EXHIBIT D
ACQUISITION AGREEMENT
THIS AGREEMENT, effective November 20, 1997, is made and entered into by and
among:
W. A. Lucky, III, a resident of the full age of majority of the state of
Florida;
A. L. Blondeau, Jr., a resident of the full age of majority of the state of
Louisiana; and
William H. Means, Jr., a resident of the full age of majority of the state of
Louisiana;
(hereinafter sometimes jointly called the "Orion Shareholders")
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 called "Claire")
AND
Orion Preventive Medicine, Inc., a corporation organized pursuant to the laws of
the state of Louisiana and having its principal place of business at 1613 Jimmie
Davis Highway, Suite No. 1, Bossier City, Louisiana 71112;
(hereinafter sometimes called "Orion")
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 called "Olympic")
WHEREAS:
A. Claire is a company organized and existing under the laws of the State of
Nevada;
B. The Orion Shareholders are the owners of all of the issued and outstanding
shares of Orion, a corporation organized and existing under the laws of the
State of Louisiana; (said shares being hereinafter sometimes referred to as the
"Orion Shares");
C. Claire is the owner of all of the issued and outstanding shares of Olympic
Rehabilitation Services, Inc. ("Olympic"), a corporation organized and existing
under the laws of the State of Louisiana;
D. Claire wishes to acquire Orion by way of a merger of Orion and Olympic in
which the shareholders of Orion will receive common stock in Claire in exchange
for the Orion Shares;
E. The Orion Shareholders have each agreed to accept common stock in Claire as
consideration for the acquisition of Orion by Claire, via Olympic, by way of a
merger of Orion and Olympic;
F. Claire, Olympic and Orion, acting by their respective boards of directors,
have determined that it is advisable and in the best interests of their
respective shareholders that Orion and Olympic be merged on the terms and
conditions hereinafter set forth;
G. This Agreement and the Merger Agreement have been approved by the
respective Boards of Directors and shareholders of Olympic and Orion in the
manner provided by applicable law;
H. The parties intend that the stock portion of this transaction qualify as a
tax-free reorganization for the shareholders of Orion under the tax laws of the
United State 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
I. In order to record the terms and conditions of the agreement among them the
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 Orion and Olympic on 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 between Orion and
Olympic
pursuant to the terms and conditions hereof;
(d) "Claire Shares" means those fully paid and non-assessable common
shares of Claire to be issued to the Orion Shareholders by Claire
pursuant to this Agreement;
(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 Orion and their respective Shareholders hereby agree that Orion
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 to be
executed by Orion and Olympic pursuant to Section 3 hereof.
2.2 The Orion Shares owned by the Orion Shareholders will be exchanged on the
Closing Date for Seven Million Five Hundred Thousand (7,500,000) restricted
common shares of Claire (the "Claire Shares"), to be issued as fully paid and
nonassessable shares.
3. PLAN OF MERGER
3.1 The Merger will be effected by a statutory merger between Orion 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 Orion 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,
will be filed on that same date 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 Orion Shares to Claire by the Orion Shareholders in exchange for
the consideration set forth in Section 2.2 of this Agreement.
4. WARRANTIES OF ORION SHAREHOLDERS:
4.1 The following warranties and representations shall only protect Claire
against matters actually known to an Orion Shareholder and not disclosed to
Claire, and any material breach of those warranties and representations. After
February 1, 1998, Claire expressly waives any right or cause of action that it
might have against any Orion Shareholders which is related to, or arises out of,
any such material breach.
4.2 As a material inducement to Claire to execute this Agreement and to perform
or cause the same to be performed, each of the Orion Shareholders represents and
warrants to Claire 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 Orion, 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, Orion is not in default with respect to any
order or decree of any such governmental agency or instrumentality,
and Orion 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 with
which Orion has a current therapy contract intends to request the
termination of, or bring any action to terminate, such contract.
(c) Orion has no material debts, obligations, or liabilities (whether
accrued, absolute, contingent, or otherwise) of any nature other than
those obligations and liabilities arising out of its therapy services
agreements with various hospitals.
(d) The business of Orion has been and is being conducted in all material
respects in accordance with all applicable laws, rules, and
regulations of all regulatory authorities.
(e) Orion is a corporation duly organized, validly existing, and in good
standing under the laws of the State of Louisiana. Orion has no
subsidiaries. The entire authorized capital stock of Orion consists of
the following:
Ten Thousand shares of no par common stock of which Ten Thousand
shares (in the amounts set forth on Exhibit "B" hereto) are presently
validly issued and outstanding.
All such outstanding shares have been issued validly and are fully
paid and non-assessable. There are no stock options or stock purchase
agreements outstanding. Orion Shareholders have furnished to Claire
for its examination (i) copies of the articles of incorporation and
bylaws of Orion, (ii) the minute books of Orion containing all records
required to be set forth of all proceedings, consents, actions and
meetings of the shareholders and boards of directors of Orion, and
(iii) the stock transfer books of Orion setting forth all transfers of
any capital stock. Orion Shareholders hereby expressly waive any
rights which they, or any of them, may have to purchase any of the
Orion Shares 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 Orion, or in any shareholder or
other agreement.
(f) Orion is not a party to any written or oral collective bargaining
agreement or other contract with any labor union, and Orion has no
employment contracts, pension or profit sharing or bonus plans for
employees, or independent contractor agreements, which cannot be
terminated by Orion on not more than sixty-one (61) days notice.
Orion 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, agreements, leases, or other documents to which it is a
party. All parties with whom Orion has contractual arrangements are
in compliance therewith in all material respects and not in default
thereunder.
(g) The execution, delivery, and performance of this Agreement by him does
not violate any unwaived stock restrictions, charter provisions, laws,
loans, contracts, or regulations of any nature whatsoever and no
approval is required for such execution, delivery and performance.
(h) Orion is not obligated or indebted to him, except for any current
salaries and monthly expenses.
(i) Orion has no leases, contracts, agreements, or commitments other than
those previously furnished to Claire or Olympic.
(j) No representation or warranty herein by a Orion Shareholder contains
or will contain any untrue statement of a material fact.
(k) The books and records of Orion fairly and correctly set out and
disclose in all material respects, in accordance with generally
accepted accounting principles, the financial position of Orion as of
the date thereof, and all material financial transactions of Orion
relating to its business have been accurately recorded in such books
and records.
(l) Orion will carry on its business in the ordinary and normal course
after the date hereof and up to the date of Closing.
(m) Orion has not guaranteed, or agreed to guarantee, any debt, liability
or other obligation of any person or entity.
(n) Orion and the Orion Shareholders are not aware of any contingent tax
liabilities or any grounds which will prompt reassessment of income
tax payable.
(o) All tax returns and reports of Orion 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.
(p) The shares in the names of the Orion Shareholders are validly issued
and outstanding as fully paid and non-assessable shares in the capital
of Orion and are free and clear of all liens, charges and
encumbrances.
(q) Orion and the Orion Shareholders have provided to Claire complete and
true copies of all therapy service contracts entered into for the
conduct of Orion's business (the "Therapy Service Contracts"). Orion
is not in material default or breach of any of the Therapy Service
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 Therapy Service Contract is in full force and effect and in good
standing and is enforceable in accordance with its terms. The Therapy
Service Contracts are not subject to any other terms or conditions
except as disclosed in writing to Claire.
5. WARRANTIES OF CLAIRE:
5.1 The following warranties and representations shall only protect Orion and
the
Orion Shareholders against matters actually known to Claire and not disclosed to
Orion and the Orion Shareholders, and any material breach of those warranties
and representations. After February 1, 1998, Orion expressly waives any right
or cause of action that it might have against Claire which is related to, or
arises out of, any such material breach.
5.2 As a material inducement to the Orion Shareholders to execute this
Agreement and to perform or cause the same to be performed, Claire represents
and warrants to the Orion Shareholders 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 5,319,200 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, or the Claire
Shares, the Merger Agreement, 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, 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 and
Olympic.
(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) Olympic is a corporation duly organized, validly existing, and in good
standing under the laws of the State of Louisiana; Olympic has no
subsidiaries; the entire authorized capital stock of Olympic consists
of ten thousand issued shares of no par common stock; and there are no
stock options or stock purchase agreements outstanding with respect to
the stock of Olympic.
(f) 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.
5.3 Claire hereby represents, warrants, and agrees that the Orion Shares are
being acquired for Claire's own account for investment, with no view to the
public distribution or resale thereof, and that Claire will not offer or sell
any such securities in violation of the provisions of the Securities Act of 1933
or the Louisiana Blue Sky Law (Louisiana R.S. 51:701 et seq.), as now in effect
or any legislation substituted therefore, and the rules and regulations
thereunder.
5.4 Claire further represents and warrants, without which Orion Shareholders
would not sell:
(a) That Claire has had full and unfettered access to all Orion records
and information, financial and otherwise;
(b) That Claire has examined the current Therapy Service Contracts of
Orion and is fully aware of all of the terms and conditions of the
same; and
(c) That Claire is fully aware that any material changes in Medicare
and/or Medicaid statutes, laws, rules and regulations relating to the
programs or providers for which Orion provides therapy services may
affect the future profitability of Orion.
6. COVENANTS OF CLAIRE:
6.1 Claire covenants with the Orion Shareholders and Orion 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 closing.
6.2 Claire covenants and agrees with the Orion Shareholders that Claire:
(a) will duly and punctually perform all things on its part to be done or
performed under this Agreement and the Merger Agreement;
(b) will at all reasonable times permit the Orion Shareholders 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; except that Claire may issue those 10,500,000 additional
shares required to effectuate the merger transaction contemplated in this
Agreement and, further, to effectuate the merger transactions provided for in
that certain "Acquisition Agreement", dated November 20, 1997, by and among
Claire, Olympic, Richard A. Kellar and Allied Health Partners, Inc.; and
(f) will furnish the Orion Shareholders (concurrently with the filing
and/or production of the same) with copies of all SEC filings and reports; all
monthly or quarterly financial reports or statements generated by Claire in the
ordinary course of business; and any other reports, financial or otherwise,
delivered to any financial institution or other third party by Claire.
7. COVENANTS OF ORION SHAREHOLDERS:
The Orion Shareholders severally covenant with Claire that at all times
from the date of this Agreement, to and including the Closing Date, that each
representation and warranty of the Orion Shareholders set forth herein shall be
true and correct in all material respects and shall survive Closing for the
period specified in Section 4.1 hereof and that they will exert their good
faith efforts to insure that:
7.1 Until the Closing, Orion 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 Orion, any of the assets
presently owned by Orion, except in the normal course of its business.
7.2 Orion 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 Orion will not modify its Articles of Incorporation or change its
authorized or issued capital stock.
7.4 After the execution of this Agreement, Orion will not grant an option or
commitment relating to the authorized or issued capital stock of Orion, and no
such capital stock will be issued. No dividend or other distribution or payment
will be made with respect to the capital stock of Orion.
7.5 Except for normal annual and periodic raises in the ordinary course of
business, Orion shall not increase the compensation payable to or to become
payable by Orion to any of its officers, consultants, or employees; and no
increase in any present bonus shall be made without prior approval of Claire.
7.6 Orion shall not borrow any money.
7.7 Orion shall not enter into any long term lease or commitments without the
approval of Claire.
7.8 Orion will use its best efforts to preserve its business organization
intact and to keep the services of its present employees and consultants.
8. CLOSING:
8.1 The transfer and/or delivery of the consideration for the Merger (the
"Closing"), shall take place at the offices of Orion, in Bossier City,
Louisiana, at 10:00 a.m., on November 21, 1997, or at such other location as
to which all parties may subsequently agree.
8.2 At the Closing, the Orion Shareholders shall deliver to Claire a
certificate of good standing of Orion from the Louisiana Secretary of State.
8.3 At the Closing, Orion Shareholders shall execute a current certificate
acknowledging that their representations and warranties contained herein are
true and correct as of the Closing.
8.4 At the Closing, the Orion Shareholders and Orion shall deliver the
following items to Claire:
(a) The written opinion of Orion's attorney that :
(i) Orion has been duly incorporated, organized and is validly
existing under the laws of the State of Louisiana, it has the corporate power to
own or lease its properties and to carry on its business that is now being
conducted by it and is in good standing with respect to any required filings
with the appropriate governmental authorities;
(ii) this Agreement has been duly and validly executed by Orion;
(iii)the issued and authorized capital of Orion is as set out in this
Agreement and all of the issued and outstanding shares have been validly
issued as fully paid and non-assessable;
(iv) all necessary approvals and all necessary steps and corporate
proceedings have been obtained or taken to permit the effectuation of the
Merger; and, without limiting the generality of the foregoing, that all
corporate proceedings of Orion, its shareholders and directors and all other
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 Orion is a party or by which Orion is bound that
prohibits or restricts the execution and delivery by Orion of this Agreement and
the Merger Agreement, or the performance or observance by Orion of the terms and
conditions of the same; 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 Orion of, or the performance or observance
by Orion of the terms and conditions of, this Agreement or the Merger
Agreement; and
(b) A certificate of an officer of Orion that the representations and
warranties in this
Agreement are true and correct as of the Closing;
(c) Certified copies of the meeting of the directors of Orion approving
this Agreement;
(d) The resignations in writing of all directors of Orion and officers;
and
(e) The Merger Agreement and the 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 the Orion Shareholders.
8.6 At the Closing, Claire shall deliver to the Orion Shareholders 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 the States of Nevada and Louisiana,
respectively, 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 those corporations; and are the legal,
valid, and binding obligations of said corporations, enforceable in accordance
with their respective terms, except as limited by laws generally affecting the
enforcement of creditors' rights, and
(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 and delivery by
Claire or Olympic of, or the performance or observance by Claire or Olympic of
the terms and conditions of, this Agreement or the Merger Agreement.
(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, respectively, which
prohibits or restricts the execution and delivery by Claire or Olympic of, or
the performance or observance by Claire or Olympic of the terms and conditions
of, this Agreement or the Merger Agreement.
8.7 At the Closing, Claire and Olympic shall each execute a current certificate
acknowledging that their representations and warranties contained herein are
true and correct as of the Closing and that such survive Closing.
8.8 At the Closing, Claire shall deliver to the Orion Shareholders the Merger
Agreement and the Certificate of Merger, duly executed by all necessary parties.
9. BROKERAGE:
The Orion Shareholders and Claire each represent and warrant to each 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 Orion. Claire agrees to hold the Orion Shareholders harmless for
brokerage in this transaction by reason of Claire's breach of such warranty,
and Orion agrees to indemnify and hold Claire 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 the Orion Shareholders.
10. POST-CLOSING OPERATIONS OF OLYMPIC:
10.1 It is understood and agreed that Claire is acquiring the current business
operations of Orion as a going concern and that all parties hereto contemplate
and agree that Olympic, the surviving corporation, shall be maintained as a
separate and independent entity after Closing and, further, that the existing
therapy service, employees and consultants of Orion, and Orion's current
business practices and procedures (including those relating to reimbursement of
auto and other business expenses) shall be retained by Olympic to the extent
reasonably possible.
10.2 Claire further agrees, for a period of not less than two (2) years after
the Closing, to maintain the headquarters of Olympic at 1613 Jimmie Davis
Highway, Suite No. 1, Bossier City, Louisiana, or at such other location as
may be acceptable to the Orion Shareholders.
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 party
are true and correct as of the date of the Closing;
(b) that all obligations of the other party have been completed and/or
fulfilled as of the date of the Closing; and
(c) that all required consents from all hospitals and all governmental
and administrative authorities shall have been obtained such that the change
in ownership of Orion shall not result in the cancellation, termination, or
reduction of any right under any therapy service contract, license or permit
held by Orion for the conduct of its business.
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 period 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 and intervenors hereto.
12.2 Any notice or other communication provided for herein or given hereunder to
a party or intervenor hereto shall be in writing and shall be delivered in
person to such party or intervenor or, in the case of a corporation, to the
President or a Vice President thereof, or mailed by registered or certified
mail, postage prepaid, addressed as follows:
If to the Orion Shareholders: If to Claire:
W.A. Lucky, III Claire Techologies, Inc.
1613 Jimmie Davis Highway, Suite No. 1 Attn.: Jan Wallace
Bossier City, LA 71112 Scottsdale Centre
7373 North Scottsdale Road
Suite B-169
Scottsdale, Arizona 85253
If to Olympic: If to Orion:
Olympic Rehabilitation Services, Inc. W.A. Lucky, III
Attn.: Jan Wallace 1613 Jimmie Davis Highway,
Scottsdale Centre Suite No. 1
7373 North Scottsdale Road Bossier City, LA 71112
Suite B-169
Scottsdale, Arizona 85253
or to such other address with respect to a party as such party shall
hereafter notify the others in writing as above provided.
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 Orion 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 such state. The Merger Agreement and 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 supercedes, in their entirety, any and all previous
agreements of the parties with respect to the acquisition of Orion by Claire
(with the exception of those relating to the confidentiality of any information
furnished to Claire concerning the affairs of Orion).
13. REGISTRATION OF CLAIRE SHARES:
After the Closing Date, the Orion Shareholders, or any of them, shall have
the right to request the registration of the Claire Shares received by any such
shareholder pursuant to the Merger. Claire hereby agrees to then promptly
register, all or any portion of the Claire Shares received by such shareholders
pursuant to the Merger 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. The Orion Shareholders unders tand 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 theprovisions 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/ Grace Sim
/s/ William A. Lucky III By: /s/ Jan Wallace
Jan Wallace, President
_______________, 1997
WITNESSES: ORION SHAREHOLDERS:
/s/Grace Sim /s/ William A. Lucky III
William A. Lucky, III, Orion Shareholder
November 20, 1997
/s/ A.L. Blondeau
WITNESSES:
/s/ Grace Sim /s/ A.L. Blondeau
A. L. Blondeau, Jr., Orion Shareholder
November 20, 1997
/s/ William A. Lucky III
WITNESSES:
/s/ Grace Sim By: /s/ William H. Means
William H. Means, Jr., Orion Shareholder
November 20, 1997
/s/ William A. Lucky III
WITNESSES: OLYMPIC REHABILITATION SERVICES, INC.:
/s/ Grace Sim By: /s/ Jan Wallace
Jan Wallace, President
November 20, 1997
/s/ William A. Lucky III
WITNESSES: ORION PREVENTIVE MEDICINE, INC.:
/s/ Grace Sim By: /s/ Vickie T. Lucky
Vickie T. Lucky, President
November 20, 1997
/s/ William A. Lucky III
ACQUISITION AGREEMENT
TABLE OF CONTENTS
1. INTERPRETATION PAGE 2
2. AGREEMENT TO MERGE PAGE 3
3. PLAN OF MERGER PAGE 3
4. WARRANTIES OF ORION SHAREHOLDERS PAGE 4
5. WARRANTIES OF CLAIRE PAGE 6
6. COVENANTS OF CLAIRE PAGE 8
7. COVENANTS OF ORION SHAREHOLDERS PAGE 9
8. CLOSING PAGE 10
9. BROKERAGE PAGE 12
10. POST-CLOSING OPERATIONS OF OLMYPIC PAGE 13
11. CONDITIONS PRECEDENT TO CLOSING PAGE 13
12. MISCELLANEOUS PAGE 13
13. REGISTRATION OF CLAIRE SHARES PAGE 15
14. RESERVATION PAGE 15
15. CONSTRUCTION PAGE 15
ACQUISITION AGREEMENT
SUMMARY OF EXHIBITS
EXHIBIT "A": AGREEMENT AND PLAN OF MERGER
EXHIBIT "B": ORION STOCK ISSUED AS OF SEPTEMBER 30, 1997