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EXHIBIT 2.4
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger is made as of the 19th day of March,
2001 by and among (i) MetaContent, Inc., a Delaware corporation
("MetaContent"), (ii) Apache Medical Systems, Inc., a Delaware corporation
("Apache"), and (iii) APACHE MetaContent Acquisition, Inc., a Delaware
corporation which is a wholly-owned subsidiary of Apache ("Newco").
WHEREAS, the Boards of Directors of MetaContent and Apache deem it in the best
interests of MetaContent and Apache and their respective shareholders that
MetaContent and Apache combine their businesses and operations in a
transaction pursuant to which Apache will acquire MetaContent by the merger of
Newco with and into MetaContent upon the terms, and subject to the conditions,
set forth herein;
WHEREAS, the issued and outstanding share capital of Apache currently consists
of 7,466,966 shares of common stock, $0.01 par value ("Apache Common Stock");
and
WHEREAS, the issued and outstanding capital stock of MetaContent consists of
1,000 shares of common stock, par value $0.01 per share (the "MetaContent
Common Stock"), which shares are owned by the shareholders whose names appear
on Exhibit A hereto (the "MetaContent Holders").
NOW, THEREFORE, the parties hereto hereby agree as follows, with capitalized
terms not previously defined being defined herein in Section 7.12.
ARTICLE I
THE MERGER
Section 1.01 The Merger.
(a) At the Effective Time (as defined in Section 1.01(c)),
Newco shall be merged (the "Merger") with and into MetaContent in accordance
with the Delaware General Corporation Law, as amended (the "DGCL"), whereupon
the separate existence of Newco will cease, and MetaContent shall be the
surviving corporation (the "Surviving Corporation").
(b) The closing of the Merger (the "Closing") will take
place at 10:00 a.m. (New York City time) on a date to be specified by the
parties (the "Closing Date"), which shall be no later than the second Business
Day after satisfaction of the conditions set forth in Article V, at the
offices of Xxxxxx & Xxxxxx LLP, 000 Xxxx Xxxxxx,
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Xxx Xxxx, Xxx Xxxx 00000, unless the parties agree in writing to another time,
date or place.
(c) Upon the Closing, MetaContent and Newco will file
articles of merger with the Secretary of State of the State of the Delaware
and make all other filings or recordings required by Delaware law in
connection with the Merger. The Merger will become effective at such time as
the articles of merger are filed with the Secretary of State of the State of
Delaware, or at such later time, if any, as is specified in the articles of
merger (the "Effective Time").
(d) From and after the Effective Time, the Surviving
Corporation will possess all the rights, powers, privileges and franchises and
be subject to all of the obligations, liabilities, restrictions and
disabilities of MetaContent and Newco, all as provided under the DGCL.
Section 1.02 Merger Consideration and Effect. At the
Effective Time:
(a) All of the shares of MetaContent Common Stock issued and
outstanding immediately prior to the Effective Time held by the MetaContent
Holders shall be exchanged with Newco for, in the aggregate, (i) one million
(1,000,000) fully paid, nonassessable shares of Apache Common Stock (the
"Stock Consideration") plus (ii) warrants to purchase one million (1,000,000)
shares of Apache Common Stock, with an exercise price of $0.50 per share, in
the form of the warrant attached hereto as Exhibit B (the "Warrants"). Such
Stock Consideration and Warrants shall be allocated among the MetaContent
Holders based on the percentages set forth in Exhibit A.
(b) All shares of MetaContent Common Stock outstanding
immediately prior to the Effective Time shall no longer be outstanding and
shall thereupon automatically be canceled and retired and shall cease to exist
except as otherwise provided herein or by law.
(c) All outstanding options for the purchase of MetaContent
capital stock shall terminate and the provisions in, or rights under, any
plan, program or arrangement providing for the issuance or grant of any other
interest in respect of the capital stock of MetaContent, and any such plan,
program or arrangement shall be terminated.
(d) Each issued and outstanding share of the capital stock
of Newco shall be converted into and become one fully paid and nonassessable
share of common stock of the Surviving Corporation.
Section 1.03 Exchange of Certificates. At the Effective Time,
Apache shall deliver to the MetaContent Holders certificates representing the
Stock Consideration and the Warrants issuable pursuant to Section 1.02 and
allocated among the MetaContent Holders as set forth in Exhibit A in exchange
for certificates representing the MetaContent Common Stock which thereupon
shall be marked as, and be deemed to be,
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cancelled. In lieu of any fractional share of Stock Consideration or shares of
Apache Common Stock underlying the Warrants, Apache shall pay to each former
stockholder of MetaContent who otherwise would be entitled to receive a
fraction of a share of Apache Common Stock or the right to purchase a fraction
of a share of Apache Common Stock an amount in cash based on the average
market price for Apache Common Stock during the ten (10) consecutive trading
days preceding the date of the Closing.
Section 1.04 Dissenting Shares. If any holder of shares of
MetaContent Common Stock shall be entitled to be paid the "fair value" of his
shares, as provided in Section 262 of the DGCL, MetaContent shall give Apache
notice thereof and Apache shall have the right to participate in all
negotiations and proceedings with respect to any such demands. MetaContent
shall not, except with the prior written consent of Apache, voluntarily make
any payment with respect to, or settle or offer to settle, any such demand for
payment.
Section 1.05 Stock Option Plans. As of the Effective Time, all
existing Option Plans of MetaContent shall terminate and any rights under any
provisions in any other plan, program or arrangement providing for the
issuance or grant by MetaContent of any interest in respect of the capital
stock of MetaContent shall be canceled.
Section 1.06 Certificate of Incorporation and Bylaws. The
Certificate of Incorporation of Newco as in effect at the Effective Time shall
be the Certificate of Incorporation of the Surviving Corporation until duly
amended in accordance with applicable law. The Bylaws of Newco as in effect at
the Effective Time shall be the Bylaws of the Surviving Corporation until
thereafter amended in accordance with applicable law.
Section 1.07 Directors and Officers. (a)The directors of Newco
at the Effective Time shall become the sole directors of the Surviving
Corporation at the Effective Time and shall hold office from the Effective
Time until their respective successors are duly elected or appointed and
qualified in the manner provided in the Certificate of Incorporation and
Bylaws of the Surviving Corporation, or as otherwise provided by law.
(b) The officers of Newco at the Effective Time shall become
the sole officers of the Surviving Corporation at the Effective Time and shall
hold office from the Effective Time until removed or until their respective
successors are duly elected or appointed and qualified in the manner provided
in the Articles of Incorporation and Bylaws of the Surviving Corporation, or
as otherwise provided by law.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF METACONTENT
MetaContent represents and warrants to Apache and Newco as
follows:
Section 2.01 Corporate Existence and Power. MetaContent is a
corporation duly incorporated, validly existing and subsisting under the laws
of the State of Delaware and has all corporate power required to carry on its
business as now conducted. MetaContent is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction where the
character of the property owned or leased by it or the nature of its
activities makes such qualification necessary, except where the failure to so
qualify or be in good standing would not have a Material Adverse Effect.
Section 2.02 Corporate Authorization. The execution, delivery
and performance by MetaContent of this Agreement and the consummation by
MetaContent of the transactions contemplated hereby are within MetaContent's
corporate powers and, except for the approval and adoption by MetaContent's
shareholders of this Agreement and the Merger, have been duly authorized by
all necessary corporate action on the part of MetaContent. This Agreement has
been duly and validly executed and delivered by MetaContent and, assuming the
due and valid authorization, execution and delivery of this Agreement by
Apache and Newco, constitutes a valid and binding agreement of MetaContent,
enforceable in accordance with its terms except as may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and
other similar laws affecting creditors' rights generally and by equitable
principles of general applicability. The Board of Directors of MetaContent has
approved the Merger, this Agreement and the transactions contemplated hereby,
and such approval remains in effect. No other corporate proceedings or
shareholder approvals on the part of MetaContent are necessary to authorize or
approve this Agreement or to consummate the transactions contemplated hereby.
Section 2.03 Authorization. The execution, delivery and
performance by MetaContent of this Agreement and the consummation by
MetaContent of the Merger and the other transactions contemplated hereby
require no consent, waiver, approval, authorization or permit by or from, or
action by or in respect of, or filing with, any Governmental Entity, other
than the filing of the articles of merger as contemplated by Section 1.01(c).
To the extent necessary, MetaContent has taken all action necessary to render
the restrictions in Section 203 of the DGCL inapplicable to this Agreement and
the Merger.
Section 2.04 Non-contravention. The execution, delivery and
performance by MetaContent of this Agreement and the consummation by
MetaContent of the transactions contemplated hereby do not and will not: (i)
contravene or conflict with the certificate of incorporation or by-laws of
MetaContent; (ii) contravene or conflict with or constitute a violation of any
provision of any state or federal law, regulation,
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judgment, injunction, order or decree, or, to the knowledge of MetaContent,
any foreign law or regulation binding upon or applicable to MetaContent; (iii)
result in a breach or violation of or constitute a default (or an event that
with the giving of notice or the lapse of time or both would constitute a
default) under or give rise to a right of termination, amendment, cancellation
or acceleration of any material agreement, contract, right or obligation of
MetaContent or to a loss of any material benefit to which MetaContent is
entitled, or require any consent, approval or authorization under any
provision of any material agreement, contract or other instrument binding upon
MetaContent or any of its assets; or (iv) result in the creation or imposition
of any Lien on any material asset of MetaContent.
Section 2.05 Capitalization.
(a) The authorized capital stock of MetaContent consists
solely of 3,000 shares of MetaContent Common Stock. As of the date hereof,
there are 1,000 shares of MetaContent Common Stock issued and outstanding and
options to purchase an aggregate of 150 shares of MetaContent Common Stock
(the "Options") issued and outstanding, all of which Options shall be
terminated, unexercised, and of no force and effect as of the Effective Time.
(b) All outstanding shares of MetaContent Common Stock have
been duly authorized and validly issued and are fully paid and non-assessable.
Except as set forth in this Section 2.05, there are outstanding (i) no shares
of capital stock or other voting securities of MetaContent, (ii) no securities
of MetaContent convertible into or exchangeable for shares of capital stock or
voting securities of MetaContent and (iii) no options or other rights to
acquire from MetaContent, and no obligation of MetaContent to issue, any
capital stock, voting securities or securities convertible into or
exchangeable for capital stock or voting securities of MetaContent. The
securities described in Section 2.05(a) and Section 2.05(b) are referred to
collectively as the " MetaContent Securities".
(c) There are no outstanding contractual obligations of
MetaContent to provide funds to, or make any investment (in the form of a
loan, capital contribution or otherwise) in, any other Person.
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Section 2.06 Financial Statements. MetaContent has provided
Apache with unaudited financial statements for the period since MetaContent's
inception (March 8, 2000) through the year ended December 31, 2000 and from
the period from January 1, 2001 through February 28, 2001 (the "Financial
Statements"). The Financial Statements fairly present the financial position
of MetaContent as of the dates thereof and its statements of operations,
shareholders' equity and cash flows for the period then ended (subject to
normal year-end adjustments in the case of any unaudited interim financial
statements). The Financial Statements have been prepared from the books and
records of MetaContent maintained in the ordinary course of business and
reflect and provide adequate reserves in respect of all known liabilities of
MetaContent, including all known contingent liabilities, as of their
respective dates.
Section 2.07 Absence of Certain Changes or Events. Since
February 28, 2001, there has not been: (i) any change in the business,
operations or financial condition of MetaContent that has had or would
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect; (ii) any declaration, setting aside or payment of any dividend
or other distribution with respect to any shares of capital stock of
MetaContent, or any repurchase, redemption or other acquisition by MetaContent
of any outstanding shares of capital stock or other securities of, or other
ownership interests in, MetaContent; (iii) any incurrence, assumption or
guarantee by MetaContent of any indebtedness for borrowed money other than in
the ordinary course of business and in amounts and on terms consistent with
past practices; or (iv) as of the date hereof, any damage, destruction or
other casualty loss (whether or not covered by insurance) affecting the
business or assets of MetaContent that has had or would reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect.
Section 2.08 Accounts Receivable. All accounts receivable of
MetaContent that are reflected on the Financial Statements or the accounting
records of MetaContent as of the Closing Date (collectively, the "Accounts
Receivable") represent or will represent valid obligations arising from sales
actually made or services actually performed in the ordinary course of
business. To the actual knowledge of MetaContent, the Accounts Receivable
arose solely out of bona fide sales and deliveries of goods, performance of
services and other business transactions in the ordinary course of business
consistent with past practice, and are not subject to valid defenses, set-offs
or counterclaims.
Section 2.09 Compliance with Law. MetaContent and its officers,
directors, agents and employees have complied with all applicable statutes,
regulations, orders and restrictions of the United States of America, all
states and other subdivisions thereof, to MetaContent's actual knowledge all
applicable foreign jurisdictions, all agencies and instrumentalities of the
foregoing, and all national and international self-regulatory bodies and
authorities, in respect of the conduct of MetaContent's business and ownership
of its properties, except where such failure to comply would not have a
Material Adverse Effect.
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Section 2.10 Litigation. There is no action, suit, claim,
proceeding, inquiry or investigation pending or, to MetaContent's actual
knowledge, threatened, against or affecting MetaContent, or the assets,
properties or business of MetaContent, or relating to or involving the
transactions contemplated by this Agreement, at law or in equity, or before or
by any federal or state governmental department, commission, board, bureau,
agency or instrumentality, that are likely to have, individually or in the
aggregate, a Material Adverse Effect. MetaContent has not received any written
opinion or memorandum from legal counsel to the effect that it is exposed,
from a legal standpoint, to any liability or disadvantage that may have a
Material Adverse Effect. MetaContent is not in default with respect to any
order, writ, injunction or decree known to or served upon MetaContent. There
is no pending action or suit brought by MetaContent against others.
Section 2.11 Material Contracts.
(a) Except as set forth on Schedule 2.11, MetaContent is not
a party to any written or, to MetaContent's knowledge, oral:
(i) contract involving an income or expense in excess
of $1,000 (on an annualized basis) or contract not made in the
ordinary course of business;
(ii) consulting agreement or contract for the
employment of any officer, employee or other person on a full-time,
part-time or consulting basis;
(iii) agreement, mortgage, indenture, Lien, pledge
agreement, loan or credit agreement, security agreement, guaranty or
indemnity or other agreement or instrument relating to the borrowing
or lending of money or extension of credit or providing for the
mortgaging or pledging of, or otherwise placing a Lien or security
interest on, any assets or properties of MetaContent;
(iv) option, warrant or other contract for the
purchase of any debt or equity security of any entity, or for the
issuance of any debt or equity security, or the conversion of any
obligation, instrument or security into debt or equity securities, of
MetaContent; or
(v) settlement agreement of any administrative or
judicial proceedings within the past five years; or
(vi) intellectual property (including without
limitation trademark) licensing agreement.
(b) MetaContent is not in breach of or in default in any
material respect under any provisions of the contracts, obligations or
commitments set forth on Schedule 2.11 (collectively, the "Contracts"), and no
event has occurred that, with the giving of notice or lapse of time or both,
would constitute such a breach or default.
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Section 2.12 Conduct of Business. Since February 28, 2001,
MetaContent has preserved the business organization of MetaContent intact,
kept available to MetaContent the services of all current officers and
employees and preserved the goodwill of the suppliers, customers, employees
and others whom as of February 28, 2001 were having business relations with
MetaContent. Since February 28, 2001, MetaContent has conducted its business
in the ordinary course, has maintained its assets and properties in at least
as good order and condition as existed on February 28, 2001 (other than wear
as may be accounted for by reasonable use) and as is necessary to continue to
conduct its business, and has not and will not have, through to the Closing
Date:
(a) incurred any obligation or liability (absolute, accrued,
contingent or other), except in the ordinary course of business;
(b) discharged or satisfied any Lien or encumbrance, or paid
or satisfied any obligation or liability (absolute, accrued, contingent or
other), other than liabilities reflected on the most recent balance sheet
included in the Financial Statement or incurred since February 28, 2001 in the
ordinary course of business consistent with past practice;
(c) written down or written off any Accounts Receivable;
(d) increased or established any reserve for taxes or other
liabilities on its books or otherwise provided therefor, except for current
taxes due in the ordinary course of business;
(e) mortgaged, pledged or subjected to any Lien, charge or
other encumbrance any of the assets or properties of MetaContent; except for
leases and financing of equipment in the ordinary course of business;
(f) sold, assigned or transferred any asset, property or
business or canceled any debt or claim or waived any right, except sales of
inventory and immaterial amounts of other assets in the ordinary course of
business;
(g) granted any increase in the compensation (including
bonuses and deferred compensation) payable to any executive officer, director,
or key employee of MetaContent, or granted any increase in compensation to any
other employee of MetaContent in excess of five percent (5%);
(h) made or authorized any capital expenditure for additions
to plant and equipment of MetaContent in excess of $5,000 in the aggregate
except as may have been necessary for ordinary repair, maintenance and
replacement;
(i) made or forgiven any loan to any shareholder or any
relative or affiliate of any shareholder, or declared, set aside or paid to
any shareholder any dividend
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or other distribution in respect of its capital stock, or redeemed or
purchased any of its capital stock, or agreed to take any such action;
(j) entered into or agreed to enter into any transaction
with or for the benefit of any shareholder or any relative or affiliate of any
shareholder other than the transactions contemplated by this Agreement;
(k) issued, sold or transferred, or agreed to issue, sell or
transfer, any stock, bond, debenture or other security of MetaContent;
(l) paid, incurred or made any commitments to pay or incur
any default rate of interest, fees, costs or expenses of any nature whatsoever
in connection with any credit or loan facilities extended to MetaContent.
Section 2.13 Tax Matters.
(a) MetaContent in a timely manner (including extensions) has
filed and will file all returns and other reports required to be filed on or
before the Effective Time by it under all federal, state, local and foreign
tax laws to which it is subject, except to the extent that any failure to file
would not have, individually or in the aggregate, a Material Adverse Effect.
All such returns and reports are true, correct and complete in all material
respects and accurately set forth all items to the extent required to be
reflected or included in such returns by applicable federal, state, local or
foreign tax laws, regulations or rules. MetaContent has paid in full
(including extensions) or set up an adequate reserve in respect of all
material taxes for the periods covered by such returns. There are no
representations or warranties being made with respect to: (i) the availability
of net operating loss carry forwards for income tax purposes or other carry
forwards which may apply for taxable periods after the Effective Time; or (ii)
the income tax basis for any assets of MetaContent. With respect to any
periods for which tax returns have not yet been required to be filed or for
which taxes are not yet due and payable, MetaContent has incurred liability
only for taxes in the ordinary course of its business and in the manner and at
a level consistent with prior years.
(b) MetaContent is not a party to any material tax sharing
agreement or similar arrangement.
(c) MetaContent is undertaking the Merger for a bona fide
business purpose and not merely for the avoidance of federal income tax.
(d) MetaContent is not an investment company as defined in
Section 368(a)(2)(F)(iii) and (iv) of the Code.
Section 2.14 Absence of Undisclosed Liabilities. MetaContent
has no indebtedness or liability, whether accrued, fixed or contingent, other
than (a) liabilities reflected in the most recent balance sheet included in
the Financial Statements, and (b) liabilities incurred in the ordinary course
of business of MetaContent (consistent with
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past practice in terms of both frequency and amount) subsequent to the date of
such balance sheet.
Section 2.16 Permits. MetaContent has all franchises, licenses,
permits, certificates and other authorizations from federal, state, local or
to MetaContent's actual knowledge foreign governments or governmental
agencies, departments or bodies that are necessary for the conduct of their
business and which, if not obtained, would, individually or in the aggregate,
have a Material Adverse Effect.
Section 2.17 Bank Accounts. Schedule 2.17 contains an
accurate and complete list of:
(a) the names and addresses of each bank in which
MetaContent has an account;
(b) the account numbers of such accounts; and
(c) the authorized signatories and amounts for such
accounts.
Section 2.18 Intellectual Property Matters. MetaContent is the
owner of all right, title and interest in and to all intellectual property
assets currently used by MetaContent and such intellectual property assets are
all those necessary for the operation of MetaContent's business as currently
conducted. To the knowledge of MetaContent, and to the extent that any of the
following occurrences do not give rise to or produce, or are reasonably likely
to give rise to or produce, a Material Adverse Effect, the conduct by
MetaContent of its business does not infringe, misappropriate or otherwise
conflict with the intellectual property rights of any other Person, and no
part of MetaContent's intellectual property assets, nor the use thereof for
their intended purposes, infringes or misappropriates any patent, trade
secret, copyright, trademark, service xxxx or right of publicity or other
intellectual property right of any other Person.
Section 2.19 Brokers. No broker, investment banker, financial
advisor or other person is entitled to any broker's, finder's, financial
advisor's or other similar fee or commission in connection with the
transactions contemplated by this Agreement.
Section 2.20 Employee. MetaContent has one employee, and
believes its relations with its employee are good.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF APACHE AND NEWCO
Apache and Newco represent and warrant to MetaContent as
follows:
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Section 3.01 Corporate Existence and Power.
(a) Apache is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, and has
and will have on the Closing Date all corporate power required to carry on its
business as now conducted. Apache is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction where the
character of the property owned or leased by it or the nature of its
activities makes such qualification necessary, except where the failure to so
qualify or be in good standing would not have a Material Adverse Effect.
Apache has delivered to MetaContent certified copies of its certificate of
incorporation and by-laws as currently in effect, and delivered good standing
certificates or certificates as to its qualification to do business as a
foreign corporation, as the case may be.
(b) Newco is a corporation duly incorporated, validly
existing and subsisting under the laws of the State of Delaware and has all
corporate power required to carry on its business as now conducted. Newco is
duly qualified to do business as a foreign corporation and is in good standing
in each jurisdiction where the character of the property owned or leased by it
or the nature of its activities makes such qualification necessary. Newco has
delivered to MetaContent certified copies of Newco's certificate of
incorporation and by-laws as currently in effect, and delivered good standing
certificates or certificates as to its qualification to do business as a
foreign corporation, as the case may be.
Section 3.02 Corporate Authorization. The execution, delivery
and performance by each of Apache and Newco of this Agreement and the
consummation by Apache and Newco of the transactions contemplated hereby are
within the corporate powers of each of Apache and Newco and have been duly
authorized by all necessary corporate action on the part of Apache and Newco.
This Agreement has been duly and validly executed and delivered by each of
Apache and Newco and, assuming the due and valid authorization, execution and
delivery of this Agreement by MetaContent, constitutes a valid and binding
agreement of each of Apache and Newco, enforceable in accordance with its
terms except as may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and other similar laws affecting creditors'
rights generally and by equitable principles of general applicability. The
Board of Directors of each of Apache and Newco, and Apache as the sole
shareholder of Newco, have approved the Merger, this Agreement and the
transactions contemplated hereby and such approval remains in effect. No other
corporate proceedings or shareholder approvals on the part of Apache or Newco
are necessary to authorize or approve this Agreement or to consummate the
transactions contemplated hereby.
Section 3.03 Governmental Authorization. The execution,
delivery and performance by each of Apache and Newco of this Agreement and the
consummation by each of Apache and Newco of the Merger and the other
transactions contemplated hereby require no consent, waiver, approval,
authorization or permit by or from, or action by or in respect of, or filing
with, any Governmental Entity, other than: (i) the filing of the
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articles of merger as contemplated by Section 1.01(c); (ii) compliance with
any applicable requirements of the Securities Exchange Act of 1934, as
amended; and (iii) compliance with any applicable requirements under any
contracts with a Governmental Entity to which Apache is a party. To the extent
necessary, Apache has taken all action necessary to render the restrictions
set forth in Section 203 of the DGCL inapplicable to this Agreement and the
Merger.
Section 3.04 Non-contravention. Assuming compliance with the
matters referred to in Section 3.03, the execution, delivery and performance
by each of Apache and Newco of this Agreement and the consummation by each of
Apache and Newco of the transactions contemplated hereby do not and will not:
(i) contravene or conflict with the articles or by-laws of each of Apache and
Newco; (ii) contravene or conflict with or constitute a violation of any
provision of any law, regulation, judgment, injunction, order or decree
binding upon or applicable to Apache, Newco or any subsidiary of Apache; (iii)
result in a breach or violation of or constitute a default (or an event that
with the giving of notice or the lapse of time or both would constitute a
default) under or give rise to a right of termination, amendment, cancellation
or acceleration of any material agreement, contract, right or obligation of
Apache, Newco or any subsidiary of Apache or to a loss of any material benefit
to which Apache, Newco or any subsidiary of Apache is entitled, or require any
consent, approval or authorization under any provision of any material
agreement, contract or other instrument binding upon Apache, Newco or any
subsidiary of Apache or any of their respective assets (including any material
license, franchise, permit or other similar authorization held by Apache,
Newco or any subsidiary of Apache); or (iv) result in the creation or
imposition of any Lien on any material asset of Apache, Newco or any
subsidiary of Apache.
Section 3.05 Capitalization. (a) The authorized capital stock
of Apache consists solely of 60,000,000 shares, of which 30,000,000 shares are
of Apache Common Stock and 30,000,000 are designed as preferred stock. As of
the date hereof, there are 7,466,966 shares issued and outstanding. (b) All
outstanding shares of Apache Common Stock have been duly authorized and
validly issued and are fully paid and non-assessable. Except as referenced in
Schedule 3.05 there are outstanding (i) no shares of capital stock or other
voting securities of Apache, (ii) no securities of Apache convertible into or
exchangeable for shares of capital stock or voting securities of Apache and
(iii) no options or other rights to acquire from Apache, and no obligation of
Apache to issue, any capital stock, voting securities or securities
convertible into or exchangeable for capital stock or voting securities of
Apache. The securities described in Section 3.05(a) and Section 3.05(b) are
referred to collectively as the " Apache Securities".
(c) The Shares of Apache Common Stock issued to the
MetaContent Holders in the Merger, when issued, will be validly issued, fully
paid, and non-assessable.
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Section 3.06 Reports. Apache has filed all required forms,
reports and documents with the Securities and Exchange Commission (the "SEC")
since December 31, 1996 (collectively, the "Company SEC Reports"), all of
which have complied in all material respects with all applicable requirements
of the Securities Act of 1933 and the Securities Exchange Act of 1934, each,
as amended, and except as set forth in Section 3.06, and furthermore, Apache
will timely file all required reports due on or before the Effective Time.
Except as set forth in Schedule 3.06, none of the Company SEC Reports,
including without limitation any financial statements or schedules included
therein, 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 not misleading. Each of the balance sheets (including
the related notes) included in the Company SEC Reports fairly presents the
consolidated financial position of the Company and its subsidiaries as of the
respective dates thereof, and the other related statements (including the
related notes) included therein fairly present the results of operations and
the changes in financial position of Apache and its subsidiaries for the
respective fiscal years, except, in the case of interim financial statements,
for year-end audit adjustments, consisting only of normal year end adjustments
as permitted by SEC Form 10-Q. Each of the financial statements (including the
related notes) included in the Company SEC Reports has been prepared in
accordance with generally accepted accounting principles consistently applied
during the periods involved, except as otherwise noted therein.
Section 3.07 Absence of Certain Changes. Except as set forth in
the Company SEC Reports or set forth in a Special Report on Form 8-K filed by
the Company, or as set forth in Schedule 3.07, since September 30, 2000 ,
neither Apache nor any of its subsidiaries has suffered any adverse changes in
its business, operations or financial condition which are material to Apache
and its subsidiaries taken as a whole (other than changes generally affecting
the industries in which Apache operates, including changes due to actual or
proposed changes in law or regulation, or changes relating to the transactions
contemplated by this Agreement, including the change in control contemplated
hereby) or entered into any transaction, or conducted its business or
operations, other than in the ordinary and usual course of business and
consistent with past practice and other than in connection with Apache's
exploration of alternatives leading to the execution of this Agreement, which
matters were required to be set forth in any Company SEC Reports.
Section 3.08 No Undisclosed Liabilities. Except as and to the
extent set forth in the Company SEC Reports or set forth in a Special Report
on Form 8-K filed by the Company, or as set forth in Schedule 3.08, neither
Apache nor any of its subsidiaries had at September 30, 2000, any liabilities
not reflected on a consolidated balance sheet of Apache and its subsidiaries.
Except as and to the extent set forth in such Company SEC Reports, Special
Report on Form 8-K or such Schedule, since September 30, 2000, neither Apache
nor any of its subsidiaries has incurred any liabilities material to the
business, operations or financial condition of Apache and its subsidiaries
taken as a whole, except liabilities incurred in the ordinary and usual course
of business and
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consistent with past practice and liabilities incurred in connection with this
Agreement, which liabilities were required to be set forth in any Company SEC
Reports.
Section 3.09 Litigation. Except as disclosed in the Company SEC
Reports or any Special Report on Form 8-K or in Schedule 3.09, there is no
action, suit, proceeding, review or, to the knowledge of Apache or Newco,
investigation pending or, to the knowledge of Apache or Newco, threatened
involving Apache or any of its subsidiaries, at law or in equity, or before
any Governmental Entity which in the aggregate are reasonably likely to have a
Material Adverse Effect.
Section 3.10 Compliance with Applicable Law. Apache and its
subsidiaries hold all permits, licenses, variances, exemptions, orders and
approvals of all Governmental Entities necessary for the lawful conduct of
their respective business (the "Apache Permits"), except for failures to hold
such Apache Permits which would not, in the aggregate, have a Material Adverse
Effect. Apache and its subsidiaries are in compliance with the terms of the
Apache Permits, except where the failure so to comply would not have a
Material Adverse Effect. The businesses of Apache and its subsidiaries are not
being conducted in violation of any applicable law, ordinance, rule,
regulation, decree or order of any Governmental Entity, except for violations
which or in the aggregate are not likely to have a Material Adverse Effect.
Section 3.11 Intellectual Property. Except as set forth in
Schedule 3.11, no claim is pending or, to the knowledge of Apache, threatened
to the effect that the present or past operations of the Apache or any
subsidiary of Apache infringes upon or conflicts with the rights of others
with respect to any intellectual property (including, without limitation,
patents, patent rights, patent applications, trademarks, trademark
applications, trade names, copyrights, drawings, trade secrets, know-how and
computer software) necessary to permit Apache and its subsidiaries to conduct
their businesses as now operated (the "Intellectual Property") and no claim is
pending or threatened to the effect that any of the Intellectual Property is
invalid or unenforceable. Except as set forth in Schedule 3.11, no contract,
agreement or understanding with any party exists which would impede or prevent
the continued use by Apache and its subsidiaries of the entire right, title
and interest of Apache and its subsidiaries in and to the Intellectual
Property.
ARTICLE IV
COVENANTS OF APACHE AND METACONTENT
Section 4.01 Reasonable Best Efforts. Subject to the terms and
conditions herein provided, each of the parties shall use its reasonable best
efforts to take, or cause to be taken, all action, and to do, or cause to be
done and to assist and cooperate with the other parties in doing, as promptly
as practicable, all things necessary or advisable under applicable laws and
regulations to ensure that the conditions set forth in Article V are satisfied
and to consummate and make effective the transactions
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contemplated by this Agreement. If at any time after the Effective Time any
further action is reasonably necessary or desirable to carry out the purposes
of this Agreement, including the execution of additional instruments, the
proper officers and directors of each party shall take all such action.
Section 4.02 MetaContent Shareholder Approval.
(a) MetaContent shall take all action necessary in
accordance with the DGCL and its Certificate of Incorporation and by-laws to
obtain the unanimous written consent of its stockholders in accordance with
the DGCL for the approval and adoption of this Agreement and the Merger and
for such other purposes as may be necessary or desirable.
(b) The board of directors of MetaContent shall recommend
that the stockholders of MetaContent vote to approve the Merger and adopt this
Agreement and approve any other matters to be submitted to stockholders in
connection therewith.
Section 4.03 Consents. Each of the parties shall use its
reasonable best efforts to obtain as promptly as practicable all consents,
waivers, approvals, authorizations or permits of any Governmental Entity or
any other Person required in connection with the consummation of the
transactions contemplated by this Agreement.
Section 4.04 Public Announcements. Neither Apache nor
MetaContent shall issue any press release or make any other public
announcement concerning this Agreement, the Merger or the transactions
contemplated hereby without the prior consent of the other, except that either
party may make such public disclosure that it believes in good faith to be
required by law (in which event such party shall notify the other party as
early as reasonably possible prior to making such disclosure).
Section 4.05 Notification of Certain Matters. Apache and
MetaContent promptly shall notify the other of: (i) the occurrence or
non-occurrence of any fact or event that would be reasonably likely to cause
any (x) representation or warranty contained in this Agreement to be untrue or
inaccurate at any time from the date hereof to the Effective Time or (y)
covenant, condition or agreement contained in this Agreement not to be
complied with or satisfied; and (ii) any failure of MetaContent, Apache or
Newco to comply with or satisfy any covenant, condition or agreement contained
in this Agreement.
Section 4.06 Access to Information. From the date hereof until
the Effective Time, Apache and MetaContent shall: (i) give the other party and
its counsel, financial advisors, auditors and other authorized representatives
reasonable access during normal business hours to the offices, properties,
books and records of such party as the other party reasonably may request, and
furnish the other party with such financial and operating data and other
information as the other party reasonably may request; and (ii) instruct such
parties' employees, counsel and financial advisors to cooperate with the other
party in their investigation of the business of such party.
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Section 4.07 Conduct of Business. Except as set forth on
Schedule 4.07, from the date hereof until the Effective Time,
(a) each party shall carry on its respective businesses in
the usual, regular and ordinary course, consistent with past practice, and use
its best efforts to preserve intact its present business organizations.
(b) each party shall (i) use its best efforts to preserve
its business intact, keep available the services of all of its present
officers, employees, agents and representatives, and preserve the goodwill of
all suppliers, customers, clients and others having business relations with it
or any of its subsidiaries; (ii) maintain its corporate existence and good
standing in its state of incorporation; (iii) keep and maintain in good
condition, repair and working order all buildings, offices, stores and other
structures and all machinery, tools, equipment, fixtures and other property of
it and its subsidiaries and observe and conform to all material terms and
conditions upon or under which any of their properties is held; and (iv)
continue and maintain in full force and effect all insurance now maintained
and promptly proceed with the repair, restoration or replacement of any asset
or property damaged or destroyed by fire or other casualty after the date
hereof, whether insured or uninsured, subject to the rights, if any, of the
lessors or mortgagees thereof.
(c) no party shall, nor shall any party propose to, (i)
declare, set aside or pay any dividend or other distribution (whether in cash,
stock or property or any combination thereof) in respect of any of its capital
stock, (ii) split, combine or reclassify any of its capital stock or issue or
authorize or propose the issuance of any other securities in respect of, in
lieu of or in substitution for shares of its capital stock or (iii)
repurchase, redeem or otherwise acquire any of its securities.
(d) no party shall authorize for issuance, issue, sell,
deliver or agree or commit to issue, sell or deliver (whether through the
issuance or granting of options, warrants, commitments, subscriptions, rights
to purchase or otherwise) any stock of any class or any other securities
(including indebtedness having the right to vote) or equity equivalents
(including, without limitation, stock appreciation rights), except as required
pursuant to the agreements and instruments outstanding on the date hereof and
disclosed in the schedules attached hereto, or amend in any material respect
any of the terms of any such securities or agreements outstanding on the date
hereof, other than the issuance of shares of Apache and MetaContent, as the
case may be, upon the exercise of stock options pursuant to stock option plans
and set forth on a schedule hereto and upon the exercise or conversion of
other options, warrants or rights, in each case outstanding on the date of
this Agreement and in accordance with their present terms.
(e) no party shall amend or propose to amend its charter or
bylaws.
(f) no party shall, nor shall any party permit any of its
subsidiaries to,
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acquire, sell, lease, encumber, transfer or dispose of any assets outside the
ordinary course of business, consistent with past practice, or any assets
which are material to such party and its subsidiaries taken as a whole, except
pursuant to obligations in effect on the date hereof, or enter into any
commitment or transaction outside the ordinary course of business, consistent
with past practice.
(g) no party shall, nor shall any party permit any of its
subsidiaries to, incur (which shall not be deemed to include entering into
credit agreements, lines of credit or similar arrangements until borrowings
are made under such arrangements) any indebtedness for borrowed money or
guarantee any such indebtedness or issue or sell any debt securities or
warrants or rights to acquire any debt securities of such party or any of its
subsidiaries or guarantee (or become liable for) any debt of others or make
any loans, advances or capital contributions or mortgage, pledge or otherwise
encumber any material assets or create or suffer any material lien thereupon
other than in each case in the ordinary course of business consistent with
prior practice.
(h) no party shall pay, discharge or satisfy any claims,
liabilities or obligations (absolute, accrued, asserted or unasserted,
contingent or otherwise), other than the payment, discharge or satisfaction in
the ordinary course of business consistent with past practice or in accordance
with their terms, of liabilities reflected or reserved against in, or
contemplated by, the Financial Statements (or the notes thereto) of any party
and its consolidated subsidiaries or incurred in the ordinary course of
business consistent with past practice.
(i) no party shall change any of the accounting principles
or practices used by it (except as required by generally accepted accounting
principles).
(j) no party shall agree to take any of the foregoing
actions or take or agree to take any action that would or is reasonably likely
to result in any of its representations and warranties set forth in this
Agreement being untrue or in any of the conditions to the Merger set forth in
Article V not being satisfied.
Section 4.08 Tax-free Reorganization. Prior to the Effective
Time, each party shall use its reasonable best efforts (a) to cause the Merger
to qualify as a reorganization within the meaning of Section 368 of the Code,
and (b) to not take any action reasonably likely to cause the Merger not to
qualify as such reorganization. The parties hereto intend that the Merger
shall qualify and be treated as such a reorganization.
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ARTICLE V
CONDITIONS TO THE MERGER
Section 5.01 Conditions to the Obligations of Each Party. The
respective obligations of the parties to consummate the Merger are subject to
the satisfaction, at or prior to the Effective Time, of each of the following
conditions:
(a) The shareholders of MetaContent shall have approved and
adopted this Agreement and the Merger pursuant to the requirements of
MetaContent's certificate of incorporation and by-laws and the DGCL; and
(b) The consummation of the Merger shall not be restrained,
enjoined or prohibited by any order, judgment, decree, injunction or ruling of
a court of competent jurisdiction or any Governmental Entity entered after the
parties have used their reasonable best efforts to prevent such entry. There
shall not have been any statute, rule or regulation enacted, promulgated or
deemed applicable to the Merger by any Governmental Entity that prevents the
consummation of the Merger.
Section 5.02 Conditions Precedent to the Obligations of Apache
and Newco. The obligations of Apache and Newco to consummate the Merger are
subject to the satisfaction, at or prior to the Effective Time, of each of the
following further conditions:
(a) Each of the representations and warranties of
MetaContent contained in this Agreement shall have been true and correct in
all material respects when made and on and as of the Closing Date as if made
on and as of such date, it being understood that any materiality
qualifications contained in such representations and warranties shall be
disregarded for this purpose. Apache shall have received a certificate to such
effect by an executive officer of MetaContent;
(b) MetaContent shall have performed and complied in all
material respects with all agreements and covenants required to be performed
and complied with by it under this Agreement on or prior to the Closing Date,
it being understood that any materiality qualifications contained in such
provisions shall be disregarded for this purpose. Apache shall have received a
certificate to such effect of an executive officer of MetaContent; and
(c) All consents, waivers, approvals and authorizations
required to be obtained from any Governmental Entity prior to the consummation
of the transactions contemplated hereby shall have been obtained, except where
the failure to obtain any such consent, waiver, approval or authorization
would not have a Material Adverse Effect;
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Section 5.03 Conditions Precedent to the Obligations of
MetaContent. The obligation of MetaContent to consummate the Merger is subject
to the satisfaction, at or prior to the Effective Time, of each of the
following further conditions:
(a) Each of the representations and warranties of Apache and
Newco contained in this Agreement shall have been true and correct in all
material respects when made and on and as of the Closing Date as if made on
and as of such date, it being understood that any materiality qualifications
contained in such representations and warranties shall be disregarded for this
purpose. MetaContent shall have received a certificate to such effect of an
executive officer of Apache;
(b) Each of Apache and Newco shall have performed and
complied in all material respects with all agreements and covenants required
to be performed and complied with by it under this Agreement on or prior to
the Closing Date, it being understood that any materiality qualifications
contained in such provisions shall be disregarded for this purpose.
MetaContent shall have received a certificate to such effect of an executive
officer of Apache; and
(c) All consents, waivers, approvals and authorizations
required to be obtained from any Governmental Entity prior to the consummation
of the transactions contemplated hereby shall have been obtained, except where
the failure to obtain any such consent, waiver, approval or authorization
would not have a Material Adverse Effect.
ARTICLE VI
TERMINATION
Section 6.01 Termination. This Agreement may be terminated and
the Merger may be abandoned at any time prior to the Effective Time,
notwithstanding approval thereof by the shareholders of MetaContent:
(a) by mutual written agreement of MetaContent and Apache;
(b) by either MetaContent or Apache, if the Merger has not
been consummated by March 31, 2001; provided that the right to terminate this
Agreement pursuant to this Section 6.01(b) will not be available to any party
whose breach of any provision of this Agreement results in the failure of the
Merger to be consummated by such time;
(c) by either MetaContent or Apache, if there shall be any
law or regulation that makes consummation of the Merger illegal or otherwise
prohibited or if any judgment, injunction, order or decree enjoining the
parties from consummating the
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Merger is entered and such judgment, injunction, order or decree shall become
final and nonappealable;
(d) by Apache, upon a material breach of any representation,
warranty, covenant or agreement of MetaContent, or if any representation or
warranty of MetaContent shall become untrue in any material respect;
(e) by MetaContent, upon a material breach of any
representation, warranty, covenant or agreement of Apache or Newco, or if any
representation or warranty of Apache or Newco shall become untrue; and
(f) by Apache, if the shareholder approval referred to in
Section 5.01(a) hereof has not been obtained within five days after
MetaContent's execution and delivery of this Agreement.
The party desiring to terminate this Agreement pursuant to this
Section 6.01 shall give notice of such termination to the other parties.
Section 6.02 Effect of Termination. If this Agreement is
terminated pursuant to Section 6.01, this Agreement will become void and of no
effect with no liability on the part of any party hereto or its respective
directors, officers or shareholders, except that the agreements contained in
Section 6.03 shall survive the termination hereof, and except further that
nothing herein shall relieve any party from liability for any breach of this
Agreement.
Section 6.03 Fees and Expenses. Whether or not the Merger is
consummated, all costs and expenses incurred in connection with the Merger,
this Agreement and the transactions contemplated by this Agreement shall be
paid by the party incurring such expenses.
ARTICLE VII
MISCELLANEOUS
Section 7.01 Notices. All notices, requests and other
communications to any party hereunder shall be in writing and shall be deemed
to have been duly given when delivered in person, by overnight courier or by
facsimile to the respective parties as follows:
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If to Apache or Newco, to:
Apache Medical Systems, Inc.
0000 Xxxxxx Xxxxxxxxx
XxXxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx
facsimile: (000) 000-0000
with a copy to:
Xxxx Xxxxxxx
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxx X. Main, Esq.
facsimile: (000) 000-0000
If to MetaContent, to:
MetaContent, Inc.
0000 Xxxx Xxxxx Xxx.
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx XxXxxxxx
facsimile: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Price, Esq.
facsimile: (000) 000-0000
or such other address or facsimile number as such party may specify for the
purpose by written notice to the other parties hereto. Each such notice,
request or other communication shall be effective: (i) if delivered in person,
when such delivery is made at the address specified in this Section 7.01; (ii)
if delivered by overnight courier, upon receipt; or (iii) if delivered by
facsimile, when such facsimile is transmitted to the facsimile number
specified in this Section 7.01 and the appropriate confirmation is received.
Section 7.02 Survival of Representations, Warranties and
Agreements. The representations and warranties and agreements contained herein
and in any certificate or other writing delivered pursuant hereto shall not
survive beyond the Effective Time. This Section 7.02 shall not limit any
covenant or agreement of the parties which by its
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terms contemplates performance or application after the Effective Time,
including, but not limited to, the covenants contained in Section 6.03.
Section 7.03 Amendment. This Agreement may be amended at any
time before or after any approval of this Agreement by the shareholders of
MetaContent. This Agreement may not be amended except by an instrument in
writing signed on behalf of all the parties.
Section 7.04 Extension; Waiver. At any time prior to the
Effective Time, the parties may: (i) extend the time for the performance of
any of the obligations or other acts of any other party; (ii) waive any
inaccuracies in the representations and warranties contained herein by any
other party or in any document, certificate or writing delivered pursuant
hereto by any other party; or (iii) waive compliance with any of the
agreements of any other party or with any conditions to its own obligations.
Any agreement on the part of any party to any such extension or waiver will be
valid only if set forth in an instrument in writing signed on behalf of such
party.
Section 7.05 Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns. No party may assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the prior written consent of the other parties.
Section 7.06 Governing Law. This Agreement shall be construed
in accordance with and governed by the law of the State of New York applicable
to agreements entered into and to be performed wholly within such State,
except that the DGCL shall apply to the Merger.
Section 7.07 Neutrality of Interpretation. This Agreement shall
be interpreted without regard to the party or parties hereto which are
responsible for the development and construction of the language and contents
hereof.
Section 7.08 Counterparts; Effectiveness. This Agreement may be
signed in any number of counterparts, including by facsimile, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument. This Agreement shall become effective
when each party shall have received counterparts hereof signed by all of the
other parties.
Section 7.09 Entire Agreement. This Agreement and the other
agreements referred to herein or executed contemporaneously herewith
constitute the entire agreement, and supersede all prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter of this Agreement. No representation, inducement, promise,
understanding, condition or warranty not set forth herein has been made or
relied upon by any party.
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Section 7.10 Headings. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 7.11 Severability. In the event that any one or more of
the provisions contained in this Agreement shall be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement.
Section 7.12 Additional Definitions.
(a) When used in this Agreement, the following terms have
the following meanings:
"Affiliate" as applied to any Person, means any other Person
directly or indirectly controlling, controlled by, or under common control
with, that Person.
"Business Day" means any day other than a Saturday, Sunday or
any other day on which banks in the State of New York are authorized or
obligated to be closed.
"Code" means the Internal Revenue Code of 1986, as amended.
"Dollars" or "$" means United States dollars, unless otherwise
specified.
"GAAP" means generally accepted accounting principles
consistently applied in effect in the United States of America as of the date
of the applicable determination.
"Governmental Entity" means any government or subdivision
thereof, or any administrative, governmental or regulatory authority, agency,
commission, tribunal or body, domestic, foreign or supranational.
"knowledge" means, unless otherwise specified or qualified, any
fact or matter which is known by any officer or director of MetaContent, or
should have been known by such person after due inquiry.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of
such asset.
"Material Adverse Effect" means any change or event that
individually or when taken together with all other changes and events, is or
is reasonably likely to be materially adverse to the business, assets,
liabilities, operations or condition (financial or otherwise) or prospects of
MetaContent other than any such effect arising out of or resulting from the
transactions contemplated by this Agreement or general economic, financial, or
market conditions. Without limitation, a Material Adverse Effect shall be
conclusively deemed to exist if there occurs any event which causes or may
reasonably be
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expected to cause or result in estimable monetary loss which, individually or
when aggregated with all other events, exceeds $50,000.
"Person" means an individual, a corporation, a limited
liability company, a partnership, an association, a trust or any other entity
or organization, including a government or political subdivision or any agency
or instrumentality thereof.
"SEC" means the Securities and Exchange Commission.
"Subsidiary" of any Person means any other Person of which
securities or other ownership interests having ordinary voting power to elect
a majority of the board of directors or other Persons performing similar
functions are directly or indirectly owned or controlled by such Person.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be duly
executed by its respective authorized officer as of the day and year first
above written.
APACHE MEDICAL SYSTEMS, INC.
By: /s/ XXXXX XXXXXX
------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President and Chief
Financial Officer
APACHE METACONTENT
ACQUISITION, INC.
By: /s/ XXXXXX X. XXXXXX, XX
------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: President and Chief
Executive Officer
METACONTENT, INC.
By: /s/ XXXXXXX XXXXXXXX
------------------------------
Name: Xxxxxxx XxXxxxxx
Title: Vice President
25
