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EXHIBIT 4.1
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT (this "Agreement"), dated as of August
17, 2000 is by and among Panoramic Care Systems, Inc., a Delaware corporation
("Parent"), the stockholders executing the signature pages hereof (each, a
"Stockholder" and together, the "Stockholders"), each of whom is a Stockholder
of Management - Data, Inc., a Missouri corporation (the "Company").
RECITALS
A. The boards of directors of Parent and the Company each have
determined that a business combination between Parent and the Company is fair
and in the best interests of their respective companies and Stockholders, and
accordingly have agreed to effect the merger (the "Merger") provided for in that
certain Agreement and Plan of Merger (the "Merger Agreement") between Parent,
the Company, and Panoramic Acquisition Corporation, a Delaware corporation and
wholly owned subsidiary of Parent ("Merger Sub"), dated as of August 17, 2000
upon the terms and subject to the conditions set forth in the Merger Agreement.
B. Each Stockholder will receive in the Merger shares of
common stock, $.001 par value, of Parent ("Parent Common Stock"), which Parent
Common Stock will not be registered with the Securities and Exchange Commission
(the "Commission") and will constitute Restricted Securities.
C. The Parent Common Stock issued to Stockholders in the
Merger shall be issued pursuant to an exemption from registration pursuant to
Rule 506 of the Securities Act of 1933, as amended (the "Securities Act") and
pursuant to exemptions from the registration and prospectus requirements of the
Securities Act (British Columbia) (the "B.C. Act") provided by section 45(2)(6)
and 74(2)(5) of the B.C. Act.
D. In consideration of Parent's agreement to enter into the
Merger Agreement and consummate the transactions contemplated thereby, and grant
the Stockholders certain registration rights as set forth herein with respect to
the Parent Common Stock to be received by the Stockholders, the Stockholders
have agreed to make certain representations and warranties, and to indemnify
Parent and Merger Sub with respect to certain matters under the Merger
Agreement.
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants, and agreements contained herein, the
parties hereto hereby agree as follows:
ARTICLE 1
INDEMNIFICATION
1.1 SURVIVAL OF REPRESENTATIONS, ETC. Each Stockholder agrees that,
notwithstanding any examination made by or on behalf of Parent or Merger Sub,
the knowledge of Parent or Merger Sub or any of the respective officers,
directors, Stockholders, employees, or agents of Parent or Merger Sub, or the
acceptance by any party of any certificate or opinion, in each case with respect
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to the Company, the representations, warranties, covenants, and agreements of
the Company set forth the Merger Agreement, or in any writing delivered by the
Company in connection with the Merger Agreement, shall survive the consummation
of the transactions contemplated thereby and shall expire on the date that is
twelve months from the Closing Date (the "Survival Date").
1.2 INDEMNITY. Subject to the terms and conditions of this Article,
each Stockholder shall jointly and severally indemnify and hold Parent harmless
from and against all demands, claims, causes of action, assessments, including
any Federal or state tax audits, losses, damages, liabilities, costs, and
expenses, including, without limitation, reasonable attorneys' fees and any
expenses incident to the investigation or enforcement of this Article 1
(collectively, "Losses"), that Parent may suffer, sustain or become subject to
by reason of or arising out of (i) any breach of any covenant or agreement of
the Company contained in the Merger Agreement or (ii) any inaccuracy in any
representation or warranty of the Company contained in the Merger Agreement, the
Company Disclosure Schedule, or any other agreement or instrument executed by
the Company pursuant to the Merger Agreement. All of the foregoing are
hereinafter collectively referred to as "Claims."
1.3 LIMITATIONS ON INDEMNIFICATION. The indemnification provided for in
Section 1.2 hereof shall be subject to the following limitations and conditions:
(a) No Stockholder shall be liable for indemnification of
Parent under Section 1.2 of this Agreement for any Losses incurred by Parent
unless the aggregate amount of all Losses incurred by Parent and otherwise
subject to indemnification pursuant to said Section 1.2 exceeds $300,000 and
thereafter for the amount of all such Losses beginning at the first dollar.
(b) No Stockholder shall be liable for any Losses resulting
from any inaccuracy in any representation or warranty of the Company contained
in the Merger Agreement unless written notice of entitlement to make a Claim
(whether or not any monetary Losses have actually been suffered) with respect to
such Losses is given by Parent to Stockholder on or prior to the expiration of
the survival of the particular representation or warranty at issue, as set forth
in Section 1.1 above.
(c) Each Stockholder's aggregate liability for any Losses
shall not exceed such Stockholder's Pro Rata Share of the Deferred Merger
Consideration. Parent agrees that it shall seek to recover any Losses for which
Stockholder is liable pursuant to this Article I only from such Stockholder's
Pro Rata Share of the Deferred Merger Consideration.
(d) In the event that a Stockholder is required to make any
payment under this Agreement, Parent shall be entitled to recover the amount so
determined from the Deferred Merger Consideration in accordance with this
Agreement and the Escrow Agreement. Any Parent Common Stock so recovered by
Parent shall be valued at a price of $3.86 per share. If there should be a
dispute as to the amount or manner of determination of any indemnity obligation
owed under this Agreement, Parent shall be entitled to recover such portion, if
any, of the obligation as shall not be subject to dispute. The difference, if
any, between the amount of the obligation ultimately determined as properly
payable under this Agreement and the portion, if any, theretofore paid shall
bear interest at a rate of eight percent (8%) per annum. Upon the payment in
full of any claim, either by setoff or otherwise, Stockholder shall be
subrogated to the rights of Parent against any person, firm, corporation, or
other entity with respect to the subject matter of such claim.
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1.4 CONDITIONS OF INDEMNIFICATION OF THIRD PARTY CLAIMS. The
obligations and liabilities of the parties hereunder with respect to Claims
resulting from the assertion of liability by third parties ("Third Party
Claims") shall be subject to the following terms and conditions:
(a) Each Stockholder hereby irrevocably makes, constitutes,
and appoints Todd Spence as its agent (the "Representative") and authorizes and
empowers him to fulfill the role of Representative hereunder. In the event of
the resignation of the Representative, the resigning Representative shall
appoint a successor either from among the Stockholders or who shall otherwise be
acceptable to Parent and who shall agree in writing to accept such appointment,
and the resigning Representative's resignation shall not be effective until such
a successor shall exist. If the Representative should die or become
incapacitated, his successor shall be appointed within 30 days of his death or
incapacity by a majority of the Stockholders, and such successor either shall be
a Stockholder or shall otherwise be acceptable to Parent. The choice of a
successor Representative appointed in any manner permitted above shall be final
and binding upon all of the Stockholders and Parent. The decisions and actions
of any successor Representative shall be, for all purposes, those of the
Representative as if originally named herein.
(b) Each Stockholder hereby irrevocably makes, constitutes,
and appoints the Representative as such person's true and lawful attorney in
fact and agent, for such person and in such person's name, (i) to receive all
notices and communications directed to such Stockholder under this Agreement and
to take any action (or to determine to take no action) with respect thereto as
he may deem appropriate as effectively as such Stockholder could act for himself
or herself, including without limitation, the settlement or compromise of any
dispute or controversy, and (ii) to execute and deliver all instruments and
documents of every kind incident to the foregoing to all intents and purposes
and with the same effect as such Stockholder could do personally, and each such
Stockholder hereby ratifies and confirms as his or her own act, all that the
Representative shall do or cause to be done pursuant to the provisions hereof.
All notices and all other communications directed to Stockholders under this
Agreement shall be given to the Representative.
(c) Each Stockholder irrevocably consents to the service of
any process, pleading, notices, or other papers by the mailing of copies thereof
by registered, certified, or first class mail, postage prepaid, to the
Representative at such person's address set forth herein.
(d) The death or incapacity of any Stockholder shall not
terminate the authority and agency of the Representative.
(e) Each Stockholder hereby agrees to indemnify the
Representative and to hold him harmless against any loss, liability, or expense
incurred without negligent conduct or bad faith on the part of the
Representative and arising out of or in connection with his duties as
Representative, including the costs and expenses incurred by such Representative
in defending against any claim of liability in connection herewith.
(f) In the event that any claim or demand for which the
Stockholders would be liable to Parent or Merger Sub hereunder is asserted
against or sought to be collected by a third party, Parent shall promptly notify
the Representative of such claim or demand, specifying the nature of such claim
or demand and the amount or the estimated amount thereof to the extent then
feasible (which estimate shall not be conclusive of the final amount of such
claim or demand) (the "Claim
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Notice"). The Representative shall promptly provide notice of each Claim Notice
to each Stockholder owning more than 5% of the Company Common Stock (as defined
in the Merger Agreement) at the Effective Time and shall consult with such
holders concerning whether or not to dispute liability to Parent hereunder with
respect to such claim or demand. The Representative shall have 10 business days
from its receipt of the Claim Notice (the "Notice Period") to notify Parent (i)
whether or not the Stockholders dispute their liability to Parent hereunder with
respect to such claim or demand, and (ii) if they do not dispute such liability,
whether or not they desire, at their sole cost and expense, to defend Parent
against such claim or demand; provided, however, Parent is hereby authorized
prior to and during the Notice Period to file any motion, answer, or other
pleading that it shall deem necessary or appropriate to protect its interests;
provided further, however, that Parent shall use its reasonable efforts to
provide the Representative with notice of any such filing and an opportunity to
comment thereon. In the event that the Representative notifies Parent within the
Notice Period that the Stockholders do not dispute such liability and desire to
defend against such claim or demand, then except as hereinafter provided, the
Representative shall have the right to defend by appropriate proceedings, which
proceedings shall be promptly settled or prosecuted to a final conclusion in
such a manner as to avoid any risk of Parent becoming subject to liability for
any other matter. If Parent desires to participate in, but not control, any such
defense or settlement it may do so at its sole cost and expense. If, in the
reasonable opinion of Parent, any such claim or demand involves an issue or
matter that could have an adverse effect on the business, operations, assets,
properties, or prospects of the Company or Parent or an affiliate of Parent,
Parent shall have the right to control the defense or settlement of any such
claim or demand, and its reasonable costs and expenses thereof shall be included
as part of the indemnification obligations of the Stockholders hereunder. If the
Representative disputes the Stockholders' liability with respect to such claim
or demand or elects not to defend against such claim or demand, whether by not
giving timely notice as provided above or otherwise, then the amount of any such
claim or demand, or, if the same be contested by the Representative or by Parent
(but Parent shall not have any obligation to contest any such claim or demand),
then that portion thereof as to which such defense is unsuccessful shall be
conclusively deemed to be a liability of the Stockholders hereunder (subject, if
the Representative has timely disputed liability, to a determination that the
disputed liability is covered by these indemnification provisions).
(g) In the event that Parent should have a claim against the
Stockholders hereunder that does not involve a claim or demand being asserted
against or sought to be collected from it by a third party, Parent shall
promptly send a Claim Notice with respect to such claim to the Representative.
If the Representative does not notify Parent within the Notice Period that he
disputes such claim, then the amount of such claim shall be conclusively deemed
a liability of the Stockholders hereunder.
(h) Nothing herein shall be deemed to prevent Parent from
making a claim hereunder for potential or contingent claims or demands provided
the Claim Notice sets forth the specific basis for any such potential or
contingent claim or demand and the estimated amount thereof to the extent then
feasible and Parent has reasonable grounds to believe that such a claim or
demand will be made.
1.5 ARBITRATION. Any dispute between the Representative and Parent with
respect to Parent's right to seek indemnification with respect to any Claim
pursuant to the provisions of this Article I shall be resolved by binding
arbitration in accordance with the following provisions of this
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Section 1.5; provided, however, that either the Representative or Parent may
seek injunctive relief or other equitable relief to preserve the status quo
pending arbitration.
(a) The Representative or Parent may submit any dispute that
is subject to arbitration under this Section 1.5 by giving written notice to the
other parties to such dispute. Within ten business days after receipt of such
notice by such other parties, the Representative shall appoint one arbitrator
and Parent shall appoint one arbitrator and within ten Business Days thereafter
the two arbitrators so appointed shall select a third arbitrator. If the
Representative or Parent shall fail to make such appointment within such ten-day
period, the other party may request the American Arbitration Association to
appoint the second arbitrator. The American Arbitration Association may
thereupon appoint the second arbitrator. If the two appointed arbitrators shall
fail to select a third arbitrator within said ten-day period, the Representative
and Parent shall mutually select the third arbitrator. If the Representative and
Parent are unable to agree upon the third arbitrator, then either party may,
upon at least five Business Days' prior written notice to the other party,
request the American Arbitration Association to appoint the third arbitrator.
The American Arbitration Association may thereupon appoint the third arbitrator.
All arbitrators shall be experienced in corporate and financial matters and
shall be impartial and unrelated, directly or indirectly, so far as employment
of services or ownership of interests is concerned to any of the parties or any
of their respective Affiliates. The arbitration shall be conducted in Denver,
Colorado in accordance with the Commercial Arbitration Rules of the American
Arbitration Association, as then in effect, except as otherwise provided in this
Section 1.5.
(b) The three arbitrators shall investigate the facts and
shall hold hearings at which the parties may conduct limited discovery, present
evidence and arguments, be represented by counsel, and conduct cross
examination. The three arbitrators shall render a written decision on the matter
presented to them by majority vote as soon as practicable after the appointment
of the third arbitrator and in any event not more than 45 days after such
appointment. The decision of the arbitrators, which may include equitable
relief, shall be final and binding on the parties hereto, and judgment upon the
decision may be entered in any court having jurisdiction thereof. If the three
arbitrators shall fail to render a decision within said 45-day period, either
party may institute such action or proceeding in such court as shall be
appropriate in the circumstances and upon the institution of such action, the
arbitration proceeding shall be terminated and shall be of no further force and
effect. The prevailing party shall be awarded reasonable attorneys' fees, expert
and nonexpert witness costs and expenses, and other costs and expenses incurred
in connection with the arbitration, and the fees and costs of the arbitrators
shall be borne by the nonprevailing party unless, in either case, the
arbitrators for good cause determine otherwise. In resolving any dispute, the
arbitrators shall apply the provisions of this Agreement, without varying
therefrom in any respect. The arbitrators shall not have the power to add to,
modify, or change any of the provisions of this Agreement.
ARTICLE 2
POOLING RESTRICTIONS
2.1 POOLING. Each Stockholder acknowledges that the Merger is intended
to be treated for financial accounting purposes as a "pooling of interests" in
accordance with generally accepted accounting principles. Each Stockholder
listed on Exhibit A hereto hereby represents, warrants and
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agrees that Stockholder (i) will not make any sale, transfer or other
disposition of Company Common Stock owned by such Stockholder during the period
from the date hereof and ending at the earlier of the Effective Time and the
termination of the Merger Agreement, and (ii) will not make any sale, transfer
or other disposition of Parent Common Stock owned by such Stockholder after the
Effective Time until such time as financial statements that include at least 30
days of combined operations of the Company and Parent after the Merger shall
have been publicly reported, unless Stockholder shall have delivered to Parent
prior to any such sale, transfer or other disposition, a written opinion from
its independent public accountants, in form and substance reasonably
satisfactory to Parent, to the effect that such sale, transfer or other
disposition will not cause the Merger not to be treated as a "pooling of
interests" for financial accounting purposes in accordance with generally
accepted accounting principles and the rules, regulations and interpretations of
the Commission, and (iii) will not make any sale, transfer or other disposition
of any shares of Parent Common Stock received by such Stockholder pursuant to
the Merger in violation of the Securities Act or the rules and regulations
promulgated thereunder.
2.2 NOTICE OF PROPOSED DISPOSITIONS. Prior to any proposed disposition
of any Restricted Securities (unless there is in effect a registration statement
under the Securities Act covering such proposed disposition and such disposition
is made in accordance with such registration statement) Stockholder shall give
written notice to Parent of Stockholder's intention to effect such disposition.
Each such notice shall describe the manner and circumstances of the proposed
disposition, and shall be accompanied by either (i) a written opinion of legal
counsel addressed to Parent and reasonably satisfactory in form and substance to
Parent, to the effect that the proposed disposition of Restricted Securities may
be effected without registration of such Restricted Securities or (ii) a "no
action" letter from the Commission to the effect that such disposition without
registration of such Restricted Securities will not result in a recommendation
by the staff of the Commission that enforcement action be taken with respect
thereto, whereupon Stockholder shall be entitled to transfer such Restricted
Securities in accordance with the terms of the notice delivered by Stockholder
to Parent and (iii) a written legal opinion of legal counsel addressed to Parent
and reasonably satisfactory in form and substance to Parent, to the effect that
the proposed disposition of Restricted Securities does not violate the B.C. Act
and the rules and policies of the CDNX. The provisions of this Section 2.2 shall
not apply to any Restricted Securities which are then freely tradeable pursuant
to Rule 144(k) under the Securities Act, as amended from time to time, or any
similar successor rule that may be promulgated by the Commission.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
3.1 REPRESENTATION AND WARRANTIES OF THE STOCKHOLDERS. In connection
with Parent's delivery of shares of Parent Common Stock pursuant to the Merger
Agreement, each Stockholder hereby represents and warrants as follows:
(a) Such Stockholder confirms that no representations or
warranties have been made to Stockholder other than those contained in the
Merger Agreement and that Stockholder has not relied upon any representations or
warranties not contained therein in voting on the Merger or entering into this
Agreement.
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(b) Such Stockholder is acquiring the Parent Common Stock
solely for investment, for Stockholder's own account and not with a view to, or
for sale in connection with, the distribution thereof in violation of law.
(c) Such Stockholder has been advised and understands that an
investment in the Parent Common Stock involves a degree of risk.
(d) Such Stockholder confirms that all documents, records and
books pertaining to Parent and to the investment requested by such Stockholder
and/or such Stockholder's purchaser representative have been made available to
such Stockholder and/or such Stockholder's purchaser representative(s), if any,
and such Stockholder also confirms that such Stockholder and the purchaser
representative(s) have been given an opportunity to make any further inquiries
of Parent and its representatives that such Stockholder or the purchaser
representative(s) desires to make in order to make a fully informed investment
decision concerning investment in the Parent Common Stock.
(e) Such Stockholder, if an individual, is at least twenty-one
(21) years of age, or, if under twenty-one (21) years of age, this Agreement is
being signed on behalf of such Stockholder by such Stockholder's legal
representative, which representative is at least twenty-one (21) years of age.
(f) If such Stockholder is a partnership, corporation, trust
or other entity, the person executing this Agreement has the necessary power and
authority to do so.
(g) If such Stockholder has relied upon the advice of a
purchaser representative, such Stockholder has so indicated on the signature
page hereof and has provided the name and address of such purchaser
representative thereon; if so, such Stockholder hereby confirms to Parent that
Stockholder has heretofore received advice from each purchaser representative of
such Stockholder stating that such purchaser representative is not an affiliate,
director, officer or other employee of Parent, or beneficial owner of 10 percent
or more of any class of the equity securities or 10 percent or more of the
equity interest in Parent.
(h) Such Stockholder is aware of and understands the
following:
(1) That no federal or state agency has made a
finding or determination as to the fairness of an investment in the Parent
Common Stock or any recommendation or endorsement of the securities;
(2) The Parent Common Stock has not been registered
for sale under the Securities Act, or any state "Blue Sky" law; and
(3) There are substantial restrictions on the
transferability of the Parent Common Stock; the Parent Common Stock cannot be
transferred unless registered under the Securities Act, or an exemption from
such registration is available and established to the satisfaction of Parent;
the Stockholder will not be able to avail himself of the provisions of Rule 144
adopted by the Commission under the Securities Act, unless the conditions of
Rule 144 are met, and, accordingly, Stockholder may have to hold the Parent
Common Stock and bear the economic risk of this investment for an indefinite
period.
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(4) The Parent Common Stock are subject to additional
hold periods and trading restrictions imposed by the B.C. Act, including a hold
period that expires 12 months after the Effective Date of the Merger Agreement
(or 4 months if Parent has filed an Annual Information Form with the British
Columbia Securities Commission (the "B.C. Commission") prior to the issuance of
the Restricted Stock by the Parent) and may be subject to escrow conditions
imposed by the CDNX.
(5) The statements and information provided in the
Investor Questionnaire that accompanies this Agreement and all other information
provided by Stockholder are complete and accurate in all respects.
(6) Such Stockholder represents that the address of
such Stockholder set forth at the end of this Agreement is the true and correct
residence address of such Stockholder, and such Stockholder has no present
intention of becoming a resident or domiciliary of any other state or
jurisdiction.
(i) Each Stockholder agrees that the representations and
warranties set forth in this Section 3.1 shall survive the Merger and the
delivery of shares as contemplated thereby.
3.2 LEGEND ON CERTIFICATE. Each Stockholder acknowledges and agrees
that each certificate representing Parent Common Stock will be endorsed with a
restrictive legend similar to the following:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 OR ANY STATE SECURITIES LAW. THE SECURITIES CANNOT
BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH THE
RESTRICTIONS ON TRANSFERABILITY CONTAINED IN THE STOCKHOLDERS
AGREEMENT RELATING TO THE SECURITIES AND APPLICABLE FEDERAL
AND STATE SECURITIES LAWS AND NO TRANSFER WILL BE RECOGNIZED
UNLESS MADE IN COMPLIANCE WITH SUCH LAWS.
3.3 INDEMNIFICATION. Each Stockholder acknowledges that he understands
the meaning and legal consequences of the representations, warranties and
agreements contained in Section 3.1 hereof, that Parent is relying on the
accuracy of the representations, warranties and agreements by Stockholder as
contained herein, and that he would not be permitted to acquire any Parent
Common Stock if any representation or warranty were known to be materially false
or inaccurate. Accordingly, each Stockholder hereby agrees to indemnify and hold
harmless Parent from and against any and all loss, damage, liability, cost or
expense (including attorneys' fees) relating to or arising out of a breach of
any representation, warranty or agreement of such Stockholder contained in this
Agreement.
3.4 NO ASSIGNMENT OR TRANSFER. Each Stockholder agrees not to transfer
or assign this Agreement, or any interest of Stockholder therein.
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ARTICLE 4
GENERAL PROVISIONS
4.1 "PRO RATA SHARE; OTHER CAPITALIZED TERMS." As used in this
Agreement, the term "Pro Rata Share" of any amount shall mean the fraction that
is determined by dividing the number of shares of Company Common Stock held by a
Stockholder immediately prior to the Effective Time of the Merger by the total
number of shares of Company Common Stock held immediately prior to the Effective
Time of the Merger by all Stockholders who are parties to this Agreement. Other
capitalized terms used, but not defined herein, shall have the meanings ascribed
to them in the Merger Agreement.
4.2 NOTICES. Any notice required to be given hereunder shall be
sufficient if in writing, and sent by facsimile transmission and by same day or
overnight courier service (with proof of service), hand delivery or certified or
registered mail (return receipt requested and first-class postage prepaid),
addressed as follows:
If to Parent or Merger Sub: If to the Stockholders:
Panoramic Care Systems, Inc. Todd Spence
5181 Ward Road 11210 Point Court
Wheat Ridge, Colorado 80033 St. Louis, MO 63127
Attn: President
Telephone: (303) 422-3886
Facsimile: (303) 422-4674
With copies to: With copies to:
Davis, Graham & Stubbs LLP Benson & Guest LLP
370 17th Street, Suite 4700 635 Maryville Center Drive, Suite 221
Denver, Colorado 80202 St. Louis, MO 63141
Attn: Lester R. Woodward, Esq. Attn: Edward J. Miller, Esq.
Telephone: 303-892-7392 Telephone: 314-576-2800
Facsimile: 303-893-1379 Facsimile: 314-469-7806
or to such other address as any party shall specify by written notice so given,
and such notice shall be deemed to have been delivered as of the date so
telecommunicated, personally delivered, or delivered by courier or on the third
day after the mailing thereof.
4.3 ASSIGNMENT, BINDING EFFECT. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties.
4.4 ENTIRE AGREEMENT. This Agreement and any schedules or agreements
delivered in connection with this Agreement constitute the entire agreement
among the parties with respect to the subject matter hereof and supersede all
prior agreements and understandings among the parties with respect thereto. No
information previously provided, addition to or modification of any
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provision of this Agreement shall be binding upon any party hereto unless made
in writing and signed by all parties hereto.
4.5 AMENDMENT. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
4.6 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to its rules of
conflict of laws.
4.7 COUNTERPARTS. This Agreement may be executed by the parties hereto
in separate counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute one and the
same instrument. Each counterpart may consist of a number of copies hereof each
signed by less than all, but together signed by all of the parties hereto.
Executed counterparts transmitted by fax shall be effective as originals.
4.8 HEADINGS. Headings of the Articles and Sections of this Agreement
are for the convenience of the parties only, and shall be given no substantive
or interpretive effect whatsoever.
4.9 INTERPRETATION. In this Agreement, unless the context otherwise
requires, words describing the singular number shall include the plural and vice
versa, and words denoting any gender shall include all genders and words
denoting natural persons shall include corporations and partnerships and vice
versa.
4.10 WAIVERS. Except as provided in this Agreement, no action taken
pursuant to this Agreement, including, without limitation, any investigation by
or on behalf of any party, shall be deemed to constitute a waiver by the party
taking such action of compliance with any representations, warranties, covenants
or agreements contained in this Agreement. The waiver by any party hereto of a
breach of any provision hereunder shall not operate or be construed as a waiver
of any prior or subsequent breach of the same or any other provision hereunder.
4.11 SEVERABILITY. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction unless the same is
material to the terms of this Agreement, in the judgment of either party to this
Agreement, in which case the parties shall negotiate in good faith to revise the
same so as to be valid or enforceable. If any provision of this Agreement is so
broad as to be unenforceable, the provision shall be interpreted to be only so
broad as is enforceable.
4.12 ENFORCEMENT OF AGREEMENT. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement was not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof, this being in addition to
any other remedy to which they are entitled at law or in equity.
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4.13 CONSENT. Whenever the consent or approval of a party is required
by the terms of this Agreement, unless otherwise provided, the same shall not be
unreasonably withheld or delayed
* * * * * * *
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IN WITNESS WHEREOF, the parties have executed this Agreement
and caused the same to be duly delivered on their behalf on the day and year
first written above.
"PARENT"
PANORAMIC CARE SYSTEMS, INC.
By: /s/ Don Muir
------------------------------------------
Name: Don Muir
Title: President and Chief Executive Officer
STOCKHOLDER SIGNATURE PAGES FOLLOW
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<TABLE>
<CAPTION>
NAME AND ADDRESS
NUMBER OF PURCHASER
STOCKHOLDER OF REPRESENTATIVE STOCKHOLDER
NAME ADDRESS SHARES (IF ANY) SIGNATURE
<S> <C> <C> <C> <C>
Todd Spence 11210 Point Court 2,105,363 /s/ Todd Spence
St. Louis, MO 63127 ---------------------------
DiAnne Kerrigan 940 Westport Drive 871,648 Todd Spence /s/ D. Anne Kerrigan
Youngstown, OH 44511 ---------------------------
Tom Kerrigan 940 Westport Drive 522,989 Todd Spence /s/ Tom Kerrigan
Youngstown, OH 44511 ---------------------------
</TABLE>
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EXHIBIT A
<PAGE> 15
CONTROL STOCKHOLDERS
Any other person who has been an officer or a member of the Board of Directors
of the Company at any time during the thirty (30) days prior to the Closing.
