FORM OF AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER is made as of this _____ day of October,
1996, by and between ADVANCE HEALTH CARE, INC., a Delaware corporation ("AHC")
and ADVANCE PARADIGM, INC., a Delaware corporation ("API") and subsidiary of
AHC.
RECITALS
A. API is engaged in the business of pharmacy benefit management.
B. AHC is a holding company, which holds, among other things,
approximately 55% of the outstanding capital stock of API, on a fully diluted
basis.
C. The Board of Directors of AHC and API deem it advisable and in the
best interest of such corporations and their respective stockholders that AHC be
merged with and into API on the terms and conditions set forth in this
Agreement.
D. The Boards of Directors of AHC and API have approved this Agreement,
AHC as the majority stockholder of API has approved this Agreement, and the
Board of Directors of AHC has resolved to recommend to its stockholders to vote
in favor of adoption of this Agreement.
Accordingly, in consideration of the mutual covenants contained herein, the
parties agree as follows:
ARTICLE I
THE MERGER
1.1 AGREEMENT AND PLAN OF MERGER. At the Effective Time (as defined
below), AHC shall be merged with and into API (the "Merger") in accordance with
the terms of this Agreement and the Agreement of Merger and Articles of Merger
referred to in Section 2.2 below. API and AHC are sometimes referred to herein
as the "Constituent Corporations."
1.2 EFFECT OF THE MERGER. At the Effective Time, the separate corporate
existence of AHC shall cease and API shall be the surviving corporation (the
"Surviving Corporation"). The Surviving Corporation shall thereupon succeed,
without other transfer, to all the rights and property of AHC and shall be
subject to all the debts and liabilities of AHC in the same manner as if the
Surviving Corporation had itself incurred them. All rights of creditors and all
liens upon the property of each of the Constituent Corporations shall be
preserved unimpaired, provided that such liens upon property of AHC shall be
limited to the property affected thereby immediately prior to the Effective
Time. Any action or proceeding pending by or against AHC may be prosecuted to
judgment, which shall bind the Surviving Corporation, or the Surviving
Corporation may be proceeded against or substituted in its place.
1.3 CHARTER DOCUMENTS OF API. The Certificate of Incorporation and Bylaws
of API, as amended to and including the Effective Time, shall be the Certificate
of Incorporation and Bylaws of the Surviving Corporation following the Effective
Time until changed as provided by law and their respective provisions. The name
of the Surviving Corporation shall from and after the Effective Time be and
continue to be Advance ParadigM, Inc. until changed in accordance with
applicable law.
1.4 CONVERSION OF SECURITIES
(a) At the Effective Time, subject to the provisions of Section 1.5,
each outstanding share of common stock of AHC (the "AHC Capital Stock") shall by
virtue of the Merger and without any action on the part of the holder thereof,
be converted into the right to receive an equal number of shares (the "Closing
Shares") of Common Stock of API (the "API Common Stock").
(b) No fractional shares of API Common Stock will be issued, but the
holder who would otherwise be entitled to such fractional share shall be
entitled to receive in cash an amount equal to the value of such fractional
interest.
(c) The shares of API capital stock issued and outstanding
immediately prior to the Effective Time shall remain outstanding and shall not
be affected by the Merger.
(d) Any shares of AHC Capital Stock held in the treasury of AHC shall
be cancelled at the Effective Time.
(e) All options or other rights to purchase AHC Capital Stock or
other securities of AHC shall be converted into options to purchase an equal
number of shares of API Common Stock and shall be subject to the terms and
conditions of the 1993 Incentive Stock Option Plan of API (the "Plan"). API
shall reserve such additional number of shares of API Common Stock under the
Plan for which the options converted pursuant to this Section 1.4(e) shall be
exercisable.
(f) Subject to Section 6.2(b), each outstanding share of AHC Capital
Stock held by a holder who has demanded and perfected dissenters' rights in
accordance with Section 262 of the Delaware General Corporation Law (the
"Dissenting Shares") and who has not effectively withdrawn or lost such right
shall not be converted into or represent the right to receive shares of API
Common Stock, but the holder thereof shall be entitled only to such rights as
are granted by Section 262 of the Delaware General Corporation Law. If any
holder of AHC Capital Stock who notifies AHC of his or her intention to demand
payment for his or her shares in accordance with Section 262 of Delaware General
Corporation Law Act does not demand payment or otherwise perfect his or her
dissenters' rights, each share or AHC Capital Stock held by such holder shall
automatically be converted into the right to receive shares of API Common Stock
pursuant to Section 1.4(a) above.
1.5 EXCHANGE OF SECURITIES
(a) At the Closing (as defined below), API will issue shares of API
Common Stock to the stockholders of record of AHC calculated in the manner set
forth in Section 1.4(b).
(b) If substantially all of the assets or shares of API are purchased
or acquired in a reorganization, other than a reorganization in which the
ownership interest of the API stockholders are substantially the same before and
after such reorganization, then all contingent shares due Transferors (but for
their contingent nature) at the closing of such transaction shall be transferred
to them free of any contingency if, and only if, all of those Transferors then
subject to an employment agreement or noncompetition covenant sign such
documents as may be reasonably required to assure that their obligations of
employment and noncompetition shall be available to the purchasing or acquiring
party to the same degree and for the same period as if such purchase or
acquisition had not occurred.
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1.6 NO TRANSFERS. After the Effective Time, no transfer of shares of AHC
Capital Stock theretofore outstanding shall thereafter be made on its stock
transfer books. If, after the Effective Time, certificates which, immediately
prior to the Effective Time, represented shares of AHC Capital Stock are
presented to API, they shall be cancelled and exchanged for shares of API Common
Stock as provided in Sections 1.4 and 1.5. No shares of AHC stock shall be
issued between the date of this Agreement and the Effective Time.
1.7 OFFICERS AND DIRECTORS. The officers and directors of API immediately
prior to the Effective Time shall continue as officers and directors of the
Surviving Corporation following the Effective Time, continuing in office in
accordance with the Certificate of Incorporation and Bylaws of the Surviving
Corporation.
ARTICLE II
CLOSING
2.1 TIME AND PLACE OF CLOSING. The closing of the transactions
contemplated by this Agreement (the "Closing") shall occur at the offices of
API, 000 X. Xxxx Xxxxxxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx, at ____ a.m.,
local time on October __, 1996, or on such other date or at such other time as
API and AHC may agree (the "Closing Date").
2.2 EXECUTION OF MERGER AGREEMENTS. Prior to the Closing, AHC and API as
applicable, shall execute and deliver to the other this Agreement in a form to
be agreed upon for filing with the Delaware Secretary of State. The Certificate
of Merger shall be duly filed with the Delaware Secretary of State in accordance
with the Delaware General Corporation Law. The date of filing the Certificate
of Merger with the Delaware Secretary of State is sometimes referred to herein
as the "Effective Time."
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF TRANSFERORS
Transferors hereby, jointly and severally, represent and warrant to API as
follows, except as otherwise specifically disclosed in the schedules hereto:
3.1 ORGANIZATION, STANDING, AND QUALIFICATION OF AHC. AHC is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Delaware, and has all necessary corporate powers to own its
properties and to carry on its business as now owned and operated by it.
3.2 AUTHORIZATION. Each Transferor has full power and authority to
execute and deliver this Agreement and the documents and instruments to be
executed and delivered pursuant to this Agreement and to consummate the
transactions and perform the obligations contemplated herein and therein. This
Agreement has been duly executed and delivered on behalf of each Transferor and
all corporate proceedings on the part of any Transferor that is a corporation
necessary to authorize such execution and delivery have been completed.
3.3 RESTRICTED SECURITIES. Transferors are aware of and understanding the
following:
(a) That the shares of API Common Stock acquired by the AHC
Stockholders hereunder have not been registered for sale under the Securities
Act of 1933 (the "Securities Act") or any state blue sky law, based upon (among
other things) the bona fide nature of
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Transferors' investment intent as expressed herein and the accuracy and
completeness of Transferors' representations and warranties contained in this
Agreement;
(b) That, unless and until the shares of API Common Stock acquired by
the AHC Stockholders hereunder are registered for sale under the Securities Act
and any applicable state blue sky law, there will be substantial restrictions on
the transferability of the shares of common stock acquired by the AHC
Stockholders hereunder; there is no public market for the shares of API Common
Stock acquired by the AHC Stockholders hereunder and none is expected to develop
in the foreseeable future; and the AHC Stockholders will not be able to avail
themselves of the provisions of Rule 144 adopted by the Securities and Exchange
Commission (the "SEC") under the Securities Act, unless all of the conditions of
Rule 144 are met; and
3.4 LEGEND. The AHC Stockholders understand and agree that, until
registered under all applicable securities laws, all certificates evidencing any
of the shares of API Common Stock acquired by Transferors hereunder, whether
upon initial issuance or any transfer thereof, shall bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933. THESE SECURITIES
HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED, SOLD,
TRANSFERRED, PLEDGED, OR HYPOTHECATED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE
SECURITIES ACT OF 1933 OR AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT.
FURTHER, UPON THE FILING OF AN EFFECTIVE REGISTRATION STATEMENT
FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, THE
SECURITIES REPRESENTED BY THIS CERTIFICATE SHALL BE SUBJECT TO A
LOCK-UP PERIOD OF 180 DAYS AS MORE FULLY DESCRIBED IN THAT
CERTAIN AGREEMENT AND PLAN OF MERGER DATED OCTOBER __, 1996,
DURING WHICH LOCK-UP PERIOD THE SECURITIES MAY NOT BE OFFERED,
SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED.
3.5 FULL DISCLOSURE. None of the information provided API by Transferors
in connection with the Merger or this Agreement or made in any certificate or
memorandum furnished or to be furnished by any of them or on their behalf
pursuant to this Agreement, contains or will contain any untrue statement of a
material fact, or omits to state a material fact necessary to make the
statements made, in the light of the circumstances under which they were made,
not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF API
API hereby represents and warrants to AHC as follows, except as otherwise
specifically disclosed in the Schedules hereto:
4.1 ORGANIZATION AND RELATED MATTERS. API is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. API is qualified to do business in each jurisdiction in which the
transaction of business by API makes such qualification
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necessary except where the failure to be so qualified would not have a material
adverse effect on API.
4.2 AUTHORIZATION. API has full power and authority to execute and
deliver this Agreement and the documents and instruments to be executed and
delivered pursuant to this Agreement and to consummate the transactions and
perform the obligations contemplated herein and therein. This Agreement has
been duly executed and delivered on behalf of API and all corporate proceedings
on the part of API necessary to authorize such execution and delivery have been
completed in the case of API.
4.3 FULL DISCLOSURE. None of the informaion provided AHC or the
Transferors by API or made in connection with the Merger or this Agreement or
made in any certificate or memorandum furnished or to be furnished by API
contains or will contain any untrue statement of a material fact, or omits to
state a material fact necessary to make the statements made, in the light of the
circumstances under which they were made, not misleading.
ARTICLE V
COVENANTS OF THE PARTIES
5.1 JOINT ACTION; COOPERATION
(a) Subject to the terms and conditions of this Agreement, each of
the parties shall use its respective reasonable best efforts, and shall
cooperate with each of the other parties, to take, or cause to be taken, all
action and to do, or cause to be done, all things necessary, proper or
advisable, including furnishing any necessary information or copies of
documentation, to cause the Merger to be completed, and the other transactions
contemplated by this Agreement to be consummated, as expeditiously as reasonably
practicable in accordance with the provisions of this Agreement. In the event
that an action, suit, proceeding or investigation relating to this Agreement or
the transactions contemplated hereby is commenced at any time, each of the
parties shall cooperate and use its reasonable best efforts to defend against
the same.
(b) Without limitation on the generality of Section 5.1, the parties
shall cooperate with one another in: (i) determining whether (1) any filings
are required to be made, or any consents, approvals, permits or authorizations
are required to be obtained, under any law or regulation in connection with the
consummation of the Merger than as expressly provided for elsewhere in this
Agreement, and (2) any consents, approvals or waivers are required to be
obtained from third parties to contracts in connection with the consummation of
the Merger; and (ii) timely making any such filings, and seeking timely to
obtain any such consents, approvals, permits, authorizations or waivers.
5.2 LOCK-UP AGREEMENT.
(a) Each AHC Stockholder acknowledges that API is in the process of
registering shares of API Common Stock pursuant to a registration statement on
Form S-1 (the "Registration Statement") transmitted for filing with the
Securities and Exchange Commission on June 26, 1996.
(b) Each AHC Stockholder hereby irrevocably agrees that it will not,
directly or indirectly, sell, offer, contract to sell, transfer the economic
risk of ownership in, make any short sale, pledge or otherwise dispose of any
shares of API Common Stock or any securities convertible into or exchangeable or
exercisable for or any other rights to purchase or acquire
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API Common Stock, without the prior written consent of Xxxxxxxxx & Xxxxx LLC,
acting alone or in its capacity as representative of the underwriters in the
registration, for a period of 180 days from the effective date of the
Registration Statement.
(c) If the AHC Stockholder is an individual, he or she may transfer
any shares of API Common stock or securities convertible into or exchangeable or
exercisable for the API Common Stock either during his or her lifetime or on
death by will or intestacy to his or her immediate family or to a trust the
beneficiaries of which are exclusively the undersigned and/or a member or
members of his or her immediate family; provided, however, that prior to any
such transfer each transferee shall execute an agreement, satisfactory to
Xxxxxxxxx & Xxxxx LLC, acting along or in its capacity as the representative of
the API Common Stock, or securities convertible into or exchangeable or
exercisable for API Common Stock, subject to the provisions hereof, and there
shall be no further transfer except in accordance with the provision hereof.
For the puproses of this paragraph, "immediately family" shall mean spouse,
lineal descendant, father, mother, brother or sister of the transferor.
(d) Each AHC Stockholder hereby waives any rights of such AHC
Stockholder to sell shares of API Common Stock or any other security issued by
API pursuant to the Registration Statement, and acknowledges and agrees that for
a period of 180 days from the effective date of the Registration Statement such
AHC Stockholder has no right to require API to register under the Securities Act
of 1933 such API Common Stock or other securities issued by such AHC Stockholder
under this Section 5.2 and beneficially owned by such AHC Stockholder.
(e) The agreements of AHC Stockholder under this Section 5.2 are
irrevocable and shall be binding upon such AHC Stockholder's heirs, legal
representatives, successors and assigns. The AHC Stockholder agrees and
consents to the entry of stop transfer instructions with API's transfer agent
against the transfer of API Common Stock or other securities of API held by the
undersigned except in compliance with this Section 5.2.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS
6.1 CONDITIONS PRECEDENT FOR ALL PARTIES. The obligations of all parties
to consummate the transactions contemplated by this Agreement shall be subject
to fulfillment of each of the following conditions precedent on or prior to the
Closing Date (any of which xxx be waived in writing in whole or in part by the
parties):
(a) CORPORATE APPROVAL. All corporate actions necessary to authorize
the execution, delivery and performance of this Agreement shall have been duly
and validly taken by each of API and AHC.
(b) COMPLIANCE WITH LAW. Each party shall be reasonably satisfied
with the steps taken for compliance with applicable requirements of all
applicable laws and with all other legal matters.
(c) NO INJUNCTIONS; ORDERS. No preliminary or permanent injunction
or other order shall have been issued by any court or governmental entity nor
shall any statute, rule, regulation, or executive order be promulgated or
enacted by any governmental entity that prevents the consummation of the
transactions contemplated by this Agreement.
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(d) CONSENTS AND APPROVALS. All authorizations, consents, orders, or
approvals of, or declarations or filings with, any governmental entity necessary
for the consummation of the transactions contemplated by this Agreement shall
have been filed or been obtained.
6.2 CONDITIONS PRECEDENT FOR API. The obligations of API to consummate
the transactions contemplated by this Agreement shall be subject to fulfillment
of each of the following conditions precedent on or prior to the Closing Date
(any of which may be waived in writing in whole or in part by API):
(a) IN GOOD STANDING. On the Closing Date, API shall have received a
Certificate of Good Standing, dated the date of closing, and a review of the
Articles, Bylaws, minutes books and stock books of AHC shall reveal no
impediment to the closing of this transaction in accordance with its terms.
(b) STOCKHOLDER APPROVAL. The holders of at least a majority of the
outstanding shares of AHC shall have voted in favor of this Agreement, the Plan
of Merger and the Merger, and no AHC Stockholder shall have the right to demand
payment pursuant to Section 262 of the Delaware General Corporation Law.
6.3 CONDITIONS PRECEDENT FOR THE TRANSFERORS. The obligations of
Transferors to consummate the transactions contemplated by this Agreement shall
be subject to fulfillment of each of the following conditions precedent on or
prior to the Closing Date (any of which may be waived in writing in whole or in
part by the Transferors):
(a) IN GOOD STANDING. On the Closing Date, API shall have received a
Certificate of Good Standing, dated the date of closing, and a review of the
Articles, Bylaws, minute books and stock books of AHC shall reveal no impediment
to the closing of this transaction in accordance with its terms.
(b) STOCKHOLDER APPROVAL. The holders of at least a majority of the
outstanding shares of AHC shall have voted in favor of this Agreement, the Plan
of Merger and the Merger.
ARTICLE VII
SURVIVAL AND INDEMNIFICATION
7.1 SURVIVAL. All representations, warranties, covenants and agreements
made by API and Transferors in this Agreement (including statements contained in
any certificate, Schedule, Exhibit, statement, report or other documents
delivered by or on behalf of any party hereto pursuant to this Agreement) shall
survive the execution, delivery and performance of this Agreement and any
investigations, inspections, examinations, or audits made by or on behalf of any
of the parties, for so long as claims for indemnification can be made under this
Agreement.
7.2 INDEMNITY. Transferors, jointly and severally, indemnify, defend, and
hold harmless API, and API, indemnifies, defend, and holds harmless Transferors,
against and in respect of any and all claims, demands, losses, costs, expenses,
obligations, liabilities, damages, recoveries, and deficiencies, including
interest, penalties, and reasonable attorneys' fees, that the indemnified party
shall incur or suffer, that arise, result from, or relate to any breach of, or
failure by the indemnifying party to perform, any of their representations,
warranties, covenants, or agreements in this Agreement or in any schedule,
certificate, exhibit, or other instrument furnished or to be furnished by them
under this Agreement. Notwithstanding any other provision of this Agreement, no
party shall be liable to any other party on any warranty,
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representation, or covenant made by them in this Agreement, or under any of
their indemnities in this Agreement, regarding any single claim, loss, expense,
obligation, or other liability that does not exceed $5,000; provided, however,
that when the aggregate amount of all such claims, losses, expenses,
obligations, and liabilities not exceeding $5,000 each reaches $15,000, they
shall, subject to the above limitation on their maximum aggregate liability,
thereafter be liable in full for all those breaches and indemnities and
regarding all those claims, losses, expenses, obligations, and liabilities.
7.3 INDEMNIFICATION PROCEDURES; DEFENSE. As soon as reasonably practical
after obtaining knowledge thereof, the party or parties indemnified hereunder
(the "Indemnitee") shall promptly notify the indemnifying party (the
"Indemnitor") of the existence of any claim, demand, loss, liability, cause of
action or other matter involving liability or potential liability to which the
Indemnitor's indemnification obligations would or might apply. Such notice
shall specify the representation, warranty, covenant, commitment or obligation
with respect to which the claim is made, the facts giving rise to the claim and
the alleged basis therefor, and the amount (to the extent then determinable) of
liability for which indemnity is asserted. In the event of any claim, action,
suit or proceeding by a third party (a "Third Party Claim") with respect to
which there may be indemnity hereunder, the Indemnitee shall give the Indemnitor
20 business days (or such shorter period as required by the exigencies of such
Third Party Claim) in which to elect to conduct the defense of the same at its
own expense and with counsel of its own selection (who shall be approved by the
Indemnitee, which approval shall not be unreasonably withheld); provided that
the Indemnitee shall at all times also have the right to fully participate in
the defense at its own expense. If the Indemnitor fails to commence or continue
such defense, the Indemnitee shall have the right, but not the obligation, to
undertake the defense of, and to compromise or settle (exercising reasonable
business judgment) the Third Party Claim on behalf, for the account, and at the
risk and expense of the Indemnitor. Notwithstanding the foregoing, if the
matter might have an effect on the ongoing business of API or its affiliates, or
their respective relationships with clients, API or its designee shall have
first right to defend the same on the basis set forth in the preceding sentence.
Except as provided above, the Indemnitee shall not compromise or settle a Third
Party Claim without the written consent of the Indemnitor, which consent shall
not be unreasonably withheld. If a Third Party Claim is one that cannot by its
nature be defended solely by the Indemnitor, the Indemnitee shall make available
all information and assistance that the Indemnitor may reasonably request,
provided that any associated, expenses shall be paid by the Indemnitor.
7.4 REPRESENTATIVE. Transferors hereby appoint Xxxxx X. Xxxxxxx as their
representative and agent ("Representative") through whom all actions by AHC and
the Transferors relating to this Agreement generally, and this indemnity
specifically, are to be taken and to whom all communications to AHC and the
Transferors are to be directed until his replacement by a majority in interest
of the Transferors. The Representative and any successor shall have full power
and authority to act in the name and on behalf of AHC and the Transferors in all
matters relating to this Agreement and the transactions contemplated by this
Agreement, and all such actions taken by the Representative shall be binding
upon AHC and the Transferors.
ARTICLE VIII
TERMINATION
This Agreement may be terminated and the proposed Merger abandoned at any
time prior to the Effective Time by the mutual agreement of the parties
(authorized, in the case of API and AHC, by their respective Boards of
Directors).
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ARTICLE IX
GENERAL
9.1 AMENDMENT. Subject to applicable law, this Agreement may be amended,
modified or supplemented, with respect to any of its provisions, but only by
written agreement of the parties to this Agreement (authorized, in the case of
AHC, by its Board of Directors).
9.2 WAIVER OF COMPLIANCE; CONSENTS. Except insofar as any provision of
this Agreement is expressly provided to be nonwaivable, any failure of any party
to this agreement to comply with any obligation, covenant, agreement or
condition in this Agreement may be waived in writing by the other parties, but
such waiver shall not bind any non-waiving party nor shall it operate against
the waiving party as a waiver of, or estoppel, with respect to, any subsequent
to other failure of compliance. Whenever this Agreement requires or permits
consent by or on behalf of any party to this Agreement, such consent shall be
given in writing.
9.3 GOVERNING LAW. This Agreement and the legal relations between the
parties to this Agreement shall be governed in all respects, including validity,
interpretation, effect and performance, by the internal laws of the State of
Delaware, without giving effect to the principles of conflict of laws thereof.
9.4 PARTIES IN INTEREST. This Agreement, and the rights, interests and
obligations created by this Agreement, shall bind and insure to the benefit of
the parties to this Agreement and their respective successors and assigns, and
shall confer no right, benefit or interest upon any other Person, except that
the stockholders of AHC shall be deemed to be third party beneficiaries with
respect to Articles I and VII.
9.5 NOTICES. All notices or other communications required or permitted
under this Agreement shall be in writing and shall be deemed to have been duly
given if delivered personally or by courier guaranteeing delivery within the
next two days, or by telecopier, addressed as follows or such other address as
the party to be notified has furnished in writing by a notice given in
accordance with this Section 9.5:
If to API, to:
Advance ParadigM, Inc.
000 X. Xxxx Xxxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Fax: (000) 000-0000
With a copy to:
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
0000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: J. Xxxxxxx Xxxxxx, Xx., P.C.
Fax: (000) 000-0000
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If to AHC, to:
Advance Health Care, Inc.
000 Xxxx Xxxx Xxxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxxxxx
000 Xxxx Xxxx Xxxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
If to the Representative, to:
Xxxxx X. Xxxxxxx
000 Xxxx Xxxx Xxxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Any such notice or communication shall be deemed given as of the date of
delivery, if delivered personally, on the second day after the sending thereof,
if by courier, and when transmission is acknowledged, if telecopied (except that
a notice of change of address for receipt of notice under this Section 9.5 shall
not itself be deemed to have been given until actually received by the
addressee).
9.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
shall be considered one and the same agreement.
9.7 RECOVERY OF LITIGATION COSTS. If any legal action or any arbitration
or other proceeding is brought for the enforcement of this Agreement, or because
of all alleged dispute, breach, default, or misrepresentation in connection with
any of the provisions of this Agreement, the successful or prevailing party or
parties shall be entitled to recover reasonable attorneys' fees and other costs
incurred in that action or proceeding, in addition to any other relief to which
it or they may be entitled.
9.8 ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between the parties pertaining to the subject matter of this
Agreement, and supersede all prior agreements, understandings, negotiations,
representations and discussions, whether written or oral.
9.9 SEVERABLE PROVISIONS. If any of the provisions of this Agreement may
be determined to be illegal or otherwise unenforceable, in whole or in part, the
remaining provisions and any partially enforceable provisions to the extent
enforceable, shall nevertheless be binding and enforceable.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives as of the day and year first above
written.
ADVANCE PARADIGM, INC.
a Delaware corporation
By:
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Print Name:
----------------------------------
Print Title:
---------------------------------
ADVANCE HEALTH CARE, INC.
a Delaware corporation
By:
------------------------------------------
Print Name:
----------------------------------
Print Title:
---------------------------------
The undersigned, being the Representative designated in Section 7.4 of
the foregoing Agreement and Plan of Merger, agrees to serve as Representative
and to bound by the terms of such Agreement pertaining thereto.
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Xxxxx X. Xxxxxxx
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