Exhibit 2
Exhibit 2
Stock Purchase Agreement
STOCK PURCHASE AGREEMENT
MEDIQUIK SERVICES, INC.
a Delaware corporation;
MIRAQUEST VENTURES L.L.C.
an Idaho limited liability company;
Dated as of June 30, 2000
TABLE OF CONTENTS
Page
SECTION 1. PURCHASE AND SALE OF SECURITIES 1
1.1 Authorization 1
1.2 Sale and Purchase. 1
1.3 Payment of Purchase Price 1
1.4 Closing 2
1.5 Closing Obligations of the Company. 2
1.6 Closing Obligations of MiraQuest. 2
1.7 Adjustment to Number of Shares and Units. 3
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY 4
2.1 Organization, Good Standing and Qualification 4
2.2 Corporate Power 4
2.3 Subsidiaries 4
2.4 Authorization 5
2.5 Capitalization 5
2.6 Valid Issuance of Securities 6
2.7 Governmental Consents 6
2.8 Exempt Offering 6
2.9 Compliance with Laws; Permits 7
2.10 Compliance With Other Instruments 7
2.11 Related-Party Transactions 8
2.12 Agreements; Action 8
2.13 Title to Property and Assets; Leases 9
2.14 Changes. 9
2.15 Intellectual Property 11
2.16 Litigation 11
2.17 Tax Returns and Payments 12
2.18 Labor Agreements and Actions 12
2.19 Employee Benefit Plans 12
2.20 Rights of Registration and Voting Rights 13
2.21 Insurance 13
2.22 Corporate Documents 13
2.23 No Conflict 13
2.24 Financial Statements 14
2.25 Employees 14
2.26 Full Disclosure 15
2.27 Investment Company Act 15
2.28 Purchase Entirely for Own Account 15
2.29 Disclosure of Information 15
2.30 Restricted Securities 16
2.31 Legends 16
2.32 Knowledge and Experience 16
2.33 Principal Office 17
SECTION 3. REPRESENTATIONS AND WARRANTIES OF MIRAQUEST 17
i
3.1 Authorization 17
3.2 Consents 17
3.3 Purchase Entirely for Own Account 17
3.4 Disclosure of Information ` 18
3.5 Restricted Securities 18
3.6 Legends 18
3.7 Accredited Investor 19
3.8 Principal Office 19
SECTION 4. CONDITIONS OF MIRAQUEST'S OBLIGATIONS AT CLOSING 19
4.1 Representations and Warranties True; Performance of Obligations 19
4.2 Qualifications; Legal Investment 19
4.3 Related Agreements 19
4.4 Filing of Series A Preferences 19
4.5 Proceedings and Documents 20
4.6 Approval of Board of Directors and Shareholders 20
4.7 Opinion of Company's Counsel 20
4.8 Board of Directors 20
4.9 Chief Financial Officer 20
4.10 Approval of Budget 20
4.11 Employment Agreements 20
4.12 Approval by Accountant 21
SECTION 5. CONDITIONS OF THE COMPANY'S OBLIGATIONS AT CLOSING 21
5.1 Representations and Warranties 21
5.2 Performance 21
5.3 Qualifications; Legal Investment 21
5.4 Related Agreements 21
5.5 Consulting Agreements 21
SECTION 6. ADDITIONAL COVENANTS AND AGREEMENTS OF THE PARTIES 21
6.1 Confidentiality 21
6.2 Access 22
6.3 Notification 22
6.4 No Negotiation 22
6.5 Future Funding for the Company 23
6.6 Public Company Status 23
6.7 MiraQuest Business Combination 23
6.8 Transfer of Preferred Shares 23
6.9 NASDAQ Requirements 23
6.10 Investment Company Act 23
SECTION 7. TERMINATION 23
7.1 Termination Events 23
7.2 Effect of Termination 24
SECTION 8. GENERAL PROVISIONS 24
8.1 Governing Law 24
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8.2 Survival 24
8.3 Successors and Assigns 25
8.4 Entire Agreement 25
8.5 Severability 25
8.6 Amendment and Waiver 25
8.7 Delays or Omissions 25
8.8 Notices 26
8.9 Expenses 26
8.10 Attorneys' Fees 26
8.11 Counterparts and Execution 26
8.12 Titles and Subtitles 26
8.13 Pronouns 27
8.14 Broker's Fees 27
8.15 Corporate Securities Law 27
8.16 Publicity 27
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered into
as of June 30, 2000, by and between MEDIQUIK SERVICES, INC., a Delaware
corporation (the "Company"), and MIRAQUEST VENTURES LLC, an Idaho limited
liability company ("MiraQuest").
RECITALS:
A. Whereas, the Company desires to sell and issue shares of its common
stock and shares of its Series A preferred stock, no par value (the "Series A
preferred stock," and together with the common stock, the "Securities").
B. Whereas, MiraQuest desires to purchase the Company's common stock and
Series A preferred stock, and the Company desires to issue and sell its common
stock and Series A preferred stock to MiraQuest, in each case on the terms and
conditions set forth herein.
AGREEMENT:
NOW, THEREFORE, the parties agree as follows:
SECTION 1. PURCHASE AND SALE OF SECURITIES
1.1 Authorization. On or prior to the Closing (as defined in Section 1.4
below), the Company shall have authorized the sale and issuance of its common
stock and its Series A preferred stock to MiraQuest. The Series A preferred
stock shall have the rights, preferences, privileges and restrictions set forth
in the attached Exhibit A (the "Series A Preferences").
1.2 Sale and Purchase. Subject to the terms and conditions of this
Agreement, at the Closing MiraQuest shall buy and the Company shall sell and
issue 7,048,996 shares of its common stock, 513,266 shares of its Series A
preferred stock, and a warrant for the
iii
purchase of 650,000 shares of common stock to MiraQuest for a total
consideration to the Company of up to $35,538,632 (the "Purchase Price").
1.3 Payment of Purchase Price. The Purchase price shall be paid to the
Company as follows:
(a) up to 7,251,600 membership units of MiraQuest (the "Units")
pursuant to Section 1.7; and
(b) up to $2,000,000 cash as follows:
(i) at the time of Closing, cancellation of loans to the
Company from MiraQuest made before the signing of this Agreement in the amount
of $800,000 (the specific loan dates and amounts are 3-28-00: $100,000, 4-3-00:
$100,000, 4-10-00: $100,000, 4-17-00: $100,000, 5-22-00: $100,000, 6-16-00:
$100,000, 6-23-00: $100,000, 6-27-00: $100,000).
(ii) at the time of Closing, cancellation of the loan to the
Company from MiraQuest made at the signing of this Agreement in the amount of
$300,000;
(iii) at the time of Closing, cancellation of any loans to the
Company from MiraQuest made after the signing of this Agreement in an amount not
to exceed $900,000 (such loans shall be made in the sole discretion of MiraQuest
and only after approval by MiraQuest of the Company's budget).
1.4 Closing. The closing of the purchase and sale of the Securities (the
"Closing") shall take place no later than August 15, 2000, at the offices of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Rock & Fields, ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, 10th Floor, ▇.▇.
▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, at 10:00 a.m. (local time), or at such other time
and place as the Company and MiraQuest mutually agree, orally or in writing (the
date of the Closing is hereinafter referred to as the "Closing Date").
1.5 Closing Obligations of the Company.
At the Closing, the Company will deliver to MiraQuest:
(a) subject to Section 1.7, stock certificates representing the
7,048,996 shares of the Company's common stock and 513,266 shares of the
Company's Series A preferred stock being purchased by MiraQuest pursuant to this
Agreement;
(b) a warrant to purchase 650,000 shares of the Company's common
stock at an exercise price of $0.60 per share with a term of ten years and no
vesting period;
(c) duly executed copies of the Voting Agreement and the
Noncompetition Agreement (as defined in Section 2.4 below); and
(d) a certificate executed by the President and Chief Executive
Officer of the Company representing and warranting to MiraQuest that each of the
Company's representations and warranties in this Agreement was accurate in all
respects as of the date of this Agreement and is accurate in all respects as of
the Closing Date as if made on the Closing Date; and
(e) the other documents and instruments referenced in Section 4
hereof.
1.6 Closing Obligations of MiraQuest. At the Closing, MiraQuest will
deliver to the Company:
(a) certificate(s) representing the Units;
(b) duly executed copies of the Related Agreements;
(c) a certificate executed by the chief executive officer of
MiraQuest to the effect that, except as otherwise stated in such certificate,
each of MiraQuest's representations and warranties in this Agreement was
accurate in all respects as of the date of this Agreement and is accurate in all
respects as of the Closing Date as if made on the Closing Date; and
(d) the other documents and instruments referred to in Section 5
hereof.
1.7 Adjustment to Number of Shares and Units.
(a) Reduced Number of Shares and Units to Be Held in Trust. The
number of shares of the Company's common stock and Series A preferred stock
delivered to MiraQuest at Closing and the number of membership units of
MiraQuest to be delivered to the Company at Closing shall be reduced if the
loans to the Company from MiraQuest that are canceled at Closing pursuant to
Section 1 .3(b)(iii) are less than $900,000. The amount of such reduction shall
be determined by the following steps:
(1) subtract the amount of loans canceled at Closing
pursuant to Section l.3(b)(iii) from $900,000 (the
"Resultant");
(2) divide the Resultant from Step (1) by $2,000,000 (the
"Percentage");
(3) multiply the Percentage from Step (2) by the number of
shares of the Company's common stock and Series A
preferred stock being purchased by MiraQuest pursuant to
Section 1.2; and
(4) multiply the Percentage from Step (2) by the number of
membership units of MiraQuest being delivered to the
Company pursuant to Section 1 .2.
The number of shares calculated in Step (3) shall be held, in trust, by
the Company's attorney and the number of membership units calculated in Step (4)
shall be held, in trust, by MiraQuest's attorney.
(b) Payment of Additional Amounts. If and when MiraQuest pays the
amount calculated in Step (1) to the Company, the Company's attorney shall
deliver to MiraQuest the shares it is holding in trust and MiraQuest's attorney
shall deliver to the Company the membership units of MiraQuest it is holding in
trust. If MiraQuest pays less than the full amount calculated in Step (1), then
the Company's attorney shall deliver a number of shares and MiraQuest's attorney
shall deliver a number of membership units in the same proportion that the
amount paid bears to the amount calculated in Step (1).
(c) Termination of Trust Arrangements. The trust arrangement with
the Company's attorney for holding the shares and with MiraQuest's attorney for
holding the membership units calculated in Section 1.7(a) shall terminate on
December 31, 2000. If there are any shares being held by the Company's attorney
at that time, such shares shall be returned to the Company and if there are any
membership units being held by MiraQuest's attorney at that time, such
membership units shall be returned to MiraQuest.
1.8 Treatment of Loans to the Company From MiraQuest. In the event that
Closing does not occur by August 15, 2000, or such other date as agreed to by
the parties, then the loans to the Company from MiraQuest referenced in Section
1.3 shall not be canceled but shall be converted into the Company's common stock
and warrants as follows: for each $2 of monies loaned to the Company by
MiraQuest, MiraQuest shall receive (i) one share of common stock of the Company
plus (ii) two warrants, which shall vest immediately, to purchase two shares of
common stock of the Company with an exercise price of $2 per warrant.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to MiraQuest that, except as
set forth on the Schedule of Exceptions attached hereto as Exhibit B
specifically identifying the relevant Section hereof which exceptions shall be
deemed to be representations and warranties as if made hereunder, the following
statements are true and correct:
2.1 Organization, Good Standing and Qualification. The Company is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Delaware. The Company has all requisite corporate power and
authority to own and operate its properties and assets and to carry on its
business as now conducted and as proposed to be conducted. The Company is duly
qualified, is authorized to transact business, and is in good standing as a
foreign corporation in all jurisdictions in which the nature of its current
activities and properties (both owned and leased) makes such qualification
necessary, except for those jurisdictions in which failure to do so would not
have a material adverse effect on the Company or its business and properties.
The Company has furnished MiraQuest or counsel to MiraQuest
with copies of its Articles of Incorporation and Bylaws (the "Charter
Documents"). Said copies of the Charter Documents are true, correct and complete
and contain all amendments as of the Closing Date.
2.2 Corporate Power. The Company will have at the Closing Date all
requisite legal and corporate power (i) to execute and deliver this Agreement
and the Related Agreements, (ii) to sell and issue the Securities hereunder, and
(iii) to carry out the provisions of this Agreement, the Related Agreements, and
the Series A Preferences.
2.3 Subsidiaries. The Company does not currently own or control, directly
or indirectly, any interest in any other corporation, association or other
business entity. The Company is not a participant in any joint venture,
partnership or other similar arrangement.
2.4 Authorization. All corporate action on the part of the Company, its
officers, directors and stockholders necessary for the authorization, execution
and delivery of this Agreement, the Voting Agreement in the form attached hereto
as Exhibit C (the "Voting Agreement"), the Agreements Not to Compete in the form
attached hereto as Exhibit D (the "Noncompetition Agreements"), the Warrant
Agreement granted to MiraQuest in form and substance acceptable to the Company
and MiraQuest granting MiraQuest a warrant to purchase up to 650,000 shares of
common stock at an exercise price of $0.60 with a term of ten years and no
vesting period (the "Warrant," and collectively with the Noncompetition
Agreements and the Voting Agreement, the "Related Agreements"), the performance
of all obligations of the Company hereunder and thereunder and the
authorization, issuance (or reservation for issuance), sale and delivery of the
Securities, has been taken or will be taken prior to the Closing, and this
Agreement and the Related Agreements, when executed and delivered by the
Company, will constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their respective terms except
as limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance, and other laws of general application affecting
enforcement of creditors' rights generally, as limited by laws relating to the
availability of specific performance, injunctive relief, or other equitable
remedies.
2.5 Capitalization.
(a) Immediately prior to the Closing, the authorized capital stock
of the Company will consist of: (i) 50,000,000 shares of common stock, of which
6,392,633 shares are issued and outstanding, and (ii) l,000,000 shares of
Preferred Stock, all of which are designated "Series A preferred stock," and
none of which are issued and outstanding. No other shares of capital stock are
outstanding. All issued and outstanding shares of the Company's common stock
have been duly and validly authorized and issued and are fully paid and are
nonassessable. The Securities have the rights, preferences, privileges and
restrictions as set forth in Exhibit A. A true, correct and complete list of all
holders of equity securities of the Company, and all holders of options,
warrants and convertible preferred securities exercisable for or convertible
into any equity securities of the Company, together with their respective
holdings as of the date hereof is attached as Exhibit F to this Agreement (the
"Stockholder List").
(b) The Company has reserved the following: (i) 10,265,328 shares of
common stock for issuance upon the conversion of the Series A preferred stock in
accordance
with the Series A Preferences; (ii) 0 shares of common stock reserved for
issuance under the Company's Employee Stock Option Plan; and (iii) 650,000
shares of common stock reserved for issuance under the Warrant. Except as set
forth in the Schedule of Exceptions and in Exhibit E, other than as may be
granted hereunder or pursuant to the Related Agreements, there are no
outstanding options, warrants, rights (including conversion or preemptive rights
and rights of first refusal), convertible securities, proxy or shareholder
agreements, or agreements of any kind for the purchase or acquisition from or by
the Company of any of its securities. There are no outstanding or authorized
stock appreciation, phantom stock, profit participating or similar rights with
respect to the securities of the Company. Nothing set forth in the Schedule of
Exceptions represents any anti-dilution or similar adjustments required as a
result of the consummation of the transactions contemplated hereby or otherwise.
(c) All outstanding securities of the Company were issued in
compliance with applicable Federal and state securities laws. Other than
pursuant to the Related Agreements, the Company is not a party or subject to any
agreement or understanding and, to the best of the Company's knowledge, there
is no agreement or understanding between any persons and/or entities that
affects or relates to the voting or giving of written consents with respect to
any security or by a director of the Company.
2.6 Valid Issuance or Securities. The Securities that are being issued to
MiraQuest hereunder, when issued, sold and delivered in accordance with the
terms hereof for the consideration expressed herein, will be duly and validly
issued, fully paid and nonassessable and free of restrictions on transfer other
than restrictions on transfer under this Agreement and applicable Federal and
state securities laws. Based in part upon the representations of MiraQuest in
this Agreement and subject to the provisions of Section 2.7 below, the
Securities will be issued in compliance with all applicable Federal and state
securities laws. Neither the Company nor any agent on its behalf has solicited
or will solicit any offers to sell or has offered to sell or will offer to sell
all or any part of the Securities to any person or persons so as to bring the
sale of the Securities by the Company within the registration provisions of the
Securities Act of 1933, as amended (the "Securities Act") or any state
securities laws. Except as set forth in Section 2.7 below, no governmental
orders, permissions, consents, approvals or authorizations are required to be
obtained and no registrations or declarations are required to be filed in
connection with the execution and delivery of this Agreement and the issuance of
the Series A preferred stock or common stock, except such as has been duly and
validly obtained or filed, or with respect to any filings that must be made
after the Closing, as will be filed in a timely manner.
2.7 Governmental Consents. No consent, approval, order, or authorization
of, or designation, declaration, registration, qualification or filing with, any
local, state or Federal governmental authority is required on the part of the
Company in connection with the Company's valid execution, delivery and
performance of this Agreement and the Related Agreements, and the transactions
contemplated hereby and thereby, including without limitation, its offer, sale
and issuance of the Securities, except (i) the filing of the Series A
Preferences with the Secretary of State of the State of Delaware, and (ii) the
filing of Form 8-K with the Securities and Exchange Commission ("SEC"), and
(iii) any other post-closing filing as may be required under SEC Regulation D or
any applicable state "Blue Sky" securities laws, all of which the Company will
file within the time periods required.
2.8 Exempt Offering. Assuming the accuracy of the representations and
warranties of MiraQuest contained in Section 3 hereof, and completion of any
filings required under Section 2.7(iii) above, the offer, sale and issuance of
the Securities will be exempt from the registration and prospectus delivery
requirements of Section 5 of the Securities Act, and will have been registered
or qualified (or are exempt from registration and qualification) under the
registration, permit or qualification requirements of all applicable state "Blue
Sky" and securities laws, rules and regulations. Neither the Company nor any
authorized agent acting on its behalf will take any action hereafter that would
cause the loss of such exemptions.
2.9 Compliance with Laws; Permits. To the best of its knowledge, the
Company is not in violation, in any material respect, of any applicable statute,
law, ordinance, rule, regulation, order or restriction of any domestic or
foreign government or any instrumentality or agency thereof in respect of the
conduct of its business or the ownership of its properties and assets, including
without limitation, regulations concerning hazardous or toxic wastes, materials
or substances, pollutants or contaminants and tax statutes and regulations, the
violation of which would materially and adversely affect the business, assets,
liabilities, condition (financial or otherwise) operations or prospects of the
Company. The Company has all franchises, permits, licenses and any similar
authority ("Governmental Authorizations") necessary for the conduct of its
business as now being conducted by it, the lack of which or failure to obtain
would materially and adversely affect the business, properties, condition
(financial or otherwise), operations or prospects of the Company, and believes
it can obtain, without undue burden or expense, any similar authority for the
conduct of its business as planned to be conducted. All such Governmental
Authorizations are in full force and effect, and no violations have been
communicated in writing to the Company in respect of same and no proceeding is
pending or, to the Company's knowledge, threatened toward the revocation of any
such franchises, licenses, permits and any similar authority. The Schedule of
Exceptions contains a complete and accurate list of each Governmental
Authorization that is held by the Company or that otherwise relates to the
business of, or to any of the assets owned or used by, the Company. The listed
Governmental Authorizations collectively constitute all of the Governmental
Authorizations necessary to permit the Company to lawfully conduct and operate
its business in the manner it currently conducts and operates the business and
to permit the Company to own and use its assets in the manner in which it
currently owns and uses the assets.
2.10 Compliance With Other Instruments. The Company is not, and will not
by virtue of entering into and performing this Agreement, the Related Agreements
or the transactions contemplated hereunder and thereunder, respectively, be in
violation or default in any material respect of any provision of its Charter
Documents or of any term or provision of any mortgage, indenture, contract,
lease agreement or instrument to which it is a party or by which it is bound or
of any judgment, order, writ, decree or to its knowledge, statute, rule,
regulation or restriction applicable to the Company which could have a material
adverse effect on the business, assets, liabilities, condition (financial or
otherwise), operations or prospects of the Company. The execution, delivery and
performance by the Company of this Agreement and the Related Agreements, the
issuance and sale of the Securities pursuant hereto and pursuant to the Series A
Preferences, and the consummation of the other transactions contemplated hereby
and thereby, will not, with or without the passage of time or giving of notice,
result in any such violation or be in conflict with or constitute a default
under any of the above, or result in the creation of any mortgage, pledge, lien,
charge, or encumbrance upon any of the properties or
assets of the Company or the suspension, revocation, impairment, forfeiture or
non-renewal of any permit, license, authorization or approval applicable to the
Company, its business or operations, or any of its assets or properties. The
Company has avoided every condition, and has not performed any act, the
occurrence of which would result in the Company's loss of any material right
under any license, permit, contract or any other agreement.
2.11 Related-Party Transactions. No employee, officer, stockholder or
director of the Company or member of his or her immediate family is indebted to
the Company, nor is the Company indebted (or committed to make loans or extend
or guarantee credit) to any of them, other than (i) for payment of salary for
services rendered, (ii) reimbursement for reasonable expenses incurred on behalf
of the Company, and (iii) for other standard employee benefits generally made
available to all employees (including stock option agreements outstanding under
any stock option plan approved by the Board of Directors of the Company). To the
best of the Company's knowledge, none of such persons has any direct or indirect
ownership in any firm or corporation with which the Company is affiliated or
with which the Company has a business relationship, or any firm or corporation
that competes with the Company, except that employees, stockholders, officers or
directors of the Company and members of their immediate families may own stock
in publicly-traded companies that may compete with the Company. To the best of
the Company's knowledge, no officer, director or stockholder or any member of
their immediate families is, directly or indirectly, interested in any material
contract with the Company (other than such contracts as relate to any such
person's ownership or capital stock or other securities of the Company). The
Company is not a guarantor, surety or indemnitor of any indebtedness of any
other person, firm or corporation.
2.12 Agreements; Action.
(a) Except for this Agreement and the Related Agreements, or as
disclosed in the Schedule of Exceptions, there are no agreements, understandings
or proposed transactions between the Company and any of its officers, directors,
affiliates or any affiliate thereof.
(b) There are no agreements, understandings, instruments, contracts,
proposed transactions, judgments, orders, writs or decrees to which the Company
is a party or to its knowledge by which it is bound which may involve (i)
obligations (contingent or otherwise) of, or payments to, the Company in excess
of $ 10,000 individually or $100,000 in the aggregate (other than obligations of
or payments to the Company arising from transactions in the ordinary course of
business), or (ii) the license of any patent, copyright, trade secret or other
proprietary right to or from the Company (other than licenses arising from the
purchase of "off the shelf" or other standard products), or (iii) provisions
restricting or affecting the development, manufacture or distribution of the
Company's products or services, or (iv) indemnification by the Company with
respect to infringements of proprietary rights (other than indemnification
obligations arising from purchase or sale agreements entered into in the
ordinary course of business).
(c) The Company has not (i) declared or paid any dividends, or
authorized or made any distribution upon or with respect to any class or series
of its capital stock, (ii) since inception, incurred any indebtedness for money
borrowed (including by way of guaranty) or any other liabilities individually in
excess of $10,000 or, in the case of indebtedness
and/or liabilities individually less than $10,000, in excess of $100,000 in the
aggregate, (iii) made any loans or advances to any person, other than ordinary
advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of
any of its assets or rights, other than the sale of its inventory in the
ordinary course of business.
(d) For the purposes of subsections (b) and (c) above, all
indebtedness, liabilities, agreements, understandings, instruments, contracts
and proposed transactions involving the same person or entity (including persons
or entities the Company has reason to believe are affiliated therewith) shall be
aggregated for the purpose of meeting the individual minimum dollar amounts of
such subsections.
(e) The Company is not a party to and is not bound by any contract,
agreement or instrument, or subject to any restriction under its Charter
Documents, as the same have been amended, which materially and adversely affects
its business as now conducted or as proposed to be conducted, its properties or
its financial condition.
(f) The Company has not granted rights to manufacture, produce,
assemble, license, market or sell its services or products to any other person
and is not bound by any agreement that affects the Company's exclusive right to
develop, manufacture, assemble, distribute, market or sell its services or
products.
2.13 Title to Property and Assets; Leases. The Company has good and
marketable title to its property and assets, and good title to its leasehold
interests and estates, in each case free and clear of all mortgages, liens,
claims, encumbrances and charges, other than (i) liens for current taxes not yet
delinquent, (ii). minor liens imposed by law and incurred in the ordinary course
of business for obligations not past due to common carriers, warehousemen,
laborers, materialmen, and the like, (iii) liens in respect of pledges or
deposits under workers' compensation laws or similar legislation, or (iv) minor
defects in title, none of which, individually or in the aggregate, materially
interferes with the Company's ownership or use of such property or assets. All
facilities, machinery, equipment, fixtures, vehicles and other properties owned,
leased or used by the Company are in good operating condition and repair and are
reasonably fit and usable for the purposes for which they are being used.
2.14 Changes. Since the date of the Balance Sheet (identified in Section
2.24 below), there has not been:
(a) Any change in the assets, liabilities, financial condition or
operating results of the Company other than changes in the ordinary course of
business, none of which individually or in the aggregate has had or is expected
to have a material adverse effect on such assets, liabilities, condition
(financial or otherwise), operations or prospects of the Company;
(b) Any resignation or termination of any key officers of the
Company; and the Company, to the best of its knowledge, does not know of the
impending resignation or termination of employment of any such officer;
(c) Any material change, except in the ordinary course of business,
in the contingent obligations of the Company by way of guaranty, surety,
endorsement, indemnity,
warranty or otherwise, or any mortgage, pledge, transfer of a security interest
in, created by the Company, with respect to any of its material properties or
assets, except for liens for taxes not yet due and payable;
(d) Any waiver by the Company of a valuable right or of a material
debt owed to it;
(e) Any direct or indirect loans made by the Company to any
shareholder, employee, officer or director of the Company, other than advances
for expenses and similar items made in the ordinary course of business;
(f) Any material change in any compensation arrangement or agreement
with any employee, officer, director or shareholder;
(g) Any declaration, setting aside or payment or other distribution
in respect of any of the Company's capital stock, or any direct or indirect
redemption, purchase or other acquisition of any such stock by the Company;
(h) Any debt, obligation or liability incurred, assumed or
guaranteed by the Company, except those for immaterial amounts and for current
liabilities incurred in the ordinary course of business;
(i) Any material change in or amendment to any material contract or
agreement to which the Company is a party or by which it or any of its
properties or assets are bound, which materially and adversely affects the
business, assets, liabilities, condition (financial or otherwise), operations or
prospects of the Company, except as contemplated by this Agreement and the
Related Agreements;
(j) Any material change in any compensation arrangement or agreement
with any employee, officer, director or shareholder;
(k) Any damage, destruction or loss, whether or not covered by
insurance, materially and adversely affecting the assets, properties, financial
condition, operating results, prospects or business of the Company (as such
business is presently conducted and as it is proposed to be conducted);
(1) Any sale, assignment or transfer of any patents, trademarks,
copyrights, trade secrets or other intangible assets;
(m) Receipt of notice that there has been a loss of, or material
order cancellation by, any major customer of the Company;
(n) Any satisfaction or discharge of any lien, claim or encumbrance
or payment of any obligation by the Company, except in the ordinary course of
business or which is not material to the assets, properties, financial
condition, operating results, prospects or business of the Company (as such
business is presently conducted and as it is proposed to be conducted);
(o) Any other event or condition of any character that, either
individually or cumulatively, could materially and adversely affect the
business, assets, liabilities, condition (financial or otherwise), operations or
prospects of the Company; or
(p) Any agreement or commitment by the Company to do any of the
things described in this Section 2.14.
2.15 Intellectual Property. To the best of the Company's knowledge, the
Company owns or possesses sufficient title or legal rights to all patents,
trademarks, service marks, trade names, copyrights, trade secrets, information
and other proprietary rights and processes necessary for its business as now
conducted and as proposed to be conducted, without any known infringement of the
rights of others. There are no outstanding options, licenses or agreements of
any kind relating to the foregoing, nor is the Company bound by or a party to
any options, licenses or agreements of any kind with respect to the patents,
trademarks, service marks, trade names, copyrights, trade secrets, licenses,
information and other proprietary rights and processes of any other person or
entity other than such licenses or agreements arising from the purchase of "off
the shelf" or standard products. The Company has not received any written
communications alleging that the Company has violated or infringed or, by
conducting its business as proposed, would violate or infringe any of the
patents, trademarks, service marks, trade names, copyrights or trade secrets or
other proprietary rights of any other person or entity, nor is the Company aware
of any such violations. The Company is not aware that any of its employees is
obligated under any contract (including licenses, covenants or commitments of
arty nature) or other agreement, or subject to any judgment, decree or order of
any court or administrative agency, that would interfere with their duties to
the Company or that would conflict with the Company's business as proposed to be
conducted. Neither the execution nor delivery of this Agreement and the Related
Agreements, nor the carrying on of the Company's business by the employees of
the Company, nor the conduct of the Company's business as proposed will, to the
best of the Company's knowledge, conflict with or result in a breach of the
terms, conditions or provisions of, or constitute a default under, any contract,
covenant or instrument under which any employee is now obligated. The Company
does not believe it is or will be necessary to utilize any inventions, trade
secrets or proprietary information of any of its employees made prior to their
employment by the Company, except for inventions, trade secrets or proprietary
information that have been assigned to the Company.
2.16 Litigation. There is no action, suit, proceeding or investigation
pending or to the Company's knowledge, currently threatened against the Company
or its properties before any court or governmental agency, that questions the
validity of this Agreement or the Related Agreements or the right of the Company
to enter into any of such agreements, or to consummate the transactions
contemplated hereby or thereby, or which might result, either individually or in
the aggregate, in any material adverse change in the business, assets,
liabilities, condition (financial or otherwise) operations or prospects of the
Company, or any change in the current equity ownership of the Company, nor is
the Company aware that there is any basis for the foregoing. The foregoing
includes, without limitation, actions pending or threatened (or any basis
therefor known to the Company) involving the prior employment of any of the
Company's employees, their use in connection with the Company's business of any
information or techniques allegedly proprietary to any of their former
employers, or their obligations under any agreements with prior employers. The
Company is not a party or subject to the provisions of any
order, writ, injunction, judgment or decree of any court or governmental agency
or instrumentality. There is no action, suit, proceeding or investigation by the
Company currently pending or which the Company intends to initiate.
2.17 Tax Returns and Payments. The Company has filed all tax returns and
reports as required by law. These returns and reports are true and correct in
all material respects. The Company has paid all taxes and other assessments due.
2.18 Labor Agreements and Actions. The Company is not bound by or subject
to (and none of its assets or properties is bound by or subject to) any written
or oral, express or implied, contract, commitment or arrangement with any labor
union, and no labor union has requested or, to the knowledge of the Company, has
sought to represent any of the employees, representatives or agents of the
Company. There is no strike or other labor dispute involving the Company
pending, or to the knowledge of the Company, threatened, which could have a
material adverse effect on the assets, properties, financial condition,
operating results or business of the Company, nor is the Company aware of any
labor organizing activity involving its employees. Each employee of the Company
is employed on an at-will basis. To its knowledge, the Company has complied in
all material respects with all applicable state and federal equal employment
opportunity laws and with other laws related to employment. To the knowledge of
the Company, no employee of the Company, nor any consultant with whom the
Company has contracted, is in violation of any term of any employment contract,
proprietary information agreement or any other agreement relating to the right
of any such individual to be employed by, or to contract with, the Company
because of the nature of the business to be conducted by the Company that would
have a material adverse effect on the Company; and to the Company's knowledge,
the continued employment by the Company of its present employees, and the
performance of the Company's contracts with its independent contractors, will
not result in any such violation that would have a material adverse effect on
the Company. To its knowledge, the Company has not received any notice alleging
that any such violation has occurred.
2.19 Employee Benefit Plans. Except for the group insurance programs
listed in the Schedule of Exceptions, if any, the Company does not maintain any
medical, health, life, dental, short- or long-term disability, hospitalization,
accident, death benefits, or other employee benefit insurance programs, sick
leave or vacation or holiday or leave policies, profit-sharing, 401(k) or other
retirement plans, or any welfare plans (within the meaning of Section 3(1) of
ERISA) for the benefit of any current or former employees, and, except as
required by law, the Company has no liability, fixed or contingent, for health
or medical benefits to any former employee.
2.20 Rights of Registration and Voting Rights. The Company has not granted
or agreed to grant any registration rights, including piggyback rights, to any
person or entity. To the Company's knowledge, except as provided in the Voting
Agreement, no stockholder of the Company has entered into any agreements with
respect to the voting of capital shares of the Company.
2.21 Insurance. The Company has insurance policies with coverage customary
for companies similarly situated to the Company. The Company has delivered to
MiraQuest true and complete copies of all policies of insurance to which the
Company is a party or under which the Company, or any director of the Company,
is or has been covered at any time within the two (2) years preceding the date
of this Agreement.
2.22 Corporate Documents. The books of account, minute books, stock record
books, and other records of the Company, all of which have been made available
to Buyer, are complete and correct and have been maintained in accordance with
sound business practices and the requirements of Section 13(b)(2) of the
Securities Exchange Act of 1934, as amended (regardless of whether or not the
Company is subject to that Section), including the maintenance of an adequate
system of internal controls. The Certificate of Incorporation and Bylaws of the
Company are in the form made available to counsel for MiraQuest. The copy of the
minute books of the Company made available to MiraQuest contains minutes of all
meetings of directors and stockholders and all actions by written consent
without a meeting by the directors and stockholders since the date of
incorporation and reflects all actions by the directors and stockholders with
respect to all transactions referred to in such minutes accurately in all
material respects.
2.23 No Conflict. Except as set forth in the Schedule of Exceptions,
neither the execution and delivery of this Agreement nor the consummation or
performance of the Company's obligations under this Agreement will, directly or
indirectly (with or without notice or lapse of time):
(a) contravene, conflict with, or result in a violation of any
resolution adopted by the board of directors or the stockholders of the Company;
(b) contravene, conflict with, or result in a violation of, or give
any governmental body or other person the right to challenge any of the
transactions contemplated by this Agreement or to exercise any remedy or obtain
any relief under, (i) any federal, state, local, municipal, foreign,
international, multinational, or other administrative order, constitution, law,
ordinance, principle of common law, regulation, statute, or treaty or (ii) any
award, decision, injunction, judgment, order, ruling, subpoena, or verdict
entered, issued, made, or rendered by any court, administrative agency, or other
governmental body or by any arbitrator to which the Company, or any of the
assets owned or used by the Company, may be subject;
(c) contravene, conflict with, or result in a violation of any of
the terms or requirements of, or give any governmental body the right to revoke,
withdraw, suspend, cancel, terminate, or modify, any Governmental Authorization
that is held by the Company or that otherwise relates to the business of, or any
of the assets owned or used by, the Company; (d) cause MiraQuest or the Company
to become subject to, or to become liable for the payment of, any tax;
(e) cause any of the assets owned by the Company to be reassessed or
revalued by any taxing authority or other governmental body; or
(f) contravene, conflict with, or result in a violation or breach of
any provision of, or give any person the right to declare a default or exercise
any remedy under, or to accelerate the maturity or performance of, or to cancel,
terminate, or modify, any material
agreement to which the Company, or any of the assets owned or used by the
Company, may be subject.
2.24 Financial Statements. The Company has delivered to MiraQuest: (a)
balance sheets of the Company as at December 31 in each of the years 1998
through 1999, and the related statements of income, changes in stockholders'
equity, and cash flow for each of the fiscal years then ended, and (c) an
unaudited balance sheet of the Company as at March 31, 2000 (the "Interim
Balance Sheet") and the related unaudited consolidated statements of income,
changes in stockholders' equity, and cash flow for the three months then ended,
including in each case the notes thereto. Such financial statements and notes
fairly present the financial condition and the results of operations, changes in
stockholders' equity, and cash flow of the Company as at the respective dates of
and for the periods referred to in such financial statements, all in accordance
with GAAP, subject, in the case of interim financial statements, to normal
recurring year-end adjustments (the effect of which will not, individually or in
the aggregate, be materially adverse) and the absence of notes (that, if
presented, would not differ materially from those included in the Balance
Sheet); the financial statements referred to in this Section reflect the
consistent application of such accounting principles throughout the periods
involved. No financial statements of any Person other than the Company are
required by GAAP to be included in the financial statements of the Company.
Except as set forth in the Schedule of Exceptions, the Company has no
liabilities or obligations of any nature (whether known or unknown and whether
absolute, accrued, contingent, or otherwise) except for liabilities or
obligations reflected or reserved against in the Balance Sheet or the Interim
Balance Sheet and current liabilities incurred in the Ordinary Course of
Business since the respective dates thereof.
2.25 Employees. Set forth in the Schedule of Exceptions is a complete and
accurate list of the following information for each employee or director of the
Company, including each employee on leave of absence or layoff status: employer;
name; job title; current compensation paid or payable and any change in
compensation since January 1, 2000; vacation accrued; and service credited for
purposes of vesting and eligibility to participate under the Company's pension,
retirement, profit-sharing, thrift-savings, deferred compensation, stock bonus,
stock option, cash bonus, employee stock ownership (including investment credit
or payroll stock ownership), severance pay, insurance, medical, welfare, or
vacation plan, other employee pension benefit plan or employee welfare benefit
plan, or any other employee benefit plan or any director plan. No employee or
director of the Company is a party to, or is otherwise bound by, any agreement
or arrangement, including any confidentiality, noncompetition, or proprietary
rights agreement, between such employee or director and any other person that in
any way adversely affects or will affect (i) the performance of his duties as an
employee or director of the Company, or (ii) the ability of the Company to
conduct its business. To the Company's knowledge, no director, officer, or other
key employee of the Company intends to terminate his employment with the
Company.
2.26 Full Disclosure. This Agreement, the Exhibits hereto, the Related
Agreements and all other documents delivered by the Company to MiraQuest or
their attorneys or agents in connection herewith or therewith or with the
transactions contemplated hereby or thereby, taken as a whole, do not contain
any untrue statement of a material fact nor, to the Company's knowledge, omit to
state a material fact necessary in order to make the statements contained herein
or therein not misleading in light of the circumstances under which they were
made. To the Company's knowledge, other than matters of a general economic
nature, there are not facts which (individually or in the aggregate) materially
affect the business, assets, liabilities, financial condition, prospects or
operations of the Company that have not been set forth in this Agreement, the
Related Agreements, the Exhibits hereto, or in other documents delivered to
MiraQuest or their attorneys or agents in connection herewith.
2.27 Investment Company Act. The Company is not, and will not be as a
result of the transaction contemplated in this Agreement, a company required to
be registered under the Investment Company Act of 1940.
2.28 Purchase Entirely for Own Account. This Agreement is made with the
Company in reliance upon the Company's representation to MiraQuest, which by the
Company's execution of this Agreement, the Company hereby confirms, that the
Units to be acquired by the Company will be acquired for investment for the
Company's own account, not as a nominee or agent, and not with a view to the
resale or distribution of any part thereof, and that the Company has no present
intention of selling, granting any participation in, or otherwise distributing
the same, except the Company may, subject to the restrictions set forth in
Section 2.30 below, transfer the Units to a person or entity that directly or
indirectly, through one or more intermediaries, controls or is under common
control with the Company. By executing this Agreement, the Company further
represents that the Company does not presently have any contract, undertaking,
agreement or arrangement with any person to sell, transfer or grant
participation to such person or to any third person, with respect to any of the
Units. The Company has not been formed for the specific purpose of acquiring the
Units.
2.29 Disclosure of Information. The Company represents that it has had an
opportunity to discuss MiraQuest's business, management, financial affairs and
the terms and conditions of the offering of the Units with MiraQuest's
management and has had an opportunity to review MiraQuest's books, records and
facilities and to obtain additional information necessary to verify the accuracy
of the information supplied or to which it has access. The Company understands
that such discussions, as well as any written information delivered by MiraQuest
to the Company, were intended to describe the aspects of MiraQuest's business
that it believes to be material. The Company represents and acknowledges that it
has been solely responsible for its own "due diligence" investigation of
MiraQuest and its management and business, for its own analysis of the merits
and risks of this investment, and for its own analysis of the fairness,
desirability, and tax consequences of the terms of the investment. The
foregoing, however, does not limit or modify the representations and warranties
of MiraQuest in Section 3 of this Agreement or the right of the Company to rely
thereon.
2.30 Restricted Securities. The Company understands that the Units have
not been, and will not be, registered under the Securities Act, by reason of a
specific exemption from the registration provisions of the Securities Act which
depends upon, among other things, the bona fide nature of the investment intent
and the accuracy of the Company's representations as expressed herein. The
Company understands that the Units are "restricted securities" under applicable
U.S. Federal and state securities laws and that, pursuant to these laws, the
Company must hold the Units indefinitely unless they are registered with the
Securities and Exchange Commission and qualified by state authorities, or an
exemption from such registration and qualification requirements is available.
The Company acknowledges that MiraQuest has no
obligation to register or qualify the Units for resale. The Company further
acknowledges that if an exemption from registration or qualification is
available, it may be conditioned on various requirements including, but not
limited to, the time and manner of sale, the holding period for the Units, and
on requirements relating to MiraQuest that are outside of the Company's control,
and which MiraQuest is under no obligation and may not be able to satisfy.
2.31 Legends. The Company understands that the Units, and any securities
issued in respect thereof or exchange therefor, may bear one or all of the
following legends:
(a) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AND HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A
FORM SATISFACTORY TO MIRAQUEST THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE
SECURITIES ACT OF 1933."
(b) Any legend set forth in the Related Agreements.
(c) Any legend required by the Blue Sky laws of any state to the
extent such laws are applicable to the shares represented by the certificate so
legended.
2.32 Knowledge and Experience. The Company, by and through its officers
and/or directors, is knowledgeable and has substantial experience in evaluating
and investing in transactions in companies similar to MiraQuest. The Company
acknowledges that MiraQuest is in the development stage and has a limited
operating history and that an investment in the Units involves a high degree of
risk. The Company is able to fend for itself in evaluating and consummating the
transactions contemplated by this Agreement, can bear the economic risk of its
investment (including a possible complete loss of such investment) for an
indefinite period of time and has such knowledge and experience in financial or
business matters that it is capable of evaluating the merits and risks of the
investment in the Units. The Company is entering into this Agreement without
knowledge of any public solicitation or general advertising by MiraQuest related
to the Units.
2.33 Principal Office. The principal office of the Company in which its
investment decision was made is located at the address of the Company set forth
on the Signature Page hereto.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF MIRAQUEST
MiraQuest hereby represents and warrants to the Company that:
3.1 Authorization. MiraQuest has all necessary power and authority under
all applicable provisions of law to execute and deliver this Agreement and the
Related Agreements, to purchase the Securities and to carry out and perform
MiraQuest's obligations under the terms of this Agreement and the Related
Agreements, as applicable. All action on MiraQuest's part required for the
lawful execution and delivery of this Agreement and the Related Agreements have
been or will be effectively taken prior to the Closing. Upon their execution and
delivery, this Agreement and the Related Agreements will be valid and binding
obligations of MiraQuest, enforceable in accordance with their respective terms,
except as enforceability may be limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of general application
affecting enforcement of creditors' rights generally; and (ii) general
principles of equity that restrict the availability of equitable remedies.
3.2 Consents. All consents, approvals, orders, authorizations,
registrations, qualifications, designations, declarations or filings with any
governmental or banking authority on the part of MiraQuest required in
connection with the consummation of the transactions contemplated in this
Agreement and the Related Agreements have been or shall have been obtained prior
to and be effective as of the Closing.
3.3 Purchase Entirely for Own Account. This Agreement is made with
MiraQuest in reliance upon MiraQuest's representation to the Company, which by
MiraQuest's execution of this Agreement, MiraQuest hereby confirms, that the
Securities to be acquired by MiraQuest will be acquired for investment for
MiraQuest's own account, not as a nominee or agent, and not with a view to the
resale or distribution of any part thereof, and that MiraQuest has no present
intention of selling, granting any participation in, or otherwise distributing
the same, except MiraQuest may, subject to the restrictions set forth in Section
3.5 below, transfer the Securities to a person or entity that directly or
indirectly, through one or more intermediaries, controls or is under common
control with MiraQuest. By executing this Agreement, MiraQuest further
represents that MiraQuest does not presently have any contract, undertaking,
agreement or arrangement with any person to sell, transfer or grant
participation to such person or to any third person, with respect to any of the
Securities. MiraQuest has not been formed for the specific purpose of acquiring
the Securities.
3.4 Disclosure of Information. MiraQuest represents that it has had an
opportunity to discuss the Company's business, management, financial affairs and
the terms and conditions of the offering of the Securities with the Company's
management and has had an opportunity to review the Company's books, records
and facilities and to obtain additional information necessary to verify the
accuracy of the information supplied or to which it has access. MiraQuest
understands that such discussions, as well as any written information delivered
by the Company to MiraQuest, were intended to describe the aspects of the
Company's business that it believes to be material. MiraQuest represents and
acknowledges that it has been solely responsible for its own "due diligence"
investigation of the Company and its management and business, for its own
analysis of the merits and risks of this investment, and for its own analysis of
the fairness, desirability, and tax consequences of the terms of the investment.
The
foregoing, however, does not limit or modify the representations and warranties
of the Company in Section 2 of this Agreement or the right of MiraQuest to rely
thereon.
3.5 Restricted Securities. MiraQuest understands that the Securities have
not been, and will not be, registered under the Securities Act, by reason of a
specific exemption from the registration provisions of the Securities Act which
depends upon, among other things, the bona fide nature of the investment intent
and the accuracy of MiraQuest's representations as expressed herein. MiraQuest
understands that the Securities are "restricted securities" under applicable
U.S. Federal and state securities laws and that, pursuant to these laws,
MiraQuest must hold the Securities indefinitely unless they are registered with
the Securities and Exchange Commission and qualified by state authorities, or an
exemption from such registration and qualification requirements is available.
MiraQuest acknowledges that the Company has no obligation to register or qualify
the Securities for resale. MiraQuest further acknowledges that if an exemption
from registration or qualification is available, it may be conditioned on
various requirements including, but not limited to, the time and manner of sale,
the holding period for the Securities, and on requirements relating to the
Company that are outside of MiraQuest's control, and which the Company is under
no obligation and may not be able to satisfy.
3.6 Legends. MiraQuest understands that the Securities, and any securities
issued in respect thereof or exchange therefor, may bear one or all of the
following legends:
(a) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A
FORM SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER
THE SECURITIES ACT OF 1933."
(b) Any legend set forth in the Related Agreements.
(c) Any legend required by the Blue Sky laws of any state to the
extent such laws are applicable to the shares represented by the certificate so
legended;
3.7 Accredited Investor. MiraQuest is an accredited investor as defined in
Rule 501(a) of Regulation D promulgated under the Securities Act and is familiar
with the foregoing Regulation D. MiraQuest is an investor in securities of
private companies and acknowledges that the Company is in the development stage
and has a limited operating history and that an investment in the Securities
involves a high degree of risk. MiraQuest is able to fend for itself in
evaluating and consummating the transactions contemplated by this Agreement, can
bear the economic risk of its investment (including a possible complete loss of
such investment) for an indefinite period of time and has such knowledge and
experience in financial or business matters that it is capable of evaluating the
merits and risks of the investment in the Securities. MiraQuest is entering into
this Agreement without knowledge of any public solicitation or general
advertising by the Company related to the Securities.
3.8 Principal Office. The principal office of MiraQuest in which its
investment decision was made is located at the address of MiraQuest set forth on
the Signature Page hereto.
SECTION 4. CONDITIONS OF MIRAQUEST'S OBLIGATIONS AT CLOSING
The obligations of MiraQuest to the Company under this Agreement are
subject to the fulfillment, on or before the Closing, of each of the following
conditions, unless otherwise waived:
4.1 Representations and Warranties True; Performance of Obligations. The
representations and warranties made by the Company in Section 2 hereof shall be
true and correct in all material respects as of the Closing Date with the same
force and effect as if they had been made as of the Closing Date, and the
Company shall have performed all obligations and conditions herein required to
be performed or observed by it on or prior to the Closing.
4.2 Qualifications; Legal Investment. All authorizations, approvals,
filings or permits, if any, of any governmental authority or regulatory body of
the United States, the States of Idaho, Texas, and Delaware, or of any other
state that are required in connection with the lawful sale and issuance of the
Securities pursuant to this Agreement shall have been duly obtained and shall be
effective on and as of the Closing Date. At the time of the Closing, the sale
and issuance of the Securities shall be legally permitted by all laws and
regulations to which MiraQuest and the Company are subject.
4.3 Related Agreements. The Company, MiraQuest and the necessary number of
respective parties thereto shall have executed and delivered each of the Related
Agreements.
4.4 Filing of Series A Preferences. The documents necessary to create the
Series A Preferences shall have been filed with and, if required, approved by
the Secretary of State of the State of Delaware.
4.5 Proceedings and Documents. All corporate and other proceedings in
connection with the transactions contemplated hereunder and all documents and
instruments incident to such transactions shall be reasonably satisfactory in
substance and form to MiraQuest, and MiraQuest shall have received all such
counterpart originals or certified or other copies of such documents as they may
reasonably request.
4.6 Approval of Board of Directors and Shareholders. The Company's Board
of Directors and, to the extent necessary, shareholders shall have approved (i)
the execution and delivery of this Agreement and the Related Agreements, (ii)
the performance of the transactions contemplated herein and therein, and (iii)
an amendment to the Company's certificate of incorporation increasing the number
of the Company's authorized common stock to 50,000,000 shares and deleting
Article XII. If necessary, the Company's shareholders shall have approved the
Series A Preferences. The Company shall provide to MiraQuest certified copies of
the resolutions of the Company's Board of Directors and shareholders authorizing
this Agreement and the Related Agreements, the transactions contemplated hereby
and thereby, the Series A Preferences, and the amendment of the Company's
certificate of incorporation.
4.7 Opinion of Company's Counsel. MiraQuest shall have received from the
Company's legal counsel, an opinion letter, addressed to MiraQuest, dated as of
the Closing Date, in substantially the form attached hereto as Exhibit G. The
opinions number 3, 4, 6(i), 6(iii), 7, 8, and 9 in Exhibit G must be given by
the Company's External Securities Counsel.
4.8 Board of Directors. Upon Closing, the authorized size of the Board of
Directors of the Company shall be seven (7) members, and the Board shall consist
of Grant Gables, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, and ▇▇▇▇ ▇▇▇▇▇▇▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
shall be appointed directors until the next annual meeting of stockholders after
the date of this Agreement. At such stockholder meeting, ▇▇▇▇ ▇▇▇▇▇▇▇▇ shall be
elected to the class of directors with a term expiring at the second annual
meeting of stockholders after the date of this Agreement and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
shall be elected to the class of directors with a term expiring at the third
annual meeting of stockholders after the date of this Agreement.
4.9 Chief Financial Officer. Upon Closing, the Company shall have hired a
Chief Financial Officer acceptable to MiraQuest and the Board of Directors of
the Company.
4.10 Approval of Budget. Upon Closing, the Company shall have delivered to
MiraQuest a one year budget by month for the Company sufficient for the Company
to execute its business plan, and MiraQuest shall have given the Company
MiraQuest's written approval of the budget.
4.11 Employment Agreements. Upon Closing, the Company shall have entered
into Employment Agreements acceptable to MiraQuest with each of the Company's
Chief Executive Officer, Chief Financial Officer, and President.
4.12 Approval by Accountant. A Certified Public Accountant, acceptable to
MiraQuest, shall have reviewed the transactions contemplated by this Agreement
and all related agreements and shall have determined that such transactions,
when taken as a whole, will be treated as a tax-free transaction pursuant to the
Internal Revenue Code of 1986, as amended.
SECTION 5. CONDITIONS OF THE COMPANY'S OBLIGATIONS AT CLOSING
The obligations of the Company to MiraQuest under this Agreement are
subject to the fulfillment, on or before the Closing, of each of the following
conditions unless otherwise waived:
5.1 Representations and Warranties. The representations and warranties of
MiraQuest contained in Section 3 shall be true and correct in all material
respects on and as of the Closing with the same effect as though such
representations and warranties had been made on and as of the date of the
Closing.
5.2 Performance. All covenants, agreements and conditions contained ill
this Agreement to be performed by MiraQuest on or prior to the Closing shall
have been performed or complied with in all material respects.
5.3 Qualifications; Legal Investment. All authorizations, approvals,
filings or permits, if any, of any governmental authority or regulatory body of
the United States, the States of Idaho, Texas and Delaware, or of any other
state that are required in connection with the lawful sale and issuance of the
Securities pursuant to this Agreement shall have been duly obtained and shall be
effective on and as of the Closing Date. At the time of the Closing, the sale
and issuance of the Securities shall be legally permitted by all laws and
regulations to which MiraQuest and the Company are subject.
5.4 Related Agreements. The Company, MiraQuest and the necessary number of
respective parties thereto shall have executed and delivered each of the Related
Agreements.
5.5 Consulting Agreements. Upon Closing, MiraQuest shall pay $50,000 to
each of ▇▇▇ ▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇ as compensation for consulting efforts on
behalf of the Company. If the Company has already made loans to ▇▇▇ ▇▇▇▇▇▇ and
▇▇▇ ▇▇▇▇▇▇ in the amounts of $25,000 each prior to the Closing, then MiraQuest
shall assume such loans and pay only $25,000 to each of ▇▇▇ ▇▇▇▇▇▇ and ▇▇▇
▇▇▇▇▇▇.
SECTION 6. ADDITIONAL COVENANTS AND AGREEMENTS OF THE PARTIES
6.1 Confidentiality. Each party hereto agrees that, except with the prior
written permission of the other party, it shall at all times keep confidential
and not divulge, furnish or make accessible to anyone any confidential
information, knowledge or data concerning or relating to the business or
financial affairs of the other party to which such party has been or shall
become privy by reason of this Agreement, discussions or negotiations relating
to this Agreement, the performance of its obligations hereunder or the ownership
of Securities purchased hereunder. The provisions of this Section 6.1 shall be
in addition to, and not in substitution for, the provisions of any separate
nondisclosure agreement executed by the parties hereto with respect to the
transactions contemplated hereby. Notwithstanding the foregoing, nothing herein
shall prevent any party from disclosing (i) such information which has been
publicly disclosed, (ii) such information which becomes available to the party
on a non-confidential basis from a source other than a party hereto, provided
that such source is not bound by a confidentiality agreement with such party,
(iii) information required to be disclosed pursuant to subpoena or other court
process or otherwise required by law and (iv) such information was known to such
party prior to its first receipt from the other party. The parties acknowledge
that MiraQuest may from time to time desire to share information about the
Company with prospective investors in MiraQuest or its affiliates, and MiraQuest
may do so upon obtaining the Company's prior consent, which consent shall not be
unreasonably withheld.
6.2 Access. Between the date of this Agreement and the Closing Date, the
Company will (a) afford MiraQuest and its representatives reasonable access to
the Company's senior personnel, properties, contracts, books and records, and
other documents and data during regular business hours, (b) furnish MiraQuest
and its representatives with copies of all such contracts, books and records,
and other existing documents and data as MiraQuest or its representatives may
reasonably request, and (c) furnish MiraQuest and its representatives with such
additional financial, operating, and other data and information as MiraQuest may
reasonably request; provided, however, that any information obtained from the
Company is subject to the terms and conditions set forth in Section 6.1 above.
6.3 Notification. Between the date of this Agreement and the Closing Date,
the Company will promptly notify MiraQuest in writing if the Company becomes
aware of any fact or condition that causes or constitutes a breach of any of the
Company's representations and warranties as of the date of this Agreement, or if
the Company becomes aware of the occurrence after the date of this Agreement of
any fact or condition that would (except as expressly contemplated by this
Agreement) cause or constitute a material breach of any such representation or
warranty had such representation or warranty been made as of the time of
occurrence or discovery of such fact or condition. Should any such fact or
condition require any change to the Schedule of Exceptions to this Agreement if
such Schedule were dated the date of the occurrence or discovery of any such
fact or condition, the Company will promptly deliver to MiraQuest a supplement
to the Schedule of Exceptions specifying such change.
6.4 No Negotiation. The Company agrees that until Closing, unless this
Agreement shall have been earlier terminated pursuant to Section 7.1 hereof, the
Company will, and the Company will cause its officers, agents and other
representatives to, (i) immediately terminate all existing discussions with any
person or entity (other than MiraQuest) concerning any sale of shares of capital
stock of the Company or similar transaction involving the Company (a "Competing
Transaction"); and (ii) shall not, nor shall it direct or authorize any of its
officers, agents or other representatives to, directly or indirectly, solicit,
initiate or participate in any way in discussion or negotiations with, or
provide any information to, any person or entity (other than MiraQuest)
concerning any Competing Transaction involving the Company which would prevent
MiraQuest's acquisition of the Securities or consummation of the transactions
contemplated hereby substantially in accordance with the terms set forth in this
Agreement.
6.5 Future Funding for the Company. After closing MiraQuest shall work in
good faith with the Company's management and board of directors to determine the
amount of funding required for the Company's optimum growth, and MiraQuest shall
in good faith work to obtain or provide such funding for the Company upon terms
and conditions acceptable to MiraQuest and the Company.
6.6 Public Company Status. Without the consent of the Company's directors
not elected by MiraQuest, MiraQuest will not take any action to (i) cause a
reverse split of the common stock before the Company's stock is traded on the
Nasdaq SmallCap Market, or (ii) cause the Company to cease to be a publicly
traded company within three years after the date of this Agreement.
6.7 MiraQuest Business Combination. MiraQuest may not transfer
substantially all of its assets, merge with another business entity, or
otherwise effect a business combination with another entity under common
control with MiraQuest unless (i) the Units will be treated in the same fashion
as the other membership units of MiraQuest, and (ii) the ownership interests in
the other entity into which the membership units are converted have the same
registration rights as the Units.
6.8 Transfer of Preferred Shares. Notwithstanding any provision of this
Agreement or the Related Agreements to the contrary, MiraQuest may transfer to
▇▇▇▇▇▇▇▇.▇▇▇, Inc. the right to participate in this transaction to the extent of
taking MiraQuest's obligation to purchase up to $500,000 worth of the Series A
preferred stock.
6.9 NASDAQ Requirements. Upon the satisfaction of all Nasdaq SmallCap
initial listing requirements (other than the net tangible asset requirement),
and upon terms and conditions satisfactory to MiraQuest in its sole discretion,
MiraQuest shall provide the Company with sufficient capital so that the Company
has the minimum net tangible assets required under NASD Rule 4310 for initial
inclusion in the Nasdaq SmallCap Stock Market. This provision shall expire nine
(9) months from the date of this Agreement and shall be used only to satisfy the
minimum net tangible asset requirement under NASD Rule 4310 and shall not be
utilized for any other corporate purposes.
6.10 Investment Company Act. The Company shall take all necessary and
appropriate measures to avoid registration under the Investment Company Act of
1940.
SECTION 7. TERMINATION
7.1 Termination Events. This Agreement may, by notice given prior to or at
the Closing, be terminated:
(a) by either the Company or MiraQuest if a material breach of any
provision of this Agreement has been committed by the other party and such
breach has not been waived;
(b) (i) by MiraQuest if any of the conditions in Section 4 has not
been satisfied as of the Closing Date or if satisfaction of such a condition is
or becomes impossible (other than through the failure of MiraQuest to comply
with its obligations under this Agreement) and MiraQuest has not waived such
condition on or before the Closing Date; or (ii) by the Company, if any of the
conditions in Section 5 has not been satisfied on the Closing Date or if
satisfaction of such a condition is or becomes impossible (other than through
the failure of the Company to comply with its obligations under this Agreement)
and the Company has not waived such condition on or before the Closing Date;
(c) by mutual consent of the Company and MiraQuest; or
(d) by the Company if the Closing has not occurred (other than
through the failure of the Company to comply fully with its obligations under
this Agreement) on or before August 15, 2000, or such later date as the parties
may agree upon.
7.2 Effect or Termination. Each party's right of termination under Section
7.1 is in addition to any other rights it may have under this Agreement or
otherwise, and the exercise of a right of termination will not be an election of
remedies. If this Agreement is terminated pursuant to Section 6.1 and Section
7.1, all further obligations of the parties under this Agreement will terminate,
except that the obligations in Section 8 will survive; provided, however, that
if this Agreement is terminated by a party because of a breach of the Agreement
by
the other party or because one or more of the conditions to the terminating
party's obligations under this Agreement is not satisfied as a result of the
other party's failure to comply with its obligations under this Agreement, the
terminating party's right to pursue all legal remedies will survive such
termination unimpaired.
SECTION 8. GENERAL PROVISIONS
8.1 Governing Law. This Agreement shall be governed in all respects by
the laws of the State of Idaho. Each of the parties hereto hereby submits to
the nonexclusive jurisdiction of the United States District Court for Idaho and
of any Idaho court sitting in Ada County, State of Idaho for the purposes of all
legal proceedings arising out of or relating to this Agreement, the Related
Agreements or the transactions contemplated hereby and thereby. Each of the
parties hereto irrevocably waives, to the fullest extent permitted by law, any
objection which it may now or hereafter have to the laying of the venue of any
such proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum.
8.2 Survival. The representations, warranties, covenants and agreements
made herein or pursuant hereto shall survive any investigation made by MiraQuest
and the Closing of the transactions contemplated hereby. All statements of fact
as to factual matters contained in any certificate or other instrument delivered
by or on behalf of the Company pursuant hereto in connection with the
transactions contemplated hereby shall be deemed to be representations and
warranties made by the Company hereunder as of the date of such certificate or
instrument.
8.3 Successors and Assigns. Except as otherwise expressly provided herein,
the provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto
and shall inure to the benefit of and be enforceable by each person who shall be
a holder of any Securities from time to time.
8.4 Entire Agreement. This Agreement, the Exhibits and Schedules hereto,
the Related Agreements, the Series A Preferences, and the other documents
delivered pursuant hereto or in connection herewith constitute the full and
entire understanding and agreement between the parties with regard to the
subject matter hereof and thereof and no party shall be liable or bound to any
other in any matter by any representations, warranties, covenants and agreements
except as specifically set forth herein and therein.
8.5 Severability. In case any provision of this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and unenforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
8.6 Amendment and Waiver.
(a) This Agreement may be amended or modified only upon the written
consent of the Company and MiraQuest.
(b) The obligations of the Company and the rights of the holders of
the Series A preferred stock and the common stock under this Agreement may be
waived only with the written consent of the holders of at least a majority of
each of the common stock and the Series A preferred stock.
8.7 Delays or Omissions. It is agreed that no delay or omission to
exercise any right, power or remedy accruing to any part, upon any breach,
default or noncompliance by another party under this Agreement, the Related
Agreements, or the Series A Preferences shall impair any such right, power or
remedy, nor shall it be construed to be a waiver of any such breach, default or
noncompliance, or any acquiescence therein, or of or in any similar breach,
default or noncompliance thereafter occurring. It is further agreed that any
waiver, permit, consent or approval of any kind or character on the Company's
and MiraQuest's part of any breach, default or noncompliance under this
Agreement, the Related Agreements, the Series A Preferences, or any waiver on
such party's part of any provision or conditions of this Agreement, the Related
Agreements, the Series A Preferences must be in writing and shall be effective
only to the extent specifically set forth in such writing. All remedies, either
under this Agreement, the Related Agreements, Charter Documents, the Series A
Preferences, or otherwise afforded to any party, shall be cumulative and not
alternative.
8.8 Notices. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given:
(a) upon personal delivery to the party to be notified;
(b) when sent by confirmed telex or facsimile if sent during normal
business hours of the recipient, if not, then on the next business day;
(c) five (5) days after having been sent by registered or certified
mail, return receipt requested, postage prepaid; or
(d) one (1) day after deposit with a nationally-recognized overnight
courier, specifying next day delivery, with written verification of receipt. All
communications shall be sent to the Company and MiraQuest at the addresses set
forth or at such other address as the Company or MiraQuest may designate by ten
(10) days' advance written notice to the other party hereto.
8.9 Expenses. All legal fees and other expenses incurred on behalf of
either party in connection with this Agreement, the documents referred to herein
and the transactions contemplated hereby and thereby shall be borne by the
respective parties incurring such expenses.
8.10 Attorneys' Fees. In the event that any dispute among the parties to
this Agreement should result in litigation, the prevailing party in such dispute
shall be entitled to recover from the losing party all fees, costs and expenses
of enforcing any right of such prevailing party under or with respect to this
Agreement, including without limitation, such reasonable fees and expenses of
attorneys and accountants, which shall include, without limitation, all fees,
costs and expenses of appeals.
8.11 Counterparts and Execution. This Agreement may be executed in one or
more counterparts, each of which will be deemed to be an original copy of this
Agreement, and all of which, when taken together, shall be deemed to constitute
one and the same instrument. Any counterpart may be delivered by facsimile;
provided, however, that attachment of such counterpart to this Agreement shall
constitute the representation and warranty of the person delivering such
signature that such person has full power and authority to attach such signature
and to deliver this Agreement. Any facsimile signature shall be replaced with an
original signature as promptly as practicable.
8.12 Titles and Subtitles. The titles of the Sections and subsections of
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
8.13 Pronouns. All pronouns contained herein and any variations thereof
shall be deemed to refer to the masculine, feminine or neuter, singular or
plural, as the identity of the parties hereto may require.
8.14 Broker's Fees. Each party represents that it neither is nor will be
obligated for any broker's or finder's fee or commission in connection with this
transaction. MiraQuest agrees to indemnify and to hold harmless the Company from
any liability for any commission or compensation in the nature of a broker's or
finder's fee (and the costs and expenses of defending against such liability or
asserted liability) for which MiraQuest or any of its officers, employees or
representatives is responsible. The Company agrees to indemnify and to hold
harmless MiraQuest from any liability for any commission or compensation in the
nature of a broker's or finder's fee (and the costs and expenses of defending
against such liability or asserted liability) for which the Company or any of
its officers, employees or representatives is responsible.
8.15 Corporate Securities Law. THESE SECURITIES HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES LAWS OF THE STATES OF IDAHO, TEXAS, OR DELAWARE, NOR
APPROVED OR DISAPPROVED BY THE DIRECTOR OF THE DEPARTMENT OF FINANCE OF THE
STATE OF IDAHO, NOR HAS THE DIRECTOR PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS OFFERING. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
8.16 Publicity. No announcement in a press release, advertisement,
professional or trade publication, mass marketing materials or otherwise to the
general public relating to the investment transaction contemplated by this
Agreement shall be made by either the Company or MiraQuest without the other
parties' prior consent, except as required by law.
[Signature Page Follows]
The parties have executed this Stock Purchase Agreement as of the date
first written above.
COMPANY:
MEDIQUIK SERVICES, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------
Name ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Title CEO
-----------------------------
Address for Notice:
------------------------------------
------------------------------------
MIRAQUEST:
MIRAQUEST VENTURES LLC
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Name ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
Title CEO
-----------------------------
Address for Notice:
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Tel. No.: 208/▇▇▇-▇▇▇▇
Facsimile No.: 208/424-9638
Exhibit A
Series A Preferences
Filed as Exhibit 3(i)-b to this Form 8K
EXHIBIT B
Schedule of Exceptions
EXHIBIT B
Schedule of Exceptions
1. Section 2.1 -- The Company operates in several foreign jurisdictions. The
Company has chosen to outsource all pharmacy fulfillment operations.
Therefore, the Company is not attempting to comply with pharmacy
legislation in those various jurisdictions. The Company believes that
compliance with state pharmacy law is the responsibility of the dispensing
pharmacy, including various taxes and fees that may be imposed in those
jurisdictions.
2. Section 2.3 - ▇▇▇▇▇▇▇▇▇.▇▇▇ is an Internet subsidiary of the Company. The
Company has recently presented a tender offer for the minority shares, and
received unanimous consent of the ▇▇▇▇▇▇▇▇▇.▇▇▇ shareholders. The Company
will consummate the transaction in July, 2000 and will include the shares
in the equity roll-forward schedule. With consummation of the transaction,
the Company will own 100% of ▇▇▇▇▇▇▇▇▇.▇▇▇. The Company issued options to
the founding ▇▇▇▇▇▇▇▇▇.▇▇▇ shareholders and Officers for their ownership
stake in ▇▇▇▇▇▇▇▇▇.▇▇▇.
3. Section 2.5 (a)-- The Company will provide a transfer agent register
dated 6/22/00 in order to comply with Exhibit F. The transfer agent
register will include shares held by institutions, and will not identify
the actual holder of the securities. (b) The Company will provide a
schedule of all holders of options and warrants as of 6/30/00 for Exhibit
F.
4. Section 2.9-- The Company has the following government authorization's to
transact business: Medicare & Medicaid in the State of Texas. The Company
also has a Texas Sales and Use Tax permit.
5. Section 2.10 -- Supplier distribution contracts which contain volume
purchase requirements could result in charge-back if purchase levels are
not achieved. The Company did not meet its purchase level requirements for
the Bayer contract during 1998/1999 and has not received any formal notice
of intent to charge-back.
6. Section 2.11, Related Party Arrangements:
a. ▇▇▇▇▇▇▇.▇▇▇ -- ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ has a 92% interest in this Internet
pharmacy marketing company. The Company has a pending business
relationship with ▇▇▇▇▇▇▇.▇▇▇. Formal documentation has not been
executed.
b. Chronic Disease Management- ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ had ownership in this
disease management marketing company. He has since given up his
ownership due to conflicts with the Company in his role as interim
Chief Executive Officer. The Company has a pending business
relationship with Chronic Disease Management (CDM). Formal
documentation has not
been executed. CDM has received commission advances of $7,500 made
out to its principal, ▇▇▇▇▇ ▇▇▇▇, against future commissions. The
Company has ceased with Advances as of June, 2000. The advances will
be repaid through a final marketing commission arrangement to be
executed in July, 2000. The Consultec contract is a CDM client.
c. Chronic Disease Solutions - ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, board member, has
interests in Chronic Disease Solutions, Greater Gulf Medical
Alliance, and Integranet. These parties have marketing agreements
with the Company
d. E-Medical Research - Dr. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇.
▇▇▇▇▇ ▇▇▇▇▇ have an interest in a new Internet clinical development
company. E-Medical may enter into a licensing arrangement with the
Company.
▇. ▇▇▇▇▇▇ College of Medicine -- Dr. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇ ▇▇▇▇▇ are on staff at Baylor College of
Medicine in senior staff positions.
f. Diabetes Associates of Texas / MediQuik Services, LLC --▇▇▇▇▇▇▇▇ and
▇▇▇▇ ▇▇▇▇▇▇ are owner's in Diabetes Associates of Texas and MediQuik
Services, LLC, each of which have conducted business with the
Company.
g. National Diabetic Pharmacy -▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
have a disclosed commission arrangement with the Company if an
acquisition transaction is consummated with National Diabetic
Pharmacy;
▇. ▇▇▇▇▇ M. Gables -- Grant Gables has pledged 50,000 shares of his
personal holdings of MediQuik common stock with First Bank Texas,
N.A. in order to secure a $50,000 revolving line of credit with the
institution on behalf of the Company. Therefore, the Company has
obligation to return those shares to Mr. Gables within 30 days of
receipt of his written request.
7. Section 2.12[a], the Company has agreed to bonus ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇.
(officer, director and general counsel) for business secured by ▇▇. ▇▇▇▇▇▇
commensurate with other Company arrangements with outside parties. ▇▇.
▇▇▇▇▇▇ would receive bonuses on a quarterly basis based on the gross
profit as a revenue percentage calculation. The Company reduced the salary
of ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, V.P of Managed Care Sales, during 1999 do to
cash requirements. ▇▇. ▇▇▇▇▇▇▇▇▇ and the Company agreed that the decrease
in salary may be made up through a future bonus arrangement, based on
performance, once the Company was able to afford such arrangement, subject
to Board of Director's approval. If approved, the Company believes the
total amount of future bonus compensation to ▇▇. ▇▇▇▇▇▇▇▇▇ would be
approximately $12,000. The Company has agreed to pay $2,500 per month to
help compensate a nurse who is working on behalf of the Company to secure
diabetes patients with Access Health Administrators, a client of the
Company. Access Healthsource, Inc. is the entity that is paid for the
nurse. The agreement is for 12 months but can be terminated with 30 days
notice.
8. Section 2.12 [c], the Company has advanced $7,500 to Mr. ▇▇▇▇▇ ▇▇▇▇
against anticipated commissions for Chronic Disease Management.
9. Section 2.12 [c], the Company has liabilities and accrued wages payables
as listed on the Company's March 31, 2000 balance sheet. The Company has
provided MiraQuest with the opportunity to review updated schedules for
Vendors and accrued wages and fee's payable as of 6/30/00.
10. Section 2.12 [f], the Company has independent contractor agreements which
protect accounts for the benefit of those parties for a certain period of
time and entitles those entities to commissions. ▇▇▇▇▇▇▇▇.▇▇▇ is the
current pharmacy partner. MediMail is the past pharmacy distribution
facility.
11. Section 2.13, Commercial Furniture Services, Inc. has a security interest
in the Company's furniture until such time the balance is paid in full to
CFSI which is scheduled for July, 2000.
12. Section 2.14 (b), ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ may become an Agent of the Company to
pursue interests with ▇▇▇▇▇▇▇▇.▇▇▇ or ▇▇▇▇▇▇▇.▇▇▇.
13. Section 2.14 (d), the Company will offset debts owed to it by Diabetes
Associates of Texas and MediQuik Services, LLC against fee accruals owed
to ▇▇▇▇▇▇ Management Group, LLC.
14. Section 2.14 (h), the Company has opened a new $50,000 revolving line of
credit with First Bank Texas, N.A.. The line of credit is secured by a
security interest in the Company's receivables and inventory. As
additional collateral, Grant Gables pledged 50,000 shares of MediQuik
common stock to help secure the line of credit.
15. Section 2.14 (m), the Company periodically receives notices from it's
customers of potential loss of booked revenue. At that point, the Company
pursues various means of collection to ascertain the true impact of such
potential loss. The Company has reserved all accounts receivable over 90
days to allow for potential losses from it's customers.
16. Section 2.14 (n), the Company has paid down a revolving line of credit
debt of $25,000 to First Bank Texas, N.A. and loans from shareholders in
the amount of $50,000 plus interest.
17. Section 2.18, the Company has a written employment agreement with ▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ dated September 7, 1999. ▇▇. ▇▇▇▇▇▇▇▇ has resigned as
Chief Executive Officer, but will continue to receive compensation as a
consultant as outlined in his agreement through the 1 year term of the
agreement.
18. Section 2.19, the Company is in the process of implementing an official
employee policy handbook, which it expects to finalize in July, 2000.
MEDIQUIK SERVICES, INC.
EMPLOYEES/DIRECTORS
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NAME TITLE Hire Compensation Change in Comp. Approx. Medical Ins.
Date Since 01/01/00 Accrued Coverage
Vacation
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Billing Office Services 4-16-00 $ 10.50/hr. No 0 Yes
------------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇ Officer/Board Member * 7/07/98 4000/mo. No 0 No
------------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇ Business Office Services, Director 1/01/00 2500/mo. No 40 hrs. Yes
------------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Product Fulfillment, Sr. V.P./ Board Member 7/07/98 8000/mo. No 40 hrs Yes
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▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Customer Service, Director 1/15/00 3500/mo. No 40 hrs Yes (thru
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇)
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Customer Service Assistant 5/31/99 8.50/hr. No 40 hrs No
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Gables Grant Executive VP/C.O.O./Board Member 7/07/98 8000/mo. No 40 hrs Yes
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▇▇▇▇▇▇▇▇▇ ▇▇▇ Customer Service Representative 5-16-00 12.50/hr. Yes 0 Pending
------------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Billing Office Services 7-01-00 10.00/hr. No 0 Pending
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Product Fulfillment Specialist 7/19/99 13.00/hr. No 40 Yes
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Holmquest Dr. Don Healthcare Counsel/Board Member * 10-05-99 5000/mo. Contract Labor - 0 No
increased from
$ 3500/mo.
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▇▇▇▇▇▇ ▇▇▇ Consultant-- term w/closing 7/15/98 -0- Yes 0 Yes
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Executive Assistant 3/06/00 3916/mo. No 0 Yes
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Interim C.E.O./Board Member 7/01/98 8000/mo. No 0 Yes
------------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Customer Service Representative 5-23-00 9.50/hr. No 0 Pending
------------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Executive Assistant, Business Development 7/05/2000 $ 3167/mo No 0 Pending
------------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Clinical Operations, Director 1/03/00 5000/mo. No 40 Yes
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▇▇▇▇▇▇ ▇▇▇ Consultant - term w/closing 7/15/98 -0- Yes 0 Yes
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Content Development, VP 3/02/00 7000/mo. No 22 hrs Yes
------------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇ Business Development; Sr. VP 6/30/99 8000/mo. No 40 hrs No
------------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ Dr. Bob Chief Medical Officer, Sr. VP * 7/15/99 5000/mo. Contract Labor - 0 No
increased from
$ 3500/mo
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▇▇▇▇▇ ▇▇▇▇ Internet Communication, VP 4/01/00 6626/mo. No 0 Yes
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Previous CEO/Board Member * 10/22/99 $ 4000/mo. Changed to 0 No
Consultant
effective 3-31-00.
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* Acting in consultant capacity.
Exhibit C
Voting Agreement
Filed as Exhibit 9 to this Form 8K
EXHIBIT D
Noncompetition Agreements
See attached.
EMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT
This Employment, Confidentiality and Noncompetition Agreement (this
"Agreement") is made and entered into as of this 1st day of August, 2000 by and
between MEDIQUIK SERVICES, INC., a Delaware corporation ("Employer"), and GRANT
M. GABLES. ("Employee").
In consideration of the mutual promises and covenants contained in
this Agreement, the receipt and legal sufficiency of which consideration are
hereby acknowledged, the parties hereby agree as follows:
1. Duties. Employer shall employ Employee and Employee shall work
for Employer in the employment position described in Exhibit A attached, which
is by this reference incorporated into and made a part of this Agreement. In
this position, Employee shall perform all assigned duties, comply with all
employment policies, and willingly obey all responsible rules, regulations and
special instructions that now exist or that may in the future be established by
Employer from time to time. Employee shall render such services and perform such
duties at such places or in such areas or territories as Employer shall direct,
provided however, that if Employer relocates Employee from Houston, Texas
without the concurrence of Employee, such action by Employer shall, at the
option of Employee, constitute a termination of Employee by Employer without
cause.
2. Employee Performance. Employee accepts employment with Employer
on the terms and conditions provided in this Agreement. Employee recognizes that
Employee owes to Employer duties of loyalty, fidelity and obedience in all
matters pertaining to such employment. Employee shall serve Employer diligently
and faithfully, shall timely perform all duties to the best of Employee's
ability and in compliance with Employer's reasonable standards of performance,
and shall devote Employee's full time and best efforts to the conduct of
Employer's business. Employee warrants that all information provided by Employee
is true and correct.
3. Compensation. In consideration for the services of Employee
rendered to Employer pursuant to the terms of this Agreement, and subject to the
full performance of Employee's obligations hereunder, Employer shall pay
Employee according to the provisions of the Employer's compensation plan as
described in Exhibit A. Employee shall receive no compensation or benefits,
including but not limited to paid holidays, paid vacation and paid health
insurance, that are not set forth in Exhibit A.
4. Employment.
A. Term of Employment. Employee's term of employment under
this Agreement shall commence on August 1st, 2000 and shall continue until the
same date two years later unless prior to that date (a) Employer, for "Cause"
(as defined below), terminates Employer's employment of Employee, or (b)
Employer and Employee mutually agree to the termination or extension of
Employee's employment, in writing signed by both of them in accordance with
Section 9(G) of this Agreement, (c) there occurs one of the four following
events the occurrence of which shall he considered a termination without cause:
1) a merger in which the Employer is not the surviving entity, 2) a sale of
substantially all of the assets of Company, 3) a transaction or series of
transactions pursuant to which the Employer adopts a plan
EMPLOYMENT, CONFIDENTIALITY & NONCOMPETITION AGREEMENT - 1
of dissolution or liquidation, or 4) any other organization, consolidation or
transaction in which current owners no longer maintain either voting control or
the ability to elect a majority of the directors of the Employer (post MiraQuest
transaction), (d) Employee provides Employer one hundred and eighty (180) days
notice of his intention to terminate his employment with Employer, or (e)
Employee becomes disabled thus impairing his ability to perform his duties,
which condition shall be treated as a termination without cause and the pay and
benefits associated with termination without cause shall apply. In the event of
Employee's giving notice of intent to resign, the Employer has the choice of
releasing Employee of his duties and obligations and continuing his compensation
and benefits for the one hundred and eighty (180) day period or requiring
Employee to continue his duties and meeting his obligations as an Employee until
the expiration of the one hundred and eighty (180) day period.
B. Termination of Employment. During the term of this
Agreement, the Employer may terminate the employment of the Employee for "Cause"
by giving the Employee written notice of such termination setting forth the
"Cause" relied upon. For the purposes of this Agreement, "Cause" shall include
but not be limited to (i) the Employee's disregard of lawful instructions of the
Employer that are consistent with the Employee's position and duties set forth
herein; (ii) the Employee's failure to perform Employee's duties in compliance
with Employer's reasonable standards of performance and not as a result of
notice of intention to resign, disability or retirement; (iii) the Employee's
willful actions which do or are likely to result unjustifiably in material
damage or embarrassment to the Employer, the Employer's reputation, or the
Employer's other legitimate business interests ; (iv) the Employee's abuse or
illegal use of alcohol or other drugs or controlled substances: (v) the
Employee's material breach of any of the terms or conditions of this Agreement;
(vi) the conviction of the Employee of a felony or entry of a guilty plea or
plea of nolo contendere by Employee to a felony (or any other crime that has or
might have a material adverse effect upon Employee's ability to carry out
Employee's job duties or other obligations under this Agreement); or (vii) the
Employee's theft, embezzlement or misappropriation of funds from the Employer.
In the event Employer wishes to terminate Employee's employment pursuant to
Subsection (i), (ii), (iii), (iv), or (v) above, Employer shall give to Employee
thirty (30) days' notice of Employer's intention to terminate Employee's
employment and the reason(s) for such termination. If Employee wishes to remain
employed by Employer, Employee shall during such thirty (30) day period remedy
to the reasonable satisfaction of Employer's Board of Directors the misconduct,
disregard, abuse, or other breach specified in such notice. If Employee does not
so remedy such breach to the reasonable satisfaction of Employer's Board of
Directors. then the termination shall take effect at the end of the thirty (30)
day period. A termination pursuant to Subsection (vi) or (vii) shall take effect
immediately upon the giving of notice. Achievement of desired results or
performance established as a goal by the Employer shall not be a basis of
termination for Cause. Any benefits or compensation to be earned based on
performance criteria will terminate with employee's termination whether with or
without cause.
C. Termination without Cause. Employer may terminate the
Employee's employment without Cause at any time within the Employee's first 120
days of employment upon payment to Employee of severance compensation equivalent
to compensation for 210 days of employment reduced by the compensation paid to
Employee through the date of termination. After Employee has been employed and
paid for the excess of 120 days, Employer may terminate the employment of the
Employee without Cause upon payment to Employee of
EMPLOYMENT, CONFIDENTIALITY & NONCOMPETITION AGREEMENT - 2
severance compensation equivalent to compensation for six (6) months, including
all benefits. Equity compensation is not included as component of the
termination without cause severance compensation calculation.
D. Equal Opportunity Employee. Employer is an Equal Employment
Opportunity organization and shall not discriminate against Employee on the
basis of age, color, creed, disability, marital status, national origin,
political ideology, race, religion, sex, sexual orientation, or status as a
disabled veteran or veteran of the Vietnam war era, with respect to promotion,
transfer, compensation, benefits or any other employment decision.
E. Work Environment. In addition, Employer is committed to
maintaining a positive, constructive working environment and will not tolerate
harassmnent or abuse of Employee in the workplace. If Employee feels Employee
has been subjected to discrimination, harassment or abuse of Employee in
connection with Employee's employment, Employer encourages Employee to bring any
and all such matters to the attention of Employer's chief human resources
officer and/or Board of Directors, who will conduct an investigation of all such
matters brought to their attention and take such personnel action as is
appropriate under the circumstances. Employee will not be subjected to
retaliation for submitting complaints to Employer's chief human resources
officer and/or Board of Directors.
5. Confidential Information.
A. Definition of Confidential Information. Employer is in the
business of providing chronic disease management services and other related
services, and Employer has built up an established and extensive trade and
reputation in the industry. Employer has developed and continues to develop
commercially valuable technical and non-technical information ("Confidential
Information") that is proprietary and confidential and/or constitutes Employer's
"trade secrets" as defined by the Texas Trade Secrets Act.. Such Confidential
Information, which is vital to the success of Employer's business, includes, but
is not necessarily limited to: programs, computer programs, system
documentation, data compilations, manuals, methods, techniques, processes,
patented and/or unpatented technology, research, know-how, development, designs,
devices, inventions, the identities of customers, prospective customers,
suppliers and prospective suppliers, contracts with suppliers and customers,
sales proposals, methods of sales, marketing research and data, pricing
policies, cost information, financial information, business plains, specialized
requests of Employer's customers, and other materials and documents developed by
Employer. Confidential Information also includes special hardware, product
hardware, related software and related documentation, either owned by Employer
or in Employer's possession under an agreement of nondisclosure. Through
Employee's employment, Employee may become acquainted with or contribute to the
Employer's Confidential Information through inventions, discoveries,
improvements, software development, and/or in other ways.
B. Employee Access to Confidential Information. Employee
shall: (a) access only such Confidential Information as is reasonably necessary
to perform Employee's job functions; and (b) allow access to Confidential
Information under Employee's control to only those of Employee's co-employees
whose job functions for Company reasonably necessitate access to such
Confidential Information.
EMPLOYMENT, CONFIDENTIALITY & NONCOMPETITION AGREEMENT - 3
C. Nondisclosure of Confidential Information. Employee shall
not, at any time, either during or subsequent to employment, directly or
indirectly, appropriate, disclose or divulge any Confidential Information to any
person not then employed by Employer, unless authorized or directed to do so by
Employer or required to do so by a court or other governmental entity acting
with the force of law. If Employer authorizes or directs Employee to disclose
Confidential Information to any third party, Employee must ensure that a signed
confidentiality agreement for the benefit of Employer is or has been obtained
from the third party to whom Confidential Information is being disclosed and
that all Confidential Information so disclosed is clearly marked "Confidential."
D. Return of Confidential and Other Information. All
Confidential Information provided to Employee, and all documents and things
prepared by Employee in the course of Employee's employment, including but not
necessarily limited to correspondence, drawings, blueprints, manuals, letters,
notes, lists, reports, flow-charts, computer programs, proposals, notebooks,
DayTimers, planners, calendars, schedules, discs, data tapes, financial plans
and information, business plans, and other documents and records, whether in
hard copy, magnetic media or otherwise, and any and all copies thereof, are the
exclusive property of Employer and shall be returned immediately to Employer
upon termination of employment or upon Employer's request at any time.
E. Ownership of Company Information. Employee hereby grants to
Employer, and Employer hereby accepts, the entire right, title, and interest of
Employee in and to any of the Confidential Information created or developed by
Employee or that may be created or developed by Employee during the term of the
Employee's employment by Employer (whether created or developed within or
outside the course and scope of Employee's employment by Employer), including,
but not limited to, all patents, copyrights, trade secrets, and other
proprietary rights in or based on the Confidential Information. If the
Confidential Information or any portion thereof is copyrightable, it shall be
deemed to be a "work made for hire," as such term is defined in the copyright
laws of the United States. Employee shall cooperate with Employer or its
designees and execute assignments, oaths, declarations, and other documents
prepared by Employer, to effect the terms of this Section 5(E) or to perfect or
enforce any proprietary rights resulting from or related to this Agreement. Such
cooperation and execution shall be at no additional compensation to Employee;
provided, however, Employer shall reimburse Employee for reasonable
out-of-pocket expenses incurred at the specific request of Employer.
6. Noncompetition Obligations. During the term of Employee's
employment with Employer, and for a 12 month period of time following
termination of such employment for any reason, Employee will not, directly or
indirectly, at any place in the United States, either for him/herself or on
behalf of any other person, partnership, corporation or other entity:
(a) solicit, divert, take away, or attempt to solicit,
divert or take away, any of Employer's customers or the
business or patronage of any such customer;
(b) solicit, recruit or hire any other employee of Employer;
or
EMPLOYMENT, CONFIDENTIALITY & NONCOMPETITION AGREEMENT - 4
(c) otherwise engage or become interested (as owner,
stockholder, partner, director, officer, member,
creditor, consultant, or employee) in any business in
competition with any portion of the business conducted
by Employer at any time during Employee's employment
with Employer unless such activity is set forth in
Exhibit B as an activity in which Employee is engaged on
the Effective Date of this Agreement is initiated.
Employee acknowledges that Employer is doing business throughout the United
States, that Employee is reasonably expected to have contact with Employer's
customers throughout the United States during the term of Employee's employment
with Employer, and that the national geographic scope of these covenants is
reasonably necessary to protect Employer's legitimate business interests.
7. Enforcement.
A. Reasonableness of Restrictions. Employee's compliance with
this Agreement is reasonable and necessary to protect Employer's legitimate
business interests, including but not limited to Employer's goodwill.
B. Irreparable Harm. A breach of Employee's obligations under
this Agreement will result in great, irreparable and continuing harm and damage
to Employer for which there is no adequate remedy at law.
C. Injunctive Relief. In the event Employee breaches this
Agreement, Employer shall be entitled to seek, from any court of competent
jurisdiction, preliminary and permanent injunctive relief to enforce the terms
of this Agreement, in addition to any and all monetary damages allowed by law,
against Employee.
D. Extension of Covenants. In the event Employee violates any
one or more of the covenants contained in Section 6 of this Agreement, Employee
agrees that the remaining of the term of each covenant so violated shall be
tolled during the period(s) of any such violation and the pendency of any
litigation arising out of any such violation.
E. Judicial Modification. The parties have attempted to limit
the Employee's right to compete only to the extent necessary to protect Employer
from unfair business practices and/or unfair competition. The parties recognize,
however, that reasonable people may differ in making such a determination.
Consequently, the parties hereby agree that, if the scope or enforceability of
the restrictive covenant is in any way disputed at any time, a court or other
trier of fact may modify and enforce the covenant to the extent that it believes
to be reasonable under the circumstances existing at that time.
F. Attorney Fees. In the event it becomes necessary for either
party to this Agreement to institute a suit at law or in equity for the purposes
of enforcing any of the provisions of this Agreement, the prevailing party shall
be entitled to recover said party's reasonable attorney's fees, plus court costs
and expenses, from the nonprevailing party.
EMPLOYMENT, CONFIDENTIALITY & NONCOMPETITION AGREEMENT - 5
Withholding from Final Paycheck. Employee expressly authorizes
Employer to withhold and deduct from Employee's final wages any amounts owed by
Employee to Employer at the time of the termination of employment, including but
not limited to, any draw deficiencies, reimbursement for unearned commissions,
and the value of unreturned or damaged Employer property. Employee further
expressly agrees to repay to Employer any additional sums owed by Employee to
Employer (above that which may be withheld) immediately upon termination of
Employee's employment. If the Company owes the Employee amounts exceeding those
that the Employee may owe the Company as outlined above, the Company agrees to
pay this amount at the time of the final paycheck. This amount would include all
monetary and stock compensation that may have been accrued but not paid by the
Company to Employee.
8. Indemnity. Employee warrants and represents that
Employee has not violated, is not violating, and will not violate any of the
terms or conditions of any prior employment agreement, noncompetition or other
restrictive covenant, or other agreement entered into by Employee while in the
employment of any other employer; that Employee has not given and will not give
to Employer at any time any customer list, trade secret, or any other item of
confidential information, obtained or received while in the employment of any
other employer; that Employee's employment with Employer is not restricted or
limited in any way by any such employment agreement or restrictive covenant or
by operation of any state, federal or local regulation, statute or other law of
any kind, name or nature, including but not limited to trade secret laws and
immigration laws; and that Employee is in all respects duly qualified and
eligible to work for Employer. In the event any legal or administrative action
is commenced against the Employee, Employer or both, arising out of Employee's
former employment by another employer or Employee's illegal action or violation
of one or more of the warranties or representations set forth in this section,
Employee agrees to indemnify Employer for all damages, costs and expenses,
including reasonable attorney fees, which Employer may incur and/or be required
to pay in connection with such legal or administrative action. In the event any
legal or administrative action is commenced against the Company, the Employee or
both, arising out of any matter involving the Company, Company agrees to
indemnify Employee for all damages, costs and expenses, including reasonable
attorney fees, which Employee may incur and/or be required to pay in connection
with such legal or administrative action, so long as such action does not arise
pursuant to the conduct of the Employee.
9. Miscellaneous.
A. Survival. This Agreement shall be effective as of the date
first written above and that the terms of this Agreement shall remain in full
force and effect not only during the continuation of Employee's employment, but
also after the termination of employment for any reason by Employer or Employee.
B. Waiver. Failure of the Employer to exercise or otherwise
act with respect to any of its rights under this Agreement shall not be
construed as a waiver of any breach, nor prevent the Employer or Employee from
thereafter enforcing strict compliance within any and all terms of this
Agreement.
EMPLOYMENT, CONFIDENTIALITY & NONCOMPETITION AGREEMENT - 6
C. Severability. If any part of this Agreement shall be
adjudicated to be invalid or unenforceable, as to duration, territory or
otherwise, then such part shall be deemed deleted from this Agreement or
amended, as the case may be, in order to render the remainder of this Agreement
valid an enforceable.
D. Agreement Binding. This Agreement shall be binding upon and
inure to the benefit of Employer, Employer's successors and assigns, Employee
and Employee's heirs, executors, administrators and legal representatives.
E. Governing Law. This Agreement is made and entered into in
the State of Texas, where Employer has its principal place of business, and
concerns employment situated in said state. This Agreement shall be interpreted
and construed in accordance with the laws of the State of Texas.
F. Titles and Captions. All section and paragraph titles and
captions contained in this Agreement are for convenience only and shall not be
deemed part of the context nor affect the construction or interpretation of this
Agreement.
G. Entire Agreement. This Agreement contains all the
understandings and agreements between the parties concerning matters set forth
in this Agreement. The terms of this Agreement supersede any and all prior
statements, representations and agreements by or between Employer and Employee,
or either of them, concerning the matters set forth in this Agreement. Employee
acknowledges that no person who is an agent or employee of Employer may orally
or by conduct modify, delete, vary, or contradict the terms or conditions of
this Agreement or this paragraph. This Agreement may be modified only by a
written agreement signed by both parties.
Employee acknowledges that Employee has read and understands the
entire contents of this Agreement and that Employee has received a copy of this
Agreement.
EMPLOYER:
MEDIQUIK SERVICES, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Its CEO
------------------------------
EMPLOYEE:
/s/ Grant M. Gables
---------------------------------
Grant M. Gables
EMPLOYMENT, CONFIDENTIALITY & NONCOMPETITION AGREEMENT - 7
EXHIBIT A TO EMPLOYMENT, CONFIDENTIALITY
AND NONCOMPETITION AGREEMENT
DATED August 1, 2000
Employee's Job Titles: President and Chief Operating Officer
Compensation Plan:
A. Base Salary: $9,167 / month, paid biweekly to Employee.
B. Performance Based Cash Bonuses:
1. 20% of Annualized Base Salary upon MediQuik achieving two
consecutive quarters of positive operating cash flow (EBIDTA).
2. 20% of Annualized Base Salary upon MediQuik achieving 1
reportable quarter of financial profit.
C. Stock Option Program (priced at market for a term of 10 years):
1. Time Bonus:
a. 25,000 options vested at the end of the first year of
employment.
b. 6,250 options vested each quarter of the second year of
employment.
2. Performance Bonus:
a. 25,000 options vested upon MediQuik achieving two
consecutive quarters of positive operating cash flow
(EBIDTA).
b. 25,000 options vested upon MediQuik achieving 1
reportable quarter of financial profit.
Executive Benefits:
1. Health, Life and Disability Insurance, including Dental and
Vision Benefits.
2. Vacation -- 2 weeks annually accrued at 1 week for every 6
months. 3 weeks annually after first year of employment.
EMPLOYER:
MEDIQUIK SERVICES, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Its CEO
------------------------------
EMPLOYEE:
/s/ Grant M. Gables
---------------------------------
Grant M. Gables
EMPLOYMENT, CONFIDENTIALITY & NONCOMPETITION AGREEMENT - 8
ENGAGEMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT
This Confidentiality and NonCompetition Agreement (this "Agreement")
is made and entered into as of this 23rd day of August, 2000 by and between
MEDIQUIK SERVICES, INC., a Delaware corporation ("Employer"), and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, M.D. P.A. ("Chief Executive Officer"), a professional association of
which ▇▇▇▇▇▇ ▇▇▇▇▇▇, M.D. is its sole employee. ▇▇▇▇▇▇ ▇▇▇▇▇▇, M.D. will be
solely responsible for the representations and duties of the professional
association pursuant to this agreement.
In consideration of the mutual promises and covenants contained in
this Agreement, the receipt and legal sufficiency of which consideration are
hereby acknowledged, the parties hereby agree as follows:
1. Duties. Company shall contract with Chief Executive Officer and
Chief Executive Officer shall work for Company in the position described in
Exhibit A attached, which is by this reference incorporated into and made a part
of this Agreement. In this position, Chief Executive Officer shall perform all
assigned duties, comply with all employment policies, and willingly obey all
responsible rules, regulations and special instructions that now exist or that
may in the future be established by Company from time to time for Company's
Operations. Chief Executive Officer shall render such services and perform such
duties at such places or in such areas or territories as Company shall direct,
provided however, that if Company relocates Chief Executive Officer from
Houston, Texas without the concurrence of Chief Executive Officer, such action
by Company shall, at the option of Chief Executive Officer, constitute a
termination of Chief Executive Officer by Company without cause. ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ shall serve as a member of the Board of Directors of the Company during
the term of his engagement as Chief Executive Officer.
2. Chief Executive Officer Performance. Chief Executive Officer
accepts this contract with Company on the terms and conditions provided in this
Agreement. Chief Executive Officer recognizes that Chief Executive Officer owes
to Company duties of loyalty, fidelity and obedience in all matters pertaining
to such engagement. Chief Executive Officer shall serve Company diligently and
faithfully, shall timely perform all duties to the best of Chief Executive
Officer's ability and in compliance with Company's reasonable standards of
performance, and shall devote Chief Executive Officer's best efforts to the
conduct of Company's business. Chief Executive Officer warrants that all
information provided by Chief Executive Officer is true and correct.
3. Compensation. In consideration for the services of Chief
Executive Officer rendered to Company pursuant to the terms of this Agreement,
and subject to the full performance of Chief Executive Officer's obligations
hereunder, Company shall pay Chief Executive Officer according to the provisions
of the Company's compensation plan as described in Exhibit A. Chief Executive
Officer shall receive no compensation or benefits, including but not limited to
paid holidays, paid vacation and paid health insurance, that are not set forth
in Exhibit A. Chief Executive Officer is considered an "Independent Contractor"
pursuant to the terms of this agreement.
EMPLOYMENT, CONFIDENTIALITY & NONCOMPETITION AGREEMENT - 1
4. Engagement.
A. Term of Engagement. Chief Executive Officer's term of
engagement under this Agreement shall commence on August 23, 2000 and shall
continue until (a) terminated by Company, for "Cause" (as defined below, or (b)
Company and Chief Executive Officer mutually agree to the termination or
extension of Chief Executive Officer's engagement, in writing signed by both of
them in accordance with Section 9(G) of this Agreement, (c) there occurs one of
the four following events the occurrence of which shall be considered a
termination without cause: 1) a merger in which the Company is not the surviving
entity, 2) a sale of substantially all of the assets of Company, 3) a
transaction or series of transactions pursuant to which the Company adopts a
plan of dissolution or liquidation, or 4) any other organization, consolidation
or transaction in which current owners no longer maintain either voting control
or the ability to elect a majority of the directors of the Company (post
MiraQuest transaction), (d) Chief Executive Officer provides Company ninety (90)
days notice of his intention to terminate his engagement with Company, or (e)
Chief Executive Officer becomes disabled thus impairing his ability to perform
his duties, which condition shall be treated as a termination without cause and
the pay and benefits associated with termination without cause shall apply. In
the event of Chief Executive Officer's giving notice of intent to resign, the
Company has the choice of releasing Chief Executive Officer of his duties and
obligations and continuing his compensation and benefits for the ninety (90) day
period or requiring Chief Executive Officer to continue his duties and meeting
his obligations as an Chief Executive Officer until the expiration of the ninety
(90) day period.
B. Termination of Engagement. During the term of this
Agreement, the Company may terminate the engagement of the Chief Executive
Officer for "Cause" by giving the Chief Executive Officer written notice of such
termination setting forth the "Cause" relied upon. For the purposes of this
Agreement, "Cause" shall include but not be limited to (i) the Chief Executive
Officer's disregard of lawful instructions of the Company that are consistent
with the Chief Executive Officer's position and duties set forth herein; (ii)
the Chief Executive Officer's failure to perform Chief Executive Officer's
duties in compliance with Company's reasonable standards of performance and not
as a result of notice of intention to resign, disability or retirement; (iii)
the Chief Executive Officer's willful actions which do or are likely to result
unjustifiably in material damage or embarrassment to the Company, the Company's
reputation, or the Company's other legitimate business interests; (iv) the
Chief Executive Officer's abuse or illegal use of alcohol or other drugs or
controlled substances; (v) the Chief Executive Officer's material breach of any
of the terms or conditions of this Agreement; (vi) the conviction of the Chief
Executive Officer of a felony or entry of a guilty plea or plea of nolo
contendere by Chief Executive Officer to a felony (or any other crime that has
or might have a material adverse effect upon Chief Executive Officer's ability
to carry out Chief Executive Officer's job duties or other obligations under
this Agreement); or (vii) the Chief Executive Officer's theft, embezzlement or
misappropriation of funds from the Company. In the event Company wishes to
terminate Chief Executive Officer's engagement pursuant to Subsection (i), (ii),
(iii), (iv), or (v) above, Company shall give to Chief Executive Officer thirty
(30) days' notice of Company's intention to terminate Chief Executive Officer's
engagement and the reason(s) for such termination. If Chief Executive Officer
wishes to remain engaged by Company, Chief Executive Officer shall during such
thirty (30) day period remedy to the reasonable satisfaction of Company's Board
of Directors the misconduct, disregard, abuse, or other breach specified in such
notice. If Chief Executive
EMPLOYMENT, CONFIDENTIALITY & NONCOMPETITION AGREEMENT - 2
Officer does not so remedy such breach to the reasonable satisfaction of
Company's Board of Directors. then the termination shall take effect at the end
of the thirty (30) day period. A termination pursuant to Subsection (vi) or
(vii) shall take effect immediately upon the giving of notice. Achievement of
desired results or performance established as a goal by the Company shall not be
a basis of termination for Cause. Any benefits or compensation to be earned
based on performance criteria will terminate with Chief Executive Officer's
termination whether with or without cause.
C. Termination without Cause. Company may terminate the Chief
Executive Officer's engagement without Cause at any time within the Chief
Executive Officer's first 120 days of engagement upon payment to Employment of
severance compensation equivalent to compensation for 210 days of engagement
reduced by the compensation paid to Chief Executive Officer through the date of
termination. After Chief Executive Officer has been engaged and paid for the
excess of 120 days, Company may terminate the engagement of the Chief Executive
Officer without Cause upon payment to Chief Executive Officer of severance
compensation equivalent to compensation for six (6) months, including all
benefits. Equity compensation is not included as component of the termination
without cause severance compensation calculation.
D. Equal Opportunity Company. Company is an Equal Employment
Opportunity organization and shall not discriminate against Chief Executive
Officer on the basis of age, color, creed, disability, marital status, national
origin, political ideology, race, religion, sex, sexual orientation, or status
as a disabled veteran or veteran of the Vietnam war era, with respect to
promotion, transfer, compensation, benefits or any other employment decision.
E. Work Environment. In addition, Company is committed to
maintaining a positive, constructive working environment and will not tolerate
harassment or abuse of Chief Executive Officer in the workplace. If Chief
Executive Officer feels Chief Executive Officer has been subjected to
discrimination, harassment or abuse of Chief Executive Officer in connection
with Chief Executive Officer's employment, Company encourages Chief Executive
Officer to bring any and all such matters to the attention of Company's chief
human resources officer and/or Board of Directors, who will conduct an
investigation of all such matters brought to their attention and take such
personnel action as is appropriate under the circumstances. Chief Executive
Officer will not be subjected to retaliation for submitting complaints to
Company's chief human resources officer and/or Board of Directors.
5. Confidential Information.
A. Definition of Confidential Information. Company is in the
business of providing chronic disease management services and other related
services, and Company has built up an established and extensive trade and
reputation in the industry. Company has developed and continues to develop
commercially valuable technical and non-technical information ("Confidential
Information") that is proprietary and confidential and/or constitutes Company's
"trade secrets" as defined by the Texas Trade Secrets Act. Such Confidential
Information, which is vital to the success of Company's business, includes, but
is not necessarily limited to: programs, computer programs, system
documentation, data compilations, manuals, methods, techniques, processes,
patented and/or unpatented technology,
EMPLOYMENT, CONFIDENTIALITY & NONCOMPETITION AGREEMENT - 3
research, know-how, development, designs, devices, inventions, the identities of
customers, prospective customers, suppliers and prospective suppliers, contracts
with suppliers and customers, sales proposals, methods of sales, marketing
research and data, pricing policies, cost information, financial information,
business plains, specialized requests of Company's customers, and other
materials and documents developed by Company. Confidential Information also
includes special hardware, product hardware, related software and related
documentation, either owned by Company or in Company's possession under an
agreement of nondisclosure. Through Chief Executive Officer's engagement, Chief
Executive Officer may become acquainted with or contribute to the Company's
Confidential Information through inventions, discoveries, improvements, software
development, and/or in other ways.
B. Chief Executive Officer Access to Confidential Information.
Chief Executive Officer shall: (a) access only such Confidential Information as
is reasonably necessary to perform Chief Executive Officer's job functions; and
(b) allow access to Confidential Information under Chief Executive Officer's
control to only those of employee's whose job functions for Company reasonably
necessitate access to such Confidential Information.
C. Nondisclosure of Confidential Information. Chief Executive
Officer shall not, at any time, either during or subsequent to engagement,
directly or indirectly, appropriate, disclose or divulge any Confidential
Information to any person not then employed by Company, unless authorized or
directed to do so by Company or required to do so by a court or other
governmental entity acting with the force of law. If Company authorizes or
directs Chief Executive Officer to disclose Confidential Information to any
third party, Chief Executive Officer must ensure that a signed confidentiality
agreement for the benefit of Company is or has been obtained from the third
party to whom Confidential Information is being disclosed and that all
Confidential Information so disclosed is clearly marked "Confidential."
D. Return of Confidential and Other Information. All
Confidential Information provided to Chief Executive Officer, and all documents
and things prepared by Chief Executive Officer in the conduct of his duties for
Company, including but not necessarily limited to correspondence, drawings,
blueprints, manuals, letters, notes, lists, reports, flow-charts, computer
programs, proposals, notebooks, DayTimers, planners, calendars, schedules,
discs, data tapes, financial plans and information, business plans, and other
documents and records, whether in hard copy, magnetic media or otherwise, and
any and all copies thereof, are the exclusive property of Company and shall be
returned immediately to Company upon termination of engagement or upon Company's
request at any time.
E. Ownership of Company Information. Chief Executive Officer
hereby grants to Company, and Company hereby accepts, the entire right, title,
and interest of Chief Executive Officer in and to any of the Confidential
Information created or developed by Chief Executive Officer for the Company, or
that may be created or developed by Chief Executive Officer for the Company
during the term of the Chief Executive Officer's engagement by Company (as
created or developed within or outside the scope of Chief Executive Officer's
engagement by Company), including, but not limited to, all patents, copyrights,
trade secrets, and other proprietary rights in or based on the Confidential
Information. If the Confidential Information or any portion thereof is
copyrightable, it shall be deemed to be a "work made for hire," as such
EMPLOYMENT, CONFIDENTIALITY & NONCOMPETITION AGREEMENT - 4
term is defined in the copyright laws of the United States. Chief Executive
Officer shall cooperate within Company or its designees and execute assignments,
oaths, declarations, and other documents prepared by Company, to effect the
terms of this Section 5(E) or to perfect or enforce any proprietary rights
resulting from or related to this Agreement. Such cooperation and execution
shall be at no additional compensation to Chief Executive Officer; provided,
however, Company shall reimburse Chief Executive Officer for reasonable
out-of-pocket expenses incurred at the specific request of Company. Company in
turn recognizes that Chief Executive Officer is engaged in other companies and
with other, separate responsibilities, and that, in the course of such separate
engagement he may develop or extend confidential information applicable to such
companies that is not part of his duties within this contract and to which
Company has no right, title or interest. Such recognition shall not be construed
to alter the duties of Chief Executive Officer as set forth in Section 2 of this
agreement.
6. NonCompetition Obligations. During the term of Chief Executive
Officer's engagement with Company, and for a 12 month period of time following
termination of such engagement for any reason, Chief Executive Officer will not,
directly or indirectly, at any place in the United States, either for
him/herself or on behalf of any other person, partnership, corporation or other
entity:
(a) solicit, divert, take away, or attempt to solicit,
divert or take away, any of Company's customers or the
business or patronage of any such customer;
(b) solicit, recruit or hire any other Employee of Company;
or
(c) otherwise engage or become interested (as owner,
stockholder, partner, director, officer, member,
creditor, consultant, or employee) in any business in
competition with any portion of the business conducted
by Company at any time during Chief Executive Officer's
employment with Company unless such activity is set
forth in Exhibit B as an activity in which Chief
Executive Officer is engaged on the Effective Date of
this Agreement is initiated.
Chief Executive Officer acknowledges that Company is doing business throughout
the United States, that Chief Executive Officer is reasonably expected to have
contact with Company's customers throughout the United States during the term of
Chief Executive Officer's employment with Company, and that the national
geographic scope of these covenants is reasonably necessary to protect Company's
legitimate business interests.
7. Enforcement.
A. Reasonableness of Restrictions. Chief Executive Officer's
compliance with this Agreement is reasonable and necessary to protect Company's
legitimate business interests, including but not limited to Company's goodwill.
EMPLOYMENT, CONFIDENTIALITY & NONCOMPETITION AGREEMENT - 5
B. Irreparable Harm. A breach of Chief Executive Officer's
obligations under this Agreement will result in great, irreparable and
continuing harm and damage to Company for which there is no adequate remedy at
law.
C. Injunctive Relief. In the event Chief Executive Officer
breaches this Agreement, Company shall be entitled to seek, from any court of
competent jurisdiction, preliminary and permanent injunctive relief to enforce
the terms of this Agreement, in addition to any and all monetary damages allowed
by law, against Chief Executive Officer.
D. Extension of Covenants. In the event Chief Executive
Officer violates any one or more of the covenants contained in Section 6 of this
Agreement, Chief Executive Officer agrees that the remaining of the term of each
covenant so violated shall be tolled during the period(s) of any such violation
and the pendency of any litigation arising out of any such violation.
E. Judicial Modification. The parties have attempted to limit
the Chief Executive Officer's right to compete only to the extent necessary to
protect Company from unfair business practices and/or unfair competition. The
parties recognize, however, that reasonable people may differ in making such a
determination. Consequently, the parties hereby agree that, if the scope or
enforceability of the restrictive covenant is in any way disputed at any time, a
court or other trier of fact may modify and enforce the covenant to the extent
that it believes to be reasonable under the circumstances existing at that time.
F. Attorney Fees. In the event it becomes necessary for either
party to this Agreement to institute a suit at law or in equity for the purposes
of enforcing any of the provisions of this Agreement, the prevailing party shall
be entitled to recover said party's reasonable attorney's fees, plus court costs
and expenses, from the nonprevailing party.
G. Withholding from Final Paycheck. Chief Executive Officer
expressly authorizes Company to withhold and deduct from Chief Executive
Officer's final wages any amounts owed by Chief Executive Officer to Company at
the time of the termination of employment, including but not limited to, any
draw deficiencies, reimbursement for unearned commissions, and the value of
unreturned or damaged Company property. Chief Executive Officer further
expressly agrees to repay to Company any additional sums owed by Chief Executive
Officer to Company (above that which may be withheld) immediately upon
termination of Chief Executive Officer's engagement. If the Company owes the
Chief Executive Officer amounts exceeding those that the Chief Executive Officer
may owe the Company as outlined above, the Company agrees to pay this amount at
the time of the final paycheck. This amount would include all monetary and stock
compensation that may have been accrued but not paid by the Company to ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, whether acting in the role of Chief Executive Officer or prior roles of
Medical Director and Chief Medical Officer.
Indemnity. Chief Executive Officer warrants and represents
that Chief Executive Officer has not violated, is not violating, and will not
violate any of the terms or conditions of any prior employment agreement,
noncompetition or other restrictive covenant, or other agreement entered into by
Chief Executive Officer while in the employment of any other employer; that
Chief Executive Officer has not given and will not give to Company at any time
EMPLOYMENT, CONFIDENTIALITY & NONCOMPETITION AGREEMENT - 6
any customer list, trade secret, or any other item of confidential information,
obtained or received while in the employment of any other employer; that Chief
Executive Officer's engagement with Company is not restricted or limited in any
way by any such engagement agreement or restrictive covenant or by operation of
any state, federal or local regulation, statute or other law of any kind, name
or nature, including but not limited to trade secret laws and immigration laws;
and that Chief Executive Officer is in all respects duly qualified and eligible
to work for Company. In the event any legal or administrative action is
commenced against the Chief Executive Officer, Company or both, arising out of
Chief Executive Officer's former employment by another employer or Chief
Executive Officer's illegal action or violation of one or more of the warranties
or representations set forth in this section, Chief Executive Officer agrees to
indemnify Company for all damages, costs and expenses, including reasonable
attorney fees, which Company may incur and/or be required to pay in connection
with such legal or administrative action. In the event any legal or
administrative action is commenced against the Company, the Chief Executive
Officer or both, arising out of any matter involving the Company, Company agrees
to indemnify Chief Executive Officer for all damages, costs and expenses,
including reasonable attorney fees, which Chief Executive Officer may incur
and/or be required to pay in connection with such legal or administrative
action, so long as such action does not arise pursuant to the conduct of the
Chief Executive Officer.
9. Miscellaneous.
A. Survival. This Agreement shall be effective as of the date
first written above and that the terms of this Agreement shall remain in full
force and effect not only during the continuation of Chief Executive Officer's
engagement, but also after the termination of engagement for any reason by
Company or Chief Executive Officer.
B. Waiver. Failure of the Company to exercise or otherwise act
with respect to any of its rights under this Agreement shall not be construed as
a waiver of any breach, nor prevent the Company or Chief Executive Officer from
thereafter enforcing strict compliance within any and all terms of this
Agreement.
C. Severability. If any part of this Agreement shall be
adjudicated to be invalid or unenforceable, as to duration, territory or
otherwise, then such part shall be deemed deleted from this Agreement or
amended, as the case may be, in order to render the remainder of this Agreement
valid an enforceable.
D. Agreement Binding. This Agreement shall be binding upon and
inure to the benefit of Company, Company's successors and assigns, Chief
Executive Officer and Chief Executive Officer's heirs, executors, administrators
and legal representatives.
EMPLOYMENT, CONFIDENTIALITY & NONCOMPETITION AGREEMENT - 7
E. Governing Law. This Agreement is made and entered into in
the State of Texas, where Company has its principal place of business, and
concerns engagement situated in said state. This Agreement shall be interpreted
and construed in accordance with the laws of the State of Texas.
F. Titles and Captions. All section and paragraph titles and
captions contained in this Agreement are for convenience only and shall not be
deemed part of the context nor affect the construction or interpretation of this
Agreement.
G. Entire Agreement. This Agreement contains all the
understandings and agreements between the parties concerning matters set forth
in this Agreement. The terms of this Agreement supersede any and all prior
statements, representations and agreements by or between Company and Chief
Executive Officer, or either of them, concerning the matters set forth in this
Agreement. Chief Executive Officer acknowledges that no person who is an agent
or Chief Executive Officer of Company may orally or by conduct modify, delete,
vary, or contradict the terms or conditions of this Agreement or this paragraph.
This Agreement may be modified only by a written agreement signed by both
parties.
Chief Executive Officer acknowledges that Chief Executive Officer
has read and understands the entire contents of this Agreement and that Chief
Executive Officer has received a copy of this Agreement.
COMPANY:
MEDIQUIK SERVICES, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Its CEO
----------------------------
CHIEF EXECUTIVE OFFICER:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D., P.A.
A Professional Association
EMPLOYMENT, CONFIDENTIALITY & NONCOMPETITION AGREEMENT - 8
EXHIBIT A TO EMPLOYMENT, CONFIDENTIALITY
AND NONCOMPETITION AGREEMENT
DATED August 22, 2000
Job Title: Chief Executive Officer
Compensation Plan:
A. Base Compensation: $10,450 / month, paid biweekly to ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, M.D., P.A., A Professional Association.
B. Performance Based Cash Bonuses payable to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, MD., PA:
1. 20% of Annualized Base Compensation upon MediQuik achieving
two consecutive quarters of positive operating cash flow
(EBIDTA).
2. 20% of Annualized Base Compensation upon MediQuik achieving 1
reportable quarter of financial profit.
C. Stock Option Program payable to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇:
1. Signing Bonus: Stock Option on 50,000 shares MediQuik Class A
Common Stock priced at market for a term of 10 years.
2. Time Bonus:
a. 50,000 options vested at the end of the first year of
engagement.
b. 12,500 options vested each quarter of the second year of
engagement.
3. Performance Bonus:
a. 50,000 options vested upon MediQuik achieving two
consecutive quarters of positive operating cash flow
(EBIDTA).
b. 50,000 options vested upon MediQuik achieving 1
reportable quarter of financial profit.
COMPANY:
MEDIQUIK SERVICES, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Its CEO
----------------------------
CHIEF EXECUTIVE OFFICER:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D., P.A.
A Professional Association
EMPLOYMENT, CONFIDENTIALITY & NONCOMPETITION AGREEMENT - 9
EXHIBIT B
1. Medical Advisory Board Appointments:
A. Vencor, Inc., Hospital Division
B. ▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
C. Compaq Computer Corp. -- Corporate Medical Director
2. Board of Directors Appointments
A. MedeCoach, Inc.
3. Professional Associations
▇. ▇▇▇▇▇▇ College of Medicine -- Associate Professor
4. Significant Owner, Officer and Board Member
A. eMedicalResearch, Inc. -- Clinical Research Firm
COMPANY:
MEDIQUIK SERVICES, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Its CEO
----------------------------
CHIEF EXECUTIVE OFFICER:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D., P.A.
A Professional Association
EMPLOYMENT, CONFIDENTIALITY & NONCOMPETITION AGREEMENT - 10
EXHIBIT E
Stock Options
The Company will provide this information upon request.
EXHIBIT F
Stockholder List
The Company will provide this information upon request.
EXHIBIT G
Opinion of Counsel
Filed as Exhibit 99(i)-c to this Form 8-K.