Exhibit 2.1
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (this "Agreement") entered
into as of January 22, 2004, by and among Mountain Oil, Inc., a Utah corporation
("MOLI"), MtOil Enterprises, Inc., a Utah corporation and a wholly owned
Subsidiary of MOLI ("Enterprises"), Oakridge Resources, Inc., a Utah corporation
and currently a wholly owned Subsidiary of MOLI ("ORI") and Dental Cooperative,
Inc., a Utah corporation ("CO-OP"). MOLI, Enterprises, ORI and CO-OP are
referred to collectively herein as the "Parties."
This Agreement contemplates a tax-free merger of Enterprises with and
into CO-OP in a reorganization pursuant to Code ss.368(a)(2)(E). Under this
Agreement, Enterprises will cease to exist, CO-OP Stockholders will receive MOLI
stock in exchange for their CO-OP stock, and CO-OP will be a wholly owned
Subsidiary of MOLI at the Effective Time.
Now, therefore, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties,
and covenants herein contained, the Parties agree as follows.
ss.1. Definitions.
"Affiliate" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act.
"Articles of Merger" has the meaning set forth in ss.2(c) below.
"Basis" means any past or present fact, situation, circumstance,
status, condition, activity, practice, plan, occurrence, event, incident,
action, failure to act, or transaction that forms or could form the basis for
any specified consequence.
"Business Corporation Act" means the Utah Revised Business Corporation
Act, as amended.
"Closing" has the meaning set forth in ss.2(b) below.
"Closing Date" has the meaning set forth in ss.2(b) below.
"Confidential Information" means any information concerning the
businesses and affairs of CO-OP and its Subsidiaries that is not already
generally available to the public.
"Conversion Ratio" has the meaning set forth in ss.2(d)(v) below.
"Definitive Information Statement" means the definitive information
statement relating to the Special Meetings.
"Disclosure Schedule" has the meaning set forth in ss.3 below.
"Dissenting CO-OP Share" means any CO-OP Share held of record by any
stockholder who or which has exercised his, her, or its appraisal rights under
the Business Corporation Act.
"Dissenting MOLI Share" means any MOLI Share held of record by any
stockholder who or which has exercised his, her, or its appraisal rights under
the Business Corporation Act.
"CO-OP" has the meaning set forth in the preface above.
"CO-OP Share" means any share of the common stock, $0.001 par value per
share, of CO-OP.
"CO-OP Special Meeting" means a special meeting of the stockholders of
CO-OP called by duly adopted resolution of the board of directors of CO-OP for
the purpose of obtaining stockholder approval of this Agreement and the Merger.
"CO-OP Stockholder" means any Person who or which holds any CO-OP
Shares.
"Effective Time" has the meaning set forth in ss.2(d)(i) below.
"Enterprises" has the meaning set forth in the preface above.
"Exchange Agent" has the meaning set forth in ss.2(e) below.
"Financial Statements" has the meaning set forth in ss.3(h) below.
"GAAP" means United States generally accepted accounting principles as
in effect from time to time, consistently applied.
"Intellectual Property" means all of the following in any jurisdiction
throughout the world: (a) all inventions (whether patentable or unpatentable and
whether or not reduced to practice), all improvements thereto, and all patents,
patent applications, and patent disclosures, together with all reissuances,
continuations, continuations-in-part, revisions, extensions, and reexaminations
thereof, (b) all trademarks, service marks, trade dress, logos, slogans, trade
names, corporate names, Internet domain names, and rights in telephone numbers,
together with all translations, adaptations, derivations, and combinations
thereof and including all goodwill associated therewith, and all applications,
registrations, and renewals in connection therewith, (c) all copyrightable
works, all copyrights, and all applications, registrations, and renewals in
connection therewith, (d) all mask works and all applications, registrations,
and renewals in connection therewith, (e) all trade secrets and confidential
business information (including ideas, research and development, know-how,
formulas, compositions, manufacturing and production processes and techniques,
technical data, designs, drawings, specifications, customer and supplier lists,
pricing and cost information, and business and marketing plans and proposals),
(f) all computer software (including source code, executable code, data,
databases, and related documentation), (g) all advertising and promotional
materials, (h) all other proprietary rights, and (i) all copies and tangible
embodiments thereof (in whatever form or medium).
"Knowledge" means actual knowledge after reasonable investigation.
"Liability" means any liability or obligation of whatever kind or
nature (whether known or unknown, whether asserted or unasserted, whether
absolute or contingent, whether accrued or unaccrued, whether liquidated or
unliquidated, and whether due or to become due), including any liability for
Taxes.
"Lien" means any mortgage, pledge, lien, encumbrance, charge, or other
security interest, other than (a) liens for Taxes not yet due and payable (b)
purchase money liens and liens securing rental payments under capital lease
arrangements, and (c) other liens arising in the Ordinary Course of Business and
not incurred in connection with the borrowing of money.
"Material Adverse Effect" or "Material Adverse Change" means any effect
or change that would be (or could reasonably be expected to be) materially
adverse to the business, assets, condition (financial or otherwise), operating
results, operations, or business prospects of a Party and its Subsidiaries
(regardless of whether or not such adverse effect or change can be or has been
cured at any time or whether the other Parties have knowledge of such effect or
change on the date hereof), including any adverse change, event, development, or
effect arising from or relating to the taking of any action contemplated by this
Agreement and the other agreements contemplated hereby.
"Merger" has the meaning set forth in ss.2(a) below.
"MOLI" has the meaning set forth in the preface above.
"MOLI Share" means any share of the common stock, no par value, of
MOLI.
"MOLI Special Meeting" means a special meeting of the stockholders of
MOLI called by duly adopted resolution of the board of directors of MOLI for the
purpose of obtaining stockholder approval of this Agreement, the ORI
Distribution, other matters pertaining to amendment of the articles of
incorporation of MOLI, and the election of directors of MOLI.
"MOLI Stockholder" means any Person who or which holds any MOLI Shares.
"Most Recent Balance Sheet" means the balance sheet as of the Most
Recent Fiscal Year End.
"Most Recent Fiscal Quarter End" has the meaning set forth in ss.4(g)
below.
"Most Recent Fiscal Year End" has the meaning set forth in ss.3(h)
below.
"ORI" has the meaning set forth in the preface above.
"ORI Distribution" means the distribution of the entire issued and
outstanding 2,326,474 ORI Shares by MOLI to the MOLI Stockholders pro rata based
on their ownership of MOLI Shares as of the day immediately preceding the
Effective Time.
"ORI Share" means any share of the common stock, no par value per
share, of ORI.
"Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency).
"Party" has the meaning set forth in the preface above.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization, any other business entity, or a
governmental entity (or any department, agency, or political subdivision
thereof).
"Public Reports" has the meaning set forth in ss.4(f) below.
"Requisite CO-OP Stockholder Approval" means the affirmative vote of
the holders of a majority of the CO-OP Shares.
"Requisite MOLI Stockholder Approval" means the affirmative vote of the
holders of a majority of the MOLI Shares.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Subsidiary" means, with respect to any Person, any corporation,
limited liability company, partnership, association, or business entity of which
(i) if a corporation, a majority of the total voting power of shares of stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers, or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof or (ii) if a limited
liability company, partnership, association, or other business entity (other
than a corporation), a majority of partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
that Person or one or more Subsidiaries of that Person or a combination thereof
and for this purpose, a Person or Persons owns a majority ownership interest in
such a business entity (other than a corporation) if such Person or Persons
shall be allocated a majority of such business entity's gains or losses or shall
be or control any managing director or general partner of such business entity
(other than a corporation). The term "Subsidiary" shall include all Subsidiaries
of such Subsidiary.
"Surviving Corporation" has the meaning set forth in ss.2(a) below.
"Tax" or "Taxes" means any federal, state, local, or foreign income,
gross receipts, license, payroll, employment, excise, severance, stamp,
occupation, premium, windfall profits, environmental (including taxes under
Internal Revenue Code ss.59A), customs duties, capital stock, franchise,
profits, withholding, social security (or similar), unemployment, disability,
real property, personal property, sales, use, transfer, registration, value
added, alternative or add-on minimum, estimated, or other tax of any kind
whatsoever, including any interest, penalty, or addition thereto, whether
disputed or not and including any obligations to indemnify or otherwise assume
or succeed to the Tax liability of any other Person.
"Tax Return" means any return, declaration, report, claim for refund,
or information return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof.
ss.2. Basic Transaction.
(a) Merger. On and subject to the terms and conditions of this
Agreement, Enterprises will merge with and into CO-OP (the "Merger") at the
Effective Time. Enterprises will cease to exist, and CO-OP shall be the
corporation surviving the Merger (the "Surviving Corporation").
(b) Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Cohne, Xxxxxxxxx &
Xxxxx, P.C., in Salt Lake City, Utah, commencing at 10:00 a.m. local time on the
third business day following the satisfaction or waiver of all conditions to the
obligations of the Parties to consummate the transactions contemplated hereby
other than conditions with respect to actions the respective Parties will take
at the Closing itself; provided, however, the Parties may agree in writing to a
different date for the Closing that is no earlier than the date specified above.
The date of the Closing selected under the preceding sentence is the "Closing
Date".
(c) Actions at Closing. At the Closing, (i) CO-OP will deliver to MOLI
and Enterprises the various certificates, instruments, and documents referred to
in ss.6(a) below, (ii) MOLI and Enterprises will deliver to CO-OP the various
certificates, instruments, and documents referred to in ss.6(b) below, (iii)
CO-OP and Enterprises will file with the Division of Corporations and Commercial
Code of the state of Utah Articles of Merger in the form attached hereto as
Exhibit A (the "Articles of Merger") (iv) each of the officers of MOLI will
deliver signed resignations from all of their officer positions with MOLI
effective immediately following the Closing, and (v) MOLI will deliver to the
Exchange Agent in the manner provided below in this ss.2 the certificates
evidencing the 18,823,288 MOLI Shares to be issued to CO-OP Stockholders in the
Merger.
(d) Effect of Merger.
(i) General. The Merger shall become effective at the time
(the "Effective Time") CO-OP and Enterprises file the Articles of
Merger with the state of Utah. The Merger shall have the effect set
forth in the Business Corporation Act. CO-OP, as the Surviving
Corporation, may, at any time after the Effective Time, take any action
(including executing and delivering any document) in the name and on
behalf of either CO-OP or Enterprises in order to carry out and
effectuate the transactions contemplated by this Agreement.
(ii) Articles of Incorporation. The Articles of Incorporation
of Surviving Corporation shall be the Articles of Incorporation of
CO-OP as in effect immediately prior to the Effective Time.
(iii) Bylaws. The Bylaws of Surviving Corporation shall be the
Bylaws of CO-OP as in effect immediately prior to the Effective Time.
(iv) Directors and Officers. The directors and officers of
CO-OP immediately prior to the Merger will be the directors and
officers of Surviving Corporation at and as of the Effective Time
(retaining their respective positions and terms of office).
(v) Conversion of CO-OP Shares. At and as of the Effective
Time each CO-OP Share (other than any Dissenting CO-OP Share) shall be
converted into the right to receive the number of MOLI Shares resulting
from the ratio of 18,823,288 divided by the total issued and
outstanding CO-OP shares at the Effective Time less any Dissenting
CO-OP Shares (the "Conversion Ratio"); provided, however, that the
Conversion Ratio shall be subject to equitable adjustment in the event
of any stock split, stock dividend, reverse stock split, or other
change in the number of CO-OP Shares outstanding immediately prior to
the Effective Time.
(vi) Dissenting CO-OP Shares. Each Dissenting CO-OP Share
shall be converted into the right to receive payment from the Surviving
Corporation with respect thereto in accordance with the provisions of
the Business Corporation Act.
(vii) All Other CO-OP Shares Void. No CO-OP Share shall be
deemed to be outstanding or to have any rights other than those
described and provided for in ss.2(d)(v) and (vi) at and after the
Effective Time, and except as expressly provided herein, no option or
warrant on CO-OP Shares shall have any continuing legal validity at and
after the Effective Time.
(viii) Conversion of Enterprises' Capital Stock. At and as of
the Effective Time, each share of Enterprises' common stock, no par
value per share, shall be converted into one share of Surviving
Corporation's common stock, par value $0.001 per share.
(e) Procedure for Payment.
(i) Immediately after the Effective Time, (A) MOLI will
furnish to Interwest Transfer Company (the "Exchange Agent") a stock
certificate (issued in the name of the Exchange Agent or its nominee)
representing the 18,823,288 MOLI Shares to be issued to non-dissenting
CO-OP Stockholders pursuant to the Conversion Ratio, and (B) MOLI will
cause the Exchange Agent to mail a letter of transmittal (with
instructions for its use) in the form attached hereto as Exhibit B to
each record holder of outstanding CO-OP Shares for the holder to use in
surrendering the certificate(s) which represented his, her, or its
CO-OP Shares in exchange for one or more certificates representing the
number of MOLI Shares to which he, she, or it is entitled. The MOLI
Shares issued in the Merger to the CO-OP Stockholders shall be, when
issued, fully paid and non-assessable, and shall be issued in reliance
on exemptions from registration under the Securities Act and state
securities laws, and will be "restricted securities" within the meaning
of Rule 144 adopted under the Securities Act.
(ii) MOLI will not pay any other dividend or make any other
distribution on MOLI Shares (with a record date at or after the
Effective Time) to any record holder of outstanding CO-OP Shares until
the holder surrenders for exchange his, her, or its certificates that
represented CO-OP Shares. Buyer instead will pay the dividend or make
the distribution to the Exchange Agent in trust for the benefit of the
holder pending surrender and exchange. In no event will any holder of
outstanding CO-OP Shares be entitled to any interest or earnings on the
dividend or distribution pending receipt.
(iii) MOLI may cause the Exchange Agent to return any MOLI
Shares and dividends and distributions thereon remaining unclaimed 180
days after the Effective Time, and thereafter each remaining record
holder of outstanding CO-OP Shares shall be entitled to look to MOLI
(subject to abandoned property, escheat, and other similar laws) as a
general creditor thereof with respect to the MOLI Shares and dividends
and distributions thereon to which he, she, or it claims to be entitled
upon surrender of his, her, or its certificates.
(f) Closing of CO-OP Transfer Records. After the close of business on
the Closing Date, transfers of CO-OP Shares outstanding prior to the Effective
Time shall not be made on the stock transfer books of Surviving Corporation.
(g) ORI Disposition. The parties agree that, prior to or as of the day
immediately preceding the Effective Time, MOLI shall transfer and assign all of
its assets, rights, options and liabilities to ORI under arrangements whereby
ORI expressly assumes responsibility for all assumed MOLI liabilities and
whereby ORI expressly releases and indemnifies MOLI and CO-OP of any and all
liability of any kind whatsoever with respect to the assets, contracts and
liabilities thus transferred to ORI. Moreover, ORI will execute and deliver to
MOLI and CO-OP an Indemnity Agreement in the form attached hereto as Exhibit C
holding MOLI and CO-OP harmless from any cost, charge, claim or damages
associated with any liability of MOLI that is transferred and assumed by ORI.
Following the transfer of all of its pre-Closing assets, rights and liabilities
to ORI and the execution and delivery of the Indemnity Agreement, MOLI shall
deliver to the Exchange Agent all of the issued and outstanding ORI Shares to
effect the ORI Distribution. MOLI will not pay any dividend or make any
distribution on MOLI Shares that is paid or payable in ORI Shares (with a record
date at or after the Effective Time) to any record holder of outstanding CO-OP
Shares.
ss.3. CO-OP's Representations and Warranties. CO-OP makes the representations
and warranties to MOLI and Enterprises contained in this ss.3 as of the date of
this Agreement and as of the Closing Date (as though made then and as though the
Closing Date were substituted for the date of this Agreement throughout this
ss.3), except as set forth in the disclosure schedule accompanying this
Agreement and initialed by the Parties (the "Disclosure Schedule") with the
intent that MOLI and Enterprises rely on such representations and warranties in
entering into this Agreement and consummating the transactions contemplated
hereby. The Disclosure Schedule will be arranged in paragraphs corresponding to
the lettered and numbered paragraphs contained in this ss.3.
(a) Organization, Qualification, and Corporate Power. CO-OP and each of
its Subsidiaries is a corporation duly organized, validly existing, and in good
standing under the laws of the jurisdiction of its incorporation. CO-OP and each
of its Subsidiaries is duly authorized to conduct business and is in good
standing under the laws of each jurisdiction where such qualification is
required, except where the lack of such qualification would not have a Material
Adverse Effect. CO-OP and each of its Subsidiaries has full corporate power and
authority to carry on the businesses in which it is engaged and to own and use
the properties now owned and used by it.
(b) Capitalization. The entire authorized capital stock of CO-OP
consists of 20,000,000 CO-OP Shares, of which 9,411,644 CO-OP Shares are issued
and outstanding, and 5,000,000 shares of preferred stock, par value $0.001 per
share, of which no shares are issued and outstanding. All of the issued and
outstanding CO-OP Shares have been duly authorized and are validly issued, fully
paid, and non-assessable. There are no outstanding or authorized options,
warrants, purchase rights, subscription rights, conversion rights, exchange
rights, or other contracts or commitments that could require CO-OP to issue,
sell, or otherwise cause to become outstanding any of its capital stock. There
are no outstanding or authorized stock appreciation, phantom stock, profit
participation, or similar rights with respect to CO-OP.
(c) Authorization of Transaction. CO-OP has full power and authority to
execute and deliver this Agreement and to perform its obligations hereunder;
provided, however, that CO-OP cannot consummate the Merger unless and until it
receives the Requisite CO-OP Stockholder Approval. This Agreement constitutes
the valid and legally binding obligation of CO-OP, enforceable in accordance
with its terms and conditions.
(d) Non-contravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(i) to the Knowledge of any director or officer of CO-OP, violate any
constitution, statute, regulation, rule, injunction, judgment, order, decree,
ruling, charge, or other restriction of any government, governmental agency, or
court to which CO-OP or any of its Subsidiaries is subject or (ii) violate any
provision of the charter or bylaws of CO-OP or any of its Subsidiaries or (iii)
conflict with, result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate, terminate, modify,
or cancel, or require any notice under any agreement, contract, lease, license,
instrument, or other arrangement to which CO-OP or any of its Subsidiaries is a
party or by which it is bound or to which any of its assets is subject (or
result in the imposition of any Lien upon any of its assets). To the Knowledge
of any director or officer of CO-OP, and other than in connection with the
provisions of the Business Corporation Act, the Securities Exchange Act, the
Securities Act, and state securities laws, neither CO-OP nor any of its
Subsidiaries needs to give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or governmental agency in
order for the Parties to consummate the transactions contemplated by this
Agreement.
(e) Brokers' Fees. Neither CO-OP nor any of its Subsidiaries has any
Liability or obligation to pay any fees or commissions to any broker, finder, or
agent with respect to the transactions contemplated by this Agreement.
(f) Title to Assets. CO-OP and its Subsidiaries have good and
marketable title to, or a valid leasehold interest in, the properties and assets
used by them, located on their premises, or shown on the Most Recent Balance
Sheet or acquired after the date thereof, free and clear of all Liens, except
for properties and assets disposed of in the Ordinary Course of Business since
the date of the Most Recent Balance Sheet.
(g) Subsidiaries. ss.3(g) of the Disclosure Schedule sets forth for
each Subsidiary of CO-OP (i) its name and jurisdiction of incorporation, (ii)
the number of shares of authorized capital stock of each class of its capital
stock, (iii) the number of issued and outstanding shares of each class of its
capital stock, the names of the holders thereof, and the number of shares held
by each such holder, and (iv) the number of shares of its capital stock held in
treasury. All of the issued and outstanding shares of capital stock of each
Subsidiary of CO-OP have been duly authorized and are validly issued, fully
paid, and non-assessable. CO-OP or one or more of its Subsidiaries holds of
record and owns beneficially all of the outstanding shares of each Subsidiary of
CO-OP, free and clear of any restrictions on transfer (other than restrictions
under the Securities Act and state securities laws), Liens, options, warrants,
purchase rights, contracts, commitments, equities, claims, and demands. There
are no outstanding or authorized options, warrants, purchase rights,
subscription rights, conversion rights, exchange rights, or other contracts or
commitments that could require any of CO-OP and its Subsidiaries to sell,
transfer, or otherwise dispose of any capital stock of any of its Subsidiaries
or that could require any Subsidiary of CO-OP to issue, sell, or otherwise cause
to become outstanding any of its own capital stock. There are no outstanding
stock appreciation, phantom stock, profit participation, or similar rights with
respect to any Subsidiary of CO-OP. There are no voting trusts, proxies, or
other agreements or understandings with respect to the voting of any capital
stock of any Subsidiary of CO-OP. Neither CO-OP nor any of its Subsidiaries
controls directly or indirectly or has any direct or indirect equity
participation in any corporation, partnership, trust, or other business
association, which is not a Subsidiary of CO-OP. Except for the Subsidiaries set
forth in ss.3(g) of the Disclosure Schedule, neither CO-OP nor any of its
Subsidiaries owns or has any right to acquire, directly or indirectly, any
outstanding capital stock of, or other equity interests in, any Person.
(h) Financial Statements. On or before February 29, 2004, CO-OP will
deliver to MOLI as ss.3(h) of the Disclosure Schedule the following financial
statements (collectively the "Financial Statements"): (i) an audited
consolidated balance sheet for CO-OP as of December 31, 2003 (the "Most Recent
Fiscal Year End"); and (ii) audited consolidated statements of income, changes
in stockholders' equity, and cash flows of CO-OP for each year in the two year
period ended December 31, 2003. The Financial Statements (including the notes
thereto) will be prepared in accordance with GAAP applied on a consistent basis
throughout the periods covered thereby, present fairly the financial condition
of CO-OP and its Subsidiaries as of such dates and the results of operations of
CO-OP and its Subsidiaries for such periods, will be correct and complete, and
will be consistent with the books and records of CO-OP and its Subsidiaries
(which books and records are correct and complete).
(i) Events Subsequent to Most Recent Fiscal Year End. Since the Most
Recent Fiscal Year End and except as disclosed in ss.3(j) of the Disclosure
Schedule, there has not been any Material Adverse Change. Without limiting the
generality of the foregoing, since that date:
(i) neither CO-OP nor any of its Subsidiaries has sold,
leased, transferred, or assigned any of its assets, tangible or
intangible, other than for a fair consideration in the Ordinary Course
of Business;
(ii) neither CO-OP nor any of its Subsidiaries has entered
into any agreement, contract, lease, or license (or series of related
agreements, contracts, leases, and licenses) either involving more than
$5,000 or outside the Ordinary Course of Business;
(iii) no party (including CO-OP and any of its Subsidiaries)
has accelerated, terminated, modified, or cancelled any agreement,
contract, lease, or license (or series of related agreements,
contracts, leases, and licenses) involving more than $5,000 to which
CO-OP or any of its Subsidiaries is a party or by which any of them is
bound;
(iv) neither CO-OP nor any of its Subsidiaries has imposed any
Liens upon any of its assets, tangible or intangible;
(v) neither CO-OP nor any of its Subsidiaries has made any
capital expenditure (or series of related capital expenditures) either
involving more than $5,000 or outside the Ordinary Course of Business;
(vi) neither CO-OP nor any of its Subsidiaries has made any
capital investment in, any loan to, or any acquisition of the
securities or assets of, any other Person (or series of related capital
investments, loans, and acquisitions) either involving more than $5,000
or outside the Ordinary Course of Business;
(vii) neither CO-OP nor any of its Subsidiaries has issued any
note, bond, or other debt security or created, incurred, assumed, or
guaranteed any indebtedness for borrowed money or capitalized lease
obligation either involving more than $5,000 singly or $15,000 in the
aggregate;
(viii) neither CO-OP nor any of its Subsidiaries has delayed
or postponed the payment of accounts payable and other Liabilities
outside the Ordinary Course of Business;
(ix) neither CO-OP nor any of its Subsidiaries has cancelled,
compromised, waived, or released any right or claim (or series of
related rights and claims) either involving more than $5,000 or outside
the Ordinary Course of Business;
(x) there has been no change made or authorized in the charter
or bylaws of any of CO-OP and its Subsidiaries;
(xi) neither CO-OP nor any of its Subsidiaries has declared,
set aside, or paid any dividend or made any distribution with respect
to its capital stock (whether in cash or in kind) or redeemed,
purchased, or otherwise acquired any of its capital stock;
(xii) neither CO-OP nor any of its Subsidiaries has
experienced any damage, destruction, or loss (whether or not covered by
insurance) to its property;
(xiii) neither CO-OP nor any of its Subsidiaries has made any
loan to, or entered into any other transaction with, any of its
directors, officers, and employees outside the Ordinary Course of
Business;
(xiv) neither CO-OP nor any of its Subsidiaries has entered
into any employment contract or collective bargaining agreement,
written or oral, or modified the terms of any existing such contract or
agreement;
(xv) neither CO-OP nor any of its Subsidiaries has granted any
increase in the base compensation of, or made any other change in
employment terms for, any of its directors, officers, and employees
outside the Ordinary Course of Business; and
(xvi) neither CO-OP nor any of its Subsidiaries has committed
to any of the foregoing.
(j) Undisclosed Liabilities. Neither CO-OP nor any of its Subsidiaries
has any Liability (and, to their Knowledge, there is no Basis for any present or
future action, suit, proceeding, hearing, investigation, charge, complaint,
claim, or demand against any of them giving rise to any Liability) including
Liability for Taxes, except for (i) Liabilities set forth on the face of the
Most Recent Balance Sheet (rather than in any notes thereto), (ii) Liabilities
disclosed in ss.3(j) of the Disclosure Schedule and (ii) Liabilities which have
arisen after the Most Recent Fiscal Year End in the Ordinary Course of Business
(none of which results from, arises out of, relates to, is in the nature of, or
was caused by any breach of contract, breach of warranty, tort, infringement, or
violation of law).
(k) Legal Compliance. CO-OP, each of its Subsidiaries, and their
respective predecessors and Affiliates have complied with all applicable laws
(including rules, regulations, codes, plans, injunctions, judgments, orders,
decrees, rulings, and charges there under and including the Foreign Corrupt
Practices Act, 15 U.S.C. 78dd-1 et seq.) of federal, state, local, and foreign
governments (and all agencies thereof), and no action, suit, proceeding,
hearing, investigation, charge, complaint, claim, demand, or notice has been
filed or commenced against any of them alleging any failure so to comply.
(l) Tax Matters.
(i) CO-OP and each of its Subsidiaries have filed all Tax
Returns that they were required to file under applicable laws and
regulations. All such Tax Returns were correct and complete in all
respects and have been prepared in substantial compliance with all
applicable laws and regulations. All Taxes due and owing by CO-OP or
any of its Subsidiaries (whether or not shown on any Tax Return) have
been paid. Neither CO-OP nor any of its Subsidiaries currently is the
beneficiary of any extension of time within which to file any Tax
Return. No claim has ever been made by an authority in a jurisdiction
where CO-OP or any of its Subsidiaries does not file Tax Returns that
it is or may be subject to taxation by that jurisdiction. There are no
Liens for Taxes (other than Taxes not yet due and payable) upon any of
the assets of CO-OP or any of its Subsidiaries.
(ii) CO-OP and each of its Subsidiaries have withheld and paid
all Taxes required to have been withheld and paid in connection with
any amounts paid or owing to any employee, independent contractor,
creditor, stockholder, or other third party.
(m) Intellectual Property.
(i) CO-OP and its Subsidiaries own and possess or have the
right to use pursuant to a valid and enforceable, written license,
sublicense, agreement, or permission all Intellectual Property
necessary for the operation of the businesses of CO-OP and its
Subsidiaries as presently conducted and as presently proposed to be
conducted. Each item of Intellectual Property owned or used by CO-OP or
any of its Subsidiaries immediately prior to the Closing hereunder will
be owned or available for use by CO-OP or its Subsidiaries on identical
terms and conditions immediately subsequent to the Closing hereunder.
CO-OP and each of its Subsidiaries have taken all necessary action to
maintain and protect each item of Intellectual Property that they own
or use.
(ii) Neither CO-OP nor any of its Subsidiaries has interfered
with, infringed upon, misappropriated, or otherwise come into conflict
with any Intellectual Property rights of third parties, and none of the
directors and officers (and employees with responsibility for
Intellectual Property matters) of CO-OP or any of its Subsidiaries has
ever received any charge, complaint, claim, demand, or notice alleging
any such interference, infringement, misappropriation, or violation
(including any claim that CO-OP or any of its Subsidiaries must license
or refrain from using any Intellectual Property rights of any third
party). To the Knowledge of any of the directors and officers (and
employees with responsibility for Intellectual Property matters) of
CO-OP and its Subsidiaries, no third party has interfered with,
infringed upon, misappropriated, or otherwise come into conflict with
any Intellectual Property rights of CO-OP or any of its Subsidiaries.
(n) Litigation. ss.3(n) of the Disclosure Schedule sets forth each
instance in which CO-OP, any of its Subsidiaries, or any of their respective
directors (i) is subject to any outstanding injunction, judgment, order, decree,
ruling, or charge or (ii) is a party or, to the Knowledge of any of directors
and officers (and employees with responsibility for litigation matters) of CO-OP
and its Subsidiaries, is threatened to be made a party to any action, suit,
proceeding, hearing, or investigation of, in, or before any court or
quasi-judicial or administrative agency of any federal, state, local, or foreign
jurisdiction or before any arbitrator. None of the actions, suits, proceedings,
hearings, and investigations set forth in ss.3(n) of the Disclosure Schedule
could result in any Material Adverse Change. None of the directors and officers
(and employees with responsibility for litigation matters) of CO-OP and its
Subsidiaries has any reason to believe that any such action, suit, proceeding,
hearing, or investigation may be brought or threatened against CO-OP or any of
its Subsidiaries or that there is any Basis for the foregoing.
(o) Employees. To the Knowledge of any of the directors and officers
(and employees with responsibility for employment matters) of CO-OP and its
Subsidiaries, no executive, key employee, or group of employees has any plans to
terminate employment with CO-OP or any of its Subsidiaries. Neither CO-OP nor
any of its Subsidiaries is a party to or bound by any collective bargaining
agreement, nor have any of them experienced any strikes, grievances, claims of
unfair labor practices, or other collective bargaining disputes. Neither CO-OP
nor any of its Subsidiaries has committed any unfair labor practice. None of the
directors and officers (and employees with responsibility for employment
matters) of CO-OP and its Subsidiaries has any Knowledge of any organizational
effort presently being made or threatened by or on behalf of any labor union
with respect to employees of CO-OP or any of its Subsidiaries.
(p) Employee Benefits. None of CO-OP and its Subsidiaries has ever
established or maintained any "employee benefit plan" (as such term is defined
in ss.3(3) of the Employee Retirement Income Security Act of 1974, as amended)
and any other employee benefit plan, program or arrangement of any kind.
(q) Certain Business Relationships with CO-OP and Its Subsidiaries.
None of CO-OP's and its Subsidiaries' directors, officers, employees, and
shareholders, or their respective Affiliates, has been involved in any business
arrangement or relationship with CO-OP or any of its Subsidiaries within the
past 12 months, and none of CO-OP's and its Subsidiaries' directors, officers,
employees, and shareholders, or their respective Affiliates, owns any asset,
tangible or intangible, which is used in the business of CO-OP or any of its
Subsidiaries.
(r) Disclosure. The Definitive Information Statement will comply with
the disclosure requirements set forth in Regulation 14C and Schedule 14C adopted
under the Securities Exchange Act in all material respects. The Definitive
Information Statement will not contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements made
therein, in the light of the circumstances under which they will be made, not
misleading; provided, however, that CO-OP makes no representation or warranty
with respect to any information that MOLI and Enterprises will supply
specifically for use in the Definitive Information Statements.
(s) Disclosure. The representations and warranties contained in this
ss.4 do not contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements and information
contained in this ss.4 not misleading.
ss.4. MOLI's and Enterprises' Representations and Warranties. Each of MOLI and
Enterprises, makes the representations and warranties to CO-OP contained in this
ss.4 as of the date of this Agreement and as of the Closing Date (as though made
then and as though the Closing Date were substituted for the date of this
Agreement throughout this ss.4), except as set forth in the Disclosure Schedule
with the intent that CO-OP rely on such representations and warranties in
entering into this Agreement and consummating the transactions contemplated
hereby. The Disclosure Schedule will be arranged in paragraphs corresponding to
the numbered and lettered paragraphs contained in this ss.4.
(a) Organization. Each of MOLI and Enterprises is a corporation duly
organized, validly existing, and in good standing under the laws of the
jurisdiction of its incorporation.
(b) Capitalization. The entire authorized capital stock of MOLI
consists of 50,000,000 MOLI Shares, of which 2,326,474 MOLI Shares are issued
and outstanding, and 10,000,000 shares of preferred stock, no par value, of
which no shares are issued and outstanding. All of the issued and outstanding
MOLI Shares have been duly authorized and are validly issued, fully paid, and
non-assessable. Except as set forth in ss.4(b) of the Disclosure Schedule, there
are no outstanding or authorized options, warrants, purchase rights,
subscription rights, conversion rights, exchange rights, or other contracts or
commitments that could require MOLI to issue, sell, or otherwise cause to become
outstanding any of its capital stock. There are no outstanding or authorized
stock appreciation, phantom stock, profit participation, or similar rights with
respect to MOLI.
(c) Authorization of Transaction. Each of MOLI and Enterprises has full
power and authority (including full corporate or other entity power and
authority) to execute and deliver this Agreement and to perform its obligations
hereunder. This Agreement constitutes the valid and legally binding obligation
of each of MOLI and Enterprises, enforceable in accordance with its terms and
conditions.
(d) Non-contravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(i) to the Knowledge of any director or officer of MOLI, violate any
constitution, statute, regulation, rule, injunction, judgment, order, decree,
ruling, charge, or other restriction of any government, governmental agency, or
court to which either MOLI or Enterprises is subject or (ii) violate any
provision of the charter, bylaws, or other governing documents of either MOLI or
Enterprises or (iii) conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice under any
agreement, contract, lease, license, instrument, or other arrangement to which
either MOLI or Enterprises is a party or by which it is bound or to which any of
its assets is subject. To the Knowledge of any director or officer of MOLI, and
other than in connection with the provisions of the Business Corporation Act,
the Securities Exchange Act, the Securities Act, and state securities laws,
neither MOLI nor Enterprises needs to give any notice to, make any filing with,
or obtain any authorization, consent, or approval of any government or
governmental agency in order for the Parties to consummate the transactions
contemplated by this Agreement.
(e) Brokers' Fees. Neither MOLI nor Enterprises has any liability or
obligation to pay any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement for which CO-OP or
any of its Subsidiaries could become liable or obligated.
(f) Filings with SEC. MOLI has made all filings with SEC that it has
been required to make within the past three years under the Securities Act and
the Securities Exchange Act (collectively the "Public Reports"). Each of the
Public Reports has complied with the Securities Act and the Securities Exchange
Act in all material respects. None of the Public Reports, as of their respective
dates, contained any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements made therein, in light
of the circumstances under which they were made, not misleading. MOLI has
delivered to CO-OP a correct and complete copy of each Public Report filed with
the SEC since January 1, 2003 (together with all exhibits and schedules thereto
and as amended to date).
(g) Financial Statements. MOLI has filed Quarterly Reports on Form
10-QSB for the fiscal quarters ended September 30, 2003 (the "Most Recent Fiscal
Quarter End"), June 30, 2003, and March 31, 2003 and an Annual Report on Form
10-KSB for the fiscal year ended December 31, 2002. The financial statements
included in or incorporated by reference into these Public Reports (including
the related notes and schedules) have been prepared in accordance with GAAP
applied on a consistent basis throughout the periods covered thereby, present
fairly the financial condition of MOLI and its Subsidiaries as of the indicated
dates and the results of operations of MOLI and its Subsidiaries for the
indicated periods, are correct and complete in all respects, and are consistent
with the books and records of MOLI and its Subsidiaries.
(h) Events Subsequent to Most Recent Fiscal Quarter End. Since the Most
Recent Fiscal Quarter End, there has not been any Material Adverse Change.
(i) Undisclosed Liabilities. Neither MOLI nor any of its Subsidiaries
has any Liability (and, to their Knowledge, there is no Basis for any present or
future action, suit, proceeding, hearing, investigation, charge, complaint,
claim, or demand against any of them giving rise to any Liability), including
any Liability for Taxes, except for (i) Liabilities set forth on the face of the
balance sheet dated as of the Most Recent Fiscal Quarter End (rather than in any
notes thereto), (ii) Liabilities arising form or incident to he negotiation and
execution of this Agreement and consummation of the transactions contemplated
hereby, and (iii) Liabilities which have arisen after the Most Recent Fiscal
Quarter End in the Ordinary Course of Business (none of which results from,
arises out of, relates to, is in the nature of, or was caused by any breach of
contract, breach of warranty, tort, infringement, or violation of law).
(j) Legal Compliance. MOLI and Enterprises and their respective
predecessors and Affiliates have complied with all applicable laws (including
rules, regulations, codes, plans, injunctions, judgments, orders, decrees,
rulings, and charges there under and including the Foreign Corrupt Practices
Act, 15 U.S.C. 78dd-1 et seq.) of federal, state, local, and foreign governments
(and all agencies thereof), and no action, suit, proceeding, hearing,
investigation, charge, complaint, claim, demand, or notice has been filed or
commenced against any of them alleging any failure so to comply.
(k) Tax Matters.
(i) MOLI and each of its Subsidiaries have filed all Tax
Returns that they were required to file under applicable laws and
regulations. All such Tax Returns were correct and complete in all
respects and have been prepared in substantial compliance with all
applicable laws and regulations. All Taxes due and owing by MOLI or any
its Subsidiaries (whether or not shown on any Tax Return) have been
paid. Neither MOLI nor any of its Subsidiaries currently is the
beneficiary of any extension of time within which to file any Tax
Return. No claim has ever been made by an authority in a jurisdiction
where MOLI or any of its Subsidiaries does not file Tax Returns that it
is or may be subject to taxation by that jurisdiction. There are no
Liens for Taxes (other than Taxes not yet due and payable) upon any of
the assets of MOLI or any of its Subsidiaries.
(ii) MOLI and each of its Subsidiaries have withheld and paid
all Taxes required to have been withheld and paid in connection with
any amounts paid or owing to any employee, independent contractor,
creditor, stockholder, or other third party.
(l) Litigation. ss.4(l) of the Disclosure Schedule sets forth each
instance in which MOLI, Enterprises, or any of their respective directors (i) is
subject to any outstanding injunction, judgment, order, decree, ruling, or
charge or (ii) is a party or, to the Knowledge of any of directors and officers
(and employees with responsibility for litigation matters) of MOLI or
Enterprises, is threatened to be made a party to any action, suit, proceeding,
hearing, or investigation of, in, or before any court or quasi-judicial or
administrative agency of any federal, state, local, or foreign jurisdiction or
before any arbitrator. None of the actions, suits, proceedings, hearings, and
investigations set forth in ss.4(l) of the Disclosure Schedule could result in
any Material Adverse Change. None of the directors and officers (and employees
with responsibility for litigation matters) of MOLI or Enterprises has any
reason to believe that any such action, suit, proceeding, hearing, or
investigation may be brought or threatened against MOLI or Enterprises or that
there is any Basis for the foregoing.
(j) Disclosure. The Definitive Information Statement will comply with
the disclosure requirements set forth in Regulation 14C and Schedule 14C adopted
under the Securities Exchange Act in all material respects. The Definitive
Information Statements will not contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements made
therein, in the light of the circumstances under which they will be made, not
misleading; provided, however, that MOLI and Enterprises make no representation
or warranty with respect to any information that CO-OP will supply specifically
for use in the Definitive Information Statements.
(j) Xxxxxxxx-Xxxxx Compliance. MOLI has, since July 30, 2002, included
in its Public Reports the disclosure required by Item 307 of Regulation S-B and
the certifications required by xx.xx. 302 and 906 of the Xxxxxxxx-Xxxxx Act of
2002, and has not extended or maintained credit, arranged for the extension of
credit, or renewed an extension of credit, in the form of a personal loan to or
for any director or executive officer of MOLI or its Subsidiaries, that is
prohibited by ss. 402 of the Xxxxxxxx-Xxxxx Act of 2002.
(k) Certain Business Relationships with MOLI and Its Subsidiaries.
Except as set forth in ss.4(k) of the Disclosure Schedule, none of MOLI's and
its Subsidiaries' directors, officers, employees, and shareholders, or their
respective Affiliates, has been involved in any business arrangement or
relationship with MOLI or any of its Subsidiaries within the past 12 months, and
none of MOLI's and its Subsidiaries' directors, officers, employees, and
shareholders, or their respective Affiliates, owns any asset, tangible or
intangible, which is used in the business of MOLI or any of its Subsidiaries.
ss.5. Covenants. The Parties agree as follows with respect to the period from
and after the execution of this Agreement.
(a) General. Each of the Parties will use its reasonable best efforts
to take all action and to do all things necessary, proper, or advisable in order
to consummate and make effective the transactions contemplated by this Agreement
(including satisfaction, but not waiver, of the closing conditions set forth in
ss.6 below).
(b) Regulatory Matters and Approvals. Each of the Parties will give any
notices to, make any filings with, and use its reasonable best efforts to obtain
any authorizations, consents, and approvals of governments and governmental
agencies in connection with the matters referred to in ss.3(d) and ss.4(d)
above. Without limiting the generality of the foregoing:
(i) State Securities Laws. As soon as practicable following
the delivery of the Financial Statements by CO-OP to MOLI, MOLI, with
the assistance of CO-OP, will prepare and file with the Utah Securities
Division under ss.61-1-14(2)(p) or 14(2)(s) of the Utah Uniform
Securities Act a preliminary information statement that complies with
the disclosure requirements of Regulation 14C and Schedule 14C adopted
under the Securities Exchange Act relating to the CO-OP Special Meeting
and MOLI Special Meeting. MOLI, in cooperation with CO-OP, will use its
reasonable best efforts to respond to the comments of the Utah
Securities Division thereon and will make any further filings
(including amendments and supplements) in connection therewith that may
be necessary, proper, or advisable. MOLI will keep CO-OP and its legal
counsel and accountants fully and timely informed about any and all
comments from, inquiries by, and agreements reached with, the Utah
Securities Division.
(ii) Business Corporation Act.
(A) Within five days following the date on which the
Utah Securities Division determines it has no further comments
on the preliminary information statement, CO-OP will
distribute to its stockholders the Definitive Information
Statement, which will include notice of the CO-OP Special
Meeting for a date not later than 20 days following the date
the Definitive Information Statement is disseminated to the
CO-OP Stockholders. At the CO-OP Special Meeting the CO-OP
Stockholders shall consider and vote upon the adoption of this
Agreement and the approval of the Merger in accordance with
the Business Corporation Act.
(B) Within five days following the date on which the
Utah Securities Division determines it has no further comments
on the preliminary information statement, MOLI will distribute
to its stockholders the Definitive Information Statement,
which will include Notice of the MOLI Special Meeting for a
date not later than 20 days following the date the Definitive
Information Statement is disseminated to the stockholders of
MOLI. At the MOLI Special Meeting the MOLI Stockholders shall
consider and vote upon the adoption of this Agreement, the ORI
Distribution, the election of directors, and amendment of the
articles of incorporation of MOLI to change its name to Dental
Patient Care America, Inc. and adopt such other changes to
which the Parties may agree.
(C) On or before the Closing Date, MOLI shall prepare
and sign a written consent as the sole stockholder of
Enterprises approving this Agreement and the Merger.
(D) The Definitive Information Statement shall
contain the affirmative recommendation of the boards of
directors of CO-OP and MOLI in favor of the adoption of this
Agreement and the approval of the Merger; provided, however,
that no director or officer of CO-OP or MOLI shall be required
to violate any fiduciary duty or other requirement imposed by
law in connection therewith.
(c) Operation of Business. Neither MOLI nor CO-OP will (and will not
cause or permit any of its Subsidiaries to) engage in any practice, take any
action, or enter into any transaction outside the Ordinary Course of Business.
Without limiting the generality of the foregoing:
(i) neither CO-OP, MOLI nor any of their Subsidiaries will
authorize or effect any change in its charter or bylaws;
(ii) neither CO-OP, MOLI nor any of their Subsidiaries will
grant any options, warrants, or other rights to purchase or obtain any
of its stock or issue, sell, or otherwise dispose of any of its capital
stock (except upon the conversion or exercise of options, warrants, and
other rights currently outstanding);
(iii) neither CO-OP, MOLI nor any of their Subsidiaries will
declare, set aside, or pay any dividend or distribution with respect to
its stock (whether in cash or in kind), or redeem, repurchase, or
otherwise acquire any of its capital stock, except for the ORI
Distribution contemplated by this Agreement;
(iv) neither CO-OP, MOLI nor any of their Subsidiaries will
issue any note, bond, or other debt security or create, incur, assume,
or guarantee any indebtedness for borrowed money or capitalized lease
obligation outside the Ordinary Course of Business;
(v) neither CO-OP, MOLI nor any of their Subsidiaries will
impose any Lien upon any of its assets outside the Ordinary Course of
Business;
(vi) neither CO-OP, MOLI nor any of their Subsidiaries will
make any capital investment in, make any loan to, or acquire the
securities or assets of any other Person outside the Ordinary Course of
Business;
(vii) neither CO-OP, MOLI nor any of their Subsidiaries will
make any change in employment terms for any of its directors, officers,
and employees outside the Ordinary Course of Business; and
(viii) neither CO-OP, MOLI nor any of their Subsidiaries will
commit to any of the foregoing.
(d) Full Access. CO-OP and MOLI will (and will cause each of their
Subsidiaries to) permit representatives of the other party (including legal
counsel and accountants) to have full access at all reasonable times, and in a
manner so as not to interfere with the normal business operations, to all
premises, properties, personnel, books, records (including tax records),
contracts, and business documents, including those related to any Subsidiaries.
Each of MOLI, CO-OP and Enterprises will treat and hold as such any Confidential
Information it receives from another party or any of its Subsidiaries in the
course of the reviews contemplated by this ss.5(d), will not use any of the
Confidential Information except in connection with this Agreement, and, if this
Agreement is terminated for any reason whatsoever, agrees to return to the
producing party all tangible embodiments (and all copies) thereof which are in
its possession.
(e) Notice of Developments. Each Party will give prompt written notice
to the others of any material adverse development causing a breach of any of its
own representations and warranties in ss.3 and ss.4 above. No disclosure by any
Party pursuant to this ss.5(e), however, shall be deemed to amend or supplement
the Disclosure Schedule or to prevent or cure any misrepresentation, breach of
warranty, or breach of covenant.
(f) Exclusivity.
(i) CO-OP will not (and will not cause or permit any of its
Subsidiaries to) solicit, initiate, or encourage the submission of any
proposal or offer from any Person relating to the acquisition of all or
substantially all of the capital stock or assets of CO-OP or any of its
Subsidiaries (including any acquisition structured as a merger,
consolidation, or share exchange); provided, however, that CO-OP, its
Subsidiaries, and their directors and officers will remain free to
participate in any discussions or negotiations regarding, furnish any
information with respect to, assist or participate in, or facilitate in
any other manner any effort or attempt by any Person to do or seek any
of the foregoing to the extent their fiduciary duties may require.
CO-OP shall notify MOLI immediately if any Person makes any proposal,
offer, inquiry, or contact with respect to any of the foregoing.
(ii) MOLI will not (and will not cause or permit any of its
Subsidiaries to) solicit, initiate, or encourage the submission of any
proposal or offer from any Person relating to the acquisition by MOLI
of all or substantially all of the capital stock or assets of such
Person or any of its Subsidiaries (including any acquisition structured
as a merger, consolidation, or share exchange); provided, however, that
MOLI, its Subsidiaries, and their directors and officers will remain
free to participate in any discussions or negotiations regarding,
furnish any information with respect to, assist or participate in, or
facilitate in any other manner any effort or attempt by any Person to
do or seek any of the foregoing to the extent their fiduciary duties
may require. MOLI shall notify CO-OP immediately if any Person makes
any proposal, offer, inquiry, or contact with respect to any of the
foregoing.
ss.6. Conditions to Obligation to Close.
(a) Conditions to MOLI's and Enterprises' Obligation. The obligation of
each of MOLI and Enterprises to consummate the transactions to be performed by
it in connection with the Closing is subject to satisfaction of the following
conditions:
(i) this Agreement and the Merger shall have received the
Requisite CO-OP Stockholder Approval, this Agreement and the ORI
Distribution shall have received the Requisite MOLI Stockholder
Approval, and the number of Dissenting CO-OP Shares shall not exceed
five percent (5%) of the number of outstanding CO-OP Shares;
(ii) the representations and warranties set forth in ss.3
above shall be true and correct in all material respects at and as of
the Closing Date;
(iii) CO-OP shall have performed and complied with all of its
covenants hereunder in all material respects through the Closing;
(iv) No action, suit, or proceeding shall be pending or
threatened before any court or quasi-judicial or administrative agency
of any federal, state, local, or foreign jurisdiction or before any
arbitrator wherein an unfavorable injunction, judgment, order, decree,
ruling, or charge would (A) prevent consummation of any of the
transactions contemplated by this Agreement, (B) cause any of the
transactions contemplated by this Agreement to be rescinded following
consummation, (C) affect adversely the right of MOLI to own the capital
stock of Surviving Corporation and to control Surviving Corporation and
its Subsidiaries, or (D) affect adversely the right of any of Surviving
Corporation and its Subsidiaries to own its assets and to operate its
businesses (and no such injunction, judgment, order, decree, ruling, or
charge shall be in effect);
(v) the Chief Executive Officer of CO-OP shall have delivered
to MOLI and Enterprises a certificate to the effect that each of the
conditions specified above in ss.6(a)(i)-(iv) is satisfied in all
respects; and
(vi) all actions to be taken by CO-OP in connection with
consummation of the transactions contemplated hereby and all
certificates, instruments, and other documents required to effect the
transactions contemplated hereby will be satisfactory in form and
substance to MOLI and Enterprises.
MOLI and Enterprises may waive any condition specified in this ss.6(a) if they
execute a writing so stating at or prior to the Closing.
(b) Conditions to CO-OP's Obligation. The obligation of CO-OP to
consummate the transactions to be performed by it in connection with the Closing
is subject to satisfaction of the following conditions:
(i) this Agreement (and, in the case of CO-OP, the Merger)
shall have received the Requisite CO-OP Stockholder Approval and
Requisite MOLI Stockholder Approval, the ORI Distribution and the other
matters pertaining to amendment of the articles of incorporation of
MOLI set forth in the Definitive Information Statement shall have
received the Requisite MOLI Stockholder Approval, the election of each
director nominated and proposed for election in the Definitive
Information Statement shall be elected by a plurality of the vote cast
for each such director, and the number of Dissenting MOLI Shares shall
not exceed one percent of the number of outstanding MOLI Shares;
(ii) the representations and warranties set forth in ss.4
above shall be true and correct in all material respects at and as of
the Closing Date;
(iii) each of MOLI and Enterprises shall have performed and
complied with all of its covenants hereunder in all material respects
through the Closing;
(iv) No action, suit, or proceeding shall be pending or
threatened before any court or quasi-judicial or administrative agency
of any federal, state, local, or foreign jurisdiction or before any
arbitrator wherein an unfavorable injunction, judgment, order, decree,
ruling, or charge would (A) prevent consummation of any of the
transactions contemplated by this Agreement, (B) cause any of the
transactions contemplated by this Agreement to be rescinded following
consummation, (C) affect adversely the right of MOLI to own the capital
stock of Surviving Corporation and to control Surviving Corporation and
its Subsidiaries, or (D) affect adversely the right of any of Surviving
Corporation and its Subsidiaries to own its assets and to operate its
businesses (and no such injunction, judgment, order, decree, ruling, or
charge shall be in effect);
(v) the Chief Executive Officer of each of MOLI and
Enterprises shall have delivered to CO-OP a certificate to the effect
that each of the conditions specified above in ss.6(b)(i)-(iv) is
satisfied in all respects;
(vi) all actions to be taken by MOLI and Enterprises in
connection with consummation of the transactions contemplated hereby
and all certificates, instruments, and other documents required to
effect the transactions contemplated hereby will be satisfactory in
form and substance to CO-OP;
(vii) ORI shall have executed and delivered the Indemnity
Agreement in the form attached hereto as Exhibit C as contemplated in
ss.2(g);
(viii) MOLI shall cause to be signed and delivered to it by
Xxxxxx Xxxxxxxx and Xxxx Xxxxxxxx a Lockup Agreement in the form
attached hereto as Exhibit D whereby such persons shall agree with MOLI
that each such person, together with any assignees, donees, heirs and
successors, will refrain from selling any MOLI Shares until on and
after the date that is one year and thirty days after the Effective
Time;
(ix) MOLI and/or CO-OP shall have executed and delivered with
Xxxxxxx Xxxxx, Xxxxxx Xxxxxxx, and Xxxxxx Xxxxxxxxx employment and
severance agreements effective upon the Closing in form and substance
agreeable and acceptable to such individuals; and
(x) MOLI shall have issued and delivered, effective upon the
Closing, stock options to the following persons, covering the following
numbers of shares, and at the following exercise prices:
Name Number of Shares Exercise Price
---- ---------------- --------------
Xxxx Dental 200,000 $2.50 per share
Xxxxx Xxxxx 50,000 2.50 per share
FMG 10,000 2.50 per share
X. Xxxx 2,000 2.50 per share
X. Xxxxxx 2,000 2.50 per share
(xi) MOLI shall deliver signed resignations of each and every officer
of MOLI holding office immediately prior to Closing.
(xii) MOLI shall have caused the election of Xxxxxxx Xxxxx and Xxxxxx
Xxxxxxx as directors of MOLI as of the Effective Time, and shall have delivered
the resignations of Xxxxxx Xxxxxxxx and Xxxx Xxxxxxxxx as directors of MOLI.
Xxxxx X. ("Xxxx") Xxxxxxxx will continue to serve as a director.
CO-OP may waive any condition specified in this ss.6(b) if it executes a writing
so stating at or prior to the Closing.
ss.7. Termination.
(a) Termination of Agreement. Any of the Parties may terminate this
Agreement with the prior authorization of its board of directors (whether before
or after stockholder approval) as provided below:
(i) the Parties may terminate this Agreement by mutual written
consent at any time prior to the Effective Time;
(ii) MOLI and Enterprises may terminate this Agreement by
giving written notice to CO-OP at any time prior to the Effective Time
(A) in the event CO-OP has breached any material representation,
warranty, or covenant contained in this Agreement in any material
respect, MOLI or Enterprises has notified CO-OP of the breach, and the
breach has continued without cure for a period of 30 days after the
notice of breach or (B) if the Closing shall not have occurred on or
before June 30, 2004 by reason of the failure of any condition
precedent under ss.6(a) hereof (unless the failure results primarily
from MOLI or Enterprises breaching any representation, warranty, or
covenant contained in this Agreement);
(iii) CO-OP may terminate this Agreement by giving written
notice to MOLI and Enterprises at any time prior to the Effective Time
(A) in the event MOLI or Enterprises has breached any material
representation, warranty, or covenant contained in this Agreement in
any material respect, CO-OP has notified MOLI and Enterprises of the
breach, and the breach has continued without cure for a period of 30
days after the notice of breach or (B) if the Closing shall not have
occurred on or before June 30, 2004 by reason of the failure of any
condition precedent under ss.6(b) hereof (unless the failure results
primarily from CO-OP breaching any representation, warranty, or
covenant contained in this Agreement);
(iv) any Party may terminate this Agreement by giving written
notice to the other Parties at any time after either the CO-OP Special
Meeting or the MOLI Special Meeting in the event this Agreement, the
Merger, and the ORI Distribution fail to receive the Requisite CO-OP
Stockholder Approval and Requisite MOLI Stockholder Approval.
(b) Effect of Termination. If any Party terminates this Agreement
pursuant to ss.7(a) above, all rights and obligations of the Parties hereunder
shall terminate without any liability of any Party to any other Party (except
for any liability of any Party then in breach); provided, however, that the
confidentiality provisions contained in ss.5(d) above shall survive any such
termination.
ss.8. Miscellaneous.
(a) Survival. None of the representations, warranties, and covenants of
the Parties (other than the provisions in ss.2 above concerning the exchange of
MOLI Shares for CO-OP Shares and the ORI disposition by the ORI Distribution or
by sale) will survive the Effective Time.
(b) Press Releases and Public Announcements. No Party shall issue any
press release or make any public announcement relating to the subject matter of
this Agreement without the prior written approval of the other Parties;
provided, however, that any Party may make any public disclosure it believes in
good faith is required by applicable law or any listing or trading agreement
concerning its publicly-traded securities (in which case the disclosing Party
will use its reasonable best efforts to advise the other Party prior to making
the disclosure).
(c) No Third-Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their respective
successors and permitted assigns; provided, however, that (i) the provisions in
ss.2 above concerning the exchange of MOLI Shares for CO-OP Shares are intended
for the benefit of CO-OP Stockholders and (ii) the provisions in ss.2 above
concerning the ORI disposition by the ORI Distribution or by sale are intended
for the benefit of MOLI Stockholders or the purchaser, as applicable.
(d) Entire Agreement. This Agreement (including the documents referred
to herein) constitutes the entire agreement among the Parties and supersedes any
prior understandings, agreements, or representations by or among the Parties,
written or oral, to the extent they relate in any way to the subject matter
hereof.
(e) Succession and Assignment. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective successors
and permitted assigns. No Party may assign either this Agreement or any of its
rights, interests, or obligations hereunder without the prior written approval
of the other Parties.
(f) Counterparts. This Agreement may be executed in one or more
counterparts, (including by means of facsimile), each of which shall be deemed
an original but all of which together will constitute one and the same
instrument.
(g) Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(h) Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given (i) when delivered
personally to the recipient, (ii) one business day after being sent to the
recipient by reputable overnight courier service (charges prepaid), (iii) one
business day after being sent to the recipient by facsimile transmission or
electronic mail, or (iv) four business days after being mailed to the recipient
by certified or registered mail, return receipt requested and postage prepaid,
and addressed to the intended recipient as set forth below:
If to CO-OP: Dental Patient Care America, Inc.
Attn: Xxxxxx X. Xxxxxxx, President
0000 X. Xxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Email: xxxxxxxx@xxxxxxxxxxxxxxxxx.xxx
Fax: (000) 000-0000
Copy to: A. Xxxxxx Xxxxxx, Esq.
Ray, Xxxxxxx & Xxxxxxx
00 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, Xxxx 00000
Email: xxxxxxx@xxx.xxx
Fax: (000) 000-0000
If to MOLI or Enterprises: Mountain Oil, Inc.
Attn: Xxxxxx Xxxxxxxx, President
0000 Xxxxx Xxxxxx Xxxx
Xxxxx, Xxxx 00000
Email: xxxxxx@xxxxxxxxxxxxxx.xxx
Fax: (000) 000-0000
Copy to: Xxxx X. Xxxxxx, Esq.
Cohne, Xxxxxxxxx & Xxxxx, P.C.
525 East 000 Xxxxx, 0xx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Email: xxxx@xxxxxx.xxx
Fax: (000) 000-0000
Any Party may change the address to which notices, requests, demands, claims,
and other communications hereunder are to be delivered by giving the other
Parties notice in the manner herein set forth.
(i) Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the state of Utah without giving effect to
any choice or conflict of law provision or rule (whether of the state of Utah or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the state of Utah.
(j) Amendments and Waivers. The Parties may mutually amend any
provision of this Agreement at any time prior to the Effective Time with the
prior authorization of their respective boards of directors; provided, however,
that any amendment effected subsequent to stockholder approval will be subject
to the restrictions contained in the Business Corporation Act. No amendment of
any provision of this Agreement shall be valid unless the same shall be in
writing and signed by all of the Parties. No waiver by any Party of any
provision of this Agreement or any default, misrepresentation, or breach of
warranty or covenant hereunder, whether intentional or not, shall be valid
unless the same shall be in writing and signed by the Party making such waiver
nor shall such waiver be deemed to extend to any prior or subsequent default,
misrepresentation, or breach of warranty or covenant hereunder or affect in any
way any rights arising by virtue of any prior or subsequent such default,
misrepresentation, or breach of warranty or covenant.
(k) Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
(l) Expenses. Each of the Parties will bear its own costs and expenses
(including legal fees and expenses) incurred in connection with this Agreement
and the transactions contemplated hereby; provided that any expenses that would
ordinarily belong to MOLI (including the cost of printing new stock certificates
and issuing certificates to the CO-OP Stockholders as a result of the Merger,
but not the cost or expense of communicating with the CO-OP Stockholders) that
remain unpaid on or accrue after the Closing Date shall be assumed and paid
solely by ORI.
(m) Construction. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties and no presumption or burden of proof shall
arise favoring or disfavoring any Party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated there under, unless the context otherwise requires. The
word "including" shall mean including without limitation.
(n) Incorporation of Exhibits and Schedules. The Exhibits and Schedules
identified in this Agreement are incorporated herein by reference and made a
part hereof.
(o) Tax Disclosure Authorization. Notwithstanding anything herein to
the contrary, the Parties (and each Affiliate and Person acting on behalf of any
Party) agree that each Party (and each employee, representative, and other agent
of such Party) may disclose to any and all Persons, without limitation of any
kind, the transaction's tax treatment and tax structure (as such terms are used
in Code ss.ss.6011 and 6112 and regulations there under) contemplated by this
agreement and all materials of any kind (including opinions or other tax
analyses) provided to such Party or such Person relating to such tax treatment
and tax structure, subject to compliance with disclosure obligations under
applicable federal or state securities laws; provided, however, that such
disclosure many not be made until the earlier of date of (A) public announcement
of discussions relating to the transaction, (B) public announcement of the
transaction, or (C) execution of an agreement to enter into the transaction.
This authorization is not intended to permit disclosure of any other information
including (without limitation) (A) any portion of any materials to the extent
not related to the transaction's tax treatment or tax structure, (B) the
identities of participants or potential participants, (C) the existence or
status of any negotiations, (D) any pricing or financial information (except to
the extent such pricing or financial information is related to the transaction's
tax treatment or tax structure), or (E) any other term or detail not relevant to
the transaction's tax treatment or the tax structure.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date first above written.
DENTAL COOPERATIVE, INC.
By: /s/ Xxxxxx X. Xxxxxxx, President
MOUNTAIN OIL, INC. MTOIL ENTERPRISES, INC.
By: /s/ Xxxxxx Xxxxxxxx, President By: /s/ Xxxxxx Xxxxxxxx, President
OAKRIDGE RESOURCES, INC.
By: /s/ Xxxxxx Xxxxxxxx, President
