions as may be necessary or appropriate for completing the transactions contemplated by the Agreement. Section 2.5 Mechanics for Closing Merger. Upon the approval of the Sanitec Shareholder, the executed Articles of Merger shall be filed with the Nevada and Hawaii Secretaries of State, if required. Sanitec shall become a wholly owned subsidiary of Stein's at Closing. Section 2.6 Further Assurances. At or after Closing, Sanitec, at the request of Stein's, shall promptly execute and deliver, or cause to be delivered, to Stein's all such documents and instruments, in form and substance satisfactory to Stein's, as Stein's reasonably may request in order to carry out or evidence the terms of this Agreement. ARTICLE 3 Representations and Warranties of Sanitec Sanitec represents and warrants to Stein's, as of the date of this Agreement and as of the Closing, as follows: Section 3.1 Organization and Qualification of Sanitec. Sanitec is a corporation duly organized, validly existing and in good standing under the laws of the State of Hawaii. Sanitec has full corporate power and authority to conduct its business as now conducted and to own or lease and operate the assets and property 4 now owned or leased or operated by it. Sanitec is qualified to transact business in those jurisdictions wherein its business requires such action. Section 3.2 Authority. Sanitec has all requisite corporate power and authority to execute, deliver and perform this Agreement. The execution, delivery and performance of this Agreement by Sanitec has been duly and validly executed and delivered by Sanitec, and is a valid and binding obligation of Sanitec, enforceable against Sanitec in accordance with its terms. Section 3.3 Ownership and Shareholders of Sanitec. The shareholder set forth on Exhibit 3.3 owns the Sanitec Shares shown thereon, beneficially and of record, free and clear of all liens. The Sanitec Shares are not subject to, or bound or affected by, any proxies, voting agreements, or other restrictions on the incidents or ownership hereof. There are not, and will not at Closing, be more than one shareholder of Sanitec. Section 3.4 Subsidiaries. Sanitec has no subsidiaries. Section 3.5 No Conflicts; Required Consent. The execution, delivery, and performance by Sanitec of this Agreement will not: (i) conflict with or violate any provision of the articles or certificate of incorporation of Sanitec; (ii) violate any Legal Requirements; (iii) result in the creation or imposition of any Lien against or upon the Sanitec Shares or any of the assets or properties owned or leased by Sanitec; or (iv) require any consent, approval, or authorization of, or filing of any certificate, notice, application, report or other document with, any governmental authority or other person. Section 3.6 Litigation. There is no litigation pending or, to Sanitec's knowledge, threatened, by or before any governmental authority or private arbitration tribunal, against Sanitec or its operations, except as described in Exhibit 3.6 attached hereto and incorporated herein by this reference, nor, to Sanitec's knowledge, is there any basis for any such litigation. Section 3.7 Compliance with Applicable Legal Requirements. Conduct by Sanitec of its activities as currently conducted does not violate or infringe any Legal Requirements currently in effect, or, to the knowledge of Sanitec, proposed to become effective; and Sanitec has received no notice of any violation by Sanitec, proposed to become effective; and Sanitec has received no notice of 5 any violation by Sanitec of any Legal Requirements applicable to Sanitec or its activities as currently conducted; and Sanitec knows of no basis for the allegation of any such violation. Section 3.8 Financial Statements. Sanitec will deliver to Stein's the audited balance sheet and statements of operations of Sanitec as of December 31, 1999 and 2000. The financial statements will be prepared in accordance with United States GAAP and present fairly the financial position of Sanitec as of the dates indicated and the results of operations of Sanitec for the periods ended December 31, 1999 and 2000. In addition, Sanitec will provide financial statements for the period ended June 30, 2001 which have been reviewed by its auditor for SEC reporting requirements. Section 3.9 Liabilities. Sanitec has no liabilities or obligations, whether absolute, accrued, contingent, or otherwise, that are not reflected in the Balance Sheet or non-delinquent obligations for ordinary and recurring expenses, including expenses occurring in the ordinary course of business of Sanitec since the date of the Balance Sheet. Attached as Exhibit 3.9 is a list of all accounts payable of Sanitec. Section 3.10 Tax Returns and Payments. Sanitec has filed all federal, state, local and foreign tax returns required to be filed, and has timely paid all taxes, including all federal and state payroll taxes, that have become due and payable, whether or not so shown on any such tax returns, except as shown in Schedule 3.10. Sanitec has not received any notice of, nor does Sanitec have any knowledge of, any deficiency or assessment of proposed knowledge of, any deficiency or assessment of proposed deficiency or assessment from any taxing governmental authority except as disclosed in Schedule 3.10. There are no tax audits pending with respect to Sanitec, and there are no outstanding agreements or waivers by or with respect to Sanitec, that extend the statutory period of limitations applicable to any federal, state, local or foreign tax returns for any period except as disclosed in Schedule 3.10. Section 3.11 Absence of Certain Changes or Events. Since the date of Balance Sheet there has not occurred: (a) any material and adverse change in the financial condition or operations of Sanitec; (b) any damage, destruction or loss to or of any of the material assets of properties owned or leased by Sanitec; 6 (c) the creation or attachment of any Lien against the Common Stock of Sanitec; (d) any waiver, release, discharge, transfer, or cancellation by Sanitec of any rights or claims of material value; (e) any issuance by Sanitec of any securities, or any merger or consolidation of Sanitec with any other Person, or any acquisition by Sanitec of the business of any other Person; (f) any incurrence, assumption or guarantee by Sanitec of any indebtedness or liability; (g) any declaration, setting aside or payment by Sanitec of any dividends on, or any other distribution with respect to, any capital stock of Sanitec or any repurchase, redemption, or other acquisition of any capital stock of Sanitec; (h) (A) any payment of any bonus, profit sharing, pension or similar payment or arrangement or special compensation to any employee of Sanitec, except in the ordinary course of the administration of Sanitec, or (B) any increase in the compensation payable to any employee of Sanitec; or (i) the entry by Sanitec into any Contract to do any of the foregoing. Section 3.12 Material Sanitec Contracts. As of the date of this Plan of Reorganization, Sanitec does not have, except as discussed in Exhibit 3.12, (i) contracts evidence or evidencing or relating to any liabilities or obligations of Sanitec, whether absolute, accrued, contingent or otherwise, or granting any Person a Lien or against any properties or assets owned or leased by Sanitec; (ii) joint venture or partnership Contracts between Sanitec and any other person; (iii) Contracts limiting the freedom of Sanitec to engage in or to complete in any activity, or to use or disclose any information in its possession; (iv) any guarantees of indebtedness for any other entity; and (v) any other Contracts to which Sanitec is a party or by which it or the assets or properties owned or leased by it are bound or affected that are not set forth on other Exhibits hereto, which in aggregate contemplate payments to or by Sanitec exceeding $5,000 in any twelve-month period (collectively herein as the "Material Sanitec Contract"). Sanitec has delivered to Stein's true and complete copies of each of the Material Sanitec Contracts, including any amendments thereto 7 (or, in the case or oral Material Sanitec Contracts, a memorandum of such contract) and all Material Sanitec Contracts are valid, in full force and effect and enforceable in accordance with its terms against the parties thereto other than Sanitec, and Sanitec has fulfilled when due, or has taken all action necessary to enable it to fulfill when due all of its obligations thereunder; (ii) there has not occurred any default (without regard to lapse of time, the giving notice, or the election of any person other then Sanitec, or any combination thereof) by Sanitec, nor, to the knowledge of Sanitec, has there occurred any default (without regard to lapse of time, the giving of notice, or the election of Sanitec, or any combination thereof) by any other person, under any of the Material Sanitec Contracts; and (iii) neither Sanitec nor, to the knowledge of Sanitec, any other person is in arrears in the performance or satisfaction of its obligation under any of the Material Sanitec Contracts, and no waiver has been granted by any of the parties thereto. Section 3.13 Real Property. As of the date of this Plan of Reorganization, Sanitec does not own any real property. Section 3.14 Employees. As of the date of this Plan of Reorganization, Sanitec has one employee. Section 3.15 Books and Records. All of the books, records and accounts of Sanitec are in all material respects true and complete, are maintained in accordance with good business practice and all applicable Legal Requirements, accurately present and reflect in all material respects all of the transactions therein described, and are reflected accurately in the Financial Statements. Sanitec has previously delivered to Stein's true and complete copies of all the minutes and meetings and all other corporate actions of the officers, directors and shareholders of Sanitec since the date of its incorporation. Section 3.16 Certain Interests. None of Sanitec or its officers or directors, directly or indirectly is, or owns any interest in, or controls, or is an employee, officer or director or partner of or participant in, or consultant to, any person which is a competitor, supplier or customer of Sanitec except as set forth in Schedule 3.16. Section 3.17 Bank Accounts. Exhibit 3.17 sets forth all bank accounts, brokerage accounts, and safe deposit boxes of any kind maintained by Sanitec and, in each case, identifies the persons 8 that are authorized signatories for, or which are authorized to have access to, each of them. Section 3.18 Changes in Circumstances. Sanitec has no knowledge of (i) any current condition or state of facts of circumstances which could reasonably be expected to result in a material and adverse change in the financial condition of operations of Sanitec, or (ii) any Legal Requirements currently in effect from which Sanitec currently is, or any currently proposed Legal Requirements from which Sanitec would be, except by reason of any "grandfather" clauses of provisions contained therein, but which would be applicable to Stein's following closing. Section 3.19 Accuracy of Information. None of the written information and documents which have been or will be furnished by Sanitec or any representatives of Sanitec to Stein's or any of the representatives of Stein's in connection with the transactions contemplated by this Agreement contains or will contain, as the case may be, any untrue statement of a material fact, or omits or will omit to state a material fact necessary in order to make the statements therein not misleading in light of the circumstances in which made. To the knowledge of Sanitec, Sanitec has disclosed to Stein's as the purchaser of Sanitec Interests all material information relating to Sanitec and its activities as currently conducted. Section 3.20 Investment. Sanitec is acquiring Stein's Common Stock for investment purposes, and not with a view to distribution or resale thereof in violation of applicable securities Legal Requirements. Section 3.21 Compliance with ERISA. Sanitec does not maintain or contribute to any Plan other than as set forth in Schedule 3.21. Sanitec and each member of the Controlled Group have fulfilled their obligations under the minimum funding standards of ERISA and the Code with respect to each Plan and are in compliance in all material respects with the applicable provisions of ERISA and the Code, and have not incurred any liability to the PBGC or a Plan under Title IV of ERISA; and no "prohibited transaction" or "reportable event" (as such terms are defined in ERISA) has occurred with respect to any Plan. Section 3.22 Environmental Matters. 9 (a) Sanitec has obtained all permits, licenses and other authorizations which are required under all Environmental Laws, except to the extent failure to have any such permit, license or authorization would not have a material adverse effect on the business, financial condition or operations of Sanitec. Sanitec is in compliance with the terms and conditions of all such permits, licenses and authorizations, and is also in compliance with all other limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in any applicable Environmental Law or in any regulation, code, plan, order, decree, judgment, injunction, notice or demand letter issued, entered, promulgated or approved thereunder, except to the extent failure to comply would not have a material adverse effect on the business, financial condition or operations of Sanitec. (b) No notice, notification, demand, request for information, citation, summons or order has been issued, no complaint has been filed, no penalty has been assessed and no investigation or review is pending or threatened by any governmental or other entity with respect to any alleged failure by Sanitec or any of its Subsidiaries to have any permit, license or authorization required in connection with the conduct of its business or with respect to any Environmental Laws, including, without limitation, Environmental Laws relating to the generation, treatment storage, recycling, transportation, disposal or release of any Hazardous Materials. (c) To the best of Sanitec's knowledge, no material oral or written notification of a release of a Hazardous Material has been filed by or on behalf of Sanitec and no property now or previously owned, leased or used by Sanitec is listed or proposed for listing on the National Priorities List under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, or on any similar state list of sites requiring investigation or clean-up. (d) There are no liens or encumbrances arising under or pursuant to any Environmental Laws on any of the real property or properties owned, leased or used by Sanitec and no governmental actions have been taken or are in process which could subject any of such properties to such liens or encumbrances or, as a result of which Sanitec would be required to place any notice or restriction relating to the presence of Hazardous Materials at any property owned by it in any deed to such property. 10 (e) Neither Sanitec nor, to the best knowledge of Sanitec, any previous owner, tenant, occupant or user of any property owned, leased or used by Sanitec has (i) engaged in or permitted any operations or activities upon or any use or occupancy of such property, or any portion thereof, for the purpose of or in any way involving the handling, manufacture, treatment, storage, use, generation, release, discharge, refining, dumping or disposal (whether legal or illegal, accidental or intentional) of any Hazardous Materials on, under, in or about such property, except in compliance with all Environmental Laws, or (ii) transported any Hazardous Materials to, from or across such property except in compliance with all Environmental Laws; nor to the best knowledge of Sanitec have any Hazardous Materials migrated from other properties upon, about or beneath such property, nor, to the best knowledge of Sanitec, are any Hazardous Materials presently constructed, deposited, stored or otherwise located on, under, in or about such property except in compliance with all Environmental Laws. Section 3.24 Franchises, Patents, Copyrights, Etc. Schedule 3.24 sets forth an accurate and complete list of all franchises, patents, copyrights, trademarks, trade names, trademark registrations, service names, service marks, licenses, formulas and applications therefor owned by Sanitec or used or required by Sanitec in the operation of its business, title to each of which is, except as set forth in Schedule 3.24 hereto, held by Sanitec free and clear of all adverse claims, liens, security agreements, restrictions or other encumbrances. Except as set forth in Schedule 3.24, Sanitec owns or possesses adequate (and will use its best efforts to obtain as expediently as possible any additional) licenses or other rights to use all patents, trademarks, trade names, service marks, trade secrets or other intangible property rights and know-how necessary to entitle Sanitec to conduct its business as presently being conducted. There is no infringement action, lawsuit, claim or complaint which asserts that Sanitec's operations violate or infringe the rights or the trade names, trademarks, trademark registrations, service names, service marks or copyrights of others with respect to any apparatus or method of Sanitec or any adversely held trademarks, trade names, trademark registrations, service names, service marks or copyrights, and Sanitec is not in any way making use of any confidential information or trade secrets of any person, except with the consent of such person. Except as set forth in Schedule 3.24, Sanitec has taken reasonable steps to protect its proprietary information (except disclosure of source codes pursuant to licensing 11 agreements) and is the lawful owner of the proprietary information free and clear of any claim of any third party. Sanitec's proprietary rights are adequate for the conduct of its business substantially as now conducted without known conflict with any rights of others. Section 3.25 No Materially Adverse Contracts, Etc. Sanitec is not subject to any charter, corporate or other legal restriction, or any judgment, decree, order, rule or regulation that has or is expected in the future to have a materially adverse effect on the business, assets or financial condition of Sanitec. Sanitec is not a party to any contract or agreement that has or is expected, in the judgment of Sanitec's officers, to have any materially adverse effect on the business of Sanitec. Section 3.26 Compliance With Other Instruments, Laws, Etc. Sanitec is not in violation of any provision of its certificate of incorporation, by-laws, or any agreement or instrument to which it may be subject or by which it or any of its properties may be bound, or any decree, order, judgment, statute, license, rule or regulation, in any of the foregoing cases in a manner that could result in the imposition of substantial penalties or materially and adversely affect the financial condition, properties or business of Sanitec. Section 3.27 Absence of UCC Financing Statements, Etc. There is no financing statement, security agreement, chattel mortgage, real estate mortgage or other document filed or recorded with any filing records, registry, or other public office, that purports to cover, affect or give notice of any present or possible future lien on, or security interest in, any Collateral or rights thereunder. Section 3.28 Certain Transactions. Except as set forth in Schedule 3.28, none of the officers, trustees, directors, or employees of Sanitec is presently a party to any transaction with Sanitec, including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise requiring payments to or from any officer, trustee, director or employee or, to the knowledge of Sanitec, any corporation, partnership, trust or other entity in which any officer, trustee, director, or any employee has a substantial interest or is an officer, director, trustee or partner. 12 Section 3.29 Capitalization. Sanitec's authorized capital stock consists solely of 1,000 shares of Common Stock, no par value per share, of which 1,000 fully diluted shares are issued and outstanding and no shares are reserved for issuance upon the exercise or conversion of warrants, options and other rights to purchase or otherwise obtain (by exchange or otherwise) shares of Common Stock. All outstanding shares of Common Stock have been duly authorized, are validly issued, fully paid and nonassessable. Section 3.30 Fees/Commissions. Except as set forth in Schedule 3.30 hereto, Sanitec has not agreed to pay any finder's fee, commission, origination fee or other fee or charge to any Person with respect to the transactions contemplated hereunder. Section 3.31 Employees. Sanitec has no current labor problems or disputes which have resulted in, or are reasonably believed by Sanitec could have, a material adverse effect on the operations, properties or financial condition of Sanitec. Section 3.32 Other Representations and Warranties. All representations, warranties, and covenants made by Sanitec in connection with this transaction are true and correct in all material respects, and do not omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading. ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF STEIN'S Stein's represents and warrants to Sanitec, as of the date of this Agreement and as of Closing, as follows: Section 4.1 Organization and Qualification of Stein's. Stein's is a corporation duly organized, validly existing, and in good standing under the laws of the State of Nevada, and has all requisite corporate power and authority to own and lease the properties and assets it currently owns and leases and to conduct its activities as currently conducted. Stein's is duly qualified to do business as a foreign corporation in all jurisdictions in which the ownership or leasing of the properties and assets owned or leased by it or the nature of its activities makes such qualification necessary. 13 Section 4.2 Authority. Stein's has all requisite corporation and authority to execute, deliver and perform this Agreement. The execution, delivery, and performance of this Agreement by Stein's have been duly and validly authorized by all necessary action on the part of Stein's. This Agreement has been duly and validly executed and delivered by Stein's and is the valid and binding obligation of Stein's, enforceable against Stein's in accordance with its terms. Section 4.3 No Conflicts; Required Consents. The execution, delivery and performance by Stein's of this Agreement does not and will not: (i) conflict with or violate any provisions of the articles of certificate of incorporation or bylaws of Stein's; (ii) violate any provisions of any Legal Requirements; or (iii) conflict with, violate result in a breach of, constitute a default under (without regard to requirements of notice, lapse of time, or elections of other persons, or any combination thereof) or accelerate or permit the acceleration of the performance required by, and Contract or Lien to which Stein's is a party or by which Stein's or the assets or properties owned or leased by it are bound or affected; or (iv) require any consent, approval or authorization, report or other document with, any Governmental Authority or other person. Section 4.4 Validity and Ownership of Stein's Common Stock. The Stein's Common Stock received by the members of Sanitec at Closing will be validly issued and outstanding, duly paid and nonassessable. The Stein's Common Stock will not be subject to, nor bound or affected by, any proxies, voting agreements, or other restrictions on the ownership thereof. Section 4.5 Ownership and Number of Shares of Stein's Common Stock. There are not, and will not at Closing, be more than 8,402,046 outstanding shares of Stein's Common Stock. Section 4.6 Subsidiaries. Stein's has two subsidiaries: 20/20 Web Design, Inc., a Nevada corporation and Universal Medical Alliance Corp., a Colorado corporation. Section 4.7 Capitalization of Stein's. The authorized capital stock of Stein's consists of 50,000,000 duly authorized shares of common stock $.001 per share par value, of which 8,402,046 are validly issued and outstanding, fully paid and nonassessable. There are no other authorized or outstanding subscriptions, options, convertible securities, warrants, calls or other rights or any kind issued or granted by, or binding upon, Stein's to purchase 14 or otherwise acquire any securities of or equity interest in Stein's. Section 4.8 Litigation. There is no litigation pending or, to Stein's knowledge, threatened, by or before any governmental authority or private arbitration tribunal, against Stein's or its operations, nor, to Stein's knowledge, is there any basis for any such litigation. Section 4.9 Liabilities. Except as disclosed in Exhibit 4.10, Stein's has no liabilities or obligations, whether absolute, accrued, contingent, or otherwise that have not been disclosed to Sanitec. Section 4.10 Tax Returns and Payments. Except as disclosed in Schedule 4.11, Stein's has filed all federal, state, local and foreign tax returns required to be filed, and has timely paid all taxes that have become due and payable, whether or not so shown on any such tax returns. Stein's has not received any notice of, nor does Stein's have any knowledge of, any deficiency or assessment of proposed knowledge of, any deficiency or assessment of proposed deficiency or assessment from any taxing governmental authority. There are no tax audits pending with respect to Stein's, and there are no outstanding agreements or waivers by or with respect to Stein's, that extend the statutory period of limitations applicable to any federal, state, local or foreign tax returns for any period. Stein's makes no representation or warranty concerning whether or not its net operating loss carryforwards will be available for use by Sanitec following this transaction. Section 4.11 Books and Records. All of the books, records and accounts of Stein's are in all material respects true and complete, are maintained in accordance with good business practice and all applicable Legal Requirements, accurately present and reflect in all material respects all of the transactions therein described, and are reflected accurately in the Financial Statements. Stein's has previously delivered to Sanitec the complete stock record book of Stein's and true and complete copies of all the minutes and meetings and all other corporate actions of the stockholders, Board of Directors and committees of the Board of Directors of Stein's since the date of its incorporation. Section 4.12 Accuracy of Information. None of the written information and documents which have been or will be furnished by Stein's or any representatives of Stein's to Sanitec or any of the 15 representatives of Sanitec in connection with the transactions contemplated by this Agreement contains or will contain, as the case may be, any untrue statement of a material fact, or omits or will omit to state a material fact necessary in order to make the statements therein not misleading in light of the circumstances in which made. To the knowledge of Stein's, Stein's has disclosed to Sanitec as the purchaser of Stein's common stock all material information relating to Stein's and its activities. ARTICLE 5 Covenants of Sanitec and Stein's Section 5.1 Affirmative Covenants of Sanitec. Except as Stein's may otherwise consent in writing, between the date of this Agreement and Closing, Sanitec shall: (a) conduct its business only in the usual, regular and ordinary course and in accordance with past practices; (b) (1) duly comply with all applicable Legal Requirements; (2) perform all of its obligations under all Sanitec Contacts without default; and (3) maintain its books, records, and accounts on a basis consistent with past practices; (c) (1) give to Stein's its counsel, accountants and other representatives reasonable access during normal business hours to the premises of Sanitec, all of the assets and properties owned or leased by Sanitec, Sanitec's books and records, and Sanitec's personnel; (2) furnish to Stein's and such representatives all such additional documents (certified by an officer of Sanitec, if requested), financial information and other information as Sanitec may from time to time reasonably request and (3) cause Sanitec's accountants to permit Stein's and its accountants to examine the records and working papers pertaining to Sanitec's financial statements' provided that no investigation by Stein's of its representatives will affect or limit the scope of any of the representations and warranties of Sanitec herein or in any other related document; (d) use of best efforts to obtain in writing as promptly as possible all approvals and consents required to be obtained by Sanitec in order to consummate the transactions contemplated hereby and deliver to Stein's copies, satisfactory in form and substance to Stein's, of such approvals and consents; 16 (e) promptly deliver to Stein's true and complete copies of all monthly and quarterly financial statements of Sanitec and any reports with respect to the activities of Sanitec which are prepared by or for Sanitec at any time from the date hereof until Closing; and (f) promptly notify Stein's of any circumstances, event or action, by Sanitec or otherwise, (A) which, if known at the date of this Agreement, would have been required to be disclosed in or pursuant to this Agreement, or (B) the existence, occurrence or taking of which would result in any of the representations and warranties of Sanitec in this Agreement or in any Transaction Documents not being true and correct in all material respects. Section 5.2 Negative Covenants of Sanitec. Except as Stein's may otherwise consent in writing, between the date of this Agreement and Closing, Sanitec shall not: (a) change the character of its business; (b) incur any liability or obligation or enter into any Contract except, in each case, in the ordinary course of business consistent with prior practices and not prohibited by any other provision hereof; (c) incur, assume or guarantee any indebtedness or liability in respect of borrowed money; (d) make any capital expenditure or commitment for capital expenditure exceeding $5,000 for a single project or $10,000 for all projects, whether or not in the ordinary course of business, or waive, lease, discharge, transfer or cancel any rights or claims of material value; (e) modify, terminate, or abrogate any Material Sanitec Contact other than in the ordinary course of business, or waive, lease, discharge, transfer or cancel any rights or claims of material value; (f) create or permit the creation or attachment of any Lien against any of the assets or properties owned or leased by it; (g) except as otherwise required by this Agreement, prepay any material liabilities or obligations; 17 (h) issue any securities, or merge or consolidate with any other person or acquire any of the securities, partnership or joint venture interests, or business of any other person; (i) declare, set aside or pay any dividends on, or make any other distribution with respect to, any of its capital stock, or repurchase, redeem, or otherwise acquire any of its capital stock; and (j) enter into any transaction or permit the taking of any action that would result in any of the representations and warranties in this Agreement not being true and correct in all material respects at Closing. Section 5.3 Covenants of Stein's. Except as Sanitec may otherwise agree in writing, between the date of this Agreement and Closing, Stein's shall: (a) use it best efforts to obtain in writing as promptly as possible all approvals and consents required to be obtained by Stein's in order to consummate the transaction contemplated hereby and deliver to Sanitec copies, satisfactory in form and substance to Sanitec, of such approvals and consents; (b) promptly notify Sanitec of any circumstance, event or action, by Stein's or otherwise, (i) which, if known at the date of this Agreement, would have been required to be disclosed in or pursuant to this Agreement, or (ii) the existence, occurrence or taking of which would result in any of the representations and warranties of Sanitec in this Agreement or in any Transaction Document not being true and correct in all material respects; (c) undertake all other actions necessary to put into force and effect this Agreement. Section 5.4 Joint Undertakings. Each of Stein's and Sanitec shall cooperate and exercise commercially reasonable efforts to facilitate the consummation of the transactions contemplated by this Agreement so as to permit Closing to take place on the date provided herein and to raise the satisfaction of conditions to Closing set forth in Article 6. Both parties hereto agree that they will use their best efforts to cause a Form 8-K to be filed with the Securities and Exchange Commission concerning this transaction which Form 8-K will require audited financial 18 statements for Sanitec and pro forma financial information for the companies as merger. Section 5.5 Confidentiality. (a) Any non-public information that Stein's may obtain from Sanitec in connection with this Agreement, including but not limited to information concerning trade secrets, licenses, research projects, costs, profits, markets, sales, customer lists, strategies, plans for future development and any other information of a similar nature, shall be deemed confidential and, unless and until Closing shall occur, Stein's shall not disclose any such information to any third party (other than its directors, officers and employees and persons whose knowledge thereof is necessary to facilitate the consummation of the transactions contemplated hereby) or use such information to the detriment of Sanitec; provided that (i) Stein's may use and disclose any such information once it has been publicly disclosed (other than by Stein's in breach of its obligations under this Section) or which rightfully has come into the possession of Stein's (other than from Sanitec) and (ii) to the extent that Stein's may become complied by Legal Requirements to disclose any of such information, Stein's may disclose such information if it shall have used all reasonable efforts, and shall have afforded Sanitec the opportunity to obtain an appropriate protective order, or other satisfactory assurance of confidential treatment for the protective order, or other satisfactory assurance of confidential treatment, for the information compelling to be disclosed. In the event of termination of this Agreement, Stein's shall use all reasonable efforts to cause to be delivered to Sanitec, and retain no copies of, any documents, work papers and other materials obtained by Stein's or on its behalf from Sanitec, whether so obtained before or after the execution hereof. (b) Any non-public information that Sanitec may obtain from Stein's in connection with this Agreement, including but not limited to information concerning trade secrets, licenses, research projects, costs, profits, markets, sales, customer lists, strategies, plans for future development and any other information of a similar nature, shall be deemed confidential and, unless and until Closing shall occur, Sanitec shall not disclose any such information to any third party (other than its directors, officers and employees, and persons whose knowledge thereof is necessary to facilitate the consummation of the transactions contemplated hereby) or use such information to the detriment of Stein's; 19 provided that (i) Sanitec may use and disclose any such information once it has been publicly disclosed (other than by Sanitec in breach of obligations under this Section) or which rightfully has come into the possession of Sanitec (other than from Stein's) and (ii) to the extent that Sanitec may become complied by Legal Requirements to disclose any of such information, Sanitec may disclose such information if it shall have used all reasonable efforts, and shall have afforded Stein's the opportunity, to obtain an appropriate protective order, or other satisfactory assurance of confidential treatment, for the information compelled to be disclosed. In the event of termination of this Agreement, Sanitec shall use all reasonable efforts to cause to be delivered to Stein's, and retain no copies of, any documents, work papers and other materials obtained by Sanitec or on its behalf from Stein's, whether so obtained before or after the execution hereof. Section 5.6 Publicity. Stein's and Sanitec shall each consult with and obtain the consent of the other before issuing any press release or making any other public disclosure concerning this Agreement or the transactions contemplated hereby unless, in the reasonable judgment of the disclosing party, a release or disclosure is required to discharge its disclosure obligations under applicable legal requirements, in which case it shall in good faith consult with the other party about the form, content and timing of such release or disclosure prior to its release of disclosure. ARTICLE 6 Conditions Precedent Section 6.1 Conditions to Sanitec's Obligations. The obligations of Sanitec to consummate the transactions contemplated by this Agreement are subject to the following conditions: (a) Accuracy of Representations. The representations of Stein's in this Agreement or in any Transaction Document shall be true and accurate in all material respects at and as of Closing with the same effect as if made at and as of Closing, except as affected by the transactions contemplated hereby. (b) Performance of Agreements. Stein's shall have performed all obligations and agreements and complied with all covenants in this Agreement to be performed and complied with by it at or before Closing. 20 (c) Officers's Certificate. Sanitec shall have received a certificate executed by an executive officer of Stein's, dated as of Closing, reasonably satisfactory in form and substance to Sanitec certifying that the conditions stated in subparagraphs (a) and (b) of this Section have been satisfied. (d) Legal Proceedings. There shall be no Legal Requirement, and no judgment shall have been entered and not vacated by any governmental authority of competent jurisdiction and no litigation shall be pending which restrains, makes illegal or prohibits consummation of the transactions contemplated hereby. (e) Consents. Sanitec shall have obtained evidence, in form and substance satisfactory to it, that there have been obtained all consents, approvals and authorizations required by this Agreement. (f) Legal Matters Satisfactory to Sanitec's Counsel. All actions, proceedings, instruments and documents required to carry out the transactions contemplated by this Agreement or incidental thereto and all related matters shall be reasonably satisfactory to and approved by Sanitec's counsel, and such counsel shall have been furnished with such certified copies of actions and proceedings and such other instruments and documents as it shall have reasonably requested. (g) Opinion of Counsel Concerning Organization and Transaction. Sanitec shall have received from counsel for Stein's a favorable opinion addressed to Sanitec and dated as of the Closing Date, satisfactory in form and content to Sanitec, concerning the organization and this transaction. Section 6.2 Conditions to Stein's' Obligations. The obligations of Stein's to consummate the transactions contemplated by this Agreement are subject to the following conditions: (a) Accuracy of Representations. The representations of Sanitec in this Agreement or in any Transaction Document shall be true and accurate (in all material respects) at and as of Closing with the same effect as if they were made at and as of Closing, except as afforded by the transactions contemplated hereby. (b) Performance of Agreements. Sanitec shall have performed all obligations and agreements and complied with all covenants in 21 this Agreement or in any Transaction Document to which it is a party to be performed and complied with by it at or before closing. (c) Officers's Certificate. Stein's shall have received a certificate executed by an executive officer of Sanitec, dated as of Closing, reasonably satisfactory in form and substance to Stein's, certifying that the conditions stated in subparagraphs (a) and (b) of this Section have been satisfied. (d) Legal Proceedings. There shall be no Legal Requirement, and no judgment shall have been entered and not created by any governmental authority of competent jurisdiction and no litigation shall be pending which restrains, makes illegal or prohibits consummation of the transactions contemplated hereby. (e) Consents. Stein's shall have obtained evidence, in form and substance satisfactory to it, that there have been obtained all consents, approvals and authorizations required by this Agreement. (f) Legal Matters Satisfactory to Stein's Counsel. All actions, proceedings, instruments and documents required to carry out the transactions contemplated by this Agreement or incidental thereto and all related legal matters shall be reasonably satisfactory to and approved by Stein's counsel, and such counsel shall have been furnished with such copies of actions and proceedings and such other instruments and documents as it shall have reasonably requested. (g) Opinion of Counsel Concerning Organization and Transaction. Stein's shall have received from counsel for Sanitec a favorable opinion addressed to Stein's and dated as of the Closing Date, satisfactory in form and content to Stein's, concerning the organization and this transaction. ARTICLE 7 Indemnification Section 7.1 Indemnification by Sanitec Shareholders. From and after the Closing, the Sanitec Shareholder shall indemnify and hold harmless Stein's, its officers, directors, agents and representatives, and any person claiming by or through any of them as the case my be, from and against any and all losses and related expenses arising out of or resulting from: 22 (a) any representations and warranties of Sanitec in this Agreement not being true and accurate when made or when required by this Agreement to be true and accurate; or (b) any failure by Sanitec to perform any of its covenants, agreements or obligations in this Agreement; or (c) all undisclosed abilities and obligations relating to, or arising out of activities of Sanitec during periods prior to Closing. Section 7.2 Indemnification by Stein's. From and after the Closing, Stein's shall indemnify and hold harmless Sanitec, its officers, directors, agents and representatives, and any person claiming by or through any of them as the case my be, from and against any and all losses and related expenses arising out of or resulting from: (a) any representations and warranties of Stein's in this Agreement not being true and accurate when made or when required by this Agreement to be true and accurate; or (b) any failure by Stein's to perform any of its covenants, agreements or obligations in this Agreement; or (c) all undisclosed abilities and obligations relating to, or arising out of activities of Stein's during periods prior to Closing. Section 7.3 Indemnification Against Third Party Claims. Promptly after receipt entitled to indemnification hereunder (the "Indemnitee") of written notice of the assertion of any claim or the commencement of any Litigation with respect to any matter referred to Sections 7.1 or 7.2, the Indemnitee shall give written notice thereof to the party from whom indemnification is sought pursuant hereto (the "Indemnitor") and thereafter shall keep the Indemnitor reasonably informed with respect thereto, may provided that failure of the Indemnitee to give the Indemnitor notice as provided herein shall not relieve the Indemnitor of its obligations hereunder. In case any litigation is brought against any Indemnitee, the Indemnitor shall be entitled to participate in (and at the request of the Indemnitee shall assume) the defense thereof with counsel satisfactory to Indemnitee at the Indemnitor's expense. If the Indemnitor, at the Indemnitee's request, shall assume the defense of any settlement shall include as an 23 unconditional term thereof the giving by the claimant or the plaintiff of a release of the Indemnitee, satisfactory to the Indemnitee, from all liability with respect to such litigation. Section 7.4 Time and Manner of Certain Claims. The representations and warranties of Stein's and the Principal Shareholders in this Agreement shall survive Closing; provided, however, that neither Stein's nor the Members shall have any liability under Section 7.1 or 7.2, respectively, unless a claim is asserted by the party seeking indemnification thereunder by written notice to the party from whom indemnification is sought within three years after Closing, and such party commences litigation seeking such indemnification within 180 days following the date of such notice. Section 7.5 Effect of de minimus Damage on Indemnity by Principal Shareholders. The Members shall have no indemnity obligations under this Article 7 unless aggregate amount payable by them under this Article 7 is in excess of $10,000. Section 7.6 Tax Effect. In calculating amount payable to an Indemnitee hereunder (i) the amount of the indemnified losses shall be reduced by the amount of any reduction in the Indemnitee's liability for taxes resulting from the facts or occurrence giving rise to the indemnified losses; and (ii) the amount of the indemnified losses shall be grossed up by the amount of any increase in liability for taxes resulting from indemnification with respect thereto. ARTICLE 8 Termination Section 8.1 Termination Events. This Agreement may be terminated and the transactions contemplated hereby may be abandoned: (a) at any time, by the mutual agreement of Stein's and Sanitec. (b) by either Stein's and Sanitec, if the other is in material breach or default of its respective covenants, agreements or other obligations hereunder or if any of its representations and warranties herein are not true and accurate in all material respects when made or when otherwise required by this Agreement to be true and accurate. 24 (c) by either Stein's or Sanitec upon written notice to the other, if the transactions contemplated by this Agreement are not consummated on or prior to December 31, 2001, for any reason other than material breach or default by such party of its respective representations, warranties, covenants, agreements or other obligations hereunder. Section 8.2 Effect of Termination. If this Agreement shall be terminated, all obligations of the parties hereunder shall terminate, except for the obligations set forth in section 5.5, 5.6 and 9.3. ARTICLE 9 Miscellaneous Section 9.1 Expenses. Each party shall pay its own expenses incurred as a result of this transaction. Section 9.2 Waiver and Modifications. Any of the provisions of this Agreement may be waived at any time by the party entitled to the benefit thereof, upon the authority of the Board of Directors of such party. Any of the provisions of this Agreement (including the exhibits and the Agreement of Merger) may be modified at any time prior to and after the vote of the Sanitec Shareholders by agreement in writing approved by the Board of Directors of each party and executed in the same manner (but necessarily by the same persons) as this Agreement, provided that such modification, after the last vote of the Sanitec Shareholders shall not be allowed, if in the judgment of the Board of Directors of Sanitec, it affects materially and adversely the benefits of Sanitec's Shareholders under this Agreement of Merger. To the extent permitted by law, the powers of the Board of Directors may be delegated by the Board of the Executive Committee of such Board or by such Board (or by the Executive Committee to the extent any matter has been delegated to such Committee by the Board) to any officer or officers of such party, and any notices, consents or other action referred to in this Agreement may be given or taken by any officer so authorized. Section 9.3 Finder commissions. Stein's and Sanitec each represents and warrants that no broker or finder is entitled to any brokerage or finder's fee or other commission based on agreements, arrangements or understandings made by it with respect to the transactions contemplated by this Agreement or by the Agreement of Merger, other than set forth in Exhibit 9.3. 25 Section 9.4 Notices. Any notice request, instruction or other documents to be given hereunder or under the Agreement of Merger by any part to another shall be in writing and delivered personally or sent by registered or certified mail, postage prepaid, if to Stein's, addressed to: Stein's Holdings, Inc. 21800 Oxnard Street Suite 440 Woodland Hills CA 91367 with a copy to: Claudia J. Zaman, Esq. Claudia J. Zaman Attorney At Law 21800 Oxnard Street Suite 440 Woodland Hills CA 91367 if to Sanitec, addressed to: Sanitec Services of Hawaii, Inc. 1001 Pu'uwai Street Honolulu HI 96819 Section 9.5 Abandonment. At any time before the effective Date, this Merger Agreement may be terminated and the merger may be abandoned by the Board of Directors of Stein's or Sanitec or both, notwithstanding approval of this Agreement by the Sanitec Shareholder or Stein's Shareholders or both. Section 9.6 Entire Agreement. This Agreement and Plan of Merger represents the entire agreement between the parties. Any and all oral or written agreements concerning this merger shall be deemed null and void. Section 9.6 Governing Law. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of Nevada. Section 9.7 Counterparts. In order to facilitate the filing and recording of this Merger Agreement, the same may be executed in any number of counterparts, each of which shall be deemed to be an original. 26 IN WITNESS WHEREOF, Stein's and Sanitec, by their duly authorized officers, have executed and delivered this Agreement effective as of the date first above written. Stein's Holdings, Inc. By:/s/ James Smith -------------------------------- James Smith, President Sanitec Services of Hawaii, Inc. By: /s/ Jeffrey Weinsten -------------------------------- Jeffrey Weinsten, CEO 27