UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K/A
Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934.
DYNAMIC ASSOCIATES, INC.
(Exact name of registrant as specified in its charter)
NEVADA 33-55254-03 87-0473323
(State or other jurisdiction of (Commission File Number) (IRS Employer
incorporation) Identification No.)
7373 North Scottsdale Road, Suite B-150
Scottsdale, Arizona 85253
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (602) 483-8700
AMENDMENT NO. 1
The undersigned registrant hereby amends the following items, financial
statements, exhibits or other portions of its CURRENT REPORT on Form 8-K dated
August 27, 1996 as set forth in the pages attached hereto:
Acquisition Agreement with Genesis Health Management Corporation including
Attachments and Exhibits.
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Signature
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.
Dynamic Associates, Inc.
Date: November 14, 1996 /s/ Logan B. Anderson
Logan B. Anderson, Secretary/Treasurer
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ACQUISITION AGREEMENT
TABLE OF CONTENTS
1. INTERPRETATION PAGE 3
2. AGREEMENT TO MERGE PAGE 3
3. PLAN OF MERGER PAGE 4
4. WARRANTIES OF GENESIS SHAREHOLDERS PAGE 5
5. WARRANTIES OF DYNAMIC PAGE 9
6. COVENANTS OF DYNAMIC PAGE 11
7. COVENANTS OF GENESIS SHAREHOLDERS PAGE 11
8. CLOSING PAGE 12
9. BROKERAGE PAGE 15
10. POST-CLOSING OPERATIONS OF NEWCO PAGE 15
12. LIMITATIONS OF LIABILITY AND DEPOSIT PAGE 17
13. MISCELLANEOUS PAGE 17
14. REGISTRATION OF DYNAMIC SHARES PAGE 19
15. RESERVATION PAGE 19
16. CONSTRUCTION PAGE 19
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ACQUISITION AGREEMENT
THIS AGREEMENT, effective August 1, 1996, is made and entered into by and among:
Vickie T. Lucky, a resident of the full age of majority of the state of
Texas;
J. T. Simmons, a resident of the full age of majority of the state of
Texas;
Claudine Blondeau, a resident of the full age of majority of the state of
Louisiana;
Mary A. Roberts, a resident of the full age of majority of the state of
Louisiana; and
William H. Means, Jr., a resident of the full age of majority of the state
of Louisiana;
(hereinafter sometimes jointly called the "Genesis Shareholders")
AND
W. A. Lucky, III, ("Lucky") a resident of the full age of majority of the
state of Texas;
HarryMoll, ("Moll") a resident of the full age of majority of the Cayman
Islands; and
Jan Wallace,("Wallace") a resident of the full age of
majority of ____________, Canada.
(hereinafter sometimes jointly called "Warrantors")
AND
DYNAMIC ASSOCIATES, INC., a corporation organized pursuant to the laws
of the State of Nevada and having a place of business at 7373 North
Scottsdale Road, Suite B-150, Scottsdale, Arizona 85253
(hereinafter sometimes called "Dynamic")
AND
GENESIS HEALTH MANAGEMENT CORPORATION, a corporation organized
pursuant to the laws of the state of Louisiana and having its
principal place of business at 1613 Jimmie Davis Highway, Suite No. 1,
Bossier City, Louisiana, 71112
(hereinafter sometimes called "Genesis)
WHEREAS:
A. Dynamic is a company organized and existing under the laws of the State of
Nevada;
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B. The Genesis Shareholders are the owners of all of the issued and
outstanding shares of Genesis, a corporation organized and existing under
the laws of the State of Louisiana; (said shares being hereinafter
sometimes referred to as the "Genesis Shares");
C. Dynamic will be the owner of all of the issued and outstanding shares of
Newco Corporation ("Newco"), a corporation to be organized and to exist
under the laws of the State of Louisiana, under a name mutually agreeable
to Genesis and Dynamic, as soon as possible following the execution of this
agreement;
D. Dynamic wishes to acquire Genesis by way of a merger of Genesis and Newco
in which the shareholders of Genesis will receive cash and common stock in
Dynamic in exchange for the Genesis Shares;
E. The Genesis Shareholders have each agreed to accept cash and common stock
in Dynamic as consideration for the acquisition of Genesis by Dynamic, via
Newco, by way of a merger of Genesis and Newco;
F. Dynamic and Genesis, acting by their respective boards of directors, have
determined that it is advisable and in the best interests of their
shareholders that Genesis and Newco be merged on the terms and conditions
hereinafter set forth;
G. The parties intend that the stock portion of this transaction qualify as a
tax-free reorganization for the shareholders of Genesis under the tax laws
of the United State of America, and specifically that it qualify as a
statutory merger within the meaning of the Internal Revenue Code Section
368 (a)(1)(A) or a forward triangular merger within the meaning of Internal
Revenue Code Sections 368 (a)(2)(D) and 368 (a)(1)(A);
H. Lucky is a principal of Genesis and is a party to this agreement for the
limited purpose of delivering his consulting agreement and making certain
representations and warranties with respect to Genesis in order to induce
Dynamic to enter into this agreement;
I. Moll and Wallace are principals of Dynamic and are parties to this
agreement for the limited purpose of making certain representations and
warranties with respect to Dynamic in order to induce Genesis and the
Genesis Shareholders to enter into this agreement; and
J. In order to record the terms and conditions of the agreement among them the
parties wish to enter into this agreement.
NOW, THEREFORE, THIS AGREEMENT WITNESSES that in consideration of the foregoing,
and the sum of Ten Dollars ($10.00) paid by Dynamic to Lucky and the sum of Ten
Dollars ($10.00) paid by the Genesis Shareholders and Genesis to each of Moll
and Wallace, and the mutual covenants and agreements contained herein, the
parties hereto agree, each with the other, as follows:
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1. INTERPRETATION
1.1 Where used herein or in any amendments or Exhibits hereto, the following
terms shall have the following meanings:
(a) "Closing Date" means November 1, 1996, or, if the Closing is extended
pursuant to the provisions of Section 8.1 hereof, December 2, 1996.
(b) "Merger" means the statutory merger of Genesis and Newco on the terms
and conditions of the Merger Agreement referenced in Section 2 of this
Agreement;
(c) "Merger Agreement" means the Agreement and Plan of Merger, in the form
attached hereto, to be entered into between Genesis and Newco pursuant
to the terms and conditions hereof;
(d) "Dynamic Shares" means those fully paid and non-assessable common
shares of Dynamic to be issued to the Genesis Shareholders by Dynamic
pursuant to this Agreement;
(e) "Louisiana Act" means the Louisiana Business Corporation Law.
1.2 All dollar amounts referred to in this agreement are in United States
funds, unless expressly stated otherwise.
1.3 This Agreement shall be interpreted to give effect to the intention of the
parties that this transaction qualify as a tax-free reorganization pursuant
to Internal Revenue Code Sections 368(a)(1)(A) and 368 (a)(2)(D), and
regulations promulgated thereunder.
2. AGREEMENT TO MERGE
2.1 Dynamic and Genesis hereby agree that Genesis will be merged into Newco, as
the surviving corporation, on the terms and conditions set forth in this
Agreement and the Merger Agreement to be executed by Genesis and Newco
pursuant to Section 3 hereof.
2.2 The Genesis Shares owned by the Genesis Shareholders will be exchanged on
the Closing Date for the following consideration to be delivered to those
Shareholders by Newco:
(a) A cash payment (by wire transfer) of Fifteen Million Dollars
($15,000,000) plus a sum equal to fifty percent (50%) of the taxable
income, as of the Closing Date, reportable on IRS Schedule K-1 to the
Genesis Shareholders as a result of the business operations of Genesis
during the 1996 tax year, less any cash distributions to the Genesis
Shareholders during the 1996 tax year; and
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(b) Three million (3,000,000) common shares of Dynamic (the "Dynamic
Shares"), to be issued as fully paid and nonassessable shares of the
capital stock of Dynamic.
(c) Notwithstanding any of the above, it is understood and agreed that
should the fair market value of the Dynamic Shares at the time of the
transfer to the Genesis Shareholders not constitute more than forty
percent (40%) of the total consideration (including both cash and
stock) paid to the Genesis Shareholders; then the total Dynamic Shares
transferred to those Shareholders at the Closing shall be increased by
a number of shares sufficient to cause the fair market value of
Dynamic Shares transferred at Closing to constitute forty percent
(40%) or more of such total consideration. For the purposes of this
Section 2.2 (c), the "fair market value" of the Dynamic Shares shall
be defined as the average trading price for common shares of Dynamic,
on the trading day immediately prior to the Closing Date, on all
public markets on which such shares are being traded.
3. PLAN OF MERGER
3.1 Immediately following the execution of this Agreement, Dynamic will take
appropriate steps to form and organize Newco, under a name mutually
agreeable to Dynamic and Genesis, as a Louisiana corporation.
3.2 The Merger will be effected by a statutory merger between Genesis and Newco
to be completed on the following basis, with the intention that the
transaction qualify as a tax-free reorganization pursuant to Internal
Revenue Code Sections 368(a)(1)(A) and 368 (a)(2)(D):
(a) As soon as possible following the formation of Newco, Newco and
Genesis will submit this Agreement and the Merger Agreement to the
respective shareholders of each corporation in the manner provided by
applicable law and will use their best efforts to obtain the approval
of those agreements by the shareholders by August 30, 1996;
(b) Newco and Genesis will enter into the Merger Agreement on the Closing
Date and a Certificate of Merger documenting the merger, prepared
pursuant to the provisions of Section 112 F (1) of the Louisiana Act,
will be filed on that same date with the Secretary of State of the
state of Louisiana;
(c) Upon execution of the Merger Agreement, Genesis will do all things
required to complete the Merger on the terms and conditions of the
Merger Agreement and Dynamic will cause Newco to do all things
required to complete the Merger on the terms and conditions of the
Merger Agreement;
(d) The Effective Date of the Merger will be the date on which the above
referenced Certificate of Merger is filed with the Secretary of State
of the state of Louisiana;
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(e) Each of the Genesis Shareholders will vote his or her shares in favor
of the Merger at any meeting of the shareholders of Genesis required
in order to obtain the shareholders' approval of the Merger as
required by the applicable laws of the State of Louisiana;
(f) Dynamic, as the sole shareholder of Newco, will vote those shares in
favor of the Merger at any meeting of the shareholders of Newco
required in order to obtain the shareholders' approval of the Merger
as required by the applicable laws of the State of Louisiana;
(g) The Merger will be completed on the Closing Date by the surrender of
the Genesis Shares by the Genesis Shareholders for the consideration
set forth in Section 2.2 of this Agreement.
4. WARRANTIES OF GENESIS SHAREHOLDERS:
4.1 The following warranties and representations shall only protect Dynamic
against matters actually known to a Genesis Shareholder and/or Lucky and
not disclosed to Dynamic, and any material breach of those warranties and
representations. After November 1, 1997, Dynamic expressly waives any right
or cause of action that it might have against any Genesis Shareholders or
Lucky which is related to, or arises out of, any such material breach.
4.2 As a material inducement to Dynamic to execute this Agreement and to
perform or cause the same to be performed, each of the Genesis Shareholders
and Lucky represents and warrants to Dynamic that, to his current
knowledge:
(a) There are no investigations, actions, suits, charges, complaints, or
other proceedings of any character pending, threatened, or otherwise
asserted against or involving Genesis, at law or in equity, or before
or by any federal, state, or other governmental division, agency, or
instrumentality, domestic or foreign; and no circumstances are known
to exist which would give rise to any action, suit or proceedings.
Furthermore, Genesis is not in default with respect to any order or
decree of any such governmental agency or instrumentality, and Genesis
is not a party to any judgments, orders, or decrees which have a
material adverse effect on its operations.
(b) He does not have any information indicating that any hospital with
which Genesis has a current management contract intends to request the
termination of, or bring any action to terminate, such contract.
(c) On the date of Closing Genesis will have good and marketable title to
all of the property (except such items as have been sold or otherwise
disposed of in the
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ordinary course of business), reflected or referred to in the balance
sheet of Genesis as of June 30, 1996, a copy of which is attached
hereto as Exhibit "B," subject to no mortgage, conditional sales
agreement, financing statement, charges, liens, or encumbrances except
as reflected on such balance sheet and with respect to which no
default exists except as shown thereon. Genesis has not heretofore
obligated itself to dispose of any such moveable property except in
the ordinary course of business.
(d) Genesis has no material debts, obligations, or liabilities (whether
accrued, absolute, contingent, or otherwise) of any nature not
disclosed on its balance sheet as of June 30, 1996 (Exhibit "B"), or
as indicated in the other exhibits hereto, other than debts,
obligations, and liabilities incurred in the normal course of business
of Genesis since June 30, 1996, none of which are material either
individually or collectively.
(e) The business of Genesis has been and is being conducted in all
material respects in accordance with all applicable laws, rules, and
regulations of all authorities.
(f) Genesis is a corporation duly organized, validly existing, and in good
standing under the laws of the State of Louisiana. Genesis has no
subsidiaries. The entire authorized capital stock of Genesis consists
of the following:
Ten Thousand shares of no par common stock of which Ten Thousand
shares (in the percentages set forth on Exhibit "A") are presently
validly issued and outstanding.
All such outstanding shares have been issued validly and are fully
paid and non-assessable. There are no stock options or stock purchase
agreements outstanding. Genesis Shareholders have furnished to Dynamic
for its examination (i) copies of the articles of incorporation and
bylaws of Genesis, (ii) the minute books of Genesis containing all
records required to be set forth of all proceedings, consents, actions
and meetings of the shareholders and boards of directors of Genesis,
and (iii) the stock transfer books of Genesis setting forth all
transfers of any capital stock. Genesis Shareholders hereby expressly
waive any rights which they, or any of them, may have to purchase any
of the Genesis Shares, including any preemptive rights, or options or
rights of first refusal, which may be provided in the Articles of
Incorporation or Bylaws of Genesis, or in any Stockholder or other
agreement.
(g) Except as shown on Exhibit "C", Genesis is not a party to any written
or oral collective bargaining agreement or other contract with any
labor union, and Genesis has no employment contracts, pension or
profit sharing or bonus plans for employees, or independent contractor
agreements which cannot be terminated by
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Genesis on not more than sixty-one (61) days notice. Genesis has
performed all obligations required to be performed by it to date and
is not in default in any material respect under any of the contracts,
agreements, leases, or other documents to which it is a party. Except
as shown on Exhibit "D", all parties with whom Genesis has contractual
arrangements are in compliance therewith in all material respects and
not in default thereunder.
(h) The execution, delivery, and performance of this Agreement by him does
not violate any unwaived stock restrictions, charter provisions, laws,
loans, contracts, or regulations of any nature whatsoever and no
approval is required for such execution, delivery and performance.
(i) Genesis is not obligated or indebted to him, except for any current
salaries and monthly expenses.
(j) Genesis has no leases, contracts, agreements, or commitments other
than those shown on the balance sheet described above or listed on
Exhibit "C".
(k) No representation or warranty herein by a Genesis Shareholder contains
or will contain any untrue statement of a material fact.
(l) The books and records of Genesis fairly and correctly set out and
disclose in all material respects, in accordance with generally
accepted accounting principles, the financial position of Genesis as
of the date thereof, and all material financial transactions of
Genesis relating to its business have been accurately recorded in such
books and records.
(m) The audited financial statements of Genesis as of December 31, 1995
and the unaudited balance sheet of Genesis as of June 30, 1996 (the
"Genesis Financial Statements") present fairly the assets, liabilities
(whether accrued, absolute, contingent or otherwise) and the financial
condition of Genesis as of the date thereof.
(n) The accounts receivables shown in Genesis Financial Statements
represent the total trade accounts receivable of Genesis as of the
date of the Genesis Financial Statements and do not include any debts
other than trade debts and are all debts which are owing and fully
collectible by Genesis within 60 days of the date of Genesis Financial
Statements, without set-off or counterclaim, except as has been
allowed for as a doubtful account receivable or as otherwise indicated
on Exhibit "D" hereto.
(o) The business of Genesis has been carried on in the ordinary and normal
course since the date of Genesis Financial Statements and will be
carried on by Genesis
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in the ordinary and normal course after the date hereof and up to the
date of Closing.
(p) Since the date of the June 30, 1996, unaudited balance sheet, (Exhibit
"B") Genesis has not:
(i) declared or paid any dividends or distribution of any kind;
(ii) paid or agreed to pay any compensation, pension, bonus, share of
profits, or other benefit to, or for the benefit or, any
employee, director or officer of Genesis (other than normal,
periodic salary increases) except in the normal course of
business; or
(iii)settled any accounts receivable of a material nature at less
than face value.
(q) Genesis has not guaranteed, or agreed to guarantee, any debt,
liability or other obligation or any person.
(r) Genesis and the Genesis Shareholders are not aware of any contingent
tax liabilities or any grounds which will prompt reassessment of
income tax payable.
(s) All tax returns and reports of Genesis required by law to be filed
prior to the date of this Agreement have been filed and are true,
correct and complete. All taxes and other government charges have been
paid or accrued in Genesis Financial Statements.
(t) The shares in the names of the Genesis Shareholders are validly issued
and outstanding as fully paid and non-assessable shares in the capital
of Genesis and are free and clear of all liens, charges and
encumbrances.
(u) Genesis and the Genesis Shareholders have provided to Dynamic complete
and true copies of all management contracts entered into for the
conduct of Genesis's business (the "Management Contracts"); which
Management Contracts are listed on Exhibit "F". Genesis is not in
material default or breach of any of the Management Contracts and
there exists no state of facts which, after notice or lapse of time or
both, would constitute such a default or breach, and all such
contracts are now in good standing and Genesis is entitled to all
benefits thereunder. Each Management Contract is in full force and
effect and in good standing and is enforceable in accordance with its
terms. The Management Contracts are not subject to any other terms or
conditions except as disclosed in writing to Dynamic.
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5. WARRANTIES OF DYNAMIC:
5.1 The following warranties and representations shall only protect Genesis and
the Genesis Shareholders against matters actually known to either Dynamic,
Moll, or Wallace and not disclosed to Genesis and the Genesis Shareholders,
and any material breach of those warranties and representations. After
November 1, 1997, Genesis expressly waives any right or cause of action
that it might have against Dynamic, Moll, or Wallace which is related to,
or arises out of, any such material breach.
5.2 As a material inducement to the Genesis Shareholders to execute this
Agreement and to perform or cause the same to be performed, Dynamic
represents and warrants to the Genesis Shareholders, and Moll and Wallace
represent and warrant to the best of their knowledge, information and
belief, that:
(a) Dynamic is a corporation duly organized, existing and in good standing
under the laws of the State of Nevada and has corporate power to own
and operate its properties and to carry on its business.
(b) There is no provision in the Articles of Incorporation or By-laws of
Dynamic, or in any indenture, contract, or agreement to which Dynamic
is a party or by which Dynamic is bound, that: (i) prohibits the
execution and delivery by Dynamic of this Agreement, or the Dynamic
Shares, the Merger Agreement, or the other instruments to be executed
by Dynamic pursuant hereto; (ii) or the performance by Dynamic of any
of the terms or conditions of this Agreement, the Merger Agreement or
such other instruments.
(c) The execution, effectuation and delivery of this Agreement, the Merger
Agreement, and the other instruments referenced above have been duly
authorized by all necessary corporate action on the part of Dynamic.
(d) All statements contained in the U.S. Securities and Exchange
Commission Form 10K filed for Dynamic for the fiscal year ended on
December 31, 1995; and in the SEC Forms 10-QSB filed for the quarterly
periods ending March 31, 1996 and June 30, 1996; respectively, are
true and correct.
(e) Immediately prior to execution of the Merger Agreement: (i) Newco will
be a corporation duly organized, validly existing, and in good
standing under the laws of the State of Louisiana; (ii) Newco will
have no subsidiaries; (iii) the entire authorized capital stock of
Newco will consist of one million unissued shares of no par common
stock; and (iv) there will be no stock options or stock purchase
agreements outstanding with respect to the stock of Newco.
(f) There are no investigations, actions, suits, charges, complaints, or
other proceedings of any character pending, threatened, or otherwise
asserted against or involving Dynamic, at law or in equity, or before
or by any federal, state, or other
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governmental division, agency, or instrumentality, domestic or
foreign; and no circumstances are known to exist which would give rise
to any action, suit or proceedings. Furthermore, Dynamic is not in
default with respect to any order or decree of any such governmental
agency or instrumentality, and Dynamic is not a party to any
judgments, orders, or decrees which have a material adverse effect on
its operations.
(g) Dynamic's wholy owned subsidiary, Microwave Medical Corporation, has
entered into a licensing agreement with Microthermia Technology Inc.
(of California) whereby Microwave Medical Corporation has the
exclusive license, for a period of ten (10) years, to develop and
manufacture medical technology patented by Microthermia Technology
with respect to the treatment of Telangiectasia and Benign Prostate
Hyperplasia.
5.3 Dynamic hereby represents, warrants, and agrees that the Genesis Shares are
being acquired for Dynamic's own account for investment, with no view to
the public distribution or resale thereof, and that Dynamic will not offer
or sell any such securities in violation of the provisions of the
Securities Act of 1933 or the Louisiana Blue Sky Law (Louisiana R.S. 51:701
et seq.), as now in effect or any legislation substituted therefore, and
the rules and regulations thereunder.
5.4 Dynamic further represents and warrants, without which Genesis Shareholders
would not sell:
(a) That Dynamic has had full and unfettered access to all Genesis records
and information, financial and otherwise, listed on Exhibit "E"
hereto;
(b) That Dynamic has examined the current Management Contracts of Genesis
listed on Exhibit "F" hereto and is fully aware of all of the terms
and conditions of the same;
(c) That Dynamic is fully aware that any material changes in Medicare
statutes, laws, rules and regulations relating to the psychiatric
programs managed by Genesis may affect the future profitability of
Genesis; and
(d) That Dynamic is aware that Genesis is currently a Sub-Chapter "S"
Corporation for the purpose of taxation under the U.S. Internal
Revenue Code and that the transfer of the Stock to Dynamic pursuant to
the terms of this Agreement will result in the loss by Genesis of such
tax status.
5.5 Dynamic agrees to notify the Genesis Shareholders in the event of any
proposed sale, transfer, or encumbrance of all or substantially all of the
issued and outstanding stock of
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Dynamic or Newco and/or the sale or further conventional encumbrance of all
or substantially all of the assets of Dynamic or Newco.
6. COVENANTS OF DYNAMIC:
6.1 Dynamic covenants with the Genesis Shareholders and Genesis that at all
times prior to and including the Closing Date each representation and
warranty of Dynamic set forth herein shall be true and correct in all
material respects and shall survive closing.
6.2 Dynamic covenants and agrees with the Genesis Shareholders that Dynamic:
(a) will duly and punctually perform all things on its part to be done or
performed under this Agreement and the Merger Agreement;
(b) will at all reasonable times permit the Genesis Shareholders to
inspect its books and records and to inspect its properties and
operations;
(c) will maintain its corporate existence in good standing and comply with
all applicable laws and regulations of the United States, or of any
state or states thereof, or of any political subdivision thereof, and
of any governmental authority;
(d) will not modify its Articles of Incorporation to increase its
authorized capital stock;
(e) will furnish Genesis Shareholders (concurrently with the filing and/or
production of the same) with copies of all SEC filings and reports;
all monthly or quarterly financial reports or statements generated by
Dynamic in the ordinary course of business; and any other reports,
financial or otherwise, delivered to any financial institution or
other third party by Dynamic.
7. COVENANTS OF GENESIS SHAREHOLDERS:
The Genesis Shareholders severally covenant with Dynamic that at all times
from the date of this Agreement, to and including the Closing Date, that each
representation and warranty of the Genesis Shareholders set forth herein shall
be true and correct in all material respects and shall survive Closing for the
period specified in Section 4.1 hereof and that they will exert their good faith
efforts to see that:
7.1 Until the Closing, Genesis will conduct its business in the ordinary course
and will not dispose of or encumber in any manner, or permit to be disposed
of or be additionally encumbered by any act on the part of Genesis, any of
the assets presently owned by Genesis, except in the normal course of its
business.
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7.2 Genesis will keep all of its insurable property and assets insured in
accordance with present practices and will maintain, preserve, and keep all
equipment, machinery, and other personal property in present condition and
state of repair, reasonable wear and damage by fire or other casualty
excepted.
7.3 Genesis will not modify its Articles of Incorporation or change its
authorized or issued capital stock.
7.4 After the execution of this Agreement, Genesis will not grant an option or
commitment relating to the authorized or issued capital stock of Genesis,
and no such capital stock will be issued. No dividend or other distribution
or payment will be made with respect to the capital stock of Genesis.
7.5 Except for normal annual and periodic raises in the ordinary course of
business, Genesis shall not increase the compensation payable to or to
become payable by Genesis to any of its officers, consultants, employees,
and no increase in any present bonus shall be made without prior approval
of Dynamic.
7.6 Genesis shall make no further borrowings.
7.7 Genesis shall not enter into any long term lease or commitments without the
approval of Dynamic. Vehicle leases for a period of three (3) years or less
shall not be considered long term leases.
7.8 Genesis will use its best efforts to preserve its business organization
intact and to keep the services of its present employees and consultants.
8. CLOSING:
8.1 The payment and/or delivery of the consideration for the Merger (the
"Closing"), shall take place at the offices of Genesis, in Bossier City,
Louisiana, at 10:00 a.m., on November 1, 1996. The Closing date may be
extended, at Dynamic's option, to December 2, 1996, upon the delivery, on
or before October 25, 1996, of notice to that effect to Genesis
Shareholders' Attorney, at the address shown in Section 13.2 hereof,
together with the delivery to that Attorney of the cash sum of One Hundred
Thousand ($100,000.00) dollars; which said sum shall be added to, and
treated in all respects as, a portion of the Deposit provided for in
Section 12 of this Agreement. In the event of such an extension of the
Closing Date, the filing date for the Certificate of Merger, as stipulated
in Section 3.2(b) hereof, shall also be extended to the extended Closing
Date.
8.2 At the Closing, the Genesis Shareholders shall deliver to Dynamic a
certificate of good standing of Genesis from the Louisiana Secretary of
State.
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8.3 At the Closing, Genesis Shareholders shall execute a current certificate
acknowledging that their representations and warranties contained herein
are true and correct as of the Closing.
8.4 At the Closing, the Genesis Shareholders and Genesis shall deliver the
following items to Dynamic:
(a) The agreements of each of the Genesis Shareholders and W.A. Lucky, III
not to compete with Genesis or its business for a period of two (2)
years following the Closing, on the terms and conditions set forth in
Exhibit "G" hereto;
(b) The employment agreements of William H. Means, Jr., Michael Asbury,
and J. T. Simmons, respectively, on the terms and conditions set forth
in Exhibits "H", "I" and "J" hereto;
(c) The written opinion of Genesis's attorney that :
(i) Genesis has been duly incorporated, organized and is validly
existing under the laws of the State of Louisiana, it has the
corporate power to own or lease its properties and to carry on
its business that is now being conducted by it and is in good
standing with respect to filings with the appropriate
governmental authorities;
(ii) this Agreement has been duly and validly executed by Genesis;
(iii)the issued and authorized capital of Genesis is as set out in
this Agreement and all of the issued and outstanding shares have
been validly issued as fully paid and non-assessable;
(iv) all necessary approvals and all necessary steps and corporate
proceedings have been obtained or taken to permit the
effectuation of the Merger; and, without limiting the generality
of the foregoing, that all corporate proceedings of Genesis, its
shareholders and directors and all other matters which, in the
reasonable opinion of counsel for Dynamic, are material in
connection with the merger transaction contemplated by this
Agreement, have been taken or are otherwise favorable to the
completion of such transaction.
(v) There is no provision in any indenture, contract, or agreement
known to such counsel to which Genesis is a party or by which
Genesis is bound that prohibits or restricts the execution and
delivery by Genesis of, or the performance or observance by
Genesis of, the terms and conditions of this Agreement or the
Merger Agreement.
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(vi) There is no provision in any applicable Federal or State law or
regulation, including, without limitation, any rule or regulation
of the U.S. Securities and Exchange Commission and/or any
applicable "Blue Sky" or other laws or regulations of the State
of Louisiana, which prohibits or restricts the execution and
delivery by Genesis of, or the performance or observance by
Genesis of the terms and conditions of, this Agreement or the
Merger Agreement.
(d) A certificate of an officer of Genesis and a certificate of W. A.
Lucky, III that their representations and warranties in the Agreement
are true and correct as of the Closing.
(e) Written consents of any hospital as required under the provisions of
any Management Contract upon the change of voting control of Genesis
and all required consents from all governmental and administrative
authorities required under any permit or license held by Genesis for
the conduct of its business.
(f) Certified copies of the meeting of the directors of Genesis approving
this Agreement.
(g) The resignations in writing of all directors of Genesis.
(h) The Merger Agreement and the Certificate of Merger, duly executed.
8.6 At the Closing, Dynamic shall deliver the cash and Dynamic Shares, as
provided in Section 2.2 hereof, to the Genesis Shareholders.
8.7 At the Closing, Dynamic shall deliver to the Genesis Shareholders, a
favorable opinion of Dynamic's attorney or attorneys, to the effect that:
(a) Dynamic and Newco are corporations duly organized, existing and in
good standing under the laws of the States of Nevada and Louisiana,
respectively, and that each such corporation has the corporate power
to own and operate its properties and to carry on its business;
(b) This Agreement and the Merger Agreement have been duly authorized on
the part of Dynamic and Newco by all necessary corporate and other
action, have been duly executed and delivered by those corporations,
and are the legal, valid, and binding obligations of said
corporations, enforceable in accordance with their respective terms,
except as limited by laws generally affecting the enforcement of
creditors' rights, and
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(c) There is no provision in any indenture, contract, or agreement known
to such counsel to which Dynamic or Newco is a party, or by which
Dynamic or Newco is bound, that prohibits or restricts the execution
and delivery by Dynamic or Newco of, or the performance or observance
by Dynamic or Newco of the terms and conditions of, this Agreement or
the Merger Agreement.
(d) There is no provision in any applicable Federal or State law or
regulation, including, without limitation, any rule or regulation of
the U.S. Securities and Exchange Commission and/or any applicable
"Blue Sky" or other laws or regulations of the States of Nevada or
Louisiana, respectively, which prohibits or restricts the execution
and delivery by Dynamic or Newco of, or the performance or observance
by Dynamic or Newco of the terms and conditions of, this Agreement or
the Merger Agreement.
8.8 At the Closing, Dynamic and Newco shall each execute a current certificate
acknowledging that their representations and warranties contained herein
are true and correct as of the Closing and that such survive Closing.
8.9 At the Closing, Dynamic shall deliver the Merger Agreement and the
Certificate of Merger, duly executed by all necessary parties.
9. BROKERAGE:
The Genesis Shareholders and Dynamic each represent and warrant that they
have had no dealings and negotiations with respect to this transaction with any
other person, firm or corporation except for officers and employees of Dynamic
and Genesis. Dynamic agrees to hold the Genesis Shareholders harmless for
brokerage in this transaction by reason of Dynamic's breach of such warranty,
and Genesis agrees to indemnify and hold Dynamic harmless from any claim,
demand, or judgment made or rendered against Dynamic for brokerage in this
transaction by reason of the breach of such warranty by the Genesis
Shareholders.
10. POST-CLOSING OPERATIONS OF NEWCO:
10.1 It is understood and agreed that Dynamic is acquiring the current business
operations of Genesis as a going concern and that all parties hereto
contemplate and agree that Newco, the Surviving Corporation, shall be
maintained as a separate and independent entity after Closing and, further,
that the existing management, employees and consultants of Genesis, and
Genesis's current business practices and procedures (including those
relating to reimbursement of auto and other business expenses) shall be
retained by Newco to the extent reasonably possible. Accordingly, Dynamic
agrees, for a period of not less than two (2) years after the Closing, to
the following:
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(a) To cause Newco to appoint and/or retain the following individuals as
officers of Newco (at no less than the annual salaries indicated) and,
further, to continue to employ those other current officers, employees
and/or consultants of Genesis which the President, in his sole
discretion, elects to retain:
William H. Means, Jr., President and CEO.....
$100,000.00 per year
J. T. Simmons, Senior Vice President for Operations.....
$180,000.00 per year
Michael Asbury, Financial Reimbursement Specialist.....
$70,000.00 per year
To the extent possible, Dynamic agrees to maintain all existing
employee and/or consultant benefits and policies, including those
relating to the use of company owned vehicles.
(b) To retain the services of W. A. Lucky, III, as an independent
marketing consultant, on the terms and conditions set forth on Exhibit
"K" hereto.
(c) To maintain the headquarters of the corporation at 1613 Jimmie Davis
Highway, Suite No. 1, Bossier City, Louisiana, or at such other
location as may be acceptable to William H. Means, Jr. and W. A.
Lucky, III.
11. CONDITIONS PRECEDENT TO CLOSING:
11.1 Each party's obligation to close the transaction contemplated herein is
conditional upon the following:
(a) that all representations and warranties herein made by the other party
are true and correct as of the date of the Closing;
(b) that all obligations of the other party have been completed and/or
fulfilled as of the date of the Closing; and
(c) all required consents from all hospitals and all governmental and
administrative authorities shall have been obtained such that the
change in ownership of Genesis shall not result in the cancellation,
termination, or reduction of any right under any management contract,
license or permit held by Genesis for the conduct of its business.
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12. LIMITATIONS OF LIABILITY AND DEPOSIT
12.1 Upon execution of this Agreement, Dynamic shall deposit with the attorney
for Genesis, A. L. Blondeau, in trust, the sum of five hundred thousand
($500,000.00) dollars as a deposit against the cash portion of the purchase
price (the "Deposit").
12.2 The Deposit (with interest, if any) will be paid, on the Closing Date:
(a) to the Genesis Shareholders, if the Genesis Shareholders are ready,
willing and able to complete the Merger in accordance with this
Agreement, as follows:
(i) If the Merger is completed, to the credit of Dynamic for the cash
portion of the consideration for the Merger; or
(ii) If the Merger is not completed, to the Genesis Shareholders as
full and final payment of any and all liquidated damages or
claims the Genesis Shareholders may have against Dynamic; or
(b) to Dynamic (without prejudice to any other remedies of Dynamic except
that any damage claims of Dynamic arising as a result of this
agreement shall be limited to the total sum of $500,000.00), if:
(i) The representations and warranties of the Genesis Shareholders as
set forth in this Agreement are not substantially true and
correct as of the Closing; or
(ii) The Genesis Shareholders are not ready, willing and able to
complete the Merger in accordance with this Agreement.
13. MISCELLANEOUS:
13.1 This Agreement shall be binding on the heirs, representatives, successors,
and assigns of the parties and the terms, covenants, warranties and
representations hereof shall survive the Closing for the period set forth
in Sections 4.1 and 5.1 hereof. This Agreement constitutes the entire
agreement of the parties and any amendment or modification of the same must
be in writing and signed all parties and intervenors hereto.
13.2 Any notice or other communication provided for herein or given hereunder to
a party or intervenor hereto shall be in writing and shall be delivered in
person to such party or intervenor or, in the case of a corporation, to the
President or a Vice President thereof, or mailed by registered or certified
mail, postage prepaid, addressed as follows:
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If to the Genesis Shareholders: With a copy to:
W. A. Lucky, III A. L. Blondeau, Attorney at Law
1613 Jimmie Davis Highway, Suite No. 1 10124 Jefferson Highway
Bossier City, La 71112 Baton Rouge, La 70809
If to Dynamic: With a copy to:
Dynamic Associates, Inc. Stephen F. X. O'Neill
Attn: Jan Wallace O'Neill & Company
Scottsdale Centre 12th Floor
7373 North Scottsdale Road 1190 Hornby Street
Suite B-150 Vancouver, B.C.
Scottsdale, Arizona 85253 V6Z 2L3
or to such other address with respect to a party as such party shall notify
the others in writing as above provided.
13.3 The parties hereto agree that an announcement of this Agreement, through
joint press releases and/or other appropriate and customary means, will be
made to the public after the execution of this agreement. Any such
announcement will be made jointly by Dynamic and Genesis and the language
and contents of the same shall be subject to the prior approval of both of
those parties.
13.4 This Agreement is being delivered and is intended to be performed in the
State of Louisiana and shall be construed and enforced in accordance with
the laws of such state. The Merger Agreement and any other documents
related to this agreement shall also be construed and enforced in
accordance with the laws of the state of Louisiana.
13.5 This Agreement may be executed simultaneously in two (2) or more
counterparts, each of which shall be deemed an original and all of which,
together, shall constitute one and the same instrument. It shall not be
necessary that any single counterpart hereof be executed by all parties
hereto as long as at least one counterpart is executed by each party.
13.6 This Agreement supercedes, in their entirety, any and all previous
agreements of the parties with respect to the acquisition of Genesis by
Dynamic (with the exception of those relating to the confidentiality of any
information furnished to Dynamic concerning the affairs of Genesis)
including, without limitation, the previous version of this agreement
executed by all parties on August 13, 1996.
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14. REGISTRATION OF DYNAMIC SHARES:
After the expiration of a period of one (1) year after the Closing Date,
the Genesis Shareholders, or any of them, shall have the right to request, and
Dynamic hereby agrees to register, all or any portion of the Dynamic Shares
received by such shareholders pursuant to the Merger for sale to the public
pursuant to the provisions of the applicable rules and regulations of the U.S.
Securities and Exchange Commission. Upon receipt of such a request, Dynamic will
promptly undertake the registration of such shares. The Genesis Shareholders
understand that the registration of the subject shares may be subject to certain
terms and conditions imposed on Dynamic by its underwriters and agree to abide
by any reasonable terms and conditions so imposed. Said Shareholders further
agree that, following the completion of such registration, they will not sell
more than ten percent (10%) of the Dynamic Shares in any one month period.
15. RESERVATION:
The parties reserve the right to demand specific performance of the terms
of this Agreement.
16. CONSTRUCTION:
Each of the parties hereto has agreed to the use of the particular language
of the provisions of this Agreement and the attachments and exhibits.
Accordingly, it is agreed and understood that any questions of doubtful
interpretation with respect to any such provisions shall not be resolved solely
by any rule of interpretation against the draftsman, but rather in accordance
with the fair meaning of those provisions.
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IN WITNESS WHEREOF, the Genesis Shareholders and Dynamic and Warrantors
have caused these presents to be executed, on the dates indicated below,
effective August 1, 1996, in the presence of the undersigned witnesses.
WITNESSES: DYNAMIC ASSOCIATES, INC.
Craig Hurst
Harry Moll By: Jan Wallace
Jan Wallace, President
August 27, 1996
WITNESSES: GENESIS SHAREHOLDERS:
Brenda K. Anderson Vickie T. Lucky
Vickie T. Lucky, Genesis Shareholder
August 22, 1996
Pamela M. Crain J.T. Simmons
J. T. Simmons, Genesis Shareholder
August 23, 1996
Claudine D. Blondeau
Claudine D. Blondeau, Genesis Shareholder
August 26, 1996
William H. Means, Jr.
William H. Means, Jr., Genesis Shareholder
August 22, 1996
Mary A. Roberts
Mary A. Roberts, Genesis Shareholder
August 22, 1996
20
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WITNESSES: GENESIS HEALTH MANAGEMENT
CORPORATION
Pamela M. Crain By: Vickie T. Lucky
Vickie T. Lucky, President
August 22, 1996
WITNESSES: WARRANTORS:
Jan Wallace By: Harry Moll
Harry Moll, Individually
August 27, 1996
Harry Moll By: Jan Wallace
Jan Wallace, Individually
August 27, 1996
WITNESSES:
Pamela M. Crain W.A. Lucky, III
W. A. Lucky, III, Individually
August 22, 1996
Brenda K. Anderson
21
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ACQUISITION AGREEMENT
SUMMARY OF ATTACHMENTS AND EXHIBITS
ATTACHMENT: AGREEMENT AND PLAN OF MERGER
EXHIBIT "A": GENESIS STOCK ISSUED AS OF AUGUST 1, 1996
EXHIBIT "B": BALANCE SHEET OF GENESIS AS OF JUNE 30, 1996
EXHIBIT "C": AGREEMENTS AS OF AUGUST 1, 1996
EXHIBIT "D": DELINQUENT ACCOUNTS RECEIVABLE AS OF AUGUST 1, 1996
EXHIBIT "E": LIST OF RECORDS AND INFORMATION
EXHIBIT "F": MANAGEMENT CONTRACTS OF GENESIS
EXHIBIT "G": NON-COMPETITION AGREEMENT FOR SHAREHOLDERS
EXHIBIT "H": EMPLOYMENT AGREEMENT OF WILLIAM H. MEANS, JR.
EXHIBIT "I": EMPLOYMENT AGREEMENT OF MICHAEL ASBURY
EXHIBIT "J": EMPLOYMENT AGREEMENT OF J. T. SIMMONS
EXHIBIT "K": CONSULTING CONTRACT OF W. A. LUCKY, III
22
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ATTACHMENT TO ACQUISITION AGREEMENT
EFFECTIVE AUGUST 1, 1996
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER is made and entered into, on this day of , by
and between:
GENESIS HEALTH MANAGEMENT CORPORATION, a corporation organized pursuant to
the laws of the state of Louisiana and having its principal place of
business at 1613 Jimmie Davis Highway, Bossier City, Louisiana, represented
herein by all of its Directors;
AND
(NEWCO), a corporation organized pursuant to the laws of the state of
Louisiana and having its principal place of business at 1613 Jimmie Davis
Highway, Bossier City, Louisiana, represented herein by all of its
Directors;
WHEREAS:
A. Genesis is a corporation duly organized and existing under the laws of the
State of Louisiana, with its principal office located at 1613 Jimmie Davis
Highway, Bossier City, Louisiana;
B. Newco is a corporation duly organized and existing under the laws of the
State of Louisiana, with its principal office located at 1613 Jimmie Davis
Highway, Bossier City, Louisiana;
C. Dynamic Associates Inc. ("Dynamic") is the owner of all of the issued and
outstanding shares of Newco;
D. Genesis and Newco, acting by their respective boards of directors, have
determined that it is advisable and in the best interests of their
shareholders that Genesis and Newco be merged on the terms and conditions
set forth herein;
E. The boards of directors of each of Genesis and Newco have, in each case by
the unanimous affirmative vote of the full board of directors, authorized
and approved this Agreement, and the Merger provided for herein, and the
said Merger is authorized under the laws of the State of Louisiana;
F. It is the intent of Genesis and Newco that this merger qualify as a
tax-free reorganization for the Genesis Shareholders under the tax laws of
the United States of America and, specifically, that it qualify as a
statutory merger within the meaning of the Internal Revenue Code Section
368 (a)(1)(A) and/or a forward triangular merger within the meaning of
Internal Revenue Code Sections 368(a)(2)(D) and 368(a)(1)(A); and
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G. The parties wish to record and document the terms and conditions of their
agreement;
NOW, THEREFORE, THIS AGREEMENT WITNESSES that in consideration of the mutual
covenants herein, and subject to the terms and conditions hereinafter set forth,
the parties hereto agree as follows:
1. INTERPRETATION
1.1 Where used herein or in any amendments or schedules or exhibits hereto, the
following terms shall have the following meanings:
(a) "Acquisition Agreement" means the acquisition agreement previously
executed by the Genesis Shareholders, Genesis, and Dynamic, effective
August 1, 1996;
(b) "Business" means the business in which Genesis is engaged; namely, the
management of hospital based inpatient and partial (outpatient)
geropsychiatric units.
(c) "Closing Date" means the Effective Date;
(d) "Constituent Corporations" means Newco and Genesis;
(e) "Effective Date" means the effective date of the Merger, as set forth
in Section 3.3 hereof;
(f) "Genesis Shares" means all of the issued and outstanding shares of
Genesis;
(g) "Genesis Shareholders" means all of the shareholders of Genesis as of
the Closing Date;
(h) "Merger" means the merger of Newco and Genesis, as contemplated by
Section 2.1 of this Agreement;
(i) "Surviving Corporation" means Newco as of and subsequent to the
Effective Date of the Merger;
(j) "Dynamic" means Dynamic Associates Inc., a corporation duly organized
under the laws of the State of Nevada;
(k) "Dynamic Shares" means those fully paid and non-assessable common
shares of Dynamic to be delivered to the Genesis Shareholders by Newco
at the closing pursuant to this Agreement; and
(l) "Louisiana Act" means the Louisiana Business Corporation Law.
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1.2 All dollar amounts referred to in this agreement are in United States
funds, unless expressly stated otherwise.
1.3 This Agreement shall be interpreted and construed to give effect to the
intention of the parties that this transaction qualify as a tax-free
reorganization and merger pursuant to Internal Revenue Code Sections
368(a)(1)(A) and 368 (a)(2)(D), and the regulations promulgated thereunder.
2. PLAN OF MERGER
2.1 On the Effective Date, Genesis will be merged into Newco in the manner and
with the effect provided by the laws of the State of Louisiana.
2.2 Upon completion of the Merger, the separate existence of Genesis will
cease; Genesis and Newco will become a single corporation which shall
survive such Merger; and Newco (as the Surviving Corporation) will continue
to exist by virtue of, and pursuant to, the laws of the State of Louisiana.
3. SHAREHOLDER APPROVAL AND FILING AND RECORDATION
3.1 This Agreement is effective only if approved by the shareholders of both
Genesis and Newco. If the shareholders for each corporation approve this
Agreement by the vote required by Section 112C of the Louisiana Act, the
fact of such approval shall be certified hereon (and on a Certificate of
Merger documenting the merger, prepared in accordance with the provisions
of Section 112 F (1) of the Louisiana Act) by the secretary or assistant
secretary of each corporation, and this Agreement and Certificate of Merger
so approved and certified shall be signed and acknowledged by the president
or vice president of each corporation.
3.2 The said Certificate of Merger, when and if so approved, certified, signed,
and acknowledged, shall be delivered to the Secretary of State of Louisiana
for filing and recording, and a certified copy of the Certificate of Merger
thereafter issued by the Secretary of State shall be filed for record in
the Office of the Recorder of Mortgages in each Parish in this State in
which either corporation has its registered office, and shall also be
recorded in the Conveyance Records of each Parish in this State in which
either corporation has immovable property, title to which will be
transferred as a result of the Merger.
3.3 As provided in Section 114 of the Louisiana Act, the Merger shall be
effective as of the date (the "Effective Date") when this Agreement is
filed with the Secretary of State, as aforesaid.
4. EFFECT OF MERGER
4.1 On the Effective Date, the Surviving Corporation shall
(a) possess all the powers, rights, privileges, goodwill, immunities and
franchises, of a public as well as of a private nature, of each of the
Constituent Corporations;
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(b) possess all property and assets, or whatsoever kind or description,
including, without limitation, any and all contractual rights, and all
debts due on whatever account, and every other interest due or
belonging to each of the Constituent Corporations; all of which assets
shall be taken and deemed to be transferred to and vest in the
Surviving Corporation without further act;
(c) be responsible and liable for all debts, liabilities and obligations
of each of the Constituent Corporations, and all rights of creditors
and all liens upon the property of the Constituent Corporations shall
not be impaired by the Merger, and all debts, obligations, liabilities
and duties of the Constituent Corporations shall attach to the
Surviving Corporation and may be enforced against it to the same
extent as if said debts, liabilities and duties had been incurred or
contracted by it.
4.2 Any existing claim or action or proceeding pending by or against either of
the Constituent Corporations may be prosecuted to judgment as if the Merger
had not taken place, or the Surviving Corporation may be proceeded against
or substituted in its place.
4.3 The separate corporate existence of Genesis, except insofar as the same
shall continue by requirement of statute, shall terminate, and Genesis
shall cease to be a corporation organized and existing under the laws of
the State of Louisiana, and the Surviving Corporation shall be a
corporation organized and existing under the laws of the State of
Louisiana.
5. CONVERSION OF SHARES
5.1 Upon the Effective Date, the shares of capital stock and other securities
of the Surviving Corporation then issued and outstanding shall remain
unchanged by reason of the Merger and shall continue to be issued shares of
the Surviving Corporation.
5.2 Upon the Closing Date, the Genesis Shareholders will surrender the Genesis
Shares to Newco for cancellation in exchange for the following
consideration to be delivered by Newco to the Genesis Shareholders:
(a) A cash payment (by certified funds, bank draft or wire transfer) of
Fifteen Million Dollars ($15,000,000) plus a sum equal to fifty
percent (50%) of the taxable income, as of the Closing Date,
reportable on IRS Schedule K-1 to the Genesis Shareholders as a result
of the business operations of Genesis during the 1996 tax year, less
any cash distributions to the Genesis Shareholders during the 1996 tax
year; and
(b) Three million (3,000,000) common shares of Dynamic (the "Dynamic
Shares"), to be issued as fully paid and nonassessable shares of the
capital stock of Dynamic.
(c) Notwithstanding any of the above, it is understood and agreed that
should the fair market value of the Dynamic Shares at the time of the
transfer to the Genesis Shareholders not constitute more than forty
percent (40%) of the total
26
<PAGE>
consideration (including both cash and stock) paid to the Genesis
Shareholders; then the total Dynamic Shares transferred to those
Shareholders at the Closing shall be increased by a number of shares
sufficient to cause the fair market value of Dynamic Shares
transferred at Closing to constitute forty percent (40%) or more of
such total consideration. For the purposes of this Section 2.2 (c),
the "fair market value" of the Dynamic Shares shall be defined as the
average trading price for common shares of Dynamic, on the trading day
immediately prior to the Closing Date, on all public markets on which
such shares are being traded.
6. SURVIVING CORPORATION
6.1 The name of the Surviving Corporation shall be changed to "Genesis Health
Management Corporation", by amendment of the articles of incorporation,
immediately after completion of the Merger.
6.2 The Surviving Corporation shall have its principal place of business at
1613 Jimmie Davis Highway, Bossier City, Louisiana.
6.3 The purposes of the Surviving Corporation shall be, without limitation, to
continue and carry on the Business, and to do all things permitted by and
in accordance with the by-laws of the Surviving Corporation.
6.4 The authorized capital stock of the Surviving Corporation shall be one
million (1,000,000) shares of common stock without par value. The rights
and restrictions of the common stock shall be as set forth in the by-laws
of the Surviving Corporation.
6.5 The articles of incorporation of the Surviving Corporation shall continue
in full force as the articles of the Surviving Corporation until further
amended, altered, or repealed, or as provided by law.
6.6 The by-laws of the Surviving Corporation shall continue to be its bylaws
following the effective date of the Merger.
6.7 The directors and officers of the Surviving Corporation on the Effective
Date shall continue as the directors and officers of the Surviving
Corporation for the full unexpired term of their offices, or until their
successors be chosen or appointed according to law or the By-laws of the
Surviving Corporation; provided that William H. Means, Jr. and J.T.
Simmons, as provided in the Acquisition Agreement, shall be the President
and Senior Vice-President for Operations, respectively, of the Surviving
Corporation.
7. GENERAL PROVISIONS
7.1 Time. Time shall be of the essence of this Agreement.
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7.2 Additional Instruments. The parties hereto shall deliver or cause to be
---------- ------------
delivered on the Effective Date, and at such other times and places as
shall be reasonably agreed on, such additional instruments as any party may
reasonably request for the purpose of carrying out this Agreement. The
Surviving Corporation and Genesis will cooperate and use their best efforts
to have the present Officers, Directors, and employees of the Surviving
Corporation and of Genesis cooperate on and after the Effective Date in
furnishing information and documents reasonably required by either with
respect to matters pertaining to all periods prior to the Effective Date.
7.3 Assignment. This Agreement and the rights of the Constituent Corporations
hereunder may not be assigned (except by operation of law) and shall be
binding upon and shall inure to the benefit of the parties hereto and their
successors.
7.4 Entire Agreement. This Agreement (including the schedules and Exhibits
hereto) and the documents delivered pursuant hereto constitute the entire
agreement and understanding between the parties and supersedes any prior
agreement and understanding relating to the subject matter of this
Agreement. This Agreement may be modified or amended only by a duly
authorized written instrument executed by the parties hereto.
7.5 Counterparts. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute but one and the same instrument. It shall not be
necessary that any single counterpart hereof be executed by all parties
hereto as long as at least one counterpart is executed by each party.
7.6 Notices. Any notice or communication required or permitted hereunder shall
be sufficiently given if sent by registered or certified mail, return
receipt requested, to the following addresses:
(a) NEWCO:
(b) GENESIS:
1613 Jimmie Davis Highway
Bossier City, Louisiana 71112
7.7 This agreement shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the laws of the State of
Louisiana, and each of the parties hereto irrevocably attorn to the
jurisdiction of the Courts of the State of Louisiana.
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ATTACHMENT TO ACQUISITION AGREEMENT
EFFECTIVE AUGUST 1, 1996
IN WITNESS WHEREOF the parties hereto have executed this agreement as of the day
and year first above written.
NEWCO: GENESIS HEALTH
MANAGEMENT CORPORATION:
- ---------------------- ----------------------------
,Director William A. Lucky, Director
- ---------------------- ----------------------------
,Director Vickie T. Lucky, Director
--------------------- ----------------------------
, Director J. T. Simmons, Director
CERTIFICATE The undersigned, Secretary of Newco (the "Surviving
Corporation"), hereby certifies that the above Agreement and Plan of Merger was
adopted by a majority of the Board of Directors of the Surviving Corporation on
August , 1996.
_____________
, Secretary
CERTIFICATE The undersigned, Secretary of Newco, the "Surviving
Corporation") hereby certifies that the above Agreement and Plan of Merger was
adopted by vote of at least two-thirds of the voting present at the special
meeting of the shareholders of the corporation called for such purpose on August
, 1996.
, Secretary
CERTIFICATE The undersigned, Secretary of Genesis Health
Management Corporation, hereby certifies that the above Agreement and Plan of
Merger was adopted by a majority of the Board of Directors of said Corporation
on August , 1996.
Mary A. Roberts, Secretary
CERTIFICATE The undersigned, Secretary of Genesis Health Management
Corporation, hereby certifies that the above Agreement and Plan of Merger was
adopted by vote of at least two-thirds of the voting present at the special
meeting called for such purpose on August , 1996.
Mary A. Roberts, Secretary
29
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ACKNOWLEDGMENT
STATE OF LOUISIANA
PARISH OF __________
On this ________ day of August 1996, personally came , who being duly sworn did
depose and say that (he) (she) is the President of
, the
Corporation described in and which executed the foregoing instrument as its free
act and deed, and (he)(she) signs (his)(her) name hereto by order to the Board
of Directors of said Corporation
, President
NOTARY PUBLIC
ACKNOWLEDGMENT
STATE OF LOUISIANA
PARISH OF BOSSIER
On this day of August, 1996, before me, personally came Vickie T. Lucky,
President of Genesis Health Management Corporation, the Corporation described in
and which executed the foregoing instrument as its free act and deed, and she
signs her name hereto by order of the Board of Directors of said Corporation.
Vickie T. Lucky, President
NOTARY PUBLIC
30
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EXHIBIT A
TO
ACQUISITION AGREEMENT
EFFECTIVE AUGUST 1, 1996
STOCK ISSUED
AS OF AUGUST 1, 1996
Name Shares Percentage
Vickie T. Lucky 7900 79%
J. T. Simmons 1500 15%
Claudine Blondeau 400 4%
Mary Roberts 100 1%
William H. Means, Jr. 100 1%
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EXHIBIT B
TO
ACQUISITION AGREEMENT
EFFECTIVE 8/1/96
JUNE 30, 1996 BALANCE SHEET
32
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DeMoss & Cox
A Corporation of Certified Public Accountants
3776 Youree Drive
Shreveport, LA 71105
Phone: (318) 869-2727
Fax: (318) 869-4645
GENESIS HEALTH MANAGEMENT CORPORATION
We have compiled the accompanying balance sheet of GENESIS HEALTH MANAGEMENT
CORPORATION as of June 30, 1996, and the related statement of income for the
period then ended in accordance with Statements on Standards for Accounting and
Review Services issued by the American Institute of Certified Public
Accountants.
A compilation is limited to presenting in the form of financial statements
information that is the representation of management. We have not audited or
reviewed the accompanying financial statements and, accordingly, do not express
an opinion or any other form of assurance on them. However, we did become aware
of a departure from generally accepted accounting principles that is described
in the following paragraph.
A statement of cash flows for the period ended June 30, 1996, has not been
presented. Generally accepted accounting principles require that such a
statement be presented when financial statements purport to present financial
position and results of operations.
Management has elected to omit substantially all of the disclosures required by
generally accepted accounting principles. If the omitted disclosures were
included in the financial statements, they might influence the user's
conclusions about the company's financial position or results or operations.
Accordingly, these financial statements are not designed for those who are not
informed about such matters.
July 16, 1996
DeMoss & Cox, A Corporation of Certified Public Accountants
33
<PAGE>
Genesis Health Management Corp.
Balance Sheet
As of June 30, 1996
<TABLE>
<CAPTION>
June 30, 1996
ASSETS
Current Assets
Checking/Savings
<S> <C>
102-Cash in Bank 259,177.31
103-Cash in Bank - Payroll 2,658.51
----------------------
Total Checking/Savings 261,835.82
Accounts Receivable
1200-Accounts Receivable 1,091,255.00
1250-Allowance for Doubtful Account -47,425.00
---- ----------------------
Total Accounts Receivable 1,043,830.00
Other Current Assets
105-Accounts Receivable - Gulf States 1,749.19
107-Accounts Receivable - Sr. Nursing 1,117.14
108-A.R. - Due W.A. Lucky III 11,886.52
109-Officers' Advance 40,000.00
110-Employees Advances 6,297.60
111-A/R - Morehouse 11,886.52
133-Prepaid Insurance 9,489.55
134-Prepaid Maintenance Agreement 426.60
----------------------
Total Other Current Assets 82,853.12
----------------------
Total Current Assets 1,388,518.94
Fixed Assets
142-Leasehold Improvements 16,492.66
146-Fixtures and Equipment 58,257.30
148-Transportation Equipment 203,277.17
149-Accumulated Depreciation -44,212.43
--- ---------------------
Total Fixed Assets 233,814.70
Other Assets
183-Deposits 200.00
--- ---------------------
Total Other Assets 200.00
---------------------
TOTAL ASSETS 1,622,533.64
=====================
LIABILITIES & EQUITY
Liabilities
Current Liabilities
Accounts Payable
2000-Account Payable 130,199.19
---- ---------------------
Total Accounts Payable 130,199.19
</TABLE>
See Accountants' Report
34
<PAGE>
Genesis Health Management Corp.
Balance Sheet
As of June 30, 1996
<TABLE>
<CAPTION>
June 30, 1996
Other Current Liabilities
<S> <C>
204-Accounts Payable - Gulf States 30.00
206-Accounts Payable - Shareholders 11,886.52
210-Note Payable - Regions 225,045.00
232-Federal Payroll Taxes 2,279.90
233-State Payroll Taxes 9,987.08
235-Accrued Unemployment Tax 5,006.05
240-Accrued Payroll 88,099.68
241-Accrued Payroll Taxes 39,958.08
246-Deferred Income Tax 3,724.00
----------------------
Total Other Current Liabilities 386,016.31
----------------------
Total Current Liabilities 516,215.50
Long Term Liabilities
270-Note Payable - vehicles
270-01-N/P - Blazer 1 (1,280.41) 19,172.38
270-02-N/P - Blazer 2 (1225.11) 18,344.81
270-03-N/P - Blazer 3 (1,190.33) 17,823.84
270-04-N/P - Diamante 16,591.43
270-05-N/P - Chrysler 16,121.61
270-10-N/P - Mazda 829 24,240.14
270-13-N/P - Tahoe (1020.82) 24,797.34
----------------------
Total 270-Note Payable - vehicles 137,091.55
----------------------
Total Long Term Liabilities 137,091.55
----------------------
Total Liabilities 653,307.05
Equity
281-Issued Capital Stock 1,000.00
283-Retained Earnings 111,196.11
Net Income 1,389,030.48
286-Distributions -532,000.00
--- ---------------------
Total Equity 969,226.59
---------------------
TOTAL LIABILITIES & EQUITY 1,622,533.64
====================
</TABLE>
See Accountants' Report
35
<PAGE>
EXHIBIT C
TO
ACQUISITION AGREEMENT Page 1 of 4
EFFECTIVE AUGUST 1, 1996
AGREEMENTS
AS OF AUGUST 1, 1996
<TABLE>
<S> <C> <C> <C>
Peter Anderson S. W. Consult/Sharkey-Issaquena $50.00@hr. 07/19/96
Cindy Brasher Social Work Consult/Lackey 300.00@mth. 08/01/95
Mary Cathey Social Work Consult/Holly Springs 50.00@hr. 08/18/95
S. R. Chalasani,M.D. Medical Director/River West 4,000.00@mth. 09/05/95
M.S.Costilow,M.D. Medical Liaison/Tyler Holmes 1,000.00@mth. 09/26/95
M. Curtis, M.D. Medical Director/Richardson 5,000.00@mth. 09/07/95
Jessica Dreher Social Work Consult/Morehouse 50.00@hr. 06/15/95
Forest Fmly. Practice Medical Liaison/Lackey 1,200.00@mth. 07/21/95
Juliana Fort,M.D. Medical Director/Minden 5,000.00@mth. 12/13/94
Elmo Gabbert,M.D. Medical Liaison/Franklin 500.00@mth. 04/27/95
Susan Henry Social Work Consult/Bradley 350.00@mth. 02/13/96
Carl Hines,M.D. Medical Liaison/Minden 1,000.00@mth. 02/01/95
R. Hundley,M.D. Backup Med. Dir/Richardson 2,500.00@mth. 09/18/95
R. Hundley,M.D. Medical Director/Morehouse 5,000.00@mth. 05/01/96
R. Hundley,M.D. Med. Dir./Morehouse Partial 2,500.00@mth. 06/03/96
V.F. Jones, M.D. Med. Dir/Sharkey-Issaquena 5,000.00@mth. 07/17/96
Charles Krin,M.D. Medical Liaison/Richardson 1,000.00@mth. 12/01/95
W. B. Larkin, M.D. Medical Liaison/Franklin 500.00@mth. 04/27/95
W. A. Middleton,M.D. Medical Liaison/Tyler Holmes 1,000.00@mth. 09/22/95
Neuropsychiatry Assoc. Medical Director/Bradley 5,000.00@mth. 09/18/95
Jack Noble, M.D. Medical Liaison/Morehouse 500.00@mth. 04/01/96
R. Overstreet,M.D. Med. Dir/Aberdeen-Monroe 5,000.00@mth. 06/17/96
Pravin Patel,M.D. Med. Liaison/Senatobia 1,000.00@mth. 03/25/96
Mario Pineda,M.D. Medical Director/Franklin 6,000.00@mth. 04/18/95
Mario Pineda,M.D. Med. Director/Franklin Partial 2,500.00@mth. 05/01/96
Mario Pineda,M.D. Medical Director/Lackey 5,000.00@mth. 07/15/95
Mario Pineda,M.D. Med. Director/Monfort Jones 5,000.00@mth. 06/17/96
Mario Pineda,M.D. Med. Director/Tyler Holmes 5,000.00@mth. 09/20/95
S. Rayudu,M.D. Medical Director/Holly Springs 5,000.00@mth. 02/28/96
S. Rayudu,M.D. Medical Dir/Senatobia 5,000.00@mth. 03/07/96
K. Rushing,M.D. Medical Liaison/Tyler Holmes 1,000.00@mth. 09/27/95
S. Russell, M.D. Med. Dir/N. Sunflower 2,500.00@mth. 04/29/96
J. Smith,M.D. Med. Liaison/Morehouse 500.00@mth. 04/01/96
W. D. Thompson,M.D. Med. Liason/Richardson 1,000.00@mth. 05/01/96
J.H. Wharton,M.D. Med. Liaison/Bradley 1,000.00@mth. 10/15/95
K. Williams,M.D. Med. Liaison/Holly Springs 1,000.00@mth. 03/27/95
Cindy Brasher S.W. Consult/Franklin Partial 50.00@hr. 05/01/96
Wayne Stoddard Social Work consult/Minden 60.00@hr. 12/19/94
Jane T. Wallace Program Director Consult 200.00@day plus
80.00 per diem 04/30/96
</TABLE>
36
<PAGE>
EXHIBIT C
TO
ACQUISITION AGREEMENT Page 2 of 4
EFFECTIVE AUGUST 1, 1996
AGREEMENTS
AS OF 8/1/96 (CONTINUED)
COMPANY VEHICLES - GENESIS HEALTH MGT. CORP.
<TABLE>
<CAPTION>
DATE PAYEE/LOAN # VIN # VEHICLE AMT. FINANCED PAYMENT
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1. 10/17/95 GMAC 1GNCS1W3T2126205 Green '96 Blazer $27,887.02 $1280.41
Loan #039 0310 26006
2. 10/17/95 GMAC 1GNCS13W1T2113713 Red '96 Blazer $26,682.46 $1225.11
Loan #039 0310 26007
3. 11/6/95 Chrysler Credit 2C3HC56F7TH102175 '96 Chrysler $22,035.24 $1032.13
Loan #1 24311 3607740 2
4. 1/12/96 Central Bank JA3BP47H3PY007056 '93 Diamante $14,500.00 $457.95
Loan #0032184840001
5. 1/26/96 GMAC 1GNC513W9T2144031 '96 Blazer - Autumn $12,899.52 (L) $580.48
Lease #039-3151-28513
6. 1/26/96 GMAC 1GNC513W6T2169601 '96 Blazer - Green $12,899.52 (L) $580.48
Lease #039-3151-28517
7. 2/5/96 Central Bank JM1HD4612R0308301 '94 Mazda 929 $24,500.00 $660.80
Loan #00132184843002
8. 3/11/96 GMAC 1GNCS13W6T2176175 '96 Blazer - White $13,175.28 (L) $592.89
Lease #039-3151-30257
</TABLE>
37
<PAGE>
EXHIBIT C
TO
ACQUISITION AGREEMENT Page 3 of 4
EFFECTIVE AUGUST 1, 1996
AGREEMENTS
AS OF 8/1/96 (CONTINUED)
COMPANY VEHICLES - GENESIS HEALTH MGT. CORP.
<TABLE>
<CAPTION>
DATE PAYEE/LOAN # VIN # VEHICLE AMT. FINANCED PAYMENT
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
9. 3/11/96 GMAC 1GNEK13R6TJ315567 '96 Tahoe - Red $27,248.48 $1020.82
Loan #039-0310-29728
10. 4/12/96 Hibernia National Bank 1FTEX15N3SKB53698 95 Ford P/U $15,600.00 $473.69
Loan #00110001517252
11. 4/17/96 GMAC 1GNCS13W8T2135174 '96 Blazer- Black $13,202.16 (L) $594.10
Lease #039-3151-31042
12. 4/18/96 Central Bank 1J4FX58S6RC104149 '94 Jeep Cherokee $16,500.00 $756.25
Loan #00132184843003
13. 6/19/96 GMAC 1GNEC13R1TJ370019 '96 Chev Tahoe $28,500.00 $624.60
Lease #039-3151-65678
14. 7/24/96 GMAC 1GNEC16K7SJ318939 '95 Chev Suburban $9,310.80 (L) $418.99
Lease # (Buddy)
</TABLE>
38
<PAGE>
EXHIBIT C
TO
ACQUISITION AGREEMENT Page 4 of 4
EFFECTIVE AUGUST 1, 1996
AGREEMENTS
AS OF 8/1/96 (CONTINUED)
LEASE AGREEMENTS
<TABLE>
<S> <C> <C>
Corporate Office Lease South Bossier Plaza Partnership $2,800 per month
c/o John C. Miciotto, M. D.
5429 Highgate Hill
Bossier City, LA 71111
House for Genesis Staff Rita Guice One year lease $4200
308 E. Church St. 112 Allis Street paid up to 9/30/96
Warren, Arkansas Warren, Arkansas 71671
Maintenance Agreement Minolta Business Systems One year $790.00
Copier Model #1080 P. O. Box 7247-7458 paid to 11/6/96
Philadelphia, PA 19170-7458
Maintenance Agreement Minolta Business Systems One year $237.00
Fax Model #3700 P. O. Box 7247-7458 paid to 7/5/97
Philadelphia, PA 19170-7458
Maintenance Agreement Minolta Business Systems One year $560.00
Copier Model #4050 P. O. Box 7247-7458 paid to 8/31/96
Philadelphia, PA 19170-7458
</TABLE>
39
<PAGE>
EXHIBIT D
TO
ACQUISITION AGREEMENT Page 1 of 2
EFFECTIVE 8/1/96
DELINQUENT ACCOUNTS RECEIVABLE
AS OF AUGUST 1, 1996
I. HOLLY SPRINGS, S. E. LACKEY (SEE NOTE 1)
11. NORTH SUNFLOWER COUNTY (SEE NOTE 2)
NOTE 1:
Mr. Joseph S. McNulty, III, Owner
Independent Healthcare Mgt. Inc., dba S. E. Lackey Memorial Hospital and
Independent Healthcare Mgt. of Marshall County, Inc., dba Holly Springs Memorial
Hospital
Mr. McNulty's companies, Independent Healthcare Mgt. Inc., and Independent
Healthcare Management of Marshall County Inc., presently own two hospitals (S.
E. Lackey Memorial Hospital and Holly Springs Memorial Hospital, respectively).
Each of those hospitals currently has an inpatient unit managed by Genesis
Health Management. Mr. McNulty has recently spoken with us about opening
outpatient units in those same hospitals. He is also in the process of trying to
purchase Prentice Hospital in Prentice, Mississippi. If he succeeds, he has
indicated that he wants to put another inpatient unit managed by Genesis in that
hospital.
Mr. McNulty was delinquent 3 payments on his current hospitals last winter. He
purchased those hospitals in August of 1995. On or about January of this year,
the payroll tax division of the IRS assessed him for approximately $400,000 for
the period before he was the sole owner of the hospitals. Since Mr. McNulty
purchased the existing businesses, he became automatically liable for these
taxes. Mr. McNulty approached us and asked if he could take the income that
would normally pay the Genesis Health Management fee and use that income to
resolve this problem with the IRS His only other alternative would have been
bankruptcy. We agreed to Mr. McNulty's request if he would agree to keep Genesis
current in the future. We felt that keeping two units and one prospective unit,
along with two future outpatient units, was more valuable to Genesis than losing
Mr. McNulty as a client. Mr. McNulty is currently up to date on all monthly
payments since January.
As of August 1, 1996, we haven't received payment on the back billings. The past
due amount shows up on our accounts receivables. We will establish a set
repayment plan in December 1996, or if needed for tax purposes, consider a
write-down of this receivable.
40
<PAGE>
EXHIBIT D
TO
ACQUISITION AGREEMENT Page 2 of 2
EFFECTIVE 8/1/96
DELINQUENT ACCOUNTS RECEIVABLE
AS OF AUGUST 1, 1996 (CONTINUED)
NOTE 2:
North Sunflower County Hospital
Mr. Robert Crook, Administrator
Ruleville, MS
Genesis Health Management Corporation presently has an outpatient unit at the
hospital in Ruleville, Mississippi (North Sunflower County Hospital). In
addition, we are anticipating the opening of an outpatient unit on the hospital
fiscal year end September 30, 1996. This inpatient unit has already been
renovated, licensed and certified.
Due to the limited space at the North Sunflower County Hospital, the renovations
required involved relocation of two departments and a large capital expenditure.
Because of this large capital expenditure, Genesis Health Management has
deferred the outpatient management fee for the hospital until reimbursement
receivables are turned around in order that hospital cash flow not be impaired.
As we discussed, former Senator Crook is extremely conservative in fiscal
matters. Consequently, Genesis made the decision to carry the outpatient account
receivable of North Sunflower in order to avoid jeopardizing the inpatient unit.
As a practical matter, we anticipate covering the cost on this receivable in the
short term, opening the inpatient unit at $65,000 per month on 9/30/96, and then
collecting the outpatient receivable balance on the unit when the cost report is
filed. By handling the matter in this manner, Genesis will have management
contracts for two, rather than one unit, at North Sunflower, and the hospital
should have no problem in paying both management fees on the revenues generated
by those units.
41
<PAGE>
EXHIBIT E
TO ACQUISITION AGREEMENT
EFFECTIVE 8/1/96
LIST OF RECORDS & INFORMATION
42
<PAGE>
July 16, 1996
I acknowledge receipt of the following items:
Financial Statements for:
December 1995
January 1996
February 1996
March 1996
April 1996
May 1996
June 1996
Copies of Hospital Agreements for the following hospitals:
Aberdeen-Monroe County Hospital In-Patient Bradley County Memorial
Hospital In-Patient Dardanelle Hospital Out-Patient Franklin County
Memorial Hospital In-Patient Amendment to Franklin County Memorial
In-Patient Franklin County Memorial Hospital Out-Patient Holly Springs
Memorial Hospital In-Patient Lackey Memorial Hospital In-Patient Minden
Medical Center In-Patient Amendment to Minden Medical Center In-Patient
Montfort Jones Memorial Hospital In-Patient Morehouse General Hospital
In-Patient Amendment to Morehouse General Hospital In-Patient
Morehouse General Hospital Out-Patient
North Sunflower County Hospital In-Patient
North Sunflower County Hospital Out-Patient
Richardson Medical Center In-Patient
River West Medical Center Out-Patient
Senatobia Community Hospital In-Patient
Sharkey-Issaquena Community Hospital In-Patient
Tyler Holmes Memorial Hospital In-Patient
Cindy S. Brasher, Lackey Memorial Hospital
43
<PAGE>
Page 2
July 16, 1996
Copies of contracts for the following consultants:
Cindy S. Brasher, Franklin County Memorial Hospital
Mary Cathey, Social Worker, Holly Springs Memorial Hospital
S. Rao Chalasani, M. D., Medical Director, River West Medical Center
Millard Seals Costilow, M. D., Medical Staff Liaison Physician, Tyler
Holmes Memorial
Michael Curtis, M. D., Medical Director, Richardson Medical Center
Jessica Dreher, Social Worker, Morehouse General Hospital
Forest Family Practice, Medical Staff Liaison Physician, Lackey
Memorial Hospital
Juliana M. Fort, M. D., Medical Director, Minden Medical Center
Elmo P. Gabbert, M. D., Medical Staff Liaison Physician, Franklin
County Memorial
Susan Henry, Social Worker, Bradley County Memorial Hospital
Carl Hines, M. D., Medical Staff Liaison Physician, Minden Medical
Center
J. Roderick Hundley, M. D., Backup Medical Director, Richardson Medical
Center
J. Roderick Hundley, M. D., Medical Director, Morehouse General
Hospital
J. Roderick Hundley, M. D., Medical Director, Morehouse General
Hospital
J. Roderick Hundley, M. D., Medical Director, Morehouse General
Hospital Out-Patient
Theresia Johnson, Social Worker, Tyler Holmes Memorial Hospital
V. Faeza Jones, M. D., Medical Director, Sharkey-Issaquena Hospital
Charles Krin, M. D., Medical Staff Liaison Physician, Richardson
Medical Center
William B. Larkin, M. D., Medical Staff Liaison Physician, Franklin
County Memorial
William Alfred Middleton, M. D., Medical Staff Liaison Physician, Tyler
Holmes
Neuropsychiatry Associates, Medical Director, Bradley County Memorial
Hospital
Jack Noble, M. D., Medical Staff Liaison Physician, Morehouse General
Hospital
Raymond Overstreet, M. D., Medical Director, Aberdeen-Monroe County
Hospital
Pravin Patel, M. D., Medical Staff Liaison Physician, Senatobia
Community Hospital
Mario Pineda, Medical Director, Franklin County Memorial Hospital
Mario Pineda, Medical Director, Franklin County Memorial Hospital O/P
Mario Pineda, Medical Director, Lackey Memorial Hospital
Mario Pineda, Medical Director, Montfort Jones Memorial Hospital
Subbulaxmi Rayudu, M. D., Medical Director, Holly Springs Memorial
Hospital
Subbulaxmi Rayudu, M. D., Medical Director, Senatobia Community
Hospital
Steven Keith Rushing, M. D., Medical Staff Liaison Physician, Tyler
Holmes Memorial
Stanley Russell, M. D., Medical Director, North Sunflower County
Hospital O/P
James M. Smith, M. D., Medical Staff Liaison Physician, Morehouse
General Hospital
Wayne F. Stoddard, Social Worker, Minden Medical Center
William David Thompson, M. D., Medical Staff Liaison Physician,
Richardson Med.
Jane T. Wallace, Program Director Consult, Corporate Office
J. H. Wharton, M. D., Medical Staff Liaison Physician, Bradley County
Memorial
Kenneth Williams, M. D., Medical Staff Liaison Physician, Holly Springs
Memorial
44
<PAGE>
Page 3
July 16, 1996
Sample of Daily Activity Report
Sample Medical Director Agreement
Sample Medical Liaison Physician Agreement
Sample Agreement
Copy of Company Vehicle Summary
Copy of May Bank Statement with Reconciliation Copy of June Bank
Statement with Reconciliation Copy of Articles of Incorporation
Marketing Literature Copy of Proforma given to hospital Copy of
Prospective Contracts Copy of 1995 Adjusted income plus 1996
projections Copy of 1994 and 1995 Tax Return Copy of CFO Non-Compete
Agreement
Exhibit A:
Copy of GHM Officers with Address and Salaries
Copy of GHM Employee List
Copy of GHM Consultants List
Name of Bank/Address with Authorized Signatures
Copy of Holly Springs/Lackey Outstanding Balances
Dynamic Associates, Inc.
By:
Edwin J. Kaftal, Consultant
Date:
45
<PAGE>
EXHIBIT F
TO
ACQUISITION AGREEMENT
EFFECTIVE AUGUST 1, 1996
MANAGEMENT CONTRACTS
AS OF AUGUST 1, 1996
<TABLE>
<S> <C>
Aberdeen-Monroe County Hospital In-Patient Contract dated June 10, 1996
Bradley County Memorial Hospital In-Patient Contract dated August 22, 1995
Cumberland River Hospital In-Patient Contract dated July 26, 1996
with letter to Mr. Don Downey
Dardanelle Hospital Out-Patient Contract dated May 15, 1996
with Exhibit "A" and letter dated 5/13/96
Franklin County Memorial Hospital In-Patient Contract dated April 3, 1996
with Exhibit "A" and Amendment to Agreement
dated 11/2/95
Franklin County Memorial Hospital Out-Patient Contract dated May 1, 1996
Holly Springs Memorial Hospital In-Patient Contract dated July 21, 1996
Lackey Memorial Hospital In-Patient Contract dated July 18, 1996
Minden Medical Center Out-Patient Contract dated November 15, 1994
with Exhibit "A", Agreement Addendum dated
11/22/95, and Second Amendment Agreement dated
2/29/96
Montfort Jones Memorial Hospital In-Patient Contract dated May 30, 1996
Morehouse General Hospital In-Patient Contract dated March 17, 1995,
with Addendum dated March 17, 1995,
with Amendment dated 4/25/95
Morehouse General Hospital Out-Patient Contract dated May 15, 1996
North Sunflower County Hospital In-Patient Contract dated 12/27/95
with Amendment to Agreement dated 5/15/96
North Sunflower County Hospital Out-Patient Contract dated May 15, 1996
Richardson Medical Center In-Patient Contract dated May 5, 1995
River West Medical Center Out-Patient Contract dated August 28, 1995
with letter dated July 18, 1995
Senatobia Community Hospital In-Patient
Contract dated March 1, 1996 with
letter dated July 18, 1995
Sharkey-Issaquena Community Hospital In-Patient Contract dated June 14, 1996
Tyler Holmes Memorial Hospital In-Patient Contract dated August 29, 1995
Tyler Holmes Memorial Hospital Out-Patient Contract dated July 23, 1996
</TABLE>
46
<PAGE>
EXHIBIT "G"
TO ACQUISITION AGREEMENT
EFFECTIVE AUGUST 1, 1996
NON-COMPETITION AGREEMENT
In consideration of the benefits to be derived by ___________ (hereinafter
sometimes referred to as "Shareholder") as a result of the effectuation of that
certain "Agreement and Plan of Merger" entered into by and between Genesis
Health Management Corporation and Newco (the "Company") on ____________, 1996;
the said Shareholder does hereby consent and agree that he will not, for a
period of two (2) years from the date hereof:
(i) attempt to cause any person, firm or corporation which is a customer
of or has a contractual relationship with the Company on the date of
this Agreement to terminate such relationship with the Company, and
this provision shall apply regardless of whether such customer has a
valid contractual arrangement with the Company;
(ii) attempt to cause any employee of the Company to leave such employment;
(iii)engage any person who is an employee of the Company at the time of
this Agreement, or cause such person otherwise to become associated
with the Shareholder or with any other person, corporation,
partnership or other entity with which the Shareholder may thereafter
become associated;
(iv) engage in any activity or perform any services related to the
operation of any hospital based inpatient or outpatient
geropsychiatric unit which is located within a twenty-five (25) mile
radius of any similar unit managed (as of the date of termination) by
the Company; provided, however, that the geographical area of
restriction shall not include any area outside of the parish or county
in which such Company managed unit is located; or
(v) solicit any hospital with under two hundred (200) beds in the states
of Louisiana, Arkansas and Mississippi for the purpose of providing
geriatric psychiatric services to such hospitals.
The Shareholder acknowledges that the violation of any of the
provisions of this Agreement will cause irreparable loss and harm to
the Company which cannot be reasonably or adequately compensated by
damages in an action at law and, accordingly, agrees that the Company
will be entitled to injunctive and other equitable relief to prevent
or cure any breach or threatened breach thereof.
THUS DONE AND SIGNED ON THIS _____ day of __________, 1996.
WITNESSES: SHAREHOLDER:
- ------------------------- -----------------------
- -------------------------
47
<PAGE>
EXHIBIT "H" TO ACQUISITION AGREEMENT
EFFECTIVE AUGUST 1, 1996
EMPLOYMENT AGREEMENT
This Agreement made and entered into, effective , 1996, by and between:
Newco, a Louisiana corporation (the "Company"), represented herein by its
Chairman of the Board, duly authorized;
and
William H. Means, Jr., a resident of the full age of majority of Bossier
Parish, Louisiana,
WHEREAS, an agreement has been executed whereby all stock of the Company has
been transferred to Dynamic Associates, Inc. ("Dynamic"); and
WHEREAS, the Employee was a stockholder of the Company and, immediately prior to
the consummation of the referenced stock transfer, was employed by and was a key
executive of the Company in charge of its business and operations; and
WHEREAS, the Company desires to continue to employ the Employee, and the
Employee is willing to accept such employment, on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Employment. The Company hereby employs the Employee as its President, on
the terms hereinafter set forth, for a period of two (2) years from the
date of this Agreement, and the Employee hereby accepts such employment.
2. Duties. The Employee will render services in such executive, supervisory
and general administrative capacities as the Board of Directors of the
Company shall from time to time determine. Without limiting the foregoing,
the Employee will act as the President and Chief Executive Office of the
Company and, in that capacity, will be responsible for the supervision of
the overall operations of the Company and will perform such duties, and
exercise such authority, as are customarily exercised by such an officer.
The main office of the Company, which is located at 1613 Jimmie Davis
Highway, Bossier City, Louisiana, will constitute the Employee's base of
operations and the Employee will not be required to render services on a
permanent basis outside of that location. The Employee agrees, however, to
render any required services away from the main office on a temporary basis
and to travel wherever the Company may reasonably require. In connection
with all such trips, the Employee will be advanced, or reimbursed for, all
reasonable travel and living expenses; provided that he submits appropriate
documentation for such expenses satisfactory to the Company.
3. Exclusivity. The Employee will devote all of his working time to performing
his duties under this Agreement, and during his employment with the company
the Employee will not (i) act for his own account in any manner which is
competitive with any of the business of the Company or which would
interfere with the performance of his duties under this Agreement, or (ii)
invest or have any financial interest, direct or indirect, in any business
competitive with any of the business of the Company.
48
<PAGE>
4. Compensation.
4.1 Salary. During the first year of his employment under this Agreement, the
Company will pay the Employee a salary of $100,000 per year, payable on the
1st and l5th days of each month. That salary will be increased to the sum
of $112,000 per year for the second year of his employment under this
Agreement.
4.2 Deductions. The Company will deduct and withhold from any compensation
payable to the Employee under this Agreement such amounts as the Company is
required to deduct and withhold by law.
5. Expenses.
5.1 The Company will reimburse the Employee for all proper, normal and
reasonable expenses incurred by the Employee in performing his obligations
under this Agreement upon the Employee furnishing the company with
satisfactory evidence of such expenditures. The Employee will not incur any
unusual or major expenditures without the Company's prior written approval.
5.2 The Company will also furnish the Employee, at its expense, with a current
model Chevrolet Tahoe or comparable vehicle to enable the Employee to
perform his duties under this Agreement. The Company will pay all costs of
insuring, maintaining and operating that vehicle. The Employee will furnish
the Company with appropriate evidence of such costs.
6. Benefits.
6.1 The Company will provide the Employee, at the company's expense, with
medical, hospital and disability insurance which is not less favorable than
that which it provides to any other employee of the Company.
6.2 The Employee will be entitled to 20 days vacation during each calendar year
(January 1 to December 31) in addition to any holidays which the Company
observes. Vacation time must be used during each calendar year and, if not
used, will be forfeited. No payment will be made to Employee for unused
vacation time.
6.3 The Employee's salary and other rights and benefits under this Agreement
will not be suspended or terminated because the Employee is absent from
work due to illness, accident or other disability; but the Company may
deduct from the Employee's salary under Section 4.1 any payment received by
the Employee under any disability insurance which the Company provides the
Employee pursuant to Section 6.1.
7. Insurance. If the Company desires at any time or from time to time to apply
for, in its own name or otherwise, but at its expense, life, health,
accident or other insurance covering the Employee, the Company may do so
and may take out such insurance for any sum that it deems desirable. The
Employee will have no right, title or interest in or to such insurance. The
Employee nevertheless will assist the Company in procuring the same by
submitting from time to time to the customary medical, physical and other
examinations, and by signing such applications, statements and other
instruments as any reputable insurer may require.
8. Uniqueness Of Services. The Employee acknowledges that (i) the Company was
acquired by Dynamic in reliance on the Employee entering into this
Agreement, and (ii) that his services hereunder are of a special, unique,
unusual, extraordinary and intellectual character, the loss of which cannot
be reasonably or adequately compensated by damages in an action at law.
Accordingly, the Company will be entitled to injunctive and other
49
<PAGE>
equitable relief to prevent or cure any breach or threatened breach of this
Agreement by the Employee.
9. Negative Covenants.
9.1 The Employee will not, during or after the term of this Agreement, disclose
to any third person, or use or take any personal advantage of, any
confidential information or any trade secret of any kind or nature obtained
by him during the term hereof or during his employment by the Company.
9.2 To the full extent permitted by law, the Employee will not, for a period of
two years following the termination of his employment with the Company:
(i) attempt to cause any person, firm or corporation which is a customer
of or has a contractual relationship with the Company at the time of
the termination of his employment to terminate such relationship with
the Company, and this provision shall apply regardless of whether such
customer has a valid contractual arrangement with the Company;
(ii) attempt to cause any employee of the Company to leave such employment;
(iii)engage any person who was an employee of the Company at the time of
the termination of his employment, or cause such person otherwise to
become associated with the Employee or with any other person,
corporation, partnership or other entity with which the Employee may
thereafter become associated;
(iv) engage in any activity or perform any services related to the
operation of any hospital based inpatient or outpatient
geropsychiatric unit which is located within a twenty-five (25) mile
radius of any similar unit managed (as of the date of termination) by
the Company; provided, however, that the geographical area of
restriction shall not include any area outside of the parish or county
in which such Company managed unit is located; or
(v) solicit any hospital with under two hundred (200) beds in the states
of Louisiana, Arkansas and Mississippi for the purpose of providing
geriatric psychiatric services to such hospitals.
9.3 The Employee acknowledges that the violation of any of the provisions of
this Section 9 will cause irreparable loss and harm to the Company which
cannot be reasonably or adequately compensated by damages in an action at
law and, accordingly, agrees that the Company will be entitled to
injunctive and other equitable relief to prevent or cure any breach or
threatened breach thereof.
10. Governing Law; Remedies
10.1 This Agreement has been executed in the State of Louisiana and shall be
governed by and construed in all respects in accordance with the law of the
State of Louisiana.
10.2 Expect as otherwise expressly provided in this Agreement, any dispute or
claim arising under or with respect to this Agreement will be resolved by
arbitration in Bossier City, Louisiana, in accordance with the Rules for
Commercial Arbitration of the American Arbitration Association, before a
panel of three (3) arbitrators, one appointed by the Employee, one
appointed by the Company, and the third appointed by said Association. The
decision or award of a majority of the arbitrators shall be final and
binding upon the parties. Any arbitral award may be entered as a judgment
or order in any court of competent jurisdiction.
50
<PAGE>
10.3 Notwithstanding the provisions for arbitration contained in this Agreement,
the Company will be entitled to injunctive and other equitable relief as
provided in Sections 8 and 9.3 hereof and as any court may otherwise
determine appropriate; and the Employee agrees that it will not be a
defense to any request for such relief that the Company has an adequate
remedy at law. For purposes of any such proceeding the Company and the
Employee submit to the exclusive jurisdiction of the courts of the State of
Louisiana located in the Parish of Bossier, State of Louisiana, and each
agrees not to raise, and hereby waives, any objection to or defense based
on the venue of any such court or on forum non conveniens.
11. Indemnity. To the extent permitted by law, the Company will indemnify the
Employee against any claim or liability and will hold the Employee harmless
from and pay any expenses (including, without limitation, legal fees and
court costs), judgments, fines, penalties, settlements and other amounts
arising out of, or in connection with, any act or omission of the Employee
performed or made in good faith on behalf of the Company pursuant to his
employment, regardless of negligence. The Company will not be obligated to
pay the Employee's legal fees and related charges of counsel during any
period that the Company furnishes, at its expense, counsel to defend the
Employee; but any counsel furnished by the Company must be reasonably
satisfactory to the Employee.
12. Severability Of Provisions. If any provision of this Agreement or the
application of any such provision to any person or circumstance is held
invalid, the remainder of this Agreement, and the application of such
provision other than to the extent it is held invalid, will not be
invalidated or affected thereby.
13. Waiver. No failure by either party to insist upon the strict performance of
any term or condition of this Agreement, or to exercise any right or remedy
available to it, will constitute a waiver of the same. No breach or default
of any provision of this Agreement will be waived, altered or modified, and
neither party may waive any of its rights, except by a written instrument
executed by that party. No waiver of any breach or default will affect or
alter any term or condition of this Agreement, and such term or condition
will continue in full force and effect with respect to any other then
existing or subsequent breach or default thereof.
14. Miscellaneous.
14.1 This Agreement may be amended only by an instrument in writing signed by
both the Company and the Employee.
14.2 This Agreement shall be binding upon the parties and their respective
successors and assigns. The Company may, without the Employee's consent,
transfer or assign any of its rights and obligations under this Agreement
to any corporation which, directly or indirectly, controls or is controlled
by the Company or is under common control with the Company, or to any
corporation succeeding to all or a substantial portion of the Company's
business and assets; provided that the Company shall not be released from
an of its obligations under this Agreement, and provided further that any
such transferee or assignee agrees in writing to assume all the obligations
of the Company hereunder. Except as provided above, neither the Company nor
the Employee may, without the other's prior written consent, transfer or
assign any of its or his rights or obligations under this Agreement, and
such transfer or assignment or attempt thereat without such consent shall
be null and void.
14.3 All notices under or in connection with this Agreement shall be in writing
and may be delivered personally or sent by mail, courier, fax, or other
written means of communication to the parties at their addresses and fax
numbers set forth below or to such other addresses and fax numbers as to
which notice is given:
51
<PAGE>
(a) if to the Company:
Fax:
(b) if to the Employee:
William H. Means, Jr.
427 Highland
Bossier City, LA 71112
Fax: 318-752-2952
Notice will be deemed given on receipt.
14.4 Section headings are for purposes of convenient reference only and will not
affect the meaning or interpretation of any provision of this Agreement.
14.5 This Agreement constitutes the entire agreement of the parties and
supersedes any and all prior agreements or understanding between them.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
Dynamic Associates, Inc.
By:
Name: Date
Chairman of the Board
William H. Means, Jr. Date
52
<PAGE>
EXHIBIT I
TO CONTRACT FOR SALE AND PURCHASE OF STOCK
EFFECTIVE 8/1/96
EMPLOYMENT AGREEMENT
R. MICHAEL ASBURY
53
<PAGE>
EXHIBIT "I" TO ACQUISITION AGREEMENT
EFFECTIVE AUGUST 1, 1996
EMPLOYMENT AGREEMENT
This Agreement made and entered into, effective , 1996, by and between:
Newco, a Louisiana corporation ("the Company"), represented herein by its
Chairman of the Board, duly authorized;
and
R. Michael Asbury, a resident of the full age of majority of County,
Illinois,
WHEREAS, an agreement has been executed whereby all stock of the Company has
been transferred to Dynamic Associates, Inc. ("Dynamic"); and
WHEREAS, the Employee was a key executive of the Company; and
WHEREAS, the Company desires to continue to employ the Employee, and the
Employee is willing to accept such employment, on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Employment. The Company hereby employs the Employee as its Financial
Reimbursement Specialist, on the terms hereinafter set forth, for a period
of two (2) years from the date of this Agreement, and the Employee hereby
accepts such employment.
2. Duties. Employee will advise and assist hospital financial officers with
respect to financial matters relating to the geropsychiatric programs
managed by the Company, including assistance in the submission of periodic
bills and Medicare cost reports.
Employee's duties involve extensive travel and he agrees to travel wherever
the Company may reasonably require. In connection with all such trips, the
Employee will be advanced, or reimbursed for, all reasonable travel and
living expenses; provided that he submits appropriate documentation for
such expenses satisfactory to the Company.
3. Exclusivity. The Employee will devote all of his working time to performing
his duties under this Agreement, and during his employment with the company
the Employee will not (i) act for his own account in any manner which is
competitive with any of the business of the Company or which would
interfere with the performance of his duties under this Agreement, or (ii)
invest or have any financial interest, direct or indirect, in any business
competitive with any of the business of the Company.
4. Compensation.
4.1 Salary. During the first year of his employment under this Agreement, the
Company will pay the Employee a salary of $70,000 per year, payable on the
1st and l5th days of each month. That salary will be increased to the sum
of $78,400 per year for the second year of his employment under this
Agreement.
4.2 Deductions. The Company will deduct and withhold from any compensation
payable to the Employee under this Agreement such amounts as the Company is
required to deduct and withhold by law.
54
<PAGE>
5. Expenses.
5.1 The Company will reimburse the Employee for all proper, normal and
reasonable expenses incurred by the Employee in performing his obligations
under this Agreement upon the Employee furnishing the company with
satisfactory evidence of such expenditures. The Employee will not incur any
unusual or major expenditures without the Company's prior written approval.
5.2 The Company will also furnish the Employee, at its expense, with a current
model Mazda or comparable vehicle to enable the Employee to perform his
duties under this Agreement. The Company will pay all costs of insuring,
maintaining and operating that vehicle. The Employee will furnish the
Company with appropriate evidence of such costs.
6. Benefits.
6.1 The Company will provide the Employee, at the company's expense, with
medical, hospital and disability insurance which is not less favorable than
that which it provides to any other employee of the Company.
6.2 The Employee will be entitled to 20 days vacation during each calendar year
(January 1 to December 31) in addition to any holidays which the Company
observes. Vacation time must be used during each calendar year and, if not
used, will be forfeited. No payment will be made to Employee for unused
vacation time.
6.3 The Employee's salary and other rights and benefits under this Agreement
will not be suspended or terminated because the Employee is absent from
work due to illness, accident or other disability; but the Company may
deduct from the Employee's salary under Section 4.1 any payment received by
the Employee under any disability insurance which the Company provides the
Employee pursuant to Section 6.1.
7. Insurance. If the Company desires at any time or from time to time to apply
for, in its own name or otherwise, but at its expense, life, health,
accident or other insurance covering the Employee, the Company may do so
and may take out such insurance for any sum that it deems desirable. The
Employee will have no right, title or interest in or to such insurance. The
Employee nevertheless will assist the Company in procuring the same by
submitting from time to time to the customary medical, physical and other
examinations, and by signing such applications, statements and other
instruments as any reputable insurer may require.
8. Uniqueness Of Services. The Employee acknowledges that (i) the Company was
acquired by Dynamic in reliance on the Employee entering into this
Agreement, and (ii) that his services hereunder are of a special, unique,
unusual, extraordinary and intellectual character, the loss of which cannot
be reasonably or adequately compensated by damages in an action at law.
Accordingly, the Company will be entitled to injunctive and other equitable
relief to prevent or cure any breach or threatened breach of this Agreement
by the Employee.
9. Negative Covenants.
9.1 The Employee will not, during or after the term of this Agreement, disclose
to any third person, or use or take any personal advantage of, any
confidential information or any trade secret of any kind or nature obtained
by him during the term hereof or during his employment by the Company.
55
<PAGE>
9.2 To the full extent permitted by law, the Employee will not, for a period of
two years following the termination of his employment with the Company:
(i) attempt to cause any person, firm or corporation which is a customer
of or has a contractual relationship with the Company at the time of
the termination of his employment to terminate such relationship with
the Company, and this provision shall apply regardless of whether such
customer has a valid contractual arrangement with the Company;
(ii) attempt to cause any employee of the Company to leave such employment;
(iii)engage any person who was an employee of the Company at the time of
the termination of his employment, or cause such person otherwise to
become associated with the Employee or with any other person,
corporation, partnership or other entity with which the Employee may
thereafter become associated; or
(iv) engage in any activity or perform any services related to the
operation of a hospital based inpatient or outpatient geropsychiatric
unit within twenty- five (25) miles of any such unit managed by the
Company.
9.3 The Employee acknowledges that the violation of any of the provisions of
this Section 9 will cause irreparable loss and harm to the Company which
cannot be reasonably or adequately compensated by damages in an action at
law and, accordingly, agrees that the Company will be entitled to
injunctive and other equitable relief to prevent or cure any breach or
threatened breach thereof.
10. Governing Law; Remedies
10.1 This Agreement has been executed in the State of Louisiana and shall be
governed by and construed in all respects in accordance with the law of the
State of Louisiana.
10.2 Expect as otherwise expressly provided in this Agreement, any dispute or
claim arising under or with respect to this Agreement will be resolved by
arbitration in Bossier City, Louisiana, in accordance with the Rules for
Commercial Arbitration of the American Arbitration Association, before a
panel of three (3) arbitrators, one appointed by the Employee, one
appointed by the Company, and the third appointed by said Association. The
decision or award of a majority of the arbitrators shall be final and
binding upon the parties. Any arbitral award may be entered as a judgment
or order in any court of competent jurisdiction.
10.3 Notwithstanding the provisions for arbitration contained in this Agreement,
the Company will be entitled to injunctive and other equitable relief as
provided in Sections 8 and 9.3 hereof and as any court may otherwise
determine appropriate; and the Employee agrees that it will not be a
defense to any request for such relief that the Company has an adequate
remedy at law. For purposes of any such proceeding the Company and the
Employee submit to the exclusive jurisdiction of the courts of the State of
Louisiana located in the Parish of Bossier, State of Louisiana, and each
agrees not to raise, and hereby waives, any objection to or defense based
on the venue of any such court or on forum non conveniens.
11. Indemnity. To the extent permitted by law, the Company will indemnify the
Employee against any claim or liability and will hold the Employee harmless
from and pay any expenses (including, without limitation, legal fees and
court costs), judgments, fines,
56
<PAGE>
penalties, settlements and other amounts arising out of, or in connection
with, any act or omission of the Employee performed or made in good faith
on behalf of the Company pursuant to his employment, regardless of
negligence. The Company will not be obligated to pay the Employee's legal
fees and related charges of counsel during any period that the Company
furnishes, at its expense, counsel to defend the Employee; but any counsel
furnished by the Company must be reasonably satisfactory to the Employee.
12. Severability Of Provisions. If any provision of this Agreement or the
application of any such provision to any person or circumstance is held
invalid, the remainder of this Agreement, and the application of such
provision other than to the extent it is held invalid, will not be
invalidated or affected thereby.
13. Waiver. No failure by either party to insist upon the strict performance of
any term or condition of this Agreement, or to exercise any right or remedy
available to it, will constitute a waiver of the same. No breach or default
of any provision of this Agreement will be waived, altered or modified, and
neither party may waive any of its rights, except by a written instrument
executed by that party. No waiver of any breach or default will affect or
alter any term or condition of this Agreement, and such term or condition
will continue in full force and effect with respect to any other then
existing or subsequent breach or default thereof.
14. Miscellaneous.
14.1 This Agreement may be amended only by an instrument in writing signed by
both the Company and the Employee.
14.2 This Agreement shall be binding upon the parties and their respective
successors and assigns. The Company may, without the Employee's consent,
transfer or assign any of its rights and obligations under this Agreement
to any corporation which, directly or indirectly, controls or is controlled
by the Company or is under common control with the Company, or to any
corporation succeeding to all or a substantial portion of the Company's
business and assets; provided that the Company shall not be released from
an of its obligations under this Agreement, and provided further that any
such transferee or assignee agrees in writing to assume all the obligations
of the Company hereunder. Except as provided above, neither the Company nor
the Employee may, without the other's prior written consent, transfer or
assign any of its or her rights or obligations under this Agreement, and
such transfer or assignment or attempt thereat without such consent shall
be null and void.
57
<PAGE>
14.3 All notices under or in connection with this Agreement shall be in writing
and may be delivered personally or sent by mail, courier, fax, or other
written means of communication to the parties at their addresses and fax
numbers set forth below or to such other addresses and fax numbers as to
which notice is given:
(a) if to the Company:
Fax:
(b) if to the Employee:
R. Michael Asbury
16 Buckhurst Circle
Bloomington, IL 61704
Fax: 318-752-2952
Notice will be deemed given on receipt.
14.4 Section headings are for purposes of convenient reference only and will not
affect the meaning or interpretation of any provision of this Agreement.
14.5 This Agreement constitutes the entire agreement of the parties and
supersedes any and all prior agreements or understanding between them.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
Dynamic Associates, Inc.
By:
Name: Date
Chairman of the Board
Michael Asbury Date
58
<PAGE>
EXHIBIT J
TO CONTRACT FOR SALE AND PURCHASE OF STOCK
EFFECTIVE 8/1/96
EMPLOYMENT AGREEMENT
J.T. SIMMONS
59
<PAGE>
EXHIBIT "J" TO ACQUISITION AGREEMENT
EFFECTIVE AUGUST 1, 1996
EMPLOYMENT AGREEMENT
This Agreement made and entered into, effective , 1996, by and between:
Newco, a Louisiana corporation (the "Company"), represented herein by its
Chairman of the Board, duly authorized;
and
J. T. Simmons, a resident of the full age of majority of County, Texas,
WHEREAS, an agreement has been executed whereby all stock of the Company has
been transferred to Dynamic Associates, Inc. ("Dynamic"); and
WHEREAS, the Employee was a stockholder of the Company and, immediately prior to
the consummation of the referenced stock transfer, was employed by and was a key
executive of the Company in charge of its field operations; and
WHEREAS, the Company desires to continue to employ the Employee, and the
Employee is willing to accept such employment, on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Employment. The Company hereby employs the Employee as its Senior Vice-
President for Operations, on the terms hereinafter set forth, for a period
of two (2) years from the date of this Agreement, and the Employee hereby
accepts such employment.
2. Duties. The Employee will render services in such executive, supervisory
and general administrative capacities as the Board of Directors of the
Company shall from time to time determine. Without limiting the foregoing,
the Employee will act as a Senior Vice- President and Director of
Operations of the Company and, in that capacity, will be responsible for
the supervision of all field operations and field personnel and will
perform such duties, and exercise such authority, as are customarily
exercised by such an officer.
The main office of the Company, which is located at 1613 Jimmie Davis
Highway, Bossier City, Louisiana, will constitute the Employee's base of
operations and the Employee will not be required to render services on a
permanent basis outside of that location. The Employee agrees, however, to
render any required services away from the main office on a temporary basis
and to travel wherever the Company may reasonably require. In connection
with all such trips, the Employee will be advanced, or reimbursed for, all
reasonable travel and living expenses; provided that he submits appropriate
documentation for such expenses satisfactory to the Company.
60
<PAGE>
3. Exclusivity. The Employee will devote all of his working time to performing
his duties under this Agreement, and during his employment with the company
the Employee will not (i) act for his own account in any manner which is
competitive with any of the business of the Company or which would
interfere with the performance of his duties under this Agreement, or (ii)
invest or have any financial interest, direct or indirect, in any business
competitive with any of the business of the Company.
4. Compensation.
4.1 Salary. During the first year of his employment under this Agreement, the
Company will pay the Employee a salary of $180,000 per year, payable on the
1st and l5th days of each month. That salary will be increased to the sum
of $201,600 per year for the second year of his employment under this
Agreement.
4.2 Deductions. The Company will deduct and withhold from any compensation
payable to the Employee under this Agreement such amounts as the Company is
required to deduct and withhold by law.
5. Expenses.
5.1 The Company will reimburse the Employee for all proper, normal and
reasonable expenses incurred by the Employee in performing his obligations
under this Agreement upon the Employee furnishing the company with
satisfactory evidence of such expenditures. The Employee will not incur any
unusual or major expenditures without the Company's prior written approval.
5.2 The Company will also furnish the Employee, at its expense, with a current
model Chrysler LHS or comparable vehicle to enable the Employee to perform
his duties under this Agreement. The Company will pay all costs of
insuring, maintaining and operating that vehicle. The Employee will furnish
the Company with appropriate evidence of such costs.
6. Benefits.
6.1 The Company will provide the Employee, at the company's expense, with
medical, hospital and disability insurance which is not less favorable than
that which it provides to any other employee of the Company.
6.2 The Employee will be entitled to 20 days vacation during each calendar year
(January 1 to December 31) in addition to any holidays which the Company
observes. Vacation time must be used during each calendar year and, if not
used, will be forfeited. No payment will be made to Employee for unused
vacation time.
61
<PAGE>
6.3 The Employee's salary and other rights and benefits under this Agreement
will not be suspended or terminated because the Employee is absent from
work due to illness, accident or other disability; but the Company may
deduct from the Employee's salary under Section 4.1 any payment received by
the Employee under any disability insurance which the Company provides the
Employee pursuant to Section 6.1.
7. Insurance. If the Company desires at any time or from time to time to apply
for, in its own name or otherwise, but at its expense, life, health,
accident or other insurance covering the Employee, the Company may do so
and may take out such insurance for any sum that it deems desirable. The
Employee will have no right, title or interest in or to such insurance. The
Employee nevertheless will assist the Company in procuring the same by
submitting from time to time to the customary medical, physical and other
examinations, and by signing such applications, statements and other
instruments as any reputable insurer may require.
8. Uniqueness Of Services. The Employee acknowledges that (i) the Company was
acquired by Dynamic in reliance on the Employee entering into this
Agreement, and (ii) that his services hereunder are of a special, unique,
unusual, extraordinary and intellectual character, the loss of which cannot
be reasonably or adequately compensated by damages in an action at law.
Accordingly, the Company will be entitled to injunctive and other equitable
relief to prevent or cure any breach or threatened breach of this Agreement
by the Employee.
9. Negative Covenants.
9.1 The Employee will not, during or after the term of this Agreement, disclose
to any third person, or use or take any personal advantage of, any
confidential information or any trade secret of any kind or nature obtained
by him during the term hereof or during his employment by the Company.
9.2 To the full extent permitted by law, the Employee will not, for a period of
two years following the termination of his employment with the Company:
(i) attempt to cause any person, firm or corporation which is a customer
of or has a contractual relationship with the Company at the time of
the termination of his employment to terminate such relationship with
the Company, and this provision shall apply regardless of whether such
customer has a valid contractual arrangement with the Company;
(ii) attempt to cause any employee of the Company to leave such employment;
(iii)engage any person who was an employee of the Company at the time of
the termination of his employment, or cause such person otherwise to
become associated with the Employee or with any other person,
corporation, partnership or other entity with which the Employee may
thereafter become associated;
(iv) engage in any activity or perform any services related to the
operation of any hospital based inpatient or outpatient
geropsychiatric unit which is located within a twenty-five (25) mile
radius of any similar unit managed (as of the date of termination) by
the Company; provided, however, that the geographical area of
restriction shall not include any area outside of the parish or county
in which such Company managed unit is located; or
62
<PAGE>
(v) solicit any hospital with under two hundred (200) beds in the states
of Louisiana, Arkansas and Mississippi for the purpose of providing
geriatric psychiatric services to such hospitals.
9.3 The Employee acknowledges that the violation of any of the provisions of
this Section 9 will cause irreparable loss and harm to the Company which
cannot be reasonably or adequately compensated by damages in an action at
law and, accordingly, agrees that the Company will be entitled to
injunctive and other equitable relief to prevent or cure any breach or
threatened breach thereof.
10. Governing Law; Remedies.
10.1 This Agreement has been executed in the State of Louisiana and shall be
governed by and construed in all respects in accordance with the law of the
State of Louisiana.
10.2 Expect as otherwise expressly provided in this Agreement, any dispute or
claim arising under or with respect to this Agreement will be resolved by
arbitration in Bossier City, Louisiana, in accordance with the Rules for
Commercial Arbitration of the American Arbitration Association, before a
panel of three (3) arbitrators, one appointed by the Employee, one
appointed by the Company, and the third appointed by said Association. The
decision or award of a majority of the arbitrators shall be final and
binding upon the parties. Any arbitral award may be entered as a judgment
or order in any court of competent jurisdiction.
10.3 Notwithstanding the provisions for arbitration contained in this Agreement,
the Company will be entitled to injunctive and other equitable relief as
provided in Sections 8 and 9.3 hereof and as any court may otherwise
determine appropriate; and the Employee agrees that it will not be a
defense to any request for such relief that the Company has an adequate
remedy at law. For purposes of any such proceeding the Company and the
Employee submit to the exclusive jurisdiction of the courts of the State of
Louisiana located in the Parish of Bossier, State of Louisiana, and each
agrees not to raise, and hereby waives, any objection to or defense based
on the venue of any such court or on forum non conveniens.
11. Indemnity. To the extent permitted by law, the Company will indemnify the
Employee against any claim or liability and will hold the Employee harmless
from and pay any expenses (including, without limitation, legal fees and
court costs), judgments, fines, penalties, settlements and other amounts
arising out of, or in connection with, any act or omission of the Employee
performed or made in good faith on behalf of the Company pursuant to his
employment, regardless of negligence. The Company will not be obligated to
pay the Employee's legal fees and related charges of counsel during any
period that the Company furnishes, at its expense, counsel to defend the
Employee; but any counsel furnished by the Company must be reasonably
satisfactory to the Employee.
12. Severability Of Provisions. If any provision of this Agreement or the
application of any such provision to any person or circumstance is held
invalid, the remainder of this Agreement, and the application of such
provision other than to the extent it is held invalid, will not be
invalidated or affected thereby.
13. Waiver. No failure by either party to insist upon the strict performance of
any term or condition of this Agreement, or to exercise any right or remedy
available to it, will constitute a waiver of the same. No breach or default
of any provision of this Agreement will be waived, altered or modified, and
neither party may waive any of its rights, except by a written instrument
executed by that party. No waiver of any breach or default will
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affect or alter any term or condition of this Agreement, and such term or
condition will continue in full force and effect with respect to any other
then existing or subsequent breach or default thereof.
14. Miscellaneous.
14.1 This Agreement may be amended only by an instrument in writing signed by
both the Company and the Employee.
14.2 This Agreement shall be binding upon the parties and their respective
successors and assigns. The Company may, without the Employee's consent,
transfer or assign any of its rights and obligations under this Agreement
to any corporation which, directly or indirectly, controls or is controlled
by the Company or is under common control with the Company, or to any
corporation succeeding to all or a substantial portion of the Company's
business and assets; provided that the Company shall not be released from
an of its obligations under this Agreement, and provided further that any
such transferee or assignee agrees in writing to assume all the obligations
of the Company hereunder. Except as provided above, neither the Company nor
the Employee may, without the other's prior written consent, transfer or
assign any of its or his rights or obligations under this Agreement, and
such transfer or assignment or attempt thereat without such consent shall
be null and void.
14.3 All notices under or in connection with this Agreement shall be in writing
and may be delivered personally or sent by mail, courier, fax, or other
written means of communication to the parties at their addresses and fax
numbers set forth below or to such other addresses and fax numbers as to
which notice is given:
(a) if to the Company:
Fax:
(b) if to the Employee:
J. T. Simmons
Route 1, Box 442
Burkeville, TX 75932
Fax: 318-752-2952
Notice will be deemed given on receipt.
14.4 Section headings are for purposes of convenient reference only and will not
affect the meaning or interpretation of any provision of this Agreement.
14.5 This Agreement constitutes the entire agreement of the parties and
supersedes any and all prior agreements or understanding between them.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
Dynamic Associates, Inc.
By:
Name: Date
Chairman of the Board
J. T. Simmons Date
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EXHIBIT K
CONSULTING CONTRACT
W.A. LUCKY, III
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EXHIBIT "K" TO ACQUISITION AGREEMENT
EFFECTIVE AUGUST 1, 1996
CONSULTING CONTRACT
THIS AGREEMENT AND CONTRACT made and entered into as of this ________ day
of ________, 1996, by and between:
NEWCO
a corporation, organized under the laws of the State of Louisiana, herein
represented by its Chairman of the Board, ________, duly authorized to act
(hereinafter sometimes referred to as "Company"); and
W.A. Lucky, III
a resident of the lawful age of the State of Texas, (hereinafter sometimes
referred to as "Consultant"):
who stated as follows:
WHEREAS, Consultant was formerly employed, among other capacities, as the
principal marketer of Genesis Health Management Corporation ("Genesis"); a
corporation which has this date been merged into Newco; and
WHEREAS, Company now desires to hire Consultant as an independent marketing
consultant; and
WHEREAS, Consultant desires to perform services for the Company in the
above mentioned capacity;
NOW, THEREFORE, for and in consideration of Company contracting with
Consultant, and Consultant consenting to perform services for the Company,
Company does by this contract retain, and Consultant does by this contract
consent to perform services for Company, under the following terms:
I.
Company agrees to retain Consultant as a marketing consultant and the
Consultant agrees to give his time and service to such position and to
diligently and faithfully perform the work of the Company according to the
advice, direction and orders of the Company's President and Board of Directors.
II.
This Consulting Contract shall be in full force and effect for a primary
term of two (2) years from the date hereof.
III.
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Consultant hereby covenants that he has certain experience and possesses
certain skills in the marketing of the Company's business and that he is
qualified to act as a marketing consultant to the Company. He further agrees to
work diligently for the Company; to use his best efforts to promote the welfare
of Company; and to use his knowledge and experience to promote and expand its
business operations. It is understood and agreed that Consultant's primary
function will be to solicit and obtain management contracts for the Company in
the Company's geographical area of operations and that he will be granted broad
latitude and discretion in the manner and means by which he fulfills that
function.
IV.
In consideration of the services rendered by Consultant, the Company agrees
to pay Consultant, during the primary term of this contract, a base fee at the
rate of THIRTY THOUSAND AND 00/100 ($30,000.00) DOLLARS per month, payable on
the 1st day of each month (the first payment to be due on the date of this
agreement) and on the 1st day of every month thereafter, and, in addition,
agrees to maintain the medical insurance policy on Consultant and his dependents
which is currently in force through Genesis Health Management Corporation.
Further, in order to enable Consultant to efficiently perform his designated
duties, the Company agrees to furnish Consultant with an office in the Company's
current principal offices at 1613 Jimmie Davis Highway, Bossier City, Louisiana
and, during the period that this agreement is in effect, the use of the
following company owned items:
1995 Chevy Suburban with portable phone
1996 Chevy Tahoe with portable phone
Company credit card for entertainment, travel and business expenses
Two (2) Beepers
The Company agrees to pay all expenses related to the use, operation and
maintenance of the same, including; without limitation, gasoline, oil and
insurance.
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V.
If, at any time, in the opinion of the President or Board of Directors of
Company, Consultant should fail to fulfill his obligations under this agreement,
the Company may terminate the same upon giving one month's written notice to
Consultant of the date on which the Company elects to terminate the contract. In
the event of such an early termination, the Company shall pay Consultant all
consultant fees and expenses due hereunder for the period prior to such early
termination date and no such fees shall be due for any periods subsequent to
that date.
VI.
To the full extent permitted by law, Consultant will not, for a period of
two years following the termination of his employment with the Company:
(i) attempt to cause any person, firm or corporation which is a customer
of or has a contractual relationship with the Company at the time of
the termination of his employment to terminate such relationship with
the Company, and this provision shall apply regardless of whether such
customer has a valid contractual arrangement with the Company;
(ii) attempt to cause any employee of the Company to leave such employment;
(iii)engage any person who was an employee of the Company at the time of
the termination of his employment, or cause such person otherwise to
become associated with the Consultant or with any other person,
corporation, partnership or other entity with which the Consultant may
thereafter become associated;
(iv) engage in any activity or perform any services related to the
operation of any hospital based inpatient or outpatient
geropsychiatric unit which is located within a twenty-five (25) mile
radius of any similar unit managed (as of the date of termination) by
the Company; provided, however, that the geographical area of
restriction shall not include any area outside of the parish or county
in which such Company managed unit is located; or
(v) solicit any hospital with under two hundred (200) beds in the states
of Louisiana, Arkansas and Mississippi for the purpose of providing
geriatric psychiatric services to such hospitals.
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VII.
Consultant shall act as an independent contractor in providing any services
pursuant to this Agreement. Company and Consultant agree that neither
Consultant, nor any of his or her staff or assistants, shall be considered
employees of Company and Consultant agrees that he will not represent or imply
to any third party that Consultant is an employee of the Company. Consultant
will pay in a timely manner all income taxes, FICA taxes and other taxes
relating to the fees paid to Consultant by the Company pursuant to this
Agreement and understands that Newco has no responsibility to pay or withhold
such taxes.
VIII.
Nothing in this Agreement shall be construed to create any partnership,
joint venture or similar common undertaking between the Company and Consultant,
or to authorize either the Company or Consultant to act as a general or special
agent of the other party in any respect.
IX.
In performing services under this Agreement, Consultant agrees to: (i)
comply with all material and applicable federal, state and local laws and
regulations, and (ii) comply with all applicable policies or procedures of the
Company.
X.
Consultant agrees that, until the expiration of a period of four (4) years
after the last date that he furnishes any services pursuant to this Agreement,
Consultant will make available to the Secretary of the United States Department
of Health and Human Services and the United States Comptroller General, and
their duly authorized representatives, this contract and any and all books,
documents and/or other records necessary to certify the nature and extent of the
cost of those services.
XI.
Consultant will comply with all provisions of the law that affect Medicare
reimbursement for services provided by the Company.
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XII.
In addition to any other remedies it may have, Company shall have the right
to enforce this Consulting Contract by obtaining an injunction or specific
performance from any court of competent jurisdiction.
XIII.
This Agreement has been executed in the State of Louisiana and shall be
governed by and construed in all respects in accordance with the law of the
State of Louisiana.
Expect as otherwise expressly provided in this Agreement, any dispute or
claim arising under or with respect to this Agreement will be resolved by
arbitration in Bossier City, Louisiana, in accordance with the Rules for
Commercial Arbitration of the American Arbitration Association, before a panel
of three (3) arbitrators, one appointed by the Consultant, one appointed by the
Company, and the third appointed by said Association. The decision or award of a
majority of the arbitrators shall be final and binding upon the parties. Any
arbitral award may be entered as a judgment or order in any court of competent
jurisdiction.
Notwithstanding the provisions for arbitration contained in this Agreement,
the Company will be entitled to injunctive and other equitable relief as
provided herein and as any court may otherwise determine appropriate; and the
Consultant agrees that it will not be a defense to any request for such relief
that the Company has an adequate remedy at law. For purposes of any such
proceeding the Company and Consultant submit to the exclusive jurisdiction of
the courts of the State of Louisiana located in the Parish of Bossier, State of
Louisiana, and each agrees not to raise, and hereby waives, any objection to or
defense based on the venue of any such court or on forum non conveniens.
XIV.
If any provision of this Agreement or the application of any such provision
to any person or circumstance is held invalid, the remainder of this Agreement,
and the application of such provision other than to the extent it is held
invalid, will not be invalidated or affected thereby.
XV.
No failure by either party to insist upon the strict performance of any
term or condition of this Agreement, or to exercise any right or remedy
available to it, will constitute a waiver of the same. No breach or default of
any provision of this Agreement will be waived, altered or modified, and neither
party may waive any of its rights, except by a written instrument executed by
that party. No waiver of any breach or default will affect or alter any term or
condition of this Agreement, and such term or condition will continue in full
force and effect with respect to any other then existing or subsequent breach or
default thereof.
XVI.
This Agreement may be amended only by an instrument in writing signed by
both the Company and Consultant.
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This Agreement shall be binding upon the parties and their respective
successors and assigns. The Company may, without Consultant's consent, transfer
or assign any of its rights and obligations under this Agreement to any
corporation which, directly or indirectly, controls or is controlled by the
Company or is under common control with the Company, or to any corporation
succeeding to all or a substantial portion of the Company's business and assets;
provided that the Company shall not be released from any of its obligations
under this Agreement and, provided further, that any such transferee or assignee
agrees in writing to assume all the obligations of the Company hereunder. Except
as provided above, neither the Company nor Consultant may, without the other's
prior written consent, transfer or assign any of its or his rights or
obligations under this Agreement, and such transfer or assignment or attempt
thereat without such consent shall be null and void.
All notices under or in connection with this Agreement shall be in writing
and may be delivered personally or sent by mail, courier, fax, or other written
means of communication to the parties at their addresses and fax numbers set
forth below or to such other addresses and fax numbers as to which notice is
given:
(a) if to the Company:
---------------------
---------------------
---------------------
Fax:
(b) if to the Consultant:
W.A. Lucky, III
151 Lucky Lane
Bossier City, LA 71112
Fax: 318-752-2952
Notice will be deemed given on receipt.
This Agreement constitutes the entire agreement of the parties and
supersedes any and all prior agreements or understandings between them.
IN WITNESS WHEREOF, this instrument is executed on the day, month, and year
set forth hereinabove.
WITNESSES: NEWCO:
By:
Chairman of the Board
CONSULTANT:
W.A. Lucky, III
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