Merger Agreement
This Agreement of Merger made this 19th day of November, 1999 by and
between ▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., a Maine Corporation with a principal place of
business in Auburn, Maine (hereinafter referred to as "▇▇▇▇▇▇▇▇▇▇.▇▇▇"),
Acadia National Health Systems, Inc., a Colorado Corporation with a principal
place of business in Auburn, Maine (hereinafter referred to as "Acadia
Group"), ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., a Colorado Corporation with a principal place
of business in Auburn, Maine (hereinafter referred to as "▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇"),
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, M.D. of Auburn, Maine, ▇▇▇▇▇▇▇ ▇▇▇▇▇, D.O. of New
Gloucester, Maine, ▇▇▇▇▇ ▇▇▇▇▇ of New Gloucester, Maine, ▇▇▇▇▇ ▇. ▇▇▇▇ of
Auburn, Maine, and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ of Auburn, Maine (hereinafter collectively
referred to as the "▇▇▇▇▇▇▇▇▇▇.▇▇▇ Shareholders" and individually referred to
as "Dr. Farrago," "▇▇. ▇▇▇▇▇," "▇▇▇. ▇▇▇▇▇," "▇▇. ▇▇▇▇," and "▇▇. ▇▇▇▇▇▇"),
W i t n e s s:
Whereas, Articles of Incorporation for ▇▇▇▇▇▇▇▇▇▇.▇▇▇ were filed with the
Maine Secretary of State on October 7, 1999; and
Whereas, Articles of Incorporation for Acadia Group were filed with the
Colorado Secretary of State on August 2, 1996; and
Whereas, the Articles of Incorporation for Acadia Group were subsequently
restated pursuant to Restated Articles of Incorporation dated June 15, 1998
and December 13, 1996; and
Whereas, Acadia Group has been authorized by its Shareholders to change
its name from Acadia National Health Systems, Inc. to Acadia Group, Inc.
pursuant to a vote of the Shareholders on or about November 19, 1999 (the
"Vote"); and
Whereas, Acadia Group has been authorized to transfer all assets relating
to its medical billing practice to a wholly owned subsidiary to be known as
Acadia National Health Systems, Inc. pursuant to the Vote; and
Whereas, Articles of Incorporation for ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ were filed with
the Colorado Secretary of State on November 8, 1999; and
Whereas, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ is authorized to issue 2,000 shares of common
stock without par value of which 100 common voting shares (the "▇▇▇▇▇▇▇▇▇▇.▇▇▇
Shares") are issued and outstanding; and
Whereas, the ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Shareholders are the registered and
beneficial owners of the ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Shares as follows:
Dr. Farrago: 45 shares
▇▇. ▇▇▇▇: 22.5 shares
▇▇. ▇▇▇▇▇: 5 shares
▇▇▇. ▇▇▇▇▇: 5 shares
▇▇. ▇▇▇▇▇▇: 22.5 shares
Total: 100 shares; and
Whereas, Acadia Group is authorized to issue 100,000,000 shares of stock
divided into 50,000,000 shares of common voting stock with no par value (the
"Acadia Group Common Shares") and 50,000,000 Series A Convertible Preferred
Shares (the "Acadia Group Preferred Shares") of stock with a par value of
$100.00 per share (the Acadia Group Common Shares and the Acadia Group
Preferred Shares are hereinafter collectively referred to as the "Acadia Group
Shares"); and
Whereas, there are currently 5,013,987 shares of Acadia Group Common
Shares issued and outstanding and there are currently no shares of Acadia
Group Preferred Shares issued and outstanding; and
Whereas, ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ is authorized to issue 1,000,000 shares of
common stock without par value of which 1,000 common voting shares (the
"▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Shares") are issued and outstanding; and
Whereas, ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ is a wholly owned subsidiary of Acadia Group;
and
Whereas, the parties to this Agreement have agreed to merge
▇▇▇▇▇▇▇▇▇▇.▇▇▇ with and into ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, with ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ being the
surviving corporation; and
Whereas, in the course of said merger, Dr. Farrago, ▇▇. ▇▇▇▇▇, ▇▇▇.
▇▇▇▇▇, ▇▇. ▇▇▇▇, and ▇▇. ▇▇▇▇▇▇ shall exchange their ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Shares for
Acadia Group Common Shares, subject to the terms and conditions set forth in
this Agreement.
Now, Therefore, in consideration of the mutual promises and covenants
contained herein, the parties hereto agree as follows:
1. Merger. A. Exchange of Shares. Subject to the terms and
conditions of this Agreement, the parties hereto agree to merge ▇▇▇▇▇▇▇▇▇▇.▇▇▇
with and into ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ in accordance with the Articles of Merger to be
filed in the States of Maine and Colorado (the "Merger"). In conjunction with
the Merger, Dr. Farrago, ▇▇. ▇▇▇▇▇, ▇▇▇. ▇▇▇▇▇, ▇▇. ▇▇▇▇, and ▇▇. ▇▇▇▇▇▇ agree
to transfer their ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Shares to Acadia Group, and Acadia Group
agrees to deliver to Dr. Farrago, ▇▇. ▇▇▇▇▇, ▇▇▇. ▇▇▇▇▇, ▇▇. ▇▇▇▇, and ▇▇.
▇▇▇▇▇▇ Acadia Group Commons Shares equal in number to the number of Acadia
Group Common Shares issued and outstanding immediately prior to the Merger,
plus unissued shares designated for use under employment agreements, or other
similar contractual agreements, whether verbal or written, or designated for
issuance to Acadia Group's employees, agents, or third parties (the "Merger
Shares"), said stock to be issued and distributed to Dr. Farrago, ▇▇. ▇▇▇▇▇,
▇▇▇. ▇▇▇▇▇, ▇▇. ▇▇▇▇, an ▇▇. ▇▇▇▇▇▇ as follows:
Dr. Farrago: 45 %
▇▇. ▇▇▇▇: 22.5%
▇▇. ▇▇▇▇▇: 5 %
▇▇▇. ▇▇▇▇▇: 5 %
▇▇. ▇▇▇▇▇▇: 22.5%
The ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Shares are represented by Certificates #1, 2, 3, 4, and 5
copies of which are attached hereto as Exhibit "1A" and made a part hereof.
Evidence that the Merger Shares to be issued to Dr. Farrago, ▇▇. ▇▇▇▇▇, ▇▇▇.
▇▇▇▇▇, ▇▇. ▇▇▇▇, and ▇▇. ▇▇▇▇▇▇ in conjunction with the Merger will be issued
in conjunction with the Merger is attached hereto as Exhibit "1B."
For purposes of this Agreement, "accredited investor" shall mean any
person who comes within any of the following categories, or who the issuer
reasonably believes comes within any of the following categories, at the time
of the sale of the securities to that person:
(1)Any director, executive officer, or general partner of the issuer of
the securities being offered and sold, or any director, executive officer, or
general partner of a general partner of that issuer;
(2)Any natural person whose individual net worth, or joint net worth with
that person's spouse, at the time of his purchase exceeds $1,000,000;
(3)Any natural person who had an individual income in excess of $200,000
in each of the two most recent years or joint income with that person's spouse
in excess of $300,000 in each of those years and has a reasonable expectation
of reaching the same income level in the current year;
(4)Any trust, with total assets in excess of $5,000,000, not formed for
the specific purpose of acquiring the securities offered, whose purchase is
directed by a sophisticated person as described in Regulation Section
230.506(b)(2)(ii); and
(5)Any entity in which all of the equity owners are accredited investors.
Dr. Farrago ____ is ____ is not an accredited investor._____ DF
▇▇. ▇▇▇▇ ____ is ____ is not an accredited investor._____ KBD
▇▇. ▇▇▇▇▇ ____ is ____ is not an accredited investor._____ RS
▇▇▇. ▇▇▇▇▇ ____ is ____ is not an accredited investor._____ DS
▇▇. ▇▇▇▇▇▇ ____ is ____ is not an accredited investor._____ ELC
B. Surviving Corporation. The surviving corporation shall be
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. The Articles of Incorporation and Bylaws of
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ are attached hereto as Exhibit "1C" and made a part hereof.
The list of initial Officers and Directors of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ is attached
hereto as Exhibit "1D" and made a part hereof.
C. Registration. Acadia Group hereby represents that the Merger
Shares shall, as of the Effective Date of Merger, as defined below, be
registered under the Securities Exchange Act of 1934 (the "1934 Act") and
shall be subject to no restriction or limitation with respect to the initial
issue or subsequent transfer thereof, other than those transfer restrictions
as prescribed and set forth in Rule 144 of the Securities Act of 1933 (the
"1933 Act"). Acadia Group shall register the Merger Shares under the 1933
Act, at such time as the Chairman of the Board of Directors deems
appropriate. Acadia Group shall pay all expenses incident to registration of
the Merger Shares under the 1933 Act including, without limitation, all
registration filing fees, fees and expenses of compliance with the 1933 Act,
printing expenses, messenger and delivery expenses, fees and disbursements of
counsel and all independent public accountants and other persons retained by
Acadia Group, along with any fees and disbursements of underwriters
customarily paid by issuers or sellers of securities. In order to accomplish
the registration of the Merger Shares, Acadia Group shall (i) prepare and file
with the Securities and Exchange Commission ("SEC") a registration
statement(s) with respect to the Merger Shares, (ii) prepare and file with the
SEC such amendments and supplements to such registration statement(s) and any
prospectus used in connection therewith as may be necessary to keep such
registration statement(s) effective and current, (iii) furnish to each holder
of securities to be registered such number of copies of such registration
statement(s) and each such amendment and supplement thereto, along with such
number of copies of the prospectus as the holders of the Merger Shares shall
reasonably request, and (iv) do any and all other acts and things which may be
reasonably necessary or advisable for the registration of the Merger Shares.
2. Effect of Merger. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, as the surviving corporation,
shall possess all of the rights, privileges, immunities, and contracts of
▇▇▇▇▇▇▇▇▇▇.▇▇▇. In addition, all property, tangible, intangible, real,
personal and mixed, all intellectual property, all debts due on whatever
account, all other choses in action, and all and every other interest, of or
belonging to or due to ▇▇▇▇▇▇▇▇▇▇.▇▇▇, including, but not limited to, any and
all tax benefits and burdens, deductions, losses, and other incidences,
whether income tax or otherwise, any and all Licensing Agreements, Lecturer
Agreements, Web Site Agreements, Web Services Agreements, any and all other
legal documents naming ▇▇▇▇▇▇▇▇▇▇.▇▇▇ as a party, debtor, guarantor, or
otherwise, shall be taken and be deemed to be transferred to and vested in
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ without further act or deed, and the title to any real or
personal property, or any interest therein, vested in ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall not
revert or be in any way impaired by reason of such merger and the rights of
creditors or any liens upon the property of ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall not be
impaired by such merger. The contracts, property, rights, privileges,
immunities, debts, and obligations referred to in this Item 2 are more fully
described in Exhibit "2E" attached hereto and made a part hereof.
3. Modification to Articles of Incorporation/Bylaws. Upon the
Effective Date of Merger, as defined below, the Articles of Incorporation and
Bylaws for ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall remain unchanged. Acadia Group will take
such actions as are necessary to facilitate an amendment to its Articles of
Incorporation and Bylaws (i) to remove any so-called "shark repellent"
provisions diluting the voting power of certain shareholders, (ii) to
formalize the name change of Acadia Group to Acadia Group from Acadia National
Health Systems, Inc., and (iii) to make such other amendments or other
modifications as the Shareholders of Acadia Group direct.
4. Articles of Merger and Effective Date. A. Articles of Merger.
Upon the execution of this Agreement, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
shall execute, by and through their duly authorized officers, Articles of
Merger substantially similar to the Articles attached hereto as Exhibit "4F"
and made a part hereof. The Articles of Merger shall be filed with the Maine
Secretary of State and the Colorado Secretary of State immediately upon
execution.
B. Effective Date of Merger. The effective date of Merger shall be
November 19, 1999, or the date of acceptance of filing of the Articles of
Merger with the States of Maine and Colorado, if later (the "Effective Date of
Merger"). The Merger shall be completed at the offices of Acadia Group, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ or such other place as the parties mutually
agree, and the Merger shall take place at such time as shall be mutually
agreed upon the parties, but in all events no later than December 1, 1999.
5. Conditions Precedent to Merger. This Agreement, and the
obligations of the parties hereto, shall be subject to the following
conditions:
A. This Agreement, and the transactions contemplated herein, must
be approved by the Shareholders and Directors of ▇▇▇▇▇▇▇▇▇▇.▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and Acadia Group;
B. There shall be no actual or threatened action or proceeding by
or before any court or other governmental body that represents a bona fide
claim to restrain, prohibit, or invalidate the transactions contemplated by
this Agreement;
C. Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall provide to
▇▇▇▇▇▇▇▇▇▇.▇▇▇ a Certificate indicating that it has completed its due
diligence review, that the results of the review are satisfactory, and that
they wish to proceed with the Merger. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall provide to Acadia
Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ a Certificate indicating that it has completed its
due diligence review, that it is satisfied with the results of its review, and
that it desires to complete the Merger;
D. Counsel to Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall provide to
▇▇▇▇▇▇▇▇▇▇.▇▇▇ an Opinion of Counsel in the form attached hereto as Exhibit
"5G" and made a part hereof;
E. Counsel for ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall provide to Acadia Group and
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ an Opinion of Counsel in the form attached hereto as Exhibit
"5H" and made a part hereof;
F. Each party hereto shall have complied with all of its respective
covenants and agreements contained in this Agreement; and
G. Acadia Group shall receive a tax and accounting opinion from its
accountants of choice indicating that the tax and accounting consequences of
the Merger to Acadia Group are not adverse to the interests of Acadia
Group.
6. Representations and Warranties. A. Acadia
Group/▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ hereby represent
and warrant as follows:
1. Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ are duly organized, validly
existing, and in good standing under their States of Incorporation and they
have authority to conduct business in any and all states in which they
currently conduct business. Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ have full power
and authority to carry on their respective businesses as now conducted and to
operate their respective businesses and execute and deliver this Agreement and
to perform the terms of this Agreement;
2. Acadia Group's and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇'s authorized and issued
shares of stock are as set forth in the Recitals to this Agreement;
3. All of the shares of Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ are
validly issued and outstanding, fully paid, and non-assessable, registered in
the names of, and beneficially owned by, the parties appearing on the face of
the Stock Certificates, free and clear of all voting restrictions, liens,
charges, encumbrances, or restrictions, other than the restrictions more fully
described in Exhibit "6I" attached hereto and made a part hereof. Other than
as more fully described in Exhibit "6J" attached hereto and made a part
hereof, there are no shares, options, convertible debentures, documents,
instruments, or other writings of any kind whatsoever affecting the shares of
Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇;
4. All of the material transactions of Acadia Group and
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ have been promptly and properly recorded or filed in or with
the books and records of Acadia Group and/or ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, and the minute
books of Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ contain all records of the meetings
and proceedings of shareholders and directors of Acadia Group and
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, as the case may be, since their respective dates of
incorporation;
5. To the best of Acadia Group's and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇'s knowledge,
information and belief, Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ holds all licences,
approvals, orders, franchises, rights, registrations, and permits that are
required for carrying on their businesses in the manner in which such
businesses have been carried on and to the best of Acadia Group's and
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇'s knowledge, all such permits are currently in full force and
effect and Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ are in compliance therewith,
except to the extent non-compliance would not have a material adverse effect
on the business of Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇;
6. To the best of Acadia Group's and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇'s knowledge,
information, and belief, no third party privacy or intellectual property
rights, including without limitation, copyright, trade secret or patent
rights, were violated in the creation, compilation or acquisition of their
assets; Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ solely own and have the exclusive
right to use all of their respective intellectual property and the trade
secrets, know-how, and technology used in the operation of their respective
businesses, and Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ have the right to use said
property without infringement or violation of rights of others;
7. Any and all financial information provided by Acadia Group and
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ to the other parties to this Agreement is true and correct in
every material aspect and presents fairly and accurately the financial
position and results of the operations of Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
for the periods then ended, and the financial information presented has been
prepared in accordance with generally accepted accounting principles applied
on a consistent basis;
8. Since September 29, 1999:
(i) no dividends or other distributions of any kind whatsoever on any
share in the capital of Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ have been made,
declared, or authorized, except as provided in Exhibit "6K" attached hereto
and made a part hereof;
(ii) Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ have not issued any additional
stock, borrowed any money, or incurred any debt other than debt incurred in
the ordinary course of business, except as provided in Exhibit "6L" attached
hereto and made a part hereof;
9. There are no material liabilities of Acadia Group and
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, whether direct, indirect, absolute, contingent, or otherwise
which are not disclosed or reflected in Acadia Group's and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇'s
Financial Statements except those incurred in the ordinary course of business
since the date that Acadia Group's and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇'s Financial Statements
were prepared, all of which are recorded in the books and records of Acadia
Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇., as the case may be;
10. Since September 29, 1999:
(i) there has not been any material adverse change of any kind whatsoever
in the financial position or condition of Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ or
any damage, loss or other change of any kind whatsoever in circumstances
materially affecting the business or assets of Acadia Group and
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ or the right or capacity of Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
to carry on its business;
(ii) Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ have not discharged, satisfied or
paid any lien, charge or encumbrance of an kind whatsoever or obligation or
liability of any kind whatsoever other than current liabilities in the
ordinary course of their respective businesses or as expressly permitted under
this Agreement; and
(iii) the businesses of Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ have been
carried on in the ordinary course;
11. Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ have not licensed, leased,
transferred, disposed of or encumbered any of their assets in anyway, except
as otherwise provided in Exhibit "6M" attached hereto and made a part hereof;
12. All tax returns and reports of Acadia Group and
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ required by law to be filed have been filed and are
substantially true, complete and correct and all taxes and other government
charges of any kind whatsoever of Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ have been
paid or accrued in Acadia Group's and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇'s Financial Statements,
except as otherwise provided in Exhibit "6N" attached hereto and made a part
hereof;
13. To the best of Acadia Group's and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇'s knowledge,
and except as otherwise provided in Exhibit "6O" attached hereto and made a
part hereof, there are no actions, suits, judgments, investigations or
proceedings of any kind whatsoever outstanding, pending or threatened against
or affecting Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ at law or in equity or before
or by any federal, provincial, state, municipal or other governmental
department, commission, board, bureau or agency of any kind whatsoever, and
there is no basis therefore;
14. To the best of Acadia Group's and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇'s knowledge,
Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ are not in breach of any law, ordinance,
statute, regulation, bylaw, order or degree of any kind whatsoever;
15. Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ have good and sufficient
right and authority to enter into this Agreement and to complete the
transactions contemplated under this Agreement on the terms and conditions set
forth herein;
16. To the best of Acadia Group's and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇'s knowledge,
the execution and delivery of this Agreement, the performance of their
respective obligations under this Agreement, and the completion of the
transactions contemplated under this Agreement will not:
(i) conflict with, or result in the breach of or the acceleration of any
indebtedness under, or constitute a default under any indenture, mortgage,
agreement, lease, license or other instrument of any kind whatsoever to which
either Acadia Group or ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ is a party or by which it is bound, or
of any judgment or order of any kind whatsoever of any court or administrative
body of which either Acadia Group or ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ is bound; or
(ii) result in the violation of any law or regulation of any kind
whatsoever by which Acadia Group or ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ is bound;
17. Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ have not incurred any
liability for brokers' or finder's fees of any kind whatsoever with respect to
this Agreement or any transaction contemplated under this Agreement;
18. Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ are in compliance with all
SEC rules and regulations, to the extent applicable, and the transactions
contemplated under this Agreement will not result in a violation for
non-compliance therewith so long as the ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Shareholders fully
complete and execute any Investment Representation Letter provided by Acadia
Group and/or ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ as described in Regulation D of the 1933 Act;
19. The representations and warranties of Acadia Group and
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ contained in this Agreement disclose all material facts
specifically relating to the transactions involving Acadia Group and/or
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ contemplated under this Agreement which materially and
adversely affected, or in the future may materially or adversely affect, their
ability to perform their obligations under this Agreement;
20. The representations and warranties of Acadia Group and
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ contained in this Agreement shall be true as of the Effective
Date of Merger and shall survive the completion of the transactions
contemplated under this Agreement and remain in full force and effect
thereafter for the benefit of the other parties hereto for a period of one (1)
year after the Effective Date of Merger;
21. No consent, approval, order or authorization of, or
registration, declaration or filing with, any court, administrative agency or
other governmental agency or instrumentality, domestic or foreign or third
party is required by or with respect to Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ or
any corporate shareholder in connection with the execution and delivery by
Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ or any corporate shareholder of this
Agreement, or the completion of the transactions contemplated hereby, the
absence of which would have a material adverse effect on Acadia Group and
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.;
22. To the best knowledge of Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
or any of their subsidiaries, no written statement, certificate, schedule,
list or other information furnished by or on behalf of Acadia Group and
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ or any of their subsidiaries on or prior to the date hereof
in connection herewith contains (after giving effect to any correction thereof
furnished to Acadia Group or ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ or any of their subsidiaries in
writing prior to the date hereof) any untrue statement of a material fact or
omits or will omit to state a material fact required to be stated herein or
therein or necessary to make the statements herein or therein, in light of the
circumstances under which they were made, not misleading;
23. Exhibit "6O-1" sets forth a true, complete and correct list
of all accounts and notes payable owed by Acadia Group or ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇,
together with an appropriate aging schedule, as of November 1, 1999, which
lists separately all such amounts payable to any Acadia Group or
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shareholder, director, officer, employee, or agent of Acadia
Group or ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, to Acadia Group or ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shareholders or
to any of the irrespective affiliates. To the best of Acadia Group's and
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇'s knowledge, all accounts and notes payable of Acadia Group
and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ present bona fide claims against Acadia Group and
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ for services performed or other charges arising in the
ordinary course of business;
24. Exhibit "6O-2" sets forth a true, complete and correct list
of all contracts, agreements, and commitments of Acadia Group and
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, whether or not made in the ordinary course of business,
including leases under which Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ is lessor or
lessee, which are to be performed in whole or in part after the Effective Date
of the Merger. To the best of Acadia Group's and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇'s
knowledge, Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ have complied in all material
respects with all commitments, contracts, agreements, and obligations
pertaining to it listed in Exhibit "6O-2" and Acadia Group and
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ are not in material default under any such contracts and
agreements and no notice of material default has been received, in each case
which would have a material adverse effect on the business of Acadia Group or
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.;
25. Except for the Employment Agreements in the form attached
hereto as Exhibit "6O-3" (the "Employment Agreements"), there are no oral or
written employment or consulting agreements to which Acadia Group and
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ is a party or by which Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ is
bound;
26. Exhibit "6O-4" sets forth a true, complete and correct list
of all material contracts, leases, and commitments by and between Acadia Group
and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and any of its officers, directors, stockholders,
employees, or agents, or any affiliate of any such person. None of the
officers, directors, stockholders, or employees of Acadia Group and
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ owns, leases, or licenses any interest in any asset used by
Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ in their businesses, other than solely by
and through ownership of the capital stock of Acadia Group and
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇;
27. Except as set forth in Exhibit "6O-5," to the best of Acadia
Group's and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇'s knowledge, Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
own their material assets, whether real, personal or intangible, free and
clear of all encumbrance, except for (i) liens for current taxes and
assessments not yet due, or being contested in good faith by appropriate
proceedings, (ii) mechanic's liens arising under the operation of law or for
actions contested in good faith or for which payment arrangements have been
made, (iii) liens granted or incurred by Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ in
the ordinary course of their business or in connection with the financing of
office space, furniture and equipment in the ordinary course of its business,
(iv) easements, covenants, restrictions, and other exceptions to title of
record (which do not materially and adversely effect the operation of Acadia
Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇);
28. To the best of Acadia Group's and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇'s
knowledge, Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ have complied with the
Occupational Safety and Health Act and all other laws relating to equal
employment of labor including, without limitation, laws relating to equal
employment opportunity and employment discrimination, employment of illegal
aliens, wages, hours and collective bargaining, the violation or failure to
comply with which would have a material adverse effect on the business of
Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. Notwithstanding anything herein to the
contrary, Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ have complied with all laws
relating to the collection and payment of social security and withholding
taxes, or both, and similar taxes except where the failure to comply with such
laws would have a material adverse effect on the businesses of Acadia Group
and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. To the best of Acadia Group's and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇'s
knowledge, Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ are not liable for any arrearage
of wages or any taxes or penalties for failure to comply with any of the
foregoing, which would have a material adverse effect on the businesses of
Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. To the best knowledge of Acadia Group and
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, there are no organizational efforts presently being made or
threatened by or on behalf of any labor union with respect to any employees of
Acadia Group or ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, which would have a material adverse effect
on the businesses of Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.;
29. Except as set forth in Exhibit "6O-6," Acadia Group and
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ have no other benefit plans (the "Benefit Plans") within the
meaning of the applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), the Code and other applicable
laws;
30. To the best knowledge of Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
and all of their subsidiaries, Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ or any of
their subsidiaries have not engaged in a transaction in connection with which
they could be subject (either directly or indirectly) to a material liability
for either a civil penalty assessed pursuant to Section 502(i) of ERISA or a
tax imposed by Section 4975 of the Code;
31. To the best knowledge of Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
and any of its subsidiaries, neither Acadia Group, ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, nor any
of their subsidiaries is in material default with respect to any obligation,
agreement, or covenant to be performed by them under any contract or
arrangement of any kind, which default would have a material adverse effect on
Acadia Group, ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, or any of their subsidiaries.
B. ▇▇▇▇▇▇▇▇▇▇.▇▇▇. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ hereby represents and warrants as
follows:
1. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ is a Corporation duly organized, validly
existing, and in good standing under its State of Incorporation and it has
authority to conduct business in any and all states in which it conducts
business. It has full power and authority to carry on its business as now
conducted and to operate its business and to execute and deliver this
Agreement and to perform the terms of this Agreement;
2. MedLecture's authorized and issued shares of stock are as set
forth in the Recitals to this Agreement;
3. All of MedLecture's shares are validly issued and outstanding,
fully paid, and non-assessable, registered in the names of, and beneficially
owned by, the parties appearing on the face of the Stock Certificates, free
and clear of all voting restrictions, liens, charges, encumbrances, or
restrictions, other than the restrictions more fully described in Exhibit "6P"
attached hereto and made a part hereof. Other than as more fully described in
Exhibit "6Q" attached hereto and made a part hereof, there are no shares,
options, convertible debentures, documents, instruments, or other writings of
any kind whatsoever affecting the shares of MedLecture.;
4. All of the material transactions of ▇▇▇▇▇▇▇▇▇▇.▇▇▇. have been
promptly and properly recorded or filed in or with the books and records of
▇▇▇▇▇▇▇▇▇▇.▇▇▇, and the minute books of ▇▇▇▇▇▇▇▇▇▇.▇▇▇ contain all records of
the meetings and proceedings of shareholders and directors of ▇▇▇▇▇▇▇▇▇▇.▇▇▇
since its date of incorporation;
5. To the best of MedLecture's knowledge, information and belief,
▇▇▇▇▇▇▇▇▇▇.▇▇▇ holds all licenses, approvals, orders, franchises, rights,
registrations, and permits that are required for carrying on its business in
the manner in which such business has been carried on and to the best of
▇▇▇▇▇▇▇▇▇▇.▇▇▇'s knowledge, all such permits are currently in full force and
effect and ▇▇▇▇▇▇▇▇▇▇.▇▇▇ is in compliance therewith, except to the extent
non-compliance would not have a material adverse effect on the business of
▇▇▇▇▇▇▇▇▇▇.▇▇▇;
6. To the best of ▇▇▇▇▇▇▇▇▇▇.▇▇▇'s knowledge, information, and
belief, no third party privacy or intellectual property rights, including
without limitation, copyright, trade secret or patent rights, were violated in
the creation, compilation or acquisition of its assets; ▇▇▇▇▇▇▇▇▇▇.▇▇▇ solely
owns and has the exclusive right to use all of its intellectual property and
the trade secrets, know-how, and technology used in the operation of its
business, and ▇▇▇▇▇▇▇▇▇▇.▇▇▇ has the right to use said property without
infringement or violation of rights of others;
7. Any and all financial information provided by ▇▇▇▇▇▇▇▇▇▇.▇▇▇ to
the other parties to this Agreement is true and correct in every material
aspect and presents fairly and accurately the financial position and results
of the operations of ▇▇▇▇▇▇▇▇▇▇.▇▇▇ for the periods then ended, and the
financial information presented has been prepared in accordance with generally
accepted accounting principles applied on a consistent basis;
8. Since September 29, 1999:
(i) no dividends or other distributions of any kind whatsoever on any
share in the capital of ▇▇▇▇▇▇▇▇▇▇.▇▇▇ have been made, declared, or
authorized, except as provided in Exhibit "6R" attached hereto and made a part
hereof;
(ii) ▇▇▇▇▇▇▇▇▇▇.▇▇▇ has not issued any additional stock, borrowed any
money, or incurred any debt other than debt incurred in the ordinary course of
business, except as provided in Exhibit "6S" attached hereto and made a part
hereof;
9. There are no material liabilities of ▇▇▇▇▇▇▇▇▇▇.▇▇▇, whether
direct, indirect, absolute, contingent, or otherwise which are not disclosed
or reflected in ▇▇▇▇▇▇▇▇▇▇.▇▇▇'s Financial Statements except those incurred in
the ordinary course of business since the date that ▇▇▇▇▇▇▇▇▇▇.▇▇▇'s Financial
Statements were prepared, all of which are recorded in the books and records
of ▇▇▇▇▇▇▇▇▇▇.▇▇▇;
10. Since September 29, 1999:
(i) there has not been any material adverse change of any kind whatsoever
in the financial position or condition of ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or any damage, loss
or other change of any kind whatsoever in circumstances materially affecting
the business or assets of ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or the right or capacity of
▇▇▇▇▇▇▇▇▇▇.▇▇▇ to carry on its business;
(ii) ▇▇▇▇▇▇▇▇▇▇.▇▇▇ has not discharged, satisfied or paid any lien,
charge or encumbrance of an kind whatsoever or obligation or liability of any
kind whatsoever other than current liabilities in the ordinary course of its
business or as expressly permitted under this Agreement; and
(iii) the business of ▇▇▇▇▇▇▇▇▇▇.▇▇▇ has been carried on in the ordinary
course;
11. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ has not licensed, leased, transferred, disposed
of or encumbered any of its assets in anyway, except as otherwise provided in
Exhibit "6T" attached hereto and made a part hereof;
12. All tax returns and reports of ▇▇▇▇▇▇▇▇▇▇.▇▇▇ required by law
to be filed have been filed and are substantially true, complete and correct
and all taxes and other government charges of any kind whatsoever of
▇▇▇▇▇▇▇▇▇▇.▇▇▇ have been paid or accrued in ▇▇▇▇▇▇▇▇▇▇.▇▇▇'s Financial
Statements except as otherwise provided in Exhibit "6U" attached hereto and
made a part hereof;
13. To the best of ▇▇▇▇▇▇▇▇▇▇.▇▇▇'s knowledge, and except as
otherwise provided in Exhibit "6V" attached hereto and made a part hereof,
there are no actions, suits, judgments, investigations or proceedings of any
kind whatsoever outstanding, pending or threatened against or affecting
▇▇▇▇▇▇▇▇▇▇.▇▇▇ at law or in equity or before or by any federal, provincial,
state, municipal or other governmental department, commission, board, bureau
or agency of any kind whatsoever, and there is no basis therefore;
14. To the best of ▇▇▇▇▇▇▇▇▇▇.▇▇▇'s knowledge, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ is
not in breach of any law, ordinance, statute, regulation, bylaw, order or
degree of any kind whatsoever;
15. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ has good and sufficient right and authority to
enter into this Agreement and to complete the transactions contemplated under
this Agreement on the terms and conditions set forth herein;
16. To the best of ▇▇▇▇▇▇▇▇▇▇.▇▇▇'s knowledge, the execution and
delivery of this Agreement, the performance of its obligations under this
Agreement, and the completion of the transactions contemplated under this
Agreement will not:
(i) conflict with, or result in the breach of or the acceleration of any
indebtedness under, or constitute a default under any indenture, mortgage,
agreement, lease, license or other instrument of any kind whatsoever to which
▇▇▇▇▇▇▇▇▇▇.▇▇▇ is a party or by which it is bound, or of any judgment or order
of any kind whatsoever of any court or administrative body of which
▇▇▇▇▇▇▇▇▇▇.▇▇▇ is bound; or
(ii) result in the violation of any law or regulation of any kind
whatsoever by which ▇▇▇▇▇▇▇▇▇▇.▇▇▇ is bound;
17. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ has not incurred any liability for brokers' or
finder's fees of any kind whatsoever with respect to this Agreement or any
transaction contemplated under this Agreement;
18. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ is in compliance with all SEC rules and
regulations, to the extent applicable, and the transactions contemplated under
this Agreement will not result in a violation for non-compliance therewith;
19. The representations and warranties of ▇▇▇▇▇▇▇▇▇▇.▇▇▇ contained
in this Agreement disclose all material facts specifically relating to the
transactions involving ▇▇▇▇▇▇▇▇▇▇.▇▇▇ contemplated under this Agreement which
materially and adversely affected, or in the future may materially or
adversely affect, its ability to perform its obligations under this Agreement;
20. The representations and warranties of ▇▇▇▇▇▇▇▇▇▇.▇▇▇ contained
in this Agreement shall be true as of the Effective Date of Merger and shall
survive the completion of the transactions contemplated under this Agreement
and remain in full force and effect thereafter for the benefit of the other
parties hereto for a period of one (1) year after the Effective Date of
Merger;
21. No consent, approval, order or authorization of, or
registration, declaration or filing with, any court, administrative agency or
other governmental agency or instrumentality, domestic or foreign or third
party is required by or with respect to ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or any corporate
shareholder in connection with the execution and delivery by ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or
any corporate shareholder of this Agreement, or the completion of the
transactions contemplated hereby, the absence of which would have a material
adverse effect on ▇▇▇▇▇▇▇▇▇▇.▇▇▇.;
22. To the best knowledge of ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or any of its
subsidiaries, no written statement, certificate, schedule, list or other
information furnished by or on behalf of ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or any of its
subsidiaries on or prior to the date hereof in connection herewith contains
(after giving effect to any correction thereof furnished to ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or
any of its subsidiaries in writing prior to the date hereof) any untrue
statement of a material fact or omits or will omit to state a material fact
required to be stated herein or therein or necessary to make the statements
herein or therein, in light of the circumstances under which they were made,
not misleading;
23. Exhibit "6W" sets forth a true, complete and correct list of
all accounts and notes payable owed by ▇▇▇▇▇▇▇▇▇▇.▇▇▇, together with an
appropriate aging schedule, as of November 1, 1999, which lists separately all
such amounts payable to any ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shareholder, director, officer,
employee, or agent of ▇▇▇▇▇▇▇▇▇▇.▇▇▇, to ▇▇▇▇▇▇▇▇▇▇.▇▇▇ shareholders or to any
of the irrespective affiliates. To the best of ▇▇▇▇▇▇▇▇▇▇.▇▇▇'s knowledge,
all accounts and notes payable of ▇▇▇▇▇▇▇▇▇▇.▇▇▇ present bona fide claims
against ▇▇▇▇▇▇▇▇▇▇.▇▇▇ for services performed or other charges arising in the
ordinary course of business;
24. Exhibit "6X" sets forth a true, complete and correct list of
all contracts, agreements, and commitments of ▇▇▇▇▇▇▇▇▇▇.▇▇▇, whether or not
made in the ordinary course of business, including leases under which
▇▇▇▇▇▇▇▇▇▇.▇▇▇ is lessor or lessee, which are to be performed in whole or in
part after the Effective Date of the Merger. To the best of ▇▇▇▇▇▇▇▇▇▇.▇▇▇'s
knowledge, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ has complied in all material respects with all
commitments, contracts, agreements, and obligations pertaining to it listed in
Exhibit "6X" and ▇▇▇▇▇▇▇▇▇▇.▇▇▇ is not in material default under any such
contract and agreement and no notice of material default has been received, in
each case which would have a material adverse effect on the business of
▇▇▇▇▇▇▇▇▇▇.▇▇▇.;
25. Except for the Employment Agreements in the form attached
hereto as Exhibit "6Y" (the "Employment Agreements"), there are no oral or
written employment or consulting agreements to which ▇▇▇▇▇▇▇▇▇▇.▇▇▇ is a party
or by which ▇▇▇▇▇▇▇▇▇▇.▇▇▇ is bound;
26. Exhibit "6Z" sets forth a true, complete and correct list of
all material contracts, leases, and commitments by and between ▇▇▇▇▇▇▇▇▇▇.▇▇▇
and any of its officers, directors, stockholders, employees, or agents, or any
affiliate of any such person. None of the officers, directors, stockholders,
or employees of ▇▇▇▇▇▇▇▇▇▇.▇▇▇ owns, leases, or licenses any interest in any
asset used by ▇▇▇▇▇▇▇▇▇▇.▇▇▇ in their businesses; other than solely by and
through ownership of the capital stock of ▇▇▇▇▇▇▇▇▇▇.▇▇▇.;
27. Except as set forth in Exhibit "6AA," to the best of
▇▇▇▇▇▇▇▇▇▇.▇▇▇'s knowledge, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ owns its material assets, whether
real, personal or intangible, free and clear of all encumbrances, except for
(i) liens for current taxes and assessments not yet due, or being contested in
good faith by appropriate proceedings, (ii) mechanic's liens arising under the
operation of law or for actions contested in good faith or for which payment
arrangements have been made, (iii) liens granted or incurred by ▇▇▇▇▇▇▇▇▇▇.▇▇▇
in the ordinary course of its business or in connection with the financing of
office space, furniture and equipment in the ordinary course of its business,
(iv) easements, covenants, restrictions, and other exceptions to title of
record (which do not materially and adversely effect the operation of
▇▇▇▇▇▇▇▇▇▇.▇▇▇);
28. To the best of ▇▇▇▇▇▇▇▇▇▇.▇▇▇'s knowledge, ▇▇▇▇▇▇▇▇▇▇.▇▇▇
has complied with the Occupational Safety and Health Act and all other laws
relating to equal employment of labor including, without limitation, laws
relating to equal employment opportunity and employment discrimination,
employment of illegal aliens, wages, hours and collective bargaining, the
violation or failure to comply with which would have a material adverse effect
on the business of ▇▇▇▇▇▇▇▇▇▇.▇▇▇. Notwithstanding anything herein to the
contrary, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ has complied with all laws relating to the collection
and payment of social security and withholding taxes, or both, and similar
taxes except where the failure to comply with such laws would have a material
adverse effect on the businesses of ▇▇▇▇▇▇▇▇▇▇.▇▇▇. To the best of
▇▇▇▇▇▇▇▇▇▇.▇▇▇'s knowledge, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ is not liable for any arrearage of
wages or any taxes or penalties for failure to comply with any of the
foregoing, which would have a material adverse effect on the businesses of
▇▇▇▇▇▇▇▇▇▇.▇▇▇. To the best knowledge of ▇▇▇▇▇▇▇▇▇▇.▇▇▇, there are no
organizational efforts presently being made or threatened by or on behalf of
any labor union with respect to any employees of ▇▇▇▇▇▇▇▇▇▇.▇▇▇, which would
have a material adverse effect on the businesses of ▇▇▇▇▇▇▇▇▇▇.▇▇▇.;
29. Except as set forth in Exhibit "6BB," ▇▇▇▇▇▇▇▇▇▇.▇▇▇ has no
other benefit plans (the "Benefit Plans") within the meaning of the applicable
provisions of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), the Code and other applicable laws;
30. To the best knowledge of ▇▇▇▇▇▇▇▇▇▇.▇▇▇ and all of its
subsidiaries, ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or any of its subsidiaries have not engaged in a
transaction in connection with which they could be subject (either directly or
indirectly) to a material liability for either a civil penalty assessed
pursuant to Section 502(i) of ERISA or a tax imposed by Section 4975 of the
Code.; and
31. To the best knowledge of ▇▇▇▇▇▇▇▇▇▇.▇▇▇ and any of its
subsidiaries, neither ▇▇▇▇▇▇▇▇▇▇.▇▇▇, nor any of its subsidiaries is in
material default with respect to any obligation, agreement, or covenant to be
performed by if under any contract or arrangement of any kind, which default
would have a material adverse effect on ▇▇▇▇▇▇▇▇▇▇.▇▇▇, or any of its
subsidiaries.
7. Indemnity. Notwithstanding the completion of the transactions
contemplated under this Agreement, the representations, warranties, and
acknowledgments of the parties contained in this Agreement, or any
certificates or documents delivered by them or any of them pursuant to this
Agreement, shall survive the completion of the transactions contemplated by
this Agreement, and shall continue in full and effect thereafter for the
benefit of the other parties hereto for a period of one (1) year after the
Effective Date of Merger. If any of the representations, warranties, or
acknowledgments given by any party to the others in this Agreement are found
to be untrue, or if there is a breach of any covenant or agreement under this
Agreement by a party, that party shall indemnify and save harmless the
other(s) from and against any and all liability, claims, debts, demands,
suits, actions, penalties, fines, losses, costs (including legal fees and
disbursements as charged by a lawyer to his own client), damages and expenses
of any kind whatsoever which may be brought or made against the non-breaching
party by any person, firm, or corporation of any kind whatsoever or which may
be suffered or incurred by the non-breaching party, directly or indirectly,
arising out of, or as a consequence of, any such misrepresentation or breach
of warranty, acknowledgment, covenant, or Agreement. Without in any way
limiting the generality of the foregoing, this shall include any loss of any
kind whatsoever which may be suffered or incurred by the non-breaching party,
directly or indirectly, arising out of any material assessment or reassessment
levied upon the breaching party for tax, interest and/or penalties for any
period up to and including the Effective Date of Merger and all claims,
demands, costs (including legal fees and disbursements as charged by a lawyer
to his own client) and expenses of any kind whatsoever with respect to the
foregoing.
8. Closing Documents. A. ▇▇▇▇▇▇▇▇▇▇.▇▇▇. Upon the Effective Date
of Merger, Dr. Farrago, ▇▇. ▇▇▇▇▇, ▇▇▇. ▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇. ▇▇▇▇▇▇, and
▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall deliver to Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, as
appropriate, the following documents:
1. A Certificate of Clerk attesting that the ▇▇▇▇▇▇▇▇▇▇.▇▇▇ has
agreed to and is authorized to enter into the transactions contemplated
herein, and naming an officer of ▇▇▇▇▇▇▇▇▇▇.▇▇▇ to execute all applicable
closing documents;
2. The ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Share Certificates with Stock Powers fully
endorsed in blank;
3. Duly executed Articles of Merger in the form attached hereto as
Exhibit "4F" and made a part hereof;
4. The Opinion of Counsel for ▇▇▇▇▇▇▇▇▇▇.▇▇▇ in the form attached
hereto as Exhibit "5H" and made a part hereof;
5. All of the Minute Books and corporate records for ▇▇▇▇▇▇▇▇▇▇.▇▇▇;
6. A Certificate relating to due diligence as more fully described
in Item 5(C) above; and
7. Any and all other materials that are, in the opinion of the
counsel for Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, reasonably required to complete
the transactions contemplated under this Agreement.
B. Acadia Group/▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
shall, upon the Effective Date of Merger, deliver to ▇▇▇▇▇▇▇▇▇▇.▇▇▇ the
following documents:
1. Certificates of Secretary attesting that Acadia Group and
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ have agreed to the transactions contemplated in the
Agreement, and naming an officer to execute all applicable closing documents;
2. The Merger Shares or evidence that the same will be issued;
3. Duly executed Articles of Merger in the form attached hereto as
Exhibit "4F" and made a part hereof;
4. The Opinion of Counsel for Acadia Group and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ in
the form attached hereto as Exhibit "5G" and made a part hereof;
5. A Certificate relating to due diligence as more fully described in
Item 5(C) above; and
6. Any other materials that are, in the opinion of the counsel for
▇▇▇▇▇▇▇▇▇▇.▇▇▇, reasonably required to complete the transactions contemplated
in this Agreement.
The parties hereto recognize that the Merger is intended to be a forward
triangular merger under Section 368 of the Internal Revenue Code of 1986, as
amended (the "Code"); said transaction shall not result in the recognition of
taxable income under the Code. The parties hereto agree to execute any and
all documents necessary or appropriate to accomplish the tax-free merger
contemplated in this Agreement.
9.Miscellaneous.
A. Entire Agreement. Except as otherwise expressly provided, this
Agreement contains the entire agreement of the parties hereto with respect to
the transactions contemplated herein and supersedes all prior arrangements or
understandings with respect to these transactions, whether written or oral;
Provided, However, that the Binding Letter of Intent dated September 29, 1999,
as amended, attached hereto as Exhibit "8CC" shall continue to be binding upon
the parties, except to the extent inconsistent with the provisions hereof, in
which event this Agreement shall control. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective successors and permitted assigns. Nothing in this
Agreement, either express or implied, is intended to confer upon any party,
and its successors or permitted assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided
herein.
B. Captions. The captions contained in this Agreement are for
reference purposes only and shall not constitute any part of this Agreement.
C. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Maine, and all disputes shall be
resolved in courts of the State of Maine or Federal Courts located in the
State of Maine.
D. Exhibits. The Exhibits to this Agreement are incorporated
herein by reference and the Recitals of this Agreement constitute a part of
this Agreement.
E. Amendments. No alteration, amendment, modification, or
interpretation of this Agreement, or any provision of this Agreement, shall be
valid and binding upon the parties hereto until such alteration, amendment,
modification, or interpretation is in written form executed by the parties
directly affected by such alteration, amendment, modification, or
interpretation.
F. Gender. Whenever the singular or masculine is used in this
Agreement the same shall be deemed to include the plural, the feminine, or the
body corporate as the context may require.
G. Notice. Any notice, request, demand, or other communication to
be given under this Agreement shall be in writing and shall be delivered by
hand or telecopier or by overnight mail to the parties at their following
respective addresses:
If to ▇▇▇▇▇▇▇▇▇▇.▇▇▇, to:
▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇
If to Dr. Farrago, to:
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
If to ▇▇. ▇▇▇▇▇, to:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
If to ▇▇▇. ▇▇▇▇▇, to:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
If to ▇▇. ▇▇▇▇ or ▇▇. ▇▇▇▇▇▇, to:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
If to Acadia Group or
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, to:
Acadia Group, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
or to such other addresses as may be given in writing to the parties hereto in
the manner provided for in this paragraph. Notices shall be deemed to have
been received, if delivered by hand, on the date of delivery, if delivered by
telecopier, on the date that it is sent, and if delivered by overnight mail,
on the day after the day it is sent. Notices provided to ▇▇▇▇▇▇▇▇▇▇.▇▇▇,
Dr. Farrago, ▇▇. ▇▇▇▇▇, ▇▇▇. ▇▇▇▇▇, ▇▇. ▇▇▇▇, and/or ▇▇. ▇▇▇▇▇▇ shall be
copied to ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLC, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇. Notices to Acadia or
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall be copied to: ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
H. Assignment. This Agreement, and the rights and obligations of
each party hereunder, shall not be assigned by any party.
I. Severability. In the event that any portion of this Agreement
is declared void or enforceable by a court of competent jurisdiction, the
remaining portion shall remain in full force and effect, unless both parties
to this Agreement agree to the contrary in a written amendment with respect to
any particular provision.
J. Benefit. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto, their heirs, personal representatives,
successors, and assigns.
K. Waiver. The waiver of a breach of any term, condition, or
covenant contained in this Agreement shall not be considered a waiver of any
subsequent breach of any other term, condition, or covenant.
L. Legal Expenses. Provided this Agreement and any and all
documents required to be signed in conjunction therewith are executed with the
approval of the respective governing bodies of the parties hereto, any and all
legal expenses incurred by ▇▇▇▇▇▇▇▇▇▇.▇▇▇ through ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLC to
accomplish the Merger through November 19, 1999 shall be paid by Acadia Group
on November 19, 1999, and any legal expenses incurred thereafter by
▇▇▇▇▇▇▇▇▇▇.▇▇▇ through ▇▇▇▇▇▇▇ & Geismar, LLC shall be paid by Acadia Group on
a monthly basis.
In Witness Whereof, the parties have hereunto set their hands and seals
effective the day and year first above written.
Witness: ▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
_________________________________
By:_________________________________
▇▇▇▇▇ ▇. ▇▇▇▇
Its President
Acadia National Health Systems, Inc.
_________________________________
By:_________________________________
Print Name:_______________________
Its:______________________________
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
_________________________________
By:_________________________________
Print Name:_______________________
Its:______________________________
_________________________________
____________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, M.D.
_________________________________
____________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇, D.O.
_________________________________
____________________________________
▇▇▇▇▇ ▇▇▇▇▇
_________________________________
____________________________________
▇▇▇▇▇ ▇. ▇▇▇▇
_________________________________
____________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
