Exhibit 10.3
TENDER OFFER
BETWEEN TRI_NATIONAL DEVELOPMENT CORP. AND
SENIOR CARE INDUSTRIES, INC.
April 30, 2001
Mr. Merv Phelan,
President and CEO
Senior Care Industries, Inc.
410 Broadway, 2nd Floor
Laguna Niguel, CA 92651
Dear Merv:
This letter will serve as the Formal Agreement (hereinafter
"Agreement") between Tri_National Development Corp., a Wyoming publicly_listed
corporation (hereinafter "Tri_National"), and Senior Care Industries, Inc., a
Nevada publicly_listed corporation (hereinafter "Senior Care") under the terms
of which, the parties agree to complete a merger.
In furtherance of the above, the parties agree as follows:
1. Senior Care will make an all stock tender offer for up to 51% of
issued and outstanding common stock of Tri_National through the filing of a Form
T.O. to the U.S. Securities and Exchange Commission not later than May 14, 2001,
based on one (1) share of Senior Care common stock for three (3) shares of
Tri_National common stock, with one additional common stock purchase warrant,
giving the holder the right to buy an additional common share of Senior Care at
a price of $1.00 for a period one year.
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FORMAL AGREEMENT
2. Immediately after closing, the new management of Senior Care will
make every reasonable effort to register the Tender Offer through a S_4
Registration Statement, or other appropriate registration statement to the U.S.
Securities and Exchange Commission.
3. Immediately after closing, the new management of Senior Care will
make every reasonable effort to file a S_B2 registration statement to the U.S.
Securities and Exchange Commission for additional fund raising. Tri_National
will make every reasonable effort to convert its existing $15,000,000 S_B2
registered line of credit with Wall Street Financial Group for the benefit of
Senior Care.
4. Tri_National will assist Senior Care in compiling required
information as required by Senior Care, in its sole judgment, for the
preparation of all relevant documents and information. Senior Care will assist
Tri_National in compiling required information as required by Tri_National, in
its sole judgment, for the preparation of all relevant documents and
information, including, but not limited to the following:
1. Break down of outstanding class(es) of preferred and common
stock, authorized and issued and outstanding with terms, conditions and
rights;
2. list of all stock options and warrants issued and
outstanding;
3. any and all S_8 stock registered or in process;
4. any and all consulting and employment contracts.
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FORMAL AGREEMENT
5. This engagement letter shall inure to the benefit of and be binding
upon the parties hereto and their successors and assigns. The provisions of this
engagement letter are severable, and in the event that any provision of this
engagement letter shall be held to be invalid, illegal, or unenforceable, the
validity, legality, and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby. No agreement changing, modifying,
amending, extending, superseding, or discharging this engagement letter or any
provision hereof shall be valid or enforceable unless it is in writing and is
dated and signed by duly authorized representatives of both Senior Care and
Tri_National.
6. Tri_National shall indemnity and hold harmless Senior Care and its
directors, officers and employees to the full extent permitted by law, from and
against all claims, damages, losses and liabilities (including, without
limitation, reasonable attorneys' fees and expenses) arising out of or based
upon this engagement letter or any financing, including without limitation, any
misstatement or omission, or alleged misstatement or omission, in an offering
memorandum or any other materials supplied or approved by Senior Care, except
Senior Care shall not be liable for any claim, damage, loss or liability to the
extent that it is finally determined to have resulted from Senior Care's
negligence, bad faith, willful misconduct, or breach of this engagement
agreement. Senior Care shall indemnify and hold harmless Tri_National and its
directors, officers, employees, stockholders, attorneys and agents to the
fullest extent permitted by law, from and against all claims, damages, losses
and liabilities including, without limitation, reasonable attorneys' fees and
expenses arising out of or based upon Tri_National's gross negligence, bad faith
or willful misconduct including without limitation a breach of this engagement
letter, or arising out of or based upon any failure by Tri_National, in
connection with a financing that involves an offering of securities, to ensure
that such offering meets the offering requirements necessary to rely upon the
exemption from registration provided by Securities and Exchange Commission Rule
506, or any other exemptions required from registration or qualification of the
offering of Securities under applicable federal and state securities laws, or
(c) arising out of or based upon any distribution or dissemination of
information by Tri_National which has not been previously approved by Senior
Care.
7. Any controversy or claim arising out of or relating to this
Agreement, or the alleged breach hereof, shall be conclusively settled by
binding and non_appealable arbitration in San Diego County, California, in
accordance with the Commercial arbitration Rules of the American Arbitration
Association and judgment upon the award rendered (which shall include recovery
of costs and reasonable attorneys' fees by the prevailing party) may be entered
in any court having jurisdiction hereof.
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FORMAL AGREEMENT
8. Any notice, demand or request required or permitted to be given by
either party to the other party pursuant to the terms of this engagement letter
shall be in writing and shall be deemed given (i) when delivered personally or
by verifiable fax transmission (with an original to follow) on or before 5:00PM,
eastern time, on a business day or, if such day is not a business day' on the
next succeeding Business Day, (ii) on the next business day after timely
delivery to a nationally_recognized overnight courier and (iii) on the business
day actually received if deposited in the U.S. mail (certified or registered
mail, return receipt requested, postage prepaid), addressed to the parties as
follows:
IN CASE OF SENIOR CARE:
Senior Care Industries, Inc.
Mr. Mervyn A. Phelan, Sr.
Chief Executive Officer
410 Broadway, 2nd Floor
Laguna Beach, CA 92651
IN CASE OF TRI_NATIONAL:
Tri_National Development Corp.
Mr. Michael A Sunstein
President and Chief Executive Officer
Tn_National Development Corporation
480 Camino Del Rio S., Suite 140
SanDiego, CA 92108
NON_CIRCUMVENTION AND CONFIDENTIALITY AGREEMENT
Senior Care and Tri_National will execute a mutual non_circumvention
and confidentiality agreement that outlines the use of confidential information
from each party.
INITIATION OF ACTIVITIES
The activities contemplated herein will begin immediately upon receipt
of this executed engagement letter and the execution of the Non_Circumvention
and Confidentiality Agreement.
The parties hereto may at any time give written notice of change of
address, and, after such notice has been received, any notice shall thereafter
be given to such party at the changed address.
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FORMAL AGREEMENT
If the above Agreement and relating exhibits thereto are acceptable,
would you please execute the acceptance and acknowledgment hereinafter provided,
upon which this letter will become a binding agreement between us.
Sincerely,
/S/ Michael A. Sunstein
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Michael A. Sunstein,
President and CEO
ACCEPTANCE AND ACKNOWLEDGMENT:
Senior Care Industries, Inc. hereby accepts this engagement letter and
agrees to the terms and provisions herein above set forth with respect to such
engagement letter.
By: /S/ Mervyn A. Phelan, Sr.
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Mervyn A. Phelan, Sr.
Chief Executive Officer
Date: April 30, 2001