Execution Copy
AGREEMENT, dated November 4, 2005, among MACDONALD XXXXXX, an individual
residing at 00 Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000 ("Macdonald"),
XXXXXXXXXX XXXXXX, an individual residing at 00 Xxxxxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxxxxxx 00000 ("Xxxxxxxxxx"), and MT ULTIMATE HEALTHCARE CORP., a Nevada
corporation with offices located at 00 Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxx
Xxxx 00000 ("MHTC").
INTRODUCTION
MTHC desires to acquire from Macdonald and Xxxxxxxxxx all of the shares
(the "Tudeme MTHC Shares") of capital stock of MHTC held beneficially or of
record thereby in exchange for all of the outstanding capital stock of a
newly-formed Delaware corporation owned solely by MHTC ("Newco"), on the terms
and subject to the conditions hereinafter set forth.
Simultaneously with the execution and delivery and delivery hereof,
MTHC, iTechexpress, Inc., a Nevada corporation ("iTechexpress"), and the
stockholders thereof are executing and delivering the Share Exchange and
Reorganization Agreement, dated as of the date hereof (the "Exchange
Agreement", and together with this Agreement and the documents contemplated
hereby and thereby, the "Transaction Agreements").
NOW THEREFORE, the parties hereto, intending to be legally bound, for
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, hereby agree as follows:
Section 1 Business, Assets, and Liabilities of MTM.
(a) Prior to the closing of the transactions contemplated hereby (the
"Closing"), MTHC has caused the corporate names, business, operations, assets,
properties, intellectual properties, trademarks, service marks, tradenames,
uniform resource locators, telephone numbers, and good will of MTHC and its
subsidiaries (other than iTechexpress, Inc.), together with the operating
business of Abundant Healthcare Inc. ("Abundant"), to be placed into Newco.
(b) At the Closing, Newco shall assume the liabilities set forth in
Schedule 1(a) hereto (the "Assumed MTHC Liabilities").of MTHC.
Section 2 Status of Certain Indebtedness of Macdonald and Xxxxxxxxxx.
(a) At the Closing, MTHC shall assume the liabilities set forth in
Schedule 2(a) hereto (the "Assumed Tudeme Liabilities") of Macdonald and
Xxxxxxxxxx.
(b) MTHC shall cause the Assumed Tudeme Liabilities to be satisfied
or refinanced, or paid according to their respective terms.
(c) At the Closing, MTHC shall use best efforts to substitute its
guarantee and collateral to the Internal Revenue Service, and NIR Group with
guarantees and collateral of MTHC in order relieve Macdonald and Xxxxxxxxxx of
their personal liability and obligation to such creditors and to cause the
lien and security interest relating to such obligations to be removed from
Xxxxxxxxx'x and Marguerite's real estate and other assets.
(d) Not less than five days prior to each payment due to Xxxx Xxxxx
with respect to the obligation described in Schedule 2(a) hereto, MTHC shall
provide written proof to Macdonald and Xxxxxxxxxx that such payment has been
made.
Section 3 Exchanges.
(a) At the Closing, MTHC shall assign to Macdonald all of the issued
and outstanding capital stock of Newco held hereby, which represents all of
the outstanding shares of capital stock of Newco.
(b) At the Closing, Macdonald and Xxxxxxxxxx shall assign to MTHC all
of the Tudeme MTHC Shares.
(c) MTHC has heretofore paid to the Tudemes $50,000 and shall, upon
the execution and delivery hereof, pay to Macdonald the amount of $30,442.82
representing repayment of all loans by Macdonald to MTHC.
(d) (i) MTHC hereby fully and unconditionally releases and
discharges all claims and causes of action which it, ever had, now have, or
hereafter may have against Macdonald and Xxxxxxxxxx, in each case past,
present, or as they may exist at any time after this date, whether currently
known or unknown, relating to, or arising under, or in connection with, the
Assumed Tudeme Liabilities.
(ii) Each of Xxxxxxxxx, Xxxxxxxxxx, and Newco, jointly and
severally, hereby fully and unconditionally releases and discharges all
claims and causes of action which it, ever had, now have, or hereafter may
have against MTHC, in each case past, present, or as they may exist at any
time after this date, whether currently known or unknown, relating to, or
arising under, or in connection with, the Assumed MTHC Liabilities.
(e) MTHC agrees to indemnify and hold harmless each of Xxxxxxxxx,
Xxxxxxxxxx, and Newco against any and all losses, liabilities, damages, and
expenses whatsoever (which shall include for all purposes, but not be limited
to, reasonable counsel fees and any and all expenses whatsoever incurred in
investigating, preparing, or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in
settlement of any claim or litigation) as and when incurred arising out of,
based upon, or in connection with (i) any breach of any representation,
warranty, or covenant of MTHC contained in this Agreement, or (ii) any Assumed
Tudeme Liabilities. The foregoing agreement to indemnify shall be in addition
to any liability MTHC may otherwise have, including liabilities arising under
this Agreement.
(f) Xxxxxxxxx, Xxxxxxxxxx, and Newco, jointly and severally, agrees
to indemnify and hold harmless MTHC against any and all losses, liabilities,
damages, and expenses whatsoever (which shall include for all purposes, but
not be limited to, reasonable counsel fees and any and all expenses whatsoever
incurred in investigating, preparing, or defending against any litigation,
commenced or threatened, or any claim whatsoever, and any and all amounts paid
in settlement of any claim or litigation) as and when incurred arising out of,
based upon, or in connection with (i) any breach of any representation,
warranty, covenant, or agreement of Xxxxxxxxx, Xxxxxxxxxx, or Newco contained
in this Agreement, or (ii) any Assumed MTHC Liabilities. The foregoing
agreement to indemnify shall be in addition to any liability Xxxxxxxxx,
Xxxxxxxxxx, and Newco may otherwise have, including liabilities arising under
this Agreement.
(g) At or prior to the Closing, MTHC shall amend MTHC's corporate
name and the corporate name of each subsidiary so as not to contain any of the
words "MT" or "Ultimate" and hereby agrees not to utilize such terms in any
future corporate name or any name of any subsidiary or division thereof.
Section 5 Representations and Warranties.
(a) MTHC hereby represents and warrants to Macdonald and Xxxxxxxxxx as
follows
(i) Each of MTHC and Newco is a corporation duly organized,
validly existing, and in good standing under the laws of the laws of its
respective jurisdiction of incorporation, with all requisite power and
authority, and all necessary consents, authorizations, approvals, orders,
licenses, certificates, and permits of and from, and declarations and filings
with, all federal, state, local, and other governmental authorities and all
courts and other tribunals, to own, lease, license, and use its properties and
assets and to carry on the businesses in which it is now engaged and the
businesses in which it contemplates engaging.
(ii) Each of MTHC and Newco has all necessary right and power
to enter into this Agreement and to carry out the obligations hereunder and to
consummate the transactions contemplated hereby. All necessary corporate
proceedings of MTHC have been duly taken to authorize the execution, delivery,
and performance thereby of each of this Agreement and each of the agreements
referenced in Schedule 5(a)(ii) hereof (collectively, the "Separation
Agreements"), including, prior to Closing, the consent of the holders of a
majority of the disinterested stockholders of MTHC to the transactions
contemplated hereby and in connection herewith. Each of the Separation
Agreements has been duly executed and delivered by each of MTHC and Newco, and
constitutes a valid and binding obligation thereof, and is enforceable against
MTHC and/or Newco, as applicable, in accordance with its respective terms.
Prior to Closing, the Separation Agreements will have been approved by the
written consent of a majority of the disinterested stockholders of MTHC.
(iii) All of the issued and outstanding shares of capital
stock of Newco is held beneficially and of record by MTHC. The such
outstanding shares of capital stock of Newco are duly and validly authorized
and issued, fully paid, and nonassessable, free and clear of any security
interest, pledge, mortgage, lien (including, without limitation, environmental
and tax liens), charge, encumbrance, adverse claim, preferential arrangement
or restriction of any kind, including, without limitation, any restriction on
the use, voting, transfer (except as otherwise provided herein), receipt of
income or other exercise of any attributes of ownership, and such securities
are not subject to any pre-emptive or similar rights of stockholders. Such
securities are not subject to any options, warrants, convertible securities or
other rights, agreements, arrangements or commitments of any character
relating to interests therein. There are no voting trusts, member agreements,
proxies, or other agreements or understandings in effect with respect to the
voting or transfer of any of such securities.
(b) Macdonald and Xxxxxxxxxx, jointly and severally, hereby represents
and warrants to each of MTHC and Newco as follows:
(i) Each of Macdonald and Xxxxxxxxxx has all necessary right
and power to enter into this Agreement and to carry out the obligations
hereunder and to consummate the transactions contemplated hereby. Each of the
Separation Agreements to which Macdonald or Xxxxxxxxxx is a party has been
duly executed and delivered thereby, as applicable, and constitutes a valid
and binding obligation of Macdonald or Xxxxxxxxxx, as applicable, and is
enforceable against such individual in accordance with its respective terms.
(ii) Each of Macdonald and Xxxxxxxxxx is an individual who
has reached the age majority in his or her respective state of residence and
has all necessary requisite power and authority, and all necessary consents,
authorizations, approvals, orders, licenses, certificates, and permits of and
from, and declarations and filings with, all federal, state, local, and other
governmental authorities and all courts and other tribunals, to own, lease,
license, and use his or her respective properties and assets and to carry on
the respective business in which he or she is now engaged and the respective
businesses in which he or she contemplates engaging.
(iii) All of the issued and outstanding shares of Tudeme MTHC
Shares are held beneficially and of record by Macdonald and Xxxxxxxxxx. The
Xxxxxx MTHC Shares are duly and validly authorized and issued, fully paid, and
nonassessable, free and clear of any security interest, pledge, mortgage, lien
(including, without limitation, environmental and tax liens), charge,
encumbrance, adverse claim, preferential arrangement or restriction of any
kind, including, without limitation, any restriction on the use, voting,
transfer (except as otherwise provided herein), receipt of income or other
exercise of any attributes of ownership, and such securities are not subject
to any pre-emptive or similar rights of stockholders. Such securities are not
subject to any options, warrants, convertible securities or other rights,
agreements, arrangements or commitments of any character relating to interests
therein. There are no voting trusts, member agreements, proxies, or other
agreements or understandings in effect with respect to the voting or transfer
of any of such securities.
Section 6 Conditions.
The obligations of the parties hereto shall be subject to the
satisfaction or waiver in writing of the following conditions between the the
date hereof and the Closing:
(a) As soon as practicable following the execution and delivery
hereof, MTHC shall cause to be prepared, filed with the United States
Securities and Exchange Commission, and circulated to the stockholders of MTHC
such Periodic Reports (as defined in the Exchange Agreement) as shall be
required under applicable securities laws and corporate laws in connection
with the approval of the Separation Agreements and the transactions
contemplated hereby and thereby and in connection herewith and therewith by a
majority of disinterested stockholders of MTHC.
(b) The transactions contemplated by the Exchange Agreement shall
have been consummated.
(c) At or prior to the Closing, MTHC shall enter into a revised
financing arrangement with NIR Group and its affiliates in form and substance
satisfactory to each of MTHC and iTechexpress.
(d) There shall be no amendment in the certificate of incorporation
or by-laws (or, in each case, the comparable charter documents, if any, under
applicable law) of Newco.
(e) There shall be outstanding no option or warrant for any such
share, right to subscribe to or purchase any share of capital stock of Newco,
or security convertible into, or exchangeable or exercisable for, any such
share, otherwise than as contemplated by, or in connection with, this
Agreement.
(f) No dividend or liquidating or other distribution or stock split
shall be authorized, declared, paid, or effected by Newco in respect of the
outstanding shares of Newco. Except as contemplated by the Separation
Agreements, there shall have been no direct or indirect redemption, purchase,
or other acquisition shall be made by Newco of shares of Newco.
(g) Except in the ordinary course of its business, MTHC shall not
permit Newco to borrow money, guarantee the borrowing of money, engage in any
transaction, or enter into any material agreement other than in connection
with the transactions contemplated hereby. For purposes of this Agreement,
references to "material", as well as correlative terms (e.g., materially,
materiality, etc.), shall be deemed to refer to amounts of US$20,000 or more
or effects or consequences of US$20,000 or more.
(h) MTHC will conduct the affairs of Newco so that at the Closing, no
representation or warranty of MTHC will be inaccurate in any material respect,
no covenant or agreement of MTHC will be breached, and no condition in this
Agreement will remain unfulfilled by reason of the actions or omissions of
MTHC. MTHC will use its best efforts to preserve the business operations of
Newco intact, to keep available the services of its present personnel, to
preserve in full force and effect the contracts, agreements, instruments,
leases, licenses, arrangements, and understandings of MTHC and Newco, and to
preserve the good will of its suppliers, customers, and others having business
relations with any of them. Until the Closing, MTHC will conduct the its
affairs and the affairs of Newco in all respects only in the ordinary course,
other than in connection with the matters referenced herein.
(i) MTHC will immediately advise the Tudemes in a detailed written
notice of any material fact or occurrence or any pending or threatened
material occurrence of which it obtains knowledge and which (if existing and
known at the date of the execution of this Agreement) would have been required
to be set forth or disclosed in or pursuant to this Agreement or the
iTechexpress Disclosure Letter, which (if existing and known at any time prior
to or at the Closing) would make the performance by any party of a covenant
contained in this Agreement impossible or make such performance materially
more difficult than in the absence of such fact or occurrence, or which (if
existing and known at the time of the Closing) would cause a condition to any
party's obligations under this Agreement not to be fully satisfied.
(j) MTHC shall use its commercially reasonable efforts to insure that
all confidential information which MTHC or any of its respective officers,
directors, employees, counsel, agents, investment bankers, or accountants may
now possess or may hereafter create or obtain relating to the financial
condition, results of operations, businesses, properties, assets, liabilities,
or future prospects of Newco, any affiliate thereof, or any customer or
supplier thereof or of any such affiliate shall not be published, disclosed,
or made accessible by any of them to any other person or entity at any time or
used by any of them except in the ordinary course of business and for the
benefit of Newco; provided, however, that the restrictions of this sentence
shall not apply (i) after this Agreement is terminated, (ii) as may otherwise
be required by law, (iii) as may be necessary or appropriate in connection
with the enforcement of this Agreement, or (iv) to the extent the information
shall have otherwise become publicly available.
(k) MTHC shall not make any agreement or reach any understanding not
approved in writing by the Tudemes as a condition for obtaining any consent,
authorization, approval, order, license, certificate, or permit required for
the consummation of the transactions contemplated by this Agreement.
(l) Xxxxx Xxxxxxx and such other stockholders of iTechexpress prior
to the transactions contemplated by the Exchange Agreement shall have entered
into, and delivered to the Tudemes a guarantee and and substance reasonably
satisfactory to the Tudemes.
(m) The Closing shall take place on or prior to December 16, 2005.
Until the Closing, MTHC shall currently pay all amounts accruing under the
Assumed Tudeme Liabilities and shall take no action which would damage the
business, operations, prospects, financial condition, or results of operations
of Newco or the operations to held thereby at the Closing.
(n) Prior to Closing, the Separation Agreements shall have been
approved by the written consent of a majority of the disinterested
stockholders of MTHC and pursuant to the applicable requirements of SEC
Regulations 14A and 14C.
Section 7 Miscellaneous.
(a) At any time and from time to time, each party agrees, at its or
his expense, to take such actions and to execute and deliver such documents as
may be reasonably necessary to effectuate the purposes of this Agreement.
(b) Since a breach of the provisions of this Agreement could not
adequately be compensated by money damages, any party shall be entitled, in
addition to any other right or remedy available to it, to an injunction
restraining such breach or a threatened breach and to specific performance of
any such provision of this Agreement, and in either case no bond or other
security shall be required in connection therewith, and the parties hereby
consent to the issuance of such an injunction and to the ordering of specific
performance.
(c) The covenants, agreements, representations, and warranties
contained in or made pursuant to this Agreement shall survive any delivery of
the consideration described herein, irrespective of any investigation made by
or on behalf of any party.
(d) This Agreement sets forth the entire understanding of the parties
with respect to the subject matter hereof, supersedes all existing agreements
between them concerning such subject matter, and may be modified only by a
written instrument duly executed by each party.
(e) Any notice or other communication required or permitted to be
given hereunder shall be in writing and shall be mailed by certified mail,
return receipt requested (or by the most nearly comparable method if mailed
from or to a location outside of the United States) or by Federal Express,
Express Mail, or similar overnight delivery or courier service or delivered
(in person or by telecopy, telex, or similar telecommunications equipment)
against receipt to the party to whom it is to be given at the address of such
party set forth in the preamble to this Agreement (or to such other address as
the party shall have furnished in writing in accordance with the provisions of
this Section 6(e)) with a copy to each of the other party hereto. Any notice
given to any corporate party shall be addressed to the attention of the
Corporate Secretary. Notice to the estate of any party shall be sufficient if
addressed to the party as provided in this Section 6(e). Any notice or other
communication given by certified mail (or by such comparable method) shall be
deemed given at the time of certification thereof (or comparable act), except
for a notice changing a party's address which will be deemed given at the time
of receipt thereof. Any notice given by other means permitted by this Section
6(e) shall be deemed given at the time of receipt thereof.
(f) Any waiver by any party of a breach of any term of this Agreement
shall not operate as or be construed to be a waiver of any other breach of
that term or of any breach of any other term of this Agreement. The failure
of a party to insist upon strict adherence to any term of this Agreement on
one or more occasions will not be considered a waiver or deprive that party of
the right thereafter to insist upon strict adherence to that term or any other
term of this Agreement. Any waiver must be in writing and, in the case of a
corporate party, be authorized by a resolution of the Board of Directors or by
an officer (in each case, if any) of the waiving party.
(g) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto, and their respective successors and
assigns (if not a natural person) and his assigns, heirs, and personal
representatives (if a natural person).
(h) This Agreement does not create, and shall not be construed as
creating, any rights enforceable by any person not a party to this Agreement
(except as provided in Section 6(g)).
(i) If any provision of this Agreement is invalid, illegal, or
unenforceable, the balance of this Agreement shall remain in effect, and if
any provision is inapplicable to any person or circumstance, it shall
nevertheless remain applicable to all other persons and circumstances.
(j) The headings in this Agreement are solely for convenience of
reference and shall be given no effect in the construction or interpretation
of this Agreement.
(k) This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. It shall be governed by and construed
in accordance with the laws of the State of New York, without giving effect to
conflict of laws. Any action, suit, or proceeding arising out of, based on,
or in connection with this Agreement or the transactions contemplated hereby
may be brought in the United States District Court for the Southern District
of New York and each party covenants and agrees not to assert, by way of
motion, as a defense, or otherwise, in any such action, suit, or proceeding,
any claim that it or he is not subject personally to the jurisdiction of such
court, that its or his property is exempt or immune from attachment or
execution, that the action, suit, or proceeding is brought in an inconvenient
forum, that the venue of the action, suit, or proceeding is improper, or that
this Agreement or the subject matter hereof may not be enforced in or by such
court.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first written above.
/s/ McDonald Xxxxxx
__________________________________
Macdonald Tudeme
/s/ Xxxxxxxxxx Xxxxxx
__________________________________
Xxxxxxxxxx Xxxxxx
MT ULTIMATE HEALTHCARE CORP.
/s/ Xxxxx Xxxxxxx
By: ________________________________
Name: Xxxxx Xxxxxxx
Title: Executive Vice President
Schedule 1(a)
All obligations owed to Community Bank, which obligations are insured by the
Small Business Administration;
$85,000 in select liabilities of MT; and
automobile obligation of approximately $35,000.
Schedule 2(a)
$205,921.32 to Xxxx Xxxxx as it appears on the balance sheet of MT dated
September 30, 2005;
All obligations of MT on the balance sheet and payable list, each dated
September 30, 2005 not otherwise enumerated in Section 3 above; and
All obligations of MT to NIR Group and its affiliates and the United States
Internal Revenue Service.
