EXHIBIT A
ACQUISITION AGREEMENT
THIS AGREEMENT, effective November 20, 1997, is made and entered into by and
between:
Richard A. Kellar, a resident of the full age of majority of the state of
Florida;
(hereinafter sometimes referred to as "Kellar")
AND
Allied Health Partners, Inc., a corporation organized pursuant to the laws
of the state of Louisiana and having its principal place of business at
62100 Poole's Bluff Road, Bogalusa, Louisiana 70427;
(hereinafter sometimes referred to as "Allied")
AND
Claire Technologies, Inc., a corporation organized pursuant to the laws of
the state of Nevada and having a place of business at 7373 North Scottsdale
Road, Suite B-169, Scottsdale, Arizona 85253;
(hereinafter sometimes referred to as "Claire")
AND
Olympic Rehabilitation Services, Inc., a corporation organized pursuant to
the laws of the state of Louisiana and having its principal place of
business at 62100 Poole's Bluff Road, Bogalusa, Louisiana 70427;
(hereinafter sometimes referred to as "Olympic")
WHEREAS:
A. Claire is a company organized and existing under the laws of the State of
Nevada;
B. Claire is the owner of all of the authorized, issued and outstanding
capital stock of Olympic;
C. As of November 20, 1997, Richard A. Kellar was the sole member of: 1)
Allied Management Group, L.L.C., a limited liability company formerly organized
and existing under the laws of the State of Louisiana; 2) Health Care Partners,
L.L.C. (d/b/a Cleveland Rehabilitation Center), a limited liability company
formerly organized and existing under the
laws of the State of Louisiana; and 3) South Oaks Rehabilitation Clinic, L.L.C.,
a limited liability company formerly organized and existing under the laws of
the State of Louisiana (said limited liability companies being hereinafter
sometimes jointly referred to as the "Kellar Companies").
D. The Kellar Companies were merged into Allied Health Partners, Inc., a
Louisiana corporation, by that certain "Joint Agreement of Merger", effective
November 20, 1997, by and among Allied Health Partners, Inc. (as the surviving
corporation) and the various Kellar Companies;
E. Kellar is the owner of all of the issued and outstanding shares of the
capital stock of Allied (the "Allied Shares");
F. Claire desires to acquire Allied by way of a merger of Allied and Olympic
whereby Kellar, as the sole shareholder of Allied, will receive common stock in
Claire in exchange for the Allied Shares;
G. Kellar has agreed to accept common stock in Claire as consideration for
such merger;
H. Claire, Olympic and Allied, acting by their respective boards of directors,
have determined that it is advisable and in the best interests of Claire,
Olympic and Allied, and their respective shareholders, that Allied be merged
with Olympic (with Olympic as the surviving corporation) on the terms and
conditions hereinafter set forth;
I. The respective boards of directors of Claire, Olympic and Allied have, in
each case by the unanimous affirmative vote of the entire board, authorized and
approved this Agreement, and the Merger provided for herein;
J. Said Merger is authorized under the laws of the state of Louisiana;
K. The parties intend that the stock exchange transaction provided for herein
qualify as tax free reorganization for the shareholders of Allied under the tax
laws of the United States of America; and, specifically, that it qualify as a
statutory merger within the meaning of Internal Revenue Code Section 368 (a)(1)
(A), or a forward triangular merger within the meaning of Internal Revenue Code
Sections 368 (a)(2)(D) and 368 (a)(1)(A); and
L. In order to record the terms and conditions of the agreement among them the
aforesaid parties wish to enter into this Agreement.
NOW, THEREFORE, THIS AGREEMENT WITNESSES that, in consideration of the
foregoing, and the mutual covenants and agreements contained herein, the parties
hereto agree,
each with the other, as follows:
1. INTERPRETATION
1.1 Where used herein or in any amendments or Exhibits hereto, the following
terms shall have the following meanings:
(a) "Closing Date" means November 21, 1997;
(b) "Merger" means the statutory merger of Allied and Olympic pursuant to
the terms and conditions of the Merger Agreement;
(c) "Merger Agreement" means the Agreement and Plan of Merger, in the form
attached hereto as Exhibit "A", to be entered into by Allied and
Olympic in order to effectuate the terms and conditions of this
Agreement;
(d) "Claire Shares" means those fully paid and non-assessable common
shares of Claire to be issued to the members of the Kellar Companies
by Claire pursuant to this Agreement; and
(e) "Louisiana Act" means the Louisiana Business Corporation Law.
1.2 All dollar amounts referred to in this agreement are in United States
funds, unless expressly stated otherwise.
1.3 This Agreement shall be interpreted to give effect to the intention of the
parties that this transaction qualify as a tax-free reorganization pursuant to
Internal Revenue Code Sections 368(a)(1)(A) and 368 (a)(2)(D), and the
regulations promulgated thereunder.
2. AGREEMENT TO MERGE
2.1 Olympic and Allied and their respective shareholders hereby agree that
Allied will be merged into Olympic, with Olympic as the surviving corporation,
on the terms and conditions set forth in this Agreement and the Merger
Agreement.
2.2 The Allied Shares owned by Kellar, as the sole shareholder, will be
exchanged on the Closing Date for Three Million (3,000,000) shares of the
restricted common stock of Claire (the "Claire Shares"), to be issued as fully
paid and nonassessable.
3. PLAN OF MERGER
3.1 The Merger will be effected by a statutory merger between Allied and
Olympic to be completed on the following basis, with the intention that the
transaction qualify as a tax-free reorganization pursuant to Internal Revenue
Code Sections 368(a)(1)(A) and 368 (a)(2)(D):
(a) Olympic and Allied will enter into the Merger Agreement on the Closing
Date and a Certificate of Merger documenting the Merger, prepared
pursuant to the provisions of Section 112 F (1) of the Louisiana Act
and executed on the Closing Date, will be filed as soon as possible
thereafter with the Secretary of State of the state of Louisiana;
(b) Following the execution of the Merger Agreement, all parties hereto
will do all things required to complete the Merger on the terms and
conditions of the Merger Agreement;
(c) The Effective Date of the Merger will be the Closing Date;
(d) The Merger will be completed on the Closing Date by the surrender of
the Allied Shares to Claire by Kellar in exchange for the
consideration set forth in Section 2.2 of this Agreement.
4. WARRANTIES OF KELLAR:
4.1 The following warranties and representations shall only protect Claire
against matters actually known to Kellar or Allied and not disclosed to Claire,
and any material breach of those warranties and representations. Any warranties
and/or representations made with respect to Allied shall be deemed to include
each and all of the Kellar Companies merged into Allied pursuant to the "Joint
Agreement of Merger" referenced in the preamble of this Agreement. After the
expiration of a one year period following the Closing Date, Claire and Olympic
expressly waive any right or cause of action that each might have against Kellar
which is related to, or arises out of, any such material breach.
4.2 As a material inducement to Claire and Olympic to execute this Agreement
and to perform or cause the same to be performed, Kellar represents and warrants
to Claire and Olympic that, to his current knowledge:
(a) There are no investigations, actions, suits, charges, complaints, or
other proceedings of any character pending, threatened, or otherwise
asserted against or involving Allied, at law or in equity, or before
or by any federal, state, or other governmental division, agency, or
instrumentality, domestic or foreign; and no circumstances are known
to exist which would give rise to any such action, suit or
proceedings. Furthermore, Allied is not in default with respect to any
order or
decree of any such governmental agency or instrumentality, and Allied
is not a party to any judgments, orders, or decrees which have a
material adverse effect on its operations.
(b) He does not have any information indicating that any hospital or
other entity with which Allied has a current management or therapy
services contract intends to request the termination of, or bring any
action to terminate, such contract.
(c) On the Closing Date, Allied will have good and marketable title to all
of the property (except such items as have been sold or otherwise
disposed of in the ordinary course of business) reflected or referred
to in the balance sheet and profit and loss statement of the
corporation attached hereto as Exhibit "B", and in the respective
balance sheets and profit and loss statements of each of the Kellar
Companies as of September 30, 1997; copies of which are attached
hereto, in globo, as Exhibit "C", (said Allied and Kellar Companies'
financial information being hereinafter sometimes referred to
collectively as the "Financial Statements"). Further, such property
will be subject to no mortgage, conditional sales agreement, financing
statement, charge, lien, or encumbrance except as reflected on such
Financial Statements and with respect to which no default exists
except as shown thereon. Allied has not heretofore incurred any
obligation to dispose of any such property except in the ordinary
course of business.
(d) Allied has no any material debts, obligations, or liabilities (whether
accrued, absolute, contingent, or otherwise), of any nature,
whatsoever, not disclosed on the Financial Statements, or indicated in
the other Exhibits hereto, other than debts, obligations, and
liabilities incurred in the normal course of business of the Kellar
Companies or Allied since September 30, 1997; none of which are
material either individually or collectively.
(e) The business of Allied has been and is being conducted in all material
respects in accordance with all applicable laws, rules, and
regulations of all regulatory authorities.
(f) Prior to their merger with Allied; Allied Management Group, L.L.C.;
Health Care Partners, L.L.C.; and South Oaks Rehabilitation Clinic,
L.L.C. were limited liability companies duly organized, validly
existing, and in good standing under the laws of the State of
Louisiana. None of those limited liability companies had any
subsidiaries. The members of those respective Kellar Companies as of
the date of their merger into Allied were as set forth in paragraph C
of the preamble to this Agreement and no person or other entity, other
than Kellar, had any membership interest in any of those Companies as
of the date of that merger.
At the time of the merger of the Kellar Companies into Allied, there
were no options or purchase agreements outstanding with respect to any
of the membership interests in any of the Kellar Companies, or any
other agreements, of any sort whatsoever, which created any current or
future ownership, security, or other rights with respect to those
membership interests in favor of Kellar, or any third party. Kellar
has furnished to Claire for its examination: (i) copies of the
Articles of Organization, Operating Agreements, and any other
organizational or operational documents with respect to each of the
Kellar Companies, and (ii) the minute books of each of the Kellar
Companies containing all records required to be set forth of all
proceedings, consents, actions and meetings of the respective members
of each of those Companies. Kellar hereby expressly waives any rights
which he may have to acquire any membership interest in any of the
Kellar Companies including, without limitation, any preemptive rights,
or options or rights of first refusal.
(g) Allied is a corporation duly organized, validly existing, and in good
standing under the laws of the state of Louisiana. Allied has no
subsidiaries. The entire authorized capital stock of Allied consists
of One Hundred (100) shares of no par common stock of which One
Hundred (100) shares are presently issued and outstanding.
All such outstanding shares have been validly issued and are fully
paid and nonassessable. There are no stock options or stock purchase
agreements outstanding with respect to any Allied stock, or any other
agreements, of any sort whatsoever, which create any current or future
ownership, security, or other rights with respect to that stock in
favor of Kellar, or any third party. Kellar has furnished to Claire
for its examination: (i) copies of the Articles of Incorporation and
Bylaws of Allied, (ii) the minute books of Allied containing all
records required to be set forth of all proceedings, consents, actions
and meetings of the shareholders and board of directors, and (iii) the
stock transfer books of Allied setting forth all transfers of any
capital stock. Kellar hereby expressly waives any rights which he may
have to acquire any stock of Allied, including, without limitation,
any preemptive rights, or options or rights of first refusal, which
may be provided in the Articles of Incorporation or Bylaws of Allied,
or in any shareholder or other agreement.
(h) Allied is not a party to any written or oral collective bargaining
agreement or other contract with any labor union, and has no
employment contracts, pension or profit sharing or bonus plans for
employees, or independent contractor or consultant agreements, which
cannot be terminated by Allied on not more than sixty-one (61) days
notice. Allied has performed all obligations required to be
performed by it to date and is not in default in any material respect
under any of the contracts, leases, or other agreements to which it is
a party. All parties with which Allied has any contractual
arrangements are in compliance therewith in all material respects and
not in default thereunder.
(i) The execution, delivery, and performance of this Agreement by Kellar
does not violate any unwaived stock restrictions or agreements,
charter provisions, laws, loans, contracts, or regulations, of any
nature whatsoever, and no approval is required for such execution,
delivery and performance;
(j) Allied is not obligated or indebted to Kellar, except for any current
salaries and monthly expenses;
(k) Allied has no leases, contracts, agreements, or commitments other than
those shown on the Financial Statements described above or listed on
Exhibit "D" hereto;
(l) No representation or warranty herein by Kellar contains or will
contain any untrue statement of a material fact;
(m) The books and records of Allied and each of the Kellar Companies
correctly set out and disclose in all material respects, in accordance
with generally accepted accounting principles, the financial position
of each respective corporation or company as of the date thereof, and
all material financial transactions of Allied relating to its business
have been accurately recorded in such books and records;
(n) The Financial Statements, attached hereto as Exhibits "B" and "C",
present fairly the assets, liabilities (whether accrued, absolute,
contingent or otherwise) and the financial condition of Allied and
each of the Kellar Companies as of the date thereof;
(o) The accounts receivables shown in the Financial Statements represent
the total trade accounts receivable of Allied and each of the Kellar
Companies as of the respective dates of those statements; do not
include any debts other than trade debts; and are all due and fully
collectible within sixty (60) days of the date of the Financial
Statements, without set-off or counterclaim, except as has been
allowed for as a doubtful account receivable or as otherwise indicated
on Exhibit "E" hereto.
(p) The business of each of the Kellar Companies was carried on in the
ordinary and normal course during the period between the date of the
Financial Statements and
the merger of those Companies with Allied and will be carried on by
Allied in the ordinary and normal course after the date hereof and up
to the date of Closing.
(q) Since the date of the Financial Statements (Exhibits "B" and "C"),
neither Allied nor any of the Kellar Companies has:
(i) promised or made any distributions of any kind to Kellar;
(ii) paid or agreed to pay any additional compensation, pension,
bonus, share of profits, or other benefit to, or for the benefit
or, any employee, member, stockholder, director or officer of
any of the Kellar Companies or Allied except in the normal
course of business; or
(iii) settled any accounts receivable of a material nature at less
than face value.
(r) Allied has not guaranteed, or agreed to guarantee, any debt, liability
of other obligation or any person or other entity.
(s) Neither Allied nor Kellar is aware of any contingent tax liabilities
of any of the Kellar Companies or Allied, or of any grounds which will
prompt reassessment of any tax payable by Allied or any of those
Companies.
(t) All tax returns and reports of each of the Kellar Companies or Allied
which were required by law to be filed prior to the date of this
Agreement have been filed and are true, correct and complete. All
taxes and other government charges have been paid or accrued by each
Company and by Allied.
(u) The stock held by Kellar in Allied is free and clear of all liens,
charges, security interests and/or encumbrances.
(v) The Kellar Companies and Allied have provided to Claire complete and
true copies of all management and/or therapy service contracts entered
into in connection with the conduct of the business of each of those
Companies and Allied (the "Contracts"); which Contracts are listed on
Exhibit "F". No party is in material default or breach of any of the
Contracts and there exists no state of facts which, after notice or
lapse of time or both, would constitute such a default or breach.
Each Contract is in full force and effect and in good standing and is
enforceable in accordance with its terms. None of the Contracts is
subject to any terms or conditions not expressly set forth in such
Contract.
5. WARRANTIES OF CLAIRE:
5.1 The following warranties and representations shall only protect the Allied
and Kellar against matters actually known to Claire and not disclosed to Allied
or Kellar, and any material breach of those warranties and representations.
After the expiration of a one (1) year period following the Closing Date, Allied
and Kellar each expressly waives any right or cause of action that either of
them might have against Claire which is related to, or arises out of, any such
material breach.
5.2 As a material inducement to Kellar to execute this Agreement and to perform
or cause the same to be performed, Claire represents and warrants to Kellar, to
the best of its knowledge, information and belief, that:
(a) Claire is a publicly traded corporation duly organized, existing and
in good standing under the laws of the State of Nevada and has
corporate power to own and operate its properties and to carry on its
business. Claire has one hundred million shares of authorized common
stock and no other types or classes of stock are authorized or issued.
No more than 12,819,200 shares of such stock will be issued and
outstanding immediately prior to the Closing. There are no current
or pending restrictions on the public trading of the Claire stock and
there are no outstanding options, warrants or other agreements or
obligations, of any sort whatsoever, with respect to that stock.
Claire is currently in good standing and in compliance with all SEC
and/or other Federal and state regulatory authorities and, further,
with all applicable exchange, market and/or trading regulations
governing all public markets in which its stock is currently traded.
Claire will remain in such compliance through and after the Closing.
(b) There is no provision in the Articles of Incorporation or By-Laws of
Claire, or in any indenture, contract, or agreement to which Claire is
a party or by which Claire is bound, that: (i) prohibits the
execution and delivery by Claire of this Agreement, the Merger
Agreement or the Claire Shares, or the other instruments to be
executed by Claire pursuant hereto; or (ii) the performance by Claire
of any of the terms or conditions of this Agreement, or the Merger
Agreement or such other instruments.
(c) The execution, effectuation and delivery of this Agreement, the Merger
Agreement, and the other instruments referenced above have been duly
authorized by all necessary corporate action on the part of Claire.
(d) All statements contained in the U.S. Securities and Exchange
Commission Form 10-KSB filed for Claire for the fiscal year ended on
December 31, 1996; and in
the SEC Forms 10-QSB filed for the quarterly periods ending March 31,
1997 and June 30, 1997; respectively, are true and correct.
(e) There are no investigations, actions, suits, charges, complaints, or
other proceedings of any character pending, threatened, or otherwise
asserted against or involving Claire, at law or in equity, or before
or by any federal, state, or other governmental division, agency, or
instrumentality, domestic or foreign; and no circumstances are known
to exist which would give rise to any action, suit or proceedings.
Furthermore, Claire is not in default with respect to any order or
decree of any such governmental agency or instrumentality, and Claire
is not a party to any judgments, orders, or decrees which have a
material adverse effect on its operations.
6. COVENANTS OF CLAIRE:
6.1 Claire covenants with Kellar that at all times prior to and including the
Closing Date each representation and warranty of Claire set forth herein shall
be true and correct in all material respects and shall survive the Closing.
6.2 Claire covenants and agrees with Kellar that Claire:
(a) will duly and punctually perform all things on its part to be done or
performed under this Agreement;
(b) will at all reasonable times permit Kellar to inspect its books and
records and to inspect its properties and operations;
(c) will maintain its corporate existence in good standing and comply with
all applicable laws and regulations of the United States, or of any
state or states thereof, or of any political subdivision thereof, and
of any governmental authority;
(d) will not modify its Articles of Incorporation to increase its
authorized capital stock;
(e) will not (prior to the Closing) issue any of its authorized stock, nor
grant any options, warrants, or other agreements creating, or agreeing
to create, any current or future ownership and/or security interest in
any of such authorized stock, in excess of the total number of issued
shares specified in Section 5.2 (a), above; and
(f) will furnish Kellar, upon his request, (concurrently with the filing
and/or production of the same) with copies of all future SEC filings
and reports; all
future monthly or quarterly financial reports or statements generated
by Claire in the ordinary course of business; and any other reports,
financial or otherwise, hereafter delivered to any financial
institution or other third party by Claire.
7. COVENANTS OF KELLAR:
Kellar severally covenants with Claire and Olympic that at all times from
the date of this Agreement, to and including the Closing Date, that each
representation and warranty of Kellar set forth herein shall be true and correct
in all material respects and shall survive Closing and, further, that he will
exert his good faith efforts to insure that:
7.1 Until the Closing Date, Allied will conduct its business in the ordinary
course and will not dispose of or encumber in any manner, or permit to be
disposed of or be additionally encumbered (by any act on the part of Allied or
Kellar) any of the assets presently owned by the Allied, except in the normal
course of its business.
7.2 Allied will keep all of its insurable property and assets insured in
accordance with present practices and will maintain, preserve, and keep all
equipment, machinery, and other personal property in present condition and state
of repair, reasonable wear and damage by fire or other casualty excepted.
7.3 Allied will not modify its Articles of Incorporation; change its authorized
or issued capital stock; grant any options or commitments relating its capital
stock; issue any additional capital stock; or make any dividend or other
distribution or payment with respect to such stock.
7.4 After the execution of this Agreement, Allied will make no distribution or
payment to Kellar which arises out of, or is related to, his ownership of Allied
stock.
7.5 Except for normal annual and periodic raises in the ordinary course of
business, Allied shall not increase the compensation payable to or to become
payable to any of its officers, directors, consultants or employees without the
prior approval of Claire.
7.6 Allied shall not borrow, or agree to borrow, any money; or make any draws
against any existing loans or lines of credit, without the prior approval of
Claire.
7.7 Allied shall not enter into any lease or commitments without the prior
approval of Claire.
7.8 Allied will use its best efforts to preserve its business organization
intact and to retain the services of its present employees and consultants.
8. CLOSING:
8.1 The assignment and/or delivery of the consideration specified in Section 2,
above, and any and all other documents required by this Agreement (the
"Closing") shall take place at a location mutually agreeable to all parties, at
10:00 a.m., on November 21, 1997.
8.2 At the Closing, Kellar shall deliver to Claire a certificate of good
standing for Allied from the Secretary of State of that corporation's state of
domicile.
8.3 At the Closing, Kellar and Allied shall execute current certificates
acknowledging that the representations and warranties contained herein are true
and correct as of the Closing Date and shall survive Closing for the period set
forth is Section 4.1 hereof.
8.4 At the Closing, Kellar shall deliver the following items to Claire:
(a) The agreements of Kellar and Linda Holiman not to compete with Allied
or Olympic, or with the respective business operations of those
corporations, for a period of two (2) years following the Closing
Date, or two (2) years following the termination of their respective
employment with Allied, Olympic, or any related company, whichever
date is later, on the terms and conditions set forth in Exhibit "G"
hereto;
(b) The employment and/or consulting agreements of Richard A. Kellar and
Linda Holiman, respectively, on the terms and conditions set forth in
Exhibits "H" and "I" hereto;
(c) The written opinion of the attorney for Allied that :
(i) Allied has been duly formed, organized and is validly existing
under the laws of its state of domicile; that it has the
corporate power to own or lease its properties and to carry on
its current business operations; and that it is in good standing
with respect to any required filings with the appropriate
governmental authorities;
(ii) this Agreement has been duly and validity executed by properly
authorized officers on behalf of Allied and is a binding
obligation of Allied;
(iii) the issued and authorized capital stock of Allied is as set out
in this Agreement and all of the issued and outstanding shares
are fully paid and nonassessable;
(iv) all necessary approvals and all necessary steps and corporate
proceedings have been obtained or taken to permit the
effectuation of the transactions specified in this Agreement
and, without limiting the generality of the foregoing, that all
required proceedings Allied and its directors and shareholders
(including all matters which, in the reasonable opinion of
counsel for Claire are material in connection with the merger
transaction contemplated by this Agreement) have been taken or
are otherwise favorable to the completion of such transaction;
(v) there is no provision in any indenture, contract, or agreement
known to such counsel to which Allied is a party, or by which
Allied is bound, that prohibits or restricts the execution and
delivery by Allied of, or the performance or observance by Allied
of, the terms and conditions of this Agreement or the Merger
Agreement; and
(vi) there is no provision in any applicable Federal or State law or
regulation, including, without limitation, any rule or regulation
of the U.S. Securities and Exchange Commission and/or any
applicable "Blue Sky" or other laws or regulations of the State
of Louisiana, which prohibits or restricts the execution and
delivery by Allied of the Agreement or the Merger Agreement, or
the performance or observance by Allied of, the terms and
conditions of the same.
(d) Written consents of any client as may be required under the provisions
of any of the Contracts upon the change of ownership or control of any
of the Kellar Companies or Allied and, further, all consents from all
governmental and administrative authorities required under any permit
or license held by any of the Kellar Companies or Allied for the
conduct of their business.
(e) A certificate by the president of Allied certifying that the
representations and warranties in this Agreement are true and correct
as of the Closing Date;
(f) Certified copies of the minutes of the meetings of the stockholders
and board of directors of Allied approving this Agreement and the
Merger Agreement;
(g) The resignations, in writing, of all directors and officers of Allied;
and
(h) The Merger Agreement and Certificate of Merger, duly executed.
8.5 At the Closing, Claire shall transfer and deliver the Claire Shares, as
provided in Section
2.2 hereof, to Kellar.
8.6 At the Closing, Claire shall deliver to Kellar a favorable opinion of
Claire's attorney or attorneys, to the effect that:
(a) Claire and Olympic are corporations duly organized, existing and in
good standing under the laws of their respective state of domicile and
that each such corporation has the corporate power to own and operate
its properties and to carry on its business;
(b) This Agreement and the Merger Agreement have been duly authorized on
the part of Claire and Olympic by all necessary corporate and other
action; have been duly executed and delivered by each such
corporation; and are the legal, valid, and binding obligations of each
corporation, enforceable in accordance with their respective terms,
except as limited by laws generally affecting the enforcement of
creditors' rights;
(c) There is no provision in any indenture, contract, or agreement known
to such counsel, to which Claire or Olympic is a party or by which
Claire or Olympic is bound, that prohibits or restricts the execution
of this Agreement or the Merger Agreement or its performance or
observance of the terms and conditions of the same; and
(d) There is no provision in any applicable Federal or State law or
regulation, including, without limitation, any rule or regulation of
the U.S. Securities and Exchange Commission and/or any applicable
"Blue Sky" or other laws or regulations of the States of Nevada or
Louisiana, which prohibits or restricts the execution and delivery by
Claire or Olympic of this Agreement or the Merger Agreement, or the
performance or observance by Claire or Olympic of the terms and
conditions of the same.
8.7 At the Closing, Claire and Olympic shall execute a current certificate
acknowledging that the representations and warranties made herein by each such
corporation are true and correct as of the Closing and that the same shall
survive Closing for the period stipulated in Section 5.1 hereof.
8.8 At the Closing, Claire and Olympic shall deliver to Kellar the Merger
Agreement and the Certificate of Merger, duly executed by all necessary parties.
9. BROKERAGE:
Kellar and Claire each represent and warrant to the other that they have
had no dealings and negotiations with respect to this transaction with any other
person, firm or corporation except for officers and employees of Claire and
Allied. Claire agrees to hold Kellar harmless for brokerage in this transaction
by reason of Claire's breach of such warranty, and Allied and Kellar severally
agree to indemnify and hold Claire and Olympic harmless from any claim, demand,
or judgment made or rendered against Claire for brokerage in this transaction by
reason of the breach of such warranty by Kellar.
10. POST-CLOSING OPERATIONS:
10.1 It is understood and agreed that Claire and Olympic (by means of the
Merger) are acquiring the current business operations of Allied as a going
concern and that all parties hereto contemplate and agree that the existing
management, employees and consultants of Allied, and Allied's current business
practices and procedures shall be retained by Allied to the extent reasonably
possible and consistent with sound business judgment. Accordingly, Claire and
Olympic agree, for a period of not less than one (1) year after the Closing, to
the following:
(a) To cause Olympic to appoint the following individuals to the
designated positions (at no less than the annual salaries indicated):
Richard A. Kellar, Chief Operating Officer.....
$200,000.00 per year
Linda Holiman, Vice President for Operations.....
$200,000.00 per year
Said employment agreements shall relate to the operations of Olympic
and shall be in the forms attached hereto, respectively, as Exhibits
"H" and "I".
(b) To maintain the principal operations office of Olympic at 62100
Poole's Bluff Road, Bogalusa , Louisiana 70427, and the corporate
headquarters of Olympic at 1613 Jimmie Davis Hwy., Bossier City,
Louisiana 71112, or at such other locations as may be acceptable to
all parties.
11. CONDITIONS PRECEDENT TO CLOSING:
11.1 Each party's obligation to close the transaction contemplated herein is
conditioned upon the following:
(a) That all representations and warranties herein made by the other
parties are true and correct as of the date of the Closing;
(b) That all obligations of the other parties have been completed and/or
fulfilled as of the date of the Closing; and
(c) That all required consents from all clients of Allied and all
governmental and administrative authorities shall have been obtained
such that the change in ownership and/or control of Allied after the
Closing shall not result in the cancellation, termination, or
reduction of any right under any Contract, license or permit held by
Allied for the conduct of its business operations.
12. MISCELLANEOUS:
12.1 This Agreement shall be binding on the heirs, representatives, successors,
and assigns of the parties and the terms, covenants, warranties and
representations hereof shall survive the Closing for the periods set forth in
Sections 4.1 and 5.1 hereof. This Agreement constitutes the entire agreement of
the parties and any amendment or modification of the same must be in writing and
signed all parties.
12.2 Any notice or other communication provided for herein or given hereunder to
a party hereto shall be in writing and shall be delivered in person to such
party, or mailed by registered or certified mail, postage prepaid, addressed as
follows:
If to Kellar or Allied:
Richard A. Kellar
P. O. Box 945
Bogalusa, La 70427-0945
If to Claire or Olympic:
Jan Wallace
Scottsdale Centre
7373 North Scottsdale Road
Suite B-169
Scottsdale, Arizona 85253
or to such other address with respect to a party as such party shall notify the
others in
writing in the manner provided above.
12.3 The parties hereto agree that an announcement of this Agreement, through
joint press releases and/or other appropriate and customary means, will be made
to the public after the execution of this Agreement. Any such announcement will
be made jointly by Claire and Kellar and the language and contents of the same
shall be subject to the prior approval of both of those parties.
12.4 This Agreement is being delivered and is intended to be performed in the
State of Louisiana and shall be construed and enforced in accordance with the
laws of that state. Any other documents related to this Agreement shall also be
construed and enforced in accordance with the laws of the state of Louisiana.
12.5 This Agreement may be executed simultaneously in two (2) or more
counterparts, each of which shall be deemed an original and all of which,
together, shall constitute one and the same instrument. It shall not be
necessary that any single counterpart hereof be executed by all parties hereto
as long as at least one counterpart is executed by each party.
12.6 This Agreement supersedes, in their entirety, any and all previous
agreements of theparties with respect to the acquisition of Allied and/or the
Kellar Companies by Claire or Olympic (with the exception of any agreements
relating to the confidentiality of any information furnished to Claire
concerning the affairs of Allied or the Kellar Companies).
13. REGISTRATION OF CLAIRE SHARES:
After the expiration of a period of one (1) year after the Closing Date,
Kellar shall have the right to request the registration of, and Claire hereby
agrees to register, all or any portion of the Claire Shares received by him
pursuant to this Agreement for sale to the public pursuant to the provisions of
the applicable rules and regulations of the U.S. Securities and Exchange
Commission. Upon receipt of such a request, Claire will promptly undertake the
registration of such shares. Kellar understands that the registration of the
subject shares may be subject to certain terms and conditions imposed on Claire
by its underwriters and agree to abide by any reasonable terms and conditions so
imposed.
14. RESERVATION:
The parties reserve the right to demand specific performance of the terms
of this Agreement.
15. CONSTRUCTION:
Each of the parties hereto has agreed to the use of the particular language
of the provisions of this Agreement and the Exhibits. Accordingly, it is agreed
and understood that any questions of doubtful interpretation with respect to any
such provisions shall not be resolved solely by any rule of interpretation
against the draftsman, but rather in accordance with the fair meaning of those
provisions.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
executed, on the dates indicated below, effective November 20, 1997, in the
presence of the undersigned witnesses.
WITNESSES: CLAIRE TECHNOLOGIES, INC.
/s/ W.A. Lucky III
/s/ Linda Holiman By: /s/ Jan Wallace
-------------------------
Jan Wallace, President
November 20, 1997
WITNESSES: OLYMPIC REHABILITATION SERVICES, INC.
/s/ A.L. Blondeau
/s/ Linda Holiman By: /s/ Jan Wallace
---------------------------
Jan Wallace, President
November 20, 1997
WITNESSES: ALLIED HEALTH PARTNERS, INC.
/s/ A.L. Blondeau By: /s/ Richard A. Kellar
----------------------------
Richard A. Kellar, President
November 20, 1997
/s/ Linda Holiman
WITNESSES:
/s/ W. A. Lucky III /s/ Richard A. Kellar
-------------------------------
Richard A. Kellar, Individually
November 20, 1997
/s/ Linda Holiman
ACQUISITION AGREEMENT
TABLE OF CONTENTS
1. INTERPRETATION PAGE 3
2. AGREEMENT TO MERGER PAGE 3
3. PLAN OF MERGER PAGE 3
4. WARRANTIES OF KELLAR PAGE 4
5. WARRANTIES OF CLAIRE PAGE 8
6. COVENANTS OF CLAIRE PAGE 10
7. COVENANTS OF KELLAR PAGE 10
8. CLOSING PAGE 11
10. BROKERAGE PAGE 14
11. POST CLOSING OPERATIONS PAGE 14
12. CONDITIONS PRECEDENT TO CLOSING PAGE 15
13. MISCELLANEOUS PAGE 15
12. REGISTRATION OF CLAIRE SHARES PAGE 17
13. RESERVATION PAGE 17
14. CONSTRUCTION PAGE 17
ACQUISITION AGREEMENT
SUMMARY OF EXHIBITS
EXHIBIT "A" AGREEMENT AND PLAN OF MERGER
EXHIBIT "B" BALANCE SHEET, PROFIT AND LOSS STATEMENT OF ALLIED
AND CONSOLIDATED ASSET LIST
EXHIBIT "C" BALANCE SHEET, PROFIT AND LOSS STATEMENT OF EACH OF
THE KELLAR COMPANIES
EXHIBIT "D": LIST OF AGREEMENTS, CONTRACTS, LEASES, ETC.
EXHIBIT "E": DELINQUENT AND/OR DOUBTFUL ACCOUNT RECEIVABLES
EXHIBIT "F": MANAGEMENT AND/OR THERAPY SERVICE CONTRACTS
EXHIBIT "G": NON-COMPETE AGREEMENT
EXHIBIT "H": RICHARD A. KELLAR EMPLOYMENT AGREEMENT
EXHIBIT "I": LINDA HOLIMAN CONSULTANT AGREEMENT