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EXHIBIT 10.24
AGREEMENT AND PLAN OF MERGER
among:
AMERICAN ENTERPRISE SOLUTIONS, INC., a Florida corporation,
PRN ACQUISITION CO., a Florida corporation,
PHYSICIANS RESOURCE NETWORK, INC., a Georgia corporation,
and
HALIS, INC., a Georgia corporation
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Dated as of June 25, 1998
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TABLE OF CONTENTS
Page
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SECTION 1. DESCRIPTION OF TRANSACTION 1
1.1 Merger of the Subsidiary into PRN 1
1.2 Effect of Merger 2
1.3 Closing; Effective Time 2
1.4 Articles of Incorporation and Bylaws; Directors and Officers 2
1.5 Conversion of Shares 2
1.6 Closing of PRN Transfer Books 2
1.7 Exchange of Certificates 3
1.8 Merger Consideration 3
1.9 Tax Consequences 3
1.10 Further Action 3
SECTION 2. REPRESENTATIONS AND WARRANTIES OF PRN AND HALIS 4
2.1 Due Organization 4
2.2 Capitalization, Etc. 4
2.3 Financial Statements 4
2.4 Tax Matters 4
2.5 Insurance 5
2.6 Legal Proceedings 5
2.7 Authority; Binding Nature of Agreement 5
2.8 Non-Contravention 5
2.9 Environmental Matters 6
2.10 Significant Customers; Material Contracts and Commitments 6
2.11 Employees 7
2.12 Employee Benefit Plans 7
2.13 Title to Properties and Assets; Liens, etc. 7
2.14 Full Disclosure 7
SECTION 3. REPRESENTATIONS AND WARRANTIES OF AES AND THE SUBSIDIARY 8
3.1 Due Organization 8
3.2 Authority; Binding Nature of Agreement 8
3.3 Non-Contravention 8
3.4 Title to Stock; Options or Other Rights 8
3.5 Full Disclosure 9
SECTION 4. CONDITIONS PRECEDENT TO OBLIGATIONS OF AES AND THE SUBSIDIARY 9
4.1 Accuracy of Representations 9
4.2 Performance of Covenants 9
4.3 Consents 9
4.4 Agreements and Documents 9
SECTION 5. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF PRN AND HALIS 10
5.1 Accuracy of Representations 10
5.2 Performance of Covenants 10
5.3 Consents 11
5.4 Agreements and Documents 11
SECTION 6. INDEMNIFICATION, ETC. 11
6.1 Survival of Representations and Warranties 11
6.2 HALIS's Indemnity Agreement 11
6.3 Indemnity Agreement of AES and the Surviving Corporation 12
6.4 Indemnification Procedure 13
6.5 Exclusivity 13
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6.6 Limitations on Liability 14
SECTION 7. MISCELLANEOUS PROVISIONS 14
7.1 Further Assurances 14
7.2 Restriction on Future Purchases 14
7.3 Assignment of Certain Rights Under CWA Agreement 14
7.4 Fees and Expenses 14
7.5 Attorneys' Fees 15
7.6 Notices 15
7.7 Confidentiality 16
7.8 Time of the Essence 16
7.9 Headings 16
7.10 Counterparts 16
7.11 Governing Law; Venue 16
7.12 Successors and Assigns 17
7.13 Remedies Cumulative; Specific Performance 17
7.14 Waiver 17
7.15 Amendments 17
7.16 Severability 17
7.17 Parties in Interest 18
7.18 Entire Agreement 18
7.19 Construction 18
EXHIBITS
Exhibit A - Certain definitions
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER ("Agreement") is made and entered into as of
June 25, 1998, by and among: AMERICAN ENTERPRISE SOLUTIONS, INC., a Florida
corporation ("AES"); PRN ACQUISITION CO., a Florida corporation and a
wholly-owned subsidiary of AES (the "Subsidiary"); PHYSICIANS RESOURCE NETWORK,
INC., a Georgia corporation ("PRN"); and HALIS, INC., a Georgia corporation and
the sole shareholder of PRN ("HALIS"). Certain capitalized terms used in this
Agreement are defined in Exhibit A.
RECITALS
A. The parties intend to effect a merger of the Subsidiary into PRN in
accordance with this Agreement and the Georgia Business Corporation Code and the
Florida General Corporation Act (the "Merger"). Upon consummation of the Merger,
the Subsidiary will cease to exist, and PRN will continue to exist as the
surviving corporation of the Merger. PRN will thereafter be a subsidiary of AES.
B. This Agreement has been adopted and approved by the respective
boards of directors of the parties.
C. The capitalization of PRN consists of 1,000 shares of voting common
stock, $.10 par value per share, of which 1,000 shares are issued and
outstanding (the "PRN Common Stock").
D. AES is the holder of certain shares of common stock, $.01 per value,
of HALIS, the exact number of which is undetermined on the date hereof. The
parties acknowledge that it is their intention that all shares of HALIS stock
held of record by AES on the Closing Date and beneficially owned by AES on the
Closing Date, including without limitation all shares of HALIS stock that AES
has the right to acquire on or prior to the Closing Date (collectively, the "AES
HALIS Stock"), be transferred to HALIS by AES as consideration for the Merger,
all as more fully hereinafter set forth.
AGREEMENT
The parties to this Agreement agree as follows:
SECTION 1. DESCRIPTION OF TRANSACTION
1.1 MERGER OF THE SUBSIDIARY INTO PRN. Upon the terms and subject to the
conditions set forth in this Agreement, at the Effective Time (as defined in
Section 1.3), the Subsidiary shall be merged with and into PRN, and the separate
existence of the Subsidiary shall cease. PRN will continue as the surviving
corporation in the Merger (the "Surviving Corporation").
1.2 EFFECT OF MERGER. The Merger shall have the effects set forth in
this Agreement and in the applicable provisions of the Georgia Business
Corporation Code and the Florida Business Corporation Act.
1.3 CLOSING; EFFECTIVE TIME. The consummation of the transactions
contemplated by this Agreement (the "Closing") shall take place at the offices
of Xxxxx, Xxxxxxxx & Xxxxxxx, LLP, 0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxx 00000, at 1:00 p.m. local time on June 30, 1998, or such other date and
time as the parties may agree (the "Closing Date"). Contemporaneously with or as
promptly as practicable after the Closing, a properly executed certificate of
merger for the merger of the Subsidiary into PRN, conforming to the requirements
of the Georgia Business Corporation Code, shall be filed with the Secretary of
State of the State of Georgia, and properly executed articles of merger for the
merger of the Subsidiary into PRN, conforming to the requirements of the Florida
Business Corporation Act, shall be filed with the Secretary of State of the
State of Florida. The Merger shall take effect at the time such certificate of
merger is filed with the Secretary of State of the State of Georgia and the
articles of merger are filed with the Secretary of State of the State of Florida
(the "Effective Time").
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1.4 ARTICLES OF INCORPORATION AND BYLAWS; DIRECTORS AND OFFICERS. Unless the
parties agree otherwise prior to the Effective Time:
(a) the Articles of Incorporation of PRN shall continue as the
Articles of Incorporation of the Surviving Corporation;
(b) the Bylaws of PRN shall continue as the Bylaws of the Surviving
Corporation;
(c) the directors of the Surviving Corporation shall be Xxxxxxx
Xxxxx, X.X. Xxxxxxx, Xxxxxxxx X. Xxxxxxxxxx, and Xxxxxxx X. Xxxxxxxxxx; and
(d) the officers of the Surviving Corporation shall be as follows:
President and Secretary -- Xxxxxxx X. Xxxxxxxxxx
1.5 CONVERSION OF SHARES. Subject to Section 1.7(b), at the Effective Time,
by virtue of the Merger and without any further action on the part of AES, PRN,
the Subsidiary or HALIS, each share of PRN Common Stock outstanding immediately
prior to the Effective Time shall be canceled and retired and converted into the
right to receive a pro rata share of the aggregate Merger Consideration
described in Section 1.8. Each share of common stock of the Subsidiary shall be
converted into one share of common stock of the Surviving Corporation.
1.6 CLOSING OF PRN TRANSFER BOOKS. At the Effective Time, the holders of
certificates representing shares of PRN Common Stock that were outstanding
immediately prior to the Effective Time shall cease to have any rights as
shareholders of PRN, and the stock transfer books of PRN shall be closed with
respect to all shares of such PRN Common Stock outstanding immediately prior to
the Effective Time. No further transfer of any such shares of PRN capital stock
shall be made on such stock transfer books after the Effective Time. If, after
the Effective Time, a valid certificate previously representing any of such
shares of PRN Common Stock (a "PRN Stock Certificate") is presented to AES, such
PRN Stock Certificate shall be canceled and shall be exchanged as provided in
Section 1.7.
1.7 EXCHANGE OF CERTIFICATES.
(a) At the Closing, HALIS shall surrender its PRN Stock
Certificate(s) to AES, together with such transmittal documents as AES may
reasonably require, and AES shall deliver to HALIS the Merger Consideration to
be paid at Closing pursuant to Section 1.8. In addition, at the Closing the
certificate or certificates representing the issued and outstanding common stock
of the Subsidiary shall be canceled, and the Surviving Corporation shall issue
to AES a certificate representing one share of common stock of the Surviving
Corporation for each canceled share of common stock of the Subsidiary.
(b) No fractional shares shall be issued in connection with the
Merger, and no certificates for any such fractional shares shall be issued.
(c) Until surrendered as contemplated by this Section 1.7, each PRN
Stock Certificate shall be deemed, from and after the Effective Time, to
represent only the right to receive a pro rata share of the Merger
Consideration. If any PRN Stock Certificate shall have been lost, stolen or
destroyed, AES may, in its discretion and as a condition precedent to the
issuance of any certificate representing the Merger Consideration, require the
owner of such lost, stolen or destroyed PRN Stock Certificate to provide an
appropriate affidavit and to deliver a bond (in such sum as AES may reasonably
direct) as indemnity against any claim that may be made against AES with respect
to such PRN Stock Certificate.
1.8 MERGER CONSIDERATION. The merger consideration to be paid by AES to
HALIS in consideration of the Merger (the "Merger Consideration") shall consist
of the AES HALIS Stock. On or before 90 days after the Closing Date, AES shall
deliver to HALIS a certificate or certificates representing
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the Merger Consideration, duly endorsed in blank, or accompanied by stock powers
duly executed in blank by AES.
1.9 TAX CONSEQUENCES. For federal income tax purposes, the Merger is
not intended to constitute a reorganization within the meaning of Section 368 of
the Code. The parties to this Agreement acknowledge that the Merger is intended
to constitute a redemption by HALIS in complete redemption of all HALIS stock
owned by AES pursuant to Section 302(b)(3) of the Internal Revenue Code of 1986,
as amended (the "Code").
1.10 FURTHER ACTION. If, at any time after the Effective Time, any
further action is determined by any party to be necessary or desirable to carry
out the purposes of this Agreement, to vest AES with full right, title and
possession of and to all rights and property of PRN, or to vest HALIS with full
right, title and possession of the Merger Consideration, the officers and
directors of each party shall be fully authorized (in the name of PRN or AES, as
the case may be, and otherwise) to take such action.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF PRN AND HALIS
PRN and HALIS, jointly and severally, represent and warrant, to and for
the benefit of AES and the Subsidiary, as follows as of the date hereof and as
of the Closing Date:
2.1 DUE ORGANIZATION. PRN is a corporation duly organized, validly
existing and in good standing under the laws of the State of Georgia and has all
necessary power and authority to conduct its business in the manner in which its
business is currently being conducted.
2.2 CAPITALIZATION, ETC.
(a) The authorized capital stock of PRN consists of 1,000 shares of
voting common stock, of which 1,000 shares have been issued and are
outstanding. All of the outstanding shares of PRN common stock have been
duly authorized and validly issued, and are fully paid and
non-assessable, and none of such shares is subject to any repurchase
option or restriction on transfer. All of such shares are owned by HALIS
and are free and clear of any liens and encumbrances.
(b) There is no: (i) outstanding subscription, option, call,
warrant or right (whether or not currently exercisable) to acquire, or
otherwise relating to, any shares of the capital stock or other
securities of PRN; (ii) outstanding security, instrument or obligation
that is or may become convertible into or exchangeable for any shares of
the capital stock or other securities of PRN; (iii) Contract under which
PRN is or may become obligated to sell or otherwise issue any shares of
its capital stock or any other securities; or (iv) condition or
circumstance that may give rise to or provide a basis for the assertion
of a claim by any Person to the effect that such Person is entitled to
acquire or receive any shares of capital stock or other securities of
PRN. PRN has never issued or granted any option, call, warrant or right
to acquire, or otherwise relating to, any shares of its capital stock or
other securities.
FINANCIAL STATEMENTS. PRN has delivered to AES the following
financial statements and notes (collectively, the "Company Financial
Statements"): the unaudited balance sheet of PRN as of March 31, 1998, and the
related unaudited statements of income, shareholder's equity and cash flow of
PRN for three-month-period then ended. The Company Financial Statements are
accurate and complete in all material respects and present fairly the financial
position of PRN as of the date thereof and the results of operations and cash
flows of PRN for the period covered thereby. There has been no material adverse
change in PRN's financial condition, business or properties since the date of
the Company Financial Statements. PRN has no liabilities except for those
liabilities reflected on the Company Financial Statements and those liabilities
arising in the ordinary course of business, consistent with past practice, since
the date of the Company Financial Statements.
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2.4 TAX MATTERS. All Tax Returns required to be filed by or on behalf
of PRN with any Governmental Body with respect to any transaction occurring or
any taxable period ending on or before the Closing Date (the "Company Returns"):
(i) have been or will be filed when due, and all taxes shown as due and owing
thereon have been or will be paid; and (ii) have been, or will be when filed,
accurately and completely prepared in compliance with all applicable Legal
Requirements.
2.5 INSURANCE. PRN has maintained, and will maintain through the
Closing Date, insurance coverage against liability, loss or casualty with
respect to the operations of PRN.
2.6 LEGAL PROCEEDINGS. Except as previously disclosed to AES, there
is no pending Legal Proceeding, and, to the best of the knowledge of PRN and
HALIS, no Person has threatened to commence any Legal Proceeding: (i) that
involves PRN or any of the assets owned or used by PRN and which, if decided
against PRN, would have a Material Adverse Effect on the financial condition,
business or properties of PRN; or (ii) that challenges, or that may have the
effect of preventing, delaying, making illegal or otherwise interfering with,
the Merger or any of the other transactions contemplated by this Agreement.
2.7 AUTHORITY; BINDING NATURE OF AGREEMENT. HALIS and PRN have the
absolute and unrestricted right, power and authority to enter into and to
perform their respective obligations under this Agreement; and the execution,
delivery and performance by PRN of this Agreement has been duly authorized by
all necessary action on the part of PRN and its board of directors and
shareholder. This Agreement constitutes the legal, valid and binding obligation
of HALIS and PRN, enforceable against HALIS and PRN in accordance with its
terms, subject to (i) laws of general application relating to bankruptcy,
insolvency and the relief of debtors, and (ii) rules of law governing specific
performance, injunctive relief and other equitable remedies.
2.8 NON-CONTRAVENTION. Neither (i) the execution, delivery or
performance of this Agreement or any of the other agreements referred to in this
Agreement, nor (ii) the consummation of the Merger or any of the other
transactions contemplated by this Agreement, will directly or indirectly (with
or without notice or lapse of time):
(a) contravene, conflict with or result in a violation of (i) any
of the provisions of PRN's articles of incorporation or bylaws, or
(ii) any resolution adopted by PRN's shareholder, or PRN's board of
directors or any committee of PRN's board of directors;
(b) contravene, conflict with or result in a violation of, or
give any Governmental Body or other Person the right to challenge any
of the transactions contemplated by this Agreement or to exercise any
remedy or obtain any relief under, any Legal Requirement or any
order, writ, injunction, judgment or decree to which PRN , or any of
the assets owned or used by PRN , is subject; or
(c) contravene, conflict with or result in a violation or breach
of, or result in a default under, any provision of any Company
Contract, or give any Person the right to (i) declare a default or
exercise any remedy under any Company Contract, (ii) accelerate the
maturity or performance of any Company Contract, or (iii) cancel,
terminate or modify any Company Contract.
Except as set forth in Section 1.3, PRN is not and will not be required to make
any filing with or given any notice to, or to obtain any Consent from, any
Person in connection with (x) the execution, delivery or performance of this
Agreement or any of the other agreements referred to in this Agreement, or (y)
the consummation of the Merger or any of the other transactions contemplated by
this Agreement.
2.9 ENVIRONMENTAL MATTERS.
(a) PRN has complied in all material respects, and is in
compliance in all material respects, with all federal, state, local
and foreign statutes (civil and criminal), common laws, ordinances,
regulations, rules, notices, permits, judgments, orders and decrees
applicable to it
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and its properties, assets, operations and businesses relating to
environmental protection (collectively "Environmental Laws"),
including without limitation Environmental Laws relating to air,
water, land and the generation, storage, use, handling,
transportation, treatment or disposal of hazardous wastes and
hazardous substances (as such terms are currently defined in any
applicable Environmental Law), except to the extent that
noncompliance with an Environmental Law, either singly or in the
aggregate, does not and would not have a Material Adverse Effect;
(b) PRN has obtained and adhered to all necessary permits and
other approvals necessary to treat, transport, store, dispose of and
otherwise handle Hazardous Wastes and Hazardous Substances and has
reported, to the extent required by all Environmental Laws, all past
and present sites owned and operated by PRN where Hazardous Wastes or
Hazardous Substances have been treated, stored, disposed of or
otherwise handled, except to the extent that a failure to do so,
either singly or in the aggregate, does not and would not have a
Material Adverse Effect;
(c) there have been no releases or threats of releases (as
defined in Environmental Laws) by PRN at, from, in or on any property
owned or operated by PRN except as permitted by Environmental Laws or
where such releases do not and would not have a Material Adverse
Effect; and
(d) PRN knows of no on-site or off-site location to which PRN has
transported or disposed of Hazardous Wastes and Hazardous Substances
or arranged for the transportation of Hazardous Wastes and Hazardous
Substances, which site is the subject of any federal, state, local or
foreign enforcement action or any other investigation which could
lead to any claim against PRN for any clean-up cost, remedial work,
damage to natural resources or personal injury, including without
limitation any claim under United States or Florida environmental
statutes, as amended.
2.10 SIGNIFICANT CUSTOMERS; MATERIAL CONTRACTS AND COMMITMENTS. HALIS
has previously disclosed to AES an accurate list of (i) all significant
customers (i.e. those customers representing 5% or more of PRN's revenues for
the 12 months ending on the date of the Company Financial Statements) and (ii)
all material contracts, commitments, leases, instruments, agreements, licenses
or permits to which PRN is a party or by which it or its properties are bound
(including without limitation contracts with significant customers, joint
venture or partnership agreements, contracts with any labor organizations, loan
agreements, indemnity or guaranty agreements, bonds, mortgages, options to
purchase land, liens, pledges or other security agreements, employment
contracts, and employee benefit plans) (collectively, the "PRN Material
Contracts"). Except to the extent previously disclosed to AES, (i) none of PRN's
significant customers has canceled or substantially reduced or, to the knowledge
of PRN is currently attempting or threatening to cancel or substantially reduce
service, and (ii) PRN has complied in all material respects with its material
commitments and obligations and is not in default under any of the PRN Material
Contracts and no notice of default has been received with respect to any
thereof.
2.11 EMPLOYEES. PRN is not bound by or subject to (and none of its
respective assets or properties is bound by or subject to) any arrangement with
any labor union. No employees of PRN are represented by any labor union or
covered by any collective bargaining agreement and, to the best of PRN's
knowledge, no campaign to establish such representation is in progress. PRN
considers its relationship with its employees to be good.
2.12 EMPLOYEE BENEFIT PLANS. All employee benefit plans, programs and
policies (whether formal or informal, and whether maintained for the benefit of
a single individual or more than one individual) maintained or contributed to by
PRN for the benefit of any current or former employee of PRN or in which such
employees are entitled to participate or to which PRN may be required to
contribute have previously been disclosed by HALIS to AES (the "PRN Benefit
Plans"), and copies of all such written plans and policies, written descriptions
of all such oral plans and policies, and all other documentation relating to
such plans and policies have been delivered or made available to AES. Except as
previously disclosed to AES:
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(i) each PRN Benefit Plan and the administration thereof complies, and has at
all times complied, in all material respects with the requirements of all
applicable law; (ii) no suit, action or other litigation (excluding claims for
benefits incurred in the ordinary course of plan activities) has been brought
against or with respect to any PRN Benefit Plan; and (iii) all required
contributions to PRN Benefit Plans have been made, and all benefits accrued
under any unfunded PRN Benefit Plan will have been paid, accrued or otherwise
adequately reserved in accordance with GAAP, and PRN has performed all material
obligations required to be performed under the PRN Benefit Plans. If reasonably
requested by AES, PRN will terminate any PRN Benefit Plan contemporaneously with
the Closing.
2.13 TITLE TO PROPERTIES AND ASSETS; LIENS, ETC. Except for the
existing lien in favor of Central Bank of Tampa, PRN has good and marketable
title to its properties and assets, and has good and valid title to all its
leasehold interests, in each case subject to no mortgage, pledge, lien, lease,
encumbrance or charge, other than possible minor liens and encumbrances that do
not in any case materially detract from the value of the property subject
thereto or materially impair the operations of PRN, and which have not arisen
otherwise and in the ordinary course of business. PRN does not own any real
property.
2.14 FULL DISCLOSURE. This Agreement, and all documents delivered by
PRN or HALIS to AES in connection with the transactions contemplated herein, do
not (i) contain any representation, warranty or information that is false or
misleading with respect to any material fact, or (ii) omit to state any material
fact necessary in order to make the representations, warranties and information
contained and to be contained herein and therein not false or misleading.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF AES AND THE SUBSIDIARY
AES and the Subsidiary, jointly and severally, represent and warrant to
PRN and HALIS as follows:
3.1 DUE ORGANIZATION. AES is a corporation duly organized, validly
existing and in good standing under the laws of the Florida and has all
necessary power and authority to conduct its business in the manner in which its
business is currently being conducted.
3.2 AUTHORITY; BINDING NATURE OF AGREEMENT. AES and the Subsidiary
each have the absolute and unrestricted right, power and authority to perform
their respective obligations under this Agreement; and the execution, delivery
and performance by AES and the Subsidiary of this Agreement have been duly
authorized by all necessary action on the part of AES and the Subsidiary and
their respective boards of directors. This Agreement shall constitute the legal,
valid and binding obligation of AES and the Subsidiary, enforceable against each
of them in accordance with its terms, subject to (i) laws of general application
relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of
law governing specific performance, injunctive relief and other equitable
remedies.
3.3 NON-CONTRAVENTION. Neither (i) the execution delivery or
performance of this Agreement or any of the other agreements referred to in this
Agreement, nor (ii) the consummation of the Merger or any of the other
transactions contemplated by this Agreement, will directly or indirectly (with
or without notice or lapse of time):
(a) contravene, conflict with or result in a violation of (i)
the provisions of the respective Articles of Incorporation or
Bylaws of AES or the Subsidiary, or (ii) any resolution adopted by
the respective shareholders or Board of Directors of AES or the
Subsidiary;
(b) contravene, conflict with or result in a violation of , or
give any Governmental Body or any Person the right to challenge any
of the transactions contemplated by this Agreement or to exercise
any remedy or obtain any relief under, any Legal Requirement or any
order, writ, injunction, judgment, or decree to which AES or the
Subsidiary, or any of the assets owned or used by either of them,
is subject; or
(c) contravene, conflict with or result in a violation of , or
breach of, or result in a default under, any provision of any
Contract to which AES or the Subsidiary is a party, or give
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any Person the right to (i) declare a default or exercise any
remedy under any such Contract, (ii) accelerate the maturity or
performance of any such Contract, (iii) cancel, terminate or modify
any such Contract.
3.4 TITLE TO STOCK; OPTIONS OR OTHER RIGHTS. AES beneficially and of
record owns, and has fully power and authority to convey free and clear of all
liens, encumbrances or restrictions, all of the AES HALIS Stock constituting the
Merger Consideration, the AES HALIS Stock constituting the Merger Consideration
is not less than 9,984,000 shares and represents all shares of HALIS common
stock owned of record or beneficially owned by AES on the Closing Date, and,
upon delivery of the certificate or certificates representing the Merger
Consideration as provided in Section 1.8, HALIS will acquire title thereto, free
and clear of all liens, encumbrances or restrictions. There is no outstanding
right, subscription, warrant, conversion right, call, unsatisfied pre-emptive
right, commitment, option or other agreement or right of any kind pursuant to
which any person or entity has the right or option to purchaser or otherwise to
receive from AES any shares of the AES HALIS Stock constituting the Merger
Consideration. There is no shareholders' agreement, voting trust or similar
agreement or arrangement to which AES is a party which affects or restricts in
any way the rights and obligations of AES with respect to the AES HALIS Stock
constituting Merger Consideration.
3.5 FULL DISCLOSURE. This Agreement, and all documents delivered by
AES or the Subsidiary to HALIS in connection with the transactions contemplated
herein, do not (i) contain any representation, warranty or information that is
false or misleading with respect to any material fact, or (ii) omit to state any
material fact necessary in order to make the representations, warranties and
information contained and to be contained herein and therein not false or
misleading.
SECTION 4. CONDITIONS PRECEDENT TO OBLIGATIONS OF AES AND THE SUBSIDIARY
The obligations of AES and the Subsidiary to effect the Merger and
otherwise consummate the transactions contemplated by this Agreement are subject
to the satisfaction, at or prior to the Closing, of each of the following
conditions:
4.1 ACCURACY OF REPRESENTATIONS. Each of the representations and
warranties made by PRN and HALIS in this Agreement and in each of the other
agreements and instruments delivered to AES in connection with the transactions
contemplated by this Agreement shall have been accurate in all respects as of
the date of this Agreement, and shall be accurate in all respects as of the
Closing Date as if made on the Closing Date.
4.2 PERFORMANCE OF COVENANTS. Each covenant or obligation that PRN
or HALIS is required to comply with or to perform at or prior to the Closing
shall have been complied with and performed in all respects.
4.3 CONSENTS. All Consents required to be obtained in connection
with the Merger and the other transactions contemplated by this Agreement shall
have been obtained and shall be in full force and effect.
4.4 AGREEMENTS AND DOCUMENTS. AES shall have received the following
agreements and documents, each of which shall be in full force and effect:
(a) a legal opinion of Xxxxx, Xxxxxxxx & Xxxxxxx, LLP,
dated as of the Closing Date, satisfactory in form and substance
to AES and its counsel;
(b) HALIS shall have delivered to AES a letter agreement
(the "Central Bank Debt Agreement"), in form and substance
satisfactory to AES and its counsel, pursuant to which HALIS
agrees to make all payments owed by PRN under that certain debt
of PRN in the outstanding amount of $433,754.54 on the date
hereof to Central Bank of Tampa, of which HALIS remains a
guarantor;
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(c) HALIS shall have executed and delivered to Xxxxxxx
Xxxxxxxxxx a promissory note, satisfactory in form and substance
to Xx. Xxxxxxxxxx and his counsel, in the principal amount of
$45,042.26, bearing interest at a rate of 8% per annum, payable
in six equal payments of $7,683.18 with the first payment due
July 20, 1998, and the final payment due December 20, 1998;
(d) HALIS agrees to cancel the intercompany indebtedness in
the amount of $570,521.21 as reflected in the Company Financial
Statements, to treat such cancelled indebtedness as a
contribution to capital, and hereby releases PRN from any
obligation to repay that indebtedness;
(e) HALIS and AES shall have executed and delivered a
software license agreement, a master license agreement, and a
master source code escrow agreement, satisfactory in form and
substance to the parties and their respective counsel,
incorporating, among other things, the provisions set forth in
that certain letter dated June 22, 1998, from Xxxxxxx Xxxxxxxxxx
to Xxxx Xxxxxxxx; and
(f) a certificate executed by PRN and HALIS and containing
the representation and warranty of PRN and HALIS that each of
the representations and warranties set forth in Section 2 is
accurate in all material respects as of the Closing Date as if
made on the Closing Date and that the conditions set forth in
Sections 4.1, 4.2, 4.3, and 4.4 have been duly satisfied (the
"PRN and HALIS's Closing Certificate").
SECTION 5. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF PRN AND HALIS.
The obligations of PRN and HALIS to effect the Merger and otherwise
consummate the transactions contemplated by this Agreement are subject to the
satisfaction, at or prior to the Closing, of the following conditions:
5.1 ACCURACY OF REPRESENTATIONS. Each of the representations and
warranties made by AES and the Subsidiary in this Agreement and in each of the
other agreements and instruments delivered to PRN in connection with the
transactions contemplated by this Agreement shall have been accurate in all
respects as of the date of this Agreement, and shall be accurate in all respects
as of the Closing Date as if made on the Closing Date.
5.2 PERFORMANCE OF COVENANTS. All of the covenants and obligations
that AES is required to comply with or to perform at or prior to the Closing
shall have been complied with and performed in all respects.
5.3 CONSENTS. All Consents required to be obtained in connection
with the merger and the other transactions contemplated by this Agreement shall
have been obtained and shall be in full force and effect.
5.4 AGREEMENTS AND DOCUMENTS.
(a) PRN and HALIS shall have received a legal opinion of
Xxxxxxx, Xxxxxx & Xxxxxxxxxx, P.A. in form and substance
satisfactory to PRN and HALIS and its counsel; and
(b) PRN shall have received a certificate executed by AES and
the Subsidiary, and containing the representation and warranty of
AES and the Subsidiary that each of the representations and
warranties set forth in Section 3 are accurate in all material
respects as of the Closing Date as if made on the Closing Date and
that the conditions set forth in Sections 5.1, 5.2, 5.3 and 5.4
have been duly satisfied (the "AES Closing Certificate").
12
SECTION 6. INDEMNIFICATION, ETC.
6.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All of the
representations and warranties of PRN, HALIS, AES and the Subsidiary contained
in this Agreement shall survive the Closing and shall continue for a period of
one year following the Closing Date. The expiration of any representation or
warranty shall not affect any party's right to claim indemnification for a
breach of such representation or warranty, provided such party gives notice of
such claim in accordance with the provisions of this Section 6 prior to the
expiration of such representation or warranty.
6.2 HALIS'S INDEMNITY AGREEMENT. Subject to the provisions of Section
6.6 hereof, HALIS shall defend, indemnify and hold harmless AES and the
Surviving Corporation (and their respective directors, officers, employees,
agents, affiliates, successors and assigns) from and against any and all direct
or indirect requests, demands, claims, payments, defenses, obligations,
recoveries, deficiencies, fines, penalties, interest, assessments, actions,
liens, causes of action, suits, proceedings, judgments, losses, Damages,
liabilities, costs, and expenses of any kind (including without limitation (i)
interest, penalties and reasonable attorneys' fees and expenses, (ii) attorneys'
fees and expenses necessary to enforce their rights to indemnification
hereunder, and (iii) consultants' fees and other costs of defending or
investigating any claim hereunder), and interest on any amount payable as a
result of the foregoing, whether accrued, absolute, contingent, known, unknown,
or otherwise as of the Closing Date or thereafter asserted against, imposed upon
or incurred by AES, the Surviving Corporation or any of their respective
directors, officers, employees, agents, affiliates, successors or assigns (a
"Loss of AES") by reason of, resulting from, arising out of, based upon, awarded
or asserted against or otherwise in respect of:
(a) any period or periods of PRN ending prior to the Closing and
which involve any claims against AES, PRN, or their respective
properties or assets, relating to actions or inactions of PRN or
its respective officers, directors, shareholder, employees or
agents prior to Closing, or the operation of the business of PRN
prior to the Closing unless such liability was (i) disclosed on the
Company Financial Statements and adequate reserves were established
therefor, or (ii) incurred by PRN in the ordinary course of
business subsequent to the date of the Company Financial
Statements;
(b) any breach of any representation and warranty contained in
this Agreement or any misrepresentation in or omission on the part
of PRN or HALIS contained in any certificate furnished or to be
furnished to AES by PRN or HALIS pursuant to this Agreement;
(c) any breach or nonfulfillment on the part of PRN or HALIS of
any covenant contained in this Agreement;
(d) any failure on the part of HALIS to make any payment when
due under the Central Bank Debt Agreement;
(e) the failure of PRN or HALIS to obtain, prior to the Closing
Date, any consents, approvals and waivers of governmental agencies
or entities, lessors, landlords, suppliers, and other third parties
as may be necessary to permit the consummation of the Merger and to
permit the Surviving Corporation to continue to operate the
business of PRN in the manner presently conducted after the Closing
Date; and
(f) any federal, state, local or foreign taxes, including any
interest and penalties thereon, due from PRN or HALIS with respect
to any period prior to the Closing Date, other than amounts accrued
therefor on the Company Financial Statements.
6.3 INDEMNITY AGREEMENT OF AES AND THE SURVIVING CORPORATION. AES and
the Surviving Corporation shall indemnify and hold harmless HALIS (and its
successors and assigns) from and against any and all direct or indirect
requests, demands, claims, payments, defenses, obligations, recoveries,
deficiencies,
13
fines, penalties, interest, assessments, actions, liens, causes of action,
suits, proceedings, judgments, losses, Damages, liabilities, costs, and expenses
of any kind (including without limitation (i) interest, penalties and reasonable
attorneys' fees and expenses, (ii) attorneys' fees and expenses necessary to
enforce their rights to indemnification hereunder, and (iii) consultants' fees
and other costs of defending or investigating any claim hereunder, and interest
on any amount payable as a result of the foregoing) whether accrued, absolute,
contingent, known, unknown or otherwise as of the Closing Date or thereafter
asserted against, imposed upon or incurred by HALIS or its respective
representatives or assigns, (a "Loss of HALIS") by reason of, resulting from,
arising out of, based upon, awarded or asserted against in respect of or
otherwise in respect of:
(a) any period or periods of the Surviving Corporation beginning after
the Closing and which involve any claims against HALIS or its assets
relating to actions or inactions of AES or the Surviving Corporation or
their respective officers, directors, shareholder, employees or agents
after the Closing, or the operation of the Surviving Corporation after the
Closing, including without limitation any claims arising out of equipment
and automobile leases in effect on the Closing Date; and
(b) any breach of any representation and warranty or nonfulfillment of
any covenant or agreement on the part of AES or the Subsidiary contained in
this Agreement, or any misrepresentation in or omission from or
nonfulfillment of any covenant on the part of the AES or the Subsidiary
contained in any certificate furnished or to be furnished to HALIS by AES
or the Subsidiary pursuant to this Agreement.
6.4 INDEMNIFICATION PROCEDURE.
(a) Upon obtaining knowledge thereof, the party to be indemnified
hereunder (the "Indemnitee") shall promptly notify the indemnifying party
hereunder (the "Indemnitor") in writing of any damage, claim, loss,
liability or expense or other matter which the Indemnitee has determined
has given or could give rise to a claim for which indemnification rights
are granted hereunder (such written notice referred to as the "Notice of
Claim"). The Notice of Claim shall specify, in all reasonable detail, the
nature and estimated amount of any such claim giving rise to a right of
indemnification, to the extent the same can reasonably be estimated. Any
failure on the part of an Indemnitee to give timely notice to the
Indemnitor of a claim shall not affect the right of the Indemnitee to
obtain indemnification from the Indemnitor with respect to such claim
unless the Indemnitor is actually harmed by such failure to notify, and
only to the extent of such actual harm.
(b) With respect to any matter set forth in a Notice of Claim relating
to a third party claim the Indemnitor shall defend, in good faith and at
its expense, any such claim or demand, and the Indemnitee, at its expense,
shall have the right to participate in the defense of any such third party
claim. So long as Indemnitor is defending, in good faith, any such third
party claim, the Indemnitee shall not settle or compromise such third party
claim. The Indemnitee shall make available to the Indemnitor or its
representatives all records and other materials reasonably required by them
for use in contesting any third party claim and shall cooperate fully with
the Indemnitor in the defense of all such claims. If the Indemnitor does
not defend any such third party claim or if the Indemnitor does not provide
the Indemnitee with prompt and reasonable assurances that the Indemnitor
will satisfy the third party claim, the Indemnitee may, at its option,
elect to defend any such third party claim, at the Indemnitor's expense. An
Indemnitor may not settle or compromise any claim without obtaining a full
and unconditional release of the Indemnitee, unless the Indemnitee consents
in writing to such settlement or compromise. Notwithstanding the foregoing,
if there is a reasonable probability that a third party claim for which AES
or the Surviving Corporation has indemnification rights against HALIS
hereunder will materially and adversely affect AES or the Surviving
Corporation other than as a result of money damages or other payments, AES
or the Surviving Corporation shall be entitled to conduct the defense of
such claim at HALIS's expense with counsel reasonably acceptable to HALIS.
14
6.5 EXCLUSIVITY. Following the Closing, in the absent of actual fraud
on the part of HALIS (in which case AES and the Subsidiary may avail themselves
of all statutory and common law remedies for such fraud), the right to receive
indemnification pursuant to this Section 6 shall be the sole and exclusive
remedy of AES, the Subsidiary, HALIS and PRN or their respective officers,
directors, employees, agents, affiliates, successors and assigns for monetary
damages of any kind with respect to any breach of this Agreement or conduct
otherwise relating to the negotiation and completion of the transactions
contemplated herein.
6.6 LIMITATIONS ON LIABILITY. HALIS shall have no liability with
respect to Losses of AES arising under Section 6.2 until the total of all Losses
of AES with respect thereto exceeds $25,000. If the aggregate Losses of AES
exceed such $25,000 threshold, HALIS shall be liable for all Losses of AES to
the extent (and only to the extent) Losses of AES exceed such $25,000 threshold.
AES and the Surviving Corporation shall have no liability with respect to Losses
of HALIS arising under Section 6.3 until the total of all Losses of HALIS with
respect thereto exceeds $25,000. If the aggregate Losses of HALIS exceeds such
$25,000 threshold, AES and the Survivor shall be liable for all Losses of HALIS
to the extent (and only to the extent) Losses of HALIS exceeds such $25,000
threshold.
SECTION 7. MISCELLANEOUS PROVISIONS
7.1 FURTHER ASSURANCES. Each party hereto shall execute and cause to
be delivered to each other party hereto such instruments and other documents,
and shall take such other actions, as such other party may reasonably request
(prior to, at or after the Closing) for the purpose of carrying out or
evidencing any of the transactions contemplated by this Agreement.
7.2 RESTRICTION ON FUTURE PURCHASES. AES agrees that, during the
period commencing on the Closing Date and ending on the second anniversary
thereof, neither AES nor any of its affiliates will purchase or otherwise
acquire in any manner any shares of HALIS common stock. As used herein, the term
"affiliates" shall mean all persons and entities directly, or indirectly through
one or more intermediaries, controlling, controlled by, or under common control
with AES. As used herein, the term "control" (including the terms "controlling,"
"controlled by" and "under common control with") means the possession, direct or
indirect, of the power to direct or cause the direction of the management and
policies of a person, whether through the ownership of voting securities, by
contract, or otherwise. The obligation of AES in this Section 7.2 shall survive
the Closing.
7.3 ASSIGNMENT OF CERTAIN RIGHTS UNDER CWA AGREEMENT. HALIS agrees
that, in the event the total number of HALIS shares constituting the Merger
Consideration actually received by HALIS in accordance with Section 1.8 hereof
equals or exceeds 11,000,000 shares, HALIS will promptly cause HALIS Services,
Inc., a wholly-owned subsidiary of HALIS ("HALIS Services"), to execute and
deliver to AES a written assignment to AES of all right, title and interest of
HALIS Services in, to and under Section 3 of that certain Asset Purchase
Agreement dated December 31, 1997, by and between Communications Wiring and
Accessories, Inc. and HALIS Services. The obligation of HALIS under this Section
7.3 shall survive the Closing.
7.4 FEES AND EXPENSES. All fees, costs and expenses (including legal
fees and accounting fees) that have been incurred or that are incurred in the
future by such party in connection with the transactions contemplated by this
Agreement, including all fees, costs and expenses incurred by such party in
connection with or by virtue of (a) any investigation and review conducted by
such party of the other parties' business (and the furnishing of information in
connection with such investigation and review), (b) the negotiation, preparation
and review of this Agreement and all agreements, certificates, opinions and
other instruments and documents delivered or to be delivered in connection with
the transactions contemplated by this Agreement, (c) the preparation and
submission of any filing or notice required to be made or given in connection
with any of the transactions contemplated by this Agreement, and the obtaining
of any Consent required to be obtained in connection with any of such
transactions, and (d) the consummation of the Merger shall be paid: (i) by AES,
if incurred by AES or the Subsidiary; and (ii) by HALIS, if incurred by PRN or
HALIS.
15
7.5 ATTORNEYS' FEES. If any action or proceeding relating to this
Agreement or the enforcement of any provision of this Agreement is brought
against any party hereto, the prevailing party shall be entitled to recover
reasonable attorneys' fees, costs and disbursements (in addition to any other
relief to which the prevailing party may be entitled).
7.6 NOTICES. Any notice or other communication required or permitted
to be delivered to any party under this Agreement shall be in writing and shall
be deemed properly delivered, given and received when delivered (by hand, by
registered mail, by courier or express delivery service or by facsimile) to the
address or facsimile telephone number set forth beneath the name of such party
below (or to such other address or facsimile telephone number as such party
shall have specified in a written notice given to the other parties hereto):
if to AES, PRN or the Subsidiary:
American Enterprise Solutions, Inc.
0000 Xxxxx Xxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: President
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx, Xxxxxx & Xxxxxxxxxx, P.A.
000 Xxxxx Xxxxx Xxxxxx
X.X. Xxx 000
Xxxxx, Xxxxxxx 00000-0000
Attn: G. Xxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
if to HALIS:
HALIS, Inc.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: President
Facsimile: (000) 000-0000
with a copy to:
Xxxxx, Xxxxxxxx & Xxxxxxx, XXX
Xxxxxxxxx XX, Xxxxx 0000
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
7.7 CONFIDENTIALITY. Except as may be required by law, on and at all
times after the Closing Date, PRN and HALIS shall keep confidential, and shall
not use or disclose to any other Person, any non-public document or other
non-public information in PRN or HALIS's possession that relates to the business
of AES or the Subsidiary.
7.8 TIME OF THE ESSENCE. Time is of the essence of this Agreement.
7.9 HEADINGS. The bold-faced section headings contained in this
Agreement are for convenience of reference only, shall not be deemed to be a
part of this Agreement and shall not be referred to in connection with the
construction or interpretation of this Agreement.
16
7.10 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall constitute an original and all of which, when
taken together, shall constitute one agreement.
7.11 GOVERNING LAW; VENUE.
(a) This Agreement shall be construed in accordance with, and
governed in all respects by, the internal laws of the State of
Georgia (without giving effect to principles of conflicts of laws).
(b) Any legal action or other legal proceeding relating to this
Agreement or the enforcement of any provision of this Agreement
shall be brought to or otherwise commenced in any state or federal
court located in Xxxxxx County, Georgia. Each party to this
Agreement:
(i) expressly and irrevocably consents and submits to the
jurisdiction of each state and federal court located in Xxxxxx
County, Georgia (and each appellate court located in the State of
Georgia) in connection with any such legal proceeding;
(ii) agrees that each state and federal court located in
Xxxxxx County, Georgia shall be deemed to be a convenient forum;
and
(iii) agrees not to assert (by way of motion, as a defense or
otherwise), in any such legal proceeding commenced in any state
or federal court located in Xxxxxx County, Georgia, any claim
that such party is not subject personally to the jurisdiction of
such court, that such legal proceeding has been brought in an
inconvenient forum, that the venue of such proceeding is improper
or that this Agreement or the subject matter of this Agreement
may not be enforced in or by such court.
7.12 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon: PRN
and its successors and assigns (if any); HALIS and its successors and assigns
(if any); AES and its successors and assigns (if any); and the Subsidiary and
its successors and assigns (if any). This Agreement shall inure to the benefit
of: PRN, HALIS, AES, the Subsidiary, and the respective successors, heirs
personal representatives and assigns (if any) of the foregoing.
7.13 REMEDIES CUMULATIVE; SPECIFIC PERFORMANCE. The rights and
remedies of the parties hereto shall be cumulative (and not alternative). The
parties to this Agreement agree that, in the event of any breach or threatened
breach by any party to this Agreement of any covenant, obligation or other
provision set forth in this Agreement for the benefit of any other party to this
Agreement, such other party shall be entitled (in addition to any other remedy
that may be available to it) to (a) a decree or order of specific performance or
mandamus to enforce the observance and performance of such covenant, obligation
or other provision, and (b) an injunction restraining such breach or threatened
breach.
7.14 WAIVER.
(a) No failure on the part of any party to exercise any power,
right, privilege or remedy under this Agreement, and no delay on
the part of any party in exercising any power, right, privilege or
remedy under this Agreement, shall operate as a waiver of such
power, right, privilege or remedy; and no single or partial
exercise of any such power, right, privilege or remedy shall
preclude any other or further exercise thereof or of any other
power, right, privilege or remedy.
(b) No party shall be deemed to have waived any claim arising out
of this Agreement, or any power, right, privilege or remedy under
this Agreement, unless the waiver of such claim, power, right,
privilege or remedy is expressly set forth in a written instrument
duly executed and delivered on behalf of such party; and any such
waiver shall not be applicable or have any effect except in the
specific instance in which it is given.
17
7.15 AMENDMENTS. This Agreement may not be amended, modified,
altered or supplemented other than by means of a written instrument duly
executed and delivered on behalf of all of the parties hereto.
7.16 SEVERABILITY. In the event that any provision of this Agreement,
or the application of any such provision to any Person or set of circumstances,
shall be determined to be invalid, unlawful, void or unenforceable to any
extent, the remainder of this Agreement, and the application of such provision
to Persons or circumstances other than those as to which it is determined to be
invalid, unlawful, void or unenforceable, shall not be impaired or otherwise
affected and shall continue to be valid and enforceable to the fullest extent
permitted by law.
7.17 PARTIES IN INTEREST. Except for the provisions of Section 6,
none of the provisions of this Agreement is intended to provide any rights or
remedies to any Person other than the parties hereto and their respective
successors, heirs, personal representatives and assigns (if any).
7.18 ENTIRE AGREEMENT. This Agreement and the other agreements
referred to herein set forth the entire understanding of the parties hereto
relating to the subject matter hereof and thereof and supersede all prior
agreements and understandings among or between any of the parties relating to
the subject matter hereof and thereof.
7.19 CONSTRUCTION.
(a) For purposes of this Agreement, whenever the context
requires: the singular number shall include the plural, and vice
versa; the masculine gender shall include the feminine and neuter
genders; the feminine gender shall include the masculine and
neuter genders; and the neuter gender shall include the masculine
and feminine genders.
(b) The parties hereto agree that any rule of construction to
the effect that ambiguities are to be resolved against the
drafting party shall not be applied in the construction or
interpretation of this Agreement.
(c) As used in this Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be
terms of limitation, but rather shall be deemed to be followed by
the words "without limitation."
(d) Except as otherwise indicated, all references in this
Agreement to "Sections" and "Exhibit" are intended to refer to
Sections of this Agreement and Exhibit to this Agreement.
The parties hereto have caused this Agreement to be executed and
delivered as of the date first above written.
"AES"
AMERICAN ENTERPRISE SOLUTIONS, INC.,
By: /s/ Xxxxxxx Xxxxx
------------------------------
Name: Xxxxxxx Xxxxx
-------------------------,
Title: Chief Executive Officer
------------------------
18
"SUBSIDIARY"
PRN ACQUISITION CO.
By: /s/ Xxxxxxx Xxxxxxxxxx
---------------------------
Name: Xxxxxxx Xxxxxxxxxx
----------------------,
Title: President
-------------------
"PRN"
PHYSICIANS RESOURCE NETWORK, INC.
By: /s/ Xxxxx Xxxxxx
----------------------------------
Xxxxx Xxxxxx, Vice President
"HALIS"
HALIS, INC.
By: /s/ Xxxxx Xxxxxx
----------------------------------
Xxxxx Xxxxxx, Executive Vice President
19
EXHIBIT A
CERTAIN DEFINITIONS
For purposes of the Agreement (including this Exhibit A):
AGREEMENT. "Agreement" shall mean the Agreement and Plan of Merger to
which this Exhibit A is attached, as it may be amended from time to time.
COMPANY CONTRACT. "Company Contract" shall mean any Contract to which
PRN is a party.
CONSENT. "Consent" shall mean any approval, consent, ratification,
permission, waiver or authorization (including any Governmental Authorization).
CONTRACT. "Contract" shall mean any written, oral or other agreement,
contract, subcontract, lease, understanding, instrument, note, warranty,
insurance policy, benefit plan, or legally binding commitment or undertaking of
any nature.
DAMAGES. "Damages" shall include any loss, damage, injury, liability,
claim, demand, settlement, judgment, award, fine, penalty, Tax, fee (including
reasonable attorneys' fees), charge, cost (including costs of investigation) or
expense of any nature.
EXCHANGE ACT. "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
GOVERNMENTAL AUTHORIZATION. "Governmental Authorization" shall mean
any: (a) permit, license, certificate, franchise, permission, clearance,
registration, qualification or authorization issued, granted, given or otherwise
made available by or under the authority of any Governmental Body or pursuant to
any Legal Requirement; or (b) right under any Contract with any Governmental
Body.
GOVERNMENTAL BODY. "Governmental Body" shall mean any court, tribunal,
arbitrator, authority, agency, commission, official or other instrumentality of
the United States, any foreign country or any domestic or foreign state, county,
city, local or other political subdivision.
LEGAL PROCEEDING. "Legal Proceeding" shall mean any action, suit,
litigation, arbitration, proceeding (including any civil, criminal,
administrative, investigative or appellate proceeding), hearing, inquiry, audit,
examination or investigation commenced, brought, conducted or heard by or
before, or otherwise involving, any court or other Governmental Body or any
arbitrator or arbitration panel.
LEGAL REQUIREMENT. "Legal Requirement" shall mean any federal, state,
local, municipal, foreign or other law, statute, constitute, principle of common
law, resolution, ordinance, code, edict, decree, rule, regulation, ruling or
requirement issued, enacted, adopted, promulgated, implemented or otherwise put
into effect by or under the authority of any Governmental Body.
MATERIAL ADVERSE EFFECT. A violation or other matter will be deemed to
have a "Material Adverse Effect" on a Person if such violation or other matter
(considered together with all other matters that would constitute exceptions to
the representations and warranties set forth in the Agreement or in any Closing
Certificate but for the presence of "Material Adverse Effect" or other
materiality qualifications, or any similar qualifications, in such
representations and warranties) would have a material adverse effect on such
Person's business, condition, assets, liabilities, operations, financial
performance or prospects.
PERSON. "Person" shall mean any individual, entity or Governmental
Body.
REPRESENTATIVES. "Representatives" shall mean officers, directors,
employees, agents, attorneys, accounts, advisors and representatives.
20
SEC. "SEC" shall mean the United States Securities and Exchange
Commission.
SECURITIES ACT. "Securities Act" shall mean the Securities Act of 1933,
as amended.
TAX. "Tax" shall mean any tax (including any income tax, franchise tax,
capital gains tax, gross receipts tax, value-added tax, surtax, excise tax, ad
valorem tax, transfer tax, stamp tax, sales tax, use tax, property tax, business
tax, withholding tax or payroll tax), levy, assessment, tariff, duty (including
any customs duty), deficiency or fee, and any related charge or amount
(including any fine, penalty or interest), imposed, assessed or collected by or
under the authority of any Governmental Body.
TAX RETURN. "Tax Return" shall mean any return (including any
information return), report, statement, declaration, estimate, schedule, notice,
notification, form, election, certificate or other document or information filed
with or submitted to, or required to be filed with or submitted to, any
Governmental Body in connection with the determination, assessment, collection
or payment of any Tax or in connection with the administration, implementation
or enforcement of or compliance with any Legal Requirement relating to any Tax.
