AGREEMENT AND PLAN OF MERGER, dated as of January 23, 1997
(this "Agreement"), among SYNETIC, INC., a Delaware corporation (the "Parent"),
SYNTERNET ACQUISITION CORP., a Delaware corporation and a wholly owned
subsidiary of the Parent (the "Purchaser"), CAREAGENTS, INC., a Delaware
corporation (the "Company"), and the individuals listed on the signature pages
hereof (each, a "Stockholder", and collectively, the "Stockholders").
W I T N E S S E T H:
WHEREAS, the Company is engaged in the business of providing
health care interenterprise connectivity by means of computers (the "Business"),
which Business is currently under active development;
WHEREAS, the Stockholders desire to sell to the Parent, and
the Parent desires to purchase from the Stockholders, all of the outstanding
capital stock of the Company upon the terms and subject to the conditions set
forth herein;
WHEREAS, the parties hereto intend the Merger (as hereinafter
defined) to qualify as a reorganization pursuant to section 368(a)(1)(A) and
368(a)(2)(E) of the Internal Revenue Code;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements hereinafter set forth, the parties hereto agree
as follows:
ARTICLE I. THE MERGER
SECTION 1.01. The Merger. Upon the terms and subject to the
conditions set forth in this Agreement, at the Effective Time (as defined
below), the Purchaser shall be merged with and into the Company, and the Company
shall be the surviving corporation in the Merger (in such capacity, the
"Surviving Corporation") and shall continue its corporate existence under the
laws of the State of Delaware. At the Effective Time, the separate corporate
existence of the Purchaser shall cease.
SECTION 1.02. Effective Time of the Merger. The Merger shall
become effective (the "Effective Time") after a properly executed certificate of
merger (the "Certificate of Merger") is duly filed with the Secretary of State
of the State of Delaware, in accordance with the General Corporation Law of the
State of Delaware ("Delaware Law").
SECTION 1.03. Certificate of Incorporation. At the Effective
Time, the Certificate of Incorporation of the Surviving Corporation shall be the
Certificate of Incorporation of the Company, until thereafter amended in
accordance with applicable law.
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SECTION 1.04. By-laws. At the Effective Time, the By-laws of
the Surviving Corporation shall be the By-laws of the Purchaser, as set forth in
Exhibit 1.03 hereto, until thereafter amended in accordance with applicable law.
SECTION 1.05. Directors and Officers. The directors of the
Purchaser immediately prior to the Effective Time shall be the initial directors
of the Surviving Corporation, each to hold office in accordance with the
Certificate of Incorporation and By-laws of the Surviving Corporation, and the
officers of the Company immediately prior to the Effective Time shall be the
initial officers of the Surviving Corporation, in each case until their
respective successors are duly elected or appointed and qualified.
SECTION 1.06. Effect of the Merger. At and after the Effective
Time, the effect of the Merger shall, in all respects, be as provided by
Delaware Law. Without limiting the generality of the foregoing, and subject
thereto, at the Effective Time all the property, rights, privileges and powers
of the Purchaser shall vest in the Surviving Corporation and all debts,
liabilities and duties of the Purchaser and the Company shall become debts,
liabilities and duties of the Surviving Corporation.
SECTION 1.07. Closing; Payment of the Purchase Price. (a) Upon
the terms and subject to the conditions of this Agreement, the closing of the
transactions contemplated by this Agreement (the "Closing") shall take place at
the offices of Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX
simultaneously with the execution of this Agreement (the "Closing Date").
(b) At the Closing, the Stockholders shall deliver or cause
to be delivered to the Parent:
(i) stock certificates evidencing the Company Shares (as
hereinafter defined);
(ii) The Notes and related Pledge Agreements referred to in
Section 4.02(b);
(iii) executed employment agreements and an executed
consulting agreement in the respective forms attached hereto as Exhibit
1.07(b)(iii); and
(iv) an opinion from Mintz, Levin, Cohn, Ferris, Glovsky &
Popeo, P.C. substantially in the form attached hereto as Exhibit
1.07(b)(iv).
(c) At the Closing, the Parent shall deliver to the
Stockholders:
(i) stock certificates evidencing the Parent Shares (as
hereinafter defined) less the Escrow Shares (as hereinafter defined);
(ii) the Parent Loans referred to in Section 4.02(b);
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(iii) executed employment agreements and an executed
consulting agreement in the respective forms attached hereto as Exhibit
1.07(b)(iii); and
(iv) an opinion from Shearman & Sterling substantially in the
form attached hereto as Exhibit 1.07(c)(iv).
(d) At the Closing, the Parent shall deliver to United States
Trust Company of New York (the "Escrow Agent"), in accordance with the escrow
agreement attached hereto as Exhibit 1.07(d) (the "Escrow Agreement"), fifty
percent of the Parent Shares issuable to each Stockholder pursuant to Section
1.08 below (such number of Parent Shares being the "Escrow Shares") to the
accounts designated therefor in the Escrow Agreement.
(e) On the Closing Date, the Certificate of Merger with
respect to the Merger shall be filed with the Secretary of State of the State of
Delaware.
SECTION 1.08. Conversion of Securities. (a) At the Effective
Time, by virtue of the Merger and without any action on the part of the Parent,
the Purchaser, the Company or the Stockholders, and subject to Section 1.10,
each Company Share (as defined below) shall be cancelled and converted
automatically into the right to receive that number of shares of common stock,
par value $0.01 per share, of the Parent (the "Parent Shares") equal to the
quotient (the "Exchange Ratio") obtained by dividing (i) a fraction, the
numerator of which shall be 5,000,000 and the denominator of which shall be
9,999 by (ii) the Signing Date Market Price of one Parent Share. The "Signing
Date Market Price" means the lower of (A) the arithmetic average of the last
reported sales price of Parent Shares on the National Association of Securities
Dealers' national market system ("NASDAQ") for each of the ten trading days
ending on the trading day immediately preceding the date of this Agreement or
(B) the last reported sales price of Parent Shares on the NASDAQ on the trading
day immediately preceding the date of this Agreement; provided, however, that in
no event shall the Signing Date Market Price exceed $47.50. In accordance with
the above formulas, the Exchange Ratio has been calculated to be 10.6041 Parent
Shares per Company Share, and the Signing Date Market Price (based on clause (A)
of the definition thereof) has been calculated to be $47.15625.
(b) From and after the Effective Time, all Company Shares to
be converted into Parent Shares pursuant to this Section 1.08 shall cease to be
outstanding, shall be cancelled and retired and shall cease to exist, and the
holders of certificates representing the Company Shares shall cease to have any
rights with respect to such Company Shares, except the right to receive the
consideration specified in this Section 1.08.
(c) Each share of capital stock of the Purchaser that is
issued and outstanding as of the Effective Time shall be converted into one
share of capital stock of the Surviving Corporation.
SECTION 1.09. Fractional Shares. The Parent will not issue any
fractional Parent Shares pursuant to Section 1.08(a) hereof, and the Parent
will, in lieu of any such
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fractional shares, round the number of Parent Shares issuable to each
Stockholder to the nearest whole number of Parent Shares.
SECTION 1.10. Escrow. Prior to the Closing, the Stockholders
and the Parent shall enter into the Escrow Agreement with the Escrow Agent. In
accordance with the terms of the Escrow Agreement, the Parent shall deposit the
Escrow Shares in a separate accounts for each Stockholder to be managed and paid
out by the Escrow Agent in accordance with the terms of the Escrow Agreement.
ARTICLE II. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
The Stockholders jointly and severally represent and warrant
to the Parent that:
SECTION 2.01. Organization, Authority and Qualification of the
Stockholders and the Company; Subsidiaries; Certificate and By-laws. (a) Each
Stockholder has all necessary power and authority to enter into this Agreement,
to carry out its obligations hereunder and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by each
Stockholder, the performance by each Stockholder of its obligations hereunder
and the consummation by each Stockholder of the transactions contemplated hereby
have been duly authorized by all requisite action on the part of such
Stockholder. This Agreement has been duly executed and delivered by each
Stockholder, and (assuming due authorization, execution and delivery by the
Parent or the Purchaser) this Agreement constitutes a legal, valid and binding
obligation of each Stockholder, enforceable against each Stockholder in
accordance with its terms. No person other than the Stockholders has a right or
claim to any portion of the Purchase Price or any other payments made by the
Parent to any Stockholder hereunder.
(b) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, and has
all requisite corporate power and authority to own, lease and operate its
properties and to carry on the Business as presently conducted. The Company has
all necessary corporate power and authority to execute and deliver this
Agreement and to perform its obligations and to consummate the transactions
contemplated hereunder. The execution and delivery of this Agreement by the
Company, the performance by the Company of its obligations hereunder and the
consummation by the Company of the transactions contemplated hereby have been
duly and validly authorized by all necessary corporate action on the part of the
Company, and no other corporate proceedings on the part of the Company are
necessary to authorize this Agreement or the consummation of the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by the Company, and (assuming due authorization, execution and
delivery by the Parent and the Purchaser) this Agreement constitutes a legal,
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms. The Company is duly qualified or licensed as a
foreign corporation to do business, and is in good standing, in each
jurisdiction where the character of the properties
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owned, leased or operated by it or the nature of its activities makes such
qualification or licensing necessary. The Stockholders have delivered to the
Parent true, complete and correct copies of each of the Certificate of
Incorporation, the by-laws and the minutes of each meeting of the board of
directors and shareholders of the Company.
(c) There are no corporations, partnerships, joint ventures,
associations or other entities in which the Company owns, of record or
beneficially, any direct or indirect equity or other interest or any right
(contingent or otherwise) to acquire the same. The Company is not a member of
(nor is any part of the Business conducted through) any partnership. The Company
is not a participant in any joint venture or similar arrangement.
SECTION 2.02. Capitalization; Ownership. (a) The authorized
capital stock of the Company consists of 35,000 shares of common stock, par
value $.01 per share (the "Common Stock"), of which 9,999 shares are issued and
outstanding (each share of Common Stock being a "Company Share"). No Common
Stock is held by the Company as treasury stock. Each Stockholder owns
beneficially and of record the number of Company Shares set forth opposite such
Stockholder's name on the signature pages hereof.
(b) There are no options, warrants or other rights,
agreements, arrangements or commitments of any character to which the Company is
a party or obligating the Company to issue or sell any shares of capital stock
of, or other equity interests in, the Company. There are no outstanding
contractual obligations of the Company to repurchase, redeem or otherwise
acquire any of the capital stock of the Company or to provide funds to or make
any material investment (in the form of a loan, capital contribution or
otherwise) in any other entity. The Company is not a party to any agreement
granting registration rights to any person with respect to any securities of the
Company.
(c) The Company Shares constitute all the issued and
outstanding capital stock of the Company and are owned of record and
beneficially solely by the Stockholders free and clear of all encumbrances. All
of the Company Shares are fully paid and nonassessable. There are no voting
trusts, stockholder agreements, proxies or other agreements or understandings in
effect with respect to the voting or transfer of any of the Company Shares.
(d) The stock register of the Company accurately records: (i)
the name and address of each person owning Company Shares and (ii) the
certificate number of each certificate evidencing Company Shares issued by the
Company, the number of shares evidenced by each such certificate, the date of
issuance thereof and, in the case of cancellation, the date of cancellation.
SECTION 2.03. No Conflict; Required Filings and Consents. (a)
The execution and delivery of this Agreement by the Company and the Stockholders
do not, and the performance of this Agreement by the Company and the
Stockholders will not, (i) conflict with or violate the Certificate of
Incorporation or by-laws of the Company, (ii) conflict with or violate any law,
rule, regulation, order, judgment or decree applicable to
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the Company or the Stockholders or by which their respective assets or
properties are bound or affected, or (iii) result in any breach of or constitute
a default (or an event which with notice or lapse of time or both would become a
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of a lien or
encumbrance on any of the properties or assets of the Company or the
Stockholders, respectively, pursuant to, or result in a change in any of the
terms of any note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, insurance policy or other instrument or obligation to which the
Company or any Stockholder is a party, or by which the Company or any
Stockholder or any of their respective properties are bound or affected, except
in the case of clause (iii) above for such conflicts which would not,
individually or in the aggregate, have a material adverse effect on the Company
or prevent or delay the consummation of the transactions contemplated by this
Agreement.
(b) The execution and delivery of this Agreement by the
Company and the Stockholders do not, and the performance of this Agreement by
the Company and the Stockholders will not, require any consent, approval,
authorization or permit of, or filing with or notification to, any governmental
or regulatory authority, domestic or foreign, on the part of the Company or any
Stockholder, except for the filing of a certificate of merger with the Secretary
of State of the State of Delaware.
SECTION 2.04. Compliance with Laws. The Company is not in
conflict with, or violation of, any law, rule, regulation, order, judgment or
decree applicable to the Company or by which the Company or any of its
properties are bound or affected.
SECTION 2.05. No Liabilities. The Company has no liabilities,
contingent or otherwise, including, without limitation, liabilities related to
taxes, and there is no existing condition or set of circumstances that could be
expected to result in any such liability, other than liabilities to the
Stockholders for purchases of office and computer equipment as set forth on
Schedule A hereto, all of which equipment is owned by the Company. The Company
is not a party to, does not maintain or have any obligation under, any employee
benefit plan (as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended) or any bonus, equity, incentive, deferred
compensation, retiree medical or life insurance, supplemental retirement,
severance or other benefit plan, program or arrangement with respect to any of
its current or former employees, officers, directors or independent contractors.
The Company has no employees other than the Stockholders.
SECTION 2.06. Contracts. (a) Except as otherwise disclosed in
writing to the Parent, the Company has not entered into any customer, supplier
or other contractual relationships, written or oral, with any person or business
entity. None of the Stockholders (i) have entered into any contractual
relationships, written or oral, for which the Company will have any
responsibility or (ii) except as otherwise disclosed in writing to the Parent,
is a party to any non-competition, non-solicitation, confidentiality or similar
agreement with any person or business entity.
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(b) None of the agreements disclosed in writing to the Parent
pursuant to Section 2.06(a)(ii) will be breached or violated as a result of the
contemplated services to be provided by the Stockholders to Synetic or the
Company following the Closing.
SECTION 2.07. Intellectual Property. (a) The Company owns or
has the legal right to use all Intellectual Property (as hereinafter defined),
as is used or held for use in the Business, including but not limited to all
presently existing Developments (as defined in Section 4.05(d)), free and clear
of any encumbrance.
"Intellectual Property" means any (i) trademarks, service
marks, trade dress, logos, trade names and corporate names (including, without
limitation, the "CareAgents" name and all similar or related names, marks and
logos), whether or not registered, including all common law rights, and
registrations and applications for registration thereof, including, but not
limited to, all marks registered in the United States Patent and Trademark
Office, the Trademark Offices of the States and Territories of the United States
Patent and Trademark Office, the Trademark Offices of the States and Territories
of the United States of America, and the Trademark Offices of other nations
throughout the world, and all rights therein provided by multinational treaties
or conventions, (ii) copyrights (registered or otherwise) and registrations and
applications for registration thereof, and all rights therein provided by
multinational treaties or conventions, (iii) computer software, including,
without limitation, source code, operating systems and specifications, data,
data bases, files, documentation and other materials related thereto, data and
documentation, (iv) trade secrets and confidential, technical or business
information (including ideas, formulas, compositions, inventions and conceptions
of inventions whether patentable or unpatentable and whether or not reduced to
practice), (v) whether or not confidential, technology (including know-how and
show-how), manufacturing and production processes and techniques, research and
development information, drawings, specifications, designs, plans, proposals,
technical data, copyrightable works, financial, marketing and business data,
pricing and cost information, business and marketing plans and customer and
supplier lists and information, (vi) copies and tangible embodiments of all the
foregoing, in whatever form or medium, (vii) issued patents and patent
applications, (viii) all rights to obtain and rights to apply for patents, and
to register trademarks and copyrights, and (ii) all rights to xxx and recover
and retain damages and costs and attorneys' fees for present and past
infringement of any of the Intellectual Property rights hereinabove set forth.
(b) The Stockholders have delivered to the Parent a true and
complete list and a brief description of (i) all of the Company's registered and
applied for copyrights, trademarks and patents and all material licenses
pertaining thereto and such list indicates where and when such Intellectual
Property has been registered or filed with the United States Patent and
Trademark Office or the United States Copyright Office, or the corresponding
office of any other jurisdictions and (ii) all of the Intellectual Property
(other than commercially available shrink-wrap software) licensed or sublicensed
to the Company from any third party. The conduct of the Business does not
conflict with or infringe upon, and no one has asserted to the Company or the
Stockholders that the conduct of the Business conflicts with or infringes upon,
any Intellectual Property owned, possessed, used or claimed
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by any third party. Neither the Company nor any of the Stockholders has granted
any outstanding licenses or other rights, or obligated itself to grant licenses
or other rights in or to any of the Intellectual Property owned, used or
licensed to the Company. The consummation of the transactions contemplated by
this Agreement will not result in the termination or impairment of any of the
Intellectual Property.
(c) The Stockholders have, or have caused to be, delivered to
the Parent correct and complete copies of all the licenses and sublicenses for
the Intellectual Property referred to in Section 2.07(b) and any and all
ancillary documents pertaining thereto (including, but not limited to, all
amendments, consents and evidence of commencement dates and expiration dates).
(d) The Intellectual Property described in Section 2.07(b)
constitutes all the Intellectual Property used or held by the Company or forming
a part of or used or held by, and all such Intellectual Property necessary in
the conduct of, the Business and there are no other items of Intellectual
Property that are material to the Company or the Business. Certain software
intended to be used by the Company or in the Business has not been sufficiently
developed to (i) describe, (ii) protect from infringement by third parties or
(iii) analyze with respect to such software's potential infringement of third
party rights, but the Stockholders are not aware of any reason why the Company
would not be able to license or develop the Intellectual Property required to
complete the development of such software.
SECTION 2.08. Real Property. The Company does not own or lease
any real property.
SECTION 2.09. Certain Interests. (a) None of the Stockholders
or their affiliates or any officer or director of the Company and, to the
knowledge of the Stockholders and the Company, no immediate relative or spouse
(or immediate relative of such spouse) who resides with, or is a dependent of,
any such officer or director:
(i) has any direct or indirect financial interest in any
competitor of the Company, provided, however, that the ownership of
securities representing no more than five percent of the outstanding
voting power of any competitor and which are listed on any national
securities exchange or traded actively in the national over-the-counter
market, shall not be deemed to be a "financial interest" so long as the
person owning such securities has no other connection or relationship
with such competitor;
(ii) owns, directly or indirectly, in whole or in part, or has
any other interest in any tangible or intangible property which the
Company uses or has used in the conduct of the Business or otherwise;
or
(iii) has outstanding any indebtedness to the Company.
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(b) Except as referred to in Section 2.05, the Company has no
outstanding indebtedness to any Stockholder.
SECTION 2.10. Investment Intent; Shares Unregistered;
Accredited Investor. (a) The Stockholders are acquiring the Parent Shares for
investment, solely for their own account and not with a view to, or for sale in
connection with, the distribution thereof in violation of United States
securities laws.
(b) Shares Unregistered. The Stockholders understand and
acknowledge that (i) the offer and issuance of the Parent Shares have not been
registered under the Securities Act, (ii) the Parent Shares must be held
indefinitely and the Stockholders must continue to bear the economic risk of the
investment in the Parent Shares unless the offer and sale of such Parent Shares
is subsequently registered under the Securities Act and all applicable state
securities laws or an exemption from such registration is available and (iii) a
restrictive legend in the form set forth in Section 4.07 hereof shall be placed
on the certificates evidencing the Parent Shares.
(c) Accredited Investor. Each Stockholder is an "Accredited
Investor" as that term is defined in Rule 501 of Regulation D promulgated under
the Securities Act.
SECTION 2.11. Full Disclosure. (a) Neither any of the
Stockholders nor the Company is aware of any facts pertaining to the Company's
operations or Business which could have a material adverse effect on the Company
and which have not been disclosed to the Parent in writing.
(b) No representation or warranty of the Stockholders in this
Agreement, nor any written statement or certificate furnished or to be furnished
to the Parent pursuant to this Agreement, or in connection with the transactions
contemplated by this Agreement, contains or will contain any untrue statement of
a material fact, or omits or will omit to state a material fact necessary to
make the statements contained herein or therein not misleading.
SECTION 2.12. Brokers. Except as disclosed in writing to the
Parent, no broker, finder or investment banker is entitled to any brokerage,
finder's or other fee or commission in connection with the transactions
contemplated by this Agreement, based upon arrangements made by or on behalf of
the Company or the Stockholders. The Stockholders shall be solely responsible
for any such fees and expenses.
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ARTICLE III. REPRESENTATIONS AND WARRANTIES OF THE PARENT AND
THE PURCHASER
The Parent and the Purchaser jointly and severally represent
and warrant to the Stockholders that:
SECTION 3.01. Corporate Organization and Authority. Each of
the Parent and the Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and has all
requisite corporate power and authority to own, lease and operate its properties
and to carry on its business as it is presently conducted. Each of the Parent
and the Purchaser has all necessary corporate power and authority to execute and
deliver this Agreement and to perform its obligations and to consummate the
transactions contemplated hereunder. The execution and delivery of this
Agreement by each of the Parent and the Purchaser and the consummation by the
Parent and the Purchaser of the transactions contemplated hereby have been duly
authorized by all necessary corporate action of the Parent and the Purchaser,
respectively, and no other corporate proceedings on the part of the Parent or
the Purchaser are necessary to authorize this Agreement or the consummation of
the transactions contemplated hereby. This Agreement has been duly executed and
delivered by the Parent and the Purchaser and (assuming the due authorization,
execution and delivery by the Company and the Stockholders) constitutes the
legal, valid and binding obligation of each of the Parent and the Purchaser
enforceable against each of the Parent and the Purchaser in accordance with its
terms.
SECTION 3.02. No Conflict; Required Filings and Consents. (a)
The execution and delivery of this Agreement by each of the Parent and the
Purchaser do not, and the performance of this Agreement by each of the Parent
and the Purchaser will not, (i) conflict with or violate the certificate of
incorporation or by-laws of the Parent or the Purchaser, respectively, (ii)
conflict with or violate any law, rule, regulation, order, judgment or decree
applicable to the Parent or the Purchaser, respectively, or by which either of
them or their properties are bound or affected, or (iii) result in any breach of
or constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of a lien
or encumbrance on any of the property or assets of the Parent or the Purchaser,
respectively, pursuant to, or result in a change in any of the terms of any
note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which the Parent or the Purchaser
is a party or by which the Parent or the Purchaser or any of their respective
properties is bound or affected, except, in the case of this clause (iii), for
any such breaches, defaults or other occurrences which would not, individually
or in the aggregate, have a material adverse effect on the Parent or prevent or
delay the consummation of the transactions contemplated by this Agreement.
(b) The execution and delivery of this Agreement by each of
the Parent and the Purchaser do not, and the performance of this Agreement by
each of the Parent and the
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Purchaser (including, without limitation, the consummation of the transactions
hereunder) will not, require any consent, approval, authorization or permit of,
or filing with or notification to, any governmental or regulatory authority,
domestic or foreign, except for the filing of a certificate of merger with the
Secretary of State of the State of Delaware.
SECTION 3.03. SEC Filings; Financial Statements. The Parent
has filed all forms, reports, statements and documents required to be filed with
the SEC since June 30, 1995 (the "Parent SEC Reports"). The Parent SEC Reports
(i) were each prepared in accordance with, and at the time of filing complied in
all material respects with, the requirements of the Securities Act or the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), as the case
may be, and (ii) did not at the time they were filed contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. The
financial statements included in the Parent SEC Reports (i) were prepared in
accordance with the books of account and other financial records of the Parent,
(ii) present fairly the consolidated financial condition and results of
operations of the Parent as of the dates thereof or for the periods covered
thereby, (iii) have been prepared in accordance with U.S. generally accepted
accounting principles applied on a basis consistent with the past practices of
the Parent and (iv) include all adjustments (consisting only of normal recurring
accruals) that are necessary for a fair presentation of the financial condition
of the Parent and the results of the operations of the Parent as of the dates
thereof or for the periods covered thereby.
SECTION 3.04. Common Stock; Options. All Parent Shares subject
to issuance pursuant to this Agreement and the Parent Options (as hereinafter
defined), upon issuance as payment for the Company Shares as contemplated by
this Agreement or upon exercise of the Parent Options, as the case may be, shall
(i) be duly authorized, validly issued, fully paid and nonassessable and (ii)
not be subject to any encumbrances created by or on behalf of the Parent or the
Purchaser. The Parent Options will be exercisable for Parent Shares in
accordance with the terms of the Parent Option Plan (as hereinafter defined).
The Parent will, prior to the date on which any Parent Options become
exercisable, reserve sufficient Parent Shares for issuance upon exercise of such
Parent Options.
SECTION 3.05. Investment Purpose. The Parent is acquiring the
Company Shares solely for the purpose of investment and not with a view to, or
for offer or sale in connection with, any distribution thereof in violation of
United States securities laws.
SECTION 3.06. Brokers. No broker, finder or investment banker
is entitled to any brokerage, finder's or other fee or commission in connection
with the transactions hereunder based upon arrangements made by or on behalf of
the Parent or the Purchaser.
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ARTICLE IV. ADDITIONAL AGREEMENTS
SECTION 4.01. Further Action; Public Announcements. Upon the
terms and subject to the conditions hereof, each of the parties hereto shall use
all reasonable efforts to take, or cause to be taken, all appropriate action,
and to do or cause to be done all things necessary, proper or advisable under
applicable laws and regulations to consummate and make effective the
transactions contemplated hereunder. None of the Stockholders shall issue any
press release or otherwise make any public statement with respect to the
transactions contemplated hereunder without the prior written consent of the
Parent.
SECTION 4.02. Options; Parent Loans. (a) On the Closing Date,
the Parent shall adopt an option plan (the "Parent Option Plan") in the form of
Exhibit 4.02(a) hereto providing for the issuance to the Stockholders of options
(the "Parent Options") to purchase up to 1,000,000 Parent Shares in the
aggregate, and the Parent will issue such Parent Options on the Closing Date.
(b) To the extent requested by any Stockholder, the Parent
shall, within 30 days following the Closing, loan to such Stockholder, by wire
transfer in immediately available funds to the account designated in writing by
such Stockholder, an amount equal to up to 50% of the product of (i) the number
of Parent Shares issuable to such Stockholder at the Closing (other than the
Escrow Shares) multiplied by (ii) the Signing Date Market Price (each a "Parent
Loan", and together, the "Parent Loans"), and each Stockholder shall deliver to
the Parent a promissory note (each a "Note", and together, the "Notes"),
substantially in the form attached hereto as Exhibit 4.02(b)(i), evidencing such
Stockholder's Parent Loan, together with the certificates evidencing Parent
Shares issued to such Stockholder (other than the Escrow Shares) with a value
(based upon the last reported sales price of Parent Shares on the NASDAQ on the
trading day immediately preceding the date of such loan) equal to 200% of the
principal amount of such Stockholder's Parent Loan, to hold as security for such
Parent Loan as more fully provided for in the form of stock pledge agreement
attached hereto as Exhibit 4.02(b)(ii) (the "Pledge Agreement").
SECTION 4.03. Disposition of Securities. As a material
inducement for the Parent and the Purchaser to enter into this Agreement, the
Stockholders agree that they will not sell, assign or otherwise transfer any of
the Parent Shares received in consideration for Company Shares until after the
second anniversary of the Closing Date; provided, however, that each Stockholder
may transfer Parent Shares (other than the Escrow Shares) to immediate family
members or trusts for the exclusive benefit of immediate family members,
provided that such Stockholder delivers evidence to the Parent that (i) any such
immediate family member or trust has entered into an agreement in form and
substance satisfactory to the Parent whereby such immediate family member or
trust shall be bound by the terms of this Agreement as if a party hereto and
(ii) that the Parent shall not otherwise be adversely affected by such transfer.
SECTION 4.04. Board Representation. At the next annual meeting
of the Parent's shareholders, the Parent shall use all reasonable efforts to
cause the size of the
13
board of directors of the parent to be increased and to include Xx. Xxxxx X.
Xxxxxxxxx as a management nominee to fill one of the vacancies created thereby.
SECTION 4.05. Non-Competition. (a) During the period specified
in the form of employment agreement or consulting agreement, as applicable,
attached hereto as Exhibit 1.07(b)(iii) during which each Stockholder is
restricted from competing with the Company (a "Restricted Period"), such
Stockholder shall not engage, directly or indirectly, in any business anywhere
in the United States that produces or supplies products or services of the kind
produced or supplied by the Business or the Company, or contemplated by the
Company's business plan, as of the Closing Date or, without the prior written
consent of the Parent, directly or indirectly, own an interest in, manage,
operate, join, control, lend money or render financial or other assistance to or
participate in or be connected with, as an officer, employee, partner,
stockholder, consultant or otherwise, any person that competes with the Parent,
the Business or the Company in producing or supplying products or services of
the kind produced or supplied by the Business or the Company, or contemplated by
the Company's business plan, as of the Closing Date; provided, however, that,
for the purposes of this Section 4.05, ownership of securities having no more
than one percent of the outstanding voting power of any competitor which are
listed on any national securities exchange or traded actively in the national
over-the-counter market shall not be deemed to be in violation of this Section
4.05 so long as the person owning such securities has no other connection or
relationship with such competitor.
(b) As a separate and independent covenant, each Stockholder
agrees that, during the Restricted Period, such Stockholder will not in any way,
directly or indirectly, for the purpose of conducting or engaging in any
business that produces or supplies products or services of the kind produced or
supplied by the Business or the Company, or contemplated by the Company's
business plan, as of the Closing Date, call upon, solicit, advise or otherwise
do, or attempt to do, business with any proposed customers of the Business or
the Company with whom the Business, the Company, such Stockholder or any other
Stockholder had any dealings during the period of time in which such Stockholder
or such other Stockholder was affiliated with the Company or which was a
prospective customer of the Company under the Company's business plan, or take
away or interfere or attempt to interfere with any custom, trade, business or
patronage of the Business or the Company, and each Stockholder will not in any
way interfere with or attempt to interfere with any officers, employees,
representatives or agents of the Business or the Company, or induce or attempt
to induce any of them to leave the employ of the Company or violate the terms of
their contracts, or any employment arrangements, with the Company.
(c) The Restricted Period with respect to each Stockholder
shall be extended by the length of any period during which such Stockholder is
in breach of the terms of this Section 4.05.
(d) The Stockholders hereby acknowledge that any and all
Developments that have at any time been made or suggested by any Stockholder,
whether acting alone or in conjunction with others, during such Stockholder's
association with the Company or prior
14
thereto in contemplation of the formation of the Company or the pursuit of the
Business, are the sole and absolute property of the Company, free of any
reserved or other rights of any kind on such Stockholder's part. Each
Stockholder has fully disclosed all such Developments to the Company and, if
requested by the Company, shall, at the Company's cost and expense, do all acts
and things (including, among others, the execution and delivery under oath of
patent and copyright applications and instruments of assignment) deemed by the
Company to be necessary or desirable at any time in order to effect the full
assignment to the Company of such Stockholder's right and title, if any, to such
Developments. For purposes of this Agreement, the term "Developments" means all
data, discoveries, findings, reports, designs, inventions, improvements,
methods, practices, techniques, developments, programs, concepts, and ideas,
whether or not patentable, relating to the products or services of the kind
produced or supplied by the Business or the Company, or contemplated by the
Company's business plan.
(e) The Stockholders acknowledge that the covenants of the
Stockholders set forth in this Section 4.05 are an essential element of this
Agreement and that, but for the agreement of the Stockholders to comply with
these covenants, the Parent and the Purchaser would not have entered into this
Agreement. The Stockholders acknowledge that this Section 4.05 constitutes an
independent covenant and shall not be affected by performance or nonperformance
of any other provision of this Agreement by the Parent or the Purchaser. The
Stockholders have independently consulted with their respective counsel and
after such consultation agree that the covenants set forth in this Section 4.05
are reasonable and proper.
(f) If any provision contained in this Section 4.05 is
determined by a court of competent jurisdiction to be excessively broad as to
duration, activity, geographic application or subject, it shall be construed, by
limiting or reducing it to the extent legally permitted, so as to be enforceable
to the extent compatible with then applicable law.
SECTION 4.06. Confidentiality. The Stockholders agree to, and
shall cause their respective agents, representatives and affiliates to: (i)
treat and hold as confidential (and not disclose or provide access to any person
to) all information relating to trade secrets, proprietary processes, patent and
trademark applications, product development, computer software (including,
without limitation, source code, operating systems and specifications, data,
data bases, files, documentation and other materials related thereto), price,
customer and supplier lists and arrangements, pricing and marketing plans,
policies and strategies, details of client and consultant contracts, operations
methods, product development techniques, business acquisition plans, new
personnel acquisition plans and all other confidential information with respect
to the Business and the Company, (ii) in the event that any Stockholder or any
such agent, representative or affiliate becomes legally compelled to disclose
any such information, provide the Parent with prompt written notice of such
requirement so that the Parent or the Company may seek a protective order or
other remedy or waive compliance with this Section 4.07, and (iii) in the event
that such protective order or other remedy is not obtained, or the Parent waives
compliance with this Section 4.07, furnish only that portion of such
confidential information which is legally required to be provided and exercise
its best efforts to obtain assurances that confidential treatment will be
15
accorded such information; provided, however, that this sentence shall not apply
to any information that, at the time of disclosure, is available publicly and
was not disclosed in breach of this Agreement by any Stockholder, its agents,
representatives or affiliates; provided further that, with respect to
Intellectual Property, specific information shall not be deemed to be within the
foregoing exception merely because it is embraced in general disclosures in the
public domain. In addition, with respect to Intellectual Property, any
combination of features shall not be deemed to be within the foregoing exception
merely because the individual features are in the public domain unless the
combination itself and its principle of operation are in the public domain. The
Stockholders agree and acknowledge that remedies at law for any breach of its
obligations under this Section 4.06 are inadequate and that in addition thereto
the Parent shall be entitled to seek equitable relief, including injunction and
specific performance, in the event of any such breach.
SECTION 4.07. Legends. The Parent shall affix to each
certificate evidencing outstanding Parent Shares that is issued to any
Stockholder a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
THE RESTRICTIONS ON DISPOSITION CONTAINED IN AN AGREEMENT AND
PLAN OF MERGER DATED AS OF JANUARY 23, 1997 AMONG SYNETIC,
INC., SYNTERNET ACQUISITION CORP., CAREAGENTS, INC. AND THE
INDIVIDUALS LISTED ON THE SIGNATURE PAGES THEREOF. COPIES OF
SUCH AGREEMENT ARE ON FILE AT THE OFFICE OF SYNETIC, INC. THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
NEITHER THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH
REGISTRATION."
As promptly as practicable following the second anniversary of the Closing Date,
at the request of any Stockholder, the Parent shall cause the first two
sentences of such legend to be removed from each certificate held by such
Stockholder.
ARTICLE V. INDEMNIFICATION
SECTION 5.01. Survival of Representations and Warranties. The
representations and warranties contained in this Agreement shall survive the
Closing until the second anniversary thereof; provided, however, that the
representations and warranties contained in Section 2.02, 2.10 and 3.04 shall
survive indefinitely. Neither the period of survival nor the liability of the
Stockholders with respect to the Stockholders' representations and warranties
shall be reduced by any investigation made at any time by or on behalf of the
16
Parent or the Purchaser, and neither the period of survival nor the liability of
the Parent with respect to the representations and warranties of the Parent and
the Purchaser shall be reduced by any investigation made at any time by or on
behalf of the Stockholders. If written notice of a claim has been given prior to
the expiration of the applicable representations and warranties, then the
relevant representations and warranties shall survive as to such claim, until
such claim has been finally resolved.
SECTION 5.02. Indemnification by the Stockholders and the
Parent. (a) The Parent and its affiliates (including, after the Closing, the
Surviving Corporation), officers, directors, employees, agents, successors and
assigns shall be indemnified and held harmless by the Stockholders for any and
all liabilities, losses, damages, claims, costs and expenses, interest, awards,
judgments and penalties (including, without limitation, attorneys' fees and
expenses) actually suffered or incurred by them (including, without limitation,
in connection with any action brought or otherwise initiated by any of them)
(hereinafter a "Loss"), arising out of or resulting from:
(i) the breach of any representation or warranty made by the
Stockholders in this Agreement; or
(ii) the breach of any covenant or agreement by the
Stockholders contained in this Agreement.
To the extent that the Stockholders' undertakings set forth in this Section
5.02(a) may be unenforceable, the Stockholders shall contribute the maximum
amount that they are permitted to contribute under applicable law to the payment
and satisfaction of all Losses incurred by the parties entitled to
indemnification hereunder.
(b) The Stockholders and their respective affiliates,
officers, directors, employees, agents, successors and assigns shall be
indemnified and held harmless by the Parent for any and all Losses arising out
of or resulting from:
(i) the breach of any representation or warranty made by the
Parent or the Purchaser in this Agreement; or
(ii) the breach of any covenant or agreement by the Purchaser
contained in this Agreement.
To the extent that the Parent's undertakings set forth in this Section 5.02(b)
may be unenforceable, the Parent shall contribute the maximum amount that it is
permitted to contribute under applicable law to the payment and satisfaction of
all Losses incurred by the parties entitled to indemnification hereunder.
(c) Any party seeking indemnification under this Article V (an
"Indemnified Party") shall give each party from whom indemnification is being
sought (each, an "Indemnifying Party") notice of any matter which such
Indemnified Party has determined
17
has given or could give rise to a right of indemnification under this Agreement,
within 60 days of such determination, stating the amount of the Loss, if known,
and method of computation thereof, and containing a reference to the provisions
of this Agreement in respect of which such right of indemnification is claimed
or arises. The obligations and liabilities of an Indemnifying Party under this
Article V with respect to Losses arising from claims of any third party which
are subject to the indemnification provided for in this Article V ("Third Party
Claims") shall be governed by and contingent upon the following additional terms
and conditions: if an Indemnified Party shall receive notice of any Third Party
Claim, the Indemnified Party shall give the Indemnifying Party notice of such
Third Party Claim within 30 days of the receipt by the Indemnified Party of such
notice; provided, however, that the failure to provide such notice shall not
release the Indemnifying Party from any of its obligations under this Article V
except to the extent the Indemnifying Party is materially prejudiced by such
failure. If the Indemnifying Party acknowledges in writing its obligation to
indemnify the Indemnified Party hereunder against any Losses that may result
from such Third Party Claim, then the Indemnifying Party shall be entitled to
assume and control the defense of such Third Party Claim at its expense and
through counsel of its choice if it gives notice of its intention to do so to
the Indemnified Party within ten days of the receipt of such notice from the
Indemnified Party; provided, however, that if there exists or is reasonably
likely to exist a conflict of interest that would make it inappropriate in the
judgment of the Indemnified Party for the same counsel to represent both the
Indemnified Party and the Indemnifying Party, then the Indemnified Party shall
be entitled to retain its own counsel, in each jurisdiction for which the
Indemnified Party determines counsel is required, at the expense of the
Indemnifying Party. In the event the Indemnifying Party exercises the right to
undertake any such defense against any such Third Party Claim as provided above,
the Indemnified Party shall cooperate with the Indemnifying Party in such
defense and make available to the Indemnifying Party, at the Indemnifying
Party's expense, all witnesses, pertinent records, materials and information in
the Indemnified Party's possession or under the Indemnified Party's control
relating thereto as is reasonably required by the Indemnifying Party. Similarly,
in the event the Indemnified Party is, directly or indirectly, conducting the
defense against any such Third Party Claim, the Indemnifying Party shall
cooperate with the Indemnified Party in such defense and make available to the
Indemnified Party, at the Indemnifying Party's expense, all such witnesses,
records, materials and information in the Indemnifying Party's possession or
under the Indemnifying Party's control relating thereto as is reasonably
required by the Indemnified Party. No such Third Party Claim may be settled by
the Indemnifying Party without the prior written consent of the Indemnified
Party, which consent shall not be unreasonably withheld.
SECTION 5.03. Limits on Indemnification; Breach of Sections
4.05 and 4.06. With respect to any claim for indemnifiable Losses made by the
Parent pursuant to Section 5.02(a)(i), each Stockholder shall indemnify the
Parent only for such portion of such indemnifiable Losses equal to (i) the total
amount of such Losses multiplied by (ii) a fraction, the numerator of which
shall be the total number of Company Shares held by such Seller immediately
prior to the Closing and the denominator of which shall be 9,999. With respect
to any claim for indemnifiable Losses made by the Parent pursuant to Section
5.02(a)(ii), each Stockholder shall indemnify the Parent only with respect to
any breach by such
18
Stockholder resulting in such indemnifiable Losses, and not for a breach of any
other Stockholder. Notwithstanding anything to the contrary in this Agreement,
(A) the maximum amount that may be recovered from any Stockholder with respect
to any indemnifiable Loss pursuant to Section 5.02(a)(i) shall be an amount
equal to (x)(I) the product of the total number of Parent Shares issued to such
Stockholder pursuant to this Agreement (less any Escrow Shares forfeited by such
Stockholder pursuant to Section 4(a)(i)(B) of the Escrow Agreement or the next
succeeding sentence of this Section 5.03) multiplied by (II) the last reported
sales price of Parent Shares on the NASDAQ on the trading day immediately
preceding the date of payment of such Loss, minus (y) the total amount of
indemnifiable Losses (it being understood that, for the purposes of this clause
(y), "indemnifiable Losses" shall not include any Escrow Shares forfeited by
such Stockholder pursuant to Section 4(a)(i)(B) of the Escrow Agreement or the
next succeeding sentence of this Section 5.03) previously paid to the Parent by
such Stockholder, calculated in accordance with clause (x) above at the time of
payment of such indemnifiable Losses and (B) no provision of this Agreement or
the Escrow Agreement shall be construed so as to limit the indemnity obligations
of the Stockholders hereunder to the amounts held in escrow pursuant to the
Escrow Agreement. The parties hereto agree that in the event that any
Stockholder breaches Section 4.05 or 4.06 of this Agreement, such Stockholder
shall, in addition to other remedies available to the Parent at law or in
equity, forfeit all Escrow Shares then held by the Escrow Agent on behalf of
such Stockholder. Each party hereto agrees that the forfeiture referred to in
the preceding sentence would be, by itself, inadequate to compensate the Parent
for the damages it would sustain in the event of a breach by any Stockholder of
Section 4.05 or 4.06 of this Agreement, and such forfeiture shall in no way
limit the ability of the Parent to obtain further remedies, including money
damages and injunctive relief, in any proceeding at law or in equity. Each party
hereto further acknowledges that the forfeiture referred to above is not
intended to compel performance with, or to constitute a penalty for
nonperformance of, any Stockholder's obligations under Section 4.05 or 4.06
hereof.
SECTION 5.04. Indemnification as Exclusive Remedy. The
indemnification provided by this Article V, subject to the limitations set forth
herein, shall be the exclusive post-Closing remedy available to the parties
hereto for any breach of any representation or warranty contained in this
Agreement, and the parties hereto acknowledge that no party hereto has made any
representation or warranty to any other party hereto other than as set forth in
this Agreement. In no event shall any party hereto be entitled to rescission of
this Agreement as a result of any breach of any representation, warranty,
covenant or agreement contained herein.
ARTICLE VI. TERMINATION, AMENDMENT AND WAIVER; MISCELLANEOUS
SECTION 6.01. Expenses. All costs and expenses, including,
without limitation, fees and disbursements of counsel, financial advisors and
accountants, incurred by the Company or the Stockholders in connection with this
Agreement and the transactions contemplated hereby shall be paid by the
Stockholders and all costs and expenses, including, without limitation, fees and
disbursements of counsel, financial advisors and accountants,
19
incurred by the Parent or the Purchaser in connection with this Agreement and
the transactions contemplated hereby shall be paid by the Parent.
SECTION 6.02. Miscellaneous. This Agreement may be amended at
any time by an instrument signed by the Parent and the Stockholders. Either the
Stockholders or the Parent may (a) extend the time for the performance of any of
the obligations or other acts of the Company or any Stockholder, or the Parent
and the Purchaser, respectively, (b) waive any inaccuracies in the
representations and warranties of the Company or any Stockholder, or the Parent
and the Purchaser, respectively, contained herein or in any document delivered
pursuant hereto by the Company or any Stockholder, or the Parent and the
Purchaser, respectively and (c) waive compliance with any of the agreements of
the Company or any Stockholder, or the Parent and the Purchaser, respectively,
or any conditions contained herein. Any such extension or waiver shall be valid
if set forth in an instrument in writing signed by the party to be bound
thereby. The failure of any party to assert any of its rights hereunder shall
not constitute a waiver of any such rights. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any law or
public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner in
order that the transactions contemplated hereby are consummated as originally
contemplated to the greatest extent possible. This Agreement and the exhibits
hereto constitute the entire agreement among the parties with respect to the
subject matter hereof and supersedes all prior agreements and undertakings, both
written and oral, among the parties with respect to the subject matter hereof.
This Agreement may not be assigned by operation of law or otherwise without the
express written consent of the Parent and the Stockholders; provided, however,
that the Parent may assign this Agreement to an affiliate of the Parent without
the consent of the Stockholders, but no such assignment shall relieve the Parent
of its obligations hereunder if such assignee does not perform such obligations.
This Agreement shall be binding upon and inure solely to the benefit of each
party hereto, and nothing in this Agreement, express or implied, is intended to
or shall confer upon any other person any rights, benefits or remedies of any
nature whatsoever under or by reason of this Agreement. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York. Each party hereto agrees that any legal suit, action or proceeding arising
out of or relating to this Agreement shall be instituted and heard exclusively
in any New York federal or state court in New York City, and each party hereto
waives any objection that such party may now or hereafter have to the laying of
venue of any such legal suit, action or proceeding and irrevocably submits to
the exclusive jurisdiction of any such court in any such legal suit, action or
proceeding. This Agreement may be executed in one or more counterparts, and by
the different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement. The parties hereto agree that irreparable
damage would occur in the event any of the provisions of this Agreement were not
to be performed in accordance with the terms
20
hereof and that the parties shall be entitled to specific performance of the
terms hereof, in addition to any other remedy at law or equity. Any notices
under this Agreement shall be addressed, if to the Parent, to its principal
executive office, attention: Vice President, Finance; and if to the
Stockholders, to each Stockholder at such Stockholders' address set forth on the
signature pagers hereto.
IN WITNESS WHEREOF, the Parent, the Purchaser, the Company and
the Stockholders have each caused this Agreement to be executed as of the date
first written above by their respective officers thereunto duly authorized.
SYNETIC, INC.
By:
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Name:
Title:
SYNTERNET ACQUISITION CORP.
By:
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Name:
Title:
CAREAGENTS, INC.
By:
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Name:
Title:
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Name:
Address:
Company Shares:
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Name:
Address:
Company Shares:
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Name:
Address:
Company Shares:
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Name:
Address:
Company Shares:
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Name:
Address:
Company Shares:
