1
ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT AND PLAN OF REORGANIZATION (hereinafter the
Agreement) is made and entered into as of the 30 day of June, 2000 by and
between TRIAD INDUSTRIES, INC., a Nevada corporation (hereinafter TRIAD) and
NORTHWEST MEDICAL CLINIC, INC., a Georgia corporation (hereinafter NWC)
AMERIMED of Georgia, a Georgia corporation (hereinafter AMED) and FLORIMED OF
TAMPA, INC., a Florida corporation (hereinafter FMED).
RECITALS
WHEREAS, TRIAD desired to acquire from NWC certain designated assets,
subject to certain liabilities, in exchange solely to 895,200 shares of
authorized but previously unissued TRIAD common stock, par value one mil $.001;
and WHEREAS TRIAD desired to acquire from AMED and FMED certain designated
assets, in exchange solely for 346,600 and 221,502 shares respectively of
authorized but previously unissued TRIAD common stock, par value one mil $.001;
WHEREAS, the parties hereto desire to reorganize the management and operations
of TRIAD to include the NWC. NOW, THEREFORE, in consideration of the premises
and mutual representation, warranties, and covenants herein contained, the
parties agree as follows:
ARTICLE 1
ACQUISITION AND EXCHANGE OF SHARES
SECTION 1.1 Acquisition. The parties hereto agree that this Agreement shall
replace and supersede the Letter of Intent executed by the parties on May 18,
2000. The parties hereby agree that TRIAD shall acquire from NWC, AMED, and FMED
and NWC, AMED, and FMED shall assign and transfer to TRIAD all rights, titles
and interest in those specific assets designated and more completely described
in Exhibit 1.1 annexed hereto and by this reference made a part of. TRIAD
further agrees to assume and become obligated to those specific liabilities ,
debts, obligations and encumbrances of NWC, AMED, and FMED that are specifically
set forth and more specifically described in Exhibit 4.3 annexed hereto and by
this reference made a part hereof and which liabilities, debts, obligations and
encumbrances NWC, AMED, and FMED agrees to fully assume become obligated to. In
exchange for the acquisition of the assets from NWC , subject to liabilities,
TRIAD agrees to issue to NWC eight hundred ninety five thousand two hundred
(895,200) shares of authorized but previously unissued shares of TRIAD common
stock, par value one mil ($.001), said shares to be issued directly to NWC and
pursuant to the terms and conditions set forth herein. In exchange for the
acquisition of assets from AMED and FMED, TRIAD agrees to issue to AMED three
hundred forty six thousand six hundred (346,600) and FMED two hundred twenty one
thousand five hundred two (221,502). The parties hereto agree further that the
business and management of NWC shall be reorganized and that TRIAD shall
hereinafter become engaged in the business of developing and marketing certain
medical care as Northwest Medical Clinic, Inc.
SECTION 1.2 Issuance of Shares
(a) Upon the Closing of this Agreement, TRIAD shall cause to be issued and
delivered to NWC, stock certificates representing 895,200, to AMED stock
certificates representing 346,600, and to FMED stock certificates representing
221,502, shares of common stock of TRIAD, par value $0.001 per share.
(b) The shares of TRIAD Common Stock to be issued hereunder shall be
authorized but previously unissued shares of TRIAD Common Stock and shall be
issued directly to and in the name of the shareholders of NWC The shares of
TRIAD Common Stock to be issued hereunder shall be authorized but previously
unissued shares of TRIAD Common Stock and shall be issued directly to the
corporations of AMED and FMED.
(c) All shares of TRIAD Common Stock to be issued hereunder are deemed
"restricted securities" as defined by Rule 144 of the Securities Act of 1933, as
amended ("the 1933 Act"), and NWC, AMED, and FMED shall represent that they are
acquiring said shares for investment purposes only and without the intent to
make a further distribution of the shares until such time as appropriate
regulatory approval for any such distribution has been properly obtained. All
shares of TRIAD Common Stock to be issued under the terms of this Agreement
shall be issued pursuant to an exemption from the registration requirements of
the 1933 Act, under Section 4(2) of the 1933 Act and the rules and regulations
promulgated thereunder.
(d) NWC, AMED, and FMED agree that in the event it decides to distribute to
its shareholders the TRIAD shares to be acquired hereby, either in part or in
whole, NWC, AMED, and FMED will make all necessary and requisite filing with the
appropriate state and federal agencies to register such distribution under the
applicable securities laws.
SECTION 1.3 Closing. The closing of this Agreement and the transactions
contemplated hereby (the "Closing") shall take place on the 30 day of June, 2000
(the "Closing Date"), at a time and place to be mutually agreed upon by the
parties hereto, and shall be subject to the provisions of ARTICLE X of this
Agreement. At the Closing:
(a) NWC, AMED, and FMED shall cause to be delivered to TRIAD fully executed
instruments of conveyance which when executed and delivered to TRIAD, shall
immediately convey and transfer to TRIAD, all of NWC, AMED, and FMED interest in
the assets set forth in Exhibit 1.1;
(b) TRIAD shall take all necessary and appropriate actions and execute all
necessary and appropriate documents to assume completely and become obligated to
all liabilities, debts, obligations and/or other encumbrances of NWC, AMED, and
FMED and otherwise set forth in Exhibit 4.3 annexed hereto;
(c) TRIAD shall deliver to NWC, AMED, and FMED, certificates representing
an aggregate of 1,463,307 shares of TRIAD Common Stock and which certificates
shall bear a standard restrictive legend in the form customarily used with
restricted securities;
(d) TRIAD shall deliver an Officer's Certificate as described in Sections
9.1 and 9.2 hereof, dated the Closing Date, that all representations,
warranties, covenants and conditions set forth herein by TRIAD are true and
correct as of, or have been fully performed and complied with by the Closing
Date; and
(e) NWC, AMED, and FMED shall deliver an Officer's Certificate as described
in Sections 8.1 and 8.2 hereof, dated the Closing Date, that all
representations, warranties, covenants and conditions set forth herein by NWC,
AMED, and FMED are true and correct as of, or have been fully performed and
complied with by, the Closing Date;
SECTION 1.4 NWC, AMED, and FMED Special Meeting of Shareholders. In anticipation
of this Agreement, Northwest Medical Clinic, Inc., AMERIMED of Georgia, Inc.,
and FLORIMED of Tampa, Inc., shall hold Special Meetings of Shareholders in lieu
of Annual Meeting of Shareholders on May 20, 2000 in order to transact certain
business related to the ratification of this Agreement, including, but limited
to (I) ratification of a proposal to amend the Articles of Incorporation of NWC
authorizing the recapitalization of the number of shares authorized to not less
than 3,000,000 at a par value of $1.00 per share, (II) electing a new Board of
Directors consisting of William Byrd, Richard Furlong, and Linda Bryson, and
(III) ratification of this Agreement and the transactions contemplated hereby.
SECTION 1.5 Consummation of Transaction. If, at the Closing, no condition exists
which would permit any of the parties to terminate this Agreement, or a
condition then exists and the party entitled to terminate because of that
condition elects not to do so, then the transactions herein contemplated shall
be consummated upon such date, and then and thereupon TRIAD will file the
necessary documents that may be required by the State of Nevada , Georgia, and
Florida.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF TRIAD
TRIAD hereby represents, warrants and agrees that:
SECTION 2.1 Organization of TRIAD. TRIAD is a Nevada corporation duly organized,
validly existing and in good standing under the laws of the State of Nevada, is
duly qualified and in good standing as a foreign corporation in every
jurisdiction in which such qualification is necessary, and has the corporate
power and authority to own its properties and assets and to transact the
business in which it is engaged. There are corporations or other entities with
respect to which (i) TRIAD owns all of the outstanding stock or other interest,
or (ii) TRIAD may be deemed to be in control because of factors or relationships
other that the quantity of stock or other interest owned. TRIAD has all
requisite corporate power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby. This Agreement is the
legal, valid and binding obligation of TRIAD, enforceable against TRIAD in
accordance with its respective terms except to the extent that such enforcement
may be limited by applicable bankruptcy, insolvency and other similar laws
affecting creditors' rights generally.
SECTION 2.2 Capitalization of TRIAD. The authorized capital stock of TRIAD
currently consists of 50,000,000 shares of Common Stock, par value $.001 per
share, of which 6,403,418 shares are presently issued and outstanding , and
10,000,000 shares of Preferred Stock, par value one dollar ($1.00) per share,
850,000 of which are presently issued and outstanding. All issued and
outstanding shares of common stock of TRIAD have been duly authorized and
validly issued and are fully paid and non-assessable. There are no options,
warrants, rights, calls, commitments or agreements of any character obligating
TRIAD to issue any shares of its capital stock or any security representing the
right to purchase or otherwise receive any such stock. Shares of TRIAD Common
Stock to be issued pursuant to this Agreement, when so issued, will be duly
authorized, validly issued, fully paid and non-assessable.
SECTION 2.3 Charter Documents. Complete and correct copies of the Articles of
Incorporation and By-Laws of TRIAD and all amendments thereto, have been or will
be delivered to NWC, AMED, and FMED prior to the Closing, and certified copies
of the TRIAD Articles of Incorporation and By-Laws are annexed hereto as Exhibit
2.3 and by this reference made a part hereof.
SECTION 2.4 Financial Statements. TRIAD's certified financial statements for the
period ending December 31, 1998, December 31, 1999 and March 31, 2000 unaudited,
a copy of which is annexed hereto as Exhibit 2.4 and by this reference made a
part hereof, are true and complete in all material respects, having been
prepared in accordance with generally accepted accounting principles applied on
a consistent basis for the periods covered by such statements, and fairly
present, in accordance with generally accepted accounting principles, the
financial condition of TRIAD, and results of its operations for the periods
covered thereby. Except as otherwise disclosed to NWC, AMED, and FMED in writing
and as set forth herein, there has been no material adverse change in the
business operations, assets, properties, prospects or condition (financial or
otherwise) of TRIAD taken as a whole from that reflected in the financial
statements referred to in this Section 2.4, of which NWC, AMED, and FMED based
its decision to enter into this Agreement.
SECTION 2.5 Absence of Certain Changes or Events. Since the date of the TRIAD
financial report for the period ending December 31, 1999, and except as
disclosed otherwise herein, TRIAD has not (i) issued or sold any promissory
note, stock, bond, option or other corporate security of which it was an issuer
or other obligor, (ii) discharged or satisfied any lien or encumbrance or paid
any obligation or liability, absolute or contingent, direct or indirect, (iii)
incurred or suffered to be incurred any liability or obligation whatsoever, (iv)
caused or permitted any lien, encumbrance or security interest to be created or
arise on or in any of its properties or assets, (v) declared or made any
dividend, payment or distribution to stock holders or purchased or redeemed or
agreed to purchase or redeem any shares of its capital stock, (vi) reclassified
its shares of capital stock, or (vii) entered into any agreement or transaction
except in connection with the execution and performance of this Agreement.
SECTION 2.6 Assets and Liabilities. TRIAD has good and marketable title to all
of its assets and property, free and clear of any and all liens, claims and
encumbrances, except as may be otherwise explicitly set forth herein. As of date
hereon, TRIAD does not have any debts, liabilities or obligations of any nature,
whether accrued, absolute, contingent, or otherwise, whether due or to become
due, that are not fully reflected in the TRIAD Balance Sheet dated December 31,
1999 except as may be explicitly set forth herein.
SECTION 2.7. Tax Returns and Payments. All of TRIAD's tax returns (federal,
state, city, county or foreign) which are required by law to be filed on or
before the date of this Agreement, have been duly filed or extended with the
appropriate governmental authority. TRIAD has paid all taxes to be due on said
returns, any assessments made against TRIAD and all other taxes, fees and
similar charges imposed on TRIAD by any governmental authority (other than
those, the amount or validity of which is being contested in good faith by
appropriate proceedings). No tax liens have been filed and no claims are being
assessed with respect to any such taxes, fees or other similar charges.
SECTION 2.8 Required Authorizations. There have been or will be timely filed,
given, obtained or taken, all applications, notices, consents, approvals,
orders, registrations, qualifications waivers or other actions of any kind
required by virtue of execution and delivery of this Agreement by TRIAD or the
consummation by it of the transactions contemplated hereby.
SECTION 2.9 Compliance with Law and Government Regulations. TRIAD is in
compliance with and is not in violation of, applicable federal, state, local or
foreign statutes, laws and regulations (including without limitation, any
applicable building, zoning or other law, ordinance or regulation) affecting its
properties or the operation of its business.
SECTION 2.10 Litigation. There is no litigation, arbitration, proceeding or
investigation pending or threatened to which TRIAD is a party or which may
result in any material change in the business or condition, financial or
otherwise, of TRIAD or in any of its properties or assets, or which might result
in any liability on the part of TRIAD or which questions the validity of this
Agreement or of any action taken or to be taken pursuant to or in connection
with the provisions of this Agreement, and to the best knowledge of TRIAD, there
is no basis for any such litigation, arbitration, proceeding or investigation.
SECTION 2.11 Investigation of Financial Condition. In addition to making
available for review by NWC, AMED, and FMED all financial statements, books and
records of TRIAD, and without in any manner reducing or otherwise mitigating the
representations contained herein, NWC, AMED, and FMED shall have the opportunity
to meet with TRIAD's accountants and attorneys to discuss the financial
condition of TRIAD and to make whatever further independent investigation deemed
necessary and prudent.
SECTION 2.12 Governmental Consent. No consent, approval, authorization or order
of, or registration, qualification, designation, declaration or filing with, any
governmental authority on the part of TRIAD is required in connection with the
execution and delivery of this Agreement or the carrying out of any transactions
contemplated hereby.
SECTION 2.13 Authority. TRIAD and its Board of Directors shall have approved
this Agreement and the transactions contemplated hereby prior to the Closing and
duly authorized the execution and delivery hereof. TRIAD has full power,
authority and legal right to enter into this Agreement and to consummate the
transactions contemplated hereby, and all corporate action necessary to
authorize the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby has been duly and validly taken.
SECTION 2.14 Full Disclosure. None of the representations and warranties made by
TRIAD herein, or in any exhibit, certificate or memorandum furnished or to be
furnished by TRIAD on its behalf pursuant hereto, contains or will contain any
untrue statement of material fact, or omits any material fact, the omission of
which would be misleading.
ARTICLE III
COVENANTS OF TRIAD
SECTION 3.1 Conduct Prior to the Closing. Between the date hereof and
the Closing:
(a) TRIAD will not enter into any agreement, contract or commitment,
whether written or oral, or engage in any transaction, without the knowledge and
prior written consent of NWC, AMED, and FMED;
(b) TRIAD will not declare any dividends or distributions with respect to
its capital stock or amend its Articles of Incorporation or By-Laws, without the
prior written consent of NWC, AMED, and FMED;
(c) TRIAD will not authorize, issue, sell, purchase or redeem any shares of
its capital stock without the prior written consent of NWC, AMED, and FMED;
(d) TRIAD will comply with all requirements which federal or state law may
impose on it with respect to this Agreement and the transactions contemplated
hereby, and will promptly cooperate with and furnish information to NWC, AMED,
and FMED in connection with any such requirements imposed upon the parties
hereto in connection therewith;
(e) TRIAD will not incur any indebtedness for money borrowed, or issue or
sell any debt securities, incur or suffer to be incurred any liability or
obligation of any nature whatsoever, or cause or permit any lien, encumbrance or
security interest to be created or arise on or in any of its properties or
assets, acquire or dispose of fixed assets, change employment terms, enter into
any material or long-term contract, guarantee obligations of any third party,
settle or discharge any balance sheet receivable for less than its stated amount
or enter into any other transaction other than in the regular course of
business, except to comply with the terms of this Agreement, without the consent
of NWC, AMED, and FMED;
(f) TRIAD shall grant to NWC, AMED, and FMED and its counsel, accountants
and other representatives, full access during normal business hours during the
period prior to the Closing to all its respective properties, books, contracts,
commitments and records and, during such period, furnish promptly to NMC GROUP
and such representatives all information relating to TRIAD as NWC, AMED, and
FMED may reasonably request; and
(g) Except for the transactions contemplated by this Agreement, TRIAD will
conduct its business in the normal course, and shall not sell, pledge or assign
its assets without the prior written consent of NWC, AMED, and FMED.
SECTION 3.2 Affirmative Covenants. Prior to Closing, TRIAD will do
the following:
(a) Use its best efforts to accomplish all actions necessary to consummate
this Agreement, including satisfaction of all the conditions contained in this
Agreement;
(b) Call for and properly hold a meeting of its Board of Directors for the
purpose of conducting the business and ratifying those proposals as set forth in
Section 1.4 above.
(c) Promptly notify NWC, AMED, and FMED in writing of any material adverse
change in the financial condition, business, operations or key personnel of
TRIAD, any breach of its representations or warranties contained herein, and any
material contract, agreement, license or other agreement which, if in effect on
the date of this Agreement, should have been included in this Agreement or in an
exhibit annexed hereto and made a part hereof; and
(d) Reserve, and promptly after the Closing, issue and deliver to NWC,
AMED, and FMED or its designees the number of shares of TRIAD Common Stock
required hereunder; and
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF NMC GROUP
NWC, AMED, and FMED hereby represents, warrants and agrees that:
SECTION 4.1 Organization of NWC, AMED, and FMED. NWC is Northwest Medical
Clinic, Inc., a Georgia corporation, AMED is AMERIMED of Georgia, Inc., a
Georgia corporation and FMED is, Florimed of Tampa, a Florida corporation, the
latter two corporations are considered affiliates. Each corporation is duly
organized, validly existing and in good standing in each respective state, is
duly qualified and in good standing in each jurisdiction.
SECTION 4.2 Charter Documents. Complete and correct copies of the Articles of
Incorporation and By-Laws of NWC, AMED, and FMED and its affiliates and all
amendments thereto, have been or will be delivered to TRIAD prior to the
Closing.
SECTION 4.3 Financial Statements/Assets and Liabilities. NWC, AMED, and FMED has
good and marketable title to all of the assets to be transferred and delivered
to TRIAD hereunder, free and clear of any and all liens, claims and
encumbrances, except as may be otherwise set forth herein and in its financial
statements and further set forth in Exhibit 4.3 annexed hereto and by this
reference made a part hereof.
SECTION 4.4 Tax Returns and Payments. All of NWC, AMED, and FMED tax returns
(federal, state, city, county or foreign) which are required by law to be filed
on or before the date of this Agreement, have been duly filed or extended with
the appropriate governmental authority. NWC, AMED, and FMED have paid all taxes
to be due on said returns, any assessments made against NWC, AMED, and FMED and
all other taxes, fees and similar charges imposed on NMC GROUP by any
governmental authority (other than those, the NWC, AMED, and FMED amount or
validity of which is being contested in good faith by appropriate proceedings).
No tax liens have been filed and no claims are being assessed with respect to
any such taxes, fees or other similar charges.
SECTION 4.5 Required Authorizations. There have been or will be timely filed,
given, obtained or taken, all applications, notices, consents, approvals,
orders, registrations, qualifications waivers or other actions of any kind
required by virtue of execution and delivery of this Agreement by NMC GROUP or
the consummation by it of the transactions NWC, AMED, and FMED contemplated
hereby.
SECTION 4.6 Compliance with Law and Government Regulations. NMC GROUP and NWC,
AMED, and FMED affiliates is in compliance with all applicable statutes,
regulations, decrees, orders, restrictions, guidelines and standards, whether
mandatory or voluntary, affecting its properties and operations, imposed by the
United States of America, and any state or foreign country or government to
which NWC, AMED, and FMED is subject.
SECTION 4.7 Litigation. There is no litigation, arbitration, proceeding or
investigation pending or threatened to which NWC, AMED, and FMED are a party or
which may result in any material change in the business or condition, financial
or otherwise, of NWC, AMED, and FMED or in any of its properties or assets, or
which might result in any liability on the part of NWC, AMED, and FMED or which
questions the validity of this Agreement or of any action taken or to be taken
pursuant to or in connection with the provisions of this Agreement, and to the
best knowledge of NWC, AMED, and FMED, there is no basis for any such
litigation, arbitration, proceeding or investigation.
SECTION 4.8 Investigation of Financial Condition. In addition to making
available for review by TRIAD all financial statements, books and records of
TRIAD, and without in any manner reducing or otherwise mitigating the
representations contained herein, TRIAD shall have the opportunity to meet with
NWC, AMED, and FMED accountants and attorneys to discuss the financial condition
of NWC, AMED, and FMED and to make whatever further independent investigation
deemed necessary and prudent.
SECTION 4.9 Governmental Consent. No consent, approval, authorization or order
of, or registration, qualification, designation, declaration or filing with, any
governmental authority on the part of NWC, AMED, and FMED are required in
connection with the execution and delivery of this Agreement or the carrying out
of any transactions contemplated hereby.
SECTION 4.10 Authority. NWC, AMED, and FMED and its shareholders shall have
approved this Agreement and the transactions contemplated hereby prior to the
Closing and duly authorized the execution and delivery hereof. NWC, AMED, and
FMED has full power, authority and legal right to enter into this Agreement and
to consummate the transactions contemplated hereby, and all corporate action
necessary to authorize the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby has been duly and validly
taken. Those persons executing this Agreement represent that they have received
the authority to act on behalf of and for the shareholders of NWC, AMED, and
FMED and that in the event additional shareholder approvals are required, such
approvals will be obtained at the next scheduled annual meeting of NWC, AMED,
and FMED shareholders.
SECTION 4.11 Investment Purpose. NWC, AMED, and FMED hereby represents that it
is acquiring the shares of TRIAD Common Stock to be issued hereunder for
investment purposes only and not with a view for further distribution or resale.
NWC, AMED, and FMED further represents and acknowledges that the TRIAD shares
issued hereunder are "restricted securities" and may not be sold, traded or
otherwise transferred without registration under the 1933 Act or exemption
therefrom. NWC, AMED, and FMED further represents that in the event it decides
to distribute to its shareholders the TRIAD shares to be acquired hereby, either
in part or in whole, NWC, AMED, and FMED will make all necessary and requisite
filing with the appropriate state and federal agencies to register such
distribution under the applicable securities laws.
SECTION 4.12 Full Disclosure. None of the representations and warranties made by
NMC GROUP herein, or in any exhibit, certificate or memorandum furnished or to
be furnished by TRIAD, on its behalf, contains or will contain any untrue
statement of material fact, or omit any material fact, the omission of which
would be misleading.
ARTICLE V
COVENANTS OF NMC GROUP
SECTION 5.1 Conduct Prior to Closing. Between the date hereof and the
Closing:
(a) NWC, AMED, and FMED will not enter into any material agreement,
contract or commitment, whether written or oral, or engage in any transaction,
without the prior written consent of TRIAD;
(b) NWC, AMED, and FMED will not declare any dividends or distributions
with respect to its capital stock or amend its Articles of Incorporation or
By-Laws, without the prior written consent of TRIAD;
(c) Except within the regular course of business, NWC, AMED, and FMED will
not incur any indebtedness for money borrowed or issue to sell any debt
securities, or incur or suffer to be incurred any liability or obligation of any
nature whatsoever, or cause or permit any lien, encumbrance or security interest
to be created or arise on or in any of its properties or assets, with the prior
written consent of TRIAD;
(d) NWC, AMED, and FMED will comply with all requirements which federal or
state law may impose on it with respect to this Agreement and the transactions
contemplated hereby, and will promptly cooperate with and furnish information to
TRIAD in connection with any such requirements imposed upon the parties hereto
in connection therewith; and
(e) NWC, AMED, and FMED shall grant to TRIAD and its counsel, accountants
and other representatives, full access during normal business hours during the
period prior to the Closing to all its respective properties, books, contracts,
commitments and records and, during such period, furnish promptly to TRIAD and
such representatives all information relating to NWC, AMED, and FMED as TRIAD
may reasonably request.
SECTION 5.2 Affirmative Covenants. Prior to Closing, NMC GROUP will do
the following:
(a) Obtained the approval of its Board of Directors and shareholders to
proceed with this Agreement and obtain any further shareholder approvals, which
may be required, at the next scheduled annual meeting of NWC, AMED, and FMED
shareholders;
(b) Use its best efforts to accomplish all actions necessary to consummate
this Agreement, including satisfaction of all the conditions contained in the
Agreement; and
(c) Promptly notify TRIAD in writing of any materially adverse change in
the financial condition, business, operations or key personnel of NWC, AMED, or
FMED, any breach of its representations or warranties contained herein, and any
material contract, agreement, license or other agreement which, if in effect on
the date of this Agreement, should have been included in this Agreement.
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.1 Expenses. Whether or not the transactions contemplated in this
Agreement are consummated, all costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall be paid by the
party incurring such expense or as otherwise agreed to herein.
SECTION 6.2 Brokers and Finders. Each of the parties hereto represents, as to
itself, that with the exception of the consideration and additional shares of
TRIAD Common Stock to be paid and issued pursuant to the Letter of Intent ,
dated May 18, 2000 annexed hereto as Exhibit 6.2 and by this reference made a
part hereof, and to which TRIAD acknowledges and agrees fulfill the terms
thereof, no other agent, broker, investment banker or other firm or person is or
will be entitled to any broker's or finder's fee or any other commission or
similar fee in connection with any of the transactions contemplated by this
Agreement.
SECTION 6.3 Necessary Actions. Subject to the terms and conditions herein
provided, each of the parties hereto agrees to use all reasonable efforts to
take, or cause to be taken, all action, and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement.
In the event at any time after the Closing, any further action is necessary or
desirable to carry out the purposes of this Agreement, the proper officers
and/or directors of TRIAD or NWC, AMED, or FMED as the case may be, shall take
all such necessary action.
SECTION 6.4 Indemnification. Each party to this Agreement hereby agrees to
defend and hold the other party harmless against and in respect of any and all
claims, demands, losses, costs, expenses, obligations, liabilities, damages,
recoveries and deficiencies, including interest, penalties, and reasonable
attorney fees, that they shall incur or suffer, which arise out of, result from
or relate to any material breach of, or failure by the party to perform any of
its respective representations, warranties, covenants and agreements in this
Agreement or in any exhibit or other instrument furnished or to be furnished by
the party under this Agreement.
ARTICLE VII
CONDITIONS TO OBLIGATIONS OF THE PARTIES
The obligations of the parties under this Agreement are subject to the
fulfillment and satisfaction of each of the following conditions:
SECTION 7.1 Legal Action. No preliminary or permanent injunction or other order
by any federal or state court which prevents the consummation of this Agreement
or any of the transactions contemplated by this Agreement shall have been issued
and remain in effect.
SECTION 7.2 Absence of Termination. The obligations to consummate the
transactions contemplated hereby shall not have been canceled pursuant to
Article X hereof.
SECTION 7.3 Required Approvals. TRIAD and NWC, AMED, and FMED shall have
received all such approvals, consents, authorizations or modifications as may be
required to permit the performance by TRIAD and NWC, AMED, and FMED of the
respective obligations under this Agreement, and the consummation of the
transactions herein contemplated, whether from governmental authorities or other
persons and TRIAD and NWC, AMED, and FMED shall each have received any and all
permits and approvals from any regulatory authority having jurisdiction required
for the lawful consummation of this Agreement.
SECTION 7.4 Blue Sky Compliance. There shall have been obtained any and all
permits, approvals and consents of the Securities or "Blue-Sky" Commissions of
any jurisdictions, and of any other governmental body or agency, which
respective counsel for TRIAD and NWC, AMED, and FMED may reasonably deem
necessary or appropriate so that consummation of the transactions contemplated
by this Agreement may be in compliance with all applicable laws.
ARTICLE VIII
CONDITIONS PRECEDENT TO OBLIGATIONS OF NMC GROUP
All obligations of TRIAD under this Agreement are subject to the fulfillment and
satisfaction by NWC, AMED, and FMED prior to or at the time of the Closing, of
each of the following conditions, any one or more of which may be waived by
TRIAD.
SECTION 8.1 Representations and Warranties True at the Closing. All
representations and warranties of NWC, AMED, and FMED contained in this
Agreement will be true and correct at and as of the time of the Closing, and
NWC, AMED, and FMED shall have delivered to TRIAD a certificate, dated the date
of the Closing, to such effect and in the form and substance satisfactory to
TRIAD, and signed, in the case of NWC, AMED, and FMED, by its president and
secretary.
SECTION 8.2 Performance. The obligations of NWC, AMED, and FMED to be performed
on or before the Closing pursuant to the terms of this Agreement shall have been
duly performed at such time, and NWC, AMED, and FMED shall have delivered to
TRIAD a certificate, dated the date of the Closing, to such effect and in form
and substance satisfactory to TRIAD.
SECTION 8.3 Authority. All action required to be taken by, or on the part of
NWC, AMED, and FMED and its shareholders, if required, to authorize the
execution, delivery and performance of this Agreement by NWC, AMED, and FMED and
the consummation of the transactions contemplated hereby, shall have been duly
and validly taken.
SECTION 8.4 Absence of Certain Changes or Events. There shall not have occurred,
since the date hereof, any adverse change in the business, condition, (financial
or otherwise), assets or liabilities of NWC, AMED, and FMED or any event or
condition of any character adversely affecting NWC, AMED, and FMED, and it shall
have delivered to TRIAD, certificates, dated the date of the Closing, to such
effect and in form and substance satisfactory to TRIAD and signed, in the case
of NWC, AMED, and FMED, by its president and
secretary.
ARTICLE IX
CONDITIONS PRECEDENT TO OBLIGATIONS OF NMC GROUP
All obligations of NWC, AMED, and FMED under this Agreement are subject to the
fulfillment and satisfaction by TRIAD prior to or at the time of the Closing, of
each of the following conditions, any one or more of which may be waived by NWC,
AMED, and FMED.
SECTION 9.1 Representations and Warranties True at the Closing. All
representations and warranties of TRIAD contained in this Agreement will be true
and correct at and as of the time of the Closing, and TRIAD shall have delivered
to NWC, AMED, and FMED a certificate, dated the date of the Closing, to such
effect and in the form and substance satisfactory to NWC, AMED, and FMED , and
signed, in the case of TRIAD, by its president and secretary.
SECTION 9.2 Performance. Each of the obligations of TRIAD to be performed on or
before the Closing pursuant to the terms of this Agreement shall have been duly
performed at such time of Closing, and TRIAD shall have delivered to NWC, AMED,
and FMED a certificate, dated the date of the Closing, to such effect and in
form and substance satisfactory to NWC, AMED, and FMED and signed, in the case
of TRIAD by its president and secretary.
SECTION 9.3 Authority. All action required to be taken by, or on the part of
TRIAD to authorize the execution, delivery and performance of this Agreement by
TRIAD and the consummation of the transactions contemplated hereby, shall have
been duly and validly taken.
SECTION 9.4 Absence of Certain Changes or Events. There shall not have occurred,
since the date hereof, any adverse change in the business, condition, (financial
or otherwise), assets or liabilities of TRIAD or any event or condition of any
character adversely affecting TRIAD, and it shall have delivered to NWC, AMED,
and FMED, certificates, dated the date of the Closing, to such effect and in
form and substance satisfactory to NWC, AMED, and FMED and signed, in the case
of TRIAD, by its president and secretary.
ARTICLE X
TERMINATION
SECTION 10.1 Termination. Notwithstanding anything herein or elsewhere to the
contrary, this Agreement may be terminated:
(a) By mutual agreement of the parties hereto at any time prior to Closing;
(b) By the board of directors of TRIAD at any time prior to the closing in
the event:
(i) a condition to performance by TRIAD under this Agreement or a covenant
of NWC, AMED, and FMED contained herein shall not be fulfilled on or before the
time of the Closing or at such other time and date specified for the fulfillment
for such covenant or condition; or
(ii) a material default or breach of this Agreement shall be made by NWC,
AMED, and FMED; or
(iii) the Closing shall not have taken place on or prior to June 30, 2000.
(c) By the board of directors of NWC, AMED, and FMED at any time prior to
the closing in the event:
(i) a condition to NWC, AMED, and FMED performance under this Agreement or
a covenant of TRIAD contained in this Agreement shall not be fulfilled on or
before the Closing or at such other time and date specified for the fulfillment
of such covenant or conditions;
(ii) a material default or breach of this Agreement shall be made by TRIAD;
or
(iii) the Closing shall not have taken place on or prior to June 30, 2000.
SECTION 10.2 Effect of Termination. If this Agreement is terminated, this
Agreement, except as to Sections 11.1, 11.2, shall no longer be of any force or
effect and there shall be no liability on the part of any party or its
respective directors, officers or stockholders; provided however, that in the
case of a Termination without cause by a party or a termination pursuant to
Sections 10.1(b) (i) or 10.1 (c) (i) hereof because of a prior material default
under or a material breach of this Agreement by another party, the damages which
the aggrieved party or parties may recover from the defaulting party or parties
shall in no event exceed the amount of out-of-pocket costs and expenses incurred
by such aggravated party or parties in connection with this Agreement.
SECTION 10.3 Recision. In the event that prior to June 30, 2000, NWC, AMED, and
FMED fails to obtain any and all consents and/or approvals that may be required
from the NWC, AMED, and FMED shareholders or any regulatory authority for the
approval and ratification of this Agreement, then this Agreement shall be
rescinded and become null and void with the result that all shares of TRIAD
Common Stock issued to NWC, AMED, and FMED hereunder are to be deemed canceled
and no longer outstanding on the transfer records of TRIAD and that those assets
set forth in Exhibit 1.1 hereto shall be returned to
NWC, AMED, and FMED.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Cost and Expenses. All costs and expenses incurred in connection
with this Agreement will be paid by the party incurring such expenses. In the
event of any termination of this Agreement pursuant to Section 10.1 or 10.3,
subject to the provisions of Section 11.2, NWC, AMED, and FMED and TRIAD will
each bear their own respective expenses.
SECTION 11.2 Extension of Time: Waivers. At any time prior to the Closing date:
(a) TRIAD may (i) extend the time for the performance of any of the
obligations or other acts of NWC, AMED, and FMED, (ii) waive any inaccuracies in
the representations and warranties of NWC, AMED, and FMED contained herein or in
any document delivered pursuant hereto by NWC, AMED, and FMED and (iii) waive
compliance with any of the agreements or conditions contained herein to be
performed by NWC, AMED, and FMED. Any agreement on the part of TRIAD to any such
extension or waiver shall be valid only if set forth in an instrument, in
writing, signed on behalf of TRIAD;
(b) NWC, AMED, and FMEDmay (i) extend the time for the performance of any
of the obligations or other acts of TRIAD, (ii) waive any inaccuracies in the
representations and warranties of TRIAD contained herein or in any document
delivered pursuant hereto by TRIAD and (iii) waive compliance with any of the
agreements or conditions contained herein to be performed by TRIAD. Any
agreement on the part of NWC, AMED, and FMED to any such extension or waiver
shall be valid only if set forth in an instrument, in writing, signed on behalf
of NWC, AMED, and FMED;
SECTION 11.3 Notices. Any notice to any party hereto pursuant to this Agreement
shall be given by Certified or Registered Mail, addressed as follows:
NORTHWEST MEDICAL CLINIC, INC.
2430 Herodian Way
Smyrna, GA 30080
TRIAD, INC.
16935 West Bernardo Drive, Ste. 232
San Diego, CA 92127
Additional notices are to be given to each party, at such other address
should be designated in writing comply as to delivery with the terms of this
Section 11.3. All such notices shall be effective when sent, addressed as
aforesaid.
SECTION 11.4 Parties in Interest. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and the respective successors and
designees. Nothing in this Agreement is intended to confer, expressly or by
implication, upon any other person any rights or remedies under or by reason of
this Agreement.
SECTION 11.5 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and together shall
constitute one document. The delivery by facsimile of an executed counterpart of
this Agreement shall be deemed to be an original and shall have the full force
and effect of an original executed copy.
SECTION 11.6 Severability. The parties hereto agree and affirm that none of the
provisions herein is dependent upon the validity of any other provision, and if
any part of this Agreement is deemed to be unenforceable, the remainder of the
Agreement shall remain in full force and effect.
SECTION 11.7 Headings. The Article and Section headings are provided herein for
convenience of reference only and do not constitute a part of this Agreement.
SECTION 11.8 Governing Law. This Agreement shall be governed by the laws of the
State of Nevada. Any action to enforce the provisions of this Agreement shall be
brought in a court of competent jurisdiction in the State of Nevada and in no
other place.
SECTION 11.9 Survival of Representations and Warranties. All terms, conditions,
representations and warranties set forth in this Agreement or in any instrument,
certificate, opinion, or other writing providing for in it, shall survive the
Closing and the delivery of the shares of TRIAD Common Stock transferred
hereunder at the Closing, regardless of any investigation made by or on behalf
of any of the parties hereto.
SECTION 11.10 Assignability. This Agreement shall not be assignable by any of
the parties hereto without the prior written consent of the other parties.
SECTION 11.11 Amendment. This Agreement may be amended with the approval of the
boards of directors of TRIAD and NWC, AMED, and FMED at any time before or after
approval thereof by directors of TRIAD, if required, and NWC, AMED, and FMED ;
but after such approval by the TRIAD directors, no amendment shall be made which
substantially and adversely changes the terms hereof. This Agreement may not be
amended except by an instrument, in writing, signed on behalf of each of the
parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Acquisition Agreement in a manner legally binding upon them as of the date first
above written.
TRIAD
TRIAD INDUSTRIES, INC. ATTEST:
By: /S/ Gary DeGano /S/ Michael Kelleher
Its: President Secretary
NWC
NORTHWEST MEDICAL CLINIC ATTEST
By: /S/ J. Wm. Byrd /S/ Richard A. Furlong
Its: President Secretary
AMERIMED OF GEORGIA ATTEST:
By: /S/ J. Wm. Byrd /S/ Richard A. Furlong
Its: President Secretary
FLORIMED OF TEMPA ATTEST:
By: /S/ Richard A. Furlong /S/ J. Wm. Byrd
Its: President Secretary
CERTIFICATE
OF
AMERIMED OF GEORGIA, INC.
The undersigned, J. Wm. Byrd and Richard A. Furlong hereby certify that
they are the President and Secretary respectively, of AMERIMED OF GEORGIA, a
Georgia corporation and further certify as follows:
1. That the representations and warranties of AMERIMED OF GEORGIA contained
in the Acquisition Agreement (the "Agreement") by and between TRIAD, a Nevada
corporation, and AMERIMED OF GEORGIA are true and correct at and as of the date
hereof.
2. The obligations and covenants of AMERIMED OF GEORGIA to be performed and
observed on or before the Closing as defined in the Agreement have been duly
performed and observed.
3. Except as otherwise disclosed in the Agreement, there has not occurred
since the date thereof, any adverse change in the business, condition (financial
or otherwise), assets or liabilities of the Company or any event or condition of
any character adversely affecting the Company.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of
this day 30 of June , 2000.
AMERIMED OF GEORGIA, INC.
By: /S/ J. Wm. Byrd
J. W. M. Byrd, President
By: /S/Richard A. Furlong
Richard A. Furlong, Secretary
CERTIFICATE
OF
NORTHWEST MEDICAL CLINIC, INC.
The undersigned, J. Wm. Byrd and Richard A. Furlong hereby certify that they are
the President and Secretary respectively, of NORTHWEST MEDICAL CLINIC, a Georgia
corporation and further certify as follows:
1. That the representations and warranties of NORTHWEST MEDICAL CLINIC
contained in the Acquisition Agreement (the "Agreement") by and between TRIAD, a
Nevada corporation, and NORTHWEST MEDICAL CLINIC are true and correct at and as
of the date
hereof.
2. The obligations and covenants of NORTHWEST MEDICAL CLINIC to be
performed and observed on or before the Closing as defined in the Agreement have
been duly performed and observed.
3. Except as otherwise disclosed in the Agreement, there has not occurred
since the date thereof, any adverse change in the business, condition (financial
or otherwise), assets or liabilities of the Company or any event or condition of
any character adversely affecting the Company.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of
this 30 day of June, 2000.
NORTHWEST MEDICAL CLINIC, INC.
By: /S/ J. Wm. Byrd
J. W. M. Byrd, President
By:/S/ Richard A. Furlong
Richard A. Furlong, Secretary
CERTIFICATE
OF
FLORIMED OF TAMPA, INC.
The undersigned, J. Wm. Byrd and Richard A. Furlong hereby certify that they are
the President and Secretary respectively, of FLORIMED OF TAMPA, a Florida
corporation and further certify as follows:
1. That the representations and warranties of FLORIMED OF TAMPA contained
in the Acquisition Agreement (the "Agreement") by and between TRIAD, a Nevada
corporation, and FLORIMED OF TAMPA are true and correct at and as of the date
hereof.
2. The obligations and covenants of FLORIMED OF TAMPA to be performed and
observed on or before the Closing as defined in the Agreement have been duly
performed and observed.
3. Except as otherwise disclosed in the Agreement, there has not occurred
since the date thereof, any adverse change in the business, condition (financial
or otherwise), assets or liabilities of the Company or any event or condition of
any character adversely affecting the Company.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of this 30
day of June, 2000.
FLORIMED OF TAMPA, INC.
By:/S/ Richard A. Furlong
Richard A. Furlong, President
By: /S/ J. Wm. Byrd
J. Wm. Byrd, Secretary
CERTIFICATE
OF
TRIAD, INC.
The undersigned, Gary DeGano and Michael Kelleher hereby certify that they are
the President and Secretary respectively, of TRIAD, INC., a Nevada corporation
("TRIAD") and further certify as follows:
1. That the representations and warranties of TRIAD contained in the
Acquisition Agreement (the "Agreement") by and between TRIAD and Northwest
Medical Clinic, Inc., AMERIMED of Georgia, Inc., and Florimed of Tampa, Inc.,
are true and correct at and as of the date hereof.
2. The obligations and covenants of TRIAD to be performed and observed on
or before the Closing as defined in the Agreement have been duly performed and
observed.
3. Except as otherwise disclosed in the Agreement, there has not occurred
since the date thereof, any adverse change in the business, condition (financial
or otherwise), assets or liabilities of TRIAD or any event or condition of any
character adversely affecting TRIAD.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of this day
30 of June, 2000.
TRIAD, INC.
By: /S/ Gary DeGano
Gary DeGano, President
By:/S/ Michael Kelleher
Michael Kelleher, Secretary
