MERGER AGREEMENT
EXECUTION
COPY
This
Merger Agreement (this “Agreement") is entered into as of September 23, 2009 by
and among PawsPlus,
Inc. a Delaware corporation ("PAWSPLUS"),
PawsPlus Acquisition Corporation, a
Delaware corporation which is a
wholly-owned subsidiary of PawsPlus ("Acquisition"), and Animal
Health Associates, Inc., a Florida corporation (together with its affiliated
companies, "AHAI").
RECITALS
A. AHAI
and PAWSPLUS desire to consummate a merger (the "Merger"), wherein
the shareholders of AHAI
will exchange all of the issued and outstanding
common stock of AHAI for newly issued shares of common stock of
PAWSPLUS, Acquisition will merge with and
into AHAI, and AHAI will become a wholly-owned
subsidiary of PAWSPLUS.
B. The
parties desire to structure the transactions contemplated herein so that, after
the Merger as provided herein,
the current shareholders of AHAI
(defined in Section 3.5 below) will hold
Series A Preferred Shares convertible into approximately 30,006,894 shares of
the common stock of PAWSPLUS, constituting approximately 33% of the issued and
outstanding shares of PAWSPLUS (on a fully converted basis), and the
current shareholders of PAWSPLUS will hold approximately 61,225,531
shares of PAWSPLUS (on a fully converted basis),
constituting approximately 67% of the issued
and outstanding of PAWSPLUS (on a fully converted
basis).
C. It
is the intent of
the parties that the Merger qualify as
a corporate reorganization under Section 368(a)(2)(E) of the Internal Revenue
Code of 1986, as amended (the "Code").
AGREEMENT
IN
CONSIDERATION of the mutual promises and covenants herein, including the
recitals, which form a part of this Agreement, the parties hereby agree as
follows:
1. MERGER
AND EXCHANGE OF SECURITIES.
1.1 CONSUMMATION
OF MERGER. If this Agreement is duly adopted by the holders of the
requisite number of shares, in accordance with the applicable laws and subject
to the provisions hereof, and the conditions set forth in Sections 6 and 7 are
met or waived, AHAI and Acquisition shall promptly enter into and file Articles
of Merger, under which Acquisition shall merge with and into AHAI, and AHAI
shall be the surviving corporation. The Merger shall be consummated
at the time of filing the Articles of Merger ("the Effective Time"). For
accounting purposes, the Merger shall be effective at the conclusion of the last
day of the month preceding the Effective Time.
1.2 EXCHANGE
OF SHARES AT THE EFFECTIVE TIME:
1.2.1
EXCHANGE OF CERTIFICATES. Each holder of a certificate or certificates representing shares
of AHAI Common Stock ("Common") upon presentation and
surrender of
such certificate or certificates to
PAWSPLUS, shall be entitled to receive the consideration
set forth herein. Upon such presentation, surrender, and exchange as
provided in this Section 1.2, certificates representing shares of
AHAI previously held shall be canceled. Until
so presented and surrendered, each certificate which represented issued and
outstanding shares of AHAI at the Effective Time shall be deemed for all
purposes to evidence the right to receive the consideration set forth in Section
1.2.2. If a certificate representing shares of AHAI common stock has been lost,
stolen, mutilated or destroyed, PAWSPLUS shall require the submission of an
indemnity agreement and may require the submission of a bond in lieu of such
certificate.
1.2.2
CONSIDERATION FOR SHARES. The holders of the Common Stock (the
“Common Holders,” each a "Common Holder") shall receive in exchange for each one
share of Common Stock approximately six shares of PAWSPLUS common
stock.
1.2.3
FRACTIONAL SHARES. If
the number of common shares
determined for a Common Holder
as provided in Section 1.2.2 results in
a fractional share, the number of common shares to be received shall be rounded
to the next whole number of shares.
1.2.4 REGISTRATION
OF SHARES. The offer and sale of the PAWSPLUS common stock shall be
issued pursuant to an exemption from registration under
the Securities Act of 1933 (the "Securities Act") and applicable
state securities laws.
1.3 COMMON
STOCK OPTIONS OF PAWSPLUS SHAREHOLDERS. The holders of
existing PAWSPLUS options, as set forth on Schedule 4.3 hereto,
shall after the Effective Time, continue to hold such options, subject to the
existing PAWSPLUS Option Plan and the Agreement to amend capital
structure.
2. CLOSING
AND CLOSING DOCUMENTS.
2.1 CLOSING.
The transactions contemplated by this Agreement shall be completed at a closing
("xxx Xxxxxxx") on a closing date ("the Closing Date") which shall be as soon as
possible after all shareholder approvals are obtained in accordance with law and
as set forth in this Agreement, with the consummation of the
Merger, as provided in Section 1.1, to take place as soon as
practicable thereafter.
2.2 DOCUMENT
DELIVERIES AND PROCEDURES FOR CLOSING. On the Closing Date, all of
the documents to be furnished to AHAI and
PAWSPLUS, including the documents to be
furnished pursuant to Article VII of
this Agreement, shall be delivered to Law
Offices of Xxxxxx X. Xxxx, Esq. counsel to PAWSPLUS, to be
held in escrow until the Effective Time or the date of termination of this
Agreement, whichever first
occurs, and thereafter shall be
promptly distributed to the parties as their interests may
appear.
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2.3 AHAI
CLOSING DOCUMENTS. AHAI shall deliver the following documents (collectively, the
"AHAI Closing Documents"):
2.3.1
ARTICLES OF MERGER. The Articles of Merger to be filed with the State
of Delaware, executed by AHAI;
2.3.2
AHAI SHARE CERTIFICATES. Certificates representing all of the
outstanding shares of AHAI common stock or indemnity agreements or bonds as
provided in Section 1.2.1;
2.3.3
GOOD STANDING CERTIFICATE. A certificate issued by the Florida
Secretary of State indicating that AHAI is qualified and in good standing within
such jurisdiction;
2.3.4
CERTIFICATE OF SECRETARY OF AHAI. A certificate executed by the
secretary of AHAI
and attaching the resolutions of the
AHAI Board of Directors and the resolutions of
the shareholders of AHAI authorizing the transactions
herein contemplated.
2.3.5
AHAI OFFICER'S CERTIFICATE. A certificate dated as of the Closing
Date executed by a duly authorized officer of
AHAI certifying that
all necessary actions have been taken
by AHAI's shareholders and directors to
authorize the transactions contemplated by this
Agreement and that
all representation and warranties made
by AHAI in the Agreement are complete and correct in all
material respects as of the Closing Date as if made on the Closing
Date;
2.3.6
LEGAL OPINION. A Legal Opinion of Xxxx, Tobaygo & Sisek, 0000
Xxxxx Xxxx, Xxxxx 000, Xxxxxxxx, XX 00000 counsel to AHAI with respect to such
other matters as is customary in transactions of this nature.
2.3.7 OTHER
DOCUMENTS AND INSTRUMENTS. Such other documents and instruments as
may be reasonably required to effect the transactions contemplated by this
Agreement.
2.4 PAWSPLUS
AND ACQUISITION CLOSING DOCUMENTS. At the Closing, PAWSPLUS and Acquisition
shall deliver or cause to be delivered the following documents (collectively,
the "PAWSPLUS Closing Documents"):
2.4.1 ARTICLES
OF MERGER. The Articles of Merger to be filed with the State of
Delaware, executed by Acquisition;
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2.4.2
PAWSPLUS SHARE CERTIFICATES. The certificates representing the shares of
PAWSPLUS stock to be delivered to the AHAI shareholders at the Effective Time in
exchange for their AHAI stock as provided herein;
2.4.3
GOOD STANDING CERTIFICATES. Certificates issued by the
Delaware Secretary of State indicating that PAWSPLUS
and Acquisition are each qualified and in good
standing within such jurisdiction;
2.4.4 CERTIFICATE
OF SECRETARY OF PAWSPLUS. A certificate executed by
the secretary of PAWSPLUS
and attaching the resolutions of the
PAWSPLUS Board of Directors the transactions herein
contemplated.
2.4.5
PAWSPLUS OFFICER'S CERTIFICATE. A certificate dated as of the Closing
Date executed by a duly authorized officer of
PAWSPLUS certifying that all
necessary actions have been taken by
PAWSPLUS's shareholders and directors to
authorize the transactions contemplated by this Agreement and that all
representations and warranties made by PAWSPLUS
in the Agreement are complete and correct in
all material respects as of
the Closing Date as if made on the Closing
Date;
2.3.6 LEGAL OPINION. A
legal opinion letter (the "Legal
Opinion") signed by Xxxxxx X. Xxxx, Esq., 000 Xxxx 00xx Xxxxxx,
Xxxxx 0000, Xxx Xxxx, XX 00000 regarding the total amount
of stock of PAWSPLUS that will be issued and outstanding
following the Merger and such other opinions as are customary in transactions of
this nature; and
2.3.7
OTHER DOCUMENTS AND INSTRUMENTS. Such other documents and instruments
as may be reasonably required to effect the transactions contemplated by this
Agreement.
3. REPRESENTATIONS
AND WARRANTIES OF AHAI.
AHAI
represents and warrants to PAWSPLUS that the statements contained in this
Section 3 are correct and complete as of the date of this
Agreement.
3.1 ORGANIZATION
OF AHAI. AHAI is a corporation duly organized, validly
existing, and in good standing under the laws of the State of
Florida. AHAI has all
the requisite power and authority to own, lease and operate all
of its properties and assets and to carry on its business as currently conducted
and as proposed to be conducted. AHAI is duly licensed or
qualified to do business and is in good standing in each jurisdiction in which
the nature of the business conducted by it makes such licensing
or qualification necessary and where the failure to be
so qualified would, individually or
in the aggregate, have a Material Adverse
Effect upon it. As used in this Agreement, the term "Material Adverse
Effect" with respect to any party, shall mean any change or effect
that is reasonably likely to
be materially adverse to
the business, operations,
properties, condition (financial or
otherwise), assets or liabilities of such party and such party's
subsidiaries taken as a whole. Except for [Georgia subsidiary] AHAI
does not own, directly or indirectly, any capital stock or other equity interest
in any corporation, partnership or other entity.
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3.2 AUTHORIZATION. Subject
to the approval of its shareholders, AHAI has
full power and authority (including full corporate power
and authority) to
execute and deliver this Agreement and
the AHAI Closing
Documents and to perform its obligations hereunder and thereunder. This
Agreement constitutes, and the AHAI Closing Documents will constitute, valid and
legally binding obligations of AHAI, enforceable in accordance with their
respective terms and conditions.
3.3 NONCONTRAVENTION. Neither
the execution and the delivery of this Agreement or the
AHAI Closing Documents, nor
the consummation of the
transactions contemplated hereby or thereby
by AHAI, will (i) violate any
constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to
which AHAI is subject or
any provision of its certificate of
incorporation or bylaws, or (ii) conflict with, result in
a breach of, constitute a default under, result
in the acceleration of, create in any party the right
to accelerate, terminate modify, or
cancel, or require any notice under any
agreement, contract, lease, license, instrument, or other arrangement
to which AHAI is a party or
by which it is bound or to which any of its
assets is subject. AHAI does not need to give any notice to, make any
filing with, or obtain any authorization, consent, or approval of any government
or governmental agency in order for the parties to consummate the transactions
contemplated by this Agreement.
3.4 DISCLOSURES. The representations and
warrants contained in this Section 3 do not contain any untrue
statement of a material fact or omit to
state any material fact necessary in order to make the statements and
information contained in this Section 3 not misleading.
3.5 CAPITALIZATION. The
authorized capital stock of AHAI consists of 5,000,000 shares of common stock,
of $.001 par value, of which 5,000,000 shares of Common Stock are issued and
outstanding and the shareholders and numbers of shares of common stock held by
each shareholder are as set forth on Schedule
3.5. All of the outstanding shares of AHAI common stock have
been duly and validly authorized and issued.
3.6 FINANCIAL
STATEMENTS. AHAI shall have provided to PAWSPLUS its unaudited
financial statements as at December 31, 2008 and for the two years then ending
and interim financial statements for the three months ending June 30, 2009 (the
“AHAI Financial Statements”). The AHAI Financial Statements provided
have been prepared from, and is in accordance with, the books and records of
AHAI, complies with all material respects with applicable accounting
requirements with respect thereto, has been prepared in
accordance with U.S. generally accepted accounting principles
("U.S. GAAP") applied on a consistent basis during the
periods involved (except as may be indicated in the
notes thereto) and fairly presents in all material respects
the consolidated results of operations and cash
flows (and changes in financial position, if any) of AHAI, as at the
date(s) thereof or for the period(s) presented therein. Copies of the
AHAI Financial Statements are attached as Schedule
3.6.
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3.7 ABSENCE
OF MATERIAL CHANGE. Since June 30, 2009, there has been no change in
the business, operations, financial condition or liabilities of AHAI as stated
in the AHAI Financial Statements that would result in a Material Adverse Effect
on AHAI.
3.8 LITIGATION. There
are no actions, suits, claims, inquiries, proceedings or
investigations before any
court, tribunal, commission, bureau,
regulatory, administrative or governmental agency, arbitrator, body or authority
pending or, to the knowledge of AHAI, threatened against AHAI which would
reasonably be expected to result in any liabilities, including
defense costs, in excess of $1,000 in the aggregate. AHAI is not the
named subject of any order, judgment or decree and is not in default with
respect to any such order, judgment or decree.
3.9 TAXES
AND TAX RETURNS. AHAI has timely and correctly filed tax
returns and reports (collectively, "Returns") required by
applicable law to be filed (including, without limitation, estimated tax
returns, income tax returns, excise tax returns, sales tax
returns, use tax returns, property tax returns,
franchise tax returns, information returns
and withholding, employment and payroll tax
returns) and all Returns were (at the time they were filed) correct
in
all material respects, and have paid all taxes, levies, license and
registration fees, charges or withholdings of any nature whatsoever reflected on
Returns to be owed and which have become due and payable except as set forth on
Schedule 3.9
“None” on Schedule. Any unpaid U.S. Federal income taxes, interest
and penalties of AHAI do not exceed $5,000 in the aggregate.
3.10 COMPLIANCE
WITH APPLICABLE LAW.
3.10.1 AHAI
holds all licenses, certificates, franchises,
permits and
other governmental authorizations ("Permits") necessary for
the lawful conduct of its business and the Permits are in full force and effect,
and AHAI is in all material respects complying therewith, except
where the failure to possess or comply with the Permits would not have, in the
aggregate, a Material Adverse Effect on AHAI. A listing of
such Permits is hereto as Schedule
3.10.
3.10.2 AHAI
is and for the past five years has been in
compliance with all foreign, federal, state and local laws, statutes,
ordinances, rules, regulations and orders applicable to the
operation, conduct or ownership of its business or properties except
for any noncompliance which is not reasonably likely to have, in the
aggregate, a Material Adverse Effect on AHAI.
3.11 AFFILIATE
TRANSACTIONS.
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3.11.1
Except as set forth on Schedule 3.11 hereto,
AHAI has not engaged in, and is not currently obligated to engage in (whether in
writing or orally), any transaction with any Affiliated Person (as defined
below) involving aggregate payments by or to AHAI of $10,000 U.S. or
more.
3.11.2
For purposes of this Section 3.11, "Affiliated Person" means:
a. a
director, executive officer
or Controlling Person (as defined below) of
AHAI;
b. a
spouse of a director, executive officer
or Controlling Person of AHAI;
c. a
member of the immediate family of a director, executive
officer, or Controlling Person of AHAI who has the same home as such
person;
d. any
corporation or organization (other than AHAI) of which a
director, executive officer, chief
financial officer, or a person performing
similar functions or is
a Controlling Person of
such other corporation or
organization;
e. any
trust or estate in which a director, executive officer,
or Controlling Person of AHAI or the spouse of
such person has a substantial
beneficial interest or as to which such person or his
spouse serves as trustee or in a
similar fiduciary capacity, and
for purposes of this Section 3.11,
"Controlling Person" means any person or
entity which, either directly or
indirectly, or acting in concert with one or
more other persons or entities owns, controls
or holds with power to vote, or holds
proxies representing ten percent or more of the
outstanding common stock or equity securities.
3.12 LIMITED REPRESENTATIONS
AND WARRANTIES. Except for the representations and warranties
of PAWSPLUS expressly set forth in Section 4, AHAI has not relied upon any
representation and warranty made by or on behalf of AHAI in making its
determination to enter into this Agreement and consummate the transactions
contemplated by this Agreement.
3.13 DISCLOSURE. No representation or warranty made by AHAI
shareholder contained in
this Agreement, and
no statement contained in the Schedules delivered by AHAI
hereunder, contains any untrue statement of a material fact or omits any
material fact necessary in order to make a statement herein or therein, in light
of the circumstances under which it is made, not misleading.
3.14 REAL
PROPERTY. AHAI does not own or lease, directly or indirectly,
any real property except as shown of Schedule
3.14.
3.15 ENVIRONMENTAL MATTERS. AHAI
does not have any financial liability under any environmental laws.
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3.16 INTELLECTUAL
PROPERTY. Except as shown on Schedule 3.16 AHAI
does not own or lease, directly or indirectly, any Intellectual
Property. "Intellectual Property", for purposes of this agreement,
shall mean: patents, patent applications, trademarks, trademark
registrations, applications for
trademark registration, trade names, service
marks, registered Internet domain
names, licenses and other agreements with
respect to any of
the foregoing to which AHAI
is licensor or licensee. In
addition, there are no pending or, to AHAI’s knowledge,
threatened, claims against AHAI by
any person as to any of
the Intellectual Property, or their use, or
claims of infringement by AHAI on the rights of any person
and no valid basis exists for any such claims.
3.17 CONTRACTS
AND AGREEMENTS. Except as shown on Schedule 3.17, AHAI
is not a party to or bound by any commitment, contract, agreement or other
instrument which involves or could involve aggregate future payments by AHAI of
more than $1,000, (ii) AHAI is not a party to or bound by any commitment,
contract, agreement or other instrument which is material to the business,
operations, prospective assets or financial condition of AHAI and (iii) no
commitment, contract, agreement or other instrument, other than charter
documents, to which AHAI is a party or by which AHAI is bound, limits the
freedom of AHAI to compete in any line of business with any
person. AHAI is not in default of any contract, agreement or
instrument.
4.
REPRESENTATIONS AND WARRANTIES OF PAWSPLUS ACQUISTION AND VETCO AND
ACQUISITION.
PAWSPLUS
ACQUISITION AND VETCO and Acquisition represent and warrant to AHAI that the
statements contained in this Section 4 are correct and complete as of the date
of this Agreement.
4.1 ORGANIZATION.
Each of PAWSPLUS and Acquisition is a corporation duly organized, validly
existing, and in good standing under the laws of the State of
Delaware, PAWSPLUS and Acquisition has all the requisite
power and authority to own, lease and operate all of its properties
and assets ant to carry on its business
as currently conducted and as proposed to
be conducted. Each of PAWSPLUS and
Acquisition is duly licensed or qualified to do business and is in good standing
in each jurisdiction in which the nature of the
business conducted by it makes
such licensing or qualification necessary and where
the failure to be so
qualified would, individually or in
the aggregate, have a Material Adverse Effect
upon it.
4.2 AUTHORIZATION
OF TRANSACTIONS. Each of PAWSPLUS and Acquisition has full power
and authority to
execute and deliver this Agreement and
the PAWSPLUS Closing Documents to which any
PAWSPLUS shareholder is a party and to
perform all obligations hereunder and
thereunder. This Agreement constitutes, and the PAWSPLUS Closing
Documents will constitute, the valid and legally binding obligation of PAWSPLUS,
enforceable in accordance with their respective terms and
conditions.
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4.3 CAPITALIZATION.
The authorized capital stock of PAWSPLUS consists of
225,000,000 shares of common stock, .$.0001 par value, of which
2,048,936 are issued and outstanding, and 225,000,000
shares of preferred stock, par value $0.0001 per share, 988,388 of which are
issued and outstanding. All issued and outstanding shares of PAWSPLUS stock have
been duly authorized and validly issued, and are fully paid and
non-assessable. All of the outstanding shares
of common stock (and options to purchase common
stock and other outstanding securities of
PAWSPLUS have been duly and validly issued
in compliance with federal and state securities
laws. Except as set forth herein and on Schedule 1.3 hereto,
and as set forth in this Agreement, there are no outstanding or
authorized subscriptions, options, warrants,
agreements, obligations, understandings or rights of any
kind giving the holder the right
to purchase or otherwise receive or
have issued to such
holder any common stock or other securities or
PAWSPLUS or any securities or obligations
convertible into, any shares of capital stock or other securities of PAWSPLUS,
and there are no dividends which
have accrued or been declared but
are unpaid on the capital stock of PAWSPLUS. There is no outstanding or
authorized stock appreciation, phantom stock or similar rights with respect to
PAWSPLUS.
4.4 SUBSIDIARIES. Except for Acquisition
and VETCO Hospitals,
Inc., PAWSPLUS does not own,
directly or indirectly, any capital stock
or other equity interest in any corporation, partnership
or other entity.
4.5 OWNERSHIP
OF PAWSPLUS SHARES. Each PAWSPLUS shareholder owns and holds of
record that number of PAWSPLUS Shares shown on Schedule 4.5. As of
the date hereof, all of the shares of the issued and outstanding stock of
PAWSPLUS are "free-trading" by virtue of either (i) an exemption from
the Securities Act, or (ii) having been registered
pursuant to the Securities Act.
4.6 NONCONTRAVENTION. Neither
the execution and the delivery of
this Agreement or the
PAWSPLUS Closing Documents, nor the consummation of
the transactions contemplated hereby
or thereby, by PAWSPLUS
or Acquisition will (i) violate
any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which
PAWSPLUS Acquisition is subject, or
(ii) conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any party the right
to accelerate, terminate modify, or cancel, or require any notice
under any agreement, contract, lease, license,
instrument, or other arrangement to which
agreement, contract, lease, license, instrument, or
other arrangement to which PAWSPLUS or such PAWSPLUS shareholder is a
party or by which PAWSPLUS or such Acquisition is bound or to which PAWSPLUS or
Acquisition assets is subject. Neither PAWSPLUS nor any Acquisition needs to
give any notice to, make any filing with, or obtain any authorization, consent,
or approval of any government or governmental agency in order for the parties to
consummate the transactions contemplated by this Agreement.
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4.7 LITIGATION. Except
as shown on Schedule
4.7, there are no actions, suits, claims, inquiries, proceedings or
investigations before any court, tribunal, commission, bureau,
regulatory, administrative or governmental agency, arbitrator, body or authority
pending or, to the knowledge of PAWSPLUS or VETCO, threatened against PAWSPLUS
which would reasonably be expected to result in any liabilities, including
defense costs, in excess of $1,000 in the aggregate. Neither PAWSPLUS
or VETCO is not the named subject of any order, judgment or decree and is not in
default with respect to any such order, judgment or decree.
4.8 TAXES
AND TAX RETURNS. PAWSPLUS has timely and correctly filed
tax returns and reports (collectively, "Returns") required
by applicable law to be filed (including, without limitation, estimated tax
returns, income tax returns, excise tax returns, sales tax
returns, use tax returns, property tax returns,
franchise tax returns, information returns
and withholding, employment and payroll tax
returns) and all Returns were (at the time they were filed) correct
in
all material respects, and have paid all taxes, levies, license and
registration fees, charges or withholdings of any nature whatsoever reflected on
Returns to be owed and which have become due and payable except as
set forth on Schedule
4.8. Any unpaid U.S. Federal income taxes, interest and
penalties of PAWSPLUS do not exceed $5,000 in the aggregate.
4.9 COMPLIANCE
WITH APPLICABLE LAW.
4.09.1 PAWSPLUS holds all licenses, certificates, franchises,
permits and
other governmental authorizations ("Permits") necessary for
the lawful conduct of its business and the Permits are in full force and effect,
and PAWSPLUS is in all material respects complying therewith, except
where the failure to possess or comply with the Permits would not have, in the
aggregate, a Material Adverse Effect on PAWSPLUS.
4.09.2 PAWSPLUS
is and for the past five years has been in
compliance with all foreign, federal, state and local laws, statutes,
ordinances, rules, regulations and orders applicable to the
operation, conduct or ownership of its business or properties except
for any noncompliance which is not reasonably likely to have, in the
aggregate, a Material Adverse Effect on
PAWSPLUS.
4.10 CONTRACTS
AND AGREEMENTS. Except as shown on Schedule 4.10, neither PAWSPLUS or
VETCO is not a party to or bound by any
commitment, contract, agreement or
other instrument which involves or could
involve aggregate future payments by PAWSPLUS or VETCO of
more than $1,000, (ii) neither PAWSPLUS or VETCO is not a party to or
bound by any commitment, contract, agreement or
other instrument which is material to the
business, operations, properties, assets or financial
condition of PAWSPLUS, and (iii) no commitment, contract, agreement or other
instrument, other than charter documents, to which PAWSPLUS or VETCO
is a party or by which PAWSPLUS or VETCO is bound, limits
the freedom of PAWSPLUS or VETCO to compete in any line
of business or with any person. PAWSPLUS or
VETCO is
not in default on any contract, agreement or other
instruments.
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4.11 AFFILIATE
TRANSACTIONS.
4.11.1
Except as set forth on Schedule 4.11 hereto,
neither PAWSPLUS or VETCO has not engaged in, and is not currently obligated to
engage in (whether in writing or orally), any transaction with any Affiliated
Person (as defined below) involving aggregate payments by or to PAWSPLUS of
$10,000 U.S. or more.
4.11.2
For purposes of this Section 4.11, "Affiliated Person" means:
a. a
director, executive officer
or Controlling Person (as defined below) of
PAWSPLUS;
b. a
spouse of a director, executive officer
or Controlling Person of PAWSPLUS;
c. a
member of the immediate family of a director, executive
officer, or Controlling Person of PAWSPLUS or VETCO who has the same home as
such person;
d. any
corporation or organization (other than PAWSPLUS or VETCO) of which a
director, executive officer, chief
financial officer, or a person performing
similar functions or is
a Controlling Person of
such other corporation or
organization;
e. any
trust or estate in which a director, executive officer,
or Controlling Person of PAWSPLUS or VETCO or
the spouse of such person has
a substantial beneficial interest or as to which such
person or his spouse serves as trustee or in a
similar fiduciary capacity, and
for purposes of this Section 4.14,
"Controlling Person" means any person or
entity which, either directly or
indirectly, or acting in concert with one or
more other persons or entities owns, controls
or holds with power to vote, or holds
proxies representing ten percent or more of the
outstanding common stock or equity securities.
4.12 LIMITED REPRESENTATIONS
AND WARRANTIES. Except for the representations and warranties
of AHAI expressly set forth in Section 3, PAWSPLUS has not relied upon any
representation and warranty made by or on behalf of AHAI in making its
determination to enter into this Agreement and consummate the transactions
contemplated by this Agreement.
4.13 DISCLOSURE. No representation or warranty made by PAWSPLUS or
VETCO contained in this Agreement, and
no statement contained in the Schedules delivered by
PAWSPLUS or VETCO hereunder, contains any untrue statement of a material fact or
omits any material fact necessary in order to make a statement herein or
therein, in light of the circumstances under which it is made, not
misleading.
4.14 REAL
PROPERTY. Neither PAWSPLUS or VETCO does not own or lease,
directly or indirectly, any real property.
- 11 -
4.15 ENVIRONMENTAL MATTERS. Neither
PAWSPLUS or VETCO does not have any financial liability under any environmental
laws.
4.16 INTELLECTUAL
PROPERTY. Except as shown on Schedule 4.16, PAWSPLUS or VETCO does
not own or lease, directly or indirectly, any Intellectual
Property. "Intellectual Property", for purposes of this agreement,
shall mean: patents, patent applications, trademarks, trademark
registrations, applications for
trademark registration, trade names, service
marks, registered Internet domain
names, licenses and other agreements with
respect to any of
the foregoing to which PAWSPLUS
is licensor or licensee. In
addition, there are no pending or, to such
Warranting Shareholder's knowledge,
threatened, claims against PAWSPLUS by
any person as to any of
the Intellectual Property, or their use, or
claims of infringement by PAWSPLUS on the rights of any
person and no valid basis exists for any such claims.
4.17 FINANCIAL
STATEMENTS. PAWSPLUS shall have provided to AHAI the unaudited
financial statements of VETCO as at December 31, 2008 and for the two years then
ending and interim financial statements for the three months ending March 31,
2009 (collectively, the “VETCO Financial Statements”). The VETCO
Financial Statements provided have been prepared from, and in accordance with
the books and records of VETCO, complies with all material respects with
applicable accounting requirements with respect thereto, have been prepared in
accordance with U.S. generally accepted accounting principles (“US GAAP”)
applied on a consistent basis during the
periods involved (except as may be indicated in the
notes thereto) and fairly presents in all
material respects the consolidated results of
operations and cash flows (and changes in financial
position, if any) of VETCO, as at the date(s) thereof or for the
period(s) presented therein. Copies of the VETCO Financial Statements
are attached as Schedule
4.17.
5. COVENANTS
OF THE PARTIES.
5.1 CONDUCT
OF THE BUSINESS OF AHAI. During the period from the date of this Agreement to
the Closing Date, AHAI will conduct its business and engage in transactions only
in the ordinary course consistent with past practice. During such period, AHAI
will use its best efforts to (a) preserve its business
organization intact, and (b) maintain its
current status as a company. Without limiting the
generality of the foregoing, AHAI agrees that from the
date of this Agreement to the Closing Date, except as
otherwise consented to or approved by
PAWSPLUS in writing (which consent or approval shall not
be unreasonably withheld, delayed or conditioned) or as
permitted or required by this Agreement or as required by law, AHAI will
not:
5.1.1
grant any severance or termination pay to or enter into or amend
any employment agreement with, or increase the
amount of payments or fees to, any of its employees, officers or directors other
than salary increases to employees consistent with past increases;
5.1.2
make any capital expenditures in excess of $1,000;
- 12 -
5.1.3
guarantee the obligations of any person;
5.1.4
acquire assets other than those necessary in the conduct of its business in the
ordinary course;
5.1.5
sell, transfer, assign, encumber or otherwise dispose of assets with a value in
excess of $10,000;
5.1.6
enter into or amend or terminate any long term (one year or more) contract
(including real property leases);
5.1.7
enter into any contract that calls for the payment by AHAI of $10,000 or more,
or enter into any amendment to any contract that increases
PAWSPLUS's obligation to pay any sum or sums by $10,000 or more, after the date
of this Agreement;
5.1.8
engage or participate in any material transaction or incur or sustain
any material obligation otherwise than in the ordinary
course of business;
5.1.9 contribute
to any benefit plans on behalf of employees or service providers of
AHAI;
5.1.10 hire any full-time employees or enter into any
employment contracts that provide other
than an "at will" employer-employee relationship;
5.1.11
acquire any real property; or
5.1.12
agree to do any of the foregoing.
5.2 NO
SOLICITATION. During the period beginning on the date of
this Agreement and ending on
the Closing Date, neither AHAI nor
any of its
directors, officers, shareholders, representatives, agents
or other persons controlled by any of them,
shall, directly or indirectly encourage or solicit, or
hold discussions or negotiations with, or
provide any information to, any persons, entity or group
other
than PAWSPLUS concerning any merger, sale
of substantial assets not in the ordinary course
of business, sale of shares of capital stock or similar
transactions involving AHAI. AHAI will promptly communicate to AHAI
the identity of
any interested or inquiring party, all
relevant information surrounding the interest
or inquiry, as well as the terms of any proposal that AHAI may
receive in respect of any such transaction.
5.3 ACCESS
TO PROPERTIES AND RECORDS; CONFIDENTIALITY.
5.3.1
ACCESS TO PAWSPLUS AND VETCO RECORDS; CONFIDENTIALITY OF PAWSPLUS
RECORDS.
- 13 -
(a)
PAWSPLUS shall permit AHAI and its representatives reasonable access to its
properties and shall disclose and make available to AHAI all books, papers and
records relating to the assets, stock, ownership, properties, obligations,
operations and liabilities of PAWSPLUS AND VETCO, including but not limited to,
all books of account (including the general ledger), tax records, minute books
of directors and stockholders meetings, organizational documents, bylaws,
material contracts and agreements, filings with any regulatory authority,
accountants work papers, litigation files, plans affecting employees, and any
other business activities or prospects in which AHAI may have a reasonable
interest, in each case during normal business hours and upon reasonable notice.
PAWSPLUS shall not be required to provide access to or disclose information
where such access or disclosure: (a) would jeopardize the attorney-client
privilege with respect to the negotiation of the transactions contemplated
herein or any other similar transaction within the past year involving a merger
of PAWSPLUS AND VETCO or sale of substantially all of its assets; or (b) would
contravene any law, rule, regulation, order, judgment, decree or binding
agreement entered into prior to the date of the Agreement. The parties will use
all reasonable efforts to make appropriate substitute disclosure arrangements
under circumstances in which the restrictions of the preceding sentence
apply.
(b) All information furnished by PAWSPLUS to AHAI or the
representatives or affiliates of AHAI pursuant to, or
in any negotiation in connection with, this Agreement
shall be treated as the sole property of PAWSPLUS until consummation of the
Merger and, if the Merger shall not occur, AHAI and its
affiliates, agents and advisors shall upon
written request return to PAWSPLUS
all documents or other materials
containing, reflecting, referring to such
information, and shall keep confidential all such information and
shall not disclose or use such information
for competitive purposes. The obligation to keep such
information confidential shall not apply to (a)
any information which (i) AHAI
can establish by evidence was already in its
possession (subject to no obligation of confidentiality) prior to the disclosure
thereof to PAWSPLUS; (ii) was then generally known to the public; (iii) becomes
known to the public other than as a result of actions by AHAI or by
the directors, officers, employees, agents or representatives of
AHAI; or (iv) was disclosed to AHAI, or to the directors, officers, employees or
representatives of AHAI, solely by a third party not bound by
any obligation of confidentiality; or (b)
disclosure in accordance with the
federal securities laws, a federal banking laws, or
pursuant to an order of a court or agency of competent
jurisdiction.
5.3.1 ACCESS
TO AHAI RECORDS; CONFIDENTIALITY OF AHAI RECORDS.
(a) AHAI
shall permit PAWSPLUS and its representatives reasonable access to
its properties and shall disclose and make
available to PAWSPLUS all books, papers and records relating to the assets,
stock, ownership,
properties, obligations, operations and liabilities of AHAI,
including but not limited to, all
books of account (including the
general ledger), tax records, minute books of directors and
stockholders meetings, organizational documents, bylaws, material
contracts and agreements, filings with any regulatory authority,
accountants work papers, litigation files, plans
affecting employees, and any
other business activities or prospects in which PAWSPLUS
may have reasonable interest, in each case during normal
business hours and upon reasonable notice. AHAI shall not
be required to provide access to
or disclose information where such access
or disclosure: (a)
would jeopardize the attorney-client privilege with respect to the
negotiation of
the transactions contemplated herein or any other
similar transaction within the past year involving a merger of AHAI
or sale of substantially all of its assets; or (b) would contravene any law,
rule, regulation, order, judgment, decree
or binding agreement entered into prior to the date of
the Agreement. The parties will use
all reasonable efforts to make appropriate substitute disclosure
arrangements under circumstances in
which the restrictions of the preceding
sentence apply.
- 14 -
(b) All information furnished by AHAI to PAWSPLUS or the
representatives or affiliates of AHAI pursuant to, or
in any negotiation in connection with, this Agreement
shall be treated as the sole property of AHAI
until consummation of the Merger and, if the
Merger shall not occur, PAWSPLUS and
its affiliates, agents and advisors shall
upon written request return to AHAI
all documents or other materials
containing, reflecting, referring to such
information, and shall keep confidential all such
information and shall not disclose of use such information for
competitive purposes. The obligation to keep of
such information confidential shall not apply
to (a) any information which (i) PAWSPLUS can establish by
evidence was already in its possession (subject to no
obligation of confidentiality) prior to the disclosure
thereof to AHAI; (ii) was then generally known to the public; (iii)
becomes known to the public other than as a result of actions by
PAWSPLUS or by the directors, officers, employees, agents or representatives of
PAWSPLUS; or (iv) was disclosed to PAWSPLUS, or to the
directors, officers, employees
or representatives of
PAWSPLUS, solely by a third party not bound by
any obligation of confidentiality; or (b) disclosure in accordance with the
federal securities laws, a
federal banking laws, or pursuant to an order
of a court or agency of competent jurisdiction.
5.4 REGULATORY
MATTERS.
5.4.1 The
parties will cooperate with each other and use all
reasonable efforts to prepare all necessary documentation, to
effect all necessary filings and to obtain all necessary permits,
consents, approvals, and authorizations of
all third parties and governmental bodies necessary to
consummate the transactions contemplated by this
Agreement including, without
limitation, those that may be required from the SEC, other regulatory
authorities, or PAWSPLUS's shareholders. PAWSPLUS and AHAI
shall each have the right to review reasonably in advance all
information relating to PAWSPLUS or AHAI, as the case may
be, and any of their respective subsidiaries, together
with any other
information reasonably requested, which appears
in any filing made with or
written material submitted to
any governmental body
in connection with the
transactions contemplated by
this Agreement. AHAI shall bear all expenses associated
with SEC filings.
5.4.2
PAWSPLUS and
AHAI will promptly furnish each
other with copies
of written communications received by
PAWSPLUS and AHAI or any of their
respective subsidiaries from, or delivered
by any of the foregoing to, any governmental body in
respect of the transactions contemplated by this Agreement.
5.5 FURTHER
ASSURANCES. Subject to the terms
and conditions of this Agreement, each of the
parties agrees to use all commercially reasonable
efforts to take, or cause to be
taken, all 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 by this
Agreement.
5.6 PUBLIC
ANNOUNCEMENTS. Prior to the Closing, no
party will issue or distribute any information to
its shareholders or employees other than as required to conduct their
respective shareholders’ meetings, any news releases or
any
other public information disclosures with respect to
this Agreement or any of the transactions contemplated by this
Agreement without the consent of the other parties or their
designated representative, except as may be otherwise
required by law.
5.7 APPROVAL
OF MERGER BY AHAI SHAREHOLDERS. The Common Holders of AHAI, as a
condition to receiving such stock, shall approve of the Merger, thus
relinquishing any appraisal rights under Florida law.
6.
CONDITIONS
PRECEDENT TO AHAI'S OBLIGATIONS.
The
obligations of AHAI to consummate the transactions contemplated by this
Agreement are subject to satisfaction of the following conditions at or before
the Closing Date and may be waived only in writing by AHAI.
6.1 PAWSPLUS’S
COVENANTS, REPRESENTATIONS AND
WARRANTIES. All the
covenants, terms and conditions of
the Agreement to
be complied with or performed by PAWSPLUS at or
before the Closing Date shall have been complied with and performed
in all respects. The representations and warranties made by PAWSPLUS in this
Agreement shall be complete and correct at and as of the Closing Date with the
same force and effect as though such representations and warranties had been
made at and as of the Closing Date.
6.2 DELIVERY
OF DOCUMENTS BY PAWSPLUS. PAWSPLUS shall have duly executed and delivered, or
caused to be executed and delivered the PAWSPLUS Closing Documents.
6.3 OTHER
APPROVALS. All authorizations, consents, orders or
approvals of any United States federal or
state governmental agency necessary for
the consummation of the Merger or
the transactions contemplated by this Agreement
(other than such actions, approvals of filings which, pursuant to the
terms of this Agreement, are to take place on or after the
Closing) shall have been filed, occurred or been obtained.
- 15 -
6.4 NO
LITIGATION. No administrative investigation, action, suit or
proceeding seeking to enjoin the consummation
of the transactions contemplated by this Agreement shall be
pending or threatened.
6.5 NO
CURRENT LIABILITIES. Neither PAWSPLUS or VETCO shall have current
liabilities except for permitted liabilities.
6.6 ABSENCE
OF MATERIAL CHANGE. There shall have been no change in the business, operations,
financial condition or liabilities of VETCO as stated in the VETCO Financial
Statements which can reasonably be expected to result in a Material Adverse
Effect on PAWSPLUS.
6.7 FINANCIAL
STATEMENTS. There shall have been no material change in
the financial condition of
VETCO from that represented in the VETCO
Financial Statements.
6.8 LEGAL
OPINION. The PAWSPLUS Legal Opinion shall have been delivered to
AHAI.
6.9 CERTIFICATES
OF GOOD STANDING. A certificate issued by the Delaware Secretary of
State indicating that PAWSPLUS is qualified and in good standing within such
jurisdiction shall have been delivered to AHAI.
6.10 BOARD
OF DIRECTORS. AHAI shall have the right to designate two members to
the PAWSPLUS Board of Directors, which shall be expanded to five
members. On and after the Effective Date, the current Directors of
PAWSPLUS shall tender their resignations.
6.11 PAWSPLUS
SHAREHOLDER APPROVAL. This Agreement, the Merger and the
Recapitalization shall have been approved by the affirmative vote of the amount
of PAWSPLUS capital stock necessary for consummation of the Merger under
Delaware Law.
7.
CONDITIONS PRECEDENT TO PAWSPLUS'S OBLIGATIONS.
The
obligations of PAWSPLUS to consummate the transactions contemplated by this
Agreement are subject to satisfaction of the following conditions at or before
the Closing Date and may be waived only in writing by PAWSPLUS.
7.1 AHAI'S
COVENANTS, REPRESENTATIONS AND WARRANTIES. All the
covenants, terms and conditions of
this Agreement to be complied with
or performed by AHAI on or before the Closing Date shall have been complied with
and performed in
all respects. The representations and warranties made
by AHAI in this Agreement shall be complete and correct at and as of the Closing
Date with the
same force and effect as though such representations and
warranties had been made at and as of the Closing Date.
- 16 -
7.2 DELIVERY
OF DOCUMENTS BY AHAI. AHAI shall have duly executed and delivered, or
caused to be executed and delivered, to PAWSPLUS, or at its direction, this
Agreement, the AHAI Shares and the AHAI Closing Documents.
7.3 OTHER
APPROVALS. All authorizations, consents, orders or
approvals of any United States federal or
state governmental agency necessary for
the consummation of the Merger or
the transactions contemplated by this Agreement
(other than such actions, approvals or filings which, pursuant to the
terms of this Agreement, are to take place on or after the
Closing) shall have been filed, occurred or been obtained.
7.4 AHAI
SHAREHOLDER APPROVAL. This Agreement shall have been approved and
adopted by the affirmative votes of that amount of AHAI’s outstanding capital
stock necessary for the consummation of the Merger pursuant to Florida
law.
7.5 NO
LITIGATION. No administrative investigation, action, suit or
proceeding seeking to enjoin the consummation
of the transactions contemplated by this Agreement shall be
pending or threatened.
7.6 LEGAL
OPINION. The AHAI Legal Opinion shall have been delivered to
PAWSPLUS.
7.7 FINANCIAL
STATEMENTS. There shall have been no material change in the financial
condition of AHAI from that represented in the AHAI Financial
Statements.
8. TERMINATION
8.1 TERMINATION
OF AGREEMENT. Anything contained in this Agreement to the contrary
notwithstanding, the Agreement may be terminated and abandoned at any time
(whether before or after the approval and adoption thereof by the shareholders
of AHAI) prior to the Effective Time:
8.1.1 By
mutual consent of PAWSPLUS and AHAI;
8.1.2 By
AHAI if any condition set forth in Section 6 has not been met and has not been
waived;
8.1.3 By
PAWSPLUS if any condition set forth in Section 7 has not been met and has not
been waived;
8.1.4 By PAWSPLUS or AHAI, if any suit, action or other
proceeding shall be pending or threatened by the federal or a
state government before any court
or governmental agency, in which it is sought
to restrain, prohibit or otherwise affect the consummation
of the transactions contemplated hereby;
- 17 -
8.1.5 By
AHAI if there is discovered any material error,
misstatement or omission in the representations and warranties of
PAWSPLUS and Acquisition;
8.1.6 By
PAWSPLUS if there is
discovered any material error, misstatement or
omission in the representations and warranties of AHAI; and
8.1.7 by
either PAWSPLUS or AHAI if the Effective Time shall have not occurred by
September 30, 2009 provided, however, such termination shall not be available to
any party whose failure to fulfill any obligation of this Agreement has been the
cause of, or resulted in, the failure of the Closing to have been effected on or
prior to such date.
8.2 Any
of the terms or conditions of this Agreement may be waived at any time by the
party which is entitled to the benefit thereof, by action taken by its Board of
Directors; provided, however, that such action shall be taken only if, in the
judgment of the Board of Directors taking the action, such waiver will not have
a materially adverse effect on the benefits intended under this Agreement to the
party waiving such term or condition.
9 MISCELLANEOUS.
9.1 TAX
TREATMENT BY THE
PARTIES. Unless otherwise required by
law, the parties shall treat the
Merger as a reorganization under Section
368(a)(2)(E) of the Code for all
tax reporting purposes; furthermore, the
parties shall not take, and have not taken, any action that is inconsistent with
reorganization treatment under Section 368(a)(2)(E) of the Code.
9.2 NO
THIRD PARTY BENEFICIARIES. This Agreement shall not confer any rights
or remedies upon any person or entity other than the parties and their
respective successors and assigns.
9.3 SUCCESSORS
AND ASSIGNS. No
party may assign either this
Agreement or any of its rights, interests, or obligations
under this Agreement
without the prior written consent of all other parties. Subject
to the foregoing, this Agreement shall be binding upon and inure to the benefit
of the parties and their respective permitted successors and
assigns.
9.4 NOTICES.
All notices, requests, demands, claims, consents and other communications
required or permitted under this Agreement shall be in writing. Any notice,
request, demand, claim, communication or consent under this Agreement shall be
deemed duly given if (and shall be effective two business days after) it is sent
by
certified mail, return receipt requested, postage
prepaid, and addressed to the intended recipient as set forth
below:
- 18 -
|
If
to AHAI:
|
Animal
Health Associates, Inc.
|
|
4100
Xxxxxxxxxxxx Xxxxx
|
|
|
Xxxxxxxx,
XX 00000
|
|
|
Attention:
Xxxxxx Xxxxxxx
|
|
|
Copy
to:
|
Xxxx,
Tobaygo & Siser
|
|
3300
Xxxxx Xxxx
|
|
|
|
Xxxxx
000
|
|
|
Xxxxxxxx,
XX 00000
|
|
|
Attention:
W. Xxxxx Xxx Xxxx
|
|
If
to PAWSPLUS or Acquisition:
|
PAWSPLUS,
Inc
|
|
|
4100
Xxxxxxxxxxxx Xxxxx
|
|
|
Xxxxxxxx,
XX 00000
|
|
|
Attention:
Xxxxx Xxxxx.
|
|
Copy
to:
|
Law
Offices of Xxxxxx X. Xxxx
|
|
|
250
Xxxx 00xx Xxxxxx
|
|
|
Xxxxx
0000
|
|
|
Xxx
Xxxx, XX 0107
|
|
|
Attention:
Xxxxxx X. Xxxx
|
9.5 GOVERNING
LAW. This Agreement shall be governed by and construed in accordance
with the domestic laws of the State of Florida without giving effect to any
choice or conflict of law provision or rule (whether of the State of Florida or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Florida.
9.6 AMENDMENTS
AND WAIVERS. This Agreement may be amended o waived only in a writing
signed by the party against which enforcement of the amendment or waiver is
sought.
9.7 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties set forth in Sections 3 and 4 of this Agreement
shall survive the Closing and continue in full force and effect for a period of
one year after the Closing.
9.8 CONSTRUCTION. The
parties have participated jointly in the negotiation and drafting of this
Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the parties and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any of the provisions of
this Agreement. Any reference to any federal, state, local, or
foreign statute or
law shall be deemed also to refer to
all rules and regulations promulgated
thereunder, unless the context requires otherwise. The
word "including" shall mean including without limitation.
- 19 -
9.9 COUNTERPARTS. This
Agreement may be executed in any number of counterparts, each
of which shall be deemed an original but
all of which together will constitute one and
the same document. This Agreement may be executed by
facsimile.
9.10 ENTIRE
AGREEMENT. This Agreement (including the
Schedules referred to
in and/or attached to
this Agreement) constitutes the entire
agreement among the parties and supersedes any prior understandings, agreements,
or representations by or among the parties, written or
oral to the extent they relate in any way to the subject matter of this
Agreement.
9.11 ARBITRATION. Any controversies or
claims arising out of or relating to this Agreement shall
be fully and finally settled by arbitration in accordance with the
Commercial Arbitration Rules of the
American Arbitration Association (the "AAA
Rules"), conducted by three arbitrators (one to be chosen by
PAWSPLUS, one to be chosen by AHAI, and the third to be chosen by the
first two arbitrators, or otherwise chosen in
accordance with the AAA Rules) in Sarasota,
Florida, except that the parties shall have any right to discovery as
would be permitted by the Federal Rules
of Civil Procedure for a period of
90 days following the commencement of such arbitration, and the arbitrator shall
resolve any dispute which arises in connection with such discovery. The
prevailing party
or parties, as determined by
the arbitrators, shall be entitled to costs,
expenses and attorneys' fees from
the non-prevailing party or parties, and
judgment upon the award rendered by the arbitrator may be
entered in any court of competent jurisdiction.
9.15 COSTS
AND EXPENSES OF TRANSACTION.
9.15.1 Each
party shall be responsible for payment of all
expenses associated with this transaction, including all the legal fees and
expenses.
9.16 BROKERS
9.16.1
Neither PAWSPLUS nor AHAI has dealt with any broker or finder in connection with
this transaction. AHAI shall indemnify and hold PAWSPLUS harmless
from and against any liability for these or any fees of any other
broker.
IN
WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as
of the date first listed above.
| PAWSPLUS, INC. | ANIMAL HEALTH ASSOCIATES, INC. | |||
|
By: /s/
Xxxxx Xxxxx
|
By: /s/
Xxxxxx Xxxxxxx
|
|||
|
Name: Xxxxx
Xxxxx
|
Name: Xxxxxx
Xxxxxxx
|
|||
|
Title: President
|
Title: President
|
PAWSPLUS
ACQUISITION CORPORATION
By: /s/
Xxxxx Xxxxx
Name: Xxxxx
Xxxxx
Title: President
- 20 -
