ACQUISITION AGREEMENT AND PLAN OF ACQUISITION
EXHIBIT
10.4
ACQUISITION
AGREEMENT AND PLAN OF ACQUISITION
THIS
ACQUISITION AGREEMENT AND PLAN OF ACQUISITION (the "Agreement"), dated as of
September 8, 2008, is entered into by and among VivaKor, Inc., a Nevada
corporation ("VivaKor")
and each of HealthAmerica, Inc., a Nevada corporation ("HealthAmerica") and ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ (the "HealthAmerica
Principal Shareholder Prior to the Acquisition"). Capitalized terms used
in this Agreement and not defined in context shall have the meanings ascribed to
them in Section 10.7 hereof.
WHEREAS,
the respective Boards of Directors of HealthAmerica and VivaKor have approved
the Acquisition of HealthAmerica by VivaKor with HealthAmerica being a
wholly-owned subsidiary of VivaKor (the "Acquisition"), all upon the
terms and subject to the conditions set forth herein; and
NOW,
THEREFORE, in consideration of the foregoing premises and the representations,
warranties and agreements contained herein and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto, intending to be legally bound, agree as follows:
ARTICLE
I
The
Acquisition
Section
1.1 The
Acquisition. Upon the terms and subject to the conditions of this
Agreement, at the Effective Time, HealthAmerica shall be acquired by VivaKor.
HealthAmerica shall continue the under the laws of the State of Nevada as a
wholly-owned subsidiary of VivaKor. Throughout this Agreement, the term "Subsidiary" shall refer to
HealthAmerica in its status as the acquired corporation in the
Acquisition.
Section
1.2 Closing.
The closing of the Transactions (the "Closing") will take place as
promptly as practicable (and in any event within two business days) after
satisfaction or waiver of the conditions set forth in Article VII (other than
conditions that require the delivery of documents, which may be satisfied at the
Closing). The Closing shall be held at the offices of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, P.C., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, unless
another place is agreed to in writing by the parties hereto. The date on which
the Closing occurs is referred to herein as the "Closing Date". At the
Closing, each of HealthAmerica and VivaKor shall deliver the agreements,
certificates and other documents required to be delivered and which have not
been delivered prior to the Closing.
Section
1.3 Effective Time of
the Acquisition. The Acquisition shall become effective upon delivery of
the Acquisition Consideration. When used in this Agreement, the term "Effective Time" shall mean
the time at which the Acquisition Consideration is delivered.
Section
1.4 Effect of the
Acquisition. The Acquisition shall, from and after the Effective Time,
have all the effects provided by applicable Law. If, at any time after the
Effective Time, the Corporation shall consider or be advised that any further
deeds, conveyances, assignments or assurances in Law or any other acts are
necessary, desirable or proper to vest, perfect or confirm, of record or
otherwise, in the Corporation the title to any property or rights of VivaKor, by
reason or as a result of the Acquisition, or otherwise to carry out the purposes
of this Agreement, HealthAmerica agrees that its proper officers and directors
shall execute and deliver all such deeds, conveyances, assignments and
assurances in Law and do all things necessary, desirable or proper to vest,
perfect or confirm title to such property or rights and otherwise to carry out
the purposes of this Agreement, and that the proper officers and directors are
fully authorized in the name of HealthAmerica or otherwise to take any and all
such action.
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ARTICLE
II
The
Acquisition Corporation
Section
2.1 Articles of
Incorporation. The articles of incorporation of HealthAmerica shall
continue after the Effective Time as the articles of incorporation of the
Wholly-owned Subsidiary Corporation, HealthAmerica, Inc.
Section
2.2 By-Laws.
The by-laws of HealthAmerica shall continue after the Effective Time as the
by-laws of the Wholly-owned Subsidiary Corporation, HealthAmerica,
Inc.
Section
2.3 Board of
Directors; Officers. The members of the Board of Directors and the
officers of the Wholly-owned Subsidiary Corporation, HealthAmerica, Inc.,
following the Acquisition shall be the directors and officers of VivaKor
immediately prior to the Effective Time, and such directors and officers shall
continue in office until the earlier of their respective death, resignation or
removal and the time that their respective successors are duly elected or
appointed and qualified.
ARTICLE
III
Acquisition
Consideration
Section
3.1 Acquisition
Consideration.
(a) As of
the Effective Time, by virtue of the Acquisition and without any action on the
part of any stockholder of HealthAmerica:
(i) Twenty
five million (25,000,000) newly issued shares of Common Stock, $0.001 par value,
of HealthAmerica shall be issued to VivaKor in exchange for five million
(5,000,000) newly issued shares of Common Stock, $0.001 par value, of VivaKor
immediately prior to the Effective Time. The issuance of the Common Stock of
HealthAmerica to VivaKor shall constitute approximately eighty four percent
(84%) of the issued and outstanding capital stock of HealthAmerica following the
Acquisition. The five million (5,000,000) shares Common Stock of VivaKor shall
be issued to the shareholders of record of HealthAmerica as duly registered with
HealthAmerica's transfer agent prior to the Effective Time.
(ii) Subject
to the provisions of this Section 3.1(a), each share of the common stock of
HealthAmerica, par value $0.001 per share ("HealthAmerica
Common Stock")
issued and outstanding immediately prior to the Effective Time shall, by virtue
of the Acquisition and without any action on the part of the holders thereof,
remain validly issued, fully paid and non-assessable shares of common stock of
HealthAmerica, par value $0.001 per share ("HealthAmerica Common Stock"). As a
result of such shares issuances, the shares issued to the original shareholders
of HealthAmercia shall represent approximately Sixteen Percent (16%) of the
total shares of HealthAmerica issued and outstanding as of the Closing
Date.
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(b) As
additional consideration for the Acquisition, VivaKor and/or HealthAmerica as
VivaKor's wholly-owned subsidiary, agrees to pay to Rico Italia Investments,
Inc., as the nominee of the HealthAmerica Principal Shareholder Prior to the
Acquisition, the aggregate amount of One Million Five Hundred Thousand Dollars
($1,500,000.00) (the "Cash
Consideration"), payable as follows:
(i) $25,000.00
was paid in advance on August 18, 2008;
(ii) $25,000.00
was due on September 18, 2008;
(iii) thereafter
$25,000.00 shall be due on the 18th of each
month; provided, in addition, if at any time after the initial deposit
has been realized, if HealthAmerica and/or VivaKor receives cash and/or
securities in any equity or debt offering or financing or from any sale or
licensing of products, technology or equipment, then HealthAmerica and/or
VivaKor agrees to pay Rico Italia Investments, Inc. ten percent (10%) of the
gross proceeds raised in such offerings or sales, licensing, etc., commencing
ninety (90) days after the initial deposit, and continuing every ninety (90)
days thereafter until the Cash Consideration has been
sufficed.
(c) The Cash Consideration
shall be evidenced by a Secured Nonrecourse Promissory Note in the principal
amount of $1,500,000.00 (the "Note")
which shall be secured by a Pledge and Security Agreement (the "Pledge
and Security Agreement") of the shares of capital stock of HealthAmerica
and all of the assets of HealthAmerica, Inc. In the event VivaKor fails to make
any payment under the Note, the Holder of the Note may, as it sole and
exclusive remedy, foreclose on and retain the shares of capital stock and the
assets of the HealthAmerica. The HealthAmerica Principal Shareholder Prior to
the Acquisition acknowledges and agrees that, upon an event of default under the
Note, if any, the HealthAmerica Principal Shareholder Prior to the Acquisition
(or its nominees) sole recourse shall be to the shares of the HealthAmerica and
its assets, and no claim may be asserted against VivaKor or its assets, property
or business. If the HealthAmerica Principal Shareholder Prior to the Acquisition
elects to foreclose and retain the capital stock of HealthAmerica and its
assets, then its shall also automatically and without action grant VivaKor the
option to repurchase the VivaKor shares issued to the HealthAmerica Principal
Shareholder Prior to the Acquisition for a repurchase price of $1.00 in the
aggregate.
(d) If,
at any time during the period between the date of this Agreement and the
Effective Time, VivaKor changes the number of shares of VivaKor Common Stock
issued and outstanding or HealthAmerica changes the number of shares of
HealthAmerica Common Stock issued and outstanding, in each case as a result of a
stock split, reverse stock split, stock dividend, recapitalization,
redenomination of share capital or other similar transaction with an effective
date or record date, as applicable, prior to the Effective Time, and in a
transaction that the other parties to this Agreement have provided their consent
to if such consent is required hereunder, then the Exchange Ratio and any other
items dependent thereon shall be appropriately adjusted.
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Section
3.2 Stockholders'
Rights at the Effective Time. On and after the Effective Time, the
certificates that immediately prior to the Effective Time represented shares of
HealthAmerica Common Stock (the "Certificates"), shall continue
to represent all rights with respect to HealthAmerica Common Stock. As of the
Effective Time, the holders of HealthAmerica Common Stock as of the Effective
Time who are entitled to receive shares of VivaKor Common Stock as Acquisition
Consideration shall be deemed to be record owners of such shares of VivaKor
Common Stock as of the Effective Time and shall thereupon be entitled to
exercise any rights as a holder of VivaKor Common Stock, including the right to
vote such VivaKor Common Stock, whether or not the Certificates are issued
pursuant to this Agreement.
Section
3.3 Issuance of Share
Certificates.
(a)
Promptly after the Closing Date, VivaKor shall deliver the Common Stock as
Acquisition Consideration pursuant to Section 3.1(a). The number of shares of
Common Stock that each HealthAmerica Stockholder will be entitled to receive
will be determined by the number of shares of HealthAmerica Common Stock held by
such stockholder. Notwithstanding any other provision of this Agreement, no
fractional shares of Common Stock will be issued in connection with the
Acquisition. Any HealthAmerica Stockholder who is entitled to receive a
fractional share shall receive the next whole number of shares of Common
Stock.
(b)
At or after the Closing, each holder of a Certificate representing shares of
HealthAmerica Common Stock shall be issued their respective shares of common
stock of VivaKor together with a duly completed and executed transmittal
letter.
(c) At
the Effective Time, the stock transfer books of HealthAmerica shall be closed
and no transfer of shares of HealthAmerica Common Stock shall be recorded
thereafter, other than transfers of shares of HealthAmerica Common Stock that
have occurred prior to the Effective Time. In the event that, after the
Effective Time, Certificates are presented for transfer to VivaKor or
HealthAmerica, they shall be delivered to the Exchange Agent and issued for the
Acquisition Consideration as provided for in this Section 3.3.
(d) In the event
any Certificates shall have been lost, stolen or destroyed, VivaKor shall
deliver the Acquisition Consideration and any dividends or other distributions
with respect to VivaKor Common Stock to which such holder is entitled in
exchange for such lost, stolen or destroyed Certificates, upon the making of an
affidavit of that fact by the record holder thereof and the delivery of such
bond as VivaKor may reasonably require.
(g) No transfer taxes
shall be payable by any stockholder of HealthAmerica in
respect of the issuance of the VivaKor Common Stock under this Section 3.3,
except that if any VivaKor Common Stock is to be issued in a name other than
that in which the Certificate that has been registered, it shall be a condition
of such issuance that the Person requesting such issuance shall pay to VivaKor
any transfer taxes payable by reason thereof, or of any prior transfer of such
Certificate, or establish to the satisfaction of VivaKor that such taxes have
been paid or are not payable.
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Section 3.4 Resale
Restrictions.
(a) The
stockholders of HealthAmerica who received shares of VivaKor Common Stock
as Acquisition Consideration may not offer or sell any shares of VivaKor Common
Stock unless such offer or sale is made (i) pursuant to an effective
registration of such VivaKor Common Stock under the Securities Ad, or (ii)
pursuant to an available exemption from the registration requirements of the
Securities Act. VivaKor shall refuse to register the transfer of any VivaKor
Common Stock not made in accordance with this Section 3.4 and for such purpose
may place stop order instructions with its transfer agent with respect to the
VivaKor Common Stock issued as Acquisition Consideration. A proposed transfer
shall be deemed to comply with this Section 3.4 if the applicable stockholder
delivers to VivaKor a legal opinion in form and substance satisfactory to
VivaKor from counsel reasonably satisfactory to VivaKor to the effect that such
transfer complies with this Section 3.4.
(b)
Each
certificate representing shares of VivaKor Common Stock issued as
Acquisition Consideration will bear the following legend or one
substantially similar thereto:
"THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT'), OR ANY APPLICABLE STATE
SECURITIES LAWS. THESE SECURITIES MAY NOT BE SOLD, MORTGAGED, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT FOR SUCH SECURITIES UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES
LAWS OR THE AVAILABILITY OF AN EXEMPTION FROM SUCH REGISTRATION
REQUIREMENTS."
ARTICLE
IV
Representations
and Warranties of HealthAmerica
Each of
HealthAmerica and the HealthAmerica Principal Shareholder Prior to the
Acquisition, jointly and severally, represents and warrants to VivaKor that,
except as disclosed in the HealthAmerica Disclosure Schedule which has been
delivered to VivaKor prior to the execution of this Agreement (the "HealthAmerica Disclosure Schedule"),
the following: The Disclosure Schedule shall modify each and every
representation and warranty and any exceptions thereon shall be deemed to apply
to all representations and warranties regardless of any section
designation.
Section
4.1 Organization and
Qualification. HealthAmerica is a corporation duly organized,
validly existing and in good under the laws of the State of Nevada.
HealthAmerica has the requisite corporate power and authority to carry on its
business as it is now being conducted and is duly qualified or licensed to do
business, and, if applicable, is in good standing, in each jurisdiction where
the character of its properties owned or held under lease or the nature of its
activities makes such qualification or licensing necessary, except where the
failure to be so organized, qualified,. licensed or in good standing, or to have
such power and authority, when taken together with all other such failures would
not have an HealthAmerica Material Adverse Effect. HealthAmerica has heretofore
made available to VivaKor a complete and correct copy of the certificate of
incorporation, by-laws or other governing documents, each as amended to the date
hereof, of HealthAmerica. As of the Effective Time, HealthAmerica does not own
or control, directly or indirectly, any equity interest in any corporation,
company, association, partnership, joint venture or other entity or own any real
estate.
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Section
4.2 Capitalization.
(a)
The authorized capital stock of HealthAmerica consists of 75,000,000 shares of
HealthAmerica Common Stock, of which 5,000,000 are issued and outstanding and
are validly issued, fully paid and non-assessable. There are no shares of
HealthAmerica Preferred Stock issued or outstanding. All duly issued shares of
HealthAmerica Common Stock held by the HealthAmerica Principal Shareholder Prior
to the Acquisition are owned free and clear of all liens or encumbrances
thereon.
(b) There
are no preemptive or other outstanding rights, options, warrants, conversion
rights (including pursuant to convertible Securities), stock appreciation
rights, redemption rights, repurchase rights, agreements, arrangements, calls,
commitments or rights of any kind relating to the issued or unissued capital
stock of HealthAmerica or obligating HealthAmerica to issue or sell any shares
of capital Stock of, or other equity interests in, HealthAmerica. As of the date
of this Agreement, there are no outstanding contractual obligations of
HealthAmerica to repurchase, redeem or otherwise acquire any shares of capital
stock of HealthAmerica or to provide material funds to, Or make any material
investment (in the form of a loan, capital contribution or otherwise) in, any
Person.
Section 4.3 Authority
Relative to this Agreement and the Transactions. HealthAmerica and the
HealthAmerica Principal Shareholder Prior to the Acquisition have all corporate
power and authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the Acquisition. The execution and
delivery by HealthAmerica and the, HealthAmerica Principal Shareholder Prior to
the Acquisition of this Agreement, and the consummation by HealthAmerica and the
HealthAmerica Principal Shareholder Prior to the Acquisition of the Transactions
to which each of them is a party, have been duly and validly authorized by all
necessary corporate action and no other corporate proceedings on the part of
HealthAmerica or the HealthAmerica Principal Shareholder Prior to the
Acquisition are necessary to authorize the execution and delivery of this
Agreement or to consummate the Transactions to which it is a party other than,
with respect to the Acquisition, the adoption of this Agreement by the
affirmative vote of the holders of a majority of the outstanding shares of
HealthAmerica Common Stock and the filing and recordation of appropriate
Acquisition documents as required by Nevada Law. This Agreement has been
duly and validly executed and delivered by HealthAmerica and the HealthAmerica
Principal Shareholder Prior to the Acquisition and, assuming the due
authorization, execution and delivery by the other parties hereto, constitutes a
legal, valid and binding obligation of each of the, enforceable against each of
them in accordance with its terms.
Section
4.4 No Conflicts,
Required Filings and Consents.
(a) The
execution and delivery of this Agreement by HealthAmerica and the HealthAmerica
Principal Shareholder Prior to the Acquisition does not, and the performance of
this Agreement and consummation of the Transactions by each of the them will
not: (i) conflict with or violate the certificate of incorporation or by-laws of
HealthAmerica or such HealthAmerica Principal Shareholder, (ii) assuming the
consents, approvals, authorizations and waivers specified in Section 4.4(b) have
been received, and any condition precedent to such consent, approval,
authorization, or waiver has been satisfied, conflict with or violate any Law
applicable to HealthAmerica or by which any property of asset of HealthAmerica
is bound or affected, or (iii) result in any breach of or constitute a default
(or an event which with notice or lapse of time or both would become a default)
under, or give to others any right of termination, amendment, acceleration, or
cancellation of, or result in the creation of a lien or other encumbrance on any
property or asset of HealthAmerica pursuant to, any Contract to which
HealthAmerica is a party or by which HealthAmerica or any property or asset of
HealthAmerica is bound or affected, except in the case of clauses (ii) and (iii)
for any such conflicts, violations, breaches, defaults or other occurrences if
the type referred to above which would not have an HealthAmerica Material
Adverse Effect or would not prevent or materially delay the consummation of the
Acquisition.
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(b) The
execution and delivery of this Agreement by HealthAmerica and the HealthAmerica
Principal Shareholder Prior to the Acquisition does not, and the performance of
this Agreement by HealthAmerica will not, require any consent, approval,
authorization, waiver or permit of, or filing with or notification to, any
governmental or regulatory authority, domestic, foreign or supranational (a
"Governmental Entity"),
except for applicable requirements of the Securities Exchange Act of
1934, as amended (the "Exchange
Act"), the Securities Act of 1933, as amended (the "Securities Act"), state
Securities or "blue sky" laws ("Blue Sky Laws"), filing and
recordation of the Plan of Acquisition as required by Nevada Law, except where
failure to obtain such consents, approvals, authorizations or permits, or to
make such filings or notifications, would not have an HealthArnerica Material
Adverse Effect or would not prevent or materially delay the consummation of the
Acquisition.
Section
4.5 Brokers. No agent, broker,
finder, investment banker or other firm or Person is or will be entitled to any
broker's or finder's fee or other similar commission or fee in connection with
the Transactions based upon arrangements made by or on behalf of
HealthAmerica.
Section 4.6 Financial Statements; Absence of
Changes.
(a)
Section 4.7(a) of the HealthAmerica. Disclosure Schedule sets forth copies of
the unaudited financial statements of HealthAmerica as of December 31, 2007 and
August 31, 2008 (the "HealthAmerica
Financial Statements"). The HealthAmerica Financial Statements fairly
present the financial condition and the results of operations, changes in
stockholders' equity and cash flow of HealthAmerica as at the respective dates
of and for the periods referred to in such HealthAmerica Financial Statements
and are consistent with the books and records of
HealthAmerica.
(b)
Since December 31, 2007, HealthAmerica has conducted its business only in the
ordinary course, and since such date there has not occurred any event having a
HealthAmerica Material Adverse Effect or, to HealthAmerica's knowledge, any
event or development which is reasonably likely to cause an event having a
HealthAmerica Material Adverse Effect.
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Section 4.7 Debts
and Liabilities. Prior to the Closing Date, HealthAmerica shall pay in
full all Debts, liabilities and obligations it has incurred such that on the
Closing Date HealthAmerica shall have no outstanding Debts, liabilities,
obligations or other claims, whether fixed or contingent, known or unknown;
including but not limited to any liabilities appearing on the HealthAmerica
Financial Statements.
Section
4.8 Litigation.
There is no suit, action, proceeding, arbitration or written claim
(collectively, "Litigation") pending or, to
the knowledge of HealthAmerica, threatened against or affecting HealthAmerica
that, individually or in the aggregate, would, if decided adversely to
HealthAmerica, reasonably be expected to have an HealthAmerica Material Adverse
Effect, nor is there any judgment, decree, injunction, rule or order of any
Governmental Entity or arbitrator outstanding against HealthAmerica having, or
which would reasonably be expected to have, individually or in the aggregate, an
HealthAmerica Material Adverse Effect.
Section
4.9 Environmental. There
have been no Releases of any Hazardous Materials at, on or under any facility or
property currently or formerly owned, leased, or operated by HealthAmerica that,
individually or in the aggregate, would reasonably be expected to have a
HealthAmerica Material Adverse Effect. HealthAmerica is not the subject of any
pending or, to HealthAmerica's knowledge, threatened investigation or proceeding
under Environmental Law relating in any manner to the off-site treatment,
storage or disposal of any Hazardous Materials generated at any facility or
property currently or formerly owned, leased or operated by HealthAmerica that,
individually or in the aggregate, could reasonably be expected to have an
HealthAmerica Material Adverse Effect. HealthAmerica has not assumed or
otherwise agreed to be responsible for any liabilities arising under
Environmental Law that, individually or in the aggregate, could reasonably be
expected to have a HealthAmerica Material Adverse Effect. The term "Environmental Law" means any
and all applicable laws or regulations or other requirements of any Governmental
Entity concerning the protection of human health or the environment. The term
"Hazardous Materials" means all explosive or regulated radioactive materials,
hazardous or toxic substances; wastes or chemicals, petroleum (including crude
oil or any fraction thereof), and all other materials or chemicals regulated
under any Environmental Law. The term "Release" means any spill, emission,
leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching,
emanation or migration in, into, onto, or through the environment.
Section
4.10 Intellectual
Property.
(a)
HealthAmerica has such ownership of or such rights by license orotherwise in all
patents and patent applications, mask works, trademarks and service marks,
trademark and service ▇▇▇▇ registrations and applications, trade names, logos,
brands, titles, copyrights, subsidiary rights, copyright registrations and
applications, trade secrets, names and likenesses, know-how, proprietary
processes, compositions of matter, formulae, designs, computer software programs
and other proprietary rights as are necessary to conduct and permit the conduct
of the business of HealthAmerica as currently conducted (collectively, the
"Intellectual Property
Rights"), except where the failure to have such ownership or right by
license or otherwise, individually and in the aggregate, would not reasonably be
expected to have an HealthAmerica Material Adverse Effect. Section 4.10 of the
HealthAmerica Disclosure Schedule sets forth a list of all (i) registered
Intellectual Property Rights owned by HealthAmerica and (ii) material registered
Intellectual Property Rights licensed or otherwise used by HealthAmerica in the
conduct of its business.
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(b) The
conduct of the business of HealthAmerica as currently conducted does not
infringe upon the intellectual property rights of any third party or violate the
privacy rights of any third party or defame any third party and there are no
such present or, to the knowledge of HealthAmerica, threatened infringements or
violations of the Intellectual Property Rights by any third party, except, in
either case, for such infringements or violations which, individually and in the
aggregate, would not reasonably be expected to have an HealthAmerica Material
Adverse Effect.
Section
4.11 Contracts.
Except as set forth on Section 4.11 of the HealthAmerica Disclosure Schedule, as
of the date of this Agreement, HealthAmerica is not a party to or bound by,
and none of its
properties or assets are bound by or subject to, any written, electronic or
oral:
(a)
Contract that restricts in any material respect the manner in which, or the
localities in which, all or a material portion of the business of HealthAmerica
is conducted;
(b)
Contract under which HealthAmerica has (i) incurred any indebtedness for
borrowed money that is currently outstanding, (ii) given any guarantee in
respect of indebtedness for borrowed money or (iii) granted any pledge, mortgage
or other security interest in any property or assets of HealthAmerica;
or
(c) Contract in respect of
any joint venture, partnership, business alliance or similar arrangement between
HealthAmerica and any third party involving a material ownership interest in any
such entity.
Each
Contract of HealthAmerica is in full force and effect and is a legal, valid and
binding agreement of HealthAmerica, as applicable, and to the knowledge of
HealthAmerica, enforceable against HealthAmerica, as applicable, and against the
other party or parties thereto, in each case, in accordance with its terms, in
each case, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting the rights and remedies of
creditors generally and to general principles of equity (regardless of whether
considered in a proceeding in equity or at law), except for such failures to be
in full force and effect or enforceable that, individually and in the aggregate,
would not reasonably be expected to have an HealthAmerica Material Adverse
Effect. Except as would not reasonably be expected, individually and in the
aggregate, to have an HealthAmerica Material Adverse Effect, each of
HealthAmerica has performed or is performing all obligations required to be
performed by it under its Contracts and is not (with or without notice or lapse
of time or both) in breach or default thereunder, and, to the knowledge of
HealthAmerica, no other party to any of its Contracts is (with or without notice
or lapse of time or both) in breach or default thereunder.
Section
4.12 Benefit
Plans.
(a)
HealthAmerica does not have any employee benefit plans, including any employee
benefit plans as that term is defined in Section 3(3) of the Employee Retirement
and Income Security Act of 1974 ("ERISA"), or any other plans
maintained or contributed to by HealthAmerica for the benefit of its employees
(or former employees) and/or its beneficiaries ("Benefit Plans"). An
arrangement will not fail to be a Benefit Plan simply because it only covers one
individual.
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(b) To
the knowledge of HealthAmerica, there are no investigations, proceedings, or
lawsuits, either currently in progress or expected to be instituted in the
future, relating to any Benefit Plan, by any Governmental Entity.
Section
4.13 Taxes.
(a)
HealthAmerica has filed all material Tax Returns required to be filed by it and
all such returns are complete and correct in all material respects, or requests
for extensions to file such Tax Returns have been timely filed; granted and have
not expired. HealthAmerica has paid (or caused to be paid) all Taxes shown as
due on such tax returns, and the HealthAmerica Financial Statements reflect an
adequate reserve (in addition to any reserve for deferred Taxes established to
reflect timing difference§ between book and Tax income) of tax for all Taxes
payable by HealthAmerica for all Taxable periods and portions thereof accrued
through the date of such financial statements.
(b) No
Tax Return of HealthAmerica is under audit or examination by any taxing
authority, and no written notice of such an audit or examination has been
received by HealthAmerica. There is no deficiency, refund litigation, proposed
adjustment or matter in controversy with respect to any Taxes due and owing by
HealthAmerica. Each deficiency resulting from any completed audit or
examination relating to Taxes by any Taxing authority has been timely paid,
except for such deficiencies being contested in good faith and for which
adequate reserves are reflected on the financial statements of
HealthAmerica.
(c) No
liens for Taxes (other than for current Taxes not yet due and payable) exist
with respect to any assets or properties of HealthAmerica. HealthAmerica is not
bound by any agreement with respect to Taxes.
(d) As
used in this Agreement, (a) "Taxes" shall include (A) all
forms of taxation, whenever created or imposed, and whether domestic or foreign,
and whether imposed by a national, Federal, state, provincial, local or other
Governmental Entity, including all interest, penalties and additions imposed
with respect to such amounts, (B) liability for the payment of any amounts of
the type described in clause (A) as a result of being a member of an affiliated,
consolidated, combined or unitary group and (C) liability for the payment of any
amounts as a result of being party to any tax sharing agreement or as a result
of any express or implied obligation to indemnify any other Person with respect
to the payment of any amount described in clause (A) or (B) and (b) "Tax Returns" shall mean all
domestic or foreign (whether national, Federal, state, provincial, local or
otherwise) returns, declarations, statements, reports, schedules, forms and
information returns relating to Taxes and any amended Tax Return.
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ARTICLE
V
Representations
and Warranties of VivaKor
VivaKor
represents and warrants to HealthAmerica that, except as disclosed in the
VivaKor Disclosure Schedule which has been delivered to VivaKor prior to the
execution of this Agreement (the "VivaKor
Disclosure Schedule"), the following: The Disclosure Schedule shall
modify each any every representation and warranty and any exceptions thereon
shall be deemed to apply to all representations and warranties regardless of any
section designation.
Section
5.1 Organization and
Qualification. VivaKor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Nevada. VivaKor has the
requisite corporate power and authority to carry on its business as it is now
being conducted and is duly qualified or licensed to do business, and is in good
standing, in each jurisdiction where the character of its properties owned or
held under lease or the nature of its activities makes such qualification
necessary. VivaKor has heretofore made available to HealthAmerica a complete and
correct copy of the organizational documents, each as amended to the date
hereof, of VivaKor. VivaKor does not owns or controls, directly or indirectly,
any equity interest in any corporation, company, association, partnership, joint
venture or other entity or owns any real estate.
Section
5.2 Capitalization.
(a)
The authorized capital stock of VivaKor consists of 242,500,000 shares of
VivaKor Common Stock and 10,000,000 shares Of Preferred Stock, no par value
("VivaKor Preferred Stock"). As of the date hereof there are; and as of the
Closing Date and immediately prior to the Effective Time there will be,
approximately 45,200,000 shares of VivaKor Common Stock issued and outstanding,
all of which have been validly issued, fully paid and non-assessable. There are
no shares of VivaKor Preferred Stock issued or outstanding. All of the issued
and outstanding shares of VivaKor Common Stock were issued in compliance with
all applicable Laws including, without limitation, the Securities Act, the
Exchange Act and applicable Blue Sky Laws.
(b)
Except as set forth in Section 5.2(b) to the VivaKor Disclosure Schedule, there
are no preemptive or other outstanding rights, options, warrants, conversion
rights (including pursuant to convertible securities), stock appreciation
rights, redemption rights, repurchase rights, agreements, arrangements, calls,
commitments or rights of any kind relating to the issued or unissued
capital stock of VivaKor or obligating VivaKor to issue or sell any shares of
capital stock of, or other equity interests in, VivaKor. As of the date of this
Agreement, there are no outstanding contractual obligations of VivaKor to
repurchase, redeem or otherwise acquire any shares of capital stock of VivaKor
of to provide material funds to, or make any material investment (in the form of
a loan, capital Contribution or otherwise) in, any Person.
Section
5.3 Authority Relative
to this Agreement. VivaKor has all necessary corporate (or limited
liability company, as appropriate) power and authority to execute and deliver
this Agreement, to perform its or his obligations hereunder and to consummate
the Transactions to which each of them is a party. The execution and delivery of
this Agreement by VivaKor and the consummation by VivaKor of the Transactions
have been duly and validly authorized by all necessary corporate action and no
other corporate proceedings on the part of VivaKor are necessary to authorize
the execution and delivery of this Agreement or to consummate the Transactions
other than, with respect to the Acquisition, the filing and recordation of
appropriate Acquisition documents as required by Nevada Law. This Agreement has
been duly and validly executed and delivered by VivaKor and, assuming the due
authorization, execution and delivery hereof by the other parties hereto,
constitutes a legal, valid and binding obligation of VivaKor, enforceable
against it in accordance with its terms.
11
Section
5.3 No Conflicts,
Required Filings and Consents.
(a)
The execution and delivery of this Agreement by VivaKor does not and will not,
and the performance of this Agreement and the consummation of the Transactions
by VivaKor will not: (i) conflict with or violate the articles or certificate of
incorporation or by-laws of VivaKor, (ii) assuming the consents; approvals,
authorizations and waivers specified in the VivaKor Disclosure Schedule have
been received, conflict with or violate any Laws applicable to VivaKor or by
which any property or asset of VivaKor is bound or affected, or (iii) result in
any breach of or constitute a default (or an event which with notice or lapse of
time or both would become a default) under, or give to others any right of
termination, amendment, acceleration, or cancellation of, or result in the
creation of a lien or other encumbrance on any property or asset of VivaKor
pursuant to any Contract to which any of them is a party or by which any of
their property or asset is bound or affected.
(b) The
execution and delivery of this Agreement by VivaKor does not and will not, and
the performance of this Agreement and the consummation of the Transactions by
any of them will not, require any consent, approval, authorization, waiver or
permit of, or filing with or notification to, any Governmental Entity, except
for applicable requirements of the Exchange Act, the Securities Act, Blue
Sky Laws; filing and recordation of the Plan of Acquisition as required by
Nevada Law.
Section
5.5 Litigation.
As of the date hereof, there is no suit, action or proceeding pending or, to the
knowledge of VivaKor, threatened against or affecting VivaKor, nor is there any
judgment, decree, injunction or order of any Governmental Entity or arbitrator
outstanding against VivaKor.
Section
5.6 Brokers. No
agent, broker, finder, investment banker or other firm or Person is or will be
entitled to any broker's or finder's fee or other similar commission or fee in
connection with the Transactions based upon arrangements made by or on behalf of
VivaKor.
ARTICLE
VI
Covenants
Section
6.1 Conduct of
Business Pending the Acquisition. From and after the date hereof until
the Closing Date, except as contemplated by this Agreement or unless
HealthAmerica and VivaKor shall otherwise agree in writing, VivaKor and
HealthAmerica covenant and agree that they shall: (a) carry on business in the
usual, regular and ordinary course in substantially the same manner as
heretofore conducted or presently contemplated to be conducted, (b) use all
reasonable efforts to preserve intact its present business organization, keep
available the services of its employees and consultants and preserve its
relationships and goodwill with customers, suppliers, licensors, licensees,
distributors and others having business dealings with it, and (c) use
commercially reasonable efforts to protect its intellectual property rights to
the end that its goodwill and on-going businesses shall not be impaired in any
material respect as of the Closing Date. Without limiting the generality of the
foregoing, except as expressly contemplated by this Agreement or unless the
parties shall otherwise agree in writing, prior to the Closing, neither
shall:
12
(i)
declare, set aside, or pay any dividends on, or make any other distributions in
respect of, any of its capital stock or issue or authorize the issuance of any
other securities in respect of, in lieu of or in substitution for shares of its
capital stock; purchase, redeem or otherwise acquire any shares of capital stock
or any rights, warrants, or options to acquire any such
shares;
(ii)
grant, award or enter into any compensation or change of control arrangement
with any employee of VivaKor;
(iii)
issue, deliver, sell, pledge, dispose of or otherwise encumber any shares of
capital stock, any other voting securities or any securities convertible into,
or any rights, warrants or options to acquire; any such shares or voting
securities (other than the issuance of Common Stock upon the exercise of
Options) or amend the terms of any such securities, rights, warrants or options
or take any action to accelerate the vesting thereof;
(iv) amend
the certificate of incorporation or by-laws of VivaKor;
(v) acquire
or agree to acquire by merging or consolidating with, or by purchasing a
substantial portion of the assets of, or by any other manner, any business or
any corporation, partnership, joint venture, association or other business
organization or division thereof, or any assets that are material, individually
or in the aggregate, except, in any such case, in the ordinary course of
business;
(vi) adopt
a plan of complete or partial liquidation;
(vii) incur
or modify any indebtedness for borrowed money or guarantee any such indebtedness
of another Person; issue or sell any debt securities; guarantee any debt
securities of another Person;
(viii)
except in the ordinary course of business, make any loans, advances or capital
contributions to, or investments in, any other Person or settle or compromise
any material claims or litigation;
(ix)
take any action or omit to take any action that would cause any of its
representations and warranties herein to become untrue in any material respect;
or
(x) authorize
any of, or commit or agree to take any of, the foregoing
actions.
13
Section
6.2 Stockholder
Approval. Each of VivaKor and HealthAmerica shall each take all actions
necessary, in accordance with applicable Law and its respective certificate of
incorporation and by-laws, to cause as promptly as reasonably practicable after
the date hereof their respective stockholders to approve the Transactions. The
respective boards of directors of VivaKor and HealthAmerica shall recommend such
approval and shall take all lawful actions to solicit and obtain such
approval.
Section 6.3 Further
Action; Consents; Filings. Upon the terms and subject to the conditions
hereof, each of the parties hereto shall use its reasonable best efforts to
take, or cause to be taken, all appropriate actions and do, or cause to be done,
all things necessary, proper or advisable under applicable Law or otherwise to
consummate and make effective as promptly as practicable the Transactions and to
cooperate with each other in connection with the foregoing. Without
limiting the generality of the foregoing, each of the parties agrees to take all
appropriate actions to obtain from Governmental Entities any Governmental
Authorizations required to be obtained or made by HealthAmerica and VivaKor in
connection with the authorization, execution and delivery of this Agreement and
the consummation of the Transactions, and to make all necessary filings, and
thereafter .make any
other required submissions that are required under the Exchange Act, the
Securities Act, the Blue Sky Laws, or any other applicable Law. The parties
hereto shall cooperate with each other in connection with the making of all such
filings, including by providing copies of all such documents to the nonfiling
party and its advisors prior to filing and, if requested, by accepting all
reasonable additions, deletions or changes suggested in connection
therewith.
Section
6.4 Access to
Information. From the date hereof until the Closing or the earlier
termination of this Agreement in accordance with its terms, HealthAmerica shall
afford to VivaKor and its accountants, counsel and other representatives full
and reasonable access during normal business hours (and at such other times as
the parties may mutually agree) to its books, Contracts, commitments, records
and personnel and, during such period, shall furnish promptly to VivaKor (i) a
copy of each report, schedule and other document filed or received by it
pursuant to the requirements of the Exchange Act or the Securities Act, and (ii)
all other information concerning its business as VivaKor may reasonably request.
VivaKor shall conduct its review in a manner reasonably calculated not to
disrupt HealthAmerica's business and operations. No investigation pursuant to
this Section 6.5 and no knowledge obtained thereby or otherwise shall limit any
representation or warranty of HealthAmerica or impair any rights of an VivaKor
Indemnified Party as a result thereof.
Section
6.5 Public
Announcements. On or before the Closing Date, neither HealthAmerica nor
VivaKor shall (nor shall they permit any of their respective Affiliates to),
without prior consultation with the other parties and such other parties' review
of and consent to any public announcement concerning the Transactions, issue any
press release or make any public announcement with respect to Transactions
during such period, and HealthAmerica and VivaKor shall, to the extent
practicable; allow the other parties reasonable time to review and comment on
such release or announcement in advance of its issuance and use reasonable
efforts in good faith to reflect the reasonable and good faith comments of such
other party; provided, however, no party shall be prevented from making any
disclosure required by Law at the time so required because of any delay on the
part of another party.
14
Section
6.6 Notice of
Breaches. VivaKor shall give prompt notice to HealthAmerica, and
HealthAmerica shall give prompt notice to VivaKor, of (i) any representation or
warranty made by it contained in this Agreement which has become untrue or
inaccurate in any respect, or (ii) the failure by it to comply with or satisfy
any covenant, condition, or agreement to be complied with or satisfied by it
under this Agreement; provided, however, that such notification shall not excuse
or otherwise affect the representations, Warranties, covenants or agreements of
the parties or the conditions to the obligations of the parties under this
Agreement.
ARTICLE
VII
Conditions
Precedent
Section
7.1 Conditions to Each
Party's Obligation to Effect the Acquisition. The respective obligations
of each party to effect the Acquisition shall be subject to the fulfillment
at or prior to the
Effective Time of the following conditions
(a)
This Agreement and the Acquisition shall have been approved and adopted by the
holders of VivaKor Common Stock, in the manner required by
Law.
(b)
The consummation of the Acquisition shall not be restrained, enjoined or
prohibited by any order, judgment, decree, injunction or ruling of a court of
competent jurisdiction.
Section
7.2 Conditions
to Obligation of VivaKor to Effect the Acquisition. The obligation of
VivaKor to effect the Acquisition shall be subject to the fulfillment at or
before the Effective Time of the following additional conditions, unless
waived-by
VivaKor:
(a) The
representations and warranties
of HealthAmerica contained in this Agreement shall be true and correct in
all respects on the date hereof and as of the Closing Date as if made on the
Closing Date.
(b)
HealthAmerica shall have performed or complied with all agreements and covenants
required to be performed by it under this Agreement on or before the Closing
Date.
(c)
HealthAmerica shall not have suffered a HealthAmerica Material Adverse
Effect.
(d) VivaKor
shall have received a certificate of an authorized officer of HealthAmerica, on
behalf of HealthAmerica, that the conditions set forth in paragraphs (a) through
(e) above have been satisfied.
Section
7.3 Conditions
to Obligations of HealthAmerica to Effect the Acquisition. The
obligations of HealthAmerica to effect the Acquisition shall be subject to the
fulfillment at or before the Effective Time of the following additional
conditions, unless waived by HealthAmerica:
15
(a)
The representations and warranties of VivaKor contained in this Agreement shall
be true and correct in all respects on the date hereof and as of the Closing
Date as if made on the Closing Date.
(b)
VivaKor shall have Performed or complied in all material respects with all
agreements and covenants required to be performed by it under this Agreement on
or before the Closing Date.
(c) VivaKor
shall not have suffered a VivaKor Material Adverse Effect.
(d) HealthAmerica
shall have received a certificate of an authorized officer of VivaKor, on behalf
of VivaKor, that the conditions in paragraphs (a) through (c) above have been
satisfied.
ARTICLE
VIII
Survival
and Indemnification
Section
8.1 Survival of
Representations, Warranties and Covenants. The parties hereto hereby
agree that the representations, warranties, covenants and agreements contained
in this Agreement shall survive the execution and delivery of this Agreement,
and the Closing hereunder; provided, however, that any claims based on a breach
of representations and warranties other than those contained in Sections 4.1,
4.2, 4.3, 4.6, 4.7 and 4.13 shall terminate twelve (12) months after the Closing
Date. The representations and warranties contained in Sections 4.1, 4.2, 4.3,
4.6, 4.7 and 4.13, and any Claims based thereon, shall survive for a period of
three years. Covenants and agreements of the parties shall survive until fully
performed. To the extent the survival periods specified herein exceed an
applicable statute of limitations; the provisions of this Section 8.1 shall
constitute a tolling by HealthAmerica and the HealthAmerica Principal
Shareholder of each such statute of limitations for a period of time not to
extend beyond the termination of such survival periods.
Section
8.2 Indemnification by
the HealthAmerica Principal Shareholder Prior to the Acquisition. The
HealthAmerica Principal Shareholder Prior to the Acquisition shall, jointly and
severally, indemnify and hold harmless VivaKor and the Surviving Corporation,
the stockholders of HealthAmerica and their respective affiliates, employees,
directors, agents and representatives (collectively, the "HealthAmerica
Indemnified Parties"), from and against any and all Loss and Litigation Expense
which they or any of them may suffer or incur as a result of or arising from any
misrepresentation or breach of any representation or warranty by HealthAmerica
or the HealthAmerica Principal Shareholder Prior to the Acquisition set forth in
this Agreement.
Section
8.3 Indemnification by
VivaKor. From and after the Closing Date, VivaKor shall indemnify and
hold harmless the HealthAmerica Principal Shareholder Prior to the Acquisition
from and against any and all Loss and Litigation Expense which such holder may
suffer or incur as a result of or arising from any of the following: (a) any
misrepresentation or breach of any warranty by VivaKor; or (b) the failure by
VivaKor to perform its covenants and agreements under this
Agreement.
16
Section
8.4 No Impact from
Investigation. No Investigation by or knowledge of any party prior to or
after the date of this Agreement shall alter, diminish, obviate or impair any of
the representations, warranties, covenants or agreements of any other party
contained in this Agreement or limit in any way any party's right to rely on
such representations, warranties, covenants or agreements or to bring a claim
based on any Misrepresentation or breach thereof.
ARTICLE
IX
Termination,
Amendment and Waiver
Section
9.1 Termination. This
Agreement may be terminated at any time prior to the Effective Time, whether
before or after approval by the stockholders of VivaKor:
(a)
by mutual written consent of HealthAmerica and VivaKor;
(b) by
VivaKor, upon a material breach of this Agreement on the part of HealthAmerica
which has not been cured and which would cause the conditions set forth in
Section 7.2 to be incapable of being satisfied by September 30,
2008;
(c) by
HealthAmerica, upon a material breach of this Agreement on the part of VivaKor
which has not been cured and which would cause the conditions set forth in
Section 7.3 to be incapable of being satisfied by September 30,
2008;
(d) by
HealthAmerica of VivaKor if any court of competent jurisdiction shall have
issued, enacted, entered, promulgated or enforced any order, judgment, decree,
injunction or ruling which restrains, enjoins or otherwise prohibits the
Acquisition; or
(e) by
HealthAmerica or VivaKor if the Acquisition shall not have been consummated on
or before September 30, 2008; provided, that the right to terminate this
Agreement under this Section 9.1(e) shall not be available to any party whose
failure to perform any material covenant or obligation under this Agreement has
been the cause of or resulted in the failure of the Acquisition to occur on or
before such date.
Section 9.2 Effect
of Termination. In the event of termination of this Agreement as provided
in Section 9.1, this Agreement shall forthwith terminate and there shall be no
liability hereunder on the part of any of VivaKor or HealthAmerica; provided,
this Section 9.2, Section 9.3 (Fees and Expenses); and Section 10.6 (Governing
Law) shall survive the termination and remain in full force and effect and;
provided, further, that each party shall remain liable for any breaches of or
inaccuracies in such party's covenants, representations and warranties hereunder
which breach or inaccuracy occurred prior to the termination of this
Agreement.
Section
9.3 Fees and
Expenses. Whether or not the Acquisition is consummated, all costs and
expenses incurred in connection with this Agreement and the Transactions shall
be paid by the party incurring such expenses.
Section
9.4 Amendment.
This Agreement may be amended by the parties hereto at any time only by an
instrument in writing sighed on behalf of each of the parties
hereto.
17
Section
9.5 Waiver. At
any time prior to the Closing, the parties hereto may, to the extent permitted
by applicable Law, (i) extend the time for the performance of any of the
obligations or other acts of any other party hereto, (ii) waive any inaccuracies
in the representations and warranties by any other party contained herein or in
any documents delivered by any other party pursuant hereto and (iii) waive
compliance with any of the agreements of any other party or with any conditions
to its own obligations contained herein. Any agreement on the part of a party
hereto to any such extension or waiver shall be valid only if set forth in an
instrument in writing signed on behalf of such party.
ARTICLE
X
General
Provisions
Section
10.1 Notices.
All notices or other communications under this Agreement shall be in writing and
shall be given (and shall be deemed to have been duly given upon receipt) by
delivery in person, by telecopy (with confirmation of receipt), or by registered
or certified mail, postage prepaid, return receipt requested addressed as
follows:
If to
VivaKor:
c/▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C.
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
If to
Health America:
HealthAmerica,
Inc:
▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇, #▇▇
▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
If to
HealthAmerica Principle Shareholder Prior to the Acquisition
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇, #▇▇
▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
or to
such other address as any party may have furnished to the other parties in
writing in accordance with this Section 10.1.
18
Section
10.2 Specific
Performance. The parties hereto agree that irreparable damage would occur
in the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. Accordingly,
the parties further agree that each party shall be entitled to an injunction or
restraining order to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof in any court of the United States
or any state having jurisdiction, this being in addition to any other right or
remedy to which such party may be entitled under this Agreement, at Law or in
equity.
Section
10.3 Entire
Agreement. This Agreement (including the documents and instruments
referred to herein) constitutes the entire agreement and supersedes all other
prior agreements and understandings, both written and oral, among the parties,
or any of them, with respect to the subject matter hereof.
Section
10.4 Assignments;
Parties in Interest. Neither this Agreement nor any of the rights,
interests or obligations hereunder may be assigned by any of the parties hereto
(whether by operation of Law or otherwise) without the prior written consent of
the other parties. Subject to the foregoing, this Agreement shall be binding
upon and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any Person
not a party hereto any right, benefit or remedy of any nature whatsoever under
or by reason of this Agreement, including to confer third party beneficiary
rights except that the stockholders of VivaKor are intended third-party
beneficiaries of the representations, warranties and covenants of
HealthAmerica.
Section
10.5 Governing
Law. This Agreement shall be governed in all respects by the laws of the
State of Nevada (without giving effect to the provisions thereof relating to
conflicts of Law).
Section
10.6 Headings;
Disclosure. The descriptive headings herein are inserted for convenience
of reference only and are not intended to be part of or to affect the meaning or
interpretation of this Agreement. Any disclosure by VivaKor or HealthAmerica in
any portion of its respective Disclosure Schedule shall be deemed disclosure in
each other portion of such Disclosure Schedule to which such disclosure
reasonably relates on its face.
Section
10.7 Certain
Definitions and Rules of Construction.
(a) As
used in this Agreement:
"Affiliate" as applied to any
Person, shall mean any other Person directly or indirectly controlling,
controlled by, or under common control with, that Person; for purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlling," "controlled by" and "under common control with"); as applied
to any Person, means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of that Person,
whether through the ownership of voting securities, by contract or
otherwise.
"VivaKor Material Adverse
Effect" shall be any circumstance, event or occurrence that would be
reasonably likely to have a material adverse effect on the business, assets,
operations, financial condition, revenues, results of operations of VivaKor
taken as a whole.
19
"HealthAmerica Material Adverse
Effect" shall be any circumstance, event or occurrence that would be
reasonably likely to have a Material adverse effect on the business, assets,
operations, financial condition, revenues, results of operations of
HealthAmerica taken as a whole.
"Contract" means any contract;
agreement, note, bond, mortgage, indenture, credit agreement, lease, license,
permit, franchise or other instrument, obligation or understanding, whether
written or oral.
"Debt" means, with respect to
any Person, all indebtedness of such Person for borrowed money or the deferred
purchase price of property or services (excluding trade payables and other
accrued current liabilities arising in the ordinary course of business),
obligations of such Person evidenced by bonds, notes, indentures or similar
instruments, obligations of such Person under interest rate agreements, currency
hedging agreements, commodity price protection agreements or similar hedging
instruments, capital lease obligations of such Person, redeemable capital stock
of such Person and any other obligations of such Person classified as
indebtedness in standard accounting usage.
"Laws" means any domestic
(federal, state or local) or foreign law, rule, regulation, order, judgment or
decree.
"Litigation Expense" means any
expenses incurred in connection with investigating, defending or asserting any
claim, action, suit or proceeding incident to any matter indemnified against
under this Agreement, including, court filing fees, court costs, arbitration
fees or costs, witness fees and reasonable fees and disbursements of legal
counsel (whether incurred in any action or proceeding between the parties to
this Agreement or between any party to this Agreement and any third person and
whether or not any action or proceeding is commenced), investigators, expert
witnesses, accountants and other professionals.
"Loss" means any loss,
obligation, claim, liability, settlement payment, award, judgment, fine,
penalty, interest charge, expense, damage or deficiency or other charge,
measured after accounting for any insurance proceeds actually received with
respect thereto, other than Litigation Expense.
"Person" shall include
individuals, corporations, partnerships, limited liability companies, trusts,
other entities and groups (which term shall include a "group" as such term is
defined in Section 13(d)(3) of the Exchange Act).
"Tax" shall mean any federal,
state, local, foreign or provincial income, gross receipts, property, sales,
service, use, license, lease, excise, franchise, employment, payroll,
withholding, employment, unemployment insurance, workers' compensation, social
security, alternative or added minimum, ad valorem, value added, stamp, business
license, occupation, premium, environmental, windfall profit, customs; duties,
estimated, transfer or excise tax, or any other tax, custom, duty, premium,
governmental fee or other assessment or charge of any kind whatsoever, together
with any interest, penalty or addition to tax imposed by any Governmental
Entity.
"Transactions" shall mean the
transactions contemplated by this Agreement.
20
(b) Other
Rules of Construction.
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(i)
|
References
in this Agreement to any gender shall include references to all genders.
Unless the context otherwise requires, references in the singular include
references in the plural and vice versa. References to a party to this
Agreement or to other agreements described herein means those Persons
executing such agreements.
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(ii)
|
The
words "include", "including" or "includes" shall be deemed to be followed
by the phrase "without limitation" or the phrase "but not limited to" in
all places where such words appear in this Agreement. The word "or" shall
be deemed to be inclusive.
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(iii)
|
This
Agreement is the joint drafting product of HealthAmerica and VivaKor, and
each provision has been subject to negotiation and agreement and shall not
be construed for or against either party as drafter
thereof.
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(iv)
|
In
each case in this Agreement where this Agreement or a Contract is
represented or warranted to be enforceable will be deemed to include as a
limitation to the extent that enforceability may be subject to applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium
or similar Laws affecting the enforcement of creditors' rights generally
and to general equitable principles, whether applied in equity or at
Law.
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Section
10.8 Counterparts.
This Agreement may be executed in two or more counterparts, which together shall
constitute a single agreement.
Section
10.9 Severability. If any
term or other provision of this Agreement is invalid, illegal or incapable of
being enforced by any rule of Law or public policy, all other terms and
provisions of this Agreement shall nevertheless remain in full force and effect
so long as the economics or legal substance of the Transactions are not affected
in any manner materially adverse to any party. Upon determination that any term
or other provision hereof is invalid, illegal or incapable of being enforced,
the parties hereto shall negotiate in good faith to modify this Agreement so as
to effect the original intent of the parties as closely as possible to the
fullest extent permitted by applicable Law in an acceptable manner to the end
that the Transactions are fulfilled to the extent possible.
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IN
WITNESS WHEREOF, HealthAmerica, VivaKor and the HealthAmerica Principal
Shareholder Prior to the Acquisition have each signed this Agreement or caused
this Agreement to be signed by their respective officers thereunto duly
authorized all as of the date first written above.
|
HealthAmerica,
Inc.
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|||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as President | /s/ Tannin ▇▇▇▇ | ||
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, President
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Tannin
▇▇▇▇, President
|
|||
|
HealthAmerica, Inc.
Principal Shareholder
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||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as Shareholder | |||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Principal Shareholder | ||||
22