EXHIBIT 2.2
FORM OF THE SHARE EXCHANGE AGREEMENT
THIS SHARE EXCHANGE AGREEMENT (the "Agreement") is made and entered into as of
this 19th day of January, 2001, by and among Access Health Alternatives, Inc., a
Florida corporation (the "Acquiror"), Continua Health Services, Inc., a Delaware
corporation, EMDx Corporation, a Georgia corporation (collectively referred to
as the "Acquiree") and the holders of one hundred percent of the outstanding
capital stock of the Acquiree, as more particularly set forth on the attached
Exhibit 2 (the "Stockholders").
RECITALS:
A. The Stockholders own, in the aggregate, 100% of the issued and outstanding
shares of the capital stock of the Acquiree.
B. The Acquiror desires to acquire 100% of the issued and outstanding capital
stock of the Acquiree as of the Closing Date, making the Acquiree a wholly-owned
subsidiary of the Acquiror, and the Stockholders desire to exchange all of their
shares of the Acquiree's capital stock for the Acquirer's authorized but
unissued common stock.
C. It is the intention of the parties hereto that: (i) the Acquiror shall
acquire 100% of the issued and outstanding capital stock of the Acquiree in
exchange solely for the number of shares of the Acquiror's authorized but
unissued common stock set forth below (the "Exchange"); (ii) the Exchange shall
qualify as a tax-free reorganization under Section 368(a)(1)(B) of the Internal
Revenue Code of 1986, as amended, and related sections thereunder; and (iii) the
Exchange shall qualify as a transaction in securities exempt from registration
or qualification under the Securities Act of 1933, as amended (the "Act"), and
under the applicable securities laws of the state or jurisdiction where the
Stockholders reside.
NOW, THEREFORE, in consideration for the mutual premises set forth herein and
for such other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties, intending to be legally bound, agree
as follows:
1. Recitals and Definitions.
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(a) The foregoing recitals are true and correct and are incorporated
herein and made a part hereof.
(b) For purposes of this Agreement, the terms set forth below shall have
the following meanings:
Acquiree - Continua Health Services, Inc., and Emdx Corporation
Acquiror - Access Health Alternatives, Inc., a Florida corporation
Act - the Securities Act of 1933, as amended
Closing - the consummation of the Exchange contemplated hereby
Closing Date - the effective date of this Agreement
Common Stock - common stock, $.001 par value per share, of Acquiror
Exchange - the acquisition by Acquiror of all of the outstanding
shares of the issued and outstanding capital stock of
the Acquiree in exchange for an aggregate of 750,000
shares of Common Stock
Financial - audited financial statements of the Acquiree
Statements for the fiscal years ended December 31, 1999 and 2000
Statements - Acquiror's audited financial statements for the
fiscal years ended December 31, 1999, 1998 and 1997
2. Exchange of Shares.
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The Acquiror, the Acquiree and the Stockholders agree that the
Stockholders will exchange all of the issued and outstanding shares of the
capital stock of the Acquiree owned by them for a total of 750,000 shares of the
Acquirer's Common Stock , 50,000of which shall be for the exchange of shares in
Continua Health Services, Inc., and 700,000of which shall be for the exchange of
shares in Emdx Corporation., simultaneously with the execution and delivery of
the Agreement; provided, however, that in the event the Acquirer does not
publicly or privately raise net proceeds of new equity capital in the amount of
$8,000,000 during the 270-day period commencing on the Closing Date, then the
Stockholders presently holding a majority of the Acquirees capital stock, in
their sole discretion, may return 500,000 shares in exchange for ninety-one
percent of the capital stock of Acquiree, all amounts to be prorated between the
Acquirees entities. It is agreed and understood that concurrent with new equity
capital, or as soon as is reasonably possible, Acquiror shall segregate up to
$1,800,000 for funding of the eContinua operation and shall satisfactorily
relieve the principles of Acquiree form personnel guarantees of loans with Xxxxx
Bank of Savannah Georgia which are identified on the Balance Sheet of Acquiree.
The number of shares of Acquiree's capital stock owned by each
Stockholder and the number of shares of the Acquiror's Common Stock that each
will receive on the Closing Date is set forth on Exhibit 2 attached hereto and
made a part hereof.
Other than for the exchange of stock contemplated hereby and the
License Agreement previously entered into, the parties hereto do not contemplate
the exchange or payment of any other consideration, regardless of form, nor do
they contemplate any arrangement by which the Acquirer would dispose of its
controlling interest in the Acquiree.
The shares of the Acquirer's Common Stock to be issued to the
Stockholders in connection with the consummation of the Exchange will not be
registered pursuant to the Act, and will bear a restrictive legend indicating
the restrictions on their transferability.
3. Delivery of Stockholders' Shares. On the Closing Date, the
Stockholders will deliver to Acquirer the certificates representing all of the
outstanding shares of Acquiree's capital stock owned by them, duly endorsed or
with duly executed stock powers so as to make Acquirer the sole owner thereof,
free and clear of all liens, claims and encumbrances.
4. Representations and Warranties of Acquiree and Stockholders. The
Acquiree and each of the Stockholders, jointly and severally, as a material
inducement to the Acquirer to enter into this Agreement and consummate the
transactions contemplated hereby, make the following representations and
warranties to the Acquirer. The representations and warranties are true and
correct in all material respects, to the best knowledge of the Acquiree and the
Stockholders.
(a) Securities Holders. The Stockholders listed on Exhibit 2 are the
owners of record and beneficially of all of the issued and outstanding
shares of the Acquiree's capital stock.
(b) Financial Statements. Exhibit 4(b) consists of the Financial
Statements. The Financial Statements and financial information contained
therein present fairly the financial condition of the Acquiree and the
results of its operations for the periods covered.
(c) Undisclosed Liabilities. The Acquiree does not have any
liabilities or obligations of any nature, fixed or contingent, matured or
unmatured, that are not shown or otherwise provided for in its Financial
Statements, except for liabilities and obligations arising subsequent to
the date of the Financial Statements in the ordinary course of business,
none of which individually or in the aggregate is materially adverse to the
business or financial condition of the Acquiree. There are no material loss
contingencies of the Acquiree that have not been adequately provided for.
(d) Materially Adverse Change. Since the date of the Financial
Statements, the business of the Acquiree has been operated in the ordinary
course of business and there has not been:
(i) any materially adverse change in the business, condition
financial or otherwise, results of operations, prospects, properties,
assets, liabilities, earnings, net worth, business or prospects of
Acquiree for such period or at any time during such period;
(ii) any material damage, destruction or loss whether or not
covered by insurance affecting the Acquiree or its assets, properties,
or business;
(iii) any declaration, setting aside, or payment of any dividend
or other distribution in respect of any shares of capital stock of
Acquiree, or any direct or indirect redemption, purchase or other
acquisition of any such stock or any agreement to do so;
(iv) any issuance or sale by the Acquiree or agreement by the
Acquiree or any of the Stockholders to sell or pledge any of the
Acquiree's securities, nor have any irrevocable proxies been given
with respect to the Acquiree's securities;
(v) any statute, rule, regulation or order adopted including
orders of regulatory authorities with jurisdiction over the Acquiree
or its business that materially and adversely affects the Acquiree or
its business or financial condition;
(vi) any material increase in the rate of compensation or in
bonus or commission payments payable or to become payable to any of
the salaried employees of the Acquiree; provided, however, that this
paragraph shall not restrict or limit the Acquiree in any way from
hiring additional personnel who are needed for its operation; or
(vii) any other events or conditions of any character that may
reasonably be expected to have a materially adverse effect on the
Acquiree or its business or financial condition.
(e) Litigation. Except as set forth in the Financial Statements and/or
notes thereto, or as set forth in any Schedule 4(b) hereto, there are no
actions, suits, claims, investigations or legal, administrative or
arbitration proceedings pending or threatened against the Acquiree or its
assets or its business, whether at law or in equity or before or by any
federal, state, municipal, local, foreign or other governmental department,
commission, board, bureau, agency or instrumentality, nor does the Acquiree
or any of the Stockholders know of any basis for any such action, suit,
claim, investigation or proceeding.
(f) Compliance; Governmental Authorizations. The Acquiree has complied
in all material respects with all federal, state, local or foreign laws,
ordinances, regulations and orders applicable to its business, including
without limitation, federal and state securities laws that, if not complied
with, would materially and adversely affect such business. The Acquiree has
all federal, state, local and foreign governmental licenses and permits
necessary for the conduct of its business. Such licenses and permits are in
full force and effect. Neither the Acquiree nor any of the Stockholders
knows of any violations of any such licenses or permits. No proceedings are
pending or threatened to revoke or limit the use of such licenses or
permits.
(g) Due Organization. The Acquiree is a corporation duly organized and
validly existing under the laws of the State of Florida; its status is
active; it is qualified to do business and is in good standing in each
state where it is required to be so qualified. The Acquiree has the power
to own its properties and assets and to carry on its business as now
presently conducted. The Articles of Incorporation and Bylaws of the
Acquiree are attached hereto as Exhibit 4(g) and are made a part hereof.
(h) Tax Matters. The Acquire has filed all federal, state and local
tax or related returns and reports due or required to be filed, which
reports accurately reflect in all material respects the amount of taxes
due. The Acquire has paid all amounts of taxes or assessments that would be
delinquent if not paid as of the date of this Agreement, other than taxes
or charges being contested in good faith or not yet finally determined. A
list of all such contested items is set forth on Schedule 4(h). Neither the
Acquiree nor any of the Stockholders is aware of any tax liens with respect
to any properties owned by the Acquiree.
(i) Agreements. Schedule 4(i) contains a true and complete list and
brief description of all material written or oral contracts, agreements,
mortgages, obligations, understandings, arrangements, restrictions, and
other instruments to which the Acquiree is a party or by which the Acquiree
is a party or by which or its assets may be bound. True and correct copies
of all items set forth on Schedule 4(i) have been made available to the
Acquiror. No event has occurred that whether with or without notice, lapse
of time or the happening or occurrence of any other event would constitute
a material default by the Acquiree under any of the contracts or agreements
as set forth in Schedule 4(i). Neither the Acquiree nor any of the
Stockholders is aware of any material default by the other parties to such
agreements. In addition, no material violations have occurred pursuant to
any loan agreements to which the Acquiree is a party.
(j) Title to Property and Related Matters. The Acquiree has good and
marketable title to all of its properties and assets, real, personal and
mixed, owned by it at the date of this Agreement or acquired by it after
the date of this Agreement, of any kind or character, free and clear of any
liens or encumbrances. Except as set forth in said Schedule 4(i) and except
for matters that may arise in the ordinary course of business, the
Acquiree's assets are in good operating condition and repair, reasonable
wear and tear excepted. There does not exist any condition that materially
interferes with the use thereof in the ordinary course of the Acquiree's
business.
(k) Licenses; Trademarks; Trade Names. The Acquiree does not have nor
own any licenses, trademarks, trade names, service marks, copyrights,
patents or any applications for any of the foregoing that relate to its
business.
(l) Due Authorization. This Agreement has been duly authorized,
executed and delivered by the Acquiree and constitutes a valid and binding
agreement of the Acquiree, enforceable in accordance with its terms except
as such enforcement may be limited in applicable bankruptcy, insolvency,
moratorium, and other similar laws relating to, limiting or affecting the
enforcement of creditors rights generally or by the application of
equitable principles. Neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated hereby, nor
compliance with any of the provisions hereof, will violate in any material
respect any order, writ, injunction or decree of any court or governmental
authority, or violate or conflict with in any material respect or
constitute a default under or give rise to any right of termination,
cancellation or acceleration under any provisions of the Acquiree's
Articles of Incorporation or By-laws, the terms or conditions or provisions
of any note, bond, lease, mortgage, obligations, agreement, understanding,
arrangement or restriction of any kind to which the Acquiree is a party or
by which the Acquiree or its properties may be bound, or violate in any
material respect any statute, law, rule or regulation applicable to the
Acquiree. No consent or approval by any governmental authority is required
in connection with the execution and delivery by the Acquiree of this
Agreement or by the consummation of the transactions contemplated hereby.
(m) Capitalization. The authorized capitalization of the Acquiree is
as set forth on Schedule 4(m). All outstanding securities have been duly
authorized, validly issued, and are fully paid and non-assessable, and all
such securities were issued in compliance with applicable federal and state
securities law. There are no outstanding or presently authorized
securities, warrants, preemptive rights, subscription rights, options or
related commitments or agreements of any nature to issue any of the
Acquiree's securities.
(n) Full Disclosure. The Acquiree has disclosed to the Acquiror all
events, conditions and facts materially affecting the properties, business
and prospects of the Acquiree that are known to the Acquiree. The Acquiree
has not withheld disclosure of any events, conditions, and facts of which
it may have knowledge and that may materially and adversely affect the
properties, business or prospects of the Acquiree.
(o) Brokerage Fees. The Acquiree has not incurred, and will not incur,
any liability for brokerage or finder's fees or similar charges in
connection with this Agreement or the transactions contemplated hereby.
(p) Share Ownership. The shares of the Acquiree's capital stock to be
exchanged for shares of the Acquiror's Common Stock in the Exchange are
owned, of record and beneficially, by the Stockholders as specified in
Exhibit 2, free and clear of all liens and encumbrances of any kind and
nature, and have not been sold, pledged, assigned or otherwise transferred.
There are no agreements to sell, pledge, assign or otherwise transfer such
securities.
(q) Stockholder Obligation. This Agreement constitutes the valid and
legally binding obligation of each of the Stockholders. Neither the
execution of this Agreement nor the consummation of the transactions
contemplated hereby will constitute in any material respect a violation of
or default under, or conflict in any material respect with, any judgment,
decree, statute or regulation or any governmental authority applicable to
any of the Stockholders or any contract, commitments, agreement or
restriction of any kind to which any of the Stockholders is a party or by
which any of the Stockholders or that person's assets are bound. The
execution and delivery of this Agreement does not, and the consummation of
the transactions described herein will not, violate in any material respect
applicable law, or any mortgage, lien, agreement, indenture, lease or
understanding whether oral or written of any kind outstanding relative to
any of the Stockholders.
(r) Approvals Required. No approval, authorization, consent, order or
other action of, or filing with, any person, firm or corporation or any
court, administrative agency or other governmental authority is required in
connection with the execution and delivery by any of the Stockholders of
this Agreement or the consummation of the transactions described herein,
except to the extent that any of the Stockholders may be required to file
reports in accordance with relevant regulations under federal and state
securities laws.
(s) Subsidiaries. The Acquiree has no subsidiaries.
(t) Employee Benefit Plans. The Acquiree has no employee benefit
plans.
5. Representations and Warranties of the Acquiror. The Acquiror, as a
material inducement to the Acquiree and the Stockholders to enter into this
Agreement and consummate the transactions contemplated hereby, makes the
following representations and warranties to the Acquiree and the Stockholders,
which representations and warranties are true and correct in all material
respects at this date, to the best knowledge of the Acquiror after due inquiry.
(a) Shares of Common Stock. The shares of the Acquiror's Common Stock
to be delivered to the Stockholders at the Closing will be validly and
legally issued, free and clear of all liens, encumbrances, transfer fees
and preemptive rights, and will be fully paid and non-assessable.
(b) Due Organization. The Acquiror is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Florida, and is qualified to do business in each state where it is required
to be qualified and where such qualification is material to its business,
and has the corporate power to own its property and to carry on its
business as now presently conducted.
(c) Due Authorization. This Agreement has been duly authorized,
executed, and delivered by the Acquiror, and constitutes a legal, valid and
binding obligation of the Acquiror, enforceable in accordance with its
terms except as such enforcement may be limited by applicable bankruptcy,
insolvency, moratorium, and other similar laws relating to, limiting or
affecting the enforcement of creditors rights generally or by the
application of equitable principles. The execution, delivery and
performance of this Agreement by the Acquiror will not violate or conflict
with in any material respect or constitute a default under any provisions
of applicable law, the Acquiror's Articles of Incorporation or bylaws, or
any agreement or instrument to which the Acquiror is a party or by which it
or its assets are bound. No consent of any federal, state, municipal or
other governmental authority is required by Acquiror for the execution,
delivery or performance of this Agreement by the Acquiror. No consent of
any party to any contract or agreement to which the Acquiror is a party or
by which any of its property or assets are subject is required for the
execution, delivery or performance of this Agreement by the Acquiror that
has not been obtained at the date of this Agreement.
(d) Financial Statements. The Acquiror has delivered to the Acquiree
the Statements. The Statements present fairly the financial condition of
the Acquiror as of the dates thereof and the result of operations for the
periods reflected therein. The Statements are believed to have been
prepared in accordance with generally accepted accounting principles,
consistently applied. The books and records, financial and other of the
Acquiror are in all material respects complete and correct and have been
maintained in accordance with good business and accounting practices.
(e) Undisclosed Liabilities. The Acquiror has no liabilities or
obligations of any nature, fixed or contingent, matured or unmatured, that
are not shown or otherwise provided for in the Statements. All reserves
established by the Acquiror and set forth in the Statements are adequate
and there are no material loss contingencies that are not adequately
provided for.
(f) Materially Adverse Change. Since the date of the Statements, the
Acquiror's business has been operated in the ordinary course and there has
not been:
(i) any materially adverse change in the business, condition
financial or otherwise, results of operations, prospects, properties,
assets, liabilities, earnings, net worth, business or prospects of the
Acquiror for such period, in the aggregate, or at any time during such
period;
(ii) any material damage, destruction or loss whether or not
covered by insurance affecting the Acquiror or its assets, properties
or businesses;
(iii) any declaration, setting aside, or payment of any dividend
or other distribution in respect of any shares of capital stock of the
Acquiror, or any direct or indirect redemption, purchase or other
acquisition of any such stock;
(iv) any issuance or sale by the Acquiror or agreement by the
Acquiror to sell or pledge any of the Acquiror's securities;
(v) any statute, rule, regulation or order adopted including
orders of regulatory authorities with jurisdiction over the Acquiror
or its business that materially and adversely affects the Acquiror or
its business; or
(vi) to the Acquiror's knowledge, any other events or conditions
of any character that may reasonably be expected to have a materially
adverse effect on the Acquiror or its business.
(g) Litigation. Except as described on Exhibit 5(g), there are no
actions, suits, claims, investigations or legal, administrative or
arbitration proceedings pending against the Acquiror, its assets or
business, whether at law or in equity, or before or by any federal, state,
municipal, local, foreign or other governmental department, commission,
board, bureau, agency or instrumentality; nor does the Acquiror know of a
threat of, or any basis for, any such action, suit, claim, investigation or
proceeding.
(h) Compliance; Governmental Authorizations. The Acquiror has complied
in all material respects with all federal, state, local or foreign laws,
ordinances, regulations and orders applicable to its business, including
without limitation, federal and state securities laws that, if not complied
with, would materially and adversely affect such business. The Acquiror has
all federal, state, local and foreign governmental licenses and permits
necessary for the conduct of its business. Such licenses and permits are in
full force and effect. The Acquiror does not know of any violations of any
such licenses or permits. No proceedings are pending or, to the knowledge
of the Acquiror, threatened, to revoke or limit the use of such licenses or
permits.
(i) Tax Matters. The Acquiror has filed all federal, state and local,
tax or related returns and reports due or required to be filed, which
reports accurately reflect in all material respects the amount of taxes
due. The Acquiror has paid all taxes or assessments that have become due,
other than taxes or charges being contested in good faith or not yet
finally determined. The Acquiror is not aware of any tax liens with respect
to any properties owned by the Acquiror.
(j) Agreements. Schedule 5(j) contains a true and complete list and
brief description of all material written or oral contracts, agreements,
mortgages, obligations, understandings, arrangements, restrictions, and
other instruments to which the Acquiror is a party or by which the Acquiror
or its assets may be bound. True and correct copies of all items set forth
on Schedule 5(j) have been made available to the Acquiree. No event has
occurred that whether with or without notice, lapse of time or the
happening or occurrence of any other event would constitute a material
default by the Acquiror under any of the contracts of agreements set forth
in Schedule 5(j). The Acquiror is not aware of any material default by the
other parties to such agreements. In addition, no material violations have
occurred pursuant to any loan agreements to which the Acquiror is a party.
(k) Capitalization. As of the date of execution of this Agreement, the
capitalization of the Acquiror is as set forth in Schedule 5(k) attached
hereto and made a part hereof.
(l) Full Disclosure. The Acquiror has disclosed to the Acquiree all
events, conditions and facts materially affecting the business and
prospects of the Acquiror. The Acquiror has not withheld disclosure of any
events, conditions, and facts of which it may have knowledge and that may
materially and adversely affect the business or prospects of the Acquiror.
(m) Brokerage Fees. The Acquiree has not incurred, and will not incur,
any liability for brokerage or finder's fees or similar charges in
connection with this Agreement.
(n) No Approvals Required. No approval, authorization, consent, order
or other action of, or filing with, any person, firm or corporation or any
court, administrative agency or other governmental authority is required in
connection with the execution and delivery by the Acquiror of this
Agreement or the consummation of the transactions described herein, except
to the extent that the parties may be required to file reports in
accordance with relevant regulations under federal and state securities
laws.
(o) Subsidiaries. The following is a majority-owned subsidiary of the
Acquiror: Access HealthMax, Inc., a Florida corporation. The following is a
wholly-owned subsidiary of the Acquiror: Access Health Assurance Plans,
Inc., a Florida corporation.
6. Indemnification.
(a) Acquiree and Stockholders hereby jointly and severally indemnify
and hold harmless Acquiror and Acquiror's officers, directors, employees
and agents with respect to any and all adverse consequences incurred by the
Acquiror in connection with each and all of the following:
(i) Any misrepresentation or breach of any warranty made by
Acquiree in this Agreement or in any Schedule, Exhibit, or other
document attached hereto or delivered to the Acquiror by the Acquiree
or any officer of the Acquiree in connection with the transactions
contemplated hereby.
(ii) The breach of any covenant, agreement, or obligation of
Acquiree contained in this Agreement or any Schedule or Exhibit hereto
or any other instrument specifically contemplated by this Agreement.
(iii) Any misrepresentation contained in any statement in writing
or certificate furnished by an officer of Acquiree pursuant to this
Agreement or in connection with the transactions contemplated by this
Agreement.
(iv) Any liability or obligation of any kind or nature that
arises out of, or relates to, any pension, retirement, profit sharing,
deferred compensation, bonus or other incentive plan, or any
collective bargaining agreement or other labor agreement, including
single or multi-employer plans or agreements, to which Acquiree or any
of its affiliates is a party or by which any of them is bound, other
than assumed liabilities.
(v) Any liability, obligation or claim for taxes owed by Acquiree
with respect to any period ending on or before the Closing Date,
except as such may be shown on the Financial Statements.
(vi) Any misrepresentation in or omission from any list,
Schedule, Exhibit, certificate or other instrument required to be
furnished or specifically contemplated to have been furnished pursuant
to this Agreement to Acquiror or its authorized representatives.
(vii) The Acquiree hereby and herewith acknowledges the effect
and operation of all laws concerning the environmental condition of
the Acquiree's assets existing and applicable as of the Closing Date.
The Acquiree and the Stockholders hereby jointly and severally
indemnify and hold the Acquiror and the Acquiror's officers, directors
and employees harmless in respect of any and all adverse consequences
incurred by any of them in connection with the matters set forth
herein to the extent that the Acquiree or any of the Stockholders
would have had liability or responsibility had the Acquiree not sold
the Acquiree.
(b) The Acquiror hereby indemnifies and holds harmless the Acquiree
and the Acquiree's officers, directors and employees in respect of any and
all adverse consequence incurred by any of them in connection with each and
all of the following:
(i) Any misrepresentation or breach of any warranty made by
Acquiror in this Agreement or in any Schedule, Exhibit, or other
document attached hereto or delivered to Acquiree by Acquiror or any
officer of Acquiror in connection with the transactions contemplated
hereby.
(ii) The breach of any covenant, agreement, or obligation of
Acquiror contained in this Agreement or any Schedule or Exhibit hereto
or any other instrument specifically contemplated by this Agreement.
(iii) Any misrepresentation contained in any statement in writing
or certificate furnished by an officer of the Acquiror pursuant to
this Agreement or in connection with the transactions contemplated by
this Agreement.
(iv) Any failure to pay, satisfy or renegotiate any assumed
liabilities.
(c) Whenever any claims shall arise for indemnification hereunder, the
party seeking indemnification (the "Indemnitee") shall promptly notify the
other party (the "Indemnitor") of the claim and, when known, the facts
constituting the basis for such claim. If any claim for indemnification
hereunder results from or is in connection with any claim or adverse
consequence by a person who is not a party to this Agreement ("Third Party
Claim"), such notice shall also specify, if known, the amount or an
estimate of the amount of the liability arising therefrom. The Indemnitee
shall give the other party prompt notice of any such claim and the
Indemnitor shall undertake the defense thereof by representatives of its
own choosing, reasonably satisfactory to the Indemnitee, at the expense of
the Indemnitor. The Indemnitee shall have the right to participate in any
such defense of a Third Party Claim with advisory counsel of its own
choosing, at its own expense. If the Indemnitor, within a reasonable time
after notice of any such Third Party Claim, fails to defend, the Indemnitee
or any subsidiary or affiliate of the Indemnitee shall have the right to
undertake the defense, compromise or settlement of such Third Party Claim
on behalf of, and for the account of, Indemnitor, at the expense and risk
of Indemnitor. Indemnitor shall not, without the Indemnitee's written
consent, settle or compromise any such Third Party Claim or unconditional
term thereof, the giving by the claimant or the plaintiff to Indemnitee
and/or Indemnitee's subsidiary or subsidiaries, or affiliate or affiliates,
as the case may be, an unconditional release from all liability in respect
of such Third Party Claim. Notwithstanding any provision herein to the
contrary, failure of Indemnitee to give any notice required by this Section
shall not constitute a waiver of Indemnitee's right to indemnification or a
defense to any claim by Indemnitee hereunder.
(d) All indemnification hereunder shall be effected upon demand by
payment of cash or delivery of a certified or cashier's check in the amount
of the indemnification liability after determination in accordance with the
foregoing.
(e) The indemnities contained herein shall survive the Closing and any
investigation made with respect thereto for a period commencing on the date
hereof and ending on the third anniversary of the Closing Date; provided,
however, that such indemnities shall survive as to any claim or demand made
prior to such third anniversary until such claim or demand is fully paid or
otherwise resolved by the parties hereto in writing or by a court of
competent jurisdiction.
(f) Neither the Acquiree nor the Acquiror shall have any obligation to
indemnify the other for any claim or related series of claims involving, in
the aggregate, less than $5,000.
7. Interim Operations. The following shall apply, unless otherwise stated,
to that period between closing and the time when the Acquiror successfully
closes on a financing and receipt of net proceeds in accordance with Section 2
herein.
(a) Board of Directors. Upon signing of this agreement the current
Board of Directors of Acquiree shall resign and a new Board of Directors,
consisting of three members shall be appointed with two members being
appointed by the Acquiror and one being appointed by the Acquiree..
(b) Executive Officers and Operating Management. The Executive
Officers and Operating Management of Acquiree shall not be changed with
respect to positions and responsibilities other then with approval of 100%
of the Board of Directors.
(c) Obligations. The Executive Officers and Operating Management shall
not make any commitment or otherwise create an obligation of the Acquiree
beyond the normal course of operations. Any and all commitments and
obligations which extend beyond the period specified in Section 2 herein
must receive prior authorization by 100% of the Board of Directors.
(d) Return of Shares. If, during the Interim Period, the Board of
Directors of Acquiror votes to dissolve itself in any U.S. court and/or
there is a material judgment against Acquiror in a court of law, the
Acquiree may exercise it's rights to exchange in accordance with Section 2
herein.
8. Miscellaneous.
(a) Survival. All of the representations, warranties, and covenants of
the parties contained in this Agreement shall survive the Closing for three
years following the Closing Date.
(b) Press Releases and Announcements. No party shall issue any press
release or announcement relating to the subject matter of this Agreement
without the prior written approval of the other party; provided, however,
that any party may make any public disclosure it believes in good faith is
required by law or regulation in which case the disclosing party will
advise the other party prior to making the disclosure.
(c) No Third Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any person other than the parties and their
respective successors and permitted assigns.
(d) Succession and Assignment. This Agreement shall be binding upon
and inure to the benefits of the parties named herein and their respective
successors and permitted assigns. No party may assign either this Agreement
or any of its rights, interests, or obligations hereunder without the prior
written approval of the other party; provided, however, that the Acquiror
may (i) assign any or all of its rights and interests hereunder to one or
more of its affiliates and (ii) designate one or more of its affiliates to
perform its obligations hereunder in either of which case the Acquiror
nonetheless shall remain liable and responsible for the performance of all
of its obligations hereunder.
(e) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(f) Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning
or interpretation of this Agreement.
(g) Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given if and
then two business days after it is sent by registered or certified mail,
return receipt requested, postage prepaid, and addressed to the intended
recipient as set forth on the signature page of this Agreement.
Any party may give any notice, request, demand, claim, or other
communication hereunder using any other means including personal delivery,
expedited courier, messenger service, telecopy, telex, ordinary mail, or
electronic mail, but no such notice, request, demand, claim, or other
communication shall be deemed to have been duly given unless and until it
actually is received by the individual for whom it is intended. Any party
may change the address to which notices, requests, demands, claims, and
other communications hereunder are to be delivered by giving the other
party notice in the manner herein set forth.
(h) Governing Law. This Agreement shall be governed by and constructed
in accordance with the internal laws of the State of Florida.
(i) Amendments and Waivers. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by
all of the parties. No waiver by any party of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach or warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent
such occurrence.
(j) Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision
in any other situation or in any other jurisdiction declares that any term
or provision hereof is invalid or unenforceable, the parties agree that the
court making the determination of invalidity or unenforceability shall have
the power to reduce the scope duration, or area of the term or provision,
to delete specific words or phases, or to replace any invalid or
unenforceable term or provision with a term or provision, and this
Agreement shall be enforceable as so modified after the expiration of the
time within which the judgment may be appealed.
(k) Expenses. Except as otherwise specified, each of the Acquiror, the
Acquiree and the stockholders will bear his or its own costs and expenses
including legal fees and expenses incurred in connection with this
Agreement and the transactions contemplated hereby. The Acquiree agrees
that it has not paid any amount to any third party, and will not pay any
amount to any third party until after the Closing, with respect to any of
the costs and expenses of the Acquiree or the Stockholders including any of
their legal fees and expenses in connection with this Agreement or any of
the transactions contemplated hereby.
(l) Construction. The language used in this Agreement will be deemed
to be the language chosen by the parties to express their mutual intent,
and no rule of strict construction shall be applied against any party. Any
reference to any federal, state, local, or foreign statute or law shall be
deemed also to refer to all rules and regulations promulgated thereunder,
unless the context requires otherwise.
(m) Incorporation of Exhibits and Schedules. The Exhibits and
Schedules identified in this Agreement are incorporated herein by reference
and made a part hereof.
(n) Specific Performance. Each of the parties acknowledges and agrees
that the other party would be damaged irreparably if any of the provisions
of this Agreement are not performed in accordance with their specific terms
or otherwise are breached. Accordingly, each of the parties agrees that the
other party shall be entitled to an injunction or injunctions to prevent
breaches of the provisions of this Agreement and to enforce specifically
this Agreement and the terms and provisions hereof in any action instituted
in any court of the United States or any state thereof having jurisdiction
over the parties and the matter subject to the provisions below, in
addition to any other remedy to which it may be entitled, at law or in
equity.
(o) Submission to Jurisdiction. Each of the parties submits to the
jurisdiction of any state or federal court sitting in Orange County,
Florida, in any action or proceeding arising out of or relating to this
Agreement, agrees that all claims in respect of the action or proceeding
may be heard and determined in any such court, and agrees not to bring
action or proceeding arising out of or relating to this Agreement in any
other court. Each of the parties waives any defense of inconvenient forum
or lis pendens alibi to the maintenance of any action or proceeding so
brought and waives any bond, surety, or other security that might be
required of any other party with respect thereto.
(p) Entire Agreement. This Agreement including the documents referred
to herein constitutes the entire agreement between the parties and
supersedes any prior understandings, agreements, or representations by or
between the parties, written or oral, that may have related in any way to
the subject matter hereof.
[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on as of the
date first above written.
ACCESS HEALTH ALTERNATIVES, INC.
BY: .....
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CONTINUA HEALTH SERVICES, INC
BY: ....
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EMDX CORPORATION
BY: .....
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STOCKHOLDERS
.........
______________, owner of
shares of common stock
------------------
of_______________
.........
______________, owner of
shares of common stock
------------------
of_______________
.........
______________, owner of
shares of common stock
------------------
of_______________
