SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
Current Report Pursuant
to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report: December 4, 1999
ACADIA GROUP, INC.
(Exact Name of Registrant as Specified in its Charter)
COLORADO
(State or Other Jurisdiction of Incorporation)
0-28976 010509781
(Commission File Number) (I.R.S. Employer Identification Number)
415 Rodman Road, Auburn, Maine 04210
(Address of Principal Executive Offices) (Zip Code)
(207) 777-3423
(800) 479-3066
(Registrant's Telephone Number, Including Area Code)
INFORMATION INCLUDED IN THIS REPORT
ITEM 1. CHANGES IN CONTROL OF REGISTRANT
On November 19, 1999, Acadia Group, Inc. (the "Company" and "Registrant"),
formerly known as Acadia National Health Systems, Inc., entered into a Plan
of Merger (the "Plan") whereby MedLecture.com, Inc., a Maine corporation
(hereinafter referred to as "Disappearing Corporation" or "MED"), was merged
into WorldLecture.com, Inc., a wholly-owned subsidiary of the Company
(hereinafter referred to as "Surviving Corporation" or "WORLD"); and whereby
the Company issued shares of its common stock, on a pro rata basis, to the
shareholders of MED, equal in the number to the number of shares of common
stock of the Company outstanding immediately prior to the Merger, plus
un-issued shares designated for use under employment agreements, or other
similar contractual agreements, whether verbal or written, or designated for
issuance to the Company's employees, agents, or third parties.
The Plan contemplated a series of transactions which resulted in a change of
control of the Company. The transactions included:
(i) the election of eight (8) members to the Company's Board of Directors for
a three-year term, as more fully described in the Company's Restated and
Amended Articles of Incorporation and Bylaws;
(ii) the Restatement and Amendment of Articles of Incorporation and Bylaws of
the Company reflecting the Name Change from Acadia National Health
Systems, Inc. to Acadia Group, Inc. and eradication of "Shark Repellant"
provisions set forth at Article VII; and
(iii) the approval of the transfer of assets of Acadia National Health Systems,
Inc., which are used or useful in the operation of its business management
services business to a wholly-owned subsidiary; the approval of the name
change of the subsidiary to Acadia National Health Systems, Inc.; and the
authorization of the officers of the parent and subsidiary to execute any
and all documents necessary or appropriate to accomplish the foregoing,
including without limitation the execution of documents of assignment and
collateral security documents.
In conjunction with completion of the transactions contemplated by the Plan,
the current directors and officers of the Company joined the in-coming
directors, and will appoint successors as designated by the Restated
and Amended Articles of Incorporation.
The Plan was approved by the Company's Board of Directors and the Company's
stockholders prior to closing thereunder.
The Company's business activities are now conducted through WORLD and an
additional wholly-owned subsidiary to be named "Acadia National Health
Systems, Inc". Although the Company has adopted the assumed name of
"Acadia Group, Inc.", the Plan required the Company to take the steps
necessary to restate and amend its Articles of Incorporation in order to
formally change its corporate name to "Acadia Group, Inc."
BENEFICIAL OWNERSHIP
Name Position Shares % Owned
- ----------------------- ---------------------------- ----------- --------
Emile L. Clavet Chairman of the Board 1,264,040 11.075%
79 Shepley Street
Auburn, ME 04210
Kevin B. Dean Board of Director, Secretary 1,264,040 11.075%
98 Davis Avenue Officer-Executive VP
Auburn, ME 04210 Business Development
and Treasurer
Douglas Farrago Board of Director, Member 2,465,223 21.600%
94 Shepley Street Officer-Executive VP
Auburn, ME 04210 Medical Informatics
Paul W. Chute Beneficial Owner 1,081,340 9.474%
76 N. Withman School Rd.
Buckfield, ME 04220
John W. Holt, Jr. Chief Executive Officer 190,000 1.664%
15 Birchwood Road and President
Cape Elizabeth, ME 04107
John F. Raden Executive Vice President 216,000 1.892%
RR1 Box 2309C Mergers and Acquisitions
Kingfield, ME 04947
Judith M. Brown Board of Director, Member 40,000 0.003%
1853 Mar West
Tiburon, CA 94920
John L. Crispin Board of Director, Member 68,000 0.005%
3 Pond Ridge Road
Lewiston, ME 04240
Richard H. Hooper Executive Vice President 177,000 1.550%
212 Hooper Ledge Road
South Paris, ME 04281
Margaret M. Heath Secretary 207,493 1.818%
357 Harris Hill Road
Poland, ME 04274
Jacquelyn J. Magno Beneficial Owner 785,350 6.881%
124 Fairway Drive
Auburn, ME 04210
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On November 19, 1999, the Company approved the transfer of assets of Acadia
National Health Systems, Inc., which are used or useful in the operation of
its business management services business to a wholly-owned subsidiary; and
approved the name change of the subsidiary to Acadia National Health Systems,
Inc. Said wholly-owned subsidiary has now been funded with all of the assets
of the medical billings, practice management and related business, and was
incorporated to complete the merger outlined in the Plan, such transaction to
be accomplished tax-free under the Internal Revenue Code of 1986, as amended.
ITEMS 3 THROUGH 4, 6 AND 8 THROUGH 9 NOT APPLICABLE.
ITEM 5. OTHER EVENTS.
Reference is made to press releases issued to the public by the Registrant on
November 19 and 22, the text of which is attached hereto as Exhibit 99.1 and
99.2, respectively, for a description of the events reported pursuant to this
Form 8-K.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial Statements.
---------------------
As of the date of the filing of this Current Report on Form 8-K, it is
impracticable for the Registrant to provide the financial statements required
by this Item 7(a). In accordance with Item 7(a)(4) of Form 8-K, such financial
statements will be filed by amendment to this Form 8-K no later than 60 days
after December 6, 1999.
(b) Pro Forma Financial Information.
--------------------------------
As of the date of the filing of this Current Report on Form 8-K, it is
impracticable for the Registrant to provide the pro forma financial required
by this Item 7(b). In accordance with Item 7(b) of Form 8-K, such financial
statements will be filed by amendment to this Form 8-K no later than 60 days
after December 6, 1999.
(c) Exhibits
--------
99.1 Text of press release dated November 19, 1999
99.2 Text of press release dated November 22, 1999
See Index to Exhibits
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ACADIA NATIONAL HEALTH SYSTEMS, INC.
Mark T. Thatcher
DATE: December 4, 1999 By: /s/ Mark T. Thatcher
Name: Mark T. Thatcher
Title: Filing Agent
INDEX TO EXHIBITS
Exhibit Description:
1.1--Restated Articles of Incorporation of Acadia Group, Inc. as of November
19, 1999;
1.2--Amended Bylaws of Acadia Group, Inc. as of November 19, 1999;
2.1--Agreement of Merger dated November 19, 1999;
2.2--Articles of Merger dated November 19, 1999;
5.1--Opinion on Legality of Securities Being Issued to shareholders of
MedLecture.com;
10.2-Opinion of Counsel with respect to issuance of 5,363,987 shares of
common stock of Acadia National Health Systems, Inc. to the shareholders
of MedLecture.com;
99.1-Text of press release dated November 19, 1999.
99.2-Text of press release dated November 22, 1999.
99.3-Private Securities Litigation Reform Act of 1995
Safe Harbor Compliance Statement for Forward-Looking Statements
RESTATED ARTICLES OF INCORPORATION WITH AMENDMENTS
OF
ACADIA GROUP, INC.
(AMENDED AND RESTATED AS OF NOVEMBER 19, 1999)
KNOW ALL MEN BY THESE PRESENTS:
Pursuant to the provisions of the Colorado Business Corporation Act, the
undersigned corporation adopts the following amended and restated Articles of
Incorporation. These articles correctly set forth the provisions of the
Articles of Incorporation, as amended, and supersede the original Articles of
Incorporation and all amendments thereto.
ARTICLE I
NAME
The name of the corporation is changed from ACADIA NATIONAL HEALTH
SYSTEMS, INC. to ACADIA GROUP, INC.
The principal office and address is 415 Rodman Road, Auburn, Maine
04210.
ARTICLE II
PERIOD OF DURATION
This corporation shall exist perpetually unless dissolved according to
Colorado law.
ARTICLE III
PURPOSE
To engage in the business of continuing education to professionals,
development and management of distinct business units, and business practice
management services including billing, consulting, software, business systems,
related services and sometimes financing to health care providers; and
development and management of other business services and to transact any
lawful business or businesses for which corporations may be incorporated
pursuant to the Colorado Business Corporation Act.
ARTICLE IV
POWERS
In furtherance of the foregoing purposes the corporation shall have and
may exercise all of the rights, powers and privileges now or hereafter
conferred upon corporations organized under the Colorado Business Corporation
Act, as amended, or by law. In addition, it may do everything necessary,
suitable or proper for the accomplishment of any corporate purpose.
ARTICLE V
CAPITAL
The total number of shares of the capital stock which the Corporation has
authority to issue is one hundred million (100,000,000) shares, divided into
fifty million (50,000,000) shares of common stock with no par value per share
(the "Common Stock"), and fifty million (50,000,000) shares of Series A
Convertible Preferred Stock with a par value of $100 per share (hereinafter
sometimes referred to as the "Series A Convertible Preferred Stock" or the
"Preferred Stock").
The aggregate number of common shares which this corporation shall have
the authority to issue is fifty million (50,000,000), each without par value
which shares shall be designated common stock. No share shall be issued
without consideration being exchanged, and it shall thereafter be
nonassessable. The Board of Directors may determine by a majority vote if
gifts of shares will be allowed under certain circumstances.
Shares of the corporation not having a par value shall be issued for such
consideration expressed in dollars as may be fixed from time to time by the
vote of the director(s).
The following is a description of each class of stock of the Corporation
with the preferences, conversion and other rights, restrictions, voting
powers, limitations as to distributions, qualifications, and terms and
conditions of redemption of each class:
FIRST: In the event of any voluntary or involuntary liquidation,
dissolution, or winding-up of the Corporation, the holders of any Preferred
Stock then outstanding shall be paid out of the assets of the Corporation
available for distribution to its stockholders an amount equal to One Dollar
($1.00) per share plus an amount equal to all unpaid declared distributions
thereon, without interest, and no more, before any amount shall be paid or any
assets of the Corporation shall be distributed among the holders of the Common
Stock and, if the assets of the Corporation available for distribution to its
stockholders shall be insufficient to permit the payment in full to the
holders of the Preferred Stock, as aforesaid, then the entire assets of the
Corporation available for distribution to its stockholders shall be
distributed ratably among the holders of the Preferred Stock; then and
thereafter, the remaining assets of the Corporation available for distribution
to its stockholders shall be distributed among and paid to the holders of the
Preferred Stock and the Common Stock, share and share alike and without any
distinction as to class, in proportion to their respective stockholdings.
A merger of the Corporation with or into any other corporation, a share
exchange involving the Corporation, or a sale, lease, exchange, or transfer of
all or any part of the assets of the Corporation which shall not in fact
result in the liquidation of the Corporation and the distribution of its
assets to its stockholders shall not be deemed to be a voluntary or
involuntary liquidation, dissolution or winding-up of the Corporation within
the meaning of this Article SIXTH, paragraph 1.
SECOND: Except as hereinabove provided in paragraph 1 of this Article
SIXTH, the Preferred Stock and the Common Stock of the Corporation shall be
identical in all respects and for all purposes and the holders of the
Preferred Stock and the holders of the Common Stock voting together and
without distinction as to class shall be entitled to one vote per share in all
proceedings in which actions shall be taken by the stockholders of the
Corporation.
THIRD: The following provisions are hereby adopted for the purpose of
defining, limiting and regulating the powers of the Corporation and of the
directors and stockholders:
(1) The Board of Directors of the Corporation is hereby empowered to
authorize the issuance from time to time of shares of its stock of any class,
whether now or hereafter authorized, or securities convertible into shares of
its stock of any class or classes, whether now or hereafter authorized.
(2) The Board of Directors of the Corporation may classify or reclassify
any unissued stock by setting or changing in any one or more respects, from
time to time before issuance of such stock, the preferences, conversion or
other rights, voting powers, restrictions, limitations as to distributions,
qualifications, and terms or conditions of redemption of such stock.
(3) The Board of Directors shall have power, if authorized by the Bylaws,
to designate by resolution or resolutions adopted by a majority of the whole
Board of Directors, one or more committees, each committee to consist of two
or more of the directors of the Corporation, which, to the extent provided in
said resolutions or in the Bylaws of the Corporation and permitted by the
Colorado Business Corporation Act, shall have and may exercise any or all of
the powers of the Board of Directors in the management of the business and
affairs of the Corporation, and shall have power to authorize the seal of the
Corporation to be affixed to all instruments and documents which may require
it.
(4) If the Bylaws so provide, the Board of Directors of the Corporation
shall have power to hold its meetings, to have an office or offices and,
subject to the provisions of the Colorado Business Corporation Act, to keep
the books of the Corporation, outside of said State at such place or places as
may from time to time be designated by it.
(5) The Board of Directors shall have power to borrow or raise money, from
time to time and without limit, and upon any terms, for any corporate
purposes; and, subject to the Colorado Business Corporation Act, to authorize
the creation, issue, assumption or guaranty of bonds, notes or other evidences
of indebtedness for moneys so borrowed, to include therein such provisions as
to redeemability, convertibility or otherwise, as the Board of Directors, in
its sole discretion, may determine and to secure the payment of principal,
interest or sinking fund in respect thereof by mortgage upon, or the pledge
of, or the conveyance or assignment in trust of, the whole or any part of the
properties, assets and goodwill of the Corporation then owned or thereafter
acquired.
(6) The Board of Directors may, within the laws of the state of Colorado,
Business Corporation Act, and as authorized by its bylaws or by the board of
directors:
(a) Authorize the sale, lease, exchange or other transfer of all, or
substantially all, of the property and assets of the Corporation, including
its goodwill;
(b) Authorize the mortgage, pledge, dedicate to the repayment of
indebtedness, whether with or without recourse, or otherwise encumber any or
all of its property whether or not in the usual and regular course of
business; or
(c) Authorize the transfer any or all of its property to a domestic
corporation all the shares of which are owned, directly or indirectly, by the
corporation.
(d) Authorize the merger of the Corporation into another corporation or
merge one or more other corporations into the Corporation;
(e) Authorize the participation by the Corporation in a share exchange (as
defined in the Colorado Business Corporation Act) as the corporation the stock
of which is to be acquired; and
The enumeration and definition of a particular power of the Board of
Directors included in the foregoing shall in no way be limited or restricted
by reference to or inference from the terms of any other clause of this or any
other article of these Articles of Incorporation, or construed as or deemed by
inference or otherwise in any manner to exclude or limit any powers conferred
upon the Board of Directors under the laws of the State of Colorado now or
hereafter in force.
FOURTH: Notwithstanding any provision of law to the contrary, the
affirmative vote of a majority of all the votes entitled to be cast on the
matter shall be sufficient, valid and effective, after due authorization,
approval or advice of such action by the Board of Directors, as required by
law, to approve and authorize the following acts of the Corporation:
(a) the amendment of these Articles of Incorporation;
(b) the voluntary or involuntary liquidation, dissolution or winding-up
of or the revocation of any such proceedings relating to the Corporation.
ARTICLE VI
AUTHORIZATION OF SERIES A CONVERTIBLE PREFERRED STOCK
The total number of shares of the capital stock which the Corporation has
authority to issue is one hundred million (100,000,000) shares, divided into
fifty million (50,000,000) shares of common stock with no par value per share
(the "Common Stock"), and fifty million (50,000,000) shares of Series A
Convertible Preferred Stock with a par value of $100 per share (hereinafter
sometimes referred to as the "Series A Convertible Preferred Stock" or the
"Preferred Stock").
A description of the "Series A Convertible Preferred Stock", including
the preferences, conversion and other rights, voting powers, restrictions,
limitations as to distributions, qualifications, and terms and conditions for
redemption, all as set by the Board of Directors of the Corporation, is as
follows:
1. Designation and Initial Number. The class of shares of Preferred Stock
hereby classified shall be designated the "Series A Convertible Preferred
Stock." The initial number of authorized shares of the Preferred Stock shall
be fifty million (50,000,000).
2. Distributions. Commencing on January 1, 1999, the holders of the
Preferred Stock shall be entitled to receive, out of funds at the time legally
available for payment of distributions in the State of Colorado, a
non-cumulative distribution at the rate of $1.00 per share per annum, payable
semi-annually in equal installments on the first days of January and July in
each year, if, as and when determined by the Board of Directors, before any
distribution shall be set apart or paid on any other capital stock for such
year.
3. Redemption. The Corporation, at the option of the Board of Directors,
may redeem the whole or any part of the Preferred Stock at any time
outstanding, at any time or from time to time after January 1, 1999, provided
that the Corporation, at any such time, shall have consummated a sale of its
securities pursuant to an effective registration statement (a "Public
Offering") filed with the Securities and Exchange Commission (the "SEC"), upon
at least 30 days' prior written notice to the holders of record of the
Preferred Stock to be redeemed, by paying a redemption price per share equal
to 150% of the par value thereof, plus all accrued and unpaid distributions
declared thereon, at the date fixed for redemption, without interest, in cash,
for each share of Preferred Stock so redeemed. The Board of Directors shall
have full power and authority, subject to the limitations and provisions
herein contained, to prescribe the manner in which and the terms and
conditions upon which the Preferred Stock shall be redeemed at any time and
from time to time. The notice of redemption to each stockholder whose shares
of Preferred Stock are to be redeemed shall specify the number of shares of
Preferred Stock of such stockholder to be redeemed, the date fixed for
redemption and the redemption price at which the shares of Preferred Stock are
to be redeemed, and shall specify where payment of the redemption price is to
be made upon surrender of such shares, shall state the conversion rate then in
effect, and that conversion rights of such shares shall terminate at the
closing of business on the date fixed for redemption. None of the Preferred
Stock acquired by the Corporation by redemption or otherwise shall be reissued
or disposed of but shall, from time to time, be retired in the manner provided
by law.
4. Liquidation or Dissolution. In the event of any voluntary or
involuntary liquidation, dissolution, or winding up of the affairs of the
Corporation, the holders of the issued and outstanding Preferred Stock shall
be entitled to receive for each share of Preferred Stock, before any
distribution of the assets of the Corporation shall be made to the holders of
any other capital stock, a dollar amount equal to the par value thereof plus
all accrued and unpaid distributions declared thereon, without interest. After
such payment shall have been made in full to the holders of the issued and
outstanding Preferred Stock, or funds necessary for such payment shall have
been set aside in trust for the account of the holders of the issued and
outstanding Preferred Stock so as to be and continue to be available therefor,
then, before any further distribution of the assets of the Corporation shall
be made, a dollar amount equal to that already distributed to the holders of
the Preferred Stock shall be distributed pro-rata to the holders of the other
issued and outstanding capital stock of the Corporation, subject to the rights
of any other class of capital stock set forth in the Articles of Incorporation
of the Corporation or Amendments to the Articles of Incorporation to State
Terms of Series Shares filed by the Corporation. After such payment shall have
been made in full to the holders of such other issued and outstanding capital
stock, or funds necessary for such payment shall have been set aside in trust
for the account of the holders of such other issued and outstanding capital
stock so as to be and continue to be available therefor, the holders of the
issued and outstanding Preferred Stock shall be entitled to participate with
the holders of all other classes of issued and outstanding capital stock in
the final distribution of the remaining assets of the Corporation, and,
subject to any rights of any other class of capital stock set forth in the
Articles of Incorporation of the Corporation or any Amendments to the Articles
of Incorporation to State Terms of Series Shares filed by the Corporation, the
remaining assets of the Corporation shall be divided and distributed ratably
among the holders of both the Preferred Stock and the other capital stock then
issued and outstanding according to the proportion by which their respective
record ownership of shares of the Preferred Stock and such capital stock bears
to the total number of shares of the Preferred Stock and such capital stock
then issued and outstanding. If, upon such liquidation, dissolution, or
winding up, the assets of the Corporation distributable, as aforesaid, among
the holders of the Preferred Stock shall be insufficient to permit the payment
to them of said amount, the entire assets shall be distributed ratably among
the holders of the Preferred Stock. A consolidation or merger of the
Corporation, a share exchange, a sale, lease, exchange or transfer of all or
substantially all of its assets as an entirety, or any purchase or redemption
of stock of the Corporation of any class, shall not be regarded as a
"liquidation, dissolution, or winding up of the affairs of the Corporation"
within the meaning of this paragraph 4.
5. Conversion Privilege. Preferred Stock shall be convertible into Common
Stock as hereinafter provided and, when so converted, shall be canceled and
retired and shall not be reissued as such:
(A) Any holder of the Preferred Stock may at any time or from time
to time convert such stock into the Common Stock of the Corporation, on
presentation and surrender to the Corporation, of the certificates of the
Preferred Stock to be so converted.
(B) Each holder of Preferred Stock shall have the right to convert
such Preferred Stock on and subject to the following terms and conditions:
(i) The Preferred Stock shall be converted into Common Stock at
the conversion rate, determined as hereinafter provided, in effect at the time
of conversion. Unless such conversion rate shall be adjusted as hereinafter
provided, the conversion rate shall be one share of Common Stock for each
share of Preferred Stock so converted.
(ii) In order to convert Preferred Stock into Common Stock, the
holder thereof shall on any business day surrender at the executive offices of
the Company at 415 Rodman Road, Auburn, Maine 04210 the certificate or
certificates representing such shares, duly endorsed to the Corporation or in
blank, and give written notice to the Corporation at said office of the number
of said shares which such holder elects to convert. Preferred Stock shall be
deemed to have been converted immediately prior to the close of business on
the day of such surrender for conversion, and the person or persons entitled
to receive the Common Stock issuable upon such conversion shall be treated for
all purposes as the record holder or holders of such Common Stock at such time.
As promptly as practicable on or after the date of any conversion, the
Corporation shall issue and deliver a certificate or certificates representing
the number of shares of Common Stock issuable upon such conversion, together
with cash in lieu of any fraction of a share, as provided in subparagraph (H)
of this paragraph 5, to the person or persons entitled to receive same. In
case of the conversion of only a part of the shares of any holder of Preferred
Stock, the Corporation shall also issue and deliver to such holder a new
certificate of Preferred Stock representing the number of shares of such
Preferred Stock not converted by such holder.
(C) The conversion rate as hereinabove provided shall be subject to
adjustment as follows:
(i) In case the Corporation shall (a) pay a distribution in
shares of its capital stock, (b) subdivide its outstanding shares of Common
Stock into a greater number of shares, (c) combine its outstanding shares of
Common Stock into a smaller number of shares, or (d) issue by reclassification
of its shares of Common Stock any shares of its capital stock, the conversion
rate in effect immediately prior thereto shall be adjusted so that the holder
of a share of Preferred Stock surrendered for conversion after the record date
fixing stockholders to be affected by such event shall be entitled to receive,
upon conversion, the number of shares of Common Stock which such holder would
have owned or have been entitled to receive after the happening of such event
had such share of Preferred Stock been converted immediately prior to the
record date in the case of such dividend or the effective date in the case of
any such subdivision, combination or reclassification. An adjustment made
pursuant to this subparagraph 5(C)(i) shall be made whenever any of such
events shall happen, but shall become effective retroactively after such
record date or such effective date, as the case may be, as to shares of
Preferred Stock converted between such record date or effective date and the
date of happening of any such event.
(ii) In case the Corporation shall issue rights or warrants to
all holders of its Common Stock entitling them to subscribe for or purchase
shares of Common Stock at a price per share, which, when added to the amount
of consideration received or receivable by the Corporation for such right or
warrant, is less than the current market price (as hereinafter defined) per
share of Common Stock at the record date mentioned below, the conversion rate
shall be adjusted so that thereafter, until further adjusted, each share of
Preferred Stock shall be convertible into that number of shares of Common
Stock determined by multiplying the number of shares of Common Stock into
which such share of Preferred Stock was theretofore convertible by a fraction,
the numerator of which shall be the number of shares of Common Stock
outstanding on the date of issuance of such rights or warrants plus the number
of additional shares of Common Stock issuable upon the exercise of such rights
or warrants, and the denominator of which shall be the number of shares of
Common Stock outstanding on the date of issuance of such rights or warrants
plus the number of shares which an amount equal to the sum of (a) the
aggregate exercise price of the total number of shares of Common Stock
issuable upon the exercise of such rights or warrants, plus (b) the aggregate
amount of consideration, if any, received, or receivable by the Corporation
for any such rights or warrants, would purchase at such current market price.
Such adjustment shall be made whenever such rights or warrants are issued, but
shall also be effective retroactively as to shares of Preferred Stock
converted between the record date for the determination of stockholders
entitled to receive such rights or warrants and the date such rights or
warrants are exercised.
(iii) In case the Corporation shall distribute to all holders
of its Common Stock any one or more of the following: (a) evidence of its
indebtedness, (b) assets (excluding cash distributions, distributions made out
of current or retained earnings and distributions of the stock of any
subsidiary), or (c) rights or warrants to subscribe for or purchase securities
issued by, or property of, the Corporation (excluding those referred to in
subparagraph 5(C)(ii) above), then in each such case the conversion rate shall
be adjusted as provided below so that thereafter, until further adjusted, the
number of shares of Common Stock into which each share of Preferred Stock
shall be convertible shall be determined by multiplying the number of shares
of Common Stock into which such share of Preferred Stock was theretofore
convertible by a fraction, the numerator of which shall be the current market
price per share of Common Stock on the date of such distribution, and the
denominator of which shall be such current market price per share of the
Common Stock, less the then fair market value (as determined by the Board of
Directors of the Corporation, whose determination shall be conclusive) of the
portion of the assets or evidence of indebtedness so distributed or of such
rights or warrants applicable to one share of the Common Stock. Such
adjustment shall be made whenever any such distribution is made, but shall
also be effective retroactively as to shares of Preferred Stock converted
between the record date for the determination of stockholders entitled to
receive such distribution and the date such distribution is made.
(iv) For the purpose of any computation under subparagraphs
5(C)(ii) and (iii) above, the current market price per share of Common Stock
at any date shall be (a) if the Common Stock is listed on any national
securities exchange, the average of the daily closing prices for the 15
consecutive business days commencing 20 business days before the day in
question (the "Trading Period"); (b) if the Common Stock is not listed on any
national securities exchange but is quoted on the National Association of
Securities Dealers, Inc. Automated Quotation System ("NASDAQ"), the average of
the high and low bids as reported on NASDAQ for the Trading Period; and (c) if
the Common Stock is neither listed on any national securities exchange nor
quoted on NASDAQ, the higher of (x) the conversion price then in effect, or
(y) the tangible book value per share as of the end of the Corporation's
immediately preceding fiscal year.
(v) No adjustment in the conversion rate shall be required
unless such adjustment would require an increase or decrease of at least 1% in
such rate; provided, however, that any adjustments which by reason of this
subparagraph 5(C)(v) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under this
subparagraph 5(C) shall be made to the nearest one-hundredth of a share.
(D) No adjustment of the conversion rate shall be made in any of the
following cases:
(i) upon the grant or exercise of stock options hereafter
granted, or under any employee stock option plan now or hereafter authorized,
to the extent that the aggregate of the number of shares which may be
purchased under such options and the number of shares issued under such
employee stock purchase plan is less than or equal to ten percent (10%) of the
number of shares of Common Stock outstanding on January 1 of the year of the
grant or exercise;
(ii) shares of Common Stock issued upon the conversion of
Preferred Stock;
(iii) shares issued in connection with the acquisition by the
Corporation or by any subsidiary of the Corporation of 80% or more of the
assets of another corporation, and shares issued in connection with the
acquisition by the Corporation or by any subsidiary of the Corporation of 80%
or more of the voting shares of another corporation (including shares issued
in connection with such acquisition of voting shares of such other corporation
subsequent to the acquisition of an aggregate of 80% of such voting shares),
shares issued in a merger of the Corporation or a subsidiary of the
Corporation with another corporation in which the Corporation or the
Corporation's subsidiary is the surviving corporation, and shares issued upon
the conversion of other securities issued in connection with any such
acquisition or in any such merger;
(iv) shares issued by way of dividend or other distribution on
Common Stock excluded from the calculation of the adjustment under this
subparagraph 5(D) or on Common Stock resulting from any subdivision or
combination of Common Stock so excluded; or
(v) shares issued pursuant to all stock options and warrants
outstanding on the date of the filing of these Articles.
(E) Whenever the conversion rate is adjusted as herein provided, the
Corporation shall prepare a certificate signed by the Treasurer of the
Corporation setting forth the adjusted conversion rate and showing in
reasonable detail the facts upon which such adjustment is based. As promptly
as practicable, the Corporation shall cause a copy of the certificate referred
to in this subparagraph 5(E) to be mailed to each holder of record of issued
and outstanding Preferred Stock at the address of such holder appearing on the
Corporation's books.
(F) The Corporation shall pay all taxes that may be payable in
respect of the issue or delivery of Common Stock on conversion of Preferred
Stock pursuant hereto, but shall not pay any tax which may be payable with
respect to income or gains of the holder of any Preferred Stock or Common
Stock or any tax which may be payable in respect of any transfer involved in
the issue and delivery of the Common Stock in a name other than that in which
the Preferred Stock so converted was registered, and no such issue or delivery
shall be made unless and until the person requesting such issue has paid to
the Corporation the amount of any such tax, or has established, to the
satisfaction of the Corporation, that such tax has been paid.
(G) Upon conversion of any shares of Preferred Stock, the holders of
the shares of Preferred Stock so converted shall not be entitled to receive
any distributions declared with respect to such shares of Preferred Stock
unless such distributions shall have been declared by the Board of Directors
and the record date for such distributions shall have been on or before the
date such shares shall have been converted. No payment or adjustment shall be
made on account of distributions declared and payable to holders of Common
Stock of record on a date prior to the date of conversion.
(H) No fractional shares or scrip representing fractional shares
shall be issued upon the conversion of any shares of Preferred Stock. If more
than one share of Preferred Stock shall be surrendered for conversion at one
time by the same holder, the number of full shares issuable upon conversion
thereof shall be computed on the basis of the aggregate number of such shares
so surrendered. If the conversion of any share of Preferred Stock results in a
fraction, an amount equal to such fraction multiplied by the current market
price (determined as provided in subparagraph 5(C)(iv) above) of the Common
Stock on the day of conversion shall be paid to such holder in cash by the
Corporation.
(I) The Corporation shall at all times reserve and keep available,
free from preemptive rights, out of its authorized Common Stock, for the
purpose of effecting the conversion of the issued and outstanding Preferred
Stock, the full number of shares of Common Stock then deliverable in the event
and upon the conversion of all of the Preferred Stock then issued and
outstanding.
6. Voting Rights. Except as otherwise provided in this paragraph 6, each
share of Preferred Stock is entitled to one vote, voting together with the
holders of shares of Common Stock and not as a class, on each matter submitted
to a vote at a meeting of stockholders of the Corporation. In the event that
at any time two consecutive semi-annual distributions payable on the Preferred
Stock shall be in default (a "Two Dividend Default"), then immediately upon
the happening of a Two Dividend Default and until the Two Dividend Default and
all defaults in the payment of semi-annual distributions subsequent to the Two
Dividend Default shall be cured, the holders of Preferred Stock shall have the
right, voting separately as a class, to elect one-third of the Directors of
the Corporation. In the event that at any time four consecutive semi-annual
distributions payable on the Preferred Stock shall be in default (a "Four
Dividend Default"), then immediately upon the happening of such Four Dividend
Default and until such Four Dividend Default and all defaults in the payment
of semi-annual distributions subsequent to the Four Dividend Default shall be
cured, the holders of Preferred Stock shall have the right, voting separately
as a class, to elect a majority of the Directors of the Corporation. The
foregoing voting rights are hereinafter collectively referred to as the
"Special Voting Rights." The Special Voting Rights shall be exercised only at
annual meetings of the stockholders of the Corporation, and only if the
holders of a majority of the outstanding shares of Preferred Stock entitled to
such Special Voting Rights are present in person or by proxy. Notwithstanding
the foregoing provisions of this paragraph 6, upon payment in full of all
defaults in the payment of semi-annual distributions subsequent to a Four
Dividend Default and of the distribution which resulted in the Four Dividend
Default, so that no more than three consecutive semi-annual distributions
remain in default, the Special Voting Rights of the holders of Preferred Stock
shall be reduced so that they shall have the right, voting separately as a
class, to elect one-third of the Directors of the Corporation. Notwithstanding
the foregoing provisions of this Paragraph 6, upon payment in full of (i) all
defaults in the payment of semi-annual distributions subsequent to a Two
Dividend Default and of the distribution which resulted in the Two Dividend
Default, or (ii) upon payment in full of all semi-annual distributions
subsequent to a Four Dividend Default and three of the distributions which
resulted in a Four Dividend Default, so that, in each such case, no more than
one semi-annual distribution remains in default, the Special Voting Rights
shall terminate, and the voting power in the election of Directors shall again
be vested equally in the holders of the Preferred Stock and the Common Stock,
who shall each be entitled to one vote per share. Each Director elected by the
holders of shares of Preferred Stock as a result of the Special Voting Rights
set forth above shall serve only until the next annual meeting of
stockholders, or until the date the Special Voting Rights shall have
terminated as provided in this paragraph 6, whichever event first occurs.
7. Registration Rights.
(A) "Piggy-Back" Registration Rights:
(i) If, at any time and from time to time after the
Corporation's first Public Offering, the Corporation proposes to register any
of its securities on Forms S-1, S-2, S-3, SB-1 or SB-2, or any successor
forms, under the Securities Act of 1933 (the "Act") and applicable state
securities laws (the "State Acts"), the Corporation shall give prompt written
notice to each holder of Preferred Stock (or Common Stock into which it has
been converted) of its intention to do so, and, upon the written request of
any such stockholder made within 30 days after the receipt of any such notice,
which written request shall specify the number of shares such stockholder
desires to be registered, the Corporation shall use its reasonable efforts to
cause all such shares of such stockholder to be registered under the Act and
State Acts to permit the sale of such shares. Notwithstanding anything
contained herein to the contrary, the Corporation shall have the right to
discontinue any registration of such shares of such stockholder at any time
prior to the effective date of such registration if the registration of other
securities giving rise to such registration is discontinued.
(ii) If any stockholder shall request inclusion of any shares
held by such stockholder in the registration of other securities of the
Corporation and such proposed registration by the Corporation is, in whole or
in part, an underwritten Public Offering, and if the managing underwriter
determines and advises the Corporation in writing that inclusion in such
registration of all proposed securities (including securities being offered by
or on behalf of the Corporation and securities covered by requests for
registration) would adversely affect the marketability of the offering of the
securities proposed to be registered by the Corporation, then such stockholder
shall be entitled to participate pro-rata with the other stockholders having
similar incidental registration rights with respect to such registration to
the extent the managing underwriter determines that such shares may be
included without such adverse effect.
(iii) The rights of such stockholders to have their shares
included in such registration shall expire on the first to occur of January 1,
2010, or that date which is 10 years after the Corporation's first Public Offeri
ng.
(B) Demand Registration Rights: At any time after the Corporation's
first Public Offering of its stock, the Corporation shall, upon receipt of a
written request from the holders of at least 25% of the aggregate issued and
outstanding Preferred Stock and the Common Stock into which it has been
converted, prepare and file under the Act a registration statement in respect
of such shares. In the event that not all of such shares have been registered
as herein set forth, the Corporation shall, upon receipt of a written request
from the holders of at least 25% of the aggregate remaining unregistered
Preferred Stock and the Common Stock into which it has been converted, prepare
and file under the Act no more than one additional registration statement to
register the remaining balance of the shares not so registered.
(C) Expenses: The Corporation shall pay all expenses incident to its
performance of or compliance with the provisions of subparagraphs 7(A) and
7(B) hereof, including, without limitation, all registration and filing fees,
fees and expenses of compliance with the Act and State Acts, printing
expenses, messenger and delivery expenses, fees and disbursements of counsel
for the Corporation (but not the legal fees of any such stockholder) and all
independent public accountants and other persons retained by the Corporation,
and any fees and disbursements of underwriters customarily paid by issuers or
sellers of securities (excluding underwriting commissions and discounts).
(D) Obligations of the Corporation: If and whenever the Corporation
is required to use its reasonable efforts to effect or cause the registration
of any shares under the Act as provided in this paragraph 7, the Corporation
shall, as expeditiously as possible:
(i) prepare and file with the SEC a registration statement with
respect to such shares and use its reasonable efforts to cause such
registration statement to become effective;
(ii) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration statement
effective and such prospectus current for a period not in excess of nine
months as may be necessary in accordance with the intended methods of
disposition by the seller or sellers thereof set forth in such registration
statement;
(iii) furnish to each seller of such shares such number of
copies of such registration statement and each such amendment and supplement
thereto (in each case including all exhibits), such number of copies of the
prospectus included in such registration statement (including each preliminary
prospectus), in conformity with the requirements of the Act, and such other
documents as such seller may reasonably request in order to facilitate the
disposition of the shares owned by such seller;
(iv) use its reasonable efforts to register or qualify such
shares covered by such registration statement under such State Acts as each
seller reasonably requests, and do any and all other acts and things which may
be reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the shares owned by such seller, except
that the Corporation shall not for any such purpose be required to qualify to
do business as a foreign corporation in any jurisdiction wherein it is not so
qualified, to subject itself to taxation in any such jurisdiction, or to
consent to general service of process in any such jurisdiction; and
(v) notify each seller of any such securities covered by such
registration statement, at any time when a prospectus relating thereto is
required to be delivered under the Act or upon the happening of any event as a
result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing, and at the request of any such seller prepare and furnish to such
seller a reasonable number of copies of a supplement to or an amendment of
such prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such securities, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing.
(E) Indemnification and Notification:
(i) The Corporation shall indemnify and hold harmless each
holder of any shares included in the Corporation's registration statement
pursuant to this paragraph 7, and each person, if any, who controls such
holder within the meaning of Section 15 of the Act, from and against any and
all losses, claims, damages, expenses and liabilities (including reasonable
attorneys' fees) caused by any untrue statement of a material fact contained
in any such registration statement, or contained in a prospectus furnished
thereunder, or in any amendment or supplement thereto or caused by any
omission to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading (provided, however, that the foregoing
indemnification and agreement to hold harmless shall not apply insofar as such
losses, claims, damages, expenses, and liabilities are caused by any such
untrue statement or omission is based upon information furnished in writing to
the Corporation by any such holder expressly for use in any registration
statement or prospectus).
(ii) Promptly after receipt by any holder of any shares
included in the Corporation's registration statement pursuant to this
paragraph 7 of notice of the commencement of any action, said holder shall, if
a claim in respect thereof is to be made against the Corporation under this
paragraph 7, notify the Corporation in writing of the commencement thereof,
but the omission so to notify the Corporation shall not relieve it from any
liability which it may have to them under this paragraph 7. In case any such
action is brought against any holder of any shares registered pursuant to this
paragraph 7 and the Corporation is notified of the commencement thereof as
provided herein, the Corporation shall be entitled to participate in, and, to
the extent that it may wish, to assume the defense thereof, with counsel
reasonably satisfactory to such holder, and after notice from the Corporation
to such holder of the Corporation's election so to assume the defense thereof,
the Corporation shall not be liable under this paragraph 7 for any legal or
other expense subsequently incurred by such holder in connection with the
defense thereof other than reasonable costs of investigation.
(iii) Each holder of any shares registered pursuant to this
paragraph 7 agrees to cooperate fully with the Corporation in effecting
registration and qualification of the Preferred Stock (or the Common Stock
into which it has been converted) and of such distribution, and shall
indemnify and hold harmless the Corporation and each person who may control
the Corporation within the meaning of Section 15 of the Act, each director of
the Corporation, and each officer who signed any registration statement from
and against any and all losses, claims, damages, expenses, and liabilities
(including reasonable attorneys' fees) caused by any untrue statement of a
material fact contained in any such registration statement, or contained in a
prospectus furnished thereunder, or any amendment or supplement thereto, or
caused by any omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, to the extent that
such untrue statement or omission was made in reliance upon information
furnished to the Corporation by any such holder for inclusion therein.
8. Changes In Terms of Preferred Stock. The terms of the Preferred Stock
may not be amended, altered or repealed, and no class of capital stock or
securities convertible into capital stock shall be authorized which has
superior rights to the Preferred Stock as to distributions, liquidation or
vote, without the consent of the holders of at least two-thirds of the
outstanding shares of Preferred Stock.
9. No Implied Limitations. Except as otherwise provided by express
provisions of these Articles of Incorporation, nothing herein shall limit, by
inference or otherwise, the discretionary right of the Board of Directors to
classify and reclassify and issue any shares of Preferred Stock and to fix or
alter all terms thereof to the full extent provided in the Articles of
Incorporation of the Corporation.
10. General Provisions. In addition to the above provisions with respect
to the Preferred Stock, such Preferred Stock shall be subject to, and entitled
to the benefits Of, the provisions set forth in the Corporation's Articles of
Incorporation with respect to Preferred Stock generally.
11. Notices. All notices required or permitted to be given by the
Corporation with respect to the Preferred Stock shall be in writing, and if
delivered by first class United States mail, postage prepaid, to the holders
of the Preferred Stock at their last addresses as they shall appear upon the
books of the Corporation, shall be conclusively presumed to have been duly
given, whether or not the stockholder actually receives such notice; provided,
however, that failure to duly give such notice by mail, or any defect in such
notice, to the holders of any stock designated for redemption, shall not
affect the validity of the proceedings for the redemption of any other shares
of Preferred Stock.
ARTICLE VII
SPECIAL PROVISIONS WHEN TWO CLASSES OF COMMON STOCK ARE
AUTHORIZED IN THE ARTICLES OF INCORPORATION
Election and Filling of Vacancies. With respect to the election of the
Board of Directors of the Corporation:
(1) the holders of Class A Common Stock (a) shall nominate and elect one
(1) director who shall be known as the Class A Director, and (b) in the event
of the death, disability, removal, resignation or refusal to act of the Class
A Director, the holders of Class A Common Stock, to the exclusion of the
holders of all other classes of stock of the Corporation, shall nominate and
elect a director to fill the vacancy so created by such death, disability,
removal, resignation or refusal to act; and
(2) the holders of Class B Common Stock (a) shall nominate and elect two
(2) directors who shall be known as the Class B Directors, and (b) in the
event of the death, disability, removal, resignation or refusal to act of any
or all of the Class B Directors, the holders of the Class B Common Stock, to
the exclusion of the holders of all other classes of stock of the Corporation,
shall nominate and elect one or more directors to fill the vacancy or
vacancies so created by such death, disability, removal, resignation or
refusal to act.
ARTICLE VIII
HIGH QUORUM PROTECTIVE PROVISIONS
Quorum. The presence in person or by proxy of the holders of record of
all of the shares of the capital stock of the Corporation issued and
outstanding and entitled to vote thereat shall constitute a quorum at all
meetings of the stockholders, except as otherwise provided by the Colorado
Business Corporation Act, by the Articles of Incorporation or by these Bylaws.
If less than a quorum shall be in attendance at the time for which the meeting
shall have been called, the meeting may be adjourned from time to time by a
majority vote of the stockholders present or represented, without any notice
other than by announcement at the meeting, until a quorum shall attend. At any
adjourned meeting at which a quorum shall attend, any business may be
transacted which might have been transacted if the meeting had been held as
originally called.
ARTICLE IX
PREEMPTIVE RIGHTS
A shareholder of the corporation shall not be entitled to a preemptive
or preferential right to purchase, subscribe for, or otherwise acquire any
unissued or treasury shares of stock of the corporation, or any options or
warrants to purchase, subscribe for or otherwise acquire any such unissued or
treasury shares, or any shares, bonds, notes, debentures, or other securities
convertible into or carrying options or warrants to purchase, subscribe for or
otherwise acquire any such unissued or treasury shares.
ARTICLE X
CUMULATIVE VOTING
The shareholders shall not be entitled to cumulative voting.
ARTICLE XI
SHARE TRANSFER RESTRICTIONS
The corporation shall have the right to impose restrictions upon the
transfer of any of its authorized shares or any interest therein. The board
of directors is hereby authorized on behalf of the corporation to exercise the
corporation's right to so impose such restrictions.
ARTICLE XII
REGISTERED OFFICE AND AGENT
The address of the initial registered office of the corporation shall be
17 West Cheyenne Mountain Boulevard, Colorado Springs, CO 80906, and the name
of the initial registered agent at such address is Mark T. Thatcher, Esq.
Either the registered office or the registered agent may be changed in the
manner provided by law.
THE UNDERSIGNED CONSENTS TO THE APPOINTMENT AS THE
INITIAL REGISTERED AGENT
/s/ Mark T. Thatcher
______________________________
REGISTERED AGENT
ARTICLE XIII
BOARD OF DIRECTORS
The board of directors of the corporation shall consist of no more than
eleven (11) directors, and the names and addresses of the persons who are
serving as directors until their successors are elected and shall qualify are
as follows:
Name Title Address
Emile Clavet Chairman 79 Shepley Street
Auburn, ME 04210
Doug Farrago Executive Vice President, 94 Shepley Street
Medical Informatics Auburn, ME 04210
Warren G. Malkerson 13574 Gates Avenue
Northfield, Minnesota 55057
Tom Caliandro 4703 Warren Street, NW
Washington, DC 20016
Albert Barber c/o e-Media
199 Elm Street
New Canaan, CT 06840
John Crispin 3 Pond Ridge Road
Lewiston, ME 04240
James Delamater c/o Northeast Bank, FSB
232 Center Street
Auburn, ME 04210
Judith Brown 1853 Mar West
Tiburon, CA 94920
Kevin Dean Executive Vice President, 98 Davis Avenue
Business Development/ Auburn, ME 04210
Treasurer/
Secretary of the Board
Heather Blease c/o EnvisioNet
3 Industrial Parkway
Brunswick,ME 04011
Jeffrey Laughlin 48 Constelation Wharf
Charlestown, MA 02129
The number of directors shall be fixed in accordance with the bylaws.
ARTICLE XIV
INDEMNIFICATION
The corporation may:
(A) Indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending, or completed action, suit, or
proceeding, whether civil, criminal, administrative, or investigative (other
than an action by or in the right of the corporation), by reason of the fact
that he is or was a director, officer, employee, fiduciary or agent of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee, fiduciary or agent of another corporation,
partnership, joint venture, trust, or other enterprise, against expenses
(including attorney fees), judgments, fines, and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit,
or proceeding, if he acted in good faith and in a manner he reasonably
believed to be in the best interests of the corporation and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit, or proceeding by
judgment, order, settlement, or conviction or upon a plea of nolo contendere
or its equivalent shall not of itself create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in
the best interests of the corporation and, with respect to any criminal action
or proceeding, had reasonable cause to believe his conduct was unlawful.
(B) The corporation may indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending, or completed
action or suit by or in the right of the corporation to procure a judgment in
its favor by reason of the fact that he is or was a director, officer,
employee, or agent of the corporation or is or was serving at the request of
the corporation as a director, officer, employee, fiduciary or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorney fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in the best
interests of the corporation; but no indemnification shall be made in respect
of any claim, issue, or matter as to which such person has been adjudged to be
liable for negligence or misconduct in the performance of his duty to the
corporation unless and only to the extent that the court in which such action
or suit was brought determines upon application that, despite the adjudication
of liability, but in view of all circumstances of the case, such person is
fairly and reasonably entitled to indemnification for such expenses which such
court deems proper.
(C) To the extent that a director, officer, employee, fiduciary or
agent of a corporation has been successful on the merits in defense of any
action, suit, or proceeding referred to in (A) or (B) of this Article XI or in
defense of any claim, issue, or matter therein, he shall be indemnified
against expenses (including attorney fees) actually and reasonably incurred by
him in connection therewith.
(D) Any indemnification under (A) or (B) of this Article XI (unless
ordered by a court) and as distinguished from (C) of this Article shall be
made by the corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee,
fiduciary or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in (A) or (B) above. Such
determination shall be made by the board of directors by a majority vote of a
quorum consisting of directors who were not parties to such action, suit, or
proceeding, or, if such a quorum is not obtainable or, even if obtainable, if
a quorum of disinterested directors so directs, by independent legal counsel
in a written opinion, or by the shareholders.
(E) Expenses (including attorney fees) incurred in defending a civil or
criminal action, suit, or proceeding may be paid by the corporation in advance
of the final disposition of such action, suit, or proceeding as authorized in
(C) or (D) of this Article XI upon receipt of an undertaking by or on behalf
of the director, officer, employee, fiduciary or agent to repay such amount
unless it is ultimately determined that he is entitled to be indemnified by
the corporation as authorized in this Article XI.
(F) The indemnification provided by this Article XI shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any bylaw, agreement, vote of shareholders or disinterested directors, or
otherwise, and any procedure provided for by any of the foregoing, both as to
action in his official capacity and as to action in another capacity while
holding such office, and shall continue as to a person who has ceased to be a
director, officer, employee, fiduciary or agent and shall inure to the benefit
of heirs, executors, and administrators of such a person.
(G) The corporation may purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee, fiduciary or agent of
the corporation or who is or was serving at the request of the corporation as
a director, officer, employee, fiduciary or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity or arising out
of his status as such, whether or not the corporation would have the power to
indemnify him against such liability under provisions of this Article XI.
ARTICLE XV
TRANSACTIONS WITH INTERESTED DIRECTORS
No contract or other transaction between the corporation and one (1) or
more of its directors or any other corporation, firm, association, or entity
in which one (1) or more of its directors are directors or officers or are
financially interested shall be either void or voidable solely because of such
relationship or interest, or solely because such directors are present at the
meeting of the board of directors or a committee thereof which authorizes,
approves, or ratifies such contract or transaction, or solely because their
votes are counted for such purpose if:
(A) The fact of such relationship or interest is disclosed or known to
the board of directors or committee which authorizes, approves, or ratifies
the contract or transaction by a vote or consent sufficient for the purpose
without counting the votes or consents of such interested directors;
(B) The fact of such relationship or interest is disclosed or known to
the shareholders entitled to vote and they authorize, approve, or ratify such
contract or transaction by vote or written consent; or
(C) The contract or transaction is fair and reasonable to the
corporation.
Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the board of directors or a committee
thereof which authorizes, approves, or ratifies such contract or
transaction.
ARTICLE XVI
VOTING OF SHAREHOLDERS
If a quorum is present, the affirmative vote of a majority of the
outstanding shares represented at the meeting and entitled to vote thereon, or
of any class or series, shall be the act of the shareholders.
IN WITNESS WHEREOF, the corporation ratified, approved and signed these
Articles of Incorporation on November 19, 1999.
______________________________
EMILE CLAVET
Chairman of the Board
STATE OF MAINE )
: ss
COUNTY OF ANDROSCOGGIN )
I, the undersigned, a notary public, hereby certify that on
_____________________, 1999, the above named officer and director personally
appeared before me and being by me first duly sworn declared that he is the
person who signed the foregoing document as officer and director, and that the
statements therein contained are true.
WITNESS my hand and official seal.
______________________________
Notary Public
Address:
(Seal) My Commission Expires:
BYLAWS
OF
ACADIA GROUP, INC.
(AMENDED AS OF NOVEMBER 19, 1999)
ARTICLE I
OFFICES
Section 1.1 PRINCIPAL OFFICE. The principal office of the corporation in
the State of Maine shall be located in the City of Auburn, County of
Androscoggin. The corporation may have such other offices, either within or
outside of the State of Colorado, as the Board of Directors may designate, or
as the business of the corporation may require from time to time.
Section 1.2 REGISTERED OFFICE. The registered office of the corporation,
required by the Colorado Business Corporation Act to be maintained in the
State of Colorado, may be, but need not be, identical with the principal
office in the State of Colorado, and the address of the registered office may
be changed from time to time by the Board of Directors.
ARTICLE II
SHAREHOLDERS
Section 2.1 ANNUAL MEETING. The annual meeting of the shareholders shall
be held on the last Tuesday of March in each year, commencing with the year
2000, at the hour of 10:00 A.M., or at such other time on such other day as
shall be fixed by the Board of Directors, for the purpose of electing
directors and for the transaction of such other business as may come before
the meeting. If the day fixed for the annual meeting shall be a legal holiday
in the State of Maine, such meeting shall be held on the next succeeding
business day. If the election of directors shall not be held on the day
designated herein for any annual meeting of the shareholders, or at any
adjournment thereof, the Board of Directors shall cause the election to be
held at a special meeting of the shareholders as soon thereafter as may be
convenient.
A shareholder may apply to the district court in the county in Colorado
where the corporation's principal office is located or, if the corporation has
no principal office in Colorado, to the district court of the county in which
the corporation's registered office is located to seek an order that a
shareholder meeting be held (i) if an annual meeting was not held within six
months after the close of the corporation's most recently ended fiscal year or
fifteen months after its last annual meeting, whichever is earlier, or (ii) if
the shareholder participated in a proper call or of proper demand for a
special meeting and notice of the special meeting was not given within thirty
days after the date of the call or the date the last of the demands necessary
to require calling of the meeting was received by the corporation pursuant to
C.R.S. § 7-107-102(1)(b), or the special meeting was not held in
accordance with the notice.
Section 2.2 SPECIAL MEETINGS. Special meetings of the shareholders, for
any purpose or purposes, unless otherwise prescribed by statute, may be called
by the Chairman or CEO or by the Board of Directors, and shall be called by
the Chairman or CEO upon the receipt of one or more written demands for a
special meeting, stating the purpose or purposes for which it is to be held,
signed and dated by the holders of shares representing at least ten percent of
all the votes entitled to be cast on any issue proposed to be considered at
the meeting.
Section 2.3 PLACE OF MEETINGS. The Board of Directors may designate any
place, either within or outside of the State of Colorado, as the place of
meeting for any annual meeting or for any special meeting called by the Board
of Directors. If no designation is made, or if a special meeting be otherwise
called, the place of meeting shall be the principal office of the corporation
in the State of Colorado.
Section 2.4 NOTICE OF MEETING. Written notice stating the place, day and
hour of the meeting of shareholders and, in case of a special meeting, the
purpose or purposes for which the meeting is called, shall, unless otherwise
prescribed by statute, be delivered not less than ten nor more than sixty days
before the date of the meeting, either personally or by mail, by or at the
direction of the Chairman or CEO, or the Secretary, or the officer or other
persons calling the meeting, to each shareholder of record entitled to vote at
such meeting; provided, however, that if the number of authorized shares is to
be increased, at least thirty days' notice shall be given.
Notice of a special meeting shall include a description of the purpose or
purposes of the meeting. Notice of an annual meeting need not include a
description of the purpose or purposes of the meeting except the purpose or
purposes shall be stated with respect to (i) an amendment to the articles of
incorporation of the corporation, (ii) a merger or share exchange in which the
corporation is a party and, with respect to a share exchange, in which the
corporation's shares will be acquired, (iii) a sale, lease, exchange or other
disposition, other than in the usual and regular course of business, of all or
substantially all of the property of the corporation or of another entity
which this corporation controls, in each case with or without the goodwill,
(iv) a dissolution of the corporation, or (v) any other purpose for which a
statement of purpose is required by the Colorado Business Corporation Act.
Notice shall be given personally or by mail, private carrier, telegraph,
teletype, electronically transmitted facsimile or other form of wire or
wireless communication by or at the direction of the president, the secretary,
or the officer or persons calling the meeting, to each shareholder of record
entitled to vote at such meeting. If mailed and if in a comprehensible form,
such notice shall be deemed to be given and effective when deposited in the
United States mail, addressed to the shareholder at his address as it appears
in the corporation's current record of shareholders, with postage prepaid. If
notice is given other than by mail, and provided that such notice is in a
comprehensible form, the notice is given and effective on the date received by
the shareholder.
If requested by the person or persons lawfully calling such meeting, the
notice shall be given at corporate expense.
When a meeting is adjourned to another date, time or place, notice need
not be given of the new date, time or place if the new date, time or place of
such meeting is announced before adjournment at the meeting at which the
adjournment is taken. At the adjourned meeting the corporation may transact
any business which may have been transacted at the original meeting. If the
adjournment is for more than 120 days, or if a new record date is fixed for
the adjourned meeting, a new notice of the adjourned meeting shall be given to
each shareholder of record entitled to vote at the meeting as of the new
record date.
A shareholder may waive notice of a meeting before or after the time and
date of the meeting by a writing signed by such shareholder. Such waiver shall
be delivered to the corporation for filing with the corporate records.
Further, by attending a meeting either in person or by proxy, a shareholder
waives objection to lack of notice or defective notice of the meeting unless
the shareholder objects at the beginning of the meeting to the holding of the
meeting or the transaction of business at the meeting because of lack of
notice or defective notice. By attending the meeting, the shareholder also
waives any objection to consideration in the meeting of a particular matter
not within the purpose or purposes described in the meeting notice unless the
shareholder objects to considering the matter when it is presented.
No notice need be sent to any shareholder if three successive notices
mailed to the last known address of such shareholder have been returned as
undeliverable until such time as another address for such shareholder is made
known to the corporation by such shareholder. In order to be entitled to
receive notice of any meeting, a shareholder shall advise the corporation in
writing of any change in such shareholder's mailing address as shown on the
corporation's books and records.
Section 2.5 MEETING OF ALL SHAREHOLDERS. If all of the shareholders shall
meet at any time and place, either within or outside of the State of Colorado,
and consent to the holding of a meeting at such time and place, such meeting
shall be valid without call or notice, and at such meeting any corporate
action may be taken.
Section 2.6 CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE. For the
purpose of determining shareholders entitled to notice of or to vote at any
meeting of shareholders or any adjournment thereof, or shareholders entitled
to receive payment of any distribution, or in order to make a determination of
shareholders for any other purpose, the Board of Directors of the corporation
may provide that the share transfer books shall be closed for a stated period
but not to exceed, in any case, seventy days. If the share transfer books
shall be closed for the purpose of determining shareholders entitled to notice
of or to vote at a meeting of shareholders, such books shall be closed for at
least ten days immediately preceding such meeting. In lieu of closing the
share transfer books, the Board of Directors may fix in advance a date as the
record date for any such determination of shareholders, such date in any case
to be not more than seventy days and, in case of a meeting of shareholders,
not less than ten days prior to the date on which the particular action,
requiring such determination of shareholders, is to be taken. If the share
transfer books are not closed and no record date is fixed for the
determination of shareholders entitled to notice of or to vote at a meeting of
shareholders, or shareholders entitled to receive payment of a distribution,
the date on which notice of the meeting is mailed or the date on which the
resolution of the Board of Directors declaring such distribution is adopted,
as the case may be, shall be the record date for such determination of
shareholders. When a determination of shareholders entitled to vote at any
meeting of shareholders has been made as provided in this section, such
determination shall apply to any adjournment thereof unless the meeting is
adjourned to a date more than one hundred twenty days after the date fixed for
the original meeting, in which case the Board of Directors shall make a new
determination as provided in this section.
Section 2.7 VOTING RECORD. The officer or agent having charge of the
stock transfer books for shares of the corporation shall make, at least ten
days before such meeting of shareholders, a complete record of the
shareholders entitled to vote at each meeting of shareholders or any adjournment
thereof, arranged by voting groups and within each voting group by class or
series of shares, in alphabetical order within each class or series, with the
address of and the number of shares held by each shareholder in each class or
series. For a period beginning the earlier of ten days before the meeting for
which the record was prepared or two business days after notice of the meeting
is given and continuing through the meeting, the record shall be kept on file
at the principal office of the corporation or at a place identified in the
notice of the meeting in the city where the meeting will be held, whether
within or outside of the State of Colorado, and shall be subject to inspection
by any shareholder upon written demand at any time during usual business
hours. Such record shall be produced and kept open at the time and place of
the meeting and shall be subject to the inspection of any shareholder during
the whole time of the meeting for the purposes thereof.
The original stock transfer books shall be the prima facie evidence as to
who are the shareholders entitled to examine the record or transfer books or
to vote at any meeting of shareholders.
Section 2.8 QUORUM. A majority of the votes entitled to be cast on the
matter by a voting group, represented in person or by proxy, constitutes a
quorum of that voting group for action on that matter. If no specific voting
group is designated in the Articles of Incorporation or under the Colorado
Business Corporation Act for a particular matter, all outstanding shares of
the corporation entitled to vote, represented in person or by proxy, shall
constitute a voting group. In the absence of a quorum at any such meeting, a
majority of the shares so represented may adjourn the meeting from time to
time for a period not to exceed one hundred twenty days without further
notice. However, if the adjournment is for more than one hundred twenty days,
or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each shareholder
of record entitled to vote at the meeting.
At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted
at the meeting as originally noticed. The shareholders present at a duly
organized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal during such meeting of that number of
shareholders whose absence would cause there to be less than a quorum.
Section 2.9 MANNER OF ACTING. If a quorum is present, the affirmative
vote of a majority of the outstanding shares represented at the meeting and
entitled to vote thereon, or of any class or series, shall be the act of the
shareholders.
Section 2.10 PROXIES. At all meetings of shareholders a shareholder may
vote by proxy by signing an appointment form or similar writing, either
personally or by his or her duly authorized attorney-in-fact. A shareholder
may also appoint a proxy by transmitting or authorizing the transmission of a
telegram, teletype, or other electronic transmission providing a written
statement of the appointment to the proxy, a proxy solicitor, proxy support
service organization, or other person duly authorized by the proxy to receive
appointments as agent for the proxy, or to the corporation. The transmitted
appointment shall set forth or be transmitted with written evidence from which
it can be determined that the shareholder transmitted or authorized the
transmission of the appointment. The proxy appointment form or similar writing
shall be filed with the secretary of the corporation before or at the time of
the meeting. The appointment of a proxy is effective when received by the
corporation and is valid for eleven months unless a different period is
expressly provided in the appointment form or similar writing.
Any complete copy, including an electronically transmitted facsimile, of
an appointment of a proxy may be substituted for or used in lieu of the
original appointment for any purpose for which the original appointment could
be used.
Revocation of a proxy does not affect the right of the corporation to
accept the proxy's authority unless (i) the corporation had notice that the
appointment was coupled with an interest and notice that such interest is
extinguished is received by the secretary or other officer or agent authorized
to tabulate votes before the proxy exercises his or her authority under the
appointment, or (ii) other notice of the revocation of the appointment is
received by the secretary or other officer or agent authorized to tabulate
votes before the proxy exercises his or her authority under the appointment.
Other notice of revocation may, in the discretion of the corporation, be
deemed to include the appearance at a shareholders' meeting of the shareholder
who granted the proxy and his or her voting in person on any matter subject to
a vote at such meeting.
The death or incapacity of the shareholder appointing a proxy does not
affect the right of the corporation to accept the proxy's authority unless
notice of the death or incapacity is received by the secretary or other
officer or agent authorized to tabulate votes before the proxy exercises his
or her authority under the appointment.
The corporation shall not be required to recognize an appointment made
irrevocable if it has received a writing revoking the appointment signed by
the shareholder (including a shareholder who is a successor to the shareholder
who granted the proxy) either personally or by his or her attorney-in-fact,
notwithstanding that the revocation may be a breach of an obligation of the
shareholder to another person not to revoke the appointment.
Section 2.11 VOTING OF SHARES. Unless otherwise provided by these Bylaws
or the Articles of Incorporation, each outstanding share entitled to vote
shall be entitled to one vote upon each matter submitted to a vote at a
meeting of shareholders, and each fractional share shall be entitled to a
corresponding fractional vote on each such matter. Only shares are entitled to
vote.
Section 2.12 VOTING OF SHARES BY CERTAIN SHAREHOLDERS. If the name on a
vote, consent, waiver, proxy appointment, or proxy appointment revocation
corresponds to the name of a shareholder, the corporation, if acting in good
faith, is entitled to accept the vote, consent, waiver, proxy appointment or
proxy appointment revocation and give it effect as the act of the shareholder.
If the name signed on a vote, consent, waiver, proxy appointment or proxy
appointment revocation does not correspond to the name of a shareholder, the
corporation, if acting in good faith, is nevertheless entitled to accept the
vote, consent, waiver, proxy appointment or proxy appointment revocation and
to give it effect as the act of the shareholder if:
(i) the shareholder is an entity and the name signed purports to be that
of an officer or agent of the entity;
(ii) the name signed purports to be that of an administrator, executor,
guardian or conservator representing the shareholder and, if the corporation
requests, evidence of fiduciary status acceptable to the corporation has been
presented with respect to the vote, consent, waiver, proxy appointment or
proxy appointment revocation;
(iii) the name signed purports to be that of a receiver or trustee in
bankruptcy of the shareholder and, if the corporation requests, evidence of
this status acceptable to the corporation has been presented with respect to
the vote, consent, waiver, proxy appointment or proxy appointment revocation;
(iv) the name signed purports to be that of a pledgee, beneficial owner
or attorney-in-fact of the shareholder and, if the corporation requests,
evidence acceptable to the corporation of the signatory's authority to sign
for the shareholder has been presented with respect to the vote, consent,
waiver, proxy appointment or proxy appointment revocation;
(v) two or more persons are the shareholder as co-tenants or fiduciaries
and the name signed purports to be the name of at least one of the co-tenants
or fiduciaries, and the person signing appears to be acting on behalf of all
the co-tenants or fiduciaries; or
(vi) the acceptance of the vote, consent, waiver, proxy appointment or
proxy appointment revocation is otherwise proper under rules established by
the corporation that are not inconsistent with this Section 2.12.
The corporation is entitled to reject a vote, consent, waiver, proxy
appointment or proxy appointment revocation if the secretary or other officer
or agent authorized to tabulate votes, acting in good faith, has reasonable
basis for doubt about the validity of the signature on it or about the
signatory's authority to sign for the shareholder.
Neither the corporation nor any of its directors, officers employees, or
agents who accepts or rejects a vote, consent, waiver, proxy appointment or
proxy appointment revocation in good faith and in accordance with the
standards of this Section is liable in damages for the consequences of the
acceptance or rejection.
Redeemable shares are not entitled to be voted after notice of redemption
is mailed to the holders and a sum sufficient to redeem the shares has been
deposited with a bank, trust company or other financial institution under an
irrevocable obligation to pay the holders of the redemption price on surrender
of the shares.
Section 2.13 ACTION BY SHAREHOLDERS WITHOUT A MEETING. Unless the
Articles of Incorporation or these Bylaws provide otherwise, action required
or permitted to be taken at a meeting of shareholders may be taken without a
meeting if the action is evidenced by one or more written consents describing
the action taken, signed by each shareholder entitled to vote and delivered to
the Secretary of the corporation for inclusion in the minutes or for filing
with the corporate records. Action taken under this section is effective when
all shareholders entitled to vote have signed the consent, unless the consent
specifies a different effective date.
Any such writing may be received by the corporation by electronically
transmitted facsimile or other form of wire or wireless communication
providing the corporation with a complete copy thereof, including a copy of
the signature thereto. The shareholder so transmitting such a writing shall
furnish an original of such writing to the corporation, but the failure of the
corporation to receive or record such original writing shall not affect the
action so taken.
The record date for determining shareholders entitled to take action
without a meeting shall be the date the written consent is first received by
the corporation.
Section 2.14 VOTING BY BALLOT. Voting on any question or in any election
may be by voice vote unless the presiding officer shall order or any
shareholder shall demand that voting be by ballot.
Section 2.15 NO CUMULATIVE VOTING. No shareholder shall be permitted to
cumulate his or her votes.
Section 2.16 WAIVER OF NOTICE. When any notice is required to be given to
any shareholder, a waiver thereof in writing signed by the person entitled to
such notice, whether before, at, or after the time stated therein, shall be
equivalent to the giving of such notice.
The attendance of a shareholder at any meeting shall constitute a waiver
of notice, waiver of objection to defective notice of such meeting, or a
waiver of objection to the consideration of a particular matter at the
shareholder meeting unless the shareholder, at the beginning of the meeting,
objects to the holding of the meeting, the transaction of business at the
meeting, or the consideration of a particular matter at the time it is
presented at the meeting.
Section 2.17 PARTICIPATION BY ELECTRONIC MEANS. Any shareholder may
participate in any meeting of the shareholders by means of telephone
conference or similar communications equipment by which all persons
participating in the meeting can hear each other at the same time. Such
participation shall constitute presence in person at the meeting.
ARTICLE III
BOARD OF DIRECTORS
Section 3.1 GENERAL POWERS. The business and affairs of the corporation
shall be managed by its Board of Directors. Any and all wholly owned
Subsidiarys of the Corporation or business relationship where the Corporation
controls more than 50% of the relationship shall also be governed by the Board
of Directors of the Corporation.
Section 3.2 PERFORMANCE OF DUTIES. A director of the corporation shall
perform his or her duties as a director, including his or her duties as a
member of any committee of the board upon which he or she may serve, in good
faith, in a manner he or she reasonably believes to be in the best interests
of the corporation, and with such care as an ordinarily prudent person in a
like position would use under similar circumstances. In performing his duties,
a director shall be entitled to rely on information, opinions, reports, or
statements, including financial statements and other financial data, in each
case prepared or presented by persons and groups listed in paragraphs (a),
(b), and (c) of this Section 3.2; but he or she shall not be considered to be
acting in good faith if he or she has knowledge concerning the matter in
question that would cause such reliance to be unwarranted. A person who so
performs his or her other duties shall not have any liability by reason of
being or having been a director of the corporation. Those persons and groups
on whose information, opinions, reports, and statements a director is entitled
to rely are:
(a) One or more officers or employees of the corporation whom the
director reasonably believes to be reliable and competent in the matters
presented;
(b) Legal counsel, public accountants, or other persons as to matters
which the director reasonably believes to be within such persons' professional
or expert competence; or
(c) A committee of the board upon which he or she does not serve, duly
designated in accordance with the provision of the Articles of Incorporation
or the Bylaws, as to matters within its designated authority, which committee
the director reasonably believes to merit confidence.
Section 3.3 NUMBER, TENURE AND QUALIFICATIONS. The number of directors
of the corporation shall be fixed from time to time by resolution of the Board
of Directors, but in no instance shall there be less than one director. Each
director shall hold office for a three year term or until his or her successor
shall have been elected and qualified. Directors need not be residents of the
State of Colorado or shareholders of the corporation.
There shall be a Chairman of the Board, who has been elected from
among the directors. He or she shall preside at all meetings of the
stockholders and of the Board of Directors. He or she shall have such other
powers and duties as may be prescribed by the Board of Directors.
There shall be at least two (2) independent directors as defined by the
Colorado Business Corporation Act of 1994, as amended.
Section 3.4 REGULAR MEETINGS. A regular meeting of the Board of Directors
shall be held without other notice than this Bylaw immediately after, and at
the same place as, the annual meeting of shareholders. The Board of Directors
may provide, by resolution, the time and place, either within or without the
State of Colorado, for the holding of additional regular meetings without
other notice than such resolution.
Section 3.5 SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called by or at the request of the Chairman or CEO or any two
directors. The person or persons authorized to call special meetings of the
Board of Directors may fix any place, either within or without the State of
Colorado, as the place for holding any special meeting of the Board of
Directors called by them.
Section 3.6 NOTICE. Written notice of any special meeting of directors
shall be given as follows:
By mail to each director at his or her business address at least two days
prior to the meeting; or
By personal delivery, facsimile or telegram at least twenty-four hours
prior to the meeting to the business address of each director, or in the event
such notice is given on a Saturday, Sunday or holiday, to the residence
address of each director. If mailed, such notice shall be deemed to be
delivered when deposited in the United States mail, so addressed, with postage
thereon prepaid. If notice is given by facsimile, such notice shall be deemed
to be delivered when a confirmation of the transmission of the facsimile has
been received by the sender. If notice be given by telegram, such notice shall
be deemed to be delivered when the telegram is delivered to the telegraph
company.
Any director may waive notice of any meeting.
The attendance of a director at any meeting shall constitute a waiver of
notice of such meeting, except where a director attends a meeting for the
express purpose of objecting to the transaction of any business because the
meeting is not lawfully called or convened.
Neither the business to be transacted at, nor the purpose of, any regular
or special meeting of the Board of Directors need be specified in the notice
or waiver of notice of such meeting.
When any notice is required to be given to a director, a waiver thereof
in writing signed by such director, whether before, at or after the time
stated therein, shall constitute the giving of such notice.
Section 3.7 QUORUM. A majority of the number of directors fixed by or
pursuant to Section 3.3 of this Article III, or if no such number is fixed, a
majority of the number of directors in office immediately before the meeting
begins, shall constitute a quorum for the transaction of business at any
meeting of the Board of Directors, but if less than such majority is present
at a meeting, a majority of the directors present may adjourn the meeting from
time to time without further notice.
Section 3.8 MANNER OF ACTING. Except as otherwise required by law or by
the Articles of Incorporation, the affirmative vote of the majority of the
directors present at a meeting at which a quorum is present shall be the act
of the Board of Directors.
Section 3.9 INFORMAL ACTION BY DIRECTORS OR COMMITTEE MEMBERS. Unless the
Articles of Incorporation or these By-laws provide otherwise, any action
required or permitted to be taken at a meeting of the board of directors or
any committee designated by said board may be taken without a meeting if the
action is evidenced by one or more written consents describing the action
taken, signed by each director or committee member, and delivered to the
Secretary for inclusion in the minutes or for filing with the corporate
records. Action taken under this section is effective when all directors or
committee members have signed the consent, unless the consent specifies a
different effective date. Such consent has the same force and effect as a
unanimous vote of the directors or committee members and may be stated as such
in any document.
Section 3.10 PARTICIPATION BY ELECTRONIC MEANS. Any members of the Board
of Directors or any committee designated by such Board may participate in a
meeting of the Board of Directors or committee by means of telephone
conference or similar communications equipment by which all persons
participating in the meeting can hear each other at the same time. Such
participation shall constitute presence in person at the meeting.
Section 3.11 VACANCIES. Any vacancy on the Board of Directors may be
filled by the affirmative vote of a majority of the shareholders or the Board
of Directors. If the directors remaining in office constitute fewer than a
quorum of the board, the directors may fill the vacancy by the affirmative
vote of a majority of all the directors remaining in office.
If elected by the directors, the director shall hold office until the
next annual shareholders' meeting at which directors are elected. If elected
by the shareholders, the director shall hold office for the unexpired term of
his or her predecessor in office; except that, if the director's predecessor
was elected by the directors to fill a vacancy, the director elected by the
shareholders shall hold the office for the unexpired term of the last
predecessor elected by the shareholders.
If the vacant office was held by a director elected by a voting group of
shareholders, only the holders of shares of that voting group are entitled to
vote to fill the vacancy if it is filled by the shareholders, and, if one or
more of the remaining directors were elected by the same voting group, only
such directors are entitled to vote to fill the vacancy if it is filled by the
directors.
Section 3.12 RESIGNATION. Any director of the corporation may resign at
any time by giving written notice to the Secretary of the corporation. The
resignation of any director shall take effect upon receipt of notice thereof
or at such later time as shall be specified in such notice; and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective. When one or more directors shall resign from
the board, effective at a future date, a majority of the directors then in
office, including those who have so resigned, shall have power to fill such
vacancy or vacancies, the vote thereon to take effect when such resignation or
resignations shall become effective.
Section 3.13 REMOVAL. Subject to any limitations contained in the
Articles of Incorporation, any director or directors of the corporation may be
removed at any time, with or without cause, in the manner provided in the
Colorado Business Corporation Act.
Section 3.14 COMMITTEES. By resolution adopted by a majority of the Board
of Directors, the directors may designate two or more directors to constitute
a committee, any of which shall have such authority in the management of the
corporation as the Board of Directors shall designate and as shall be
prescribed by the Colorado Business Corporation Act and Article XI of these
Bylaws.
Section 3.15 COMPENSATION. By resolution of the Board of Directors and
irrespective of any personal interest of any of the members, or the Board of
Directors, each director may be paid his or her expenses, if any, of
attendance at each meeting of the Board of Directors, and may be paid a stated
salary as director or a fixed sum for attendance at each meeting of the Board
of Directors or both. No such payment shall preclude any director from serving
the corporation in any other capacity and receiving compensation therefor.
Section 3.16 PRESUMPTION OF ASSENT. A director of the corporation who is
present at a meeting of the Board of Directors or committee of the board at
which action on any corporate matter is taken shall be presumed to have
assented to the action taken unless (i) the director objects at the beginning
of the meeting, or promptly upon his or her arrival, to the holding of the
meeting or the transaction of business at the meeting and does not thereafter
vote for or assent to any action taken at the meeting, (ii) the director
contemporaneously requests that his or her dissent or abstention as to any
specific action taken be entered in the minutes of the meeting, or (iii) the
director causes written notice of his or her dissent or abstention as to any
specific action to be received by the presiding officer or the meeting before
its adjournment or by the corporation promptly after the adjournment of the
meeting. A director may dissent to a specific action at a meeting, while
assenting to others. The right to dissent to a specific action taken at a
meeting of the Board of Directors or a committee of the board shall not be
available to a director who voted in favor of such action.
ARTICLE IV
OFFICERS
Section 4.1 NUMBER. The officers of the corporation and controlled
subsidiarys shall be a CEO, President, a Secretary, and a Treasurer, each of
whom must be a natural person who is eighteen years or older and shall be
elected by the Board of Directors. Such other officers and assistant officers
as may be deemed necessary may be elected or appointed by the Board of
Directors. Any two or more offices may be held by the same person.
Section 4.2 ELECTION AND TERM OF OFFICE. The officers of the corporation
to be elected by the Board of Directors shall be elected annually by the Board
of Directors at the first meeting of the Board of Directors held after the
annual meeting of the shareholders. If the election of officers shall not be
held at such meeting, such election shall be held as soon thereafter as
practicable. Each officer shall hold office until his successor shall have
been duly elected and shall have qualified or until his or her death or until
he shall resign or shall have been removed in the manner hereinafter provided.
Section 4.3 REMOVAL AND RESIGNATION. Any officer or agent may be removed
by the Board of Directors at any time, with or without cause, but such removal
shall be without prejudice to the contract rights, if any, of the person so
removed. Election or appointment of an officer or agent shall not of itself
create contract rights.
An officer or agent may resign at any time by giving written notice of
resignation to the Secretary of the corporation. The resignation is effective
when the notice is received by the corporation unless the notice specifies a
later effective date.
Section 4.4 VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification or otherwise, may be filled by the
Board of Directors for the unexpired portion of the term.
Section 4.5 CEO. The CEO shall be the chief executive officer of the
corporation and, subject to the control of the Board of Directors, shall, in
general, supervise and control all of the business and affairs of the
corporation. He or she shall, when present, and in the absence of a Chairman
of the Board, preside at all meetings of the shareholders and of the Board of
Directors. He or she may sign, with the Secretary or any other proper officer
of the corporation thereunto authorized by the Board of Directors,
certificates for shares of the corporation and deeds, mortgages, bonds,
contracts, or other instruments which the Board of Directors has authorized to
be executed, except in cases where the signing and execution thereof shall be
expressly delegated by the Board of Directors or by these Bylaws to some other
officer or agent of the corporation, or shall be required by law to be
otherwise signed or executed; and in general shall perform all duties incident
to the office of CEO and such other duties as may be prescribed by the Board
of Directors from time to time.
Section 4.6 PRESIDENT. The President shall, in the absence of the CEO or in
the event of his or her death, inability or refusal to act, perform all duties
of the CEO, and when so acting, shall have all the powers of and be subject to
all the restrictions upon the CEO. The President may sign, with the Treasurer
or an Assistant Treasurer or the Secretary or an Assistant Secretary,
certificates for shares of the corporation; and shall perform such other
duties as from time to time may be assigned to him by the CEO or by the Board
of Directors.
Section 4.7 VICE PRESIDENT. If elected or appointed by the Board of Directors,
the Vice President (or in the event there be more than one vice president, the
vice presidents in the order designated at the time of their election, or in
the absence of any designation, then at the direction of the CEO) shall, in
the absence of the President or in the event of his or her death, inability or
refusal to act, perform all duties of the President, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
President. The Vice Presidents shall perform such other duties as are
designated by the CEO or Board of Directors.
Section 4.8 SECRETARY. The Secretary shall: (a) prepare and maintain as
permanent records the minutes of the proceedings of the shareholders and the
Board of Directors, a record of all actions taken by the shareholders or Board
of Directors without a meeting, a record of all actions taken by a committee
of the Board of Directors in place of the Board of Directors on behalf of the
corporation, and a record of all waivers of notice and meetings of
shareholders and of the Board of Directors or any committee thereof (b) ensure
that all notices are duly given in accordance with the provisions of these
Bylaws and as required by law, (c) serve as custodian of the corporate records
and of the seal of the corporation and affix the seal to all documents when
authorized by the Board of Directors, (d) keep at the corporation's registered
office or principal place of business a record containing the names and
addresses of all shareholders in a form that permits preparation of a list of
shareholders arranged by voting group and by class or series of shares within
each voting group, that is alphabetical within each class or series and that
shows the address of, and the number of shares of each class or series held
by, each shareholder, unless such a record shall be kept at the office of the
corporation's transfer agent or registrar, (e) maintain at the corporation's
principal office the originals or copies of the corporation's Articles of
Incorporation, Bylaws, minutes of all shareholders' meetings and records of
all action taken by shareholders without a meeting for the past three years,
all written communications within the past three years to shareholders as a
group or to the holders of any class or series of shares as a group, a list of
the names and business addresses of the current directors and officers, a copy
of the corporation's most recent corporate report filed with the Secretary of
State, and financial statements showing in reasonable detail the corporation's
assets and liabilities and results of operations for the last three years, (f)
have general charge of the stock transfer books of the corporation, unless the
corporation has a transfer agent, (g) authenticate records of the corporation,
and (h) in general, perform all duties incident to the office of secretary and
such other duties as from time to time may be assigned to him by the president
or by the board of the Board of Directors. Assistant Secretaries, if any,
shall have the same duties and powers, subject to supervision by the
Secretary. The directors and/or shareholders may however respectively
designate a person other than the Secretary or Assistant Secretary to keep the
minutes of their respective meetings.
Any books, records, or minutes of the corporation may be in written form
or in any form capable of being converted into written form within a
reasonable time.
Section 4.9 TREASURER. The Treasurer shall: (a) have charge and custody
of and be responsible for all funds and securities of the corporation; (b)
receive and give receipts for moneys due and payable to the corporation from
any source whatsoever, and deposit all such moneys in the name of the
corporation in such banks, trust companies or other depositories as shall be
selected in accordance with the provisions of Article V of these Bylaws; and
(c) in general perform all of the duties incident to the office of Treasurer
and such other duties as from time to time may be assigned to him or her by
the CEO or by the Board of Directors.
Section 4.10 ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The
Assistant Secretaries, when authorized by the Board of Directors, may sign
with the Chair or Vice Chair of the Board of Directors, CEO or the President
or a certificates for shares of the corporation the issuance of which shall
have been authorized by a resolution of the Board of Directors. The Assistant
Secretaries and Assistant Treasurers, in general, shall perform such duties as
shall be assigned to them by the Secretary or the Treasurer, respectively, or
by the CEO or the Board of Directors.
Section 4.11 BONDS. If the Board of Directors by resolution shall so
require, any officer or agent of the corporation shall give bond to the
corporation in such amount and with such surety as the Board of Directors may
deem sufficient, conditioned upon the faithful performance of their respective
duties and offices.
Section 4.12 SALARIES. The salaries of the officers shall be fixed from
time to time by the Board of Directors and no officer shall be prevented from
receiving such salary by reason of the fact that he is also a director of the
corporation.
ARTICLE V
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 5.1 CONTRACTS. The Board of Directors may authorize any officer
or officers, agent or agents, to enter into any contract or execute and
deliver any instrument in the name of and on behalf of the corporation, or any
controlled subsidiary and such authority may be general or confined to
specific instances.
Section 5.2 LOANS. No loans shall be contracted on behalf of the
corporation or controlled subsidiaries and no evidences of indebtedness shall
be issued in its name unless authorized by a resolution of the Board of
Directors. Such authority may be general or confined to specific instances.
Section 5.3 CHECKS, DRAFTS, ETC. All checks, drafts or other orders for
the payment of money, notes or other evidences of indebtedness issued in the
name of the corporation or controlled subsidiary shall be signed by such
officer or officers, agent or agents of the corporation and in such manner as
shall from time to time be determined by resolution of the Board of Directors.
Section 5.4 DEPOSITS. All funds of the corporation or controlled
subsidiary not otherwise employed shall be deposited from time to time to the
credit of the corporation in such banks, trust companies or other depositories
as the Board of Directors may select.
ARTICLE VI
SHARES, CERTIFICATES FOR SHARES
AND TRANSFER OF SHARES
Section 6.1 REGULATION. The Board of Directors may make such rules and
regulations as it may deem appropriate concerning the issuance, transfer and
registration of certificates for shares of the corporation, or controlled
subsidiary including the appointment of transfer agents and registrars.
Section 6.2 SHARES WITHOUT CERTIFICATES. Unless otherwise provided by the
Articles of Incorporation or these Bylaws, the board of directors may
authorize the issuance of any of its classes or series of shares without
certificates. Such authorization shall not affect shares already represented
by certificates until they are surrendered to the corporation.
Within a reasonable time following the issue or transfer of shares
without certificates, the corporation shall send the shareholder a complete
written statement of the information required on certificates by the Colorado
Business Corporation Act.
Section 6.3 CERTIFICATES FOR SHARES. If shares of the corporation are
represented by certificates, the certificates shall be respectively numbered
serially for each class of shares, or series thereof, as they are issued,
shall be impressed with the corporate seal or a facsimile thereof, and shall
be signed by the Chair or Vice Chair of the Board of Directors or by the CEO,
the President and by the Treasurer or an Assistant Treasurer or by the
Secretary or an Assistant Secretary; provided that such signatures may be
facsimile if the certificate is countersigned by a transfer agent, or
registered by a registrar other than the corporation itself or its employee.
Each certificate shall state the name of the corporation, the fact that the
corporation is organized or incorporated under the laws of the State of
Colorado, the name of the person to whom issued, the date of issue, the class
(or series of any class), and the number of shares represented thereby. A
statement of the designations, preferences, qualifications, limitations,
restrictions and special or relative rights of the shares of each class shall
be set forth in full or summarized on the face or back of the certificates
which the corporation shall issue, or in lieu thereof, the certificate may set
forth that such a statement or summary will be furnished to any shareholder
upon request without charge. Each certificate shall be otherwise in such form
as may be prescribed by the Board of Directors and as shall conform to the
rules of any stock exchange on which the shares may be listed.
The corporation shall not issue certificates representing fractional
shares and shall not be obligated to make any transfers creating a fractional
interest in a share of stock. The corporation may, but shall not be obligated
to, issue scrip in lieu of any fractional shares, such scrip to have terms and
conditions specified by the Board of Directors.
Section 6.4 CANCELLATION OF CERTIFICATES. All certificates surrendered to
the corporation for transfer shall be canceled and no new certificates shall
be issued in lieu thereof until the former certificate for a like number of
shares shall have been surrendered and canceled, except as herein provided
with respect to lost, stolen or destroyed certificates.
Section 6.5 LOST, STOLEN OR DESTROYED CERTIFICATES. Any shareholder
claiming that his certificate for shares is lost, stolen or destroyed may make
an affidavit or affirmation of that fact and lodge the same with the Secretary
of the corporation, accompanied by a signed application for a new certificate.
Thereupon, and upon the giving of a satisfactory bond of indemnity to the
corporation not exceeding an amount double the value of the shares as
represented by such certificate (the necessity for such bond and the amount
required to be determined by the CEO, President and Treasurer of the
corporation), a new certificate may be issued of the same tenor and
representing the same number, class and series of shares as were represented
by the certificate alleged to be lost, stolen or destroyed.
Section 6.6 TRANSFER OF SHARES. Subject to the terms of any shareholder
agreement relating to the transfer of shares or other transfer restrictions
contained in the Articles of Incorporation or authorized therein, shares of
the corporation shall be transferable on the books of the corporation by the
holder thereof in person or by his duly authorized attorney, upon the
surrender and cancellation of a certificate or certificates for a like number
of shares. Upon presentation and surrender of a certificate for shares
properly endorsed and payment of all taxes therefor, the transferee shall be
entitled to a new certificate or certificates in lieu thereof. As against the
corporation, a transfer of shares can be made only on the books of the
corporation and in the manner hereinabove provided, and the corporation shall
be entitled to treat the holder of record of any share as the owner thereof
and shall not be bound to recognize any equitable or other claim to or
interest in such share on the part of any other person, whether or not it
shall have express or other notice thereof, save as expressly provided by the
statutes of the State of Colorado.
ARTICLE VII
FISCAL YEAR
The fiscal year of the corporation shall end on the 30th day of September
in each calendar year.
ARTICLE VIII
DISTRIBUTIONS
The Board of Directors may from time to time declare, and the corporation
may pay, distributions on its outstanding shares in the manner and upon the
terms and conditions provided by the Colorado Business Corporation Act and its
Articles of Incorporation.
ARTICLE IX
CORPORATE SEAL
The Board of Directors shall provide a corporate seal which shall be
circular in form and shall have inscribed thereon the name of the corporation
and the state of incorporation and the words "CORPORATE SEAL."
ARTICLE X
The Board of Directors shall have power, to the maximum extent permitted
by the Colorado Business Corporation Act, to make, amend and repeal the Bylaws
of the corporation at any regular or special meeting of the board unless the
shareholders, in making, amending or repealing a particular Bylaw, expressly
provide that the directors may not amend or repeal such Bylaw. The
shareholders also shall have the power to make, amend or repeal the Bylaws of
the corporation at any annual meeting or at any special meeting called for
that purpose.
AMENDMENTS
ARTICLE XI
EXECUTIVE COMMITTEE
Section 11.1 APPOINTMENT. The Board of Directors by resolution adopted by
a majority of the full Board, may designate two or more of its members to
constitute an Executive Committee. The designation of such Committee and the
delegation thereto of authority shall not operate to relieve the Board of
Directors, or any member thereof, of any responsibility imposed by law.
Section 11.2 AUTHORITY. The Executive Committee, when the Board of
Directors is not in session, shall have and may exercise all of the authority
of the Board of Directors except to the extent, if any, that such authority
shall be limited by the resolution appointing the Executive Committee and
except also that the Executive Committee shall not have the authority of the
Board of Directors in reference to authorizing distributions, filling
vacancies on the Board of Directors, authorizing reacquisition of shares,
authorizing and determining rights for shares, amending the Articles of
Incorporation, adopting a plan of merger or consolidation, recommending to the
shareholders the sale, lease or other disposition of all or substantially all
of the property and assets of the corporation otherwise than in the usual and
regular course of its business, recommending to the shareholders a voluntary
dissolution of the corporation or a revocation thereof, or amending the Bylaws
of the corporation.
Section 11.3 TENURE AND QUALIFICATIONS. Each member of the Executive
Committee shall hold office until the next regular annual meeting of the Board
of Directors following his or her designation and until his or her successor
is designated as a member of the Executive Committee and is elected and
qualified.
Section 11.4 MEETINGS. Regular meetings of the Executive Committee may be
held without notice at such time and places as the Executive Committee may fix
from time to time by resolution. Special meetings of the Executive Committee
may be called by any member thereof upon not less than one day's notice
stating the place, date and hour of the meeting, which notice may be written
or oral, and if mailed, shall be deemed to be delivered when deposited in the
United States mail addressed to the member of the Executive Committee at his
or her business address. Any member of the Executive Committee may waive
notice of any meeting and no notice of any meeting need be given to any member
thereof who attends in person. The notice of a meeting of the Executive
Committee need not state the business proposed to be transacted at the
meeting.
Section 11.5 QUORUM. A majority of the members of the Executive Committee
shall constitute a quorum for the transaction of business at any meeting
thereof, and action of the Executive Committee must be authorized by the
affirmative vote of a majority of the members present at a meeting at which a
quorum is present.
Section 11.6 INFORMAL ACTION BY EXECUTIVE COMMITTEE. Any action required
or permitted to be taken by the Executive Committee at a meeting may be taken
without a meeting if a consent in writing, setting forth the action so taken,
shall be signed by all of the members of the Executive Committee entitled to
vote with respect to the subject matter thereof.
Section 11.7 VACANCIES. Any vacancy in the Executive Committee may be
filled by a resolution adopted by a majority of the full Board of Directors.
Section 11.8 RESIGNATIONS AND REMOVAL. Any member of the Executive
Committee may be removed at any time with or without cause by resolution
adopted by a majority of the full Board of Directors. Any member of the
Executive Committee may resign from the Executive Committee at any time by
giving written notice to the President or Secretary of the corporation, and
unless otherwise specified therein, the acceptance of such resignation shall
not be necessary to make it effective.
Section 11.9 PROCEDURE. The Executive Committee shall elect a presiding
officer from its members and may fix its own rules of procedure which shall
not be inconsistent with these Bylaws. It shall keep regular minutes of its
proceedings and report the same to the Board of Directors for its information
at the meeting thereof held next after the proceedings shall have been taken.
ARTICLE XII
EMERGENCY BY-LAWS
The Emergency Bylaws provided in this Article XII shall be operative
during any emergency in the conduct of the business of the corporation
resulting from a catastrophic event that prevents the normal functioning of
the offices of the Corporation, notwithstanding any different provision in the
preceding articles of the Bylaws or in the Articles of Incorporation of the
corporation or in the Colorado Business Corporation Act. To the extent not
inconsistent with the provisions of this Article, the Bylaws provided in the
preceding articles shall remain in effect during such emergency and upon its
termination the Emergency Bylaws shall cease to be operative.
During any such emergency:
(a) A meeting of the Board of Directors may be called by any officer or
director of the corporation. Notice of the time and place of the meeting shall
be given by the person calling the meeting to such of the directors as it may
be feasible to reach by any available means of communication. Such notice
shall be given at such time in advance of the meeting as circumstances permit
in the judgment of the person calling the meeting.
(b) At any such meeting of the Board of Directors, a quorum shall consist
of the number of directors in attendance at such meeting.
(c) The Board of Directors, either before or during any such emergency,
may, effective in the emergency, change the principal office or designate
several alternative principal offices or regional offices, or authorize the
officers so to do.
(d) The Board of Directors, either before or during any such emergency,
may provide, and from time to time modify, lines of succession in the event
that during such an emergency any or all officers or agents of the corporation
shall for any reason be rendered incapable of discharging their duties.
(e) No officer, director or employee acting in accordance with these
Emergency Bylaws shall be liable except for willful misconduct.
(f) These Emergency Bylaws shall be subject to repeal or change by
further action of the Board of Directors or by action of the shareholders, but
no such repeal or change shall modify the provisions of the next preceding
paragraph with regard to action taken prior to the time of such repeal or
change. Any amendment of these Emergency Bylaws may make any further or
different provision that may be practical and necessary for the circumstances
of the emergency.
CERTIFICATE
I hereby certify that the foregoing Amended Bylaws, consisting of twenty
(20) pages, including this page, constitute the Bylaws of ACADIA GROUP, INC.,
adopted by the Board of Directors and Shareholders of the corporation as of
November 19, 1999.
_________________________________________
KEVIN B. DEAN
Secretary
Merger Agreement
This Agreement of Merger made this 19th day of November, 1999 by and
between MedLecture.com, Inc., a Maine Corporation with a principal place of
business in Auburn, Maine (hereinafter referred to as "MedLecture.com"),
Acadia National Health Systems, Inc., a Colorado Corporation with a principal
place of business in Auburn, Maine (hereinafter referred to as "Acadia
Group"), WorldLecture.com, Inc., a Colorado Corporation with a principal place
of business in Auburn, Maine (hereinafter referred to as "WorldLecture.com"),
Douglas Farrago, M.D. of Auburn, Maine, Raymond Stone, D.O. of New
Gloucester, Maine, Diane Stone of New Gloucester, Maine, Kevin B. Dean of
Auburn, Maine, and Emile L. Clavet of Auburn, Maine (hereinafter collectively
referred to as the "MedLecture.com Shareholders" and individually referred to
as "Dr. Farrago," "Dr. Stone," "Mrs. Stone," "Mr. Dean," and "Mr. Clavet"),
W i t n e s s:
Whereas, Articles of Incorporation for MedLecture.com were filed with the
Maine Secretary of State on October 7, 1999; and
Whereas, Articles of Incorporation for Acadia Group were filed with the
Colorado Secretary of State on August 2, 1996; and
Whereas, the Articles of Incorporation for Acadia Group were subsequently
restated pursuant to Restated Articles of Incorporation dated June 15, 1998
and December 13, 1996; and
Whereas, Acadia Group has been authorized by its Shareholders to change
its name from Acadia National Health Systems, Inc. to Acadia Group, Inc.
pursuant to a vote of the Shareholders on or about November 19, 1999 (the
"Vote"); and
Whereas, Acadia Group has been authorized to transfer all assets relating
to its medical billing practice to a wholly owned subsidiary to be known as
Acadia National Health Systems, Inc. pursuant to the Vote; and
Whereas, Articles of Incorporation for WorldLecture.com were filed with
the Colorado Secretary of State on November 8, 1999; and
Whereas, MedLecture.com is authorized to issue 2,000 shares of common
stock without par value of which 100 common voting shares (the "MedLecture.com
Shares") are issued and outstanding; and
Whereas, the MedLecture.com Shareholders are the registered and
beneficial owners of the MedLecture.com Shares as follows:
Dr. Farrago: 45 shares
Mr. Dean: 22.5 shares
Dr. Stone: 5 shares
Mrs. Stone: 5 shares
Mr. Clavet: 22.5 shares
Total: 100 shares; and
Whereas, Acadia Group is authorized to issue 100,000,000 shares of stock
divided into 50,000,000 shares of common voting stock with no par value (the
"Acadia Group Common Shares") and 50,000,000 Series A Convertible Preferred
Shares (the "Acadia Group Preferred Shares") of stock with a par value of
$100.00 per share (the Acadia Group Common Shares and the Acadia Group
Preferred Shares are hereinafter collectively referred to as the "Acadia Group
Shares"); and
Whereas, there are currently 5,013,987 shares of Acadia Group Common
Shares issued and outstanding and there are currently no shares of Acadia
Group Preferred Shares issued and outstanding; and
Whereas, WorldLecture.com is authorized to issue 1,000,000 shares of
common stock without par value of which 1,000 common voting shares (the
"WorldLecture.com Shares") are issued and outstanding; and
Whereas, WorldLecture.com is a wholly owned subsidiary of Acadia Group;
and
Whereas, the parties to this Agreement have agreed to merge
MedLecture.com with and into WorldLecture.com, with WorldLecture.com being the
surviving corporation; and
Whereas, in the course of said merger, Dr. Farrago, Dr. Stone, Mrs.
Stone, Mr. Dean, and Mr. Clavet shall exchange their MedLecture.com Shares for
Acadia Group Common Shares, subject to the terms and conditions set forth in
this Agreement.
Now, Therefore, in consideration of the mutual promises and covenants
contained herein, the parties hereto agree as follows:
1. Merger. A. Exchange of Shares. Subject to the terms and
conditions of this Agreement, the parties hereto agree to merge MedLecture.com
with and into WorldLecture.com in accordance with the Articles of Merger to be
filed in the States of Maine and Colorado (the "Merger"). In conjunction with
the Merger, Dr. Farrago, Dr. Stone, Mrs. Stone, Mr. Dean, and Mr. Clavet agree
to transfer their MedLecture.com Shares to Acadia Group, and Acadia Group
agrees to deliver to Dr. Farrago, Dr. Stone, Mrs. Stone, Mr. Dean, and Mr.
Clavet Acadia Group Commons Shares equal in number to the number of Acadia
Group Common Shares issued and outstanding immediately prior to the Merger,
plus unissued shares designated for use under employment agreements, or other
similar contractual agreements, whether verbal or written, or designated for
issuance to Acadia Group's employees, agents, or third parties (the "Merger
Shares"), said stock to be issued and distributed to Dr. Farrago, Dr. Stone,
Mrs. Stone, Mr. Dean, an Mr. Clavet as follows:
Dr. Farrago: 45 %
Mr. Dean: 22.5%
Dr. Stone: 5 %
Mrs. Stone: 5 %
Mr. Clavet: 22.5%
The MedLecture.com Shares are represented by Certificates #1, 2, 3, 4, and 5
copies of which are attached hereto as Exhibit "1A" and made a part hereof.
Evidence that the Merger Shares to be issued to Dr. Farrago, Dr. Stone, Mrs.
Stone, Mr. Dean, and Mr. Clavet in conjunction with the Merger will be issued
in conjunction with the Merger is attached hereto as Exhibit "1B."
For purposes of this Agreement, "accredited investor" shall mean any
person who comes within any of the following categories, or who the issuer
reasonably believes comes within any of the following categories, at the time
of the sale of the securities to that person:
(1)Any director, executive officer, or general partner of the issuer of
the securities being offered and sold, or any director, executive officer, or
general partner of a general partner of that issuer;
(2)Any natural person whose individual net worth, or joint net worth with
that person's spouse, at the time of his purchase exceeds $1,000,000;
(3)Any natural person who had an individual income in excess of $200,000
in each of the two most recent years or joint income with that person's spouse
in excess of $300,000 in each of those years and has a reasonable expectation
of reaching the same income level in the current year;
(4)Any trust, with total assets in excess of $5,000,000, not formed for
the specific purpose of acquiring the securities offered, whose purchase is
directed by a sophisticated person as described in Regulation Section
230.506(b)(2)(ii); and
(5)Any entity in which all of the equity owners are accredited investors.
Dr. Farrago ____ is ____ is not an accredited investor._____ DF
Mr. Dean ____ is ____ is not an accredited investor._____ KBD
Dr. Stone ____ is ____ is not an accredited investor._____ RS
Mrs. Stone ____ is ____ is not an accredited investor._____ DS
Mr. Clavet ____ is ____ is not an accredited investor._____ ELC
B. Surviving Corporation. The surviving corporation shall be
WorldLecture.com. The Articles of Incorporation and Bylaws of
WorldLecture.com are attached hereto as Exhibit "1C" and made a part hereof.
The list of initial Officers and Directors of WorldLecture.com is attached
hereto as Exhibit "1D" and made a part hereof.
C. Registration. Acadia Group hereby represents that the Merger
Shares shall, as of the Effective Date of Merger, as defined below, be
registered under the Securities Exchange Act of 1934 (the "1934 Act") and
shall be subject to no restriction or limitation with respect to the initial
issue or subsequent transfer thereof, other than those transfer restrictions
as prescribed and set forth in Rule 144 of the Securities Act of 1933 (the
"1933 Act"). Acadia Group shall register the Merger Shares under the 1933
Act, at such time as the Chairman of the Board of Directors deems
appropriate. Acadia Group shall pay all expenses incident to registration of
the Merger Shares under the 1933 Act including, without limitation, all
registration filing fees, fees and expenses of compliance with the 1933 Act,
printing expenses, messenger and delivery expenses, fees and disbursements of
counsel and all independent public accountants and other persons retained by
Acadia Group, along with any fees and disbursements of underwriters
customarily paid by issuers or sellers of securities. In order to accomplish
the registration of the Merger Shares, Acadia Group shall (i) prepare and file
with the Securities and Exchange Commission ("SEC") a registration
statement(s) with respect to the Merger Shares, (ii) prepare and file with the
SEC such amendments and supplements to such registration statement(s) and any
prospectus used in connection therewith as may be necessary to keep such
registration statement(s) effective and current, (iii) furnish to each holder
of securities to be registered such number of copies of such registration
statement(s) and each such amendment and supplement thereto, along with such
number of copies of the prospectus as the holders of the Merger Shares shall
reasonably request, and (iv) do any and all other acts and things which may be
reasonably necessary or advisable for the registration of the Merger Shares.
2. Effect of Merger. WorldLecture.com, as the surviving corporation,
shall possess all of the rights, privileges, immunities, and contracts of
MedLecture.com. In addition, all property, tangible, intangible, real,
personal and mixed, all intellectual property, all debts due on whatever
account, all other choses in action, and all and every other interest, of or
belonging to or due to MedLecture.com, including, but not limited to, any and
all tax benefits and burdens, deductions, losses, and other incidences,
whether income tax or otherwise, any and all Licensing Agreements, Lecturer
Agreements, Web Site Agreements, Web Services Agreements, any and all other
legal documents naming MedLecture.com as a party, debtor, guarantor, or
otherwise, shall be taken and be deemed to be transferred to and vested in
WorldLecture.com without further act or deed, and the title to any real or
personal property, or any interest therein, vested in MedLecture.com shall not
revert or be in any way impaired by reason of such merger and the rights of
creditors or any liens upon the property of MedLecture.com shall not be
impaired by such merger. The contracts, property, rights, privileges,
immunities, debts, and obligations referred to in this Item 2 are more fully
described in Exhibit "2E" attached hereto and made a part hereof.
3. Modification to Articles of Incorporation/Bylaws. Upon the
Effective Date of Merger, as defined below, the Articles of Incorporation and
Bylaws for WorldLecture.com shall remain unchanged. Acadia Group will take
such actions as are necessary to facilitate an amendment to its Articles of
Incorporation and Bylaws (i) to remove any so-called "shark repellent"
provisions diluting the voting power of certain shareholders, (ii) to
formalize the name change of Acadia Group to Acadia Group from Acadia National
Health Systems, Inc., and (iii) to make such other amendments or other
modifications as the Shareholders of Acadia Group direct.
4. Articles of Merger and Effective Date. A. Articles of Merger.
Upon the execution of this Agreement, MedLecture.com and WorldLecture.com
shall execute, by and through their duly authorized officers, Articles of
Merger substantially similar to the Articles attached hereto as Exhibit "4F"
and made a part hereof. The Articles of Merger shall be filed with the Maine
Secretary of State and the Colorado Secretary of State immediately upon
execution.
B. Effective Date of Merger. The effective date of Merger shall be
November 19, 1999, or the date of acceptance of filing of the Articles of
Merger with the States of Maine and Colorado, if later (the "Effective Date of
Merger"). The Merger shall be completed at the offices of Acadia Group, 415
Rodman Road, Auburn, Maine 04210 or such other place as the parties mutually
agree, and the Merger shall take place at such time as shall be mutually
agreed upon the parties, but in all events no later than December 1, 1999.
5. Conditions Precedent to Merger. This Agreement, and the
obligations of the parties hereto, shall be subject to the following
conditions:
A. This Agreement, and the transactions contemplated herein, must
be approved by the Shareholders and Directors of MedLecture.com,
WorldLecture.com and Acadia Group;
B. There shall be no actual or threatened action or proceeding by
or before any court or other governmental body that represents a bona fide
claim to restrain, prohibit, or invalidate the transactions contemplated by
this Agreement;
C. Acadia Group and WorldLecture.com shall provide to
MedLecture.com a Certificate indicating that it has completed its due
diligence review, that the results of the review are satisfactory, and that
they wish to proceed with the Merger. MedLecture.com shall provide to Acadia
Group and WorldLecture.com a Certificate indicating that it has completed its
due diligence review, that it is satisfied with the results of its review, and
that it desires to complete the Merger;
D. Counsel to Acadia Group and WorldLecture.com shall provide to
MedLecture.com an Opinion of Counsel in the form attached hereto as Exhibit
"5G" and made a part hereof;
E. Counsel for MedLecture.com shall provide to Acadia Group and
WorldLecture.com an Opinion of Counsel in the form attached hereto as Exhibit
"5H" and made a part hereof;
F. Each party hereto shall have complied with all of its respective
covenants and agreements contained in this Agreement; and
G. Acadia Group shall receive a tax and accounting opinion from its
accountants of choice indicating that the tax and accounting consequences of
the Merger to Acadia Group are not adverse to the interests of Acadia
Group.
6. Representations and Warranties. A. Acadia
Group/WorldLecture.com. Acadia Group and WorldLecture.com hereby represent
and warrant as follows:
1. Acadia Group and WorldLecture.com are duly organized, validly
existing, and in good standing under their States of Incorporation and they
have authority to conduct business in any and all states in which they
currently conduct business. Acadia Group and WorldLecture.com have full power
and authority to carry on their respective businesses as now conducted and to
operate their respective businesses and execute and deliver this Agreement and
to perform the terms of this Agreement;
2. Acadia Group's and WorldLecture.com's authorized and issued
shares of stock are as set forth in the Recitals to this Agreement;
3. All of the shares of Acadia Group and WorldLecture.com are
validly issued and outstanding, fully paid, and non-assessable, registered in
the names of, and beneficially owned by, the parties appearing on the face of
the Stock Certificates, free and clear of all voting restrictions, liens,
charges, encumbrances, or restrictions, other than the restrictions more fully
described in Exhibit "6I" attached hereto and made a part hereof. Other than
as more fully described in Exhibit "6J" attached hereto and made a part
hereof, there are no shares, options, convertible debentures, documents,
instruments, or other writings of any kind whatsoever affecting the shares of
Acadia Group and WorldLecture.com;
4. All of the material transactions of Acadia Group and
WorldLecture.com have been promptly and properly recorded or filed in or with
the books and records of Acadia Group and/or WorldLecture.com, and the minute
books of Acadia Group and WorldLecture.com contain all records of the meetings
and proceedings of shareholders and directors of Acadia Group and
WorldLecture.com, as the case may be, since their respective dates of
incorporation;
5. To the best of Acadia Group's and WorldLecture.com's knowledge,
information and belief, Acadia Group and WorldLecture.com holds all licences,
approvals, orders, franchises, rights, registrations, and permits that are
required for carrying on their businesses in the manner in which such
businesses have been carried on and to the best of Acadia Group's and
WorldLecture.com's knowledge, all such permits are currently in full force and
effect and Acadia Group and WorldLecture.com are in compliance therewith,
except to the extent non-compliance would not have a material adverse effect
on the business of Acadia Group and WorldLecture.com;
6. To the best of Acadia Group's and WorldLecture.com's knowledge,
information, and belief, no third party privacy or intellectual property
rights, including without limitation, copyright, trade secret or patent
rights, were violated in the creation, compilation or acquisition of their
assets; Acadia Group and WorldLecture.com solely own and have the exclusive
right to use all of their respective intellectual property and the trade
secrets, know-how, and technology used in the operation of their respective
businesses, and Acadia Group and WorldLecture.com have the right to use said
property without infringement or violation of rights of others;
7. Any and all financial information provided by Acadia Group and
WorldLecture.com to the other parties to this Agreement is true and correct in
every material aspect and presents fairly and accurately the financial
position and results of the operations of Acadia Group and WorldLecture.com
for the periods then ended, and the financial information presented has been
prepared in accordance with generally accepted accounting principles applied
on a consistent basis;
8. Since September 29, 1999:
(i) no dividends or other distributions of any kind whatsoever on any
share in the capital of Acadia Group and WorldLecture.com have been made,
declared, or authorized, except as provided in Exhibit "6K" attached hereto
and made a part hereof;
(ii) Acadia Group and WorldLecture.com have not issued any additional
stock, borrowed any money, or incurred any debt other than debt incurred in
the ordinary course of business, except as provided in Exhibit "6L" attached
hereto and made a part hereof;
9. There are no material liabilities of Acadia Group and
WorldLecture.com, whether direct, indirect, absolute, contingent, or otherwise
which are not disclosed or reflected in Acadia Group's and WorldLecture.com's
Financial Statements except those incurred in the ordinary course of business
since the date that Acadia Group's and WorldLecture.com's Financial Statements
were prepared, all of which are recorded in the books and records of Acadia
Group and WorldLecture.com., as the case may be;
10. Since September 29, 1999:
(i) there has not been any material adverse change of any kind whatsoever
in the financial position or condition of Acadia Group and WorldLecture.com or
any damage, loss or other change of any kind whatsoever in circumstances
materially affecting the business or assets of Acadia Group and
WorldLecture.com or the right or capacity of Acadia Group and WorldLecture.com
to carry on its business;
(ii) Acadia Group and WorldLecture.com have not discharged, satisfied or
paid any lien, charge or encumbrance of an kind whatsoever or obligation or
liability of any kind whatsoever other than current liabilities in the
ordinary course of their respective businesses or as expressly permitted under
this Agreement; and
(iii) the businesses of Acadia Group and WorldLecture.com have been
carried on in the ordinary course;
11. Acadia Group and WorldLecture.com have not licensed, leased,
transferred, disposed of or encumbered any of their assets in anyway, except
as otherwise provided in Exhibit "6M" attached hereto and made a part hereof;
12. All tax returns and reports of Acadia Group and
WorldLecture.com required by law to be filed have been filed and are
substantially true, complete and correct and all taxes and other government
charges of any kind whatsoever of Acadia Group and WorldLecture.com have been
paid or accrued in Acadia Group's and WorldLecture.com's Financial Statements,
except as otherwise provided in Exhibit "6N" attached hereto and made a part
hereof;
13. To the best of Acadia Group's and WorldLecture.com's knowledge,
and except as otherwise provided in Exhibit "6O" attached hereto and made a
part hereof, there are no actions, suits, judgments, investigations or
proceedings of any kind whatsoever outstanding, pending or threatened against
or affecting Acadia Group and WorldLecture.com at law or in equity or before
or by any federal, provincial, state, municipal or other governmental
department, commission, board, bureau or agency of any kind whatsoever, and
there is no basis therefore;
14. To the best of Acadia Group's and WorldLecture.com's knowledge,
Acadia Group and WorldLecture.com are not in breach of any law, ordinance,
statute, regulation, bylaw, order or degree of any kind whatsoever;
15. Acadia Group and WorldLecture.com have good and sufficient
right and authority to enter into this Agreement and to complete the
transactions contemplated under this Agreement on the terms and conditions set
forth herein;
16. To the best of Acadia Group's and WorldLecture.com's knowledge,
the execution and delivery of this Agreement, the performance of their
respective obligations under this Agreement, and the completion of the
transactions contemplated under this Agreement will not:
(i) conflict with, or result in the breach of or the acceleration of any
indebtedness under, or constitute a default under any indenture, mortgage,
agreement, lease, license or other instrument of any kind whatsoever to which
either Acadia Group or WorldLecture.com is a party or by which it is bound, or
of any judgment or order of any kind whatsoever of any court or administrative
body of which either Acadia Group or WorldLecture.com is bound; or
(ii) result in the violation of any law or regulation of any kind
whatsoever by which Acadia Group or WorldLecture.com is bound;
17. Acadia Group and WorldLecture.com have not incurred any
liability for brokers' or finder's fees of any kind whatsoever with respect to
this Agreement or any transaction contemplated under this Agreement;
18. Acadia Group and WorldLecture.com are in compliance with all
SEC rules and regulations, to the extent applicable, and the transactions
contemplated under this Agreement will not result in a violation for
non-compliance therewith so long as the MedLecture.com Shareholders fully
complete and execute any Investment Representation Letter provided by Acadia
Group and/or WorldLecture.com as described in Regulation D of the 1933 Act;
19. The representations and warranties of Acadia Group and
WorldLecture.com contained in this Agreement disclose all material facts
specifically relating to the transactions involving Acadia Group and/or
WorldLecture.com contemplated under this Agreement which materially and
adversely affected, or in the future may materially or adversely affect, their
ability to perform their obligations under this Agreement;
20. The representations and warranties of Acadia Group and
WorldLecture.com contained in this Agreement shall be true as of the Effective
Date of Merger and shall survive the completion of the transactions
contemplated under this Agreement and remain in full force and effect
thereafter for the benefit of the other parties hereto for a period of one (1)
year after the Effective Date of Merger;
21. No consent, approval, order or authorization of, or
registration, declaration or filing with, any court, administrative agency or
other governmental agency or instrumentality, domestic or foreign or third
party is required by or with respect to Acadia Group and WorldLecture.com or
any corporate shareholder in connection with the execution and delivery by
Acadia Group and WorldLecture.com or any corporate shareholder of this
Agreement, or the completion of the transactions contemplated hereby, the
absence of which would have a material adverse effect on Acadia Group and
WorldLecture.com.;
22. To the best knowledge of Acadia Group and WorldLecture.com
or any of their subsidiaries, no written statement, certificate, schedule,
list or other information furnished by or on behalf of Acadia Group and
WorldLecture.com or any of their subsidiaries on or prior to the date hereof
in connection herewith contains (after giving effect to any correction thereof
furnished to Acadia Group or WorldLecture.com or any of their subsidiaries in
writing prior to the date hereof) any untrue statement of a material fact or
omits or will omit to state a material fact required to be stated herein or
therein or necessary to make the statements herein or therein, in light of the
circumstances under which they were made, not misleading;
23. Exhibit "6O-1" sets forth a true, complete and correct list
of all accounts and notes payable owed by Acadia Group or WorldLecture.com,
together with an appropriate aging schedule, as of November 1, 1999, which
lists separately all such amounts payable to any Acadia Group or
WorldLecture.com shareholder, director, officer, employee, or agent of Acadia
Group or WorldLecture.com, to Acadia Group or WorldLecture.com shareholders or
to any of the irrespective affiliates. To the best of Acadia Group's and
WorldLecture.com's knowledge, all accounts and notes payable of Acadia Group
and WorldLecture.com present bona fide claims against Acadia Group and
WorldLecture.com for services performed or other charges arising in the
ordinary course of business;
24. Exhibit "6O-2" sets forth a true, complete and correct list
of all contracts, agreements, and commitments of Acadia Group and
WorldLecture.com, whether or not made in the ordinary course of business,
including leases under which Acadia Group and WorldLecture.com is lessor or
lessee, which are to be performed in whole or in part after the Effective Date
of the Merger. To the best of Acadia Group's and WorldLecture.com's
knowledge, Acadia Group and WorldLecture.com have complied in all material
respects with all commitments, contracts, agreements, and obligations
pertaining to it listed in Exhibit "6O-2" and Acadia Group and
WorldLecture.com are not in material default under any such contracts and
agreements and no notice of material default has been received, in each case
which would have a material adverse effect on the business of Acadia Group or
WorldLecture.com.;
25. Except for the Employment Agreements in the form attached
hereto as Exhibit "6O-3" (the "Employment Agreements"), there are no oral or
written employment or consulting agreements to which Acadia Group and
WorldLecture.com is a party or by which Acadia Group and WorldLecture.com is
bound;
26. Exhibit "6O-4" sets forth a true, complete and correct list
of all material contracts, leases, and commitments by and between Acadia Group
and WorldLecture.com and any of its officers, directors, stockholders,
employees, or agents, or any affiliate of any such person. None of the
officers, directors, stockholders, or employees of Acadia Group and
WorldLecture.com owns, leases, or licenses any interest in any asset used by
Acadia Group and WorldLecture.com in their businesses, other than solely by
and through ownership of the capital stock of Acadia Group and
WorldLecture.com;
27. Except as set forth in Exhibit "6O-5," to the best of Acadia
Group's and WorldLecture.com's knowledge, Acadia Group and WorldLecture.com
own their material assets, whether real, personal or intangible, free and
clear of all encumbrance, except for (i) liens for current taxes and
assessments not yet due, or being contested in good faith by appropriate
proceedings, (ii) mechanic's liens arising under the operation of law or for
actions contested in good faith or for which payment arrangements have been
made, (iii) liens granted or incurred by Acadia Group and WorldLecture.com in
the ordinary course of their business or in connection with the financing of
office space, furniture and equipment in the ordinary course of its business,
(iv) easements, covenants, restrictions, and other exceptions to title of
record (which do not materially and adversely effect the operation of Acadia
Group and WorldLecture.com);
28. To the best of Acadia Group's and WorldLecture.com's
knowledge, Acadia Group and WorldLecture.com have complied with the
Occupational Safety and Health Act and all other laws relating to equal
employment of labor including, without limitation, laws relating to equal
employment opportunity and employment discrimination, employment of illegal
aliens, wages, hours and collective bargaining, the violation or failure to
comply with which would have a material adverse effect on the business of
Acadia Group and WorldLecture.com. Notwithstanding anything herein to the
contrary, Acadia Group and WorldLecture.com have complied with all laws
relating to the collection and payment of social security and withholding
taxes, or both, and similar taxes except where the failure to comply with such
laws would have a material adverse effect on the businesses of Acadia Group
and WorldLecture.com. To the best of Acadia Group's and WorldLecture.com's
knowledge, Acadia Group and WorldLecture.com are not liable for any arrearage
of wages or any taxes or penalties for failure to comply with any of the
foregoing, which would have a material adverse effect on the businesses of
Acadia Group and WorldLecture.com. To the best knowledge of Acadia Group and
WorldLecture.com, there are no organizational efforts presently being made or
threatened by or on behalf of any labor union with respect to any employees of
Acadia Group or WorldLecture.com, which would have a material adverse effect
on the businesses of Acadia Group and WorldLecture.com.;
29. Except as set forth in Exhibit "6O-6," Acadia Group and
WorldLecture.com have no other benefit plans (the "Benefit Plans") within the
meaning of the applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), the Code and other applicable
laws;
30. To the best knowledge of Acadia Group and WorldLecture.com
and all of their subsidiaries, Acadia Group and WorldLecture.com or any of
their subsidiaries have not engaged in a transaction in connection with which
they could be subject (either directly or indirectly) to a material liability
for either a civil penalty assessed pursuant to Section 502(i) of ERISA or a
tax imposed by Section 4975 of the Code;
31. To the best knowledge of Acadia Group and WorldLecture.com
and any of its subsidiaries, neither Acadia Group, WorldLecture.com, nor any
of their subsidiaries is in material default with respect to any obligation,
agreement, or covenant to be performed by them under any contract or
arrangement of any kind, which default would have a material adverse effect on
Acadia Group, WorldLecture.com, or any of their subsidiaries.
B. MedLecture.com. MedLecture.com hereby represents and warrants as
follows:
1. MedLecture.com is a Corporation duly organized, validly
existing, and in good standing under its State of Incorporation and it has
authority to conduct business in any and all states in which it conducts
business. It has full power and authority to carry on its business as now
conducted and to operate its business and to execute and deliver this
Agreement and to perform the terms of this Agreement;
2. MedLecture's authorized and issued shares of stock are as set
forth in the Recitals to this Agreement;
3. All of MedLecture's shares are validly issued and outstanding,
fully paid, and non-assessable, registered in the names of, and beneficially
owned by, the parties appearing on the face of the Stock Certificates, free
and clear of all voting restrictions, liens, charges, encumbrances, or
restrictions, other than the restrictions more fully described in Exhibit "6P"
attached hereto and made a part hereof. Other than as more fully described in
Exhibit "6Q" attached hereto and made a part hereof, there are no shares,
options, convertible debentures, documents, instruments, or other writings of
any kind whatsoever affecting the shares of MedLecture.;
4. All of the material transactions of MedLecture.com. have been
promptly and properly recorded or filed in or with the books and records of
MedLecture.com, and the minute books of MedLecture.com contain all records of
the meetings and proceedings of shareholders and directors of MedLecture.com
since its date of incorporation;
5. To the best of MedLecture's knowledge, information and belief,
MedLecture.com holds all licenses, approvals, orders, franchises, rights,
registrations, and permits that are required for carrying on its business in
the manner in which such business has been carried on and to the best of
MedLecture.com's knowledge, all such permits are currently in full force and
effect and MedLecture.com is in compliance therewith, except to the extent
non-compliance would not have a material adverse effect on the business of
MedLecture.com;
6. To the best of MedLecture.com's knowledge, information, and
belief, no third party privacy or intellectual property rights, including
without limitation, copyright, trade secret or patent rights, were violated in
the creation, compilation or acquisition of its assets; MedLecture.com solely
owns and has the exclusive right to use all of its intellectual property and
the trade secrets, know-how, and technology used in the operation of its
business, and MedLecture.com has the right to use said property without
infringement or violation of rights of others;
7. Any and all financial information provided by MedLecture.com to
the other parties to this Agreement is true and correct in every material
aspect and presents fairly and accurately the financial position and results
of the operations of MedLecture.com for the periods then ended, and the
financial information presented has been prepared in accordance with generally
accepted accounting principles applied on a consistent basis;
8. Since September 29, 1999:
(i) no dividends or other distributions of any kind whatsoever on any
share in the capital of MedLecture.com have been made, declared, or
authorized, except as provided in Exhibit "6R" attached hereto and made a part
hereof;
(ii) MedLecture.com has not issued any additional stock, borrowed any
money, or incurred any debt other than debt incurred in the ordinary course of
business, except as provided in Exhibit "6S" attached hereto and made a part
hereof;
9. There are no material liabilities of MedLecture.com, whether
direct, indirect, absolute, contingent, or otherwise which are not disclosed
or reflected in MedLecture.com's Financial Statements except those incurred in
the ordinary course of business since the date that MedLecture.com's Financial
Statements were prepared, all of which are recorded in the books and records
of MedLecture.com;
10. Since September 29, 1999:
(i) there has not been any material adverse change of any kind whatsoever
in the financial position or condition of MedLecture.com or any damage, loss
or other change of any kind whatsoever in circumstances materially affecting
the business or assets of MedLecture.com or the right or capacity of
MedLecture.com to carry on its business;
(ii) MedLecture.com has not discharged, satisfied or paid any lien,
charge or encumbrance of an kind whatsoever or obligation or liability of any
kind whatsoever other than current liabilities in the ordinary course of its
business or as expressly permitted under this Agreement; and
(iii) the business of MedLecture.com has been carried on in the ordinary
course;
11. MedLecture.com has not licensed, leased, transferred, disposed
of or encumbered any of its assets in anyway, except as otherwise provided in
Exhibit "6T" attached hereto and made a part hereof;
12. All tax returns and reports of MedLecture.com required by law
to be filed have been filed and are substantially true, complete and correct
and all taxes and other government charges of any kind whatsoever of
MedLecture.com have been paid or accrued in MedLecture.com's Financial
Statements except as otherwise provided in Exhibit "6U" attached hereto and
made a part hereof;
13. To the best of MedLecture.com's knowledge, and except as
otherwise provided in Exhibit "6V" attached hereto and made a part hereof,
there are no actions, suits, judgments, investigations or proceedings of any
kind whatsoever outstanding, pending or threatened against or affecting
MedLecture.com at law or in equity or before or by any federal, provincial,
state, municipal or other governmental department, commission, board, bureau
or agency of any kind whatsoever, and there is no basis therefore;
14. To the best of MedLecture.com's knowledge, MedLecture.com is
not in breach of any law, ordinance, statute, regulation, bylaw, order or
degree of any kind whatsoever;
15. MedLecture.com has good and sufficient right and authority to
enter into this Agreement and to complete the transactions contemplated under
this Agreement on the terms and conditions set forth herein;
16. To the best of MedLecture.com's knowledge, the execution and
delivery of this Agreement, the performance of its obligations under this
Agreement, and the completion of the transactions contemplated under this
Agreement will not:
(i) conflict with, or result in the breach of or the acceleration of any
indebtedness under, or constitute a default under any indenture, mortgage,
agreement, lease, license or other instrument of any kind whatsoever to which
MedLecture.com is a party or by which it is bound, or of any judgment or order
of any kind whatsoever of any court or administrative body of which
MedLecture.com is bound; or
(ii) result in the violation of any law or regulation of any kind
whatsoever by which MedLecture.com is bound;
17. MedLecture.com has not incurred any liability for brokers' or
finder's fees of any kind whatsoever with respect to this Agreement or any
transaction contemplated under this Agreement;
18. MedLecture.com is in compliance with all SEC rules and
regulations, to the extent applicable, and the transactions contemplated under
this Agreement will not result in a violation for non-compliance therewith;
19. The representations and warranties of MedLecture.com contained
in this Agreement disclose all material facts specifically relating to the
transactions involving MedLecture.com contemplated under this Agreement which
materially and adversely affected, or in the future may materially or
adversely affect, its ability to perform its obligations under this Agreement;
20. The representations and warranties of MedLecture.com contained
in this Agreement shall be true as of the Effective Date of Merger and shall
survive the completion of the transactions contemplated under this Agreement
and remain in full force and effect thereafter for the benefit of the other
parties hereto for a period of one (1) year after the Effective Date of
Merger;
21. No consent, approval, order or authorization of, or
registration, declaration or filing with, any court, administrative agency or
other governmental agency or instrumentality, domestic or foreign or third
party is required by or with respect to MedLecture.com or any corporate
shareholder in connection with the execution and delivery by MedLecture.com or
any corporate shareholder of this Agreement, or the completion of the
transactions contemplated hereby, the absence of which would have a material
adverse effect on MedLecture.com.;
22. To the best knowledge of MedLecture.com or any of its
subsidiaries, no written statement, certificate, schedule, list or other
information furnished by or on behalf of MedLecture.com or any of its
subsidiaries on or prior to the date hereof in connection herewith contains
(after giving effect to any correction thereof furnished to MedLecture.com or
any of its subsidiaries in writing prior to the date hereof) any untrue
statement of a material fact or omits or will omit to state a material fact
required to be stated herein or therein or necessary to make the statements
herein or therein, in light of the circumstances under which they were made,
not misleading;
23. Exhibit "6W" sets forth a true, complete and correct list of
all accounts and notes payable owed by MedLecture.com, together with an
appropriate aging schedule, as of November 1, 1999, which lists separately all
such amounts payable to any MedLecture.com shareholder, director, officer,
employee, or agent of MedLecture.com, to MedLecture.com shareholders or to any
of the irrespective affiliates. To the best of MedLecture.com's knowledge,
all accounts and notes payable of MedLecture.com present bona fide claims
against MedLecture.com for services performed or other charges arising in the
ordinary course of business;
24. Exhibit "6X" sets forth a true, complete and correct list of
all contracts, agreements, and commitments of MedLecture.com, whether or not
made in the ordinary course of business, including leases under which
MedLecture.com is lessor or lessee, which are to be performed in whole or in
part after the Effective Date of the Merger. To the best of MedLecture.com's
knowledge, MedLecture.com has complied in all material respects with all
commitments, contracts, agreements, and obligations pertaining to it listed in
Exhibit "6X" and MedLecture.com is not in material default under any such
contract and agreement and no notice of material default has been received, in
each case which would have a material adverse effect on the business of
MedLecture.com.;
25. Except for the Employment Agreements in the form attached
hereto as Exhibit "6Y" (the "Employment Agreements"), there are no oral or
written employment or consulting agreements to which MedLecture.com is a party
or by which MedLecture.com is bound;
26. Exhibit "6Z" sets forth a true, complete and correct list of
all material contracts, leases, and commitments by and between MedLecture.com
and any of its officers, directors, stockholders, employees, or agents, or any
affiliate of any such person. None of the officers, directors, stockholders,
or employees of MedLecture.com owns, leases, or licenses any interest in any
asset used by MedLecture.com in their businesses; other than solely by and
through ownership of the capital stock of MedLecture.com.;
27. Except as set forth in Exhibit "6AA," to the best of
MedLecture.com's knowledge, MedLecture.com owns its material assets, whether
real, personal or intangible, free and clear of all encumbrances, except for
(i) liens for current taxes and assessments not yet due, or being contested in
good faith by appropriate proceedings, (ii) mechanic's liens arising under the
operation of law or for actions contested in good faith or for which payment
arrangements have been made, (iii) liens granted or incurred by MedLecture.com
in the ordinary course of its business or in connection with the financing of
office space, furniture and equipment in the ordinary course of its business,
(iv) easements, covenants, restrictions, and other exceptions to title of
record (which do not materially and adversely effect the operation of
MedLecture.com);
28. To the best of MedLecture.com's knowledge, MedLecture.com
has complied with the Occupational Safety and Health Act and all other laws
relating to equal employment of labor including, without limitation, laws
relating to equal employment opportunity and employment discrimination,
employment of illegal aliens, wages, hours and collective bargaining, the
violation or failure to comply with which would have a material adverse effect
on the business of MedLecture.com. Notwithstanding anything herein to the
contrary, MedLecture.com has complied with all laws relating to the collection
and payment of social security and withholding taxes, or both, and similar
taxes except where the failure to comply with such laws would have a material
adverse effect on the businesses of MedLecture.com. To the best of
MedLecture.com's knowledge, MedLecture.com is not liable for any arrearage of
wages or any taxes or penalties for failure to comply with any of the
foregoing, which would have a material adverse effect on the businesses of
MedLecture.com. To the best knowledge of MedLecture.com, there are no
organizational efforts presently being made or threatened by or on behalf of
any labor union with respect to any employees of MedLecture.com, which would
have a material adverse effect on the businesses of MedLecture.com.;
29. Except as set forth in Exhibit "6BB," MedLecture.com has no
other benefit plans (the "Benefit Plans") within the meaning of the applicable
provisions of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), the Code and other applicable laws;
30. To the best knowledge of MedLecture.com and all of its
subsidiaries, MedLecture.com or any of its subsidiaries have not engaged in a
transaction in connection with which they could be subject (either directly or
indirectly) to a material liability for either a civil penalty assessed
pursuant to Section 502(i) of ERISA or a tax imposed by Section 4975 of the
Code.; and
31. To the best knowledge of MedLecture.com and any of its
subsidiaries, neither MedLecture.com, nor any of its subsidiaries is in
material default with respect to any obligation, agreement, or covenant to be
performed by if under any contract or arrangement of any kind, which default
would have a material adverse effect on MedLecture.com, or any of its
subsidiaries.
7. Indemnity. Notwithstanding the completion of the transactions
contemplated under this Agreement, the representations, warranties, and
acknowledgments of the parties contained in this Agreement, or any
certificates or documents delivered by them or any of them pursuant to this
Agreement, shall survive the completion of the transactions contemplated by
this Agreement, and shall continue in full and effect thereafter for the
benefit of the other parties hereto for a period of one (1) year after the
Effective Date of Merger. If any of the representations, warranties, or
acknowledgments given by any party to the others in this Agreement are found
to be untrue, or if there is a breach of any covenant or agreement under this
Agreement by a party, that party shall indemnify and save harmless the
other(s) from and against any and all liability, claims, debts, demands,
suits, actions, penalties, fines, losses, costs (including legal fees and
disbursements as charged by a lawyer to his own client), damages and expenses
of any kind whatsoever which may be brought or made against the non-breaching
party by any person, firm, or corporation of any kind whatsoever or which may
be suffered or incurred by the non-breaching party, directly or indirectly,
arising out of, or as a consequence of, any such misrepresentation or breach
of warranty, acknowledgment, covenant, or Agreement. Without in any way
limiting the generality of the foregoing, this shall include any loss of any
kind whatsoever which may be suffered or incurred by the non-breaching party,
directly or indirectly, arising out of any material assessment or reassessment
levied upon the breaching party for tax, interest and/or penalties for any
period up to and including the Effective Date of Merger and all claims,
demands, costs (including legal fees and disbursements as charged by a lawyer
to his own client) and expenses of any kind whatsoever with respect to the
foregoing.
8. Closing Documents. A. MedLecture.com. Upon the Effective Date
of Merger, Dr. Farrago, Dr. Stone, Mrs. Stone, Mr. Dean, Mr. Clavet, and
MedLecture.com shall deliver to Acadia Group and WorldLecture.com, as
appropriate, the following documents:
1. A Certificate of Clerk attesting that the MedLecture.com has
agreed to and is authorized to enter into the transactions contemplated
herein, and naming an officer of MedLecture.com to execute all applicable
closing documents;
2. The MedLecture.com Share Certificates with Stock Powers fully
endorsed in blank;
3. Duly executed Articles of Merger in the form attached hereto as
Exhibit "4F" and made a part hereof;
4. The Opinion of Counsel for MedLecture.com in the form attached
hereto as Exhibit "5H" and made a part hereof;
5. All of the Minute Books and corporate records for MedLecture.com;
6. A Certificate relating to due diligence as more fully described
in Item 5(C) above; and
7. Any and all other materials that are, in the opinion of the
counsel for Acadia Group and WorldLecture.com, reasonably required to complete
the transactions contemplated under this Agreement.
B. Acadia Group/WorldLecture.com. Acadia Group and WorldLecture.com
shall, upon the Effective Date of Merger, deliver to MedLecture.com the
following documents:
1. Certificates of Secretary attesting that Acadia Group and
WorldLecture.com have agreed to the transactions contemplated in the
Agreement, and naming an officer to execute all applicable closing documents;
2. The Merger Shares or evidence that the same will be issued;
3. Duly executed Articles of Merger in the form attached hereto as
Exhibit "4F" and made a part hereof;
4. The Opinion of Counsel for Acadia Group and WorldLecture.com in
the form attached hereto as Exhibit "5G" and made a part hereof;
5. A Certificate relating to due diligence as more fully described in
Item 5(C) above; and
6. Any other materials that are, in the opinion of the counsel for
MedLecture.com, reasonably required to complete the transactions contemplated
in this Agreement.
The parties hereto recognize that the Merger is intended to be a forward
triangular merger under Section 368 of the Internal Revenue Code of 1986, as
amended (the "Code"); said transaction shall not result in the recognition of
taxable income under the Code. The parties hereto agree to execute any and
all documents necessary or appropriate to accomplish the tax-free merger
contemplated in this Agreement.
9.Miscellaneous.
A. Entire Agreement. Except as otherwise expressly provided, this
Agreement contains the entire agreement of the parties hereto with respect to
the transactions contemplated herein and supersedes all prior arrangements or
understandings with respect to these transactions, whether written or oral;
Provided, However, that the Binding Letter of Intent dated September 29, 1999,
as amended, attached hereto as Exhibit "8CC" shall continue to be binding upon
the parties, except to the extent inconsistent with the provisions hereof, in
which event this Agreement shall control. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective successors and permitted assigns. Nothing in this
Agreement, either express or implied, is intended to confer upon any party,
and its successors or permitted assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided
herein.
B. Captions. The captions contained in this Agreement are for
reference purposes only and shall not constitute any part of this Agreement.
C. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Maine, and all disputes shall be
resolved in courts of the State of Maine or Federal Courts located in the
State of Maine.
D. Exhibits. The Exhibits to this Agreement are incorporated
herein by reference and the Recitals of this Agreement constitute a part of
this Agreement.
E. Amendments. No alteration, amendment, modification, or
interpretation of this Agreement, or any provision of this Agreement, shall be
valid and binding upon the parties hereto until such alteration, amendment,
modification, or interpretation is in written form executed by the parties
directly affected by such alteration, amendment, modification, or
interpretation.
F. Gender. Whenever the singular or masculine is used in this
Agreement the same shall be deemed to include the plural, the feminine, or the
body corporate as the context may require.
G. Notice. Any notice, request, demand, or other communication to
be given under this Agreement shall be in writing and shall be delivered by
hand or telecopier or by overnight mail to the parties at their following
respective addresses:
If to MedLecture.com, to:
MedLecture.com, Inc.
63A Broad Street
Auburn, Maine 04210
Attention: Kevin B. Dean
If to Dr. Farrago, to:
94 Shepley Street
Auburn, Maine 04210
If to Dr. Stone, to:
410 Intervale Road
New Gloucester, Maine 04260
If to Mrs. Stone, to:
410 Intervale Road
New Gloucester, Maine 04260
If to Mr. Dean or Mr. Clavet, to:
63A Broad Street
Auburn, Maine 04210
If to Acadia Group or
WorldLecture.com, to:
Acadia Group, Inc.
415 Rodman Road
P.O. Box 1328
Auburn, Maine 04211-1328
Attention: Paul Chute
or to such other addresses as may be given in writing to the parties hereto in
the manner provided for in this paragraph. Notices shall be deemed to have
been received, if delivered by hand, on the date of delivery, if delivered by
telecopier, on the date that it is sent, and if delivered by overnight mail,
on the day after the day it is sent. Notices provided to MedLecture.com,
Dr. Farrago, Dr. Stone, Mrs. Stone, Mr. Dean, and/or Mr. Clavet shall be
copied to Bonneau & Geismar, LLC, 100 Lisbon Street, P.O. Box 7230, Lewiston,
Maine 04243-7230, Attention: Shawn K. Bell. Notices to Acadia or
WorldLecture.com shall be copied to: Nadeau & Simmons, 1250 Turks Head Place,
Providence, Rhode Island 02903, Attention: Mark Thatcher, Esq.
H. Assignment. This Agreement, and the rights and obligations of
each party hereunder, shall not be assigned by any party.
I. Severability. In the event that any portion of this Agreement
is declared void or enforceable by a court of competent jurisdiction, the
remaining portion shall remain in full force and effect, unless both parties
to this Agreement agree to the contrary in a written amendment with respect to
any particular provision.
J. Benefit. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto, their heirs, personal representatives,
successors, and assigns.
K. Waiver. The waiver of a breach of any term, condition, or
covenant contained in this Agreement shall not be considered a waiver of any
subsequent breach of any other term, condition, or covenant.
L. Legal Expenses. Provided this Agreement and any and all
documents required to be signed in conjunction therewith are executed with the
approval of the respective governing bodies of the parties hereto, any and all
legal expenses incurred by MedLecture.com through Bonneau & Geismar, LLC to
accomplish the Merger through November 19, 1999 shall be paid by Acadia Group
on November 19, 1999, and any legal expenses incurred thereafter by
MedLecture.com through Bonneau & Geismar, LLC shall be paid by Acadia Group on
a monthly basis.
In Witness Whereof, the parties have hereunto set their hands and seals
effective the day and year first above written.
Witness: MedLecture.com, Inc.
_________________________________
By:_________________________________
Kevin B. Dean
Its President
Acadia National Health Systems, Inc.
_________________________________
By:_________________________________
Print Name:_______________________
Its:______________________________
WorldLecture.com, Inc.
_________________________________
By:_________________________________
Print Name:_______________________
Its:______________________________
_________________________________
____________________________________
Douglas Farrago, M.D.
_________________________________
____________________________________
Raymond Stone, D.O.
_________________________________
____________________________________
Diane Stone
_________________________________
____________________________________
Kevin B. Dean
_________________________________
____________________________________
Emile L. Clavet
WORLDLECTURE.COM, INC.
and
MEDLECTURE.COM, INC.
ARTICLES OF MERGER
Pursuant to the provisions of the Colorado Business Corporation Act (CRS
7-111-107, et seq., as amended) the undersigned corporations adopt the
following Articles of MERGER:
FIRST:Attached hereto as Exhibit A is the Plan of Merger of WORLDLECTURE.COM,
INC., a Colorado corporation (the "Surviving Corporation"), and
MEDLECTURE.COM, INC., a Maine corporation (the "Disappearing Corporation"), a
copy of which has been mailed to all respective shareholders.
SECOND:The Plan of Merger was duly adopted by the Boards of Directors, or
other governing body, of the respective corporations on November 19, 1999, and
approved by the Board of Directors and Shareholders of ACADIA NATIONAL HEALTH
SYSTEMS, INC. (the "Parent Corporation") on November 19, 1999, and by the
shareholders of MEDLECTURE.COM, INC., on ____________________, 1999, in the
manner prescribed by the Maine Revised Statutes. The number of shares voted
for the Plan of Merger was, with respect to each corporation, sufficient for
approval as set forth below.
The number of shares of ACADIA NATIONAL HEALTH SYSTEMS, INC. outstanding
at the time of such adoption was 5,013,987, and the number of Shares entitled
to vote thereon was:
5,013,987.
The number of shares of MEDLECTURE.COM, INC. outstanding at the time of such
adoption was one hundred (100), and the number of shares entitled to vote
thereon was:
100.
The designation and number of outstanding shares of each class entitled to
vote thereon as a class were:
NONE.
The address of the registered office of the Parent Corporation and Surviving
Corporation shall continue to be 17 West Cheyenne Mountain Boulevard, Colorado
Springs, CO 80906, and the name of the registered agent at such address is
Mark T. Thatcher, Esq. Either the registered office or the registered agent
may be changed in the manner provided by law.
/s Mark T. Thatcher
______________________________
REGISTERED AGENT
The number of shares voted for such Plan of Merger by ACADIA NATIONAL
HEALTH SYSTEMS, INC. was _______________, and the number of shares voted
against such Plan of Merger was:
NONE.
The number of shares voted for such Plan of Merger by MEDLECTURE.COM, INC.,
was one hundred (100), and the number of shares voted against such Plan of
Merger was:
NONE.
IN WITNESS WHEREOF, the following persons have duly executed and verify these
Articles of Merger this 19th day of November, 1999.
WORLDLECTURE.COM, INC.,
a Colorado corporation
Attest:
_____________________ By:______________________
JOHN W. HOLT, JR.,
Its President
MEDLECTURE.COM, INC.,
a Maine corporation
By:______________________
November 19, 1999
CONFIDENTIAL
MedLecture.com, Inc.
C/O Bonneau & Geismar, LLC
100 Lisbon Street
Lewiston, ME 04243
Re: Rule 4(2) or Regulation D, of the Securities Act of 1933 (the "Act"),
private issuance of five million three hundred sixty-three thousand nine
hundred eighty-seven (5,363,987) common shares of OTC:BB "ACAD"
Ladies and Gentlemen:
We render herewith our opinion as to certain matters pursuant to the Plan
of Merger dated November 19, 1999 (the "Plan"), made by and among
Worldlecture.com, Inc. (the "Surviving Corporation"), a wholly-owned
subsidiary of Acadia National Health Systems, Inc., a Colorado corporation
("Acadia"), and Medlecture.com, Inc., a Maine corporation (the "Disappearing
Corporation"), involved in the Section 4(2) or Regulation D private placement
of common shares of Acadia (the "Shares"), conducted in compliance with the
Securities Act of 1933 (the "Act").
In rendering our opinion, we have examined and relied upon the following:
(a) The Restated Articles of Incorporation of Acadia, and the Articles
of Incorporation of the Surviving Corporation, filed with the State of
Colorado.
(b) The materials contained in the Articles of Merger, Plan of Merger,
Assignment Separate From Certificate and Irrevocable Stock Power, Transfer Agent
Instructions and all accompanying documents, attachment and exhibits dated
November 19, 1999 (the "Confidential Documents") concerning the placement of
the Shares;
(c) The Certificates of Good Standing of Acadia and the Surviving
Corporation dated October 26, 1999 and November 9, 1999, respectively,
attached hereto as Exhibit "A" (the "Company's Certificate").
Page 2
Medlecture.com, Inc.
November 19, 1999
________________________
The opinions expressed in subparagraphs three, four, six, seven, nine and ten
below, as to factual matters, are given in reliance upon Acadia and the
Surviving Corporation's Securities Certificates;
(d) Such other documents and instruments as we have deemed necessary in
order to enable us to render the opinions expressed herein.
For the purposes of rendering this opinion, we have assumed that no
person or entity has engaged in fraud or misrepresentation regarding the
inducement relating to, or the execution or delivery of, the documents
reviewed. Furthermore, we express no opinion as to the validity of any of the
assumptions, form, or content of any financial or statistical data contained
in the Confidential Documents. We do not assume any obligation to advise
officers, directors, their advisors or representatives of the parties to the
Plan, beyond the opinions specifically expressed herein. The terms used in
this opinion shall have the meaning ascribed to them in the Plan and other
documents relied upon in rendering our opinion. As used in paragraphs five
and nine hereof the phrase "of which we have knowledge" means that such
knowledge is based solely upon conversations with representatives of Acadia
and a review of our own files.
Based upon the foregoing assumptions, our review of the above documents
and my reliance, as to factual matters, upon the representations in Acadia and
the Surviving Corporation's Certificate, and subject to the qualifications
listed herein, we are of the opinion that:
1. Acadia, the Surviving Corporation and Acadia Merger Holding Company,
Inc. (the "Subsidiary Corporation") are duly organized and validly existing
corporations under the laws of the State of Colorado, and upon the filing of
required state documents with the appropriate authorities, are fully
authorized to transact the business in which they are engaged in accordance
with the Plan and as described in the Confidential Documents.
2. The Plan has been duly authorized, executed and delivered by Acadia
and the Surviving Corporation and is a valid and binding agreement of Acadia
and the Surviving Corporation, each having adequate authorization and having
taken all Company action necessary to authorize the indemnification provisions
contained therein; provided, however, that no opinion is rendered as to the
validity or enforceability of such indemnification provisions insofar as they
are or may be held to be violative of public policy (under either state or
federal law) against such types of provisions in the context of the offer,
offer for sale, or sale of securities.
Page 3
Medlecture.com, Inc.
November 19, 1999
_________________________
3. The Shares, when issued and sold, will be validly and legally issued
under the laws of the State of Colorado and have been registered on Form
10SB12G as prescribed by Regulation SB of the Securities Exchange Act of 1934
(the "Exchange Act"). The Shares, when issued and sold, will be fully paid
and non-assessable. As of the date of this Opinion, Acadia has issued and
outstanding 5,013,987 shares of Common Stock and 350,000 shares of Common
Stock subject to derivative issue at the discretion of the Board of Directors,
such fully diluted number of shares including those issued to Christopher O.
Werner pursuant to a Settlement Agreement dated November 19, 1999.
4. The Shares, when issued by Acadia, will conform in all material
respects to all statements concerning them contained in the Confidential
Documents and constitute one-half (½) of the issued and outstanding
shares of stock of Acadia, plus unissued shares designated for use under
employment agreements or other similar contractual agreements, whether verbal
or written, or designated for issuance to company employees, agents or third
parties.
5. The consummation of the transactions discussed in the Confidential
Documents by Acadia and the Surviving Corporation will not result in any
breach of any of the terms of, or constitute a default under, the Articles of
Incorporation or Bylaws, any mortgage, loan commitment, indenture, deed of
trust, agreement or other instrument to which Acadia or the Surviving
Corporation is a party and of which we have knowledge, or violate, insofar as
it is directed to Acadia or the Surviving Corporation, any order of any court
or any federal or state regulatory body or administrative agency having
jurisdiction over it or over its property and of which we have knowledge.
6. To the best of our knowledge, there is not in existence, pending or
threatened any action, suit or proceeding to which Acadia or the Surviving
Corporation is a party, except as set forth in the Confidential Documents,
before any court or governmental agency or body, which might, if decided
adversely, materially affect the subject matter of the Plan or the financial
condition, business or prospects of Acadia or the Surviving Corporation.
7.(a) Acadia, the Surviving Corporation and the Subsidiary Corporation
have been duly organized and are validly existing corporations formed under
the laws of the State of Colorado with full power and authority to own their
properties and conduct their business as described in the Confidential
Documents, including, but not limited to, the full power and authority to
transact business as foreign corporations in the State of Maine.
Page 4
Medlecture.com, Inc.
November 19, 1999
_________________________
7.(b) The incorporation of the Subsidiary Corporation is complete, will
be funded with all of the assets of Acadia's medical billings, practice
management and r (110 Sat. 1936) (codified in
scattered sections of the United States Code, including 18, 26, 29 and 42
U.S.C.), which includes an expansion of provisions relating to fraud and
abuse, creates additional criminal offenses relating to healthcare benefit
programs, provides for forfeitures and asset freezing orders in connection
with such healthcare offenses and contains provisions for instituting greater
coordination of federal, state and local enforcement agency resources and
actions.
In recent years, the focus of healthcare legislation has been on budgetary and
related funding mechanism issues. Both the Congress and the Clinton
Administration have made proposals to reduce the rate of increase in projected
Medicare and Medicaid expenditures and to change funding mechanisms and other
aspects of both programs. In late 1995, Congress passed legislation that would
substantially reduce projected expenditure increases and would make
significant changes in the Medicare and Medicaid programs. Acadia cannot
predict the effect of pending legislation, if adopted, on its operations.
A number of states in which Acadia has operations either have adopted or are
considering the adoption of healthcare reform proposals at the state level.
Acadia cannot predict the effect of proposed state healthcare reform laws on
its operations. Additionally, certain reforms are occurring in the healthcare
market, including certain employer initiatives such as creating purchasing
cooperatives and contracting for healthcare services for employees through
managed care companies (including health maintenance organizations), and
certain provider initiatives such as risk sharing among healthcare providers
and managed care companies through 33333capitated contracts and integration
among hospitals and physicians into comprehensive delivery systems.
Consolidation of management and billing services through integrated delivery
systems may result in a decrease in demand for Acadia billing services for
particular physician practices.
EXISTING GOVERNMENT REGULATION
Existing government regulation can adversely affect Acadia's business through,
among other things, its potential to reduce the amount of reimbursement
received by Acadia's clients for healthcare services. Acadia's medical
billing activities are also governed by numerous federal and state civil and
criminal laws. In general, these laws provide for various fines, penalties,
multiple damages, assessments and sanctions for violations, including possible
exclusion from Medicare, Medicaid and certain other federal and state
healthcare programs. Submission of claims for services or procedures that are
not provided as claimed, or which otherwise violate the regulations, may lead
to civil monetary penalties, criminal fines, imprisonment and/or exclusion
from participation in Medicare, Medicaid and other federally funded healthcare
programs. Specifically, the Federal False Claims Act allows a private person
to bring suit alleging false or fraudulent Medicare or Medicaid claims or
other violations of the statute and for such person to share in any amounts
paid to the government in damages and civil penalties. Successful plaintiffs
can receive up to 30% of the total recovery from the defendant. Such qui tam
actions or "whistle blower" lawsuits have increased significantly in recent
years and have increased the risk that a company engaged in the healthcare
industry, such as Acadia and many of its customers, may become the subject of
a federal or state investigation, may ultimately be required to defend a false
claims action, may be subjected to government investigation and possible
criminal fines, may be sued by private payors and may be excluded from
Medicare, Medicaid and/or other federally funded healthcare programs as a
result of such an action. Some state laws also provide for false claims
actions, including actions initiated by a qui tam plaintiff. Any such
proceeding or investigation could have a material adverse effect upon the
Company.
The ownership and operation of hospitals is subject to comprehensive
regulation by federal and state governments which may adversely affect
hospital reimbursement. Such regulation could have an adverse effect on the
operations of hospitals in general, and consequently reduce the amount of the
Company's revenue related to potential hospital clients.
There can be no assurance that current or future government regulations or
healthcare reform measures will not have a material adverse effect upon
Acadia's business.
VOLATILITY OF STOCK PRICE
Acadia believes factors such as the Company's liquidity and financial
resources, healthcare reform measures and quarter to quarter and year to year
variations in financial results could cause the market price of Acadia Common
Stock to fluctuate substantially. Any adverse announcement with respect to
such matters or any shortfall in revenue or earnings from levels expected by
Management could have an immediate and material adverse effect on the trading
price of Acadia Common Stock in any given period. As a result, the market for
Acadia Common Stock may experience material adverse price and volume
fluctuations and an investment in the Company's Common Stock is not suitable
for any investor who is unwilling to assume the risk associated with any such
price and volume fluctuations.
