Exhibit 10.18
EXCHANGE AGREEMENT
Between
MT ULTIMATE HEALTHCARE CORP.
and
BP SENIOR CARE INC.
Dated May 20, 2004
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EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT (hereinafter referred to as this "Agreement") is
entered into as of this 20th day of May, 2004, by and between MT ULTIMATE
HEALTHCARE CORP., a Nevada corporation (hereinafter referred to as the
"Company"), BP SENIOR CARE INC., a New Jersey corporation (hereinafter referred
to as "BP Senior Care"), and the person executing this Agreement listed on the
signature page hereto (referred to as "BP Senior Care Shareholder") who owns one
hundred percent (100%) of the outstanding shares of BP Senior Care, upon the
following premises:
Premises.
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WHEREAS, the BP Senior Care Shareholder owns one hundred percent (100%) of
the issued and outstanding shares of the capital stock of BP Senior Care;
WHEREAS, the Company is a publicly held corporation whose common stock is
quoted on the OTC Bulletin Board under the symbol "MTHC";
WHEREAS, BP Senior Care is a privately held corporation organized under the
laws of New Jersey;
WHEREAS, the Company desires to acquire 100% of the issued and outstanding
shares of Common Stock of BP Senior Care in exchange for unissued shares of its
Common Stock (the "Common Stock") (the "Exchange Offer"), so that BP Senior Care
will become a wholly owned subsidiary of the Company; and
WHEREAS, the BP Senior Care Shareholder desires to exchange all of her
shares of capital stock of BP Senior Care solely in exchange for the shares of
authorized but unissued Common Stock, $.001 par value, of the Company.
Agreement
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NOW THEREFORE, on the stated premises and for and in consideration of the
mutual covenants and agreements hereinafter set forth and the mutual benefits to
the parties to be derived herefrom, it is hereby agreed as follows:
ARTICLE I
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF BP SENIOR CARE
AND THE BP SENIOR CARE SHAREHOLDER
As an inducement to and to obtain the reliance of the Company, except as
set forth on the BP Senior Care Schedules (as hereinafter defined), BP Senior
Care and the BP Senior Care Shareholder represent and warrant as follows:
Section 1.01 Organization. BP Senior Care is a corporation duly
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organized, validly existing, and in good standing under the laws of New Jersey
and has the corporate power and is duly authorized, qualified, franchised, and
licensed under all applicable laws, regulations, ordinances, and orders of
public authorities to own all of its properties and assets and to carry on its
business in all material respects as it is now being conducted, including
qualification to do business as a foreign corporation in the states or countries
in which the character and location of the assets owned by it or the nature of
the business transacted by it requires qualification, except where failure to be
so qualified would not have a material adverse effect on its business. Included
in the BP Senior Care Schedules are complete and correct copies of the Articles
of Incorporation and Bylaws of BP Senior Care as in effect on the date hereof.
The execution and delivery of this Agreement does not, and the consummation of
the transactions contemplated hereby will not, violate any provision of BP
Senior Care's Articles of Incorporation or Bylaws. BP Senior Care has taken all
actions required by law, its Articles of Incorporation, or otherwise to
authorize the execution and delivery of this Agreement. BP Senior Care has full
power, authority, and legal right and has taken all action required by law, its
Articles of Incorporation, and otherwise to consummate the transactions herein
contemplated.
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Section 1.02 Capitalization. The authorized capitalization of BP
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Senior Care consists of 100 shares of common stock, $ par value per
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share, of which 100 shares are currently issued and outstanding and no shares
of preferred stock. All issued and outstanding shares are legally issued, fully
paid, and non-assessable and not issued in violation of the preemptive or other
rights of any person.
Section 1.03 Subsidiaries and Predecessor Corporations. BP Senior Care
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does not have any predecessor corporation(s) or subsidiary(ies), and does not
own, beneficially or of record, any shares of any other corporation, unless
otherwise disclosed to the Company in writing.
Section 1.04 Other Information.
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(a) Except as otherwise provided, BP Senior Care has no liabilities
with respect to the payment of any federal, state, county, local or other
taxes (including any deficiencies, interest or penalties), except for taxes
accrued but not yet due and payable.
(b) BP Senior Care has filed all state, federal or local income and/or
franchise tax returns required to be filed by it from inception to the date
hereof. Each of such income tax returns reflects the taxes due for the
period covered thereby, except for amounts which, in the aggregate, are
immaterial.
(c) The books and records of BP Senior Care are in all material
respects complete and correct and have been maintained in accordance with
good business and accounting practices.
(d) BP Senior Care has no material liabilities, direct or indirect,
matured or unmatured, contingent or otherwise in excess of Twenty-Five
Thousand Dollars ($25,000), except as disclosed in writing to the Company
on Schedule 1.04.
Section 1.05 Information. The information concerning BP Senior Care
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set forth in this Agreement and in the BP Senior Care Schedules is complete and
accurate in all material respects and does not contain any untrue statement of a
material fact or omit to state a material fact required to make the statements
made, in light of the circumstances under which they were made, not misleading.
In addition, BP Senior Care has fully disclosed in writing to the Company
(through this Agreement or the BP Senior Care Schedules) all information
relating to matters involving BP Senior Care or its assets or its present or
past operations or activities which (i) indicated or may indicate, in the
aggregate, the existence of a greater than Twenty-Five Thousand Dollars
($25,000) liability or diminution in value, (ii) have led or may lead to a
competitive disadvantage on the part of BP Senior Care, or (iii) either alone or
in aggregation with other information covered by this Section, otherwise have
led or may lead to a material adverse effect on the transactions contemplated
herein or on BP Senior Care, its assets, or its operations or activities as
presently conducted or as contemplated to be conducted after the Closing Date,
including, but not limited to, information relating to governmental, employee,
environmental, litigation and securities matters and transactions with
affiliates.
Section 1.06 Options or Warrants. There are no existing options,
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warrants, calls, or commitments of BP Senior Care of any character relating to
the authorized and unissued BP Senior Care common stock, except options,
warrants, calls or commitments, if any, to which BP Senior Care is not a party
and by which it is not bound.
Section 1.07 Absence of Certain Changes or Events. Except as set forth
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in this Agreement or the BP Senior Care Schedules, since inception on April 23,
2002:
(a) there has not been (i) any material adverse change in the proposed
business, operations, properties, assets, or condition of BP Senior Care or
(ii) any damage, destruction, or loss to BP Senior Care (whether or not
covered by insurance) materially and adversely affecting the business or
financial condition of BP Senior Care;
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(b) BP Senior Care has not (i) amended its Articles of Incorporation
or Bylaws; (ii) declared or made, or agreed to declare or make, any payment
of dividends or distributions of any assets of any kind whatsoever to
stockholders or purchased or redeemed, or agreed to purchase or redeem, any
of its capital stock; (iii) waived any rights of value which in the
aggregate are outside of the ordinary course of business or material
considering the business of BP Senior Care; (iv) made any material change
in its method of management, operation or accounting; (v) entered into any
other material transaction other than sales in the ordinary course of its
business; (vi) made any accrual or arrangement for payment of bonuses or
special compensation of any kind or any severance or termination pay to any
present or former officer or employee; (vii) increased the rate of
compensation payable or to become payable by it to any of its officers or
directors or any of its salaried employees whose monthly compensation
exceeds Ten Thousand Dollars ($10,000); or (viii) made any increase in any
profit sharing, bonus, deferred compensation, insurance, pension,
retirement, or other employee benefit plan, payment, or arrangement made
to, for, or with its officers, directors, or employees;
(c) BP Senior Care has not (i) borrowed or agreed to borrow any funds
or incurred, or become subject to, any material obligation or liability
(absolute or contingent) in excess of $25,000 except as disclosed herein
and except liabilities incurred in the ordinary course of business; (ii)
paid or agreed to pay any material obligations or liability (absolute or
contingent) other than current liabilities, and current liabilities
incurred in the ordinary course of business and professional and other fees
and expenses in connection with the preparation of this Agreement and the
consummation of the transactions contemplated hereby; (iii) sold or
transferred, or agreed to sell or transfer, any of its assets, properties,
or rights (except assets, properties, or rights not used or useful in its
business which, in the aggregate have a value of less than Twenty-Five
Thousand Dollars ($25,000)), or canceled, or agreed to cancel, any debts or
claims (except debts or claims which in the aggregate are of a value of
less than Twenty-Five Thousand Dollars ($25,000)); or (iv) made or
permitted any amendment or termination of any contract, agreement, or
license to which it is a party if such amendment or termination is
material, considering the business of BP Senior Care; and
(d) To the best knowledge of BP Senior Care, BP Senior Care has not
become subject to any law or regulation which materially and adversely
affects, or in the future may adversely affect, the business, operations,
properties, assets, or condition of BP Senior Care.
Section 1.08 Title and Related Matters. No third party has any right
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to, and BP Senior Care has not received any notice of infringement of or
conflict with asserted rights of others with respect to, any product,
technology, data, trade secrets, know-how, proprietary techniques, trademarks,
service marks, trade names, or copyrights which, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
have a materially adverse effect on the proposed business, operations, financial
condition, income, or business prospects of BP Senior Care or any material
portion of its properties, assets, or rights.
Section 1.09 Litigation and Proceedings. Except as otherwise provided,
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there are no actions, suits, or proceedings pending or, to the knowledge of BP
Senior Care after reasonable investigation, threatened by or against BP Senior
Care or affecting BP Senior Care or its properties, at law or in equity, before
any court or other governmental agency or instrumentality, domestic or foreign,
or before any arbitrator of any kind. BP Senior Care does not have any
knowledge of any material default on its part with respect to any judgment,
order, injunction, decree, award, rule, or regulation of any court, arbitrator,
or governmental agency or instrumentality or of any circumstances which, after
reasonable investigation, would result in the discovery of such a default.
Section 1.10 Contracts.
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(a) There are no material contracts, agreements, franchises, license
agreements, debt instruments or other commitments to which BP Senior Care
is a party or by which it or any of its assets, products, technology, or
properties are bound other than those incurred in the ordinary course of
business (as used in this Agreement, a "material" contract, agreement,
franchise, license agreement, debt instrument or commitment is one which
(i) will remain in effect for more than six (6) months after the date of
this Agreement and (ii) involves aggregate obligations of at least
Twenty-Five Thousand Dollars ($25,000) unless otherwise disclosed pursuant
to this Agreement;
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(b) All contracts, agreements, franchises, license agreements, and
other commitments, if any, to which BP Senior Care is a party and which are
material to the operations of BP Senior Care taken as a whole are valid and
enforceable by BP Senior Care in all respects, except as limited by
bankruptcy and insolvency laws and by other laws affecting the rights of
creditors generally;
(c) BP Senior Care is not a party to or bound by, and the properties
of BP Senior Care are not subject to, any contract, agreement, other
commitment or instrument; any charter or other corporate restriction; or
any judgment, order, writ, injunction, decree, or award which materially
and adversely affects, the business operations, properties, assets, or
condition of BP Senior Care; and
(d) Except as included or described in the BP Senior Care Schedules,
BP Senior Care is not a party to any oral or written (i) contract for the
employment of any officer or employee which is not terminable on thirty
(30) days, or less notice; (ii) profit sharing, bonus, deferred
compensation, stock option, severance pay, pension benefit or retirement
plan; (iii) agreement, contract, or indenture relating to the borrowing of
money; (iv) guaranty of any obligation, other than one on which BP Senior
Care is a primary obligor, for the borrowing of money or otherwise,
excluding endorsements made for collection and other guaranties of
obligations which, in the aggregate do not exceed more than one (1) year or
provide for payments in excess of Twenty-Five Thousand Dollars ($25,000) in
the aggregate; (v) collective bargaining agreement; or (vi) agreement with
any present or former officer or director of BP Senior Care.
Section 1.11 Material Contract Defaults. BP Senior Care is not in
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default in any material respect under the terms of any outstanding material
contract, agreement, lease, or other commitment which is material to the
business, operations, properties, assets or condition of BP Senior Care and
there is no event of default in any material respect under any such contract,
agreement, lease, or other commitment in respect of which BP Senior Care has not
taken adequate steps to prevent such a default from occurring.
Section 1.12 No Conflict With Other Instruments. The execution of this
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Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, constitute
an event of default under, or terminate, accelerate or modify the terms of any
material indenture, mortgage, deed of trust, or other material contract,
agreement, or instrument to which BP Senior Care is a party or to which any of
its properties or operations are subject.
Section 1.13 Governmental Authorizations. Except as set forth in the
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BP Senior Care Schedules, BP Senior Care has all licenses, franchises, permits,
and other governmental authorizations that are legally required to enable it to
conduct its business in all material respects as conducted on the date hereof.
Except for compliance with federal and state securities and corporation laws, as
hereinafter provided, no authorization, approval, consent, or order of, or
registration, declaration, or filing with, any court or other governmental body
is required in connection with the execution and delivery by BP Senior Care of
this Agreement and the consummation by BP Senior Care of the transactions
contemplated hereby.
Section 1.14 Compliance With Laws and Regulations. Except as set forth
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in the BP Senior Care Schedules, to the best of its knowledge BP Senior Care has
complied with all applicable statutes and regulations of any federal, state, or
other governmental entity or agency thereof, except to the extent that
noncompliance would not materially and adversely affect the business,
operations, properties, assets, or condition of BP Senior Care or except to the
extent that noncompliance would not result in the occurrence of any material
liability for BP Senior Care.
Section 1.15 Approval of Agreement. The Board of Directors of BP
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Senior Care has authorized the execution and delivery of this Agreement by BP
Senior Care and has approved this Agreement and the transactions contemplated
hereby, and will recommend to the BP Senior Care Shareholder that the Exchange
Offer be accepted by her.
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Section 1.16 Material Transactions or Affiliations. Set forth in the
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BP Senior Care Schedules is a description, if applicable, of every contract,
agreement, or arrangement between BP Senior Care and any predecessor and any
person who was at the time of such contract, agreement, or arrangement an
officer, director, or person owning of record, or known by BP Senior Care to own
beneficially, five percent (5%) or more of the issued and outstanding common
stock of BP Senior Care and which is to be performed in whole or in part after
the date hereof or which was entered into not more than three (3) years prior to
the date hereof. Except as disclosed in the BP Senior Care Schedules or
otherwise disclosed herein, no officer, director, or five percent (5%)
shareholder of BP Senior Care has, or has had since inception of BP Senior Care,
any known interest, direct or indirect, in any transaction with BP Senior Care
which was material to the business of BP Senior Care. There are no commitments
by BP Senior Care, whether written or oral, to lend any funds, or to borrow any
money from, or enter into any other transaction with, any such affiliated
person.
Section 1.17 BP Senior Care Schedules. BP Senior Care will deliver to
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the Company the following schedules, if such schedules are applicable to the
business of BP Senior Care, which are collectively referred to as the " BP
Senior Care Schedules" and which consist of separate schedules dated as of the
date of execution of this Agreement, all certified by the principal executive
officer of BP Senior Care as complete, true, and correct as of the date of this
Agreement in all material respects:
(a) a schedule containing complete and correct copies of the Articles
of Incorporation in effect as of the date of this Agreement;
(b) a schedule containing complete and correct copies of the Bylaws of
BP Senior Care in effect as of the date of this Agreement;
(c) a schedule containing any Corporate Resolutions of the
Shareholders of BP Senior Care;
(d) a schedule containing Minutes of meetings of the Board of
Directors of BP Senior Care;
(e) a schedule containing a list indicating the name and address of
each shareholder of BP Senior Care together with the number of shares owned
by him, her or it;
(f) a schedule listing any and all federal, state and local tax
identification numbers of BP Senior Care and containing complete and
correct copies of all federal, state and local tax returns filed by BP
Senior Care; and
(g) a schedule setting forth any other information, together with any
required copies of documents, required to be disclosed by BP Senior Care.
BP Senior Care shall cause the BP Senior Care Schedules and the instruments
and data delivered to the Company hereunder to be promptly updated after the
date hereof up to and including the Closing Date.
It is understood and agreed that not all of the schedules referred to above
have been completed or are available to be furnished by BP Senior Care. BP
Senior Care shall have until June 11, 2004 to provide such schedules. If BP
Senior Care cannot or fails to do so, or if the Company acting reasonably finds
any such schedules or updates provided after the date hereof to be unacceptable
according to the criteria set forth herein, the Company may terminate this
Agreement by giving written notice to BP Senior Care within five (5) days after
the schedules or updates were due to be produced or were provided. For purposes
of the foregoing, the Company may consider a disclosure in the BP Senior Care
Schedules to be "unacceptable" only if that item would have a material adverse
impact on the financial condition of BP Senior Care, taken as a whole.
Section 1.18 Valid Obligation. This Agreement and all agreements and
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other documents executed by BP Senior Care in connection herewith constitute the
valid and binding obligation of BP Senior Care, enforceable in accordance with
its or their terms, except as may be limited by bankruptcy, insolvency,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally and subject to the qualification that the availability of equitable
remedies is subject to the discretion of the court before which any proceeding
therefore may be brought.
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Section 1.19 Acquisition of the Shares by the BP Senior Care
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Shareholder. The BP Senior Care Shareholder is acquiring the Shares for her own
account without the participation of any other person and with the intent of
holding the Shares for investment and without the intent of participating,
directly or indirectly, in a distribution of the Shares, or any portion thereof,
and not with a view to, or for resale in connection with, any distribution of
the Shares, or any portion thereof. The BP Senior Care Shareholder has read,
understands and has consulted with her legal counsel regarding the limitations
and requirements of Section 5 of the 1933 Act. The BP Senior Care Shareholder
will offer, sell, pledge, convey or otherwise transfer the Shares, or any
portion thereof, only if: (i) pursuant to an effective registration statement
under the 1933 Act and any and all applicable state securities or Blue Sky laws
or in a transaction which is otherwise in compliance with the 1933 Act and such
laws; or (ii) pursuant to a valid exemption from registration.
Section 1.20 Exemption from Registration. The Exchange and the
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transactions contemplated thereby, meet an exemption from registration pursuant
to Rule 506 of Regulation D promulgated under the 1933 Act.
ARTICLE II
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF THE COMPANY
As an inducement to, and to obtain the reliance of BP Senior Care and the
BP Senior Care Shareholder, except as set forth in the Company Schedules (as
hereinafter defined), the Company represents and warrants as follows:
Section 2.01. Authority. The Company is a corporation duly organized,
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validly existing, and in good standing under the laws of the State of Nevada and
has the corporate power and is duly authorized, qualified, franchised, and
licensed under all applicable laws, regulations, ordinances, and orders of
public authorities to own all of its properties and assets, to carry on its
business in all material respects as it is now being conducted, and except where
failure to be so qualified would not have a material adverse effect on its
business, there is no jurisdiction in which it is not qualified in which the
character and location of the assets owned by it or the nature of the business
transacted by it requires qualification. The Company has all requisite power and
authority, corporate or otherwise, to execute and deliver this Agreement and to
consummate the transactions contemplated hereby and thereby. The Company has
duly and validly executed and delivered this Agreement and will, on or prior to
the Closing, execute, such other documents as may be required hereunder and,
assuming the due authorization, execution and delivery of this Agreement by the
parties hereto and thereto, this Agreement constitutes, the legal, valid and
binding obligation of the Company enforceable against the Company in accordance
with its terms, except as such enforcement may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally and general equitable principles.
Section 2.02 Capitalization. The Company is authorized to issue
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500,000,000 shares of Common Stock, par value $.001 per share, of which
approximately 52,060,040 shares will be issued and outstanding on the closing
date prior to the issuance of the shares to the BP Senior Care Shareholder as
set forth in Section 3.01(ii), as defined herein, and no shares of preferred
stock. All issued and outstanding shares are legally issued, fully paid, and
non-assessable and not issued in violation of the preemptive or other rights of
any person.
Section 2.03 Financial Statements.
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(a) Included in the Company Schedules are (i) the audited balance
sheets of the Company and the related statements of operations and cash
flows as of and for the twelve (12) months ended December 31, 2003 and (ii)
the unaudited balance sheets of the Company and the related statements of
operations and cash flows for the three (3) months ended March 31, 2004.
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(b) All such financial statements have been prepared in accordance
with generally accepted accounting principles consistently applied
throughout the periods involved. The Company balance sheets present fairly
as of their respective dates the financial condition of the Company. As of
the date of such balance sheets, except as and to the extent reflected or
reserved against therein, the Company had no liabilities or obligations
(absolute or contingent) which should be reflected in the balance sheets or
the notes thereto prepared in accordance with generally accepted accounting
principles, and all assets reflected therein are properly reported and
present fairly the value of the assets of the Company, in accordance with
generally accepted accounting principles. The statements of operations,
stockholders' equity and cash flows reflect fairly the information required
to be set forth therein by generally accepted accounting principles.
(c) The Company has no liabilities with respect to the payment of any
federal, state, county, local or other taxes (including any deficiencies,
interest or penalties), except for taxes accrued but not yet due and
payable.
(d) The books and records, financial and otherwise, of the Company are
in all material aspects complete and correct and have been maintained in
accordance with good business and accounting practices.
(e) All of the Company's assets are reflected on its financial
statements, and, except as set forth in the Company Schedules or the
financial statements of the Company or the notes thereto, the Company has
no material liabilities, direct or indirect, matured or unmatured,
contingent or otherwise.
Section 2.04 Information. The information concerning the Company set
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forth in this Agreement and the Company Schedules is complete and accurate in
all material respects and does not contain any untrue statements of a material
fact or omit to state a material fact required to make the statements made, in
light of the circumstances under which they were made, not misleading.
Section 2.05 Title and Related Matters. The Company has good and
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marketable title to all of its properties, inventory, interest in properties,
and assets, real and personal, which are reflected in the most recent Company
balance sheet or acquired after that date (except properties, inventory,
interest in properties, and assets sold or otherwise disposed of since such date
in the ordinary course of business), free and clear of all liens, pledges,
charges, or encumbrances except (a) statutory liens or claims not yet
delinquent; (b) such imperfections of title and easements as do not and will not
materially detract from or interfere with the present or proposed use of the
properties subject thereto or affected thereby or otherwise materially impair
present business operations on such properties; and (c) as described in the
Company Schedules. Except as set forth in the Company Schedules, the Company
owns, free and clear of any liens, claims, encumbrances, royalty interests, or
other restrictions or limitations of any nature whatsoever, any and all products
it is currently manufacturing, including the underlying technology and data, and
all procedures, techniques, marketing plans, business plans, methods of
management, or other information utilized in connection with the Company's
business. Except as set forth in the Company Schedules, no third party has any
right to, and the Company has not received any notice of infringement of or
conflict with asserted rights of others with respect to any product, technology,
data, trade secrets, know-how, proprietary techniques, trademarks, service
marks, trade names, or copyrights which, individually or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would have a
materially adverse effect on the business, operations, financial condition,
income, or business prospects of the Company or any material portion of its
properties, assets, or rights.
Section 2.06 Litigation and Proceedings. There are no actions, suits,
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proceedings or investigations pending or, to the knowledge of the Company after
reasonable investigation, threatened by or against the Company or affecting the
Company or its properties, at law or in equity, before any court or other
governmental agency or instrumentality, domestic or foreign, or before any
arbitrator of any kind. The Company has no knowledge of any default on its part
with respect to any judgment, order, writ, injunction, decree, award, rule or
regulation of any court, arbitrator, or governmental agency or instrumentality,
or any circumstance which after reasonable investigation would result in the
discovery of such default.
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Section 2.07 No Conflict With Other Instruments. The execution and
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delivery by the Company of this Agreement and the consummation of the
transactions contemplated hereby and thereby, do not and will not, by the lapse
of time, the giving of notice or otherwise: (a) constitute a violation of any
law; (b) constitute a breach or violation of any provision contained in the
Articles of Incorporation or Bylaws of the Company; (c) constitute a breach of
any provision contained in, or a default under, any governmental approval, any
writ, injunction, order, judgment or decree of any governmental authority or any
contract to which the Company is a party or by which the Company is bound or
affected; or (d) constitute a breach of any term or provision of, constitute a
default under, or terminate, accelerate or modify the terms of, any indenture,
mortgage, deed of trust, or other material agreement or instrument to which the
Company is a party or to which any of its assets or operations are subject.
Section 2.08 Governmental Authorizations. The Company has all
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licenses, franchises, permits, and other governmental authorizations, that are
legally required to enable it to conduct its business operations in all material
respects as conducted on the date hereof. Except for compliance with federal
and state securities or corporation laws, as hereinafter provided, no
authorization, approval, consent or order of, or registration, declaration or
filing with, any court or other governmental body is required in connection with
the execution and delivery by the Company of this Agreement and the consummation
by the Company of the transactions contemplated hereby.
Section 2.09 Compliance With Laws and Regulations. To the best of its
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knowledge, the Company has complied with all applicable statutes and regulations
of any federal, state, or other applicable governmental entity or agency
thereof, except to the extent that noncompliance would not materially and
adversely affect the business, operations, properties, assets or condition of
the Company or except to the extent that noncompliance would not result in the
occurrence of any material liability. This compliance includes, but is not
limited to, the filing of all reports, filings and schedules to date with
federal and state securities authorities.
Section 2.10 The Company Schedules. Within ten (10) days following the
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Closing, the Company will deliver to BP Senior Care, schedules, which are
collectively referred to as the "Company Schedules", setting forth any
information, together with any required copies of documents, required to be
disclosed in the Company Schedules by Sections 2.01 through 2.15. The Company
Schedules shall consist of separate schedules which are dated the date of this
Agreement, all certified by the principal executive officer of the Company to be
complete, true, and accurate in all material respects as of the date of this
Agreement:
The Company shall cause the Company Schedules and the instruments and data
delivered to BP Senior Care hereunder to be promptly updated after the date
hereof up to and including the Closing Date.
It is understood and agreed that not all of the Company Schedules have been
completed or are available to be furnished by the Company. The Company shall
have until June 11, 2004 to provide such schedules. If the Company cannot or
fails to provide the schedules required by this Section, or if BP Senior Care or
the BP Senior Care Shareholder find any such schedules or updates provided after
the date hereof to be unacceptable, BP Senior Care or the BP Senior Care
Shareholder may terminate this Agreement by giving written notice to the Company
within five (5) days after the schedules or updates were due to be produced or
were provided. For purposes of the foregoing, the BP Senior Care may consider a
disclosure in the Company Schedules to be "unacceptable" only if that item would
have a material adverse impact on the financial condition of the Company, taken
as a whole.
Section 2.11 Valid Obligation. This Agreement and all agreements and
-----------------
other documents executed by the Company in connection herewith constitute the
valid and binding obligation of the Company, enforceable in accordance with its
or their terms, except as may be limited by bankruptcy, insolvency, moratorium
or other similar laws affecting the enforcement of creditors' rights generally
and subject to the qualification that the availability of equitable remedies is
subject to the discretion of the court before which any proceeding therefor may
be brought.
Section 2.12 Reporting Requirements of the Company. The Company is
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subject to the reporting and filing requirements of the Securities Exchange Act
of 1934 ("the Exchange Act') including (1) the periodic reporting requirements
and (2) the Proxy Rules set forth thereunder. The Company and its officers,
directors, and beneficial owners are subject to the provisions of the Exchange
Act Section 16 relating to short-swing profit recapture, reports of beneficial
ownership and short sale prohibitions and the Company and its officers,
directors, and beneficial owners have timely complied in all respects with the
filing requirements of the Exchange Act. The Company shall make all necessary
filings related to this Agreement with the Securities and Exchange Commission
(the "SEC").
9
Section 2.13 Quotation on the OTC Bulletin Board. The Company's Common
-----------------------------------
Stock is quoted on the OTC Bulletin Board under the symbol "MTHC" and the
Company will retain such quotation on the OTC Bulletin Board after the Closing
of the transactions contemplated herein.
Section 2.14 Approval of the Exchange by the Company's Shareholders. The
--------------------------------------------------------
transactions contemplated by this Agreement do not require the approval of the
Company's shareholders under Nevada law or the Company's Articles of
Incorporation or Bylaws or any amendments thereto and the Company is not
required to file a Schedule 14A or 14C with the Securities and Exchange
Commission as a result of this Agreement.
Section 2.15 Approval of the Exchange by the Company's Directors. The
---------------------------------------------------
Directors of the Company shall have approved the Exchange Offer and the related
transactions described herein.
ARTICLE III
PLAN OF EXCHANGE
Section 3.01 The Exchange. (i) On the terms and subject to the
-------------
conditions set forth in this Agreement, on the Closing Date (as defined in
Section 3.02), each BP Senior Care Shareholder who shall elect to accept the
Exchange Offer described herein shall assign, transfer and deliver, free and
clear of all liens, pledges, encumbrances, charges, restrictions or known claims
of any kind, nature, or description, the number of shares of common stock of BP
Senior Care set forth herein, in the aggregate constituting 100% of the issued
and outstanding shares of common stock of BP Senior Care. After the acquisition
of 100% of the outstanding shares of BP Senior Care, BP Senior Care shall become
a subsidiary of the Company.
Section 3.01(ii) The BP Senior Care Shareholder will receive Two
Thousand (2,000) shares of the Company's common stock for every One (1) share of
BP Senior Care common stock held or an aggregate amount of 200,000 shares of the
Company's Common Stock. As additional consideration, the Company shall pay
Xxxxx Xxxxx an aggregate of $150,000 cash payable as follows: a) $25,000 at
Closing; and b) $125,000 payable at the beginning of the month in equal monthly
installments of $4,808 over a twenty-five month period beginning June 2004, and
a final payment of $4,800 at the beginning of the twenty-sixth month following
June 2004 (collectively referred to as the "Periodic Payments"). At such time
after Closing, the Company has raised $1,000,000 in financing, the Company will
pay all remaining, unpaid Periodic Payments to Xxxxx Xxxxx.
Section 3.02 Closing. The closing ("Closing") of the transaction
-------
contemplated by this Agreement shall be on a date and at such time as the
parties may agree ("Closing Date") but not later than May 20, 2004, subject to
the right of the Company or BP Senior Care to extend such Closing Date by up to
an additional ten (10) days. Such Closing shall take place at a mutually
agreeable time and place. At Closing, or immediately thereafter, the following
will occur:
a) The BP Senior Care Shareholder shall surrender the certificates
evidencing 100% of the shares of BP Senior Care stock, duly endorsed
with Medallion Guaranteed stock powers so as to make the Company the
sole owner thereof;
b) The Company will issue and deliver 200,000 newly issued treasury
shares of the Company's Common Stock in the name of the BP Senior Care
Shareholder in accordance with this Agreement;
c) The Company shall pay Xxxxx Xxxxx $25,000 cash;
d) At Closing, the Company and Xxxxx Xxxxx shall enter into an Employment
Agreement for a term of one (1) year that provides for an annual
salary of Sixty Thousand Dollars ($60,000) and is renewable for a
second year with an annual salary of Seventy Thousand Dollars
($70,000) during such second year. Under such Employment Agreement,
Xxxxx Xxxxx will be responsible for the operations of BP Senior Care;
And
10
e) At the Closing, the Company, BP Senior Care and each of the BP Senior
Care Shareholder shall execute, acknowledge, and deliver (or shall
ensure to be executed, acknowledged, and delivered) any and all
certificates, opinions, financial statements, schedules, agreements,
resolutions, rulings or other instruments required by this Agreement
to be so delivered at or prior to the Closing, together with such
other items as may be reasonably requested by the parties hereto and
their respective legal counsel in order to effectuate or evidence the
transactions contemplated hereby. Among other things, the Company
shall provide an opinion of counsel acceptable to BP Senior Care as to
such matters as BP Senior Care may reasonably request, which shall
include, but not be limited to, a statement, to the effect that to
such counsel's best knowledge, after reasonable investigation, from
inception until the Closing Date, the Company has complied with all
applicable statutes and regulations of any federal, state, or other
applicable governmental entity or agency thereof, except to the extent
that noncompliance would not materially and adversely affect the
business, operations, properties, assets or condition of the Company
or except to the extent that noncompliance would not result in the
occurrence of any material liability (such compliance including, but
not being limited to, the filing of all reports to date with federal
and state securities authorities).
Section 3.03 Tradability of Shares. The shares of the Common Stock of
----------------------
the Company to be issued to the BP Senior Care Shareholder have not been
registered under the 1933 Act, nor registered under any state securities law,
and are "restricted securities" as that term is defined in Rule 144 under the
0000 Xxx. The securities may not be offered for sale, sold or otherwise
transferred except pursuant to an effective registration statement under the
1933 Act, or pursuant to an exemption from registration under the 1933 Act. The
shares to be issued to the BP Senior Care Shareholder will bear the following
restrictive legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, AND MAY
NOT BE SOLD, TRANSFERRED, PLEDGED, OR HYPOTHECATED WITHOUT EITHER: i)
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND APPLICABLE STATE
SECURITIES LAWS, OR ii) SUBMISSION TO THE CORPORATION OF AN OPINION OF COUNSEL,
SATISFACTORY TO THE CORPORATION THAT SAID SHARES AND THE TRANSFER THEREOF ARE
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933 AND
APPLICABLE STATE SECURITIES LAWS."
Section 3.04 Anti-Dilution. The number of shares of the Company's
-------------
Common Stock issuable upon the Exchange Offer shall be appropriately adjusted to
take into account any other stock split, stock dividend, reverse stock split,
recapitalization, or similar change in the Company's Common Stock which may
occur between the date of the execution of this Agreement and the Closing Date.
Section 3.05 Termination.
-----------
(a) This Agreement may be terminated by the Board of Directors of
either the Company or BP Senior Care or by the BP Senior Care Shareholder
at any time prior to the Closing Date if:
(i) there shall be any actual or threatened action or proceeding
before any court or any governmental body which shall seek to
restrain, prohibit, or invalidate the transactions contemplated by
this Agreement and which, in the judgment of such Board of Directors,
made in good faith and based upon the advice of its legal counsel,
makes it inadvisable to proceed with the Exchange;
(ii) any of the transactions contemplated hereby are disapproved
by any regulatory authority whose approval is required to consummate
such transactions (which does not include the Securities and Exchange
Commission) or in the judgment of such board of directors, made in
good faith and based on the advice of counsel, there is substantial
likelihood that any such approval will not be obtained or will be
obtained only on a condition or conditions which would be unduly
burdensome, making it inadvisable to proceed with the Exchange; or
(iii) if less than one hundred percent (100%) of the BP Senior
Care Shareholders agree to the Exchange Offer.
11
In the event of termination pursuant to this paragraph, no obligation, right or
liability shall arise hereunder, and each party shall bear all of the expenses
incurred by it in connection with the negotiation, drafting, and execution of
this Agreement and the transactions herein contemplated.
(b) This Agreement may be terminated by the Board of Directors of the
Company at any time prior to the Closing Date if:
(i) the Board of Directors of the Company determines in good
faith that one or more of the Company's conditions to Closing has not
occurred, through no fault of the Company.
(ii) The Company takes the termination action specified in
Section 1.17 as a result of BP Senior Care Schedules or updates
thereto which the Company finds unacceptable; or
(iii) BP Senior Care shall fail to comply in any material respect
with any of its covenants or agreements contained in this Agreement or
if any of the representations or warranties of BP Senior Care
contained herein shall be inaccurate in any material respect, where
such noncompliance or inaccuracy has not been cured within ten (10)
days after written notice thereof.
If this Agreement is terminated pursuant to this paragraph, this Agreement shall
be of no further force or effect, and no obligation, right or liability shall
arise hereunder, except that BP Senior Care shall bear the costs in connection
with the negotiation, preparation, and execution of this Agreement and
qualifying the offer and sale of securities to be issued in the Exchange under
the registration requirements, or exemption from the registration requirements,
of state and federal securities laws.
(c) This Agreement may be terminated by the Board of Directors of BP
Senior Care or by the BP Senior Care Shareholder at any time prior to the
Closing Date if:
(i) there shall have been any change after the date of the latest
balance sheet of the Company in the assets, properties, business or
financial condition of the Company which could have a material adverse
effect on the financial statements of the Company listed in Section
2.03(a) and 2.03(b) taken as a whole, except any changes disclosed in
the Company Schedules;
(ii) the Board of Directors of BP Senior Care determines in good
faith that one or more of BP Senior Care's conditions to Closing has
not occurred, through no fault of BP Senior Care;
(iii) BP Senior Care takes the termination action specified in
Section 2.10 as a result of the Company Schedules or updates thereto
which BP Senior Care finds unacceptable; or
(iv) The Company shall fail to comply in any material respect
with any of its covenants or agreements contained in this Agreement or
if any of the representations or warranties of the Company contained
herein shall be inaccurate in any material respect, where such
noncompliance or inaccuracy has not been cured within ten (10) days
after written notice thereof.
12
If this Agreement is terminated pursuant to this paragraph, this Agreement
shall be of no further force or effect, and no obligation, right or
liability shall arise hereunder.
No revenue ruling or opinion of counsel will be sought as to the tax-free
nature of the subject Exchange and such tax treatment is not a condition to
Closing herein.
ARTICLE IV
SPECIAL COVENANTS
Section 4.01 Access to Properties and Records. Prior to the Closing Date,
---------------------------------
BP Senior Care will afford to the officers and authorized representatives of
Company full access to the properties, books and records of BP Senior Care in
order that Company may have a full opportunity to make such reasonable
investigation as it shall desire to make of the affairs of BP Senior Care, and
BP Senior Care will furnish Company with such additional financial and operating
data and other information as to the business and properties of BP Senior Care
(the confidentiality of which Company agrees to retain) as Company shall from
time to time reasonably request. Any such investigation and examination shall
be conducted at reasonable times and under reasonable circumstances, and each
party hereto shall cooperate fully therein. No investigation by Company hereto
shall, however, diminish or waive in any way any of the representations,
warranties, covenants or agreements of Company under this Agreement. In order
that Company may investigate as it may wish the business affairs of BP Senior
Care, BP Senior Care shall furnish Company during such period with all such
information and copies of such documents concerning the affairs of BP Senior
Care as Company may reasonably request, and cause its officers, employees,
consultants, agents, accountants, and attorneys to cooperate fully in connection
with such review and examination, and to make full disclosure to Company all
material facts affecting the financial condition, business operations, and the
conduct of operations of BP Senior Care.
Section 4.02 Delivery of Books, Records andAccounts. At the Closing,
---------------------------------------
BP Senior Care shall deliver to the Company copies of the corporate minute
books, books of account, contracts, records, and all other books or documents of
BP Senior Care now in the possession of BP Senior Care or its representatives.
At the Closing, the BP Senior Care or the BP senior Care Shareholder shall
execute such documents as are necessary to make the person or persons designated
by the Company the authorized xxxxxx on all of the BP Senior Care bank accounts
or other accounts maintained by the BP Senior Care at financial institutions.
Section 4.03 Third Party Consents and Certificates. The Company and BP
-------------------------------------
Senior Care agree to cooperate with each other in order to obtain any required
third party consents to this Agreement and the transactions herein contemplated.
Section 4.04 Consent of BP Senior Care Shareholders. BP Senior Care
----------------------------------------
shall use its best efforts to obtain the consent of all BP Senior Care
Shareholders to participate in the Exchange.
Section 4.05 Exclusive Dealing Rights. Until 5:00 P.M. Eastern
--------------------------
Daylight Time on May 20, 2004. In recognition of the substantial time and
effort which the Company has spent and will continue to spend in investigating
BP Senior Care and its business and in addressing the matters related to the
transactions contemplated herein, each of which may preempt or delay other
management activities, neither BP Senior Care, nor any of its officers,
employees, representatives or agents will directly or indirectly solicit or
initiate any discussions or negotiations with, or, except where required by
fiduciary obligations under applicable law as advised by counsel, participate in
any negotiations with or provide any information to or otherwise cooperate in
any other way with, or facilitate or encourage any effort or attempt by, any
corporation, partnership, person or other entity or group (other than the
Company and its directors, officers, employees, representatives and agents)
concerning any merger, sale of substantial assets, sale of shares of capital
stock, (including without limitation, any public or private offering of the
common stock of BP Senior Care) or similar transactions involving BP Senior Care
(all such transactions being referred to as " BP Senior Care Acquisition
Transactions"). If BP Senior Care receives any proposal with respect to a BP
Senior Care Acquisition Transaction, it will immediately communicate to the
Company the fact that it has received such proposal and the principal terms
thereof.
13
Section 4.06 Actions Prior to Closing.
---------------------------
(a) From and after the date of this Agreement until the Closing Date
and except as set forth in the Company Schedules or BP Senior Care
Schedules or as permitted or contemplated by this Agreement, the Company
and BP Senior Care respectively (subject to paragraph (b) below), will
each:
(i) carry on its business in substantially the same manner as it
has heretofore;
(ii) maintain and keep its properties in states of good repair
and condition as at present, except for depreciation due to ordinary
wear and tear and damage due to casualty;
(iii) maintain in full force and effect insurance comparable in
amount and in scope of coverage to that now maintained by it;
(iv) perform in all material respects all of its obligations
under material contracts, leases, and instruments relating to or
affecting its assets, properties, and business;
(v) use its best efforts to maintain and preserve its business
organization intact, to retain its key employees, and to maintain its
relationship with its material suppliers and customers; and
(vi) fully comply with and perform in all material respects all
obligations and duties imposed on it by all federal and state laws and
all rules, regulations, and orders imposed by federal or state
governmental authorities.
(b) From and after the date of this Agreement until the Closing Date,
neither the Company nor BP Senior Care will:
(i) make any changes in their Articles of Incorporation or
Bylaws, except as otherwise provided in this Agreement;
(ii) enter into or amend any contract, agreement, or other
instrument of any of the types described in such party's schedules,
except that a party may enter into or amend any contract, agreement,
or other instrument in the ordinary course of business involving the
sale of goods or services; or
(iii) sell any assets or discontinue any operations, sell any
shares of capital stock or conduct any similar transactions other than
in the ordinary course of business.
(c) From and after the date of this Agreement until the Closing Date, BP
Senior Care will not take any action described in Section 1.07 (all
except as permitted therein or as disclosed in the BP Senior Care
Schedules).
Section 4.07 Actions Subsequent to Closing. After Closing or as
--------------------------------
mutually agreed to between the Company, BP Senior Care and the BP Senior Care
Shareholder, the current management of BP Senior Care shall not be replaced,
such management shall be responsible for the day-to-day operations of BP Senior
Care from its present location as listed in Section 7.04, below, and such
management shall be required to provide monthly unaudited financial statements
and related supporting documentation to the Company or a financial management
team as the Company may designate in its sole discretion.
Section 4.08 Indemnification of BP Senior Care and the BP Senior Care
--------------------------------------------------------
Shareholder. Subject to the terms and conditions of this Section 4.08, the
----------
Company agrees to indemnify, defend and hold harmless BP Senior Care and the BP
Senior Care Shareholder from and against any and all claims, liabilities and
losses which may be imposed on, incurred by or asserted against, arising out of
or resulting from, directly or indirectly:
14
(a) the inaccuracy of any representation or breach of any
warranty of Company contained in or made pursuant to this Agreement
which was not disclosed to Seller in writing prior to the Closing;
provided that no such notification shall be deemed to waive or
abrogate any right of BP Senior Care and the BP Senior Care
Shareholder with respect to conditions to Closing in Article VI;
(b) the breach of any covenant or agreement of Company contained
in this Agreement; or
(c) any claim to fees or costs for alleged services by a broker,
agent, finder or other person claiming to act in a similar capacity at
the request of Company in connection with this Agreement;
provided, however, that Company shall not be liable for any portion of
any claims, liabilities or losses resulting from a material breach by BP
Senior Care and the BP Senior Care Shareholder, of any of their obligations
under this Agreement or from their gross negligence, fraud or willful
misconduct.
Section 4.09 Indemnification of the Company. Subject to the terms and
------------------------------
conditions of this Section 4.09, from and after the Closing, BP Senior Care and
the BP Senior Care Shareholder, agree to indemnify, defend and hold harmless the
Company, its respective affiliates, its respective present and former directors,
officers, shareholders, employees and agents and its respective heirs,
executors, administrators, successors and assigns (the "Company Indemnified
-------------------
Persons"), from and against any and all claims, liabilities and losses which may
-------
be imposed on, incurred by or asserted against any Company Indemnified Person,
up to a maximum of the amount and value received, pursuant to Section 3.01
above, by BP Senior Care, the BP Senior Care Shareholder, or Xxxxx Xxxxx arising
out of or resulting from, directly or indirectly:
(a) the inaccuracy of any representation or breach of any warranty of
BP Senior Care and the BP Senior Care Shareholder contained in or made
pursuant to this Agreement which was not disclosed to Company in writing
prior to the Closing; provided that no such notification shall be deemed to
waive or abrogate any right of Company with respect to conditions to
Closing in Article V;
(b) the breach of any covenant or agreement of BP Senior Care and the
BP Senior Care Shareholder contained in this Agreement;
(c) the failure to disclose any material liability including
contingent liabilities;
(d) the conduct of the business of BP Senior Care prior to the
Closing; or
(e) any claim to fees or costs for alleged services rendered by a
broker, agent, finder or other person claiming to act in a similar capacity
at the request of BP Senior Care and the BP Senior Care Shareholder in
connection with this Agreement;
provided, however, that BP Senior Care and the BP Senior Care Shareholder shall
not be liable for any portion of any claims, liabilities or losses resulting
from a material breach by Company of its obligations under this Agreement or
from a Company Indemnified Person's gross negligence, fraud or willful
misconduct.
Section 4.10 Audited Financial Statements. BP Senior Care must pay for
----------------------------
and complete an audit of BP Senior Care's business operations and provide
audited financial statements pursuant to the Securities Act of 1933 and the
Securities Exchange Act of 1934 (Regulation S-X) within 75 days of Closing and
the Company shall cause its auditor to cooperate with the BP Senior Care auditor
in connection with performance of such audit and the preparation of such audited
financial statements. The Company shall file audited financial statements of BP
Senior Care as required by the Securities and Exchange Commission within
seventy-five (75) days from the date of Closing.
15
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE COMPANY
The obligations of the Company under this Agreement are subject to the
satisfaction, at or before the Closing Date, of the following conditions:
Section 5.01 Accuracy of Representations and Performance of Covenants.
--------------------------------------------------------
The representations and warranties made by BP Senior Care in this Agreement were
true when made and shall be true at the Closing Date with the same force and
effect as if such representations and warranties were made at and as of the
Closing Date (except for changes therein permitted by this Agreement). BP
Senior Care shall have performed or complied with all covenants and conditions
required by this Agreement to be performed or complied with by BP Senior Care
prior to or at the Closing. The Company shall be furnished with a certificate,
signed by a duly authorized executive officer of BP Senior Care and dated the
Closing Date, to the foregoing effect.
Section 5.02 Officer's Certificate. The Company shall have been
----------------------
furnished with a certificate dated the Closing Date and signed by a duly
authorized officer of BP Senior Care to the effect that no litigation,
proceeding, investigation, or inquiry is pending, or to the best knowledge of BP
Senior Care threatened, which might result in an action to enjoin or prevent the
consummation of the transactions contemplated by this Agreement, or, to the
extent not disclosed in the BP Senior Care Schedules, by or against BP Senior
Care, which might result in any material adverse change in any of the assets,
properties, business, or operations of BP Senior Care.
Section 5.03 No Material Adverse Change. Prior to the Closing Date,
----------------------------
there shall not have occurred any material change in the financial condition,
business, or operations of BP Senior Care nor shall any event have occurred
which, with the lapse of time or the giving of notice, is determined to be
unacceptable using the criteria set forth in Section 1.17.
Section 5.04 Approval by BP Senior Care Shareholder. The Exchange
------------------------------------------
shall have been approved, and shares delivered in accordance with Section 3.01,
by the holders of not less than one hundred percent (100%) of the outstanding
common stock of BP Senior Care.
Section 5.05 No Governmental Prohibition. No order, statute, rule,
-----------------------------
regulation, executive order, injunction, stay, decree, judgment or restraining
order shall have been enacted, entered, promulgated or enforced by any court or
governmental or regulatory authority or instrumentality which prohibits the
consummation of the transactions contemplated hereby.
Section 5.06 Consents. All consents, approvals, waivers or amendments
--------
pursuant to all contracts, licenses, permits, trademarks and other intangibles
in connection with the transactions contemplated herein, or for the continued
operation of the Company and BP Senior Care after the Closing Date on the basis
as presently operated shall have been obtained.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF BP SENIOR CARE
AND THE BP SENIOR CARE SHAREHOLDER
The obligations of BP Senior Care and the BP Senior Care Shareholder under
this Agreement are subject to the satisfaction, at or before the Closing Date,
of the following conditions:
Section 6.01 Accuracy of Representations and Performance of Covenants.
--------------------------------------------------------
The representations and warranties made by the Company in this Agreement were
true when made and shall be true as of the Closing Date (except for changes
therein permitted by this Agreement) with the same force and effect as if such
representations and warranties were made at and as of the Closing Date.
Additionally, the Company shall have performed and complied with all covenants
and conditions required by this Agreement to be performed or complied with by
the Company and shall have satisfied all conditions set forth herein prior to or
at the Closing. BP Senior Care shall have been furnished with certificates,
signed by duly authorized executive officers of the Company and dated the
Closing Date, to the foregoing effect.
16
Section 6.02 Officer's Certificate. BP Senior Care shall have been
----------------------
furnished with certificates dated the Closing Date and signed by the duly
authorized executive officer of the Company, to the effect that no litigation,
proceeding, investigation or inquiry is pending, or to the best knowledge of the
Company threatened, which might result in an action to enjoin or prevent the
consummation of the transactions contemplated by this Agreement or, to the
extent not disclosed in the Company Schedules, by or against the Company, which
might result in any material adverse change in any of the assets, properties or
operations of the Company.
Section 6.03 No Material Adverse Change. Prior to the Closing Date,
----------------------------
there shall not have occurred any change in the financial condition, business or
operations of the Company nor shall any event have occurred which, with the
lapse of time or the giving of notice, is determined to be unacceptable using
the criteria set forth in Section 2.10.
Section 6.04 No Governmental Prohibition. No order, statute, rule,
-----------------------------
regulation, executive order, injunction, stay, decree, judgment or restraining
order shall have been enacted, entered, promulgated or enforced by any court or
governmental or regulatory authority or instrumentality which prohibits the
consummation of the transactions contemplated hereby.
Section 6.05 Consents. All consents, approvals, waivers or amendments
--------
pursuant to all contracts, licenses, permits, trademarks and other intangibles
in connection with the transactions contemplated herein, or for the continued
operation of the Company and BP Senior Care after the Closing Date on the basis
as presently operated shall have been obtained.
Section 6.06 Other Items. BP Senior Care shall have received further
------------
opinions, documents, certificates, or instruments relating to the transactions
contemplated hereby as BP Senior Care may reasonably request.
ARTICLE VII
MISCELLANEOUS
Section 7.01 No Bankruptcy and No Criminal Convictions. None of the
-------------------------------------------
Parties to the Agreement, nor their officers, directors or affiliates,
promoters, beneficial shareholders or control persons, nor any predecessor
thereof have been subject to the following:
(a) Any bankruptcy petition filed by or against any business of which
such person was a general partner or executive officer within the past five
(5) years;
(b) Any conviction in a criminal proceeding or being subject to a
pending criminal proceeding (excluding traffic violations and other minor
offenses);
(c) Being subject to any order, judgment, or decree, not subsequently
reversed, suspended or vacated, of any court of competent jurisdiction,
permanently or temporarily enjoining, barring, suspending or otherwise
limiting his involvement in any type of business, securities or banking
activities; and
17
(d) Being found by a court of competent jurisdiction (in a civil
action), the SEC or the Commodity Futures Trading Commission to have violated a
federal or state securities or commodities law, and the judgment has not been
reversed, suspended, or vacated.
Section 7.02 Broker/Finder's Fee. No broker's or finder's fee will be
-------------------
paid in connection with the transaction contemplated by this Agreement other
than fees payable to persons registered as broker-dealers pursuant to Section 15
of the Securities Exchange Act of 1934. The Company and BP Senior Care agree
that, except as set forth herein and on Schedule 7.02 attached hereto, there
were no brokers or finders involved in bringing the parties together or who were
instrumental in the negotiation, execution or consummation of this Agreement.
Section 7.03 Governing Law and Arbitration. This Agreement shall be
-------------------------------
governed by, enforced, and construed under and in accordance with the laws of
the United States of America and, with respect to the matters of state law, with
the laws of the State of New York without giving effect to principles of
conflicts of law thereunder. All controversies, disputes or claims arising out
of or relating to this Agreement shall be resolved by binding arbitration. The
arbitration shall be conducted in accordance with the Commercial Arbitration
Rules of the American Arbitration Association. All arbitrators shall possess
such experience in, and knowledge of, the subject area of the controversy or
claim so as to qualify as an "expert" with respect to such subject matter. The
governing law for the purposes of any arbitration arising hereunder shall be in
New York. The prevailing party shall be entitled to receive its reasonable
attorney's fees and all costs relating to the arbitration. Any award rendered
by arbitration shall be final and binding on the parties, and judgment thereon
may be entered in any court of competent jurisdiction.
Section 7.04 Notices. Any notice or other communications required or
-------
permitted hereunder shall be in writing and shall be sufficiently given if
personally delivered to it or sent by telecopy, overnight courier or registered
mail or certified mail, postage prepaid, addressed as follows:
If to the Company, to: MT Ultimate Healthcare Corp.
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxx Xxxx 00000
If to BP Senior Care, to: BP Senior Care Inc.
0000 Xxxxxxx Xxxxxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
With copies to: Xxxxx X. Xxxx, Attorney at Law
0000 Xxxxx Xxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
or such other addresses as shall be furnished in writing by any party in the
manner for giving notices hereunder, and any such notice or communication shall
be deemed to have been given (i) upon receipt, if personally delivered, (ii) on
the day after dispatch, if sent by overnight courier, (iii) upon dispatch, if
transmitted by telecopy and receipt is confirmed by telephone and (iv) three (3)
days after mailing, if sent by registered or certified mail.
Section 7.05 Attorney's Fees. In the event that either party
----------------
institutes any action or suit to enforce this Agreement or to secure relief from
any default hereunder or breach hereof, the prevailing party shall be reimbursed
by the losing party for all costs, including reasonable attorney's fees,
incurred in connection therewith and in enforcing or collecting any judgment
rendered therein.
Section 7.06 Confidentiality. Each party hereto agrees with the other
---------------
that, unless and until the transactions contemplated by this Agreement have been
consummated, it and its representatives will hold in strict confidence all data
and information obtained with respect to another party or any subsidiary thereof
from any representative, officer, director or employee, or from any books or
records or from personal inspection, of such other party, and shall not use such
data or information or disclose the same to others, except (i) to the extent
such data or information is published, is a matter of public knowledge, or is
required by law to be published; or (ii) to the extent that such data or
information must be used or disclosed in order to consummate the transactions
contemplated by this Agreement. In the event of the termination of this
Agreement, each party shall return to the other party all documents and other
materials obtained by it or on its behalf and shall destroy all copies, digests,
work papers, abstracts or other materials relating thereto, and each party will
continue to comply with the confidentiality provisions set forth herein.
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Section 7.07 Public Announcements and Filings. Except with respect to
--------------------------------
public announcements or SEC filings that were made prior to the execution of
this Agreement, and unless required by applicable law or regulatory authority,
none of the parties will issue any report, statement or press release to the
general public, to the trade, to the general trade or trade press, or to any
third party (other than its advisors and representatives in connection with the
transactions contemplated hereby) or file any document, relating to this
Agreement and the transactions contemplated hereby, except as may be mutually
agreed by the parties. Copies of any such filings, public announcements or
disclosures, including any announcements or disclosures mandated by law or
regulatory authorities, shall be delivered to each party at least one (1)
business day prior to the release thereof.
Section 7.08 Schedules; Knowledge. Each party is presumed to have full
---------------------
knowledge of all information set forth in the other party's schedules delivered
pursuant to this Agreement.
Section 7.09 Third Party Beneficiaries. This contract is strictly
---------------------------
between the Company and BP Senior Care and the BP Senior Care Shareholder, and,
except as specifically provided, no director, officer, stockholder (other than
the BP Senior Care Shareholder and the Company Indemnified Persons), employee,
agent, independent contractor or any other person or entity shall be deemed to
be a third party beneficiary of this Agreement.
Section 7.10 Expenses. Except as otherwise provided, the Company
---------
agrees to pay all costs and expenses incurred in negotiating this Agreement
including legal, accounting (except for the fees associated with the audit of BP
Senior Care, as provided for below) and professional fees, incurred in
connection with the Exchange or any of the other transactions contemplated
hereby, and those costs and expenses incurred in consummating the transactions
described herein. BP Senior Care agrees to pay all fees, expenses and other
costs associated with conducting an audit of its operations as provided for in
Section 4.10.
Section 7.11 Entire Agreement. This Agreement represents the entire
-----------------
agreement between the parties relating to the subject matter thereof and
supersedes all prior agreements, understandings and negotiations, written or
oral, with respect to such subject matter.
Section 7.12 Survival; Termination. The representations, warranties,
----------------------
and covenants of the respective parties shall survive the Closing Date and the
consummation of the transactions herein contemplated for a period of two (2)
years.
Section 7.13 Counterparts. This Agreement may be executed in multiple
------------
counterparts, each of which shall be deemed an original and all of which taken
together shall be but a single instrument.
Section 7.14 Amendment or Waiver. Every right and remedy provided
---------------------
herein shall be cumulative with every other right and remedy, whether conferred
herein, at law, or in equity, and may be enforced concurrently herewith, and no
waiver by any party of the performance of any obligation by the other shall be
construed as a waiver of the same or any other default then, theretofore, or
thereafter occurring or existing. At any time prior to the Closing Date, this
Agreement may by amended by a writing signed by all parties hereto, with respect
to any of the terms contained herein, and any term or condition of this
Agreement may be waived or the time for performance may be extended by a writing
signed by the party or parties for whose benefit the provision is intended.
Section 7.15 Best Efforts. Subject to the terms and conditions herein
------------
provided, each party shall use its best efforts to perform or fulfill all
conditions and obligations to be performed or fulfilled by it under this
Agreement so that the transactions contemplated hereby shall be consummated as
soon as practicable. Each party also agrees that it shall use its best efforts
to take, or cause to be taken, all actions and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations to
consummate and make effective this Agreement and the transactions contemplated
herein.
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Section 7.16 Faxed Copies. For purposes of this Agreement, a
-------------
faxed signature will constitute an original signature.
Section 7.17 Severability. The invalidity or unenforceability of
------------
any term, phrase, clause, paragraph, restriction, covenant, agreement or other
provision of this Agreement shall in no way affect the validity or enforcement
of any other provision or any part thereof.
IN WITNESS WHEREOF, the corporate parties hereto have caused this Agreement to
be executed by their respective officers, hereunto duly authorized, as of the
date first-above written.
MT ULTIMATE HEALTHCARE CORP.
BY: /s/ MacDonald Tudeme 5/28/04
-------------------------------------
MacDonald Xxxxxx, Chief Executive Officer
BP SENIOR CARE INC.
BY: /s/ Xxxxx Xxxxx
-------------------------------------
Xxxxx Xxxxx, President
BP SENIOR CARE SHAREHOLDER:
/s/ Xxxxx Xxxxx
--------------------------
Xxxxx Xxxxx 100 shares
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