AGREEMENT AND PLAN
OF MERGER AND REORGANIZATION OF MERGER AND REORGANIZATION
THIS PLAN AND AGREEMENT OF MERGER (hereinafter called the
"Agreement"), dated as of August 25, 2000, is by and between
PROVIDENCE CAPITAL II, INC., a Colorado corporation (hereinafter
referred to as "PROVIDENCE" and/or "Surviving Corporation"), and
XXXXXXXX.XXX, INC. a Delaware corporation (hereinafter called
"Lifelong" and/or "Disappearing Corporation"), said corporations being
hereafter sometimes collectively referred to as the "Constituent
Corporations."
WITNESSETH:
WHEREAS, PROVIDENCE is a corporation duly organized and existing under
the laws of the State of Colorado, having been incorporated in 1999,
and Lifelong is a corporation duly organized and existing under the
laws of the State of Delaware, having been incorporated in 2000; and
WHEREAS, the authorized capital stock of PROVIDENCE consists of fifty
million (50,000,000) shares of $.001 par value Common Stock, of which
seven hundred thirty-four thousand (734,000) shares are outstanding,
and fifty million (50,000,000) shares of Preferred Stock, $.001 par
value, of which no shares are outstanding; and
WHEREAS, the authorized capital stock of Lifelong consists of twenty
million (20,000,000) shares of $.001 par value Common Stock, of which
twenty million (20,000,000) shares are outstanding, and five million
(5,000,000) shares of Preferred Stock, of which (0) shares are
outstanding; and
WHEREAS, the Boards of Directors of the Constituent Corporations deem
it advisable for the general welfare and advantage of the Constituent
Corporations and their respective shareholders that the Constituent
Corporations merge pursuant to this Agreement and pursuant to the
applicable provisions of the laws of the States of Colorado and
Delaware; and
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereby agree, in accordance
with the applicable provisions of the laws of the States of Colorado
and Delaware, that the Constituent Corporations shall merge, to wit:
Xxxxxxxx.xxx, Inc., a Delaware corporation, one of the Constituent
Corporations and which shall cease its existence under the laws of the
State of Delaware pursuant to the Merger (said corporation hereafter
being sometimes called the "Disappearing Corporation"), and the terms
and conditions of the Merger hereby agreed upon (hereafter called the
"Merger") which the parties covenant to observe, keep and perform and
the mode of carrying the same into effect are and shall be as
hereafter set forth:
Exhibit 1.1 - Pg. 1
A. It is intended that the Merger qualify as a tax-free
reorganization within the meaning of Section 368(a)(1)(A) of the
Internal Revenue Code of 1986, as amended (the "Code"). For
accounting purposes, it is intended that the Merger be accounted
for using purchase accounting;
B. This Agreement has been approved by the respective boards of
directors of PROVIDENCE and Lifelong;
C. PROVIDENCE has 734,000 shares issued and outstanding ("PROVIDENCE
Common Stock"), all such shares being issued under Form S-8 filed
with the Securities and Exchange Commission ("SEC") on June 12,
2000, constituting all of the outstanding capital stock of
PROVIDENCE. Contemporaneously with the execution and delivery of
this Agreement, the parties are executing and delivering to
PROVIDENCE certain other agreements;
D. PROVIDENCE will issue up to twenty million (20,000,000)
restricted shares of common stock (the "Shares") to allow for the
conversion of shares to be completed on a one for one basis as
more fully described in Section 1.4 below.
AGREEMENT
The parties to this Agreement agree as follows:
ARTICLE I
DESCRIPTION OF TRANSACTION
1.1 Merger of Lifelong into PROVIDENCE.
Upon the terms and subject to the conditions set forth in this
Agreement, at the Effective Time, Lifelong shall be merged with and
into PROVIDENCE, and the separate existence of Lifelong shall cease.
PROVIDENCE will continue as the surviving corporation in the Merger
and will change its name to "Xxxxxxxx.xxx, Inc."
1.2 Effect of the Merger.
The Merger shall have the effects set forth in this Agreement and in
the applicable provisions of the Colorado 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 Xxxxxx & Xxxxxxx,
P.C., 1250 Turks Head Building at 10:00 a.m. on ____________________,
Exhibit 1.1 - Pg. 2
2000 or at such other time and date as the parties may agree (the
"Scheduled Closing Time"). (The date on which the Closing actually
takes place is referred to in this Agreement as the "Closing Date.")
Contemporaneously with or within forty-eight (48) hours after the
Closing, a properly executed agreement of merger, together with fully
executed articles of merger (a copy of which is attached hereto as
Exhibit A) conforming to the requirements of Article 7-111 of the
Colorado Business Corporation Act, shall be filed with the Secretary
of State of Colorado (the "Secretary"). The Merger shall become
effective at the time such agreement and articles of merger are filed
with the Secretary (the "Effective Time").
1.4 Conversion of Shares.
The mode of carrying into effect the Merger provided in this
Agreement, and the manner and basis of converting the shares of the
Constituent Corporations into shares of the Surviving Corporation are
as follows:
1:4:1 PROVIDENCE Common Stock.
None of the currently issued and outstanding shares of PROVIDENCE
Common Stock, $.001 par value, issued and outstanding at the effective
time of the Merger shall be converted as a result of the Merger, and
all of such shares shall remain issued and outstanding shares of
common stock of the Surviving Corporation as issued under Form S-8
filed with the SEC on August 24, 2000.
1:4:2 Lifelong Common Stock.
At the Effective Time, each share of $.001 par value common stock of
Lifelong issued and outstanding (the "Lifelong Common Stock") shall be
converted into and become shares of common stock of the Surviving
Corporation by converting each share of Lifelong common stock into one
(1) share of PROVIDENCE. PROVIDENCE will newly issue up to twenty
million (20,000,000) shares to be converted on a one for one basis
with the Shares of PROVIDENCE. Each record holder of outstanding
common stock of Lifelong shall be issued shares of PROVIDENCE, upon
the ratio set forth above. Upon direction of Lifelong and receipt by
PROVIDENCE of the stock ledger of Lifelong, each Lifelong shareholder
shall be entitled to receive one or more stock certificates for the
full number of shares of common stock of PROVIDENCE into which the
common stock of Lifelong shall have be converted as aforesaid together
with any dividends on the common stock of Lifelong as to which the
payment date shall have occurred on or prior to the date of the
surrender of said shares. Lifelong shareholders will own
approximately 97% of the twenty million seven hundred thirty-four
thousand (20,734,000) of the fully diluted, common shares of the
Surviving Corporation issued and outstanding. All Shares of common
stock of the Surviving Corporation into which shares of Lifelong
Common Stock are converted as herein provided shall be fully paid and
non-assessable and shall be issued in full satisfaction of all rights
pertaining to such Shares.
Exhibit 1.1 - Pg. 3
1.5 Closing of Lifelong's Transfer Books.
At the Effective Time, holders of certificates representing shares of
Lifelong's common stock that were outstanding immediately prior to the
Effective Time shall cease to have any rights as Stockholders of
Lifelong, and the stock transfer books of Lifelong shall be closed
with respect to all shares of such common stock outstanding
immediately prior to the Effective Time. As soon as practicable after
the Effective Time, the stock ledger representing common stock of
Lifelong issued and outstanding at the time the Merger becomes
effective shall be delivered to the Surviving Corporation, such that
certificates for the Shares may be issued, as above provided. No
further transfer of any such shares of Lifelong's common 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 Lifelong's common stock (a "Lifelong Stock
Certificate") is presented to PROVIDENCE, such Lifelong Stock
Certificate shall be canceled and shall be exchanged as provided in
Section 1.6.
1.6 Exchange of Certificates.
(a) Upon surrender of a Lifelong Stock Certificate to the
Surviving Corporation for exchange, together with such other documents
as may be reasonably required by the Surviving Corporation, the holder
of such Lifelong Stock Certificate shall be entitled to receive in
exchange therefor a certificate representing the number of whole
shares of the Surviving Corporation Common Stock that such holder has
the right to receive pursuant to the provisions of Section 1.4, and
Lifelong Stock Certificate so surrendered shall be canceled. Until
surrendered as contemplated by this Section 1.6, each Lifelong Stock
Certificate shall be deemed, from and after the Effective Time, to
represent only the right to receive upon such surrender a certificate
representing shares of the Surviving Corporation Common Stock (and
cash in lieu of any fractional share of the Surviving Corporation
Common Stock) as contemplated by Section 1.4. If any Lifelong Stock
Certificate shall have been lost, stolen or destroyed, the Surviving
Corporation may, in its discretion and as a condition precedent to the
issuance of any certificate representing the Surviving Corporation
Common Stock, require the owner of such lost, stolen or destroyed
Lifelong Stock Certificate to provide an appropriate affidavit and to
deliver a bond (in such sum as the Surviving Corporation may
reasonably direct) as indemnity against any claim that may be made
against the Surviving Corporation with respect to such Lifelong Stock
Certificate.
(b) No dividends or other distributions declared or made with
respect to the Surviving Corporation Common Stock with a record date
after the Effective Time shall be paid to the holder of any
unsurrendered Lifelong Stock Certificate with respect to the shares of
the Surviving Corporation Common Stock represented thereby, and no
cash payment in lieu of any fractional share shall be paid to any such
holder, until such holder surrenders such Lifelong Stock Certificate
in accordance with this Section 1.6 (at which time such holder shall
be entitled to receive all such dividends and distributions and such
cash payment).
(c) No fractional shares of the Surviving Corporation Common
Stock shall be issued in connection with the Merger, and no
certificates for any such fractional shares shall be issued. In lieu
Exhibit 1.1 - Pg. 4
of such fractional shares, any holder of capital stock of Lifelong who
would otherwise be entitled to receive a fraction of a share of the
Surviving Corporation Common Stock (after aggregating all fractional
shares of the Surviving Corporation Common Stock issuable to such
holder) shall, upon surrender of such holder's Lifelong Stock
Certificate(s), have such fractional interest rounded up to the
nearest whole number.
(d) The Surviving Corporation shall not be liable to any holder
or former holder of common stock of Lifelong for any shares of the
Surviving Corporation Common Stock (or dividends or distributions with
respect thereto), or for any cash amounts, delivered to any public
official pursuant to any applicable abandoned property, escheat or
similar law.
1.7 Lifelong Stockholder Approval; Dissenting Shares.
At the Closing Lifelong shall deliver to Providence a certificate
of each of the stockholders of Lifelong (the "Lifelong Stockholders")
whereby each agrees and acknowledges the following:
(a) that the terms of the Merger, this Agreement, and all other
agreements contemplated herein are hereby approved, ratified and
confirmed and the officers of Lifelong are, and each of them hereby
is, authorized and directed, in the name and on behalf of Lifelong, to
consummate the transactions contemplated by this Agreement, on the
terms set forth in such documents and such other agreements, and any
amendments thereto, as the officers executing such agreements may in
their discretion deem reasonable and appropriate; and
(b) that he or she hereby agrees to waive any "appraisal
rights" within the meaning of Section 55-13-01, et seq. of the
Delaware Business Corporation Act with respect to the Merger.
1.8 Governing Law; Articles of Incorporation
The laws which are to govern the Surviving Corporation are the
laws of the State of Colorado. The Articles of Incorporation of
PROVIDENCE, as heretofore amended, shall, prior to the effective time
of the Merger, be amended to the extent set forth in Paragraph two of
the Articles of Merger, attached hereto, to amend the name of
PROVIDENCE, Inc. to Xxxxxxxx.xxx, Inc. As so amended, such Articles
of Incorporation shall remain in effect thereafter until the same
shall be further amended or altered in accordance with the provisions
thereof.
1.9 Bylaws
The Bylaws of PROVIDENCE (a copy of which is attached as Exhibit
B), at the Effective Time shall be the Bylaws of the Surviving
Corporation until the same shall be altered or amended in accordance
with the provisions thereof.
1.10 Directors and Officers
Directors. At the Effective Time, the Directors of the Surviving
Exhibit 1.1 - Pg. 5
Corporation shall be as set forth below, until their respective
successors are duly elected and qualified at the next annual meeting
of shareholders of the Surviving Corporation. As of the Effective
Time, the previous directors of PROVIDENCE shall resign.
The names and addresses of the Directors of the Surviving Corporation
are as follows:
Name Age Position
---- --- --------
Xxxxxxx Xxxxx 37 President and CEO
Xxxxxxx Xxxxxxx 53 Secretary and CFO
Xxxxxxxx De Laurentiis 43 Vice President - R&D
Officers. The names, titles and addresses of the persons who,
upon the Effective Time, shall constitute the officers of the
Surviving Corporation, and who shall hold office, subject to the
Bylaws, until the first meeting of directors following the next annual
meeting of shareholders, are as follows:
Name Age Position
---- --- --------
Xxxxxxx Xxxxx 37 President and CEO
Xxxxxxx Xxxxxxx 53 Secretary and CFO
Xxxxxxxx De Laurentiis 43 Vice President - R&D
Xxxxxxx de Martigny 49 Vice President-
Marketing
1.11 Tax Consequences. For federal income tax purposes, the Merger is
intended to constitute a reorganization within the meaning of Section
368(a)(1)(B) of the Code. The parties to this Agreement hereby adopt
this Agreement as a "plan of reorganization" within the meaning of
Sections 1.368-2(g) and 1.368-3(a) of the IRS Regulations.
1.12 Accounting Treatment. For accounting purposes, the Merger is
intended to be accounted for as a purchase under GAAP.
1.13 Further Action. If, at any time after the Effective Time, any
further action is determined by the Surviving Corporation to be
necessary or desirable to carry out the purposes of this Agreement or
to vest the Surviving Corporation with full right, title and
possession of and to all rights and property of Lifelong, the officers
and directors of the Surviving Corporation shall be fully authorized
(in the name of Lifelong and otherwise) to take such action.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF LIFELONG
AND ITS STOCKHOLDERS
Exhibit 1.1 - Pg. 6
Except as set forth in the schedule of disclosure to be delivered to
PROVIDENCE two (2) business days prior to the Scheduled Closing Date
(the "Disclosure Schedule"), Lifelong hereby represents and warrants
as follows:
2.1 Organization, Standing and Qualification.
Lifelong is a corporation in existence under the laws of the State of
Delaware, and has all requisite corporate power and authority to own,
to lease or to operate its properties and to carry on its business as
it is now being conducted. Section 2.1 of the Disclosure Schedule
shall set forth a true, complete and correct list of each
jurisdiction, foreign or domestic, in which it (a) owns or leases
property, has employees or otherwise conducts operations and/or (b) is
licensed or qualified to do business as a foreign corporation.
Lifelong is duly licensed or qualified to do business as a foreign
corporation in each jurisdiction in which the character of its
properties, owned or leased, or the nature of its activities, makes
such licensing or qualification necessary, except for where the
failure to be so licensed and qualified would not have a material
adverse effect on the business of Lifelong.
2.2 Authority.
The execution and delivery of this Agreement has been authorized by
the Board of Directors of Lifelong, and the completion of these
transactions have been duly and validly authorized by all necessary
corporate and shareholder action on the part of Lifelong. This
Agreement has been duly executed and delivered by Lifelong and,
assuming the due and valid execution and delivery of this Agreement by
the other parties hereto, constitutes the legal, valid and binding
obligation of Lifelong, to the extent applicable, enforceable in
accordance with its terms, all as may be subject to or affected by any
bankruptcy, reorganization, insolvency, moratorium or similar laws of
general application from time to time in effect and relating to or
affecting the rights or remedies of creditors generally.
2.3 No Conflict, Breach, Default or Violation.
Except as set forth in Section 2.3 of the Disclosure Schedule, the
execution and delivery of this Agreement does not, and the completion
of transactions contemplated by this Agreement will not conflict with,
result in a breach of or the acceleration of any obligation under, or
constitute a default or event of default (or event which with notice
or lapse of time or both would constitute a default) under, any
provision of any charter, bylaw, indenture, mortgage, lien, lease,
license, agreement, contract, permit, order, judgment, or, to the best
of the Lifelong's knowledge, any judicial or administrative decree,
ordinance or regulation, or any restriction to which any property of
Lifelong is subject or by which Lifelong is bound, the result of which
would have a material adverse effect on the business of Lifelong.
2.4 Approvals.
Except as set forth in Section 2.4 of the Disclosure Schedule, no
consent, approval, order or authorization of, or registration,
declaration or filing with, any court, administrative agency or
Exhibit 1.1 - Pg. 7
commission or other governmental agency or instrumentality, domestic
or foreign (a "Governmental Entity"), or third party is required by or
with respect to Lifelong in connection with the execution and delivery
by Lifelong of this Agreement, or the completion of the transactions
contemplated hereby, the absence of which would have a material
adverse effect on Lifelong.
2.5 Capitalization.
The authorized capital stock of Lifelong consists of one hundred
million (100,000,000) shares of Lifelong Common Stock, $.001 par value
per share, of which twenty million (20,000,000) are issued and
outstanding or are reserved for issuance prior to the Closing Date and
fifty million (50,000,000) shares of Lifelong Preferred Stock, of
which none are issued and outstanding. The Lifelong shares are validly
issued, fully paid and non-assessable and not subject to preemptive
rights. Section 2.5 of the Disclosure Schedule shall set forth a
true, complete and correct list of (i) the holders of record of the
issued and outstanding shares of Lifelong Common Stock, and (ii) all
claims, commitments or agreements to which Lifelong is a party or by
which it is bound, obligating Lifelong to issue, deliver or sell, or
to cause to be issued, delivered or sold, additional shares of common
stock of Lifelong or obligating Lifelong to grant, extend or enter
into any such option, warrant, call, right or agreement with respect
to its capital stock. Except as set forth in Section 2.5 of the
Disclosure Schedule, there are, as of the Effective Time there will
be, no agreements obligating Lifelong to redeem, repurchase or
otherwise acquire the common stock of Lifelong, or any other
securities issued by it, or to register the sale of the common stock
of Lifelong under applicable securities laws. Except as set forth in
Section 2.5 of the Disclosure Schedule, there are, as of the Effective
Time there will be, no agreements or arrangements prohibiting or
otherwise restricting the payment of dividends or distributions to the
Lifelong Shareholders by Lifelong.
2.6 Financial Statements.
Lifelong has furnished, or will be furnished five (5) business days
prior to the Scheduled Closing Date, to PROVIDENCE true, complete and
correct copies of the unaudited balance sheet at June 30, 2000 and the
related unaudited income statement, and statements of operations, cash
flows and changes in stockholders equity for the period then ended
(all of these financial statements being collectively referred to
herein as the "Lifelong Financials"). The Lifelong Financials are in
accordance in all material respects with the books and records of
Lifelong, have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis during the periods
involved (except as may be indicated in the notes thereto) and fairly
present the financial position of Lifelong as at the date thereof.
2.7 Liabilities.
To the best of Lifelong's knowledge, except as set forth in Section
2.7 of the Disclosure Schedule, Lifelong has no liabilities or
obligations, either accrued, absolute, contingent, or otherwise,
required to be but not reflected or reserved against in the Lifelong
Financials in accordance with generally accepted accounting
principles, except those incurred in the ordinary course of business,
or those that are not material, and Lifelong knows of no potential
Exhibit 1.1 - Pg. 8
liability that would result in material adverse effect on the business
of Lifelong, other than those (a) reflected or reserved against in the
Lifelong Financials, (b) incurred in the ordinary course of business
since June 30, 2000 or (c) set forth in Section 2.7 of the Disclosure
Schedule.
2.8 Additional Information.
Section 2.8 of the Disclosure Schedule shall set forth a true,
complete and correct list, or shall reference an attachment thereto,
of the following items:
2.8.1 Real Property.
All real property and structures thereon, presently (i) owned by, or
subject to a contract of purchase and sale or option agreement
involving Lifelong (collectively, the "Real Property"), (ii) leased
by, or subject to a lease commitment involving, Lifelong
(collectively, the "Leased Property"), with a description of: (x) the
general use to which such real property is or was put; (y) the general
nature and amount of any Encumbrances thereon; and (z) if leased the
name of the lessor and a true, complete and correct copy of any
written agreement pursuant to which such real property is leased.
2.8.2 Machinery and Equipment.
All machinery, work product, tools, equipment, furnishings, and
fixtures (excluding such items that had a cost basis of $20,000 or
less at the date of the Disclosure Statement) owned, leased or subject
to a contract of purchase and sale or lease commitment, by Lifelong
with, to the extent practical, a description with respect to each such
of: (i) the serial number of such item; (ii) the general location at
which such item is kept; (ii) whether such item is owned or leased;
(iv) if owned, a general description of the nature and amount of any
Encumbrances thereon; and (v) if leased, the name of the lessor and a
true, complete and correct copy of any written agreement pursuant to
which such item is leased.
2.8.3 Receivables.
All accounts and notes receivable presently owned by Lifelong,
together with an appropriate aging schedule, as of June 30, 2000,
which list separately all amounts receivable from the Lifelong
Shareholders, director, officer, employee, or agent of Lifelong, from
or from many of their respective affiliates. Except as set forth on
Section 2.8.3 of the Disclosure Schedule, to the best of Lifelong's
knowledge, all accounts and notes receivable of Lifelong represent
bona fide claims against debtors for services performed or other
charges arising in the ordinary course of business and are subject to
no material defenses, counterclaims or rights of set-off.
2.8.4 Payables.
All accounts and notes payable owed by Lifelong, together with an
appropriate aging schedule, as of June 30, 2000, which list separately
all such amounts payable to any Lifelong Shareholder, director,
officer, employee, or agent of Lifelong, to Lifelong Shareholders or
to any of the irrespective affiliates. Except as set forth in Section
2.8.4 of the Disclosure Schedule, to the best of Lifelong's knowledge,
Exhibit 1.1 - Pg. 9
all accounts and notes payable of Lifelong represent bona fide claims
against Lifelong for services performed or other charges arising in
the ordinary course of business.
2.8.5 Contracts.
All contracts, agreements and commitments of Lifelong, whether or not
made in the ordinary course of business, including leases under which
Lifelong is lessor or lessee, which are to be performed in whole or in
part after the Effective Time, and which (i) involve or may involve
aggregate payments by or to Lifelong of $20,000 or more after the
Effective Time, (ii) are not terminable by Lifelong without premium or
penalty on 60 (or fewer) days' notice, (iii) purport to prohibit or
restrict the ability of Lifelong to participate or compete in any
material line of business or with any person, (iv) purport to prohibit
or restrict another person's ability to be in the line of business of
Lifelong or to compete with Lifelong or (v) are otherwise material to
the business or properties of Lifelong. To the best of Lifelong's
knowledge, except as set forth on Schedule 2.8.5 of the Disclosure
Schedule, Lifelong has complied in all material respects with all
commitments, contracts, agreements and obligations pertaining to it
listed on Section 2.8.5 of the Disclosure Schedule and is not and will
not be as of the date of the Disclosure Schedule, in material default
under any such contracts and agreements and no notice of material
default has been received, in each case which would have a material
adverse effect on the business of Lifelong.
2.8.6 Licenses; Permits.
All approvals, authorizations, consents, licenses, orders, franchises,
rights, registrations and permits of any type held by Lifelong, which
together constitute all material approvals, authorizations, consents,
licenses, orders, franchises, rights, registrations and permits (the
"Permits") required to operate its business as presently conducted. To
the best of Lifelong's knowledge, except as set forth on Section 2.8.6
of the Disclosure Schedule, all such Permits are currently in full
force and effect and Lifelong is in compliance therewith, except to
the extent noncompliance would not have a material adverse effect on
the business of Lifelong. Except as set forth in Section 2.8.6 of the
Disclosure Schedule, the execution and delivery of this Agreement and
the completion of the transactions contemplated hereby will not result
in any revocation, cancellation, suspension or modification of any
such approval, authorization, consent, license, order, franchise,
right, registration or permit, which revocation, cancellation,
suspension or modification would have a material adverse effect on the
business of Lifelong.
2.8.7 Employment Agreements.
All oral or written employment or consulting agreements to which
Lifelong is a party or by which Lifelong is bound, including, without
limitation, all oral or written employment or consulting agreements or
any other arrangements with any person which provide for the payment
of any consideration by Lifelong to such person as a result of the
termination of such person's employment with Lifelong, or on the
completion of the transactions contemplated hereby.
Exhibit 1.1 - Pg. 10
2.8.8 Insurance Policies.
All (i) policies of property, fire and casualty, product liability,
worker's compensation, professional liability and title insurance and
other forms of insurance, under which Lifelong is insured, and (ii)
bonds issued or posted by any person which respect to any operation or
other activities of Lifelong.
2.8.9 Transactions with Management.
All material contracts, leases and commitments by and between Lifelong
and any of its officers, directors, stockholders, employees, or
agents, or any affiliate of any such person. Except as set forth in
Section 2.9 of the Disclosure Schedule, none of the officers,
directors, stockholders, or employees of Lifelong owns, leases or
licenses any interest in any asset used by Lifelong in its business,
other than solely by and through ownership of the capital stock of
Lifelong.
2.8.10 Assumed Names.
All assumed or fictitious names under which Lifelong engages in or
conducts any business.
2.9 Litigation.
Except as shall be set forth in Section 2.9 of the Disclosure
Schedule, there is no suit, action, proceeding or investigation
pending or, to the best knowledge of Lifelong, threatened against or
affecting Lifelong (or any of its officers or directors in connection
with the business of Lifelong), nor is there any outstanding judgment,
order, writ, injunction or decree against Lifelong.
2.10 Absence of Certain Changes.
Except as shall be set forth in Section 2.10 of the Disclosure
Schedule, to the best of Lifelong's knowledge, since June 30, 2000,
there has not been: (i) any material adverse change in the financial
condition, assets, liabilities (contingent or otherwise), income or
business of Lifelong; (ii) any damage, destruction or loss (whether or
not covered by insurance) materially and adversely affecting the
properties or business of Lifelong; (iii) any declaration or payment
of any dividend or distribution in respect of the capital stock or any
direct or indirect redemption, purchase or other acquisition of any of
the capital stock of Lifelong; (iv) any increase in the compensation,
bonus, sales commissions or fee arrangement payable or to become
payable by Lifelong to any of its officers, directors, employees,
consultants or agents other than raises or increases in compensation
consistent with prior policy that are not in excess of five percent of
the individual's annual compensation or hourly rate; (v) the creation
of any material Encumbrance on any of the assets of Lifelong, or the
amendment, modification or extension of any existing material
Encumbrance on any such asset other than any such creation, amendment,
modification or extension effected (A) in the ordinary course of
business, (B) as required in connection with the Lifelong Merger, (C)
in connection with the transfer of those certain assets set forth on
Section 2.10 of the Disclosure Schedule; or (D) for current taxes or
assessments which are not yet due, or being contemplated in good faith
by appropriate proceedings; (vi) any sale, assignment, transfer,
conveyance, lease, hypothecation, abandonment or other disposition of
or agreement to sell, assign, transfer, convey, lease, hypothecate,
abandon or otherwise dispose of, any of the material assets of
Lifelong, other that (A) assets sold in the ordinary course of
Exhibit 1.1 - Pg. 11
business; (B) the assets set forth on Section 2.10 of the Disclosure
Schedule; or (C) any assets which are scrapped as obsolete in
conformance with customary procedure.
2.11 Title to Assets; Encumbrances.
2.11.1 Except as shall be set forth in Section 2.11 of the
Disclosure Schedule, Lifelong owns its material assets, whether real,
personal or intangible, free and clear of all Encumbrances, except for
(i) liens for current taxes and assessments not yet due, or being
contested in good faith by appropriate proceedings, (ii) mechanic's
liens arising under the operation of law or for actions contested in
good faith or for which payment arrangements have been made, (iii)
liens granted or incurred by Lifelong in the ordinary course of its
business or in connection with the financing of office space,
furniture and equipment in the ordinary course of its business, (iv)
easements, covenants, restrictions and other exception to title of
record (which do not materially and adversely affect the operation of
Lifelong), (v) Encumbrances otherwise described in Section 2.11 of the
Disclosure Schedule, or (vi) Encumbrances reflected on the balance
sheet at December 31, 1998 of Lifelong;
2.11.2 Except as shall be set forth on Section 2.11 of the
Disclosure Schedule, there are no parties in possession of any of the
material assets of Lifelong other than Lifelong, other than personal
property held by third parties in the reasonable and ordinary course
of business. Subject to the Encumbrances set forth in Section 2.11 of
the Disclosure Schedule or described in Section 2.11.1, Lifelong
enjoys full, free and exclusive use and quiet enjoyment of its
material assets and its rights pertaining thereto. Subject to the
Encumbrances set forth in Section 2.11 of the Disclosure Schedule or
described in Section 2.11.1, Lifelong enjoys peaceful and undisturbed
possession under all leases under which it is lessee.
2.12 Condition of Assets.
Except as set forth in Section 2.12 of the Disclosure Schedule, to the
best of Lifelong's knowledge, each of the buildings, structures,
equipment or other items of tangible personal property of Lifelong
with a cost basis of at least $20,000 is in working order and repair,
ordinary wear and tear excepted.
2.13 Taxes and Returns.
2.13.1 Except as set forth on Section 2.13 of the Disclosure
Schedule, Lifelong or its subsidiary entities has (i) filed all
material tax returns and reports required to be filed by it and (ii)
paid all material taxes which it has incurred and which have become
due and payable, except such as are being or may be contested in good
faith by appropriate proceedings or relate to the fiscal year ended
December 31, 1999. Except as set forth on Section 2.13 of the
Disclosure Schedule, no deficiencies for any taxes have been proposed,
asserted, or formally assessed against Lifelong, and no requests for
waivers of the time to assess any such tax are pending. The Lifelong
Financials reflect an adequate accrual, based on the facts and
circumstances existing as of the date hereof, for all material taxes
payable by Lifelong (whether or not shown on any return) through the
date thereof. Section 2.13 of the Disclosure Schedule shall include
true, complete and correct copies of all tax returns and reports filed
by Lifelong since January 1, 1998.
Exhibit 1.1 - Pg. 12
2.13.2 For the purposes of this Agreement, the term "tax"
(including, with correlative meaning, the terms "taxes" and "taxable")
shall include all federal, state, local and foreign income, profits,
franchise, gross receipt, payroll, estimated sales, employment, use,
property, withholding, excise and other taxes, duties or assessments
of any nature whatsoever, together with all interest, penalties and
additions imposed with respect to such amounts.
2.14 Employment Practices.
Except as set forth in Section 2.14 of the Disclosure Schedule,
Lifelong has complied with the Occupational Safety and Health Act and
all other laws relating to equal employment of labor including,
without limitation, laws relating to equal employment opportunity and
employment discriminations, employment of illegal aliens, wages, hours
and collective bargaining, the violation or failure to comply with
which would have a material adverse effect on the business of
Lifelong. Notwithstanding anything herein to the contrary, and except
as set for in Section 2.14 of the Disclosure Schedule, Lifelong has
complied with all laws relating to the collection and payment of
social security and withholding taxes, or both, and similar taxes
except where the failure to comply with such laws would not have a
material adverse effect on the business of Lifelong. Except as set
forth in Section 2.14 of the Disclosure Schedule, Lifelong is not
liable for any arrearage of wages or any taxes or penalties for
failure to comply with any of the foregoing, which would have a
material adverse effect on the business of Lifelong.
2.15 Compliance with Law.
Except as set forth in Section 2.15 or any other Section of the
Disclosure Schedule, to the best knowledge of Lifelong, Lifelong is in
compliance with and is not in violation of or in default with respect
to, or in alleged violation of or alleged default with respect to: (a)
any applicable law, rule, regulation or statute applicable to the
operations of Lifelong, or (b) any order, permit, certificate, writ,
judgment, injunction, decree, determination, award or other decision
of any court or any Government Entity to which Lifelong is a party or
by which Lifelong is bound, which violation or default or alleged
violation or default would materially and adversely affect the
business of Lifelong.
2.16 Environmental Requirements and Health and Safety Requirements.
To the best of Lifelong's knowledge, Section 2.16 of the Disclosure
Schedule sets forth true, correct and complete copies of all material
claims and complaints, or reports or other documents related to such
material claims or complaints, in the files of Lifelong made by or
against Lifelong during the past three years pursuant to Environmental
Requirements or Health or Safety Requirements (other than those
documents which Lifelong has determined, in good faith and after
consultation with counsel, should remain protected by the attorney-
client privilege). At present, to the best of Lifelong's knowledge,
none of the operations of Lifelong is subject to any judicial or
administrative proceeding, order, judgment, decree or settlement
alleging or addressing a material violation of or a material liability
under any Environmental Requirement or any Health and Safety
Requirement, except as set forth in Section 2.16 of the Disclosure
Schedule.
Exhibit 1.1 - Pg. 13
2.17 Books and Records.
All the stock records and minute books of Lifelong shall be delivered
to or made available upon request for inspection by PROVIDENCE not
later than two (2) business days prior to the Scheduled Closing Date.
To the best of Lifelong's knowledge, such stock records and minute
books are true and correct in all material respects.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PROVIDENCE
REPRESENTATIONS AND WARRANTIES OF PROVIDENCE
Representations and warranties shall be made by PROVIDENCE and shall
survive the Effective Time for a period of one (1) year. PROVIDENCE
represents and warrants to Lifelong as follows:
3.1 Organization and Standing.
PROVIDENCE is a corporation duly organized, validly existing and in
good standing under the laws of the State of Colorado and is duly
authorized, qualified and in good standing under all applicable laws,
regulations, ordinances and orders of public authorities and has all
requisite corporate power and authority to own, lease and operate its
properties and to carry on its business as it is now being conducted,
except where the failure to be so authorized, qualified or licensed
would not have a material adverse effect on the business of PROVIDENCE
taken as a whole. PROVIDENCE is duly licensed or qualified to do
business as a foreign corporation in each jurisdiction in which the
character of its properties, owned or leased, or the nature of their
activities, makes such licensing or qualification necessary, except
for where the failure to be so licensed and qualified would not have a
material adverse effect on the business of PROVIDENCE.
True and correct copies of the Articles of Incorporation (certified by
the Secretary of State of the States of Colorado) are attached hereto
as Exhibit C.
3.2 Authority.
PROVIDENCE has the necessary corporate power and authority to enter
into this Agreement, as well as the Transaction Documents more fully
defined in Section 6:4, and to consummate the transactions
contemplated hereby and thereby. The execution and delivery of this
Agreement and the Transaction Documents, and the completion of the
transactions contemplated hereby and thereby have been duly authorized
by corporate action of the part of the Board of Directors of
PROVIDENCE , and subject to the convening of a shareholder's meeting
pursuant to Article 7-111-101-109 of the Colorado Business Corporation
Act in order to approve this Agreement and the Transaction Documents,
no further corporate proceedings on the part of PROVIDENCE will be
necessary. When issued pursuant to this Agreement, the Shares of
Exhibit 1.1 - Pg. 14
PROVIDENCE common stock to be issued to Lifelong Shareholders on the
Effective Time will be duly authorized, validly issued, fully paid and
non-assessable, and the PROVIDENCE Shares to be issued to Lifelong
Shareholders on the Effective Time shall be legally equivalent in all
respects to the PROVIDENCE Common Stock issued and outstanding as of
the date hereof. This Agreement has been executed and delivered by
PROVIDENCE and constitutes the legal, valid and binding obligation of
PROVIDENCE, enforceable in accordance with its terms. As of the
Effective Time, each of the Transaction Documents will constitute a
legal, valid and binding obligation of PROVIDENCE , each enforceable
in accordance with its terms.
3.3 No Conflict, Default, Breach or Violation.
The execution and delivery of this Agreement does not, and the
completion of the transactions contemplated hereby and thereby will
not, conflict with or result in a breach of or the acceleration of any
obligation under, or constitute a default or event of default (or
event which with notice or lapse of time or both would constitute a
default) under, any provision of any charter, bylaw, indenture,
mortgage, lien, lease, agreement, contract, order, judgment, or, to
the best knowledge of PROVIDENCE, any judicial or administrative
decree, ordinance or regulation, permit, license, franchise or any
restriction to which any property of PROVIDENCE or any of its
subsidiaries is subject or by which PROVIDENCE or any of its
subsidiaries is bound, the effect of which would be materially adverse
to PROVIDENCE and its subsidiaries taken as a whole. Neither
PROVIDENCE nor any of its subsidiaries is alleged to be in violation
or default or under any applicable law, statute, order, rule or
regulation promulgated or judgment entered by any Governmental Entity,
relating to or affecting the operation, conduct or ownership of the
property or business of PROVIDENCE or such subsidiaries, which
violation or default or alleged violation or default would have a
material, adverse effect, on PROVIDENCE and its subsidiaries taken as
a whole.
3.4 Approvals.
Except for usual and customary compliance with the Securities Act, the
securities or blue sky laws of various states, no consent, approval,
order or authorization of, or registration, declaration or filing
with, any court, administrative agency or commission or other
governmental agency or instrumentality, domestic or foreign (a
"Governmental Entity"), or third party is required by or with respect
to PROVIDENCE in connection with the execution and delivery by
PROVIDENCE of this Agreement, or the completion of the transactions
contemplated hereby, the absence of which would have a material
adverse effect on PROVIDENCE.
3.5 SEC Documents; Filings; Financial Statements.
3.5.1 PROVIDENCE has delivered to Lifelong accurate and complete copies
(excluding copies of exhibits) of each report, registration statement
(on a form other than Form S-8) and definitive information statement
filed by PROVIDENCE with the SEC between November 1, 1999 and the date
of this Agreement (the "PROVIDENCE SEC Documents"). As of the time it
was filed with the SEC (or, if amended or superseded by a filing prior
to the date of this Agreement, then on the date of such filing): (i)
each of the PROVIDENCE SEC Documents complied in all material respects
with the applicable requirements of the Securities Act or the Exchange
Exhibit 1.1 - Pg. 15
Act (as the case may be); and (ii) none of the PROVIDENCE SEC
Documents contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
3.5.2 The consolidated financial statements contained in the PROVIDENCE
SEC Documents: (i) complied as to form in all material respects with
the published rules and regulations of the SEC applicable thereto;
(ii) were prepared in accordance with GAAP applied on a consistent
basis throughout the periods covered, except as may be indicated in
the notes to such financial statements and (in the case of unaudited
statements) as permitted by Form 10-QSB of the SEC, and except that
unaudited financial statements may not contain footnotes and are
subject to year-end audit adjustments; and (iii) fairly present the
consolidated financial position of PROVIDENCE and its subsidiaries as
of the respective dates thereof and the consolidated results of
operations of PROVIDENCE and its subsidiaries for the periods covered
thereby.
3.6 Information Supplied.
To the best knowledge of PROVIDENCE , no written statement,
certificate, schedule, list or other written information furnished by
or on behalf of PROVIDENCE to Lifelong on or prior to the date hereof
in connection herewith contains (after giving effect to any correction
thereof furnished to Lifelong in writing prior to the date hereof) any
untrue statement of a material fact or omits or will omit to state a
material fact required to be stated herein or therein or necessary to
make the statements herein or therein, in light of the circumstances
under which they were made, not misleading.
3.7 Capitalization of PROVIDENCE.
As of the date hereof, the authorized capital stock of PROVIDENCE
consists of fifty million (50,000,000) shares of PROVIDENCE Common
Stock, $.001 par value, of which seven hundred thirty-four thousand
(734,000) shares of common stock are issued and outstanding, all such
shares being issued under Form S-8 filed with the SEC on August 24,
2000, and fifty million (50,000,000) shares of PROVIDENCE Preferred
Stock, $.001 par value, of which none are issued and outstanding. All
of the issued and outstanding shares of capital stock of PROVIDENCE
have been duly and validly authorized and validly issued and are fully
paid and non-assessable. As of the date hereof, except as disclosed
herein, there are no authorized or outstanding subscriptions, options,
conversion rights, warrants or other agreements, securities or
commitments of any nature whatsoever (whether oral or written and
whether firm or conditional) obligating PROVIDENCE or any of its
subsidiaries to issue, deliver or sell, or cause to be issued,
delivered or sold, to any person any shares of PROVIDENCE Common Stock
or any other shares of the capital stock of PROVIDENCE or any shares
of the capital stock of any of its subsidiaries, or any securities
convertible into or exchangeable for any such shares, or obligating
any such person to grant, extend or enter into any such agreement or
commitment. There are no agreements obligating PROVIDENCE to redeem,
repurchase or otherwise acquire the capital stock of PROVIDENCE, or
any other securities issued by it, or to register the sale of the
capital stock of PROVIDENCE under applicable securities laws. There
Exhibit 1.1 - Pg. 16
are no agreements or arrangements prohibiting or otherwise restricting
the payment of dividends or distributions to the PROVIDENCE
Shareholders by PROVIDENCE.
3.8 Title to Assets; Encumbrances.
3.8.1 PROVIDENCE and its subsidiaries own their respective assets,
whether real, personal or intangible, free and clear of all
Encumbrances, except (i) liens for current taxes and assessments not
yet due or being contested in good faith by appropriate proceedings,
(ii) mechanic's liens arising under the operation of law or for
actions contested in good faith or for which payment arrangements have
been made, (iii) liens granted or incurred by PROVIDENCE or any of its
subsidiaries in the ordinary course of its business or in connection
with the financing of office space, furniture and equipment in the
ordinary course of its business, (iv) easements, covenants,
restrictions and other exceptions to title of record which do not
materially and adversely affect the operations of PROVIDENCE and its
subsidiaries, (v) such Encumbrances as do not secure indebtedness in
excess of $10,000, which in the aggregate (meaning as to PROVIDENCE
and all of its subsidiaries) do not secure indebtedness in excess of
$10,000, or (vi) Encumbrances reflected in the SEC Documents;
3.8.2 Except as set forth in the Form 10-KSB for the period ended
December 31, 1999 ("Form 10-K"), there are no parties in possession of
any of the assets of PROVIDENCE or its subsidiaries other than
PROVIDENCE or such subsidiaries, other than personal property held by
third parties in the reasonable and ordinary course of business.
Except as set forth in the Form 10-K, PROVIDENCE and each of its
subsidiaries enjoy full, free and exclusive use and quiet enjoyment of
their respective assets and all rights pertaining thereto, and
PROVIDENCE and its subsidiaries enjoy peaceful and undisturbed
possession under all leases under which any of them is lessee.
3.9 Subsidiaries.
PROVIDENCE has no subsidiaries.
3.10 Litigation.
Except as set forth in the Form 10-K, there is no suit, action,
proceeding or investigation pending or, to the best knowledge of
PROVIDENCE, threatened against or affecting PROVIDENCE or any of its
subsidiaries (or any of its officers or directors in connection with
the business of PROVIDENCE or any of its subsidiaries), nor is there
any outstanding judgment, order, writ, injunction or decree against
PROVIDENCE or any of its subsidiaries, which suit, action, proceeding
or investigation had or could reasonably be expected to have a
material adverse effect on PROVIDENCE and its subsidiaries, taken as a
whole. Except as set forth in the SEC Documents, to the best
knowledge of PROVIDENCE: (i) there are no facts upon which any action,
suit or proceeding could be brought against PROVIDENCE or any of its
subsidiaries that would have a material adverse effect on PROVIDENCE;
and (ii) neither PROVIDENCE nor any of its subsidiaries is subject to
any court order, writ, injunction, decree, settlement agreement or
judgment that contains or orders any ongoing obligations, whether
prohibitory or mandatory in nature, on the part of PROVIDENCE or its
subsidiaries.
Exhibit 1.1 - Pg. 17
3.11 Environmental Requirements and Health and Safety Requirements.
There are no claims, complaints or reports made by or against
PROVIDENCE during the past three years pursuant to Environmental
Requirements or Health or Safety Requirements. At present, to the best
of PROVIDENCE's knowledge, none of the operations of PROVIDENCE is
subject to any judicial or administrative proceeding, order, judgment,
decree or settlement alleging or addressing a material violation of or
a material liability under any Environmental Requirement or any Health
and Safety Requirement.
3.12 Absence of Undisclosed Liabilities.
PROVIDENCE has no liabilities or obligations, either accrued,
absolute, contingent, or otherwise, required to be but not reflected
or reserved against in the PROVIDENCE Financials in accordance with
generally accepted accounting principles, except those incurred in the
ordinary course of business, and PROVIDENCE knows of no potential
liability that would result in material adverse effect on the value or
business of PROVIDENCE.
3.13 Financial Statements.
PROVIDENCE has furnished to Lifelong true, complete and correct copies
of the financial statements of PROVIDENCE, at and for the fiscal year
ended December 31, 1999 (these financial statements being collectively
referred to herein as the "PROVIDENCE Financials"). The PROVIDENCE
Financials will be in accordance with the books and records of
PROVIDENCE, comply as to form in all material respects with applicable
accounting requirements, have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis
during the periods involved (except as may be indicated in the notes
thereto) and fairly present the financial position of PROVIDENCE as at
the date thereof. Since December 31, 1999, there has not been,
occurred or arisen (a) any material adverse change in the business or
the consolidated financial condition of PROVIDENCE and its
subsidiaries, considered as a whole, from that shown on the
aforementioned balance sheet as of December 31, 1999, or (b) any
event, condition or state of facts of any character which, to the best
of the knowledge of PROVIDENCE, materially and adversely affects, or
threatens to materially and adversely affect, the business or results
of operations or financial condition of PROVIDENCE and its
subsidiaries, considered as a whole.
3.14 Contracts.
There are no contracts, agreements, benefit plans, insurance policies,
collective bargaining agreements and commitments of PROVIDENCE,
whether or not made in the ordinary course of business, including
leases under which PROVIDENCE is lessor or lessee, which are to be
performed in whole or in part after the Effective Time, other than an
agreement with Xxxxxx and Xxxxxxx, P.C. referred to in Section 6.9 of
this Agreement.
Exhibit 1.1 - Pg. 18
3.15 Taxes and Returns.
3.15.1 PROVIDENCE has (i) filed all tax returns and reports
required to be filed by it and (ii) paid all taxes, assessments and
governmental charges and penalties which it has incurred and which
have become due and payable, except such as are being or may be
contested in good faith by appropriate proceedings or relate to the
fiscal year ended December 31, 1999. PROVIDENCE is not delinquent in
the payment of any material tax, assessment or governmental charge,
and no deficiencies for any taxes have been proposed, asserted, or
formally assessed against PROVIDENCE, and no requests for waivers of
the time to assess any such tax are pending, the PROVIDENCE Financials
reflect an adequate accrual, based on the facts and circumstances
existing as of the date hereof, for all material taxes payable by
PROVIDENCE (whether or not shown in any return) through the date
thereof. All tax returns and taxes for periods after December 31,
1998 have or will be filed and paid by PROVIDENCE on a timely basis,
unless said taxes are being contested in good faith by appropriate
proceedings.
3.15.2 For the purposes of this Agreement, the term "tax"
(including, with correlative meaning, the terms "taxes" and "taxable")
shall include all federal, state, local and foreign income, profits,
franchise, gross receipt, payroll, estimated sales, employment, use,
property, withholding, excise and other taxes, duties or assessments
of any nature whatsoever, together with all interest, penalties and
additions imposed with respect to such amounts.
3.16 Compliance with Law.
To the best knowledge of PROVIDENCE, PROVIDENCE is in compliance with
and is not in violation of or in default with respect to, or in
alleged violation of or alleged default with respect to: (a) any
applicable law, rule, regulation or statute applicable to the
operations of PROVIDENCE, or (b) any order, permit, certificate, writ,
judgment, injunction, decree, determination, award or other decision
of any court or any Government Entity to which PROVIDENCE is a party
or by which PROVIDENCE is bound, which violation or default or alleged
violation or default would materially and adversely affect the
business, operations, affairs, prospects, properties, assets, profits
or condition of PROVIDENCE . To the best knowledge of PROVIDENCE,
PROVIDENCE is not delinquent with respect to (a) any report required
to be filed with any Governmental Entity or (b) the preparation and
delivery of any reports required by private agreements to which
PROVIDENCE is a party, which delinquency might materially and
adversely affect the business, operations, affairs, prospects,
properties, assets, profits, conditions of PROVIDENCE .
3.17 Intellectual Property
PROVIDENCE has no letters of patent, patent applications, inventions
upon which patent applications have not yet been filed, trade names,
trademarks, trademark registrations and applications, copyrights,
copyright registrations and applications, both domestic and foreign,
presently owned, possessed, used or held by PROVIDENCE.
Exhibit 1.1 - Pg. 19
3.18 Brokers' or Finders' Fees
No agent, broker, person or firm acting on behalf of PROVIDENCE or
under its authority is or will be entitled to any commission, broker,
finder, or financial advisory fees from any of the parties hereto in
connection with any of the transactions contemplated herein.
ARTICLE IV
OBLIGATIONS PENDING EFFECTIVE TIME
4.1 Agreements of Lifelong.
Lifelong agrees that from the date hereof to and through the Effective
Time, Lifelong will:
4.1.1 Corporate Approvals.
Use its best efforts for the purpose of authorizing and obtaining the
consent of the Lifelong Shareholders to this Agreement and the merger
contemplated hereby.
4.1.2 Maintenance of Present Business.
Except as contemplated by this Agreement, Lifelong shall operate its
business only in the usual, regular, and ordinary manner so as to
maintain the goodwill it now enjoys and, to the extent consistent with
such operation, use all reasonable efforts to preserve intact its
present business organization, keep available the services of its
present officers and employees, and preserve its relationship with all
material customers, suppliers, jobbers, distributors, and others
having business dealings with it. If Lifelong proposes to secure a
waiver of this covenant from PROVIDENCE with respect to a particular
transaction, Lifelong shall be deemed in compliance with this covenant
if the President of PROVIDENCE or his successor does not deliver to
Lifelong his objection in writing to any action described in such
waiver request within 72 hours of receiving notice of such waiver
request from Lifelong.
4.1.3 Maintenance of Properties.
At its expense, maintain all of its property and assets in customary
(for Lifelong) repair, order, and condition, reasonable wear and use
and damage by fire or unavoidable casualty excepted.
4.1.4 Maintenance of Books and Records.
Maintain its books of account and records in the usual, regular, and
ordinary manner, in accordance with generally accepted accounting
principles applied on a consistent basis.
Exhibit 1.1 - Pg. 20
4.1.5 Compliance with Law.
Continue to conduct its activities in a manner consistent with its
current understanding of the laws applicable to it, unless and until
it receives written notice from a Governmental Entity that it is not
in compliance with a particular law or laws, at which time Lifelong
will modify its conduct to comply with such law or laws.
4.1.6 Inspection.
Allow PROVIDENCE, its directors, officers and authorized
representatives, during normal business hours, to inspect its records
and to consult with its officers, employees, attorneys, and agents for
the purpose of determining the accuracy of the representations and
warranties made, and the compliance with covenants contained, in this
Agreement. PROVIDENCE agrees that it and its officers and
representatives shall hold all data and information obtained with
respect to the other parties hereto in strict confidence, and further
agrees that it will not use such data or information or disclose the
same to others, except to the extent such date or information either
is, or becomes, published or a matter of public knowledge.
PROVIDENCE and Lifelong agree that they will not issue any press
release or other disclosure of this Agreement without the prior
approval of the other, which shall not be unreasonably withheld,
unless, in the good faith opinion of counsel, such disclosure is
required by law and time does not permit the obtaining of such
consent, or such consent is withheld.
In the event of a breach or threatened breach by PROVIDENCE or its
officers or representatives of the provision of this Section, Lifelong
shall be entitled, in addition to any other available remedy, to an
injunction restraining any disclosure by PROVIDENCE, or its officers
or representatives of any of such confidential information.
4.1.7 Prohibition of Certain Contracts.
Not enter into any contracts outside of the ordinary course of
business without the prior written consent of PROVIDENCE, which
consent will not be unreasonably withheld. If Lifelong proposes to
secure a waiver of this covenant from PROVIDENCE with respect to a
particular transaction, Lifelong shall be deemed in compliance with
this covenant if the President of PROVIDENCE or his successor does not
deliver to Lifelong his objection in writing to any action described
in such waiver request within 72 hours of receiving notice of such
waiver request from Lifelong.
4.1.8 Prohibition of Loans.
Not incur any borrowings, except in the usual and ordinary course of
business, without the prior written consent of PROVIDENCE, which
consent will not be unreasonably withheld.
4.1.9 Prohibition of Certain Commitments.
Not enter into a commitment for expenditures or incur any liability
exceeding $25,000, in the aggregate, except (i) as may be necessary or
desirable for the maintenance of existing facilities, machinery and
equipment in the ordinary course of business or in connection with
Exhibit 1.1 - Pg. 21
measures taken to effect the Merger, as described herein, (ii) as in
otherwise consented to in writing by PROVIDENCE, or (iii) as may
otherwise be in the ordinary course of business.
4.1.10 Disposal of Assets.
The company shall not sell, dispose of, or encumber, any property or
assets, except (i) in the usual and ordinary course of business; or
(ii) as is otherwise consented to in writing by PROVIDENCE or
authorized hereunder.
4.1.11 Maintenance of Insurance.
Keep in full force and effect present insurance policies or other
comparable coverage on all its properties.
4.1.12 No Amendment to Articles of Incorporation.
Not amend its certificate of incorporation or merge or consolidate
with or into any other corporation or change in any manner the rights
of its capital stock or the character of its business.
4.1.13 No Issuance, Sale, or Purchase of Securities.
Except as contemplated by this Agreement or subject to an agreement
described herein or in the Disclosure Schedule, not issue or sell, or
issue options or rights to subscribe to, or enter into any contract or
commitment to issue or sell (upon conversion or otherwise), any shares
of its capital stock, or subdivide or in any way reclassify any shares
of its capital stock, or acquire, or agree to acquire, any shares of
its capital stock.
4.1.14 Prohibition of Dividends.
Not declare or pay any dividend on shares of its capital stock or make
any other distribution of assets to the holders thereof.
4.1.15 Notice of Material Developments.
Promptly notify PROVIDENCE in writing of any material adverse change
in, or any changes which in the aggregate would likely result in a
material adverse change in, the business, properties, condition
(financial or otherwise) or results of operations of Lifelong, whether
or not occurring in the usual and ordinary course of its business, but
only to the extent Lifelong has actual knowledge of any such changes.
4.2 Agreements of PROVIDENCE.
PROVIDENCE agrees that from the date hereof to the Effective Time, it
will:
Exhibit 1.1 - Pg. 22
4.2.1 Corporate Approvals.
Call and hold a meeting of its shareholders to approve the Transaction
contemplated herein, and its board of directors for the purpose of
authorizing and obtaining the consent of PROVIDENCE as sole
stockholder of to this Agreement and the merger contemplated hereby.
4.2.2 Maintenance of Present Business.
Except as contemplated by this Agreement, operate no business.
4.2.3 Maintenance of Books and Records.
Maintain the books of account and records of PROVIDENCE and each of
its subsidiaries in the usual, regular, and ordinary manner, in
accordance with generally accepted accounting principles applied on a
consistent basis.
4.2.4 Compliance with Law.
Continue, and cause its subsidiaries to continue, to conduct its and
their activities in a manner consistent with PROVIDENCE's current
understanding of the laws applicable to said entities, unless and
until PROVIDENCE receives written notice from a Government Entity that
said entities are not in compliance with a particular law or laws, at
which time PROVIDENCE will cause said entity or entities to comply
with such law or laws.
4.2.5 Inspection.
Allow Lifelong and its directors officers and authorized
representatives, during normal business hours, to inspect its and each
of its subsidiaries' records and to consult with its and each of its
subsidiaries' officers, employees, attorneys, and agents for the
purpose of determining the accuracy of the representations and
warranties made, and the compliance with covenants contained, in this
Agreement. Lifelong agrees that it and its officers and
representatives shall hold all data and information obtained with
respect to the other parties hereto in strict confidence, and each
further agrees that it will not use such data or information or
disclose the same to others, except to the extent such data or
information either is, or becomes, published or a matter of public
knowledge. In the event of a breach or threatened breach by Lifelong
or its officers or representatives of the provisions of this Section,
PROVIDENCE shall be entitled, in addition to any other available
remedy, to an injunction restraining any disclosure by Lifelong or its
officers or representatives of any of such confidential information.
4.2.6 Prohibition of Contracts.
Except as contemplated by this Agreement, PROVIDENCE shall not enter
into any contract.
4.2.7 Prohibition of Indebtedness.
PROVIDENCE shall not incur any indebtedness of any kind or nature.
Exhibit 1.1 - Pg. 23
4.2.8 Disposal of Assets.
PROVIDENCE shall not dispose of any assets.
4.2.9 Maintenance of Insurance.
Keep in full force and effect present insurance policies or other
comparable coverage on all of the assets of PROVIDENCE and all of its
subsidiaries.
4.2.10 No Amendments to Articles of Incorporation.
Not amend its Articles of Incorporation, or merge into any other
corporation.
4.2.11 Notice of Material Developments.
Promptly notify Lifelong in writing of any material adverse change in,
or any changes which in the aggregate would likely result in a
material adverse change in, the business, properties, condition
(financial or otherwise), results of operations or prospects of
PROVIDENCE or any of its subsidiaries, whether or not occurring in the
usual and ordinary course of business, but only to the extent
PROVIDENCE or any of such subsidiaries has actual knowledge of any
such changes.
4.2.12 Performance of Contracts.
Perform or cause to be performed all material obligations of
PROVIDENCE or any of its subsidiaries under agreements relating to or
affecting their respective assets, properties or rights.
ARTICLE V
ADDITIONAL COVENANTS OF THE PARTIES ADDITIONAL
COVENANTS OF THE PARTIES
5.1 Filings and Consents.
As promptly as practicable after the execution of this Agreement, each
party to this Agreement (a) shall make all filings (if any) and give
all notices (if any) required to be made and given by such party in
connection with the Lifelong Merger and (b) shall use all commercially
reasonable efforts to obtain all Consents (if any) required to be
obtained (pursuant to any applicable Legal Requirement or Contract, or
otherwise) by such party in connection with the Lifelong Merger and
the other transactions contemplated by this Agreement, other than
those Consents identified on Section 2.25 of the Disclosure Schedule.
PROVIDENCE shall (upon request) promptly deliver to Lifelong a copy of
each such filing made, each such notice given and each such Consent
obtained by Lifelong during the period prior to Closing.
Exhibit 1.1 - Pg. 24
5.2 Public Announcements.
After the date hereof, each party shall not (and each party shall not
permit any of its Representatives to) issue any press release or make
any public statement regarding this Agreement or the Merger, or
regarding any of the other transactions contemplated by this
Agreement, without the other party's prior written consent.
5.3 Best Efforts.
During the period prior to Closing, PROVIDENCE, and Lifelong shall use
their best efforts to cause the conditions set forth in Article 6 to
be satisfied on a timely basis.
5.4 Employment and Consulting Agreements.
Omitted.
5.5 FIRPTA Matters.
Omitted.
5.6 Investment Representation Letter.
At the Closing, each of the Lifelong Shareholders shall execute and
deliver to Lifelong an investment representation letter in the form
attached hereto at Exhibit D (an "Investment Representation Letter").
ARTICLE VI ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF CONDITIONS PRECEDENT TO
OBLIGATIONS OF PROVIDENCE AND LIFELONG PROVIDENCE AND LIFELONG
The obligations of PROVIDENCE, and Lifelong to effect the Lifelong
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:
6.1 Accuracy of Representations.
Each of the representations and warranties made by PROVIDENCE and
Lifelong in this Agreement and in each of the Transaction Documents
and instruments delivered to PROVIDENCE, and Lifelong in connection
with the transactions contemplated by this Agreement shall have been
accurate in all material respects as of the date of this Agreement
(without giving effect to any Material Adverse Effect or other
materiality qualifications, or any similar qualifications, contained
or incorporated directly or indirectly in such representations and
warranties), and shall be accurate in all material respects as of the
Closing Date as if made at the Closing Date (without giving effect to
Exhibit 1.1 - Pg. 25
any update to the Disclosure Schedule, and without giving effect to
any Material Adverse Effect or other materiality qualifications, or
any similar qualifications, contained or incorporated directly or
indirectly in such representations and warranties).
6.2 Performance of Covenants.
All of the covenants and obligations that PROVIDENCE and Lifelong are
required to comply with or to perform at or prior to the Closing shall
have been complied with and performed in all respects.
6.3 Consents.
All Consents required to be obtained in connection with the Lifelong
Merger and the other transactions contemplated by this Agreement shall
have been obtained and shall be in full force and effect.
6.4 Agreements and Documents.
PROVIDENCE and Lifelong shall have received the following agreements
and documents (herein referred to as "Transaction Documents"), each of
which will be in full force and effect as of the Effective Time:
(i) Articles of Merger
(ii) A Disclosure Schedule executed by Lifelong;
(iii) Investment Representation Letters executed by each of the
Lifelong Shareholders;
(iv) Legal Opinions of Xxxxxx & Xxxxxxx, P.C. and Xxxxxxx X.
Xxxxxx, Esq.. dated as of the Closing Date, outstanding in
the forms attached hereto at Exhibit E;
(v) A certificate executed by both parties and containing the
representation and warranty of each party that each of the
representations and warranties set forth in Section 2 and 3
is accurate in all respects as of the Closing Date as if
made on the Closing Date and that the conditions set forth
in Section 6 have been duly satisfied (the "Closing
Certificate");
(vi) Written resignations of all officers and directors of PROVIDENCE,
effective as of the Effective Time;
(vii) Agreement with Xxxxxxx Xxxxxxx to provide investment banking services
for one year after the Effective Time; and
(viii) Agreement with Xxxxxx Xxxx to provide public relations and
investor relations services for one year after the Effective Time.
6.5 Omitted
Exhibit 1.1 - Pg. 26
6.6 No Restraints.
No temporary restraining order, preliminary or permanent injunction or
other order preventing the consummation of the Lifelong Merger shall
have been issued by any court of competent jurisdiction and remain in
effect, and there shall not be any Legal Requirement enacted or deemed
applicable to the Lifelong Merger that makes consummation of the
Lifelong Merger illegal.
6.7 No Legal Proceedings.
No Person shall have commenced or threatened to commence any Legal
Proceeding challenging or seeking the recovery of a material amount of
damages in connection with the Lifelong Merger or seeking to prohibit
or limit the exercise by PROVIDENCE of any material right pertaining
to its ownership of the assets of Lifelong.
6.8 Employees.
*
No more than one of the individuals identified on Exhibit F shall have
ceased to be employed by, or expressed an intention to terminate their
employment with, Lifelong.
6.9 Balance Sheet
The balance sheet of PROVIDENCE shall show no liabilities.
ARTICLE VII
TERMINATION
7.1 Termination Events.
This Agreement may be terminated prior to the Closing:
(a) by PROVIDENCE if PROVIDENCE reasonably determines that the timely
satisfaction of any condition set forth in Section 6 has become
impossible (other than as a result of any failure on the part of
PROVIDENCE to comply with or perform any covenant or obligation of
PROVIDENCE set forth in this Agreement);
(b) by Lifelong if Lifelong reasonably determines that the timely
satisfaction of any condition set forth in Section 6 has become
impossible (other than as a result of any failure on the part of
Lifelong to comply with or perform any covenant or obligation set
forth in this Agreement or in any other agreement or instrument
delivered to PROVIDENCE);
(c) by PROVIDENCE at or after the Scheduled Closing Time if any
condition set forth in Section 6 has not been satisfied by the
Scheduled Closing Time;
Exhibit 1.1 - Pg. 27
(d) by Lifelong at or after the Scheduled Closing Time if any
condition set forth in Section 6 has not been satisfied by the
Scheduled Closing Time;
(e) by PROVIDENCE if the Closing has not taken place on or before
August 31, 2000 (other than as a result of any failure on the part of
PROVIDENCE to comply with or perform any covenant or obligation of
PROVIDENCE set forth in this Agreement);
(f) by Lifelong if the Closing has not taken place on or before
August 31, 2000 (other than as a result of the failure on the part of
Lifelong to comply with or perform any covenant or obligation set
forth in this Agreement or in any other agreement or instrument
delivered to PROVIDENCE); or
(g) by the mutual consent of PROVIDENCE and Lifelong.
7.2 Termination Procedures.
If PROVIDENCE wishes to terminate this Agreement pursuant to Section
7:1(a), Section 7:1(c) or Section 7:1(e), PROVIDENCE shall deliver to
Lifelong a written notice stating that PROVIDENCE is terminating this
Agreement and setting forth a brief description of the basis on which
PROVIDENCE is terminating this Agreement. If Lifelong wishes to
terminate this Agreement pursuant to Section 7:1(b), Section 7:1(d) or
Section 7:1(f), Lifelong shall deliver to PROVIDENCE a written notice
stating that Lifelong is terminating this Agreement and setting forth
a brief description of the basis on which Lifelong is terminating this
Agreement.
7.3 Effect of Termination.
If this Agreement is terminated pursuant to Section 7:1, all further
obligations of the parties under this Agreement shall terminate;
provided, however, that: (a) neither Lifelong nor PROVIDENCE shall be
relieved of any obligation or liability arising from any prior breach
by such party of any provision of this Agreement; (b) the parties
shall, in all events, remain bound by and continue to be subject to
the provisions set forth in Section 9; and (c) PROVIDENCE and Lifelong
shall, in all events, remain bound by and continue to be subject to
Section 5:2.
ARTICLE VIII
INDEMNIFICATION
8.1 Survival of Representations, Etc.
(a) The representations and warranties made by PROVIDENCE, and
Lifelong (including the representations and warranties set forth in
Sections 2 and 3, shall survive the Effective Time for a period of one
(1) year, provided, however, that if, at any time prior to the first
anniversary of the Closing Date, any Indemnitee (acting in good faith)
delivers to either party a written notice alleging the existence of an
inaccuracy in or a breach of any of the representations and warranties
Exhibit 1.1 - Pg. 28
made by either party (and setting forth in reasonable detail the basis
for such Indemnitee's belief that such an inaccuracy or breach may
exist) and asserting a claim for recovery under Section 8.2 based on
such alleged inaccuracy or breach, then the claim asserted in such
notice shall survive the first anniversary of the Closing until such
time as such claim is fully and finally resolved. Notwithstanding the
foregoing, the representations and warranties set forth in Section
2.14 shall survive until the expiration of the applicable statutes of
limitations, including extensions thereof.
(b) The representations, warranties, covenants and obligations of
PROVIDENCE, and Lifelong, and the rights and remedies that may be
exercised by either party, shall not be limited or otherwise affected
by or as a result of any information furnished to, or any
investigation made by or knowledge of either party or any of their
Representatives.
(c) For purposes of this Agreement, each statement or other item of
information set forth in the Disclosure Schedule or in any update to
the Disclosure Schedule shall be deemed to be a representation and
warranty made by PROVIDENCE, or Lifelong in this Agreement.
8.2 Cross Indemnification.
From and after the Effective Time (but subject to Section 8.1(a)),
PROVIDENCE and the and Lifelong shall hold harmless and indemnify each
other from and against, and shall compensate and reimburse the other
party for, any Damages which are directly or indirectly suffered or
incurred by either party or to which either party may otherwise become
subject (regardless of whether or not such Damages relate to any
third-party claim) and which arise from or as a result of, or are
directly or indirectly connected with: (i) any inaccuracy in or breach
of any representation or warranty set forth in Sections 2 or 3
(without giving effect to any Material Adverse Effect or other
materiality qualification or any similar qualification contained or
incorporated directly or indirectly in such representation or
warranty, but giving effect to any update to the Disclosure Schedule
delivered by PROVIDENCE and Lifelong prior to the Closing); (ii) any
breach of any covenant or obligation of PROVIDENCE, or Lifelong
(including the covenants set forth in Sections 4 and 5); or (iii) any
Legal Proceeding relating to any inaccuracy or breach of the type
referred to in clause "(i)" or "(ii)" above (including any Legal
Proceeding commenced by any Indemnitee for the purpose of enforcing
any of its rights under this Section 8).
8.3 Threshold; Ceiling.
PROVIDENCE, or Lifelong shall not be required to make any
indemnification payment pursuant to Section 8.2(a) for any inaccuracy
in or breach of any of their representations and warranties set forth
in Sections 2 and 3 until such time as the total amount of all Damages
(including the Damages arising from such inaccuracy or breach and all
other Damages arising from any other inaccuracies in or breaches of
any representations or warranties) that have been directly or
indirectly suffered or incurred by the other party, exceeds $100,000
in the aggregate. (If the total amount of such Damages exceeds
$100,000, then the Indemnitee shall be entitled to be indemnified
against and compensated and reimbursed for all of such Damages,
including claims for Damages included in the initial $100,000.
Exhibit 1.1 - Pg. 29
8.4 Satisfaction of Indemnification Claim.
In the event either party had any liability (for indemnification or
otherwise) to the other party under this Section 8, the indemnifying
party shall satisfy such liability first, by delivering to such
Indemnitee the number of shares of PROVIDENCE determined by dividing
(a) the aggregate dollar amount of such liability by (b) the average
closing price of PROVIDENCE as reported for the ten trading days
preceding the date such liability is satisfied, and second, to the
extent shares of PROVIDENCE are not available to satisfy in full such
liability, then such difference in cash.
8.5 No Contribution.
PROVIDENCE, and Lifelong waive, acknowledge and agree that they shall
not have and shall not exercise or assert (or attempt to exercise or
assert), any right of contribution, right of indemnity or other right
or remedy against each other in connection with any third party
indemnification obligation or any other liability to which either
party may become subject under or in connection with this Agreement.
8.6 Interest.
Any party who is required to hold harmless, indemnify, compensate or
reimburse any Indemnitee pursuant to this Section 8 with respect to
any Damages shall also be liable to such Indemnitee for interest on
the amount of such Damages (for the period commencing as of the date
on which indemnifying party first received notice of a claim for
recovery by such Indemnitee and ending on the date on which the
liability of such indemnifying party to such Indemnitee is fully
satisfied by such indemnifying party) at a floating rate equal to the
rate of interest publicly announced by Bank of America, N.T. & S.A.
from time to time as its prime, base or reference rate.
8.7 Defense of Third Party Claims.
In the event of the assertion or commencement by any Person of any
claim or Legal Proceeding (whether against PROVIDENCE, or Lifelong)
with respect to which either party may become obligated to hold
harmless, indemnify, compensate or reimburse any third party
Indemnitee pursuant to this Section 8, such party shall have the
right, at its election, to proceed with the defense of such claim or
Legal Proceeding on its own.
ARTICLE IXARTICLE IX
MISCELLANEOUS PROVISIONS MISCELLANEOUS PROVISIONS
9.1 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.
Exhibit 1.1 - Pg.30
9.2 Fees and Expenses.
If the Lifelong Merger is not consummated for any reason whatsoever,
each party to this Agreement shall bear and pay all fees, costs and
expenses (including legal fees and accounting fees) ("Fees and
Expenses") that have been incurred or that are incurred by such party
in connection with the transactions contemplated by this Agreement.
If the Lifelong Merger is consummated, Lifelong shall pay all Fees and
Expenses of PROVIDENCE.
9.3 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).
9.4 Notices.
All notices and other communications required or permitted under this
Agreement and the transactions contemplated hereby shall be in writing
and shall be deemed to have been duly given, made and received on the
date when delivered by hand delivery with receipt acknowledged, or
upon the next Business Day following receipt of facsimile
transmission, or upon the fifth day after deposit in the United States
mail, registered or certified with postage prepaid, return receipt
requested, addressed as set forth below:
(a) If to PROVIDENCE:
0000 Xxxxx Xxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
with a copy (not constituting notice) to:
Xxxxxx & Xxxxxxx, P.C.
0000 Xxxxx Xxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx, Esq.
Telephone: 000-000-0000
Facsimile: 000-000-0000
Exhibit 1.1 - Pg. 31
(b) If to Lifelong:
000 Xxxx Xxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
with a copy (not constituting notice) to:
Law Office of Xxxxxxx X. Xxxxxx
000 Xxxxxxxx Xxxxxx, Xxx. 000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
9.5 Confidentiality.
Without limiting the generality of anything contained in Section 5.2,
on and at all times after the Closing Date, each party shall keep
confidential, and shall not use or disclose to any other Person, any
non-public document or other non-public information in such party's
possession that relates to the business of Lifelong or PROVIDENCE.
9.6 Time of the Essence.
Time is of the essence of this Agreement.
9.7 Headings.
The bolded 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.
9.8 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.
9.9 Governing Law.
This Agreement shall be construed in accordance with, and governed in
all respects by, the internal laws of the State of Colorado and
(without giving effect to principles of conflicts of laws).
Exhibit 1.1 - Pg. 32
9.10 Successors and Assigns.
The rights and obligations of PROVIDENCE, or Lifelong may not be
assigned without the prior written consent of both parties. Subject
to the foregoing, the provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their
respective heirs, personal representatives, successors and assigns.
9.11 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.
9.12 Waiver.
(a) No failure on the part of any Person to exercise any power,
right, privilege or remedy under this Agreement, and no delay on the
part of any Person 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 Person 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 Person; and any such waiver shall not
be applicable or have any effect except in the specific instance in
which it is given.
9.13 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.
9.14 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.
Exhibit 1.1 - Pg. 33
9.15 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.
9.16 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 "Appendix" are intended to refer to Sections of this
Agreement and Appendices to this Agreement.
IN WITNESS WHEREOF, PROVIDENCE and Lifelong have signed this Agreement
as of the date first written above.
PROVIDENCE CAPITAL II, INC.
a Colorado Corporation
By: _____/s/Xxxxxxx Nadeau_______________
Xxxxxxx Xxxxxx, Jr., President
XXXXXXXX.XXX, INC.
a Delaware Corporation
By: _____/s/Xxxxxxx Nowak_________________
Xxxxxxx Xxxxx, Chief Executive Officer
Exhibit 1.1 - Xx. 00
Xxxxxx & Xxxxxxx, X.X. enters into this Agreement
for purposes of evidencing its consent to and
agreement with Section 6.9.
Date:___August 25___, 2000
By:___/s/_____________________
Exhibit 1.1 - Pg. 35
Exhibit A
CERTAIN DEFINITIONS
For purposes of the Agreement (including this Exhibit A):
"Acquisition Transaction" means any transaction involving:
(a) the sale, license, disposition or acquisition of all or a
material portion of PROVIDENCE or Lifelong's business or
assets;
(b) the issuance, disposition or acquisition of (i) any capital
stock or other equity security of PROVIDENCE or Lifelong,
(ii) any option, call, warrant or right (whether or not
immediately exercisable) to acquire any capital stock or
other equity security of PROVIDENCE or Lifelong, or (iii)
any security, instrument or obligation that is or may
become convertible into or exchangeable for any capital
stock or other equity security of PROVIDENCE or Lifelong;
or
(c) any merger, consolidation, business combination,
reorganization or similar transaction involving PROVIDENCE
or Lifelong.
"Affiliate" means, with respect to any specified Person, any other
Person in which the specified Person has a direct or indirect interest
(except through ownership of less than 5% of the outstanding shares of
any entity whose securities are listed on a national securities
exchange or traded in the national over-the-counter market).
"Agreement" shall have the meaning specified in the preamble to the
Agreement.
"PROVIDENCE" shall have the meaning specified in the preamble to the
Agreement.
"PROVIDENCE Common Stock" shall have the meaning specified in Section
1:7:2(i) of the Agreement.
"PROVIDENCE SEC Documents" shall have the meaning specified in Section
3:1:5(a) of the Agreement.
"Balance Sheet" shall have the meaning specified in Section 2:1:7 of
the Agreement.
"Business Day" means a day, other than a Saturday or a Sunday, or a
federal holiday upon which offices of the federal government are not
open for business.
"Closing" and "Closing Date" shall have the meanings specified in
Section 1:1:3 of the Agreement.
"Code" shall have the meaning specified in the recitals to the
Agreement.
"Lifelong" shall have the meaning specified in the preamble to the
Agreement.
Exhibit 1.1 - Pg. 36
"Lifelong Common Stock" shall have the meaning specified in the
recitals to the Agreement.
"Lifelong Contract" means any Contract: (a) to which Lifelong is a
party; (b) by which Lifelong or any of its assets is or may become
bound or under which Lifelong has, or may become subject to, any
obligation; or (c) under which Lifelong has or may acquire any right
or interest.
"Lifelong Financials" shall have the meaning specified in Section
2:1:7 of the Agreement.
"Lifelong Proprietary Asset" means any Proprietary Asset owned by or
licensed to Lifelong or otherwise used by Lifelong.
"Lifelong Returns" shall have the meaning specified in Section 2:1:7
of the Agreement.
"Lifelong Stock Certificate" shall have the meaning specified in
Section 1:8 of the Agreement.
"Consent" means any approval, consent, ratification, permission,
waiver or authorization (including any Governmental Authorization).
"Contract" means 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" shall include any loss, damage, injury, decline in value,
lost opportunity, 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.
"Disclosure Schedule" means the schedule (dated as of the date of the
Agreement) delivered to PROVIDENCE on behalf of Lifelong and the
Stockholders.
"Effective Time" shall have the meaning specified in Section 1:1:3 of
the Agreement.
"Employment Agreements" shall have the meaning specified in Section
2:1:9:7 of the Agreement.
"Encumbrance" means any lien, pledge, hypothecation, charge, mortgage,
security interest, encumbrance, claim, infringement, interference,
option, right of first refusal, preemptive right, community property
interest or restriction of any nature (including any restriction on
the voting of any security, any restriction on the transfer of any
security or other asset, any restriction on the receipt of any income
derived from any asset, any restriction on the use of any asset and
any restriction on the possession, exercise or transfer of any other
attribute of ownership of any asset).
"Entity" means any corporation (including any non-profit corporation),
general partnership, limited partnership, limited liability
partnership, joint venture, estate, trust, Lifelong (including any
Exhibit 1.1 - Pg. 37
limited liability Lifelong or joint stock Lifelong), firm or other
enterprise, association, organization or entity.
"Environmental Law" means any federal, state, local or foreign Legal
Requirement relating to pollution or protection of human health or the
environment (including ambient air, surface water, ground water, land
surface or subsurface strata), including any law or regulation
relating to emissions, discharges, releases or threatened releases of
Materials of Environmental Concern, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Materials of Environmental Concern.
"ERISA" shall have the meaning specified in Section 2:1:19 of the
Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fees and Expenses" shall have the meaning specified in Section 9:2 of
the Agreement.
"First Anniversary" shall have the meaning specified in Section 8:1 of
the Agreement.
"GAAP" means generally accepted accounting principles.
"Governmental Authorization" means 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" means any: (a) nation, state, commonwealth,
province, territory, county, municipality, district or other
jurisdiction of any nature; (b) federal, state, local, municipal,
foreign or other government; or (c) governmental or quasi-governmental
authority of any nature (including any governmental division,
department, agency, commission, instrumentality, official,
organization, unit, body or Entity and any court or other tribunal).
"Indemnitees" means the following Persons: (a) PROVIDENCE or Lifelong;
(b) PROVIDENCE or Lifelong's current and future affiliates; (c) the
respective Representatives of the Persons referred to in clauses "(a)"
and "(b)" above; and (d) the respective successors and assigns of the
Persons referred to in clauses "(a)", "(b)" and "(c)" above; provided,
however, that the Stockholders shall not be deemed to be
"Indemnitees."
"Investment Representation Letter" shall have the meaning specified in
Section 5.6 of the Agreement.
"IRS" means the Internal Revenue Service.
"Legal Proceeding" means 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" means any federal, state, local, municipal,
foreign or other law, statute, constitution, 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.
Exhibit 1.1 - Pg. 38
"Material Adverse Effect" means a violation or other matter will be
deemed to have a "Material Adverse Effect" on Lifelong 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 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 Lifelong's business, condition, assets,
liabilities, operations, financial performance or prospects.
"Material Contracts" shall have the meaning specified in Section
2:1:9:9 of the Agreement.
"Materials of Environmental Concern" means chemicals, pollutants,
contaminants, wastes, toxic substances, petroleum and petroleum
products and any other substance that is now or hereafter regulated by
any Environmental Law or that is otherwise a danger to health,
reproduction or the environment.
"Merger" shall have the meaning specified in the recitals to the
Agreement.
"Person" means any individual, Entity or Governmental Body.
"Pre-Closing Period" shall have the meaning specified in Section 5:1
of the Agreement.
"Proprietary Asset" means any: (a) patent, patent application,
trademark (whether registered or unregistered), trademark application,
trade name, fictitious business name, service xxxx (whether registered
or unregistered), service xxxx application, copyright (whether
registered or unregistered), copyright application, maskwork, maskwork
application, trade secret, know-how, client list, franchise, system,
computer software, computer program, invention, design, blueprint,
engineering drawing, proprietary product, technology, proprietary
right or other intellectual property right or intangible asset; or (b)
right to use or exploit any of the foregoing.
"Registration Statement" shall have the meaning specified in Section
3:1:5 of the Agreement.
"Related Party" means: (i) the Stockholders; (ii) each individual who
is, or who has at any time since October 15, 1997 been, an officer of
Lifelong; (iii) each member of the immediate family of each of the
individuals referred to in clauses "(i)" and "(ii)" above; and (iv)
any trust or other entity (other than Lifelong) in which any one of
the individuals referred to in clauses "(i)", "(ii)" and "(iii)" above
holds (or in which more than one of such individuals collectively
hold), beneficially or otherwise, a material voting, proprietary or
equity interest).
Exhibit 1.1 - Pg. 39
"Representatives" means officers, directors, employees, agents,
attorneys, accountants, advisors and representatives.
"Scheduled Closing Time" shall have the meaning specified in Section
7:1(c) of the Agreement.
"SEC" means the United States Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Shares" shall have the meaning specified in Section 1:6:1 of the
Agreement.
"Stockholders" shall have the meaning specified in the preamble to the
Agreement.
"Tax" means 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" means 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.
Exhibit 1.1 - Pg. 40
AGREEMENT AND PLAN OF MERGER
AND REORGANIZATION
among:
PROVIDENCE CAPITAL II, INC.,
a Colorado corporation;
XXXXXXXX.XXX, INC.,
a Delaware corporation;
___________________________
Dated as of July __, 2000
___________________________
EXHIBITS
Exhibit Document
(I) Articles of Merger
(II) a Disclosure Schedule to be executed by
PROVIDENCE and Lifelong; at closing
(III) Investment Representation Letters to be executed
by each of the Lifelong Shareholders; at closing
(IV) Legal Opinions of Xxxxxx & Xxxxxxx, P.C. and
Xxxxxxx X. Xxxxxx, Esq.dated as of the Closing
Date, substantially in the forms attached hereto
at Exhibit I;
(V) Certificate of Board of Directors Lifelong.
(VI) Certificate of Board of Directors PROVIDENCE.
Exhibit 1.1 - Pg. 41
APPENDIX I
PROVIDENCE CAPITAL II, INC.
and
XXXXXXXX.XXX, INC.
ARTICLES OF MERGER
Pursuant to the provisions of the Colorado Business Corporation Act
(CRS 0-000-000, et seq., as amended) the undersigned corporations
adopt the following Articles of MERGER:
FIRST: Attached hereto as Exhibit A is the Plan of Merger of
PROVIDENCE CAPITAL II, INC., a Colorado corporation (the
"Surviving Corporation"), and XXXXXXXX.XXX, INC., a
Delaware corporation (the "Disappearing Corporation").
SECOND: The Plan of Merger was duly adopted by the Boards of
Directors, or other governing body, of the respective
corporations on August 22, 2000, and approved by the Board
of Directors and Shareholders of PROVIDENCE CAPITAL II,
INC. on August 23, 2000, and by the shareholders of
XXXXXXXX.XXX, INC., on August 24, 2000, in the manner
prescribed by the Delaware Statutes. The number of shares
voted for the Plan of Merger was, with respect to each
corporation, sufficient for approval as set forth below.
(A) The number of shares of PROVIDENCE CAPITAL II, INC.
outstanding at the time of such adoption was 734,000, and the
number of Shares entitled to vote thereon was:
734,000.
The designation and number of outstanding shares of each
class entitled to vote thereon as a class were:
NONE.
The number of shares of XXXXXXXX.XXX, INC. outstanding at
the time of such adoption was 20,000,000, and the number of
Shares entitled to vote thereon was:
20,000,000
Exhibit 1.1 - Pg. 42
The designation and number of outstanding shares of each
class entitled to vote thereon as a class were:
NONE.
(B) The number of shares voted for such Plan of Merger by
PROVIDENCE CAPITAL II, INC. was 734,000, and the number of shares
voted against such Plan of Merger was:
NONE.
The number of shares voted for such Plan of Merger by
XXXXXXXX.XXX, INC., was unanimous and the number of shares
voted against such Plan of Merger was:
NONE.
The address of the registered office of the Parent Corporation and
Surviving Corporation shall continue to be 00 Xxxx Xxxxxxxx Xxxxxxxx
Xxxxxxxxx, Xxxxxxxx Xxxxxxx, XX 00000, and the name of the registered
agent at such address is Xxxx X. Xxxxxxxx, Esq. Either the registered
office or the registered agent may be changed in the manner provided
by law.
______________________________
REGISTERED AGENT
IN WITNESS WHEREOF, the following persons have duly executed and
verify these Articles of Merger this 28th day of August, 2000.
PROVIDENCE CAPITAL II, INC.,
a Colorado corporation
Attest:
_____________________ By:______________________
XXXXXXX XXXXXX, JR.,
Its President
XXXXXXXX.XXX, INC.,
a Delaware corporation
By:______________________
XXXXXXX XXXXX,
Its President
Dated ________________________
Exhibit 1.1 - Pg. 43
APPENDIX II
DISCLOSURE SCHEDULE
XXXXXXXX.XXX
------------
CERTIFICATE REGARDING
REPRESENTATIONS AND WARRANTIES
AND
PERFORMANCE OF OBLIGATIONS
The undersigned, XXXXXXXX.XXX, a Delaware corporation, (the
"Company"), hereby certified the following:
1. The representations and warranties of the Company
contained in Article 2 of the Plan and Agreement of Merger
dated August 25, 2000 (the "Agreement") are true on and as
of the Closing Date (as defined in the Agreement) as though
such representations and warranties had been made at that
time.
2. All the terms, covenants, agreements and
conditions of the Agreement to be complied with and
performed by the Company or PROVIDENCE CAPITAL II, INC., a
Colorado corporation, have been complied with, performed or
waived.
IN WITNESS WHEREOF, the undersigned has executed this Officer's
Closing
Certificate as of the 25 day of August, 2000.
XXXXXXXX.XXX
Exhibit 1.1 - Pg. 44
APPENDIX III
LIFELONG INVESTMENT REPRESENTATION LETTER
______________________, 2000
XXXXXXXX.XXX, INC.
c/o Xxxxxxx Xxxxx
000 Xxxx Xxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
Re: Investment Representation Letter - Plan of Share Merger
between Providence Capital II, Inc. and XXXXXXXX.XXX, INC.
Ladies and Gentlemen:
In connection with the exchange of all of the outstanding capital
stock of XXXXXXXX.XXX, INC., a Delaware corporation (the "Company"),
of which I am a stockholder, with Providence Capital II, Inc., a
Colorado corporation ("Providence"), pursuant to a share exchange of
the Company with Providence, and the Company's common stock converting
into the right to receive a certain number of shares of Providence's
common stock, par value $0.001 per share ("Common Stock") including
shares of Common Stock issuable pursuant to the Plan of Merger dated
as of the date hereof by and among Providence, the Company, the
undersigned individuals identified on the signature pages attached
thereto (the "Stockholders"), or the Stockholders' Agent (the "Plan
of Merger"), as outlined in the Plan of Merger, each of the
undersigned hereby makes the following certifications and
representations with respect to the Common Stock that is being
exchanged by the undersigned pursuant to the Plan of Merger (the
"Shares").
The undersigned is either an "accredited investor," as that term is
defined in Regulation D of the Securities Act of 1933, as amended (the
"Securities Act") or prior to the acquisition of Common Stock, (i) has
been given an opportunity by Providence to ask questions and receive
answers concerning the terms and conditions of the offering and to
obtain any additional information from Providence that is necessary to
make an informed decision regarding the offering, and (ii) has been
advised by Providence of the limitations on resale.
By answering the questions listed below, the undersigned further
represents that the undersigned has the educational background and the
business and financial knowledge and experience necessary to evaluate
the prospective investment in Providence:
Exhibit 1.1 - Pg. 45
Page 2
XXXXXXXX.XXX, INC.
_____________________, 2000
_____________________
1. Please describe your educational background, indicating degrees
obtained.
2. a) Please state your present occupation, employer,
primary business address, and business phone number.
(b) Please describe your occupational history briefly.
Specific employers need not be identified. What is sought
is a description of your experience in financial and
business matters.
3. Please indicate your prior experience in investing in new,
speculative, companies.
4. Please indicate any other relevant investment experience.
5. Please describe any pre-existing personal or business
relationship between you and Providence, or any of its officers
or directors.
Exhibit 1.1 - Pg. 46
Page 3
XXXXXXXX.XXX, INC.
_____________________, 2000
_____________________
6. If you have a background or experience in the business conducted
by Providence, please describe.
The undersigned represents and warrants that the undersigned is
acquiring the Shares solely for the undersigned's account for
investment and not with a view to or for sale or distribution of the
Shares or any part thereof. The undersigned also represents that the
entire legal and beneficial interests of the Shares the undersigned is
acquiring is being acquired for, and will be held for, the
undersigned's account only.
The undersigned understands that the Shares have not been registered
under the Securities Act on the basis that no distribution or public
offering of the Shares is to be effected. The undersigned realizes
that the basis for the exemption may not be present if,
notwithstanding the undersigned's representations, the undersigned has
in mind merely acquiring the Shares for a fixed or determinable period
in the future, or for a market rise, or for sale if the market does
not rise. The undersigned has no such intention.
The undersigned recognizes that the Shares being acquired by the
undersigned must be held indefinitely unless they are subsequently
registered under the Securities Act or an exemption from such
registration is available. The undersigned is aware that the Shares
may not be sold pursuant to Rule 144 adopted under the Securities Act
("Rule 144") unless certain conditions are met including, among other
things, (1) the availability of certain current public information
about the Purchaser, (2) the passage of required holding periods under
Rule 144 and (3) compliance with limitations on the volume of shares
which may be sold during any three-month period. The undersigned
acknowledges that the certificates representing the Shares will be
legended to reflect these restrictions.
The undersigned further agrees not to make any disposition of all or
any part of the Shares being acquired in any event unless and until:
1. The Shares are transferred pursuant to Rule 144 or 701; or
2. Providence shall have received a letter secured by the
undersigned from the Securities and Exchange Commission stating
that no action will be recommended to the Commission with respect
to the proposed disposition; or
Exhibit 1.1 - Pg. 47
Page 4
XXXXXXXX.XXX, INC.
_____________________, 2000
_____________________
3. There is then in effect a registration statement under the
Securities Act covering such proposed disposition and such
disposition is made in accordance with said registration
statement; or
4. (i) The undersigned shall have notified Providence of the
proposed disposition and shall have furnished Providence with a
detailed statement of the circumstances surrounding the proposed
disposition and (ii) the undersigned shall have furnished
Providence with an opinion of counsel for the undersigned to the
effect that such disposition will not require registration of
such Shares under the Securities Act.
Signature
_________________________________
Print Name
__________________________________
Exhibit 1.1 - Pg. 48
APPENDIX IV
LEGAL OPINIONS
August __, 2000
CONFIDENTIAL
The Board of Directors
XXXXXXXX.XXX, INC.
Re: Plan and Agreement of Merger dated July __, 2000 between
PROVIDENCE CAPITAL II, INC., and XXXXXXXX.XXX, INC.
Ladies and Gentlemen:
We render herewith our opinion as to certain matters pursuant to the
Plan and Agreement of Merger dated July __, 2000 (the "Plan"), made by
and among ") PROVIDENCE CAPITAL II, INC. a Colorado corporation
("PROVIDENCE" or the "Surviving Corporation, and XXXXXXXX.XXX, INC., a
corporation (the "Disappearing Corporation"), involved in the Section
4(2), 4(6) or Regulation D private placement of common shares of
PROVIDENCE (the "Shares"), conducted in compliance with the Securities
Act of 1933 (the "Act").
In rendering our opinion, we have examined and relied upon the
following:
(a) The Articles of Incorporation of the Surviving Corporation filed
with the State of Colorado;
(b) The materials contained in the Plan, Disclosure Schedules and
Certificates of the Board of Directors (the "Confidential Documents")
concerning the transactions contemplated thereby and the Acquisition
by the Surviving Corporation of all of the issued and outstanding
common shares of the Disappearing Corporation (the "Surrendered
Shares");
Exhibit 1.1 - Pg. 49
Page 2
The Board of Directors
August __, 2000
________________________
(c) The Certificate of Good Standing dated ________________, attached
hereto as Exhibit "A" (the "Company's Certificate").
The opinions expressed in subparagraphs three, four, six, seven and
nine below, as to factual matters, are given in reliance upon the
Company's Securities Certificates and the Certificate of the Board of
Directors, attached hereto as Exhibit "B", confirming the fully
diluted capitalization of the Surviving Corporation and all of its
subsidiaries;
(d) Such other documents and instruments as we have deemed necessary
in order to enable us to render the opinions expressed herein.
For the purposes of rendering this opinion, we have assumed that no
person or entity has engaged in fraud or misrepresentation regarding
the inducement relating to, or the execution or delivery of, the
documents reviewed. Furthermore, we express no opinion as to the
validity of any of the assumptions, form, or content of any financial
or statistical data contained in the Confidential Documents. We do
not assume any obligation to advise officers, directors, their
advisors or representatives of the parties to the Plan, beyond the
opinions specifically expressed herein. The terms used in this
opinion shall have the meaning ascribed to them in the Plan and other
documents relied upon in rendering our opinion. As used in paragraphs
five and nine hereof the phrase "of which we have knowledge" means
that such knowledge is based solely upon conversations with
representatives of the Surviving Corporation and a review of our own
files.
Based upon the foregoing assumptions, our review of the above
documents and our reliance, as to factual matters, upon the
representations in the Company's Board of Director Certificates, and
subject to the qualifications listed herein, we are of the opinion
that:
1. The Surviving Corporation is a duly organized and validly
existing corporation under the laws of the State of Colorado, and upon
the filing of required state documents with the
Exhibit 1.1 - Pg. 50
Page 3
The Board of Directors
August __, 2000
_________________________
appropriate authorities, is fully authorized to transact the business
in which it is engaged in accordance with the Plan and as described in
the Confidential Documents.
2. The Plan has been duly authorized, executed and delivered and is
a valid and binding agreement of the Surviving Corporation, having
adequate authorization and having taken all action necessary to
authorize the indemnification provisions contained therein; provided,
however, that no opinion is rendered as to the validity or
enforceability of such indemnification provisions insofar as they are
or may be held to be violative of public policy (under either state or
federal law) against such types of provisions in the context of the
offer, offer for sale, or sale of securities.
3. The Surrendered Shares, when transferred, will be validly and
legally issued under the laws of the State of Colorado. The
Surrendered Shares, when transferred, will be fully paid and non-
assessable.
4. The Surrendered Shares, when transferred, will conform in all
material respects to all statements concerning them contained in the
Confidential Documents.
5. The consummation of the transactions discussed in the
Confidential Documents by the Surviving Corporation will not result in
any breach of any of the terms of, or constitute a default under, any
mortgage, loan commitment, indenture, deed of trust, agreement or
other instrument to which it is a party and of which we have
knowledge, or violate, insofar as it is directed to the Surviving
Corporation, any order of any court or any federal or state regulatory
body or administrative agency having jurisdiction over it or over its
property and of which we have knowledge.
6. To the best of our knowledge after making reasonable inquiry,
there is not in existence, pending or threatened any action, suit or
proceeding to which the Surviving Corporation is a party, except as
set forth in the Confidential Documents, before any court or
governmental agency or body, which might, if decided adversely,
materially affect the subject matter of the Plan or the financial
condition, business or prospects of the Surviving Corporation.
Exhibit 1.1 - Pg. 51
Page 4
The Board of Directors
August __, 2000
_________________________
7. The Surviving Corporation has full power and authority to own its
properties and conduct its business as described in the Confidential
Documents.
8. The disclosures contained in the Confidential Documents, taken
together with Lifelong's offer to the Surviving Corporation to provide
access to additional information, are sufficient to satisfy the
"information requirements" of the registration exemptions under the
Securities Act of 1933, as amended, assuming the receipt by the
Surviving Corporation of a copy of the Confidential Documents.
9. Based upon the Surviving Corporation's Certificate, we are
unaware of any legal or governmental proceedings required to be
described in the Confidential Documents which are not described
therein or any contracts or documents of any character required to be
described in the Confidential Documents which are not described as
required.
Nothing herein shall constitute an opinion as to the laws of any state
or jurisdiction other than the laws of the State of Colorado and
federal law regardless of the selected choice of law stated in any
document discussed in this letter.
Our opinion is limited to the specific opinions expressed above. No
other opinions are intended to be inferred therefrom. This opinion is
addressed to and is for the benefit solely of the Board of Directors,
and no other person or persons shall be furnished a copy of this
opinion or are entitled to rely on the contents herein without our
express written consent; provided, however, that counsel to Lifelong
shall be entitled to rely on this opinion. In the event that any of
the facts are different from those which have been furnished to us and
upon which we have relied, the conclusions as set forth above cannot
be relied upon.
Exhibit 1.1 - Pg. 52
Page 5
The Board of Directors
August __, 2000
_______________________
The opinions contained in this letter are rendered as of the date
hereof, and we undertake no, and hereby disclaim any, obligation to
advise you of any changes in or any new developments which might
affect any matters or opinions set forth herein.
Very truly yours,
Xxxxxx & Xxxxxxx, P.C.
JRS/ac
cc: Xxxxxxx Xxxxxx, Jr.
Xxxx X. Xxxxxxxx
Exhibit 1.1 - Pg. 53
August 23, 2000
Xxxx X. Xxxxxxx, Esq.
Xxxxxx & Xxxxxxx, PC
0000 Xxxxx Xxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
Providence Capital II, Inc.
Re: XxxxXxxx.xxx, Inc.
------------------
Gentlemen,
We have acted as counsel to XxxxXxxx.xxx, Inc., a Delaware corporation
(the "Company"), in connection with the Company's formation and merger
with Providence Capital II, Inc., a Colorado corporation.
This opinion has been prepared and is to be construed in accordance
with the Report of Standards for Florida Opinions dated April 8, 1991
issued by the Business Law Section of The Florida Bar (the "Report").
The Report is incorporated by reference into this opinion.
We have assumed the authenticity of all records, documents and
instruments submitted to us as originals, the genuineness of all
signatures, the legal capacity of natural persons and the conformity
to the originals of all records, documents and instruments submitted
to us as copies.
We have based our opinion upon our review of the following records,
documents, instruments and certificates:
(a) The Articles of Incorporation of the Company and each
amendment or restatement filed since inception, certified
by the Delaware Secretary of State as of February 16, 2000,
and certified to us by an officer of the Company as being
complete and in full force and effect as of the date of
this opinion;
(b) Good Standing Certificate relating to the Company
issued by the Delaware Secretary of State dated August 23,
2000.
(c) The stock ledger of the Company certified to us by an
officer of the Company as being complete and accurate as of
the date of this opinion;
(d) Records certified to us by an officer of the Company as
constituting all records of proceedings and actions of the
Board of Directors of the Company and any committees
thereof relating the issuance of all currently outstanding
shares of capital stock of the Company; and
(e) A certificate of the Chief Executive Officer and the
Secretary of the Company as to certain factual matters
related to the Company (the "Officers' Certificate").
Our opinion is rendered subject to the following specific
qualifications:
(a) Our opinion expressed in Paragraph I of Part III below as
to the good standing of the Company under the laws of
Delaware is based solely upon the certificate identified in
item (b) above. We have made no additional investigation
after the date of such certificates in rendering our
opinion expressed in Paragraph I of Part III, although
nothing has come to our attention that would lead us to
believe that such opinion is inaccurate as of the date
hereof,
Exhibit 1.1 - Pg. 54
(b) Our opinion expressed in Paragraph 2 of Part III below as
to the fully paid and non-assessable status of the
outstanding shares of capital stock of the Company is based
solely on the records identified in items (c) and (d) above
and the representations set forth in the Officers'
Certificate to the effect that the consideration for all
outstanding shares of capital stock of the Company was
received by the Company.
Where our opinion relates to "my knowledge", that knowledge is based
upon our examination of the records, instruments and certificates
enumerated or described above and our actual contemporaneous
knowledge. We have not examined any records of any court,
administrative tribunal or other similar entity in connection with
this opinion.
II.
This opinion is limited to the federal laws of the United States of
America and the laws of the State of Delaware, and we disclaim any
opinion as to the laws of any other jurisdiction. We further disclaim
any opinion as to any statute, rule, regulation, ordinance, order or
other promulgation of any regional or local governmental body or as to
any related judicial or administrative opinion.
III.
Based upon the foregoing and our examination of such questions of law
as we have deemed necessary or appropriate for the purpose of this
opinion and subject to the additional limitations and qualifications
expressed below, it is our opinion that:
1. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws
of the State of Delaware. The Company has all requisite
corporate power and corporate authority to own its
properties and conduct its business.
2. The outstanding shares of capital stock of the Company have
been duly authorized and are validly issued, fully paid and
non-assessable.
3. The merger has been duly authorized, executed and
delivered and is a valid and binding agreement of the
Company.
4. The consummation of the merger will not result in any
breach of any of the terms of, or constitute a default
under, any agreement or other instrument to which the
Company is a party and of which we have knowledge.
5. The disclosures provided by the Company, taken
together with the Company's offer to Providence Capital II,
Inc. to provide access to additional information, are
sufficient to satisfy the "information requirements" of the
registration exemptions under the Securities Act of 1933,
as amended, assuming the receipt by Providence Capital II,
Inc. of such disclosures.
6. The undersigned has been advised by the Company that there
are no lawsuits or legal actions pending or threatened
against the Company.
IV.
This opinion is rendered to you solely for your benefit and the
benefit of Providence Capital II, Inc. This opinion may not be
relied upon by you or Providence Capital II, Inc. for any other
purpose, or relied upon by any other person, firm, corporation or
other entity for any purpose, without our prior written consent. We
disclaim any obligation to advise you or Providence Capital II, Inc.
of any change of law that occurs, or any facts of which we become
aware, after the date of this opinion.
Very truly yours,
/s/Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
XXX:ecg
Exhibit 1.1 - Pg. 55
APPENDIX VIII
CERTIFICATE OF BOARD OF DIRECTORS
CAPITALIZATION OF XXXXXXXX.XXX, INC.
CERTIFICATE
THE BOARD OF DIRECTORS
OF
XXXXXXXX.XXX, INC.
Pursuant to the provisions of the Statutes ("C.S.") and the General
Corporation Law, as amended, the following individuals represent that
the following Section of the Plan and Agreement of Merger Plan and
Agreement of Merger dated August __, 2000 (the "Plan"), made by and
among PROVIDENCE CAPITAL II, INC., a Colorado corporation
("PROVIDENCE"), and XXXXXXXX.XXX, INC., a Delaware corporation (the
"Disappearing Corporation"), is an accurate representation as of the
date of execution of the Plan:
2:1:6 Capitalization of Lifelong and Subsidiaries.
(a) The authorized capital stock of Lifelong consists of twenty
million (20,000,000) shares of Lifelong common stock, $.001 par value
per share, of which twenty million 20,000,000 are issued and
outstanding and five million (5,000,000) shares of Lifelong preferred
stock, _____ par value per share, of which none are issued and
outstanding . The Lifelong Shares are validly issued, fully paid and
non-assessable and not subject to preemptive rights. Section 2:1:6 of
the Disclosure Schedule sets forth a true, complete and correct list
of the holders of record of the issued and outstanding Lifelong
Shares, and all claims, commitments or agreements to which Lifelong is
a party or by which it is bound, obligating Lifelong to issue, deliver
or sell, or to cause to be issued, delivered or sold, additional
shares of capital stock of Lifelong or obligating Lifelong to grant,
extend or enter into any such option, warrant, call, right or
agreement with respect to its capital stock. There are no agreements
obligating Lifelong to redeem, repurchase or otherwise acquire the
capital stock of Lifelong, or any other securities issued by it, or to
register the sale of the capital stock of Lifelong under applicable
securities laws. There are no agreements or arrangements prohibiting
or otherwise restricting the payment of dividends of distributions to
the Lifelong Shareholders by Lifelong.
THE BOARD OF DIRECTORS,
XXXXXXXX.XXX, INC.
______________________________________
______________________________________
______________________________________
______________________________________
DATED: August __, 2000.
Exhibit 1.1 - Pg. 56
