EXHIBIT NO. 10.1
ACQUISITION AGREEMENT AND
PLAN OF REORGANIZATION
ACQUISITION AGREEMENT AND PLAN OF REORGANIZATION
THIS ACQUISITION AGREEMENT AND PLAN OF REORGANIZATION (hereinafter the
"Agreement") is made and entered into as of the ___ day of __________, 1995, by
and between FIRST MANHATTAN, INC., a Nevada corporation (hereinafter "FIRST
MANHATTAN") and GROUPMED, INC., a Nevada corporation, (hereinafter "GMI").
RECITALS
WHEREAS, FIRST MANHATTAN desires to acquire from GMI the stock of GroupMed
International of Mexico, SADECV, in exchange solely for 5,200,000 shares of
common stock of FIRST MANHATTAN, post split, par value $0.001 and
WHEREAS, the parties hereto desire to reorganize the management and
operations of FIRST MANHATTAN and to change the corporation name to GROUPMED
INTERNATIONAL, INC.
NOW, THEREFORE, in consideration of the premises and mutual representation,
warranties and covenants herein contained, the parties hereby agree as follows:
ARTICLE I
ACQUISITION AND EXCHANGE OF SHARES
SECTION 1.1 ACQUISITION. The parties hereto agree that this Agreement shall
replace and supersede the Letter of Intent executed by the parties on _________.
The parties hereby agree that FIRST MANHATTAN shall acquire from GMI and GMI
shall assign and transfer to FIRST MANHATTAN 100% of the Common Stock of
GROUPMED INTERNATIONAL, INC., SADECV more completely described in Exhibit 1.1
annexed hereto and by this reference made a part hereof. GMI further agrees to
assume and become obligated to those specified liabilities, debts, obligations
and encumbrances of FIRST MANHATTAN that are specifically set forth and more
specifically described in Exhibit 4.3, annexed hereto and by this reference made
a part hereof and which liabilities, debts, obligations and encumbrances GMI
agrees to fully assume become obligated to. In exchange for the acquisition of
the stock of GroupMed International of Mexico, SADECV from GMI, FIRST MANHATTAN
agrees to issue to GMI, five million two hundred thousand shares (5,200,000) of
authorized but previously unissued shares of GMI common stock, par value $0.001
per share, said shares to be issued directly to GMI and pursuant to the terms
and conditions set forth herein. The parties hereto further agree that the
business and management of FIRST MANHATTAN shall be reorganized and that FIRST
MANHATTAN shall hereinafter become engaged in the business of developing the GMI
assets.
SECTION 1.2 ISSUANCE OF SHARES
(a) Upon the Closing of this Agreement, FIRST MANHATTAN shall cause to be
issued and delivered to GMI, stock certificates representing 5,200,000
shares of common stock of FIRST MANHATTAN, par value $0.001 per share.
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b) The shares of FIRST MANHATTAN Common Stock to be issues hereunder
shall be authorized but previously unissued shares of FIRST MANHATTAN
Common Stock and shall be issued directly to and in the name of GROUPMED,
INC.
(c) All shares of FIRST MANHATTAN Common Stock to be issued hereunder are
deemed "restricted securities" as defined by Rule 144 of the Securities
Act of 1933, as amended ("▇▇▇ ▇▇▇▇ ▇▇▇"), and GMI shall represent that they
are acquiring said shares for investment purposes only and without the
intent to make a further distribution of the shares until such time as
appropriate regulatory approval for any such distribution has been properly
obtained. All shares of FIRST MANHATTAN Common Stock to be issued under the
terms of this Agreement shall be issued pursuant to an exemption from the
registration requirements of the 1933 Act, under Section 4(2) of the 1933
Act and the rules and regulations promulgated thereunder.
(d) GMI agrees that in the event it decides to distribute to its
shareholders the FIRST MANHATTAN shares to be acquired hereby, either in
part or in whole, GMI will make all necessary and requisite filing with the
appropriate state and federal agencies to register such distribution under
the applicable securities laws.
SECTION 1.3 CLOSING. The closing of this Agreement and the transactions
contemplated hereby (the "Closing") shall take place on the ___ day of _________
(the "Closing Date"), at a time and place to be mutually agreed upon by the
parties hereto, and shall be subject to the provisions of ARTICLE X of this
Agreement. At the Closing:
(a) GMI shall cause to be delivered to FIRST MANHATTAN fully executed
instruments of conveyance which when executed and delivered to FIRST
MANHATTAN, shall immediately convey and transfer to FIRST MANHATTAN, all of
GMI's interest in the assets set forth in Exhibit 1.1;
(b) FIRST MANHATTAN shall take all necessary and appropriate actions and
execute all necessary and appropriate documents to assume completely and
become obligated to all liabilities, debts, obligations and/or other
encumbrances of GMI and otherwise set forth in Exhibit 4.3 annexed hereto;
(c) FIRST MANHATTAN shall deliver to GMI, certificates representing an
aggregate of 5,200,000 shares of FIRST MANHATTAN Common Stock and which
certificates shall bear a standard restrictive legend in the form
customarily used with restricted securities;
(d) FIRST MANHATTAN shall deliver an Officer's Certificate as described in
Sections 9.1 and 9.2 hereof, dated the Closing Date, that all
representations, warranties, covenants and conditions set forth herein by
FIRST MANHATTAN are true and correct as of, or have been fully performed
and complied with by the Closing Date; and
(e) GMI shall deliver an Officer's Certificate as described in
Sections 8.1 and 8.2 hereof, dated the Closing Date, that all
representations, warranties, covenants and conditions set forth herein by
GMI are true and correct as of, or have been fully performed and complied
with by, the Closing Date.
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SECTION 1.4 FIRST MANHATTAN SPECIAL MEETING OF SHAREHOLDERS. In anticipation
of this Agreement, FIRST MANHATTAN shall hold a Special Meeting of Shareholders
on JUNE 7, 1995 in order to transact certain business related to the
ratification of this Agreement including, but not limited to (i) the current
authorized number of shares of FIRST MANHATTAN Common Stock is 25,000,000
shares, par value $.001 per share; (ii) electing a new Board of Directors
consisting of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Lic. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
Cocione, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇; (ii) changing the corporate name to
GroupMed International, Inc. and (iii) to ratification of this Agreement; (iv)
ratification of this Agreement and the transactions contemplated hereby.
SECTION 1.5 CONSUMMATION OF TRANSACTION. If, at the Closing, no condition
exists which would permit any of the parties to terminate this Agreement, or a
condition then exists and the party entitled to terminate because of that
condition elects not to do so, then the transactions herein contemplated shall
be consummated upon such date, and then and thereupon FIRST MANHATTAN will file
the necessary documents that may be required by the State of Nevada and Nevada.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF FIRST MANHATTAN
FIRST MANHATTAN hereby represents, warrants and agrees that:
SECTION 2.1 ORGANIZATION OF FIRST MANHATTAN. FIRST MANHATTAN is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Nevada, is duly qualified and in good standing as a foreign corporation
in every jurisdiction in which such qualification is necessary, and has the
corporate power and authority to own its properties and assets and to transact
the business in which it is engaged. There are no corporations or other
entities with respect to which (i) FIRST MANHATTAN owns any of the outstanding
stock or other interest, or (ii) FIRST MANHATTAN may be deemed to be in
control because of factors or relationships other that the quantity of stock or
other interest owned. FIRST MANHATTAN has all requisite corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. This Agreement is the legal, valid and binding
obligation of FIRST MANHATTAN, enforceable against FIRST MANHATTAN in accordance
with its respective terms except to the extent that such enforcement may be
limited by applicable bankruptcy, insolvency and other similar laws affecting
creditors' rights generally.
SECTION 2.2 CAPITALIZATION OF FIRST MANHATTAN. The authorized capital stock
of FIRST MANHATTAN currently consists of 25,000,000 shares of Common Stock, par
value $.001 per share, of which 50,000 shares are presently issued and
outstanding following a 1 for 4 reverse split of the currently outstanding
common shares. All of the issued and outstanding shares of FIRST MANHATTAN have
been duly authorized and validly issued and are fully paid and non-assessable.
There are Class A & B warrants outstanding that allow for the issuance of
177,750 shares at $7.50 per share for the Class A warrants and 177,750 shares at
$10.00 per share for the Class B warrants. Shares of FIRST MANHATTAN common
stock to be issued pursuant to this agreement, when so issued, will be duly
authorized, validly issued, fully paid and non-assessable.
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SECTION 2.3 CHARTER DOCUMENTS. Complete and correct copies of the Articles of
Incorporation and By-Laws of FIRST MANHATTAN and all amendments thereto, have
been or will be delivered to GMI prior to the Closing, and certified copies of
the FIRST MANHATTAN Articles of Incorporation and By-Laws are annexed hereto as
Exhibit 2.3 and by this reference made a part hereof.
SECTION 2.4 FINANCIAL STATEMENTS. FIRST MANHATTAN's financial statements for
the period ending December 31, 1994, a copy of which is annexed hereto as
Exhibit 2.4 and by this reference made a part hereof, are true and complete in
all material respects, having been prepared in accordance with generally
accepted accounting principles applied on a consistent basis for the periods
covered by such statements, and fairly present, in accordance with generally
accepted accounting principles, the financial condition of FIRST MANHATTAN, and
results of its operations for the periods covered thereby Except as otherwise
disclosed to GMI in writing and as set forth herein, there has been no material
adverse change in the business operations, assets, properties, prospects or
condition (financial or otherwise) of FIRST MANHATTAN taken as a whole from that
reflected in the financial statements referred to in this Section 2.4, of which
GMI based its decision to enter into this Agreement.
SECTION 2.5 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since the date of the FIRST
MANHATTAN financial report for the period ending December 31, 1994 and except as
disclosed otherwise herein. FIRST MANHATTAN has not (i) issued or sold any
promissory note, stock, bond, option or other corporate security of which it was
an issuer or other obligor, (ii) discharged or satisfied any lien or
encumbrance or paid any obligation or liability, absolute or contingent, direct
or indirect, (iii) incurred or suffered to be incurred any liability or
obligation whatsoever, (iv) caused or permitted any lien, encumbrance or
security interest to be created or arise on or in any of its properties or
assets, (v) declared or made any dividend, payment or distribution to stock
holders or purchased or redeemed or agreed to purchase or redeem any shares of
its capital stock, (vi) reclassified its shares of capital stock, or (vii)
entered into any agreement or transaction except in connection with the
execution and performance of this Agreement.
SECTION 2.6 ASSETS AND LIABILITIES. FIRST MANHATTAN has good and marketable
title to all of its assets and property, free and clear of any and all liens,
claims and encumbrances, except as may be otherwise explicitly set forth herein.
As of date hereon, FIRST MANHATTAN does not have any debts, liabilities or
obligations of any nature, whether accrued, absolute, contingent, or otherwise,
whether due or to become due, that are not fully reflected in the FIRST
MANHATTAN Balance Sheet dated December 31, 1994 except as may be explicitly set
forth herein.
SECTION 2.7 TAX RETURNS AND PAYMENTS. All of FIRST MANHATTAN's tax returns
(federal, state, city, county or foreign) which are required by law to be filed
on or before the date of this Agreement, have been duly filed or extended with
the appropriate governmental authority. FIRST MANHATTAN has paid all taxes to be
due on said returns, any assessments made against FIRST MANHATTAN and all other
taxes, fees and similar charges imposed on FIRST MANHATTAN by any governmental
authority (other than those, the amount or validity of which is being contested
in good faith by appropriate proceedings) No tax liens have been filed and no
claims are being assessed with respect to any such taxes, fees or other similar
charges.
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SECTION 2.8 REQUIRED AUTHORIZATIONS. There have been or will be timely filed,
given, obtained or taken, all applications, notices, consents, approvals,
orders, registrations, qualifications waivers or other actions of any kind
required by virtue of execution and delivery of this Agreement by FIRST
MANHATTAN or the consummation by it of the transactions contemplated hereby.
SECTION 2.9 COMPLIANCE WITH LAW AND GOVERNMENT REGULATIONS. FIRST MANHATTAN
is in compliance with and is not in violation of, applicable federal, state,
local or foreign statutes, laws and regulations (including without limitation,
any applicable building, zoning or other law, ordinance or regulation)
affecting its properties or the operation of its business.
SECTION 2.10 LITIGATION. There is no litigation, arbitration, proceeding or
investigation pending or threatened to which FIRST MANHATTAN is a party or which
may result in any material change in the business or condition, financial or
otherwise, of FIRST MANHATTAN or in any of its properties or assets, or which
might result in any liability on the part of FIRST MANHATTAN or which questions
the validity of this Agreement or of any action taken or to be taken pursuant to
or in connection with the provisions of this Agreement, and to the best
knowledge of FIRST MANHATTAN, there is no basis for any such litigation,
arbitration, proceeding or investigation.
SECTION 2.11 INVESTIGATION OF FINANCIAL CONDITION. In addition to making
available for review by GMI all financial statements, books and records of FIRST
MANHATTAN, and without in any manner reducing or otherwise mitigating the
representations contained herein, GMI shall have the opportunity to meet with
FIRST MANHATTAN's accountants and attorneys to discuss the financial condition
of FIRST MANHATTAN and to make whatever further independent investigation deemed
necessary and prudent.
SECTION 2.12 GOVERNMENTAL CONSENT. No consent, approval, authorization or
order of, or registration, qualification, designation, declaration or filing
with, any governmental authority on the part of FIRST MANHATTAN is required in
connection with the execution and delivery of this Agreement or the carrying out
of any transactions contemplated hereby.
SECTION 2.13 AUTHORITY. FIRST MANHATTAN and its shareholders shall have
approved this Agreement and the transactions contemplated hereby prior to the
Closing and duly authorized the execution and delivery hereof. FIRST MANHATTAN
has full power, authority and legal right to enter into this Agreement and to
consummate the transactions contemplated hereby, and all corporate action
necessary to authorize the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby has been duly and validly
taken.
SECTION 2.14 FULL DISCLOSURE. None of the representations and warranties made
by FIRST MANHATTAN herein, or in any exhibit, certificate or memorandum
furnished or to be furnished by FIRST MANHATTAN on its behalf pursuant hereto,
contains or will contain any untrue statement of material fact, or omits any
material fact, the omission of which would be misleading.
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ARTICLE III
COVENANTS OF FIRST MANHATTAN
SECTION 3.1 CONDUCT PRIOR TO THE CLOSING. Between the date hereof and the
Closing:
(a) FIRST MANHATTAN will not enter into any agreement, contract or
commitment, whether written or oral, or engage in any transaction, without
the knowledge and prior written consent of GMI;
(b) FIRST MANHATTAN will not declare any dividends or distributions with
respect to its capital stock or amend its Articles of Incorporation or By-
Laws, without the prior written consent of GMI;
(c) FIRST MANHATTAN will not authorize, issue, sell, purchase or redeem
any shares of its capital stock without the prior written consent of GMI;
(d) FIRST MANHATTAN will comply with all requirements which federal or
state law may impose on it with respect to this Agreement and the
transactions contemplated hereby, and will promptly cooperate with and
furnish information to GMI in connection with any such requirements imposed
upon the parties hereto in connection therewith;
(e) FIRST MANHATTAN will not incur any indebtedness for money borrowed, or
issue or sell any debt securities, incur or suffer to be incurred any
liability or obligation of any nature whatsoever, or cause or permit any
lien, encumbrance or security interest to be created or arise on or in any
of its properties or assets, acquire or dispose of fixed assets, change
employment terms, enter into any material or long-term contract, guarantee
obligations of any third party, settle or discharge any balance sheet
receivable for less than its stated amount or enter into any other
transaction other than in the regular course of business, except to comply
with the terms of this Agreement, without the consent of GMI;
(f) FIRST MANHATTAN shall grant to GMI and its counsel, accountants and
other representatives, full access during normal business hours during the
period prior to the Closing to all its respective properties, books,
contracts, commitments and records and, during such period, furnish
promptly to GMI and such representatives all information relating to FIRST
MANHATTAN as GMI may reasonably request; and
(g) Except for the transactions contemplated by this Agreement, FIRST
MANHATTAN will conduct its business in the normal course, and shall not
sell, pledge or assign its assets without the prior written consent of GMI.
SECTION 3.2 AFFIRMATIVE COVENANTS. Prior to Closing. FIRST MANHATTAN will do
the following
(a) Use its best efforts to accomplish all actions necessary to consummate
this Agreement, including satisfaction of all the conditions contained in
this Agreement;
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(b) Call for and properly hold a meeting of its shareholders for the
purpose of conducting the business and ratifying those proposals as set
forth in Section 1.4 above.
(c) Promptly notify GMI in writing of any material adverse change in the
financial condition, business, operations or key personnel of FIRST
MANHATTAN, any breach of its representations or warranties contained
herein, and any material contract, agreement, license or other agreement
which, if in effect on the date of this Agreement, should have been
included in this Agreement or in an exhibit annexed hereto and made a part
hereof; and
(d) Reserve, and promptly after the Closing, issue and deliver to GMI or
its designees the number of shares of FIRST MANHATTAN Common Stock required
hereunder; and
ARTICLE IV
REPRESENTATION AND WARRANTIES OF GMI
GMI hereby represents, warrants and agrees that:
SECTION 4.1 ORGANIZATION OF GMI. GMI is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada and is duly
qualified and in good standing in every jurisdiction in which such qualification
is necessary. Unless otherwise set forth in GMI's financial statements and
except for those businesses and entities set forth in Exhibit 4.1 annexed hereto
and by this reference made a part hereof, there are no corporations or other
entities with respect to which (i) GMI owns any of the outstanding stock or
other interest, or (ii) GMI may be deemed to be in control because of factors or
relationships other than the percentage of outstanding stock or other interest
owned in such entity. GMI has all requisite corporate power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby.
SECTION 4.2 CHARTER DOCUMENTS. Complete and correct copies of the Articles of
Incorporation and By-Laws of GMI and all amendments thereto, have been or will
be delivered to FIRST MANHATTAN prior to the Closing.
SECTION 4.3 FINANCIAL STATEMENTS/ASSETS AND LIABILITIES. GMI has good and
marketable title to all of the assets to be transferred and delivered to FIRST
MANHATTAN hereunder, free and clear of any and all liens, claims and
encumbrances, except as may be otherwise set forth herein and in its financial
statements and further set forth in Exhibit 4.3 annexed hereto and by this
reference made a part hereof.
SECTION 4.4 TAX RETURNS AND PAYMENTS. All of GMI's tax returns (federal,
state, city, county or foreign) which are required by law to be filed on or
before the date of this Agreement, have been duly filed or extended with the
appropriate governmental authority. GMI has paid all taxes to be due on said
returns, any assessments made against GMI and all other taxes, fees and similar
charges imposed on GMI by any governmental authority (other than those, the
amount
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or validity of which is being contested in good FAITH BY appropriate
proceedings). No tax liens have been filed and no claims are being assessed
with respect to any such taxes, fees or other similar charges.
SECTION 4.5 REQUIRED AUTHORIZATIONS. There have been or will be timely filed,
given, obtained or taken, all applications, notices, consents, approvals,
orders, registrations, qualifications waivers or other actions of any kind
required by virtue of execution and delivery of this Agreement by GMI or the
consummation by it of the transactions contemplated hereby.
SECTION 4.6 COMPLIANCE WITH LAW AND GOVERNMENT REGULATIONS. GMI is in
compliance with all applicable statutes, regulations, decrees, orders,
restrictions, guidelines and standards, whether mandatory or voluntary,
affecting its properties and operations, imposed by the United States of America
and any state or foreign country or government to which GMI is subject.
SECTION 4.7 LITIGATION. There is no litigation, arbitration, proceeding or
investigation pending or threatened to which GMI is a party or which may result
in any material change in the business or condition, financial or otherwise,
of GMI or in any of its properties or assets, or which might result in an,
liability on the pan of GMI or which questions the validity of this Agreement or
of any action taken or to be taken pursuant to or in connection with the
provisions of this Agreement, and to the best knowledge of GMT, there is no
basis for any such litigation, arbitration, proceeding or investigation
SECTION 4.8 INVESTIGATION OF FINANCIAL CONDITION. In addition to making
available for review by FIRST MANHATTAN all financial statements, books and
records of FIRST MANHATTAN and without in any manner reducing or otherwise
mitigating the representations contained herein, FIRST MANHATTAN shall have the
opportunity to meet with GMI'S accountants and attorneys to discuss the
financial condition of GMI and to make whatever further independent
investigation deemed necessary and prudent.
SECTION 4.9 GOVERNMENTAL CONSENT. No consent, approval, authorization or
order of, or registration, qualification, designation, declaration or filing
with any governmental authority on the part of GMI is required in connection
with the execution and delivery of this Agreement or the carrying out of any
transactions contemplated hereby.
SECTION 4.10 AUTHORITY. GMI and its shareholders shall have approved this
Agreement and the transactions contemplated hereby prior to the Closing and duly
authorized the execution and delivery hereof. GMI has kill power, authority and
legal right to enter into this Agreement and to consummate the transactions
contemplated hereby, and all corporate action necessary to authorize the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby has been duly and validly taken. Those persons
executing this Agreement represent that they have received the authority to act
on behalf of and for the shareholders of GMI and that in the event additional
shareholder approvals are required, such approvals will be obtained at the next
scheduled annual meeting of GMI shareholders.
SECTION 4.11 INVESTMENT PURPOSE. GMI hereby represents that it is acquiring
the shares of FIRST MANHATTAN Common Stock to be issued hereunder for investment
purposes only and not with a view for further distribution or resale. GMI
further represents and acknowledges
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that the FIRST MANHATTAN shares issued hereunder are "restricted securities" and
may not be sold, traded or otherwise transferred without registration under the
1933 Act or exemption therefrom. GMI further represents that in the event it
decides to distribute to its shareholders the FIRST MANHATTAN shares to be
acquired hereby, either in part or in whole, GMI will make all necessary and
requisite filing with the appropriate state and federal agencies to register
such distribution under the applicable securities laws.
SECTION 4.12 FULL DISCLOSURE. None of the representations and warranties made
by GMI herein, or in any exhibit, certificate or memorandum furnished or to be
furnished by FIRST MANHATTAN, on its behalf, contains or will contain any untrue
statement of material fact, or omit any material fact, the omission of which
would be misleading.
ARTICLE V
COVENANTS OF GMI
SECTION 5.1 CONDUCT PRIOR TO CLOSING. Between the date hereof and the
Closing:
(a) GMI will not enter into any material agreement, contract or
commitment, whether written or oral, or engage in any transaction, without
the prior written consent of GMI;
(b) GMI will not declare any dividends or distributions with respect to
its capital stock or amend its Articles of Incorporation or By-Laws,
without the prior written consent of GMI;
(c) Except within the regular course of business, GMI will not incur any
indebtedness for money borrowed or issue to sell any debt securities, or
incur or suffer to be incurred any liability or obligation of any nature
whatsoever, or cause or permit any lien, encumbrance or security interest
to be created or arise on or in any of its properties or assets, with the
prior written consent of GMI;
(d) GMI will comply with all requirements which federal or state law may
impose on it with respect to this Agreement and the transactions
contemplated hereby, and will promptly cooperate with and furnish
informaton to GMI in connection with any such requirements imposed upon the
parties hereto in connection therewith; and
(e) GMI shall grant to GMI and its counsel, accountants and other
representatives, full access during normal business hours during the period
prior to the Closing to all its respective properties, books, contracts,
commitments and records and, during such period, furnish promptly to GMI
and such representatives all information relating to GMI as GMI may
reasonably request.
SECTION 5.2 AFFIRMATIVE COVENANTS. Prior to Closing, GMI will do the
following:
(a) Obtained the approval of its Board of Directors and shareholders to
proceed with this Agreement and obtain any further shareholder approvals,
which may be required, at the next scheduled annual meeting of GMI
shareholders;
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(b) Use its best efforts to accomplish all actions necessary to consummate
this Agreement, including satisfaction of all the conditions contained in
the Agreement; and
(c) Promptly notify FIRST MANHATTAN in writing of any materially adverse
change in the financial condition, business, operations or key personnel of
GMI, any breach of its representations or warranties contained herein, and
any material contract, agreement, license or other agreement which, if in
effect on the date of this Agreement, should have been included in this
Agreement.
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.1 EXPENSES. Whether or not the transactions contemplated in this
Agreement are consummated, all costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall be paid by the
party incurring such expense or as otherwise agreed to herein.
SECTION 6.2 BROKERS AND FINDERS. Each of the parties hereto represents, as to
itself, that with the exception of the consideration and additional shares of
FIRST MANHATTAN Common Stock to be paid and issued pursuant to the Due Diligence
& Consulting Agreement, dated ________ annexed hereto as Exhibit 6.2 and by this
reference made a part hereof, and to which FIRST MANHATTAN acknowledges and
agrees fulfill the terms thereof, no other agent, broker, investment banker or
other firm or person is or will be entitled to any broker's or finder's fee or
any other commission or similar fee in connection with any of the transactions
contemplated by this Agreement.
SECTION 6.3 NECESSARY ACTIONS. Subject to the terms and conditions herein
provided, each of the parties hereto agrees to use all reasonable efforts to
take, or cause to be taken, all action, and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement.
In the event at any time after the Closing, any further action is necessary or
desirable to carry out the purposes of this Agreement, the proper officers
and/or directors of FIRST MANHATTAN or GMI, as the case may be, shall take all
such necessary action.
SECTION 6.4 INDEMNIFICATION. Each party to this Agreement hereby agrees to
defend and hold the other party harmless against and in respect of any and all
claims, demands, losses, costs, expenses, obligations, liabilities, damages,
recoveries and deficiencies, including interest, penalties, and reasonable
attorney fees, that they shall incur or suffer, which arise out of, result from
or relate to any material breach of, or failure by the party to perform any of
its respective representations, warranties, covenants and agreements in this
Agreement or in any exhibit or other instrument furnished or to be furnished by
the party under this Agreement.
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ARTICLE VII
CONDITIONS TO OBLIGATIONS OF THE PARTIES
The obligations of the parties under this Agreement are subject to the
fulfillment and satisfaction of each of the following conditions:
SECTION 7.1 LEGAL ACTION. No preliminary or permanent injunction or other
order by any federal or state court which prevents the consummation of this
Agreement or any of the transactions contemplated by this Agreement shall have
been issued and remain in effect.
SECTION 7.2 ABSENCE OF TERMINATION. The obligations to consummate the
transactions contemplated hereby shall not have been canceled pursuant to
Article X hereof.
SECTION 7.3 REQUIRED APPROVALS. FIRST MANHATTAN and GMI shall have received
all such approvals, consents, authorizations or modifications as may be required
to permit the performance by FIRST MANHATTAN and GMI of the respective
obligations under this Agreement, and the consummation of the transactions
herein contemplated, whether from governmental authorities or other persons and
FIRST MANHATTAN and GMI shall each have received any and all permits and
approvals from any regulatory authority having jurisdiction required for the
lawful consummation of this Agreement.
SECTION 7.4 BLUE SKY COMPLIANCE. There shall have been obtained any and all
permits, approvals and consents of the Securities or "Blue-Sky" Commissions of
any jurisdictions, and of any other governmental body or agency, which
respective counsel for FIRST MANHATTAN and GMI may reasonably deem necessary or
appropriate so that consummation of the transactions contemplated by this
Agreement may be in compliance with all applicable laws.
ARTICLE VIII
CONDITIONS PRECEDENT TO OBLIGATIONS OF GMI
All obligations of FIRST MANHATTAN under this Agreement are subject to the
fulfillment and satisfaction by GMI prior to or at the time of the Closing, of
each of the following conditions, any one or more of which may be waived by
FIRST MANHATTAN.
SECTION 8.1 REPRESENTATIONS AND WARRANTIES TRUE AT THE CLOSING. All
representations and warranties of GMI contained in this Agreement will be true
and correct at and as of the time of the Closing, and GMI shall have delivered
to FIRST MANHATTAN a certificate, dated the date of the Closing, to such effect
and in the form and substance satisfactory to FIRST MANHATTAN, and signed, in
the case of GMI, by its president and secretary.
SECTION 8.2 PERFORMANCE. The obligations of GMI to be perfonned on or before
the Closing pursuant to the terms of this Agreement shall have been duly
performed at such time, and GMI shall have delivered to FIRST MANHATTAN a
certificate, dated the date of the Closing, to such effect and in form and
substance satisfactory to FIRST MANHATTAN.
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SECTION 8.3 AUTHORITY. All action required to be taken by, or on the part of
GMI and its shareholders, if required, to authorize the execution, delivery and
performance of this Agreement by GMI and the consummation of the transactions
contemplated hereby, shall have been duly and validly taken.
SECTION 8.4 ABSENCE OF CERTAIN CHANGES OR EVENTS. There shall not have
occurred, since the date hereof, any adverse change in the business, condition,
(financial or otherwise), assets or liabilities of GMI or any event or condition
of any character adversely affecting GMI, and it shall have delivered to FIRST
MANHATTAN, certificates, dated the date of the Closing, to such effect and in
form and substance satisfactory to FIRST MANHATTAN and signed, in the case of
GMI, by its president and secretary.
ARTICLE IX
CONDITIONS PRECEDENT TO OBLIGATIONS OF GMI
All obligations of GMI under this Agreement are subject to the fulfillment
and satisfaction by FIRST MANHATTAN prior to or at the time of the Closing, of
each of the following conditions, any one or more of which may be waived by GMI.
SECTION 9.1 REPRESENTATIONS AND WARRANTIES TRUE AT THE CLOSING. All
representations and warranties of FIRST MANHATTAN contained in this Agreement
will be true and correct at and as of the time of the Closing, and FIRST
MANHATTAN shall have delivered to GMI a certificate, dated the date of the
Closing, to such effect and in the form and substance satisfactory to GMI, and
signed, in the case of FIRST MANHATTAN, by its president and secretary.
SECTION 9.2 PERFORMANCE. The obligations of FIRST MANHATTAN to be performed
on or before the Closing pursuant to the terms of this Agreement shall have been
duly performed at such time, and FIRST MANHATTAN shall have delivered to GMI a
certificate, dated the date of the Closing, to such effect and in form and
substance satisfactory to GMI and signed, in the case of FIRST MANHATTAN by its
president and secretary.
SECTION 9.3 AUTHORITY. All action required to be taken by, or on the part of
FIRST MANHATTAN to authorize the execution, delivery and performance of this
Agreement by FIRST MANHATTAN and the consummation of the transactions
contemplated hereby, shall have been duly and validly taken.
SECTION 9.4 ABSENCE OF CERTAIN CHANGES OR EVENTS. There shall not have
occurred, since the date hereof, any adverse change in the business, condition,
(financial or otherwise), assets or liabilities of FIRST MANHATTAN or any event
or condition of any character adversely affecting FIRST MANHATTAN, and it shall
have delivered to GMI, certificates, dated the date of the Closing, to such
effect and in form and substance satisfactory to GMI and signed, in the case of
FIRST MANHATTAN, by its president and secretary.
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ARTICLE X
TERMINATION
SECTION 10.1 TERMINATION. Notwithstanding anything herein or elsewhere to the
contrary, this Agreement may be terminated:
(a) By mutual agreement of the parties hereto at any time prior to
Closing;
(b) By the board of directors of FIRST MANHATTAN at any time prior to the
closing in the event:
(i) a condition to performance by FIRST MANHATTAN under this
Agreement or a covenant of GMI contained herein shall not be
fulfilled on or before the time of the Closing or at such other time
and date specified for the fulfillment for such covenant or
condition; or
(ii) a material default or breach of this Agreement shall be made by
GMI; or
(iii) the Closing shall not have taken place on or prior to ________.
(c) By the board of directors of GMI at any time prior to the closing in
the event:
(i) a condition to GMI's performance under this Agreement or a
covenant of FIRST MANHATTAN contained in this Agreement shall not be
fulfilled on or before the Closing or at such other time and date
specified for the fulfillment of such covenant or conditions;
(ii) a material default or breach of this Agreement shall be made by
FIRST MANHATTAN; or
(iii) the Closing shall not have taken place on or prior to ________.
SECTION 10.2 EFFECT OF TERMINATION. If this Agreement is terminated, this
Agreement, except as to Sections 11.1, 11.2, shall no longer be of any force
or effect and there shall be no liability on the part of any party or its
respective directors, officers or stockholders; provided however, that in the
case of a Termination without cause by a party or a termination pursuant to
Sections 10.1(b) (i) or 10.1 (c) (i) hereof because of a prior material default
under or a material breach of this Agreement by another party, the damages
which the aggrieved party or parties may recover from the defaulting party or
parties shall in no event exceed the amount of out-of-pocket costs and expenses
incurred by such aggravated party or parties in connection with this Agreement.
SECTION 10.3 RECISION. In the event that prior to ____________, 199_, GMI
fails to obtain any and all consents and/or approvals that may be required from
the GMI shareholders or any regulatory authority for the approval and
ratification of this Agreement, then this Agreement
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shall be rescinded and become null and void with the result that all shares of
FIRST MANHATTAN Common Stock issues to GMI hereunder are to be deemed canceled
and no longer outstanding on the transfer records of FIRST MANHATTAN and that
those assets set forth in Exhibit 1.1 hereto shall be returned to GMI.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 COST AND EXPENSES. All costs and expenses incurred in connection
with this Agreement will be paid by the party incurring such expenses. In the
event of any termination of this Agreement pursuant to Section 10.1 or 10.3,
subject to the provisions of Section 11.2, GMI and FIRST MANHATTAN will each
bear their own respective expenses.
SECTION 11.2 EXTENSION OF TIME: WAIVERS. At any time prior to the Closing
date:
(a) FIRST MANHATTAN may (i) extend the time for the performance of any of
the obligations or other acts of GMI. (ii) waive any inaccuracies in the
representations and warranties of GMI contained herein or in any document
delivered pursuant hereto by GMI and (iii) waive compliance with any of
the agreements or conditions contained herein to be performed by GMI. Any
agreement on the part of FIRST MANHATTAN to any such extension or waiver
shall be valid only if set forth in an instrument, in writing, signed on
behalf of GMI;
(b) GMI may (i) extend the time for the performance of any of the
obligations or other acts of FIRST MANHATTAN, (ii) waive any inaccuracies
in the representations and warranties of GMI contained herein or in any
document delivered pursuant hereto by FIRST MANHATTAN and (iii) waive
compliance with any of the agreements or conditions contained herein to be
performed by FIRST MANHATTAN. Any agreement on the part of GMI to any such
extension or waiver shall be valid only if set forth in an instrument, in
writing, signed on behalf of GMI;
SECTION 11.3 NOTICES. Any notice to any party hereto pursuant to this
Agreement shall be given by Certified or Registered Mail, addressed as follows:
GROUPMED, INC.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
FIRST MANHATTAN, INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., #▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Additional notices are to be given to each party, at such other address
should be designated in writing comply as to delivery with the terms of this
Section 11.3. All such notices shall be effective when sent, addressed as
aforesaid.
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SECTION 11.4 PARTIES IN INTEREST. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and the respective successors and
designees. Nothing in this Agreement is intended to confer, expressly or by
implication, upon any other person any rights or remedies under or by reason of
this Agreement.
SECTION 11.5 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and together shall
constitute one document. The delivery by facsimile of an executed counterpart of
this Agreement shall be deemed to be an original and shall have the full force
and effect of an original executed copy.
SECTION 11.6 SEVERABILITY. The parties hereto agree and affirm that none of
the provisions herein is dependent upon the validity of any other provision,
and if any part of this Agreement is deemed to be unenforceable, the remainder
of the Agreement shall remain in full force and effect.
SECTION 11.7 HEADINGS. The Article and Section headings are provided herein
for convenience of reference only and do not constitute a part of this
Agreement.
SECTION 11.8 GOVERNING LAW. This Agreement shall be governed by the laws of
the State of Nevada. Any action to enforce the provisions of this Agreement
shall be brought in a court of competent jurisdiction in the State of Nevada and
in no other place.
SECTION 11.9 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All terms,
conditions, representations and warranties set forth in this Agreement or in any
instrument, certificate, opinion, or other writing providing for in it, shall
survive the Closing and the delivery of the shares of FIRST MANHATTAN Common
Stock transferred hereunder at the Closing, regardless of any investigation made
by or on behalf of any of the parties hereto.
SECTION 11.10 ASSIGNABILITY. This Agreement shall not be assignable by any of
the parties hereto without the prior written consent of the other parties.
SECTION 11.11 AMENDMENT. This Agreement may be amended with the approval of
the boards of directors of FIRST MANHATTAN and GMI at any time before or after
approval thereof by stockholders of FIRST MANHATTAN, if required, and GMI, but
after such approval by the FIRST MANHATTAN shareholders, no amendment shall be
made which substantially and adversely changes the terms hereof. This Agreement
may not be amended except by an instrument, in writing, signed on behalf of each
of the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Acquisition Agreement in a manner legally binding upon them as of the date first
above written.
"GMI"
GROUPMED, INC. ATTEST:
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------- ------------------------
Its: President Secretary
FIRST MANHATTAN, INC. ATTEST:
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------- ------------------------
Its: Vice - President Secretary
16
CERTIFICATE
OF
GROUPMED, INC.
The undersigned, ________________ and _______________ hereby certify that
they are the President and Secretary respectively, of GMI, a Nevada corporation
("GMI") and further certify as follows:
1. That the representations and warranties of GMI contained in the
Acquisition Agreement and Plan of Reorganization (the "Agreement") by and
between GMI and FIRST MANHATTAN, a Nevada corporation are true and correct at
and as of the date hereof.
2. The obligations and covenants of GMI to be performed and observed on or
before the Closing as defined in the Agreement have been duly performed and
observed.
3. Except as otherwise disclosed in the Agreement, there has not occurred
since the date thereof, any adverse change in the business, condition (financial
or otherwise), assets or liabilities of GMI or any event or condition of any
character adversely affecting GMI.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of
this ____ day of _____________, 199_.
GROUPMED, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------
President
By:
----------------------
Secretary
17
CERTIFICATE
OF
FIRST MANHATTAN, INC.
The undersigned, _____________________ and ___________________ hereby
certify that they are the President and Secretary respectively. of FIRST
MANHATTAN INC. a Nevada corporation ("FIRST MANHATTAN") and further certify as
follows:
1. That the representations and warranties of FIRST MANHATTAN contained
in the Acquisition Agreement and Plan of Reorganization (the "Agreement") by
and between GMI and FIRST MANHATTAN, a Nevada corporation are true and correct
at and as of the date hereof.
2. The obligations and covenants of FIRST MANHATTAN to be performed and
observed on or before the Closing as defined in the Agreement have been duly
performed and observed.
3. Except as otherwise disclosed in the Agreement, there has not occurred
since the date thereof, any adverse change in the business, condition (financial
or otherwise), assets or liabilities of FIRST MANHATTAN or any event or
condition of any character adversely affecting FIRST MANHATTAN.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of
this ___ day of _____________, 199_.
FIRST MANHATTAN, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Vice-President
By /s/ ▇▇▇▇ ▇▇▇▇▇
-------------------------
Secretary
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