AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (THIS "AGREEMENT") ENTERED INTO
AS OF JANUARY 22, 2004, BY AND AMONG MOUNTAIN OIL, INC., A UTAH CORPORATION
("MOLI"), MTOIL ENTERPRISES, INC., A UTAH CORPORATION AND A WHOLLY OWNED
SUBSIDIARY OF MOLI ("ENTERPRISES"), OAKRIDGE RESOURCES, INC., A UTAH CORPORATION
AND CURRENTLY A WHOLLY OWNED SUBSIDIARY OF MOLI ("ORI") AND DENTAL COOPERATIVE,
INC., A UTAH CORPORATION ("CO-OP"). MOLI, ENTERPRISES, ORI AND CO-OP ARE
REFERRED TO COLLECTIVELY HEREIN AS THE "PARTIES."
THIS AGREEMENT CONTEMPLATES A TAX-FREE MERGER OF ENTERPRISES WITH AND INTO
CO-OP IN A REORGANIZATION PURSUANT TO CODE 368(A)(2)(E). UNDER THIS AGREEMENT,
ENTERPRISES WILL CEASE TO EXIST, CO-OP STOCKHOLDERS WILL RECEIVE MOLI STOCK IN
EXCHANGE FOR THEIR CO-OP STOCK, AND CO-OP WILL BE A WHOLLY OWNED SUBSIDIARY OF
MOLI AT THE EFFECTIVE TIME.
NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES AND THE MUTUAL PROMISES
HEREIN MADE, AND IN CONSIDERATION OF THE REPRESENTATIONS, WARRANTIES, AND
COVENANTS HEREIN CONTAINED, THE PARTIES AGREE AS FOLLOWS.
1. DEFINITIONS.
"AFFILIATE" HAS THE MEANING SET FORTH IN RULE 12B-2 OF THE REGULATIONS
PROMULGATED UNDER THE SECURITIES EXCHANGE ACT.
"ARTICLES OF MERGER" HAS THE MEANING SET FORTH IN 2(C) BELOW.
"BASIS" MEANS ANY PAST OR PRESENT FACT, SITUATION, CIRCUMSTANCE, STATUS,
CONDITION, ACTIVITY, PRACTICE, PLAN, OCCURRENCE, EVENT, INCIDENT, ACTION,
FAILURE TO ACT, OR TRANSACTION THAT FORMS OR COULD FORM THE BASIS FOR ANY
SPECIFIED CONSEQUENCE.
"BUSINESS CORPORATION ACT" MEANS THE UTAH REVISED BUSINESS CORPORATION ACT, AS
AMENDED.
"CLOSING" HAS THE MEANING SET FORTH IN 2(B) BELOW.
"CLOSING DATE" HAS THE MEANING SET FORTH IN 2(B) BELOW.
"CONFIDENTIAL INFORMATION" MEANS ANY INFORMATION CONCERNING THE BUSINESSES AND
AFFAIRS OF CO-OP AND ITS SUBSIDIARIES THAT IS NOT ALREADY GENERALLY AVAILABLE TO
THE PUBLIC.
"CONVERSION RATIO" HAS THE MEANING SET FORTH IN 2(D)(V) BELOW.
"DEFINITIVE INFORMATION STATEMENT" MEANS THE DEFINITIVE INFORMATION STATEMENT
RELATING TO THE SPECIAL MEETINGS.
"DISCLOSURE SCHEDULE" HAS THE MEANING SET FORTH IN 3 BELOW.
"DISSENTING CO-OP SHARE" MEANS ANY CO-OP SHARE HELD OF RECORD BY ANY STOCKHOLDER
WHO OR WHICH HAS EXERCISED HIS, HER, OR ITS APPRAISAL RIGHTS UNDER THE BUSINESS
CORPORATION ACT.
"DISSENTING MOLI SHARE" MEANS ANY MOLI SHARE HELD OF RECORD BY ANY STOCKHOLDER
WHO OR WHICH HAS EXERCISED HIS, HER, OR ITS APPRAISAL RIGHTS UNDER THE BUSINESS
CORPORATION ACT.
"CO-OP" HAS THE MEANING SET FORTH IN THE PREFACE ABOVE.
"CO-OP SHARE" MEANS ANY SHARE OF THE COMMON STOCK, $0.001 PAR VALUE PER SHARE,
OF CO-OP.
"CO-OP SPECIAL MEETING" MEANS A SPECIAL MEETING OF THE STOCKHOLDERS OF CO-OP
CALLED BY DULY ADOPTED RESOLUTION OF THE BOARD OF DIRECTORS OF CO-OP FOR THE
PURPOSE OF OBTAINING STOCKHOLDER APPROVAL OF THIS AGREEMENT AND THE MERGER.
"CO-OP STOCKHOLDER" MEANS ANY PERSON WHO OR WHICH HOLDS ANY CO-OP SHARES.
"EFFECTIVE TIME" HAS THE MEANING SET FORTH IN 2(D)(I) BELOW.
"ENTERPRISES" HAS THE MEANING SET FORTH IN THE PREFACE ABOVE.
"EXCHANGE AGENT" HAS THE MEANING SET FORTH IN 2(E) BELOW.
"FINANCIAL STATEMENTS" HAS THE MEANING SET FORTH IN 3(H) BELOW.
"GAAP" MEANS UNITED STATES GENERALLY ACCEPTED ACCOUNTING PRINCIPLES AS IN EFFECT
FROM TIME TO TIME, CONSISTENTLY APPLIED.
"INTELLECTUAL PROPERTY" MEANS ALL OF THE FOLLOWING IN ANY JURISDICTION
THROUGHOUT THE WORLD: (A) ALL INVENTIONS (WHETHER PATENTABLE OR UNPATENTABLE AND
WHETHER OR NOT REDUCED TO PRACTICE), ALL IMPROVEMENTS THERETO, AND ALL PATENTS,
PATENT APPLICATIONS, AND PATENT DISCLOSURES, TOGETHER WITH ALL REISSUANCES,
CONTINUATIONS, CONTINUATIONS-IN-PART, REVISIONS, EXTENSIONS, AND REEXAMINATIONS
THEREOF, (B) ALL TRADEMARKS, SERVICE MARKS, TRADE DRESS, LOGOS, SLOGANS, TRADE
NAMES, CORPORATE NAMES, INTERNET DOMAIN NAMES, AND RIGHTS IN TELEPHONE NUMBERS,
TOGETHER WITH ALL TRANSLATIONS, ADAPTATIONS, DERIVATIONS, AND COMBINATIONS
THEREOF AND INCLUDING ALL GOODWILL ASSOCIATED THEREWITH, AND ALL APPLICATIONS,
REGISTRATIONS, AND RENEWALS IN CONNECTION THEREWITH, (C) ALL COPYRIGHTABLE
WORKS, ALL COPYRIGHTS, AND ALL APPLICATIONS, REGISTRATIONS, AND RENEWALS IN
CONNECTION THEREWITH, (D) ALL MASK WORKS AND ALL APPLICATIONS, REGISTRATIONS,
AND RENEWALS IN CONNECTION THEREWITH, (E) ALL TRADE SECRETS AND CONFIDENTIAL
BUSINESS INFORMATION (INCLUDING IDEAS, RESEARCH AND DEVELOPMENT, KNOW-HOW,
FORMULAS, COMPOSITIONS, MANUFACTURING AND PRODUCTION PROCESSES AND TECHNIQUES,
TECHNICAL DATA, DESIGNS, DRAWINGS, SPECIFICATIONS, CUSTOMER AND SUPPLIER LISTS,
PRICING AND COST INFORMATION, AND BUSINESS AND MARKETING PLANS AND PROPOSALS),
(F) ALL COMPUTER SOFTWARE (INCLUDING SOURCE CODE, EXECUTABLE CODE, DATA,
DATABASES, AND RELATED DOCUMENTATION), (G) ALL ADVERTISING AND PROMOTIONAL
MATERIALS, (H) ALL OTHER PROPRIETARY RIGHTS, AND (I) ALL COPIES AND TANGIBLE
EMBODIMENTS THEREOF (IN WHATEVER FORM OR MEDIUM).
"KNOWLEDGE" MEANS ACTUAL KNOWLEDGE AFTER REASONABLE INVESTIGATION.
"LIABILITY" MEANS ANY LIABILITY OR OBLIGATION OF WHATEVER KIND OR NATURE
(WHETHER KNOWN OR UNKNOWN, WHETHER ASSERTED OR UNASSERTED, WHETHER ABSOLUTE OR
CONTINGENT, WHETHER ACCRUED OR UNACCRUED, WHETHER LIQUIDATED OR UNLIQUIDATED,
AND WHETHER DUE OR TO BECOME DUE), INCLUDING ANY LIABILITY FOR TAXES.
"LIEN" MEANS ANY MORTGAGE, PLEDGE, LIEN, ENCUMBRANCE, CHARGE, OR OTHER SECURITY
INTEREST, OTHER THAN (A) LIENS FOR TAXES NOT YET DUE AND PAYABLE (B) PURCHASE
MONEY LIENS AND LIENS SECURING RENTAL PAYMENTS UNDER CAPITAL LEASE ARRANGEMENTS,
AND (C) OTHER LIENS ARISING IN THE ORDINARY COURSE OF BUSINESS AND NOT INCURRED
IN CONNECTION WITH THE BORROWING OF MONEY.
"MATERIAL ADVERSE EFFECT" OR "MATERIAL ADVERSE CHANGE" MEANS ANY EFFECT OR
CHANGE THAT WOULD BE (OR COULD REASONABLY BE EXPECTED TO BE) MATERIALLY ADVERSE
TO THE BUSINESS, ASSETS, CONDITION (FINANCIAL OR OTHERWISE), OPERATING RESULTS,
OPERATIONS, OR BUSINESS PROSPECTS OF A PARTY AND ITS SUBSIDIARIES (REGARDLESS OF
WHETHER OR NOT SUCH ADVERSE EFFECT OR CHANGE CAN BE OR HAS BEEN CURED AT ANY
TIME OR WHETHER THE OTHER PARTIES HAVE KNOWLEDGE OF SUCH EFFECT OR CHANGE ON THE
DATE HEREOF), INCLUDING ANY ADVERSE CHANGE, EVENT, DEVELOPMENT, OR EFFECT
ARISING FROM OR RELATING TO THE TAKING OF ANY ACTION CONTEMPLATED BY THIS
AGREEMENT AND THE OTHER AGREEMENTS CONTEMPLATED HEREBY.
"MERGER" HAS THE MEANING SET FORTH IN 2(A) BELOW.
"MOLI" HAS THE MEANING SET FORTH IN THE PREFACE ABOVE.
"MOLI SHARE" MEANS ANY SHARE OF THE COMMON STOCK, NO PAR VALUE, OF MOLI.
"MOLI SPECIAL MEETING" MEANS A SPECIAL MEETING OF THE STOCKHOLDERS OF MOLI
CALLED BY DULY ADOPTED RESOLUTION OF THE BOARD OF DIRECTORS OF MOLI FOR THE
PURPOSE OF OBTAINING STOCKHOLDER APPROVAL OF THIS AGREEMENT, THE ORI
DISTRIBUTION, OTHER MATTERS PERTAINING TO AMENDMENT OF THE ARTICLES OF
INCORPORATION OF MOLI, AND THE ELECTION OF DIRECTORS OF MOLI.
"MOLI STOCKHOLDER" MEANS ANY PERSON WHO OR WHICH HOLDS ANY MOLI SHARES.
"MOST RECENT BALANCE SHEET" MEANS THE BALANCE SHEET AS OF THE MOST RECENT FISCAL
YEAR END.
"MOST RECENT FISCAL QUARTER END" HAS THE MEANING SET FORTH IN 4(G) BELOW.
"MOST RECENT FISCAL YEAR END" HAS THE MEANING SET FORTH IN 3(H) BELOW.
"ORI" HAS THE MEANING SET FORTH IN THE PREFACE ABOVE.
"ORI DISTRIBUTION" MEANS THE DISTRIBUTION OF THE ENTIRE ISSUED AND OUTSTANDING
2,326,474 ORI SHARES BY MOLI TO THE MOLI STOCKHOLDERS PRO RATA BASED ON THEIR
OWNERSHIP OF MOLI SHARES AS OF THE DAY IMMEDIATELY PRECEDING THE EFFECTIVE TIME.
"ORI SHARE" MEANS ANY SHARE OF THE COMMON STOCK, NO PAR VALUE PER SHARE, OF ORI.
"ORDINARY COURSE OF BUSINESS" MEANS THE ORDINARY COURSE OF BUSINESS CONSISTENT
WITH PAST CUSTOM AND PRACTICE (INCLUDING WITH RESPECT TO QUANTITY AND
FREQUENCY).
"PARTY" HAS THE MEANING SET FORTH IN THE PREFACE ABOVE.
"PERSON" MEANS AN INDIVIDUAL, A PARTNERSHIP, A CORPORATION, A LIMITED LIABILITY
COMPANY, AN ASSOCIATION, A JOINT STOCK COMPANY, A TRUST, A JOINT VENTURE, AN
UNINCORPORATED ORGANIZATION, ANY OTHER BUSINESS ENTITY, OR A GOVERNMENTAL ENTITY
(OR ANY DEPARTMENT, AGENCY, OR POLITICAL SUBDIVISION THEREOF).
"PUBLIC REPORTS" HAS THE MEANING SET FORTH IN 4(F) BELOW.
"REQUISITE CO-OP STOCKHOLDER APPROVAL" MEANS THE AFFIRMATIVE VOTE OF THE HOLDERS
OF A MAJORITY OF THE CO-OP SHARES.
"REQUISITE MOLI STOCKHOLDER APPROVAL" MEANS THE AFFIRMATIVE VOTE OF THE HOLDERS
OF A MAJORITY OF THE MOLI SHARES.
"SEC" MEANS THE SECURITIES AND EXCHANGE COMMISSION.
"SECURITIES ACT" MEANS THE SECURITIES ACT OF 1933, AS AMENDED.
"SECURITIES EXCHANGE ACT" MEANS THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
"SUBSIDIARY" MEANS, WITH RESPECT TO ANY PERSON, ANY CORPORATION, LIMITED
LIABILITY COMPANY, PARTNERSHIP, ASSOCIATION, OR BUSINESS ENTITY OF WHICH (I) IF
A CORPORATION, A MAJORITY OF THE TOTAL VOTING POWER OF SHARES OF STOCK ENTITLED
(WITHOUT REGARD TO THE OCCURRENCE OF ANY CONTINGENCY) TO VOTE IN THE ELECTION OF
DIRECTORS, MANAGERS, OR TRUSTEES THEREOF IS AT THE TIME OWNED OR CONTROLLED,
DIRECTLY OR INDIRECTLY, BY THAT PERSON OR ONE OR MORE OF THE OTHER SUBSIDIARIES
OF THAT PERSON OR A COMBINATION THEREOF OR (II) IF A LIMITED LIABILITY COMPANY,
PARTNERSHIP, ASSOCIATION, OR OTHER BUSINESS ENTITY (OTHER THAN A CORPORATION), A
MAJORITY OF PARTNERSHIP OR OTHER SIMILAR OWNERSHIP INTEREST THEREOF IS AT THE
TIME OWNED OR CONTROLLED, DIRECTLY OR INDIRECTLY, BY THAT PERSON OR ONE OR MORE
SUBSIDIARIES OF THAT PERSON OR A COMBINATION THEREOF AND FOR THIS PURPOSE, A
PERSON OR PERSONS OWNS A MAJORITY OWNERSHIP INTEREST IN SUCH A BUSINESS ENTITY
(OTHER THAN A CORPORATION) IF SUCH PERSON OR PERSONS SHALL BE ALLOCATED A
MAJORITY OF SUCH BUSINESS ENTITY'S GAINS OR LOSSES OR SHALL BE OR CONTROL ANY
MANAGING DIRECTOR OR GENERAL PARTNER OF SUCH BUSINESS ENTITY (OTHER THAN A
CORPORATION). THE TERM "SUBSIDIARY" SHALL INCLUDE ALL SUBSIDIARIES OF SUCH
SUBSIDIARY.
"SURVIVING CORPORATION" HAS THE MEANING SET FORTH IN 2(A) BELOW.
"TAX" OR "TAXES" MEANS ANY FEDERAL, STATE, LOCAL, OR FOREIGN INCOME, GROSS
RECEIPTS, LICENSE, PAYROLL, EMPLOYMENT, EXCISE, SEVERANCE, STAMP, OCCUPATION,
PREMIUM, WINDFALL PROFITS, ENVIRONMENTAL (INCLUDING TAXES UNDER INTERNAL REVENUE
CODE 59A), CUSTOMS DUTIES, CAPITAL STOCK, FRANCHISE, PROFITS, WITHHOLDING,
SOCIAL SECURITY (OR SIMILAR), UNEMPLOYMENT, DISABILITY, REAL PROPERTY, PERSONAL
PROPERTY, SALES, USE, TRANSFER, REGISTRATION, VALUE ADDED, ALTERNATIVE OR ADD-ON
MINIMUM, ESTIMATED, OR OTHER TAX OF ANY KIND WHATSOEVER, INCLUDING ANY INTEREST,
PENALTY, OR ADDITION THERETO, WHETHER DISPUTED OR NOT AND INCLUDING ANY
OBLIGATIONS TO INDEMNIFY OR OTHERWISE ASSUME OR SUCCEED TO THE TAX LIABILITY OF
ANY OTHER PERSON.
"TAX RETURN" MEANS ANY RETURN, DECLARATION, REPORT, CLAIM FOR REFUND, OR
INFORMATION RETURN OR STATEMENT RELATING TO TAXES, INCLUDING ANY SCHEDULE OR
ATTACHMENT THERETO, AND INCLUDING ANY AMENDMENT THEREOF.
2. BASIC TRANSACTION.
(A) MERGER. ON AND SUBJECT TO THE TERMS AND CONDITIONS OF THIS
AGREEMENT, ENTERPRISES WILL MERGE WITH AND INTO CO-OP (THE "MERGER") AT THE
EFFECTIVE TIME. ENTERPRISES WILL CEASE TO EXIST, AND CO-OP SHALL BE THE
CORPORATION SURVIVING THE MERGER (THE "SURVIVING CORPORATION").
(B) CLOSING. THE CLOSING OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT
(THE "CLOSING") SHALL TAKE PLACE AT THE OFFICES OF COHNE, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇,
P.C., IN SALT LAKE CITY, UTAH, COMMENCING AT 10:00 A.M. LOCAL TIME ON THE THIRD
BUSINESS DAY FOLLOWING THE SATISFACTION OR WAIVER OF ALL CONDITIONS TO THE
OBLIGATIONS OF THE PARTIES TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY
OTHER THAN CONDITIONS WITH RESPECT TO ACTIONS THE RESPECTIVE PARTIES WILL TAKE
AT THE CLOSING ITSELF; PROVIDED, HOWEVER, THE PARTIES MAY AGREE IN WRITING TO A
DIFFERENT DATE FOR THE CLOSING THAT IS NO EARLIER THAN THE DATE SPECIFIED ABOVE.
THE DATE OF THE CLOSING SELECTED UNDER THE PRECEDING SENTENCE IS THE "CLOSING
DATE".
(C) ACTIONS AT CLOSING. AT THE CLOSING, (I) CO-OP WILL DELIVER TO MOLI AND
ENTERPRISES THE VARIOUS CERTIFICATES, INSTRUMENTS, AND DOCUMENTS REFERRED TO IN
6(A) BELOW, (II) MOLI AND ENTERPRISES WILL DELIVER TO CO-OP THE VARIOUS
CERTIFICATES, INSTRUMENTS, AND DOCUMENTS REFERRED TO IN 6(B) BELOW, (III) CO-OP
AND ENTERPRISES WILL FILE WITH THE DIVISION OF CORPORATIONS AND COMMERCIAL CODE
OF THE STATE OF UTAH ARTICLES OF MERGER IN THE FORM ATTACHED HERETO AS EXHIBIT A
(THE "ARTICLES OF MERGER") (IV) EACH OF THE OFFICERS OF MOLI WILL DELIVER SIGNED
RESIGNATIONS FROM ALL OF THEIR OFFICER POSITIONS WITH MOLI EFFECTIVE IMMEDIATELY
FOLLOWING THE CLOSING, AND (V) MOLI WILL DELIVER TO THE EXCHANGE AGENT IN THE
MANNER PROVIDED BELOW IN THIS 2 THE CERTIFICATES EVIDENCING THE 18,823,288 MOLI
SHARES TO BE ISSUED TO CO-OP STOCKHOLDERS IN THE MERGER.
(D) EFFECT OF MERGER.
(I) GENERAL. THE MERGER SHALL BECOME EFFECTIVE AT THE TIME (THE
"EFFECTIVE TIME") CO-OP AND ENTERPRISES FILE THE ARTICLES OF MERGER WITH
THE STATE OF UTAH. THE MERGER SHALL HAVE THE EFFECT SET FORTH IN THE
BUSINESS CORPORATION ACT. CO-OP, AS THE SURVIVING CORPORATION, MAY, AT ANY
TIME AFTER THE EFFECTIVE TIME, TAKE ANY ACTION (INCLUDING EXECUTING AND
DELIVERING ANY DOCUMENT) IN THE NAME AND ON BEHALF OF EITHER CO-OP OR
ENTERPRISES IN ORDER TO CARRY OUT AND EFFECTUATE THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT.
(II) ARTICLES OF INCORPORATION. THE ARTICLES OF INCORPORATION OF
SURVIVING CORPORATION SHALL BE THE ARTICLES OF INCORPORATION OF CO-OP AS IN
EFFECT IMMEDIATELY PRIOR TO THE EFFECTIVE TIME.
(III) BYLAWS. THE BYLAWS OF SURVIVING CORPORATION SHALL BE THE BYLAWS
OF CO-OP AS IN EFFECT IMMEDIATELY PRIOR TO THE EFFECTIVE TIME.
(IV) DIRECTORS AND OFFICERS. THE DIRECTORS AND OFFICERS OF CO-OP
IMMEDIATELY PRIOR TO THE MERGER WILL BE THE DIRECTORS AND OFFICERS OF
SURVIVING CORPORATION AT AND AS OF THE EFFECTIVE TIME (RETAINING THEIR
RESPECTIVE POSITIONS AND TERMS OF OFFICE).
(V) CONVERSION OF CO-OP SHARES. AT AND AS OF THE EFFECTIVE TIME EACH
CO-OP SHARE (OTHER THAN ANY DISSENTING CO-OP SHARE) SHALL BE CONVERTED INTO
THE RIGHT TO RECEIVE THE NUMBER OF MOLI SHARES RESULTING FROM THE RATIO OF
18,823,288 DIVIDED BY THE TOTAL ISSUED AND OUTSTANDING CO-OP SHARES AT THE
EFFECTIVE TIME LESS ANY DISSENTING CO-OP SHARES (THE "CONVERSION RATIO");
PROVIDED, HOWEVER, THAT THE CONVERSION RATIO SHALL BE SUBJECT TO EQUITABLE
ADJUSTMENT IN THE EVENT OF ANY STOCK SPLIT, STOCK DIVIDEND, REVERSE STOCK
SPLIT, OR OTHER CHANGE IN THE NUMBER OF CO-OP SHARES OUTSTANDING
IMMEDIATELY PRIOR TO THE EFFECTIVE TIME. (VI) DISSENTING CO-OP SHARES. EACH
DISSENTING CO-OP SHARE SHALL BE CONVERTED INTO THE RIGHT TO RECEIVE PAYMENT
FROM THE SURVIVING CORPORATION WITH RESPECT THERETO IN ACCORDANCE WITH THE
PROVISIONS OF THE BUSINESS CORPORATION ACT.
(VII) ALL OTHER CO-OP SHARES VOID. NO CO-OP SHARE SHALL BE DEEMED TO
BE OUTSTANDING OR TO HAVE ANY RIGHTS OTHER THAN THOSE DESCRIBED AND
PROVIDED FOR IN 2(D)(V) AND (VI) AT AND AFTER THE EFFECTIVE TIME, AND
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NO OPTION OR WARRANT ON CO-OP SHARES
SHALL HAVE ANY CONTINUING LEGAL VALIDITY AT AND AFTER THE EFFECTIVE TIME.
(VIII) CONVERSION OF ENTERPRISES' CAPITAL STOCK. AT AND AS OF THE EFFECTIVE
TIME, EACH SHARE OF ENTERPRISES' COMMON STOCK, NO PAR VALUE PER SHARE,
SHALL BE CONVERTED INTO ONE SHARE OF SURVIVING CORPORATION'S COMMON STOCK,
PAR VALUE $0.001 PER SHARE.
(E) PROCEDURE FOR PAYMENT.
(I) IMMEDIATELY AFTER THE EFFECTIVE TIME, (A) MOLI WILL FURNISH TO
INTERWEST TRANSFER COMPANY (THE "EXCHANGE AGENT") A STOCK CERTIFICATE (ISSUED IN
THE NAME OF THE EXCHANGE AGENT OR ITS NOMINEE) REPRESENTING THE 18,823,288 MOLI
SHARES TO BE ISSUED TO NON-DISSENTING CO-OP STOCKHOLDERS PURSUANT TO THE
CONVERSION RATIO, AND (B) MOLI WILL CAUSE THE EXCHANGE AGENT TO MAIL A LETTER OF
TRANSMITTAL (WITH INSTRUCTIONS FOR ITS USE) IN THE FORM ATTACHED HERETO AS
EXHIBIT B TO EACH RECORD HOLDER OF OUTSTANDING CO-OP SHARES FOR THE HOLDER TO
USE IN SURRENDERING THE CERTIFICATE(S) WHICH REPRESENTED HIS, HER, OR ITS CO-OP
SHARES IN EXCHANGE FOR ONE OR MORE CERTIFICATES REPRESENTING THE NUMBER OF MOLI
SHARES TO WHICH HE, SHE, OR IT IS ENTITLED. THE MOLI SHARES ISSUED IN THE
MERGER TO THE CO-OP STOCKHOLDERS SHALL BE, WHEN ISSUED, FULLY PAID AND
NON-ASSESSABLE, AND SHALL BE ISSUED IN RELIANCE ON EXEMPTIONS FROM REGISTRATION
UNDER THE SECURITIES ACT AND STATE SECURITIES LAWS, AND WILL BE "RESTRICTED
SECURITIES" WITHIN THE MEANING OF RULE 144 ADOPTED UNDER THE SECURITIES ACT.
(II) MOLI WILL NOT PAY ANY OTHER DIVIDEND OR MAKE ANY OTHER DISTRIBUTION ON
MOLI SHARES (WITH A RECORD DATE AT OR AFTER THE EFFECTIVE TIME) TO ANY RECORD
HOLDER OF OUTSTANDING CO-OP SHARES UNTIL THE HOLDER SURRENDERS FOR EXCHANGE HIS,
HER, OR ITS CERTIFICATES THAT REPRESENTED CO-OP SHARES. BUYER INSTEAD WILL PAY
THE DIVIDEND OR MAKE THE DISTRIBUTION TO THE EXCHANGE AGENT IN TRUST FOR THE
BENEFIT OF THE HOLDER PENDING SURRENDER AND EXCHANGE. IN NO EVENT WILL ANY
HOLDER OF OUTSTANDING CO-OP SHARES BE ENTITLED TO ANY INTEREST OR EARNINGS ON
THE DIVIDEND OR DISTRIBUTION PENDING RECEIPT.
(III) MOLI MAY CAUSE THE EXCHANGE AGENT TO RETURN ANY MOLI SHARES AND
DIVIDENDS AND DISTRIBUTIONS THEREON REMAINING UNCLAIMED 180 DAYS AFTER THE
EFFECTIVE TIME, AND THEREAFTER EACH REMAINING RECORD HOLDER OF OUTSTANDING CO-OP
SHARES SHALL BE ENTITLED TO LOOK TO MOLI (SUBJECT TO ABANDONED PROPERTY,
ESCHEAT, AND OTHER SIMILAR LAWS) AS A GENERAL CREDITOR THEREOF WITH RESPECT TO
THE MOLI SHARES AND DIVIDENDS AND DISTRIBUTIONS THEREON TO WHICH HE, SHE, OR IT
CLAIMS TO BE ENTITLED UPON SURRENDER OF HIS, HER, OR ITS CERTIFICATES.
(F) CLOSING OF CO-OP TRANSFER RECORDS. AFTER THE CLOSE OF BUSINESS ON
THE CLOSING DATE, TRANSFERS OF CO-OP SHARES OUTSTANDING PRIOR TO THE EFFECTIVE
TIME SHALL NOT BE MADE ON THE STOCK TRANSFER BOOKS OF SURVIVING CORPORATION.
(G) ORI DISPOSITION. THE PARTIES AGREE THAT, PRIOR TO OR AS OF THE DAY
IMMEDIATELY PRECEDING THE EFFECTIVE TIME, MOLI SHALL TRANSFER AND ASSIGN ALL OF
ITS ASSETS, RIGHTS, OPTIONS AND LIABILITIES TO ORI UNDER ARRANGEMENTS WHEREBY
ORI EXPRESSLY ASSUMES RESPONSIBILITY FOR ALL ASSUMED MOLI LIABILITIES AND
WHEREBY ORI EXPRESSLY RELEASES AND INDEMNIFIES MOLI AND CO-OP OF ANY AND ALL
LIABILITY OF ANY KIND WHATSOEVER WITH RESPECT TO THE ASSETS, CONTRACTS AND
LIABILITIES THUS TRANSFERRED TO ORI. MOREOVER, ORI WILL EXECUTE AND DELIVER TO
MOLI AND CO-OP AN INDEMNITY AGREEMENT IN THE FORM ATTACHED HERETO AS EXHIBIT C
HOLDING MOLI AND CO-OP HARMLESS FROM ANY COST, CHARGE, CLAIM OR DAMAGES
ASSOCIATED WITH ANY LIABILITY OF MOLI THAT IS TRANSFERRED AND ASSUMED BY ORI.
FOLLOWING THE TRANSFER OF ALL OF ITS PRE-CLOSING ASSETS, RIGHTS AND LIABILITIES
TO ORI AND THE EXECUTION AND DELIVERY OF THE INDEMNITY AGREEMENT, MOLI SHALL
DELIVER TO THE EXCHANGE AGENT ALL OF THE ISSUED AND OUTSTANDING ORI SHARES TO
EFFECT THE ORI DISTRIBUTION. MOLI WILL NOT PAY ANY DIVIDEND OR MAKE ANY
DISTRIBUTION ON MOLI SHARES THAT IS PAID OR PAYABLE IN ORI SHARES (WITH A RECORD
DATE AT OR AFTER THE EFFECTIVE TIME) TO ANY RECORD HOLDER OF OUTSTANDING CO-OP
SHARES.
3. CO-OP'S REPRESENTATIONS AND WARRANTIES. CO-OP MAKES THE REPRESENTATIONS
AND WARRANTIES TO MOLI AND ENTERPRISES CONTAINED IN THIS 3 AS OF THE DATE OF
THIS AGREEMENT AND AS OF THE CLOSING DATE (AS THOUGH MADE THEN AND AS THOUGH THE
CLOSING DATE WERE SUBSTITUTED FOR THE DATE OF THIS AGREEMENT THROUGHOUT THIS
3), EXCEPT AS SET FORTH IN THE DISCLOSURE SCHEDULE ACCOMPANYING THIS AGREEMENT
AND INITIALED BY THE PARTIES (THE "DISCLOSURE SCHEDULE") WITH THE INTENT THAT
MOLI AND ENTERPRISES RELY ON SUCH REPRESENTATIONS AND WARRANTIES IN ENTERING
INTO THIS AGREEMENT AND CONSUMMATING THE TRANSACTIONS CONTEMPLATED HEREBY. THE
DISCLOSURE SCHEDULE WILL BE ARRANGED IN PARAGRAPHS CORRESPONDING TO THE LETTERED
AND NUMBERED PARAGRAPHS CONTAINED IN THIS 3.
(A) ORGANIZATION, QUALIFICATION, AND CORPORATE POWER. CO-OP AND EACH
OF ITS SUBSIDIARIES IS A CORPORATION DULY ORGANIZED, VALIDLY EXISTING, AND IN
GOOD STANDING UNDER THE LAWS OF THE JURISDICTION OF ITS INCORPORATION. CO-OP
AND EACH OF ITS SUBSIDIARIES IS DULY AUTHORIZED TO CONDUCT BUSINESS AND IS IN
GOOD STANDING UNDER THE LAWS OF EACH JURISDICTION WHERE SUCH QUALIFICATION IS
REQUIRED, EXCEPT WHERE THE LACK OF SUCH QUALIFICATION WOULD NOT HAVE A MATERIAL
ADVERSE EFFECT. CO-OP AND EACH OF ITS SUBSIDIARIES HAS FULL CORPORATE POWER AND
AUTHORITY TO CARRY ON THE BUSINESSES IN WHICH IT IS ENGAGED AND TO OWN AND USE
THE PROPERTIES NOW OWNED AND USED BY IT.
(B) CAPITALIZATION. THE ENTIRE AUTHORIZED CAPITAL STOCK OF CO-OP CONSISTS
OF 20,000,000 CO-OP SHARES, OF WHICH 9,411,644 CO-OP SHARES ARE ISSUED AND
OUTSTANDING, AND 5,000,000 SHARES OF PREFERRED STOCK, PAR VALUE $0.001 PER
SHARE, OF WHICH NO SHARES ARE ISSUED AND OUTSTANDING. ALL OF THE ISSUED AND
OUTSTANDING CO-OP SHARES HAVE BEEN DULY AUTHORIZED AND ARE VALIDLY ISSUED, FULLY
PAID, AND NON-ASSESSABLE. THERE ARE NO OUTSTANDING OR AUTHORIZED OPTIONS,
WARRANTS, PURCHASE RIGHTS, SUBSCRIPTION RIGHTS, CONVERSION RIGHTS, EXCHANGE
RIGHTS, OR OTHER CONTRACTS OR COMMITMENTS THAT COULD REQUIRE CO-OP TO ISSUE,
SELL, OR OTHERWISE CAUSE TO BECOME OUTSTANDING ANY OF ITS CAPITAL STOCK. THERE
ARE NO OUTSTANDING OR AUTHORIZED STOCK APPRECIATION, PHANTOM STOCK, PROFIT
PARTICIPATION, OR SIMILAR RIGHTS WITH RESPECT TO CO-OP.
(C) AUTHORIZATION OF TRANSACTION. CO-OP HAS FULL POWER AND AUTHORITY TO
EXECUTE AND DELIVER THIS AGREEMENT AND TO PERFORM ITS OBLIGATIONS HEREUNDER;
PROVIDED, HOWEVER, THAT CO-OP CANNOT CONSUMMATE THE MERGER UNLESS AND UNTIL IT
RECEIVES THE REQUISITE CO-OP STOCKHOLDER APPROVAL. THIS AGREEMENT CONSTITUTES
THE VALID AND LEGALLY BINDING OBLIGATION OF CO-OP, ENFORCEABLE IN ACCORDANCE
WITH ITS TERMS AND CONDITIONS.
(D) NON-CONTRAVENTION. NEITHER THE EXECUTION AND THE DELIVERY OF THIS
AGREEMENT, NOR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY, WILL
(I) TO THE KNOWLEDGE OF ANY DIRECTOR OR OFFICER OF CO-OP, VIOLATE ANY
CONSTITUTION, STATUTE, REGULATION, RULE, INJUNCTION, JUDGMENT, ORDER, DECREE,
RULING, CHARGE, OR OTHER RESTRICTION OF ANY GOVERNMENT, GOVERNMENTAL AGENCY, OR
COURT TO WHICH CO-OP OR ANY OF ITS SUBSIDIARIES IS SUBJECT OR (II) VIOLATE ANY
PROVISION OF THE CHARTER OR BYLAWS OF CO-OP OR ANY OF ITS SUBSIDIARIES OR (III)
CONFLICT WITH, RESULT IN A BREACH OF, CONSTITUTE A DEFAULT UNDER, RESULT IN THE
ACCELERATION OF, CREATE IN ANY PARTY THE RIGHT TO ACCELERATE, TERMINATE, MODIFY,
OR CANCEL, OR REQUIRE ANY NOTICE UNDER ANY AGREEMENT, CONTRACT, LEASE, LICENSE,
INSTRUMENT, OR OTHER ARRANGEMENT TO WHICH CO-OP OR ANY OF ITS SUBSIDIARIES IS A
PARTY OR BY WHICH IT IS BOUND OR TO WHICH ANY OF ITS ASSETS IS SUBJECT (OR
RESULT IN THE IMPOSITION OF ANY LIEN UPON ANY OF ITS ASSETS). TO THE KNOWLEDGE
OF ANY DIRECTOR OR OFFICER OF CO-OP, AND OTHER THAN IN CONNECTION WITH THE
PROVISIONS OF THE BUSINESS CORPORATION ACT, THE SECURITIES EXCHANGE ACT, THE
SECURITIES ACT, AND STATE SECURITIES LAWS, NEITHER CO-OP NOR ANY OF ITS
SUBSIDIARIES NEEDS TO GIVE ANY NOTICE TO, MAKE ANY FILING WITH, OR OBTAIN ANY
AUTHORIZATION, CONSENT, OR APPROVAL OF ANY GOVERNMENT OR GOVERNMENTAL AGENCY IN
ORDER FOR THE PARTIES TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT.
(E) BROKERS' FEES. NEITHER CO-OP NOR ANY OF ITS SUBSIDIARIES HAS ANY
LIABILITY OR OBLIGATION TO PAY ANY FEES OR COMMISSIONS TO ANY BROKER, FINDER, OR
AGENT WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
(F) TITLE TO ASSETS. CO-OP AND ITS SUBSIDIARIES HAVE GOOD AND MARKETABLE
TITLE TO, OR A VALID LEASEHOLD INTEREST IN, THE PROPERTIES AND ASSETS USED BY
THEM, LOCATED ON THEIR PREMISES, OR SHOWN ON THE MOST RECENT BALANCE SHEET OR
ACQUIRED AFTER THE DATE THEREOF, FREE AND CLEAR OF ALL LIENS, EXCEPT FOR
PROPERTIES AND ASSETS DISPOSED OF IN THE ORDINARY COURSE OF BUSINESS SINCE THE
DATE OF THE MOST RECENT BALANCE SHEET.
(G) SUBSIDIARIES. 3(G) OF THE DISCLOSURE SCHEDULE SETS FORTH FOR EACH
SUBSIDIARY OF CO-OP (I) ITS NAME AND JURISDICTION OF INCORPORATION, (II) THE
NUMBER OF SHARES OF AUTHORIZED CAPITAL STOCK OF EACH CLASS OF ITS CAPITAL STOCK,
(III) THE NUMBER OF ISSUED AND OUTSTANDING SHARES OF EACH CLASS OF ITS CAPITAL
STOCK, THE NAMES OF THE HOLDERS THEREOF, AND THE NUMBER OF SHARES HELD BY EACH
SUCH HOLDER, AND (IV) THE NUMBER OF SHARES OF ITS CAPITAL STOCK HELD IN
TREASURY. ALL OF THE ISSUED AND OUTSTANDING SHARES OF CAPITAL STOCK OF EACH
SUBSIDIARY OF CO-OP HAVE BEEN DULY AUTHORIZED AND ARE VALIDLY ISSUED, FULLY
PAID, AND NON-ASSESSABLE. CO-OP OR ONE OR MORE OF ITS SUBSIDIARIES HOLDS OF
RECORD AND OWNS BENEFICIALLY ALL OF THE OUTSTANDING SHARES OF EACH SUBSIDIARY OF
CO-OP, FREE AND CLEAR OF ANY RESTRICTIONS ON TRANSFER (OTHER THAN RESTRICTIONS
UNDER THE SECURITIES ACT AND STATE SECURITIES LAWS), LIENS, OPTIONS, WARRANTS,
PURCHASE RIGHTS, CONTRACTS, COMMITMENTS, EQUITIES, CLAIMS, AND DEMANDS. THERE
ARE NO OUTSTANDING OR AUTHORIZED OPTIONS, WARRANTS, PURCHASE RIGHTS,
SUBSCRIPTION RIGHTS, CONVERSION RIGHTS, EXCHANGE RIGHTS, OR OTHER CONTRACTS OR
COMMITMENTS THAT COULD REQUIRE ANY OF CO-OP AND ITS SUBSIDIARIES TO SELL,
TRANSFER, OR OTHERWISE DISPOSE OF ANY CAPITAL STOCK OF ANY OF ITS SUBSIDIARIES
OR THAT COULD REQUIRE ANY SUBSIDIARY OF CO-OP TO ISSUE, SELL, OR OTHERWISE CAUSE
TO BECOME OUTSTANDING ANY OF ITS OWN CAPITAL STOCK. THERE ARE NO OUTSTANDING
STOCK APPRECIATION, PHANTOM STOCK, PROFIT PARTICIPATION, OR SIMILAR RIGHTS WITH
RESPECT TO ANY SUBSIDIARY OF CO-OP. THERE ARE NO VOTING TRUSTS, PROXIES, OR
OTHER AGREEMENTS OR UNDERSTANDINGS WITH RESPECT TO THE VOTING OF ANY CAPITAL
STOCK OF ANY SUBSIDIARY OF CO-OP. NEITHER CO-OP NOR ANY OF ITS SUBSIDIARIES
CONTROLS DIRECTLY OR INDIRECTLY OR HAS ANY DIRECT OR INDIRECT EQUITY
PARTICIPATION IN ANY CORPORATION, PARTNERSHIP, TRUST, OR OTHER BUSINESS
ASSOCIATION, WHICH IS NOT A SUBSIDIARY OF CO-OP. EXCEPT FOR THE SUBSIDIARIES
SET FORTH IN 3(G) OF THE DISCLOSURE SCHEDULE, NEITHER CO-OP NOR ANY OF ITS
SUBSIDIARIES OWNS OR HAS ANY RIGHT TO ACQUIRE, DIRECTLY OR INDIRECTLY, ANY
OUTSTANDING CAPITAL STOCK OF, OR OTHER EQUITY INTERESTS IN, ANY PERSON.
(H) FINANCIAL STATEMENTS. ON OR BEFORE FEBRUARY 29, 2004, CO-OP WILL
DELIVER TO MOLI AS 3(H) OF THE DISCLOSURE SCHEDULE THE FOLLOWING FINANCIAL
STATEMENTS (COLLECTIVELY THE "FINANCIAL STATEMENTS"): (I) AN AUDITED
CONSOLIDATED BALANCE SHEET FOR CO-OP AS OF DECEMBER 31, 2003 (THE "MOST RECENT
FISCAL YEAR END"); AND (II) AUDITED CONSOLIDATED STATEMENTS OF INCOME, CHANGES
IN STOCKHOLDERS' EQUITY, AND CASH FLOWS OF CO-OP FOR EACH YEAR IN THE TWO YEAR
PERIOD ENDED DECEMBER 31, 2003. THE FINANCIAL STATEMENTS (INCLUDING THE NOTES
THERETO) WILL BE PREPARED IN ACCORDANCE WITH GAAP APPLIED ON A CONSISTENT BASIS
THROUGHOUT THE PERIODS COVERED THEREBY, PRESENT FAIRLY THE FINANCIAL CONDITION
OF CO-OP AND ITS SUBSIDIARIES AS OF SUCH DATES AND THE RESULTS OF OPERATIONS OF
CO-OP AND ITS SUBSIDIARIES FOR SUCH PERIODS, WILL BE CORRECT AND COMPLETE, AND
WILL BE CONSISTENT WITH THE BOOKS AND RECORDS OF CO-OP AND ITS SUBSIDIARIES
(WHICH BOOKS AND RECORDS ARE CORRECT AND COMPLETE).
(I) EVENTS SUBSEQUENT TO MOST RECENT FISCAL YEAR END. SINCE THE MOST RECENT
FISCAL YEAR END AND EXCEPT AS DISCLOSED IN 3(J) OF THE DISCLOSURE SCHEDULE,
THERE HAS NOT BEEN ANY MATERIAL ADVERSE CHANGE. WITHOUT LIMITING THE GENERALITY
OF THE FOREGOING, SINCE THAT DATE:
(I) NEITHER CO-OP NOR ANY OF ITS SUBSIDIARIES HAS SOLD, LEASED,
TRANSFERRED, OR ASSIGNED ANY OF ITS ASSETS, TANGIBLE OR INTANGIBLE, OTHER THAN
FOR A FAIR CONSIDERATION IN THE ORDINARY COURSE OF BUSINESS;
(II) NEITHER CO-OP NOR ANY OF ITS SUBSIDIARIES HAS ENTERED INTO ANY
AGREEMENT, CONTRACT, LEASE, OR LICENSE (OR SERIES OF RELATED AGREEMENTS,
CONTRACTS, LEASES, AND LICENSES) EITHER INVOLVING MORE THAN $5,000 OR OUTSIDE
THE ORDINARY COURSE OF BUSINESS;
(III) NO PARTY (INCLUDING CO-OP AND ANY OF ITS SUBSIDIARIES) HAS
ACCELERATED, TERMINATED, MODIFIED, OR CANCELLED ANY AGREEMENT, CONTRACT, LEASE,
OR LICENSE (OR SERIES OF RELATED AGREEMENTS, CONTRACTS, LEASES, AND LICENSES)
INVOLVING MORE THAN $5,000 TO WHICH CO-OP OR ANY OF ITS SUBSIDIARIES IS A PARTY
OR BY WHICH ANY OF THEM IS BOUND;
(IV) NEITHER CO-OP NOR ANY OF ITS SUBSIDIARIES HAS IMPOSED ANY LIENS UPON
ANY OF ITS ASSETS, TANGIBLE OR INTANGIBLE;
(V) NEITHER CO-OP NOR ANY OF ITS SUBSIDIARIES HAS MADE ANY CAPITAL
EXPENDITURE (OR SERIES OF RELATED CAPITAL EXPENDITURES) EITHER INVOLVING MORE
THAN $5,000 OR OUTSIDE THE ORDINARY COURSE OF BUSINESS;
(VI) NEITHER CO-OP NOR ANY OF ITS SUBSIDIARIES HAS MADE ANY CAPITAL
INVESTMENT IN, ANY LOAN TO, OR ANY ACQUISITION OF THE SECURITIES OR ASSETS OF,
ANY OTHER PERSON (OR SERIES OF RELATED CAPITAL INVESTMENTS, LOANS, AND
ACQUISITIONS) EITHER INVOLVING MORE THAN $5,000 OR OUTSIDE THE ORDINARY COURSE
OF BUSINESS;
(VII) NEITHER CO-OP NOR ANY OF ITS SUBSIDIARIES HAS ISSUED ANY NOTE, BOND,
OR OTHER DEBT SECURITY OR CREATED, INCURRED, ASSUMED, OR GUARANTEED ANY
INDEBTEDNESS FOR BORROWED MONEY OR CAPITALIZED LEASE OBLIGATION EITHER INVOLVING
MORE THAN $5,000 SINGLY OR $15,000 IN THE AGGREGATE;
(VIII) NEITHER CO-OP NOR ANY OF ITS SUBSIDIARIES HAS DELAYED OR POSTPONED
THE PAYMENT OF ACCOUNTS PAYABLE AND OTHER LIABILITIES OUTSIDE THE ORDINARY
COURSE OF BUSINESS;
(IX) NEITHER CO-OP NOR ANY OF ITS SUBSIDIARIES HAS CANCELLED, COMPROMISED,
WAIVED, OR RELEASED ANY RIGHT OR CLAIM (OR SERIES OF RELATED RIGHTS AND CLAIMS)
EITHER INVOLVING MORE THAN $5,000 OR OUTSIDE THE ORDINARY COURSE OF BUSINESS;
(X) THERE HAS BEEN NO CHANGE MADE OR AUTHORIZED IN THE CHARTER OR BYLAWS OF
ANY OF CO-OP AND ITS SUBSIDIARIES;
(XI) NEITHER CO-OP NOR ANY OF ITS SUBSIDIARIES HAS DECLARED, SET ASIDE, OR
PAID ANY DIVIDEND OR MADE ANY DISTRIBUTION WITH RESPECT TO ITS CAPITAL STOCK
(WHETHER IN CASH OR IN KIND) OR REDEEMED, PURCHASED, OR OTHERWISE ACQUIRED ANY
OF ITS CAPITAL STOCK;
(XII) NEITHER CO-OP NOR ANY OF ITS SUBSIDIARIES HAS EXPERIENCED ANY DAMAGE,
DESTRUCTION, OR LOSS (WHETHER OR NOT COVERED BY INSURANCE) TO ITS PROPERTY;
(XIII) NEITHER CO-OP NOR ANY OF ITS SUBSIDIARIES HAS MADE ANY LOAN TO, OR
ENTERED INTO ANY OTHER TRANSACTION WITH, ANY OF ITS DIRECTORS, OFFICERS, AND
EMPLOYEES OUTSIDE THE ORDINARY COURSE OF BUSINESS;
(XIV) NEITHER CO-OP NOR ANY OF ITS SUBSIDIARIES HAS ENTERED INTO ANY
EMPLOYMENT CONTRACT OR COLLECTIVE BARGAINING AGREEMENT, WRITTEN OR ORAL, OR
MODIFIED THE TERMS OF ANY EXISTING SUCH CONTRACT OR AGREEMENT;
(XV) NEITHER CO-OP NOR ANY OF ITS SUBSIDIARIES HAS GRANTED ANY INCREASE IN
THE BASE COMPENSATION OF, OR MADE ANY OTHER CHANGE IN EMPLOYMENT TERMS FOR, ANY
OF ITS DIRECTORS, OFFICERS, AND EMPLOYEES OUTSIDE THE ORDINARY COURSE OF
BUSINESS; AND
(XVI) NEITHER CO-OP NOR ANY OF ITS SUBSIDIARIES HAS COMMITTED TO ANY OF THE
FOREGOING.
(J) UNDISCLOSED LIABILITIES. NEITHER CO-OP NOR ANY OF ITS SUBSIDIARIES
HAS ANY LIABILITY (AND, TO THEIR KNOWLEDGE, THERE IS NO BASIS FOR ANY PRESENT OR
FUTURE ACTION, SUIT, PROCEEDING, HEARING, INVESTIGATION, CHARGE, COMPLAINT,
CLAIM, OR DEMAND AGAINST ANY OF THEM GIVING RISE TO ANY LIABILITY) INCLUDING
LIABILITY FOR TAXES, EXCEPT FOR (I) LIABILITIES SET FORTH ON THE FACE OF THE
MOST RECENT BALANCE SHEET (RATHER THAN IN ANY NOTES THERETO), (II) LIABILITIES
DISCLOSED IN 3(J) OF THE DISCLOSURE SCHEDULE AND (II) LIABILITIES WHICH HAVE
ARISEN AFTER THE MOST RECENT FISCAL YEAR END IN THE ORDINARY COURSE OF BUSINESS
(NONE OF WHICH RESULTS FROM, ARISES OUT OF, RELATES TO, IS IN THE NATURE OF, OR
WAS CAUSED BY ANY BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, INFRINGEMENT, OR
VIOLATION OF LAW).
(K) LEGAL COMPLIANCE. CO-OP, EACH OF ITS SUBSIDIARIES, AND THEIR RESPECTIVE
PREDECESSORS AND AFFILIATES HAVE COMPLIED WITH ALL APPLICABLE LAWS (INCLUDING
RULES, REGULATIONS, CODES, PLANS, INJUNCTIONS, JUDGMENTS, ORDERS, DECREES,
RULINGS, AND CHARGES THERE UNDER AND INCLUDING THE FOREIGN CORRUPT PRACTICES
ACT, 15 U.S.C. 78DD-1 ET SEQ.) OF FEDERAL, STATE, LOCAL, AND FOREIGN GOVERNMENTS
(AND ALL AGENCIES THEREOF), AND NO ACTION, SUIT, PROCEEDING, HEARING,
INVESTIGATION, CHARGE, COMPLAINT, CLAIM, DEMAND, OR NOTICE HAS BEEN FILED OR
COMMENCED AGAINST ANY OF THEM ALLEGING ANY FAILURE SO TO COMPLY.
(L) TAX MATTERS.
(I) CO-OP AND EACH OF ITS SUBSIDIARIES HAVE FILED ALL TAX RETURNS THAT
THEY WERE REQUIRED TO FILE UNDER APPLICABLE LAWS AND REGULATIONS. ALL SUCH TAX
RETURNS WERE CORRECT AND COMPLETE IN ALL RESPECTS AND HAVE BEEN PREPARED IN
SUBSTANTIAL COMPLIANCE WITH ALL APPLICABLE LAWS AND REGULATIONS. ALL TAXES DUE
AND OWING BY CO-OP OR ANY ITS SUBSIDIARIES (WHETHER OR NOT SHOWN ON ANY TAX
RETURN) HAVE BEEN PAID. NEITHER CO-OP NOR ANY OF ITS SUBSIDIARIES CURRENTLY IS
THE BENEFICIARY OF ANY EXTENSION OF TIME WITHIN WHICH TO FILE ANY TAX RETURN.
NO CLAIM HAS EVER BEEN MADE BY AN AUTHORITY IN A JURISDICTION WHERE CO-OP OR ANY
OF ITS SUBSIDIARIES DOES NOT FILE TAX RETURNS THAT IT IS OR MAY BE SUBJECT TO
TAXATION BY THAT JURISDICTION. THERE ARE NO LIENS FOR TAXES (OTHER THAN TAXES
NOT YET DUE AND PAYABLE) UPON ANY OF THE ASSETS OF CO-OP OR ANY OF ITS
SUBSIDIARIES.
(II) CO-OP AND EACH OF ITS SUBSIDIARIES HAVE WITHHELD AND PAID ALL TAXES
REQUIRED TO HAVE BEEN WITHHELD AND PAID IN CONNECTION WITH ANY AMOUNTS PAID OR
OWING TO ANY EMPLOYEE, INDEPENDENT CONTRACTOR, CREDITOR, STOCKHOLDER, OR OTHER
THIRD PARTY.
(M) INTELLECTUAL PROPERTY.
(I) CO-OP AND ITS SUBSIDIARIES OWN AND POSSESS OR HAVE THE RIGHT TO USE
PURSUANT TO A VALID AND ENFORCEABLE, WRITTEN LICENSE, SUBLICENSE, AGREEMENT, OR
PERMISSION ALL INTELLECTUAL PROPERTY NECESSARY FOR THE OPERATION OF THE
BUSINESSES OF CO-OP AND ITS SUBSIDIARIES AS PRESENTLY CONDUCTED AND AS PRESENTLY
PROPOSED TO BE CONDUCTED. EACH ITEM OF INTELLECTUAL PROPERTY OWNED OR USED BY
CO-OP OR ANY OF ITS SUBSIDIARIES IMMEDIATELY PRIOR TO THE CLOSING HEREUNDER WILL
BE OWNED OR AVAILABLE FOR USE BY CO-OP OR ITS SUBSIDIARIES ON IDENTICAL TERMS
AND CONDITIONS IMMEDIATELY SUBSEQUENT TO THE CLOSING HEREUNDER. CO-OP AND EACH
OF ITS SUBSIDIARIES HAVE TAKEN ALL NECESSARY ACTION TO MAINTAIN AND PROTECT EACH
ITEM OF INTELLECTUAL PROPERTY THAT THEY OWN OR USE.
(II) NEITHER CO-OP NOR ANY OF ITS SUBSIDIARIES HAS INTERFERED WITH,
INFRINGED UPON, MISAPPROPRIATED, OR OTHERWISE COME INTO CONFLICT WITH ANY
INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, AND NONE OF THE DIRECTORS AND
OFFICERS (AND EMPLOYEES WITH RESPONSIBILITY FOR INTELLECTUAL PROPERTY MATTERS)
OF CO-OP OR ANY OF ITS SUBSIDIARIES HAS EVER RECEIVED ANY CHARGE, COMPLAINT,
CLAIM, DEMAND, OR NOTICE ALLEGING ANY SUCH INTERFERENCE, INFRINGEMENT,
MISAPPROPRIATION, OR VIOLATION (INCLUDING ANY CLAIM THAT CO-OP OR ANY OF ITS
SUBSIDIARIES MUST LICENSE OR REFRAIN FROM USING ANY INTELLECTUAL PROPERTY RIGHTS
OF ANY THIRD PARTY). TO THE KNOWLEDGE OF ANY OF THE DIRECTORS AND OFFICERS (AND
EMPLOYEES WITH RESPONSIBILITY FOR INTELLECTUAL PROPERTY MATTERS) OF CO-OP AND
ITS SUBSIDIARIES, NO THIRD PARTY HAS INTERFERED WITH, INFRINGED UPON,
MISAPPROPRIATED, OR OTHERWISE COME INTO CONFLICT WITH ANY INTELLECTUAL PROPERTY
RIGHTS OF CO-OP OR ANY OF ITS SUBSIDIARIES.
(N) LITIGATION. 3(N) OF THE DISCLOSURE SCHEDULE SETS FORTH EACH
INSTANCE IN WHICH CO-OP, ANY OF ITS SUBSIDIARIES, OR ANY OF THEIR RESPECTIVE
DIRECTORS (I) IS SUBJECT TO ANY OUTSTANDING INJUNCTION, JUDGMENT, ORDER, DECREE,
RULING, OR CHARGE OR (II) IS A PARTY OR, TO THE KNOWLEDGE OF ANY OF DIRECTORS
AND OFFICERS (AND EMPLOYEES WITH RESPONSIBILITY FOR LITIGATION MATTERS) OF CO-OP
AND ITS SUBSIDIARIES, IS THREATENED TO BE MADE A PARTY TO ANY ACTION, SUIT,
PROCEEDING, HEARING, OR INVESTIGATION OF, IN, OR BEFORE ANY COURT OR
QUASI-JUDICIAL OR ADMINISTRATIVE AGENCY OF ANY FEDERAL, STATE, LOCAL, OR FOREIGN
JURISDICTION OR BEFORE ANY ARBITRATOR. NONE OF THE ACTIONS, SUITS, PROCEEDINGS,
HEARINGS, AND INVESTIGATIONS SET FORTH IN 3(N) OF THE DISCLOSURE SCHEDULE COULD
RESULT IN ANY MATERIAL ADVERSE CHANGE. NONE OF THE DIRECTORS AND OFFICERS (AND
EMPLOYEES WITH RESPONSIBILITY FOR LITIGATION MATTERS) OF CO-OP AND ITS
SUBSIDIARIES HAS ANY REASON TO BELIEVE THAT ANY SUCH ACTION, SUIT, PROCEEDING,
HEARING, OR INVESTIGATION MAY BE BROUGHT OR THREATENED AGAINST CO-OP OR ANY OF
ITS SUBSIDIARIES OR THAT THERE IS ANY BASIS FOR THE FOREGOING.
(O) EMPLOYEES. TO THE KNOWLEDGE OF ANY OF THE DIRECTORS AND OFFICERS (AND
EMPLOYEES WITH RESPONSIBILITY FOR EMPLOYMENT MATTERS) OF CO-OP AND ITS
SUBSIDIARIES, NO EXECUTIVE, KEY EMPLOYEE, OR GROUP OF EMPLOYEES HAS ANY PLANS TO
TERMINATE EMPLOYMENT WITH CO-OP OR ANY OF ITS SUBSIDIARIES. NEITHER CO-OP NOR
ANY OF ITS SUBSIDIARIES IS A PARTY TO OR BOUND BY ANY COLLECTIVE BARGAINING
AGREEMENT, NOR HAVE ANY OF THEM EXPERIENCED ANY STRIKES, GRIEVANCES, CLAIMS OF
UNFAIR LABOR PRACTICES, OR OTHER COLLECTIVE BARGAINING DISPUTES. NEITHER CO-OP
NOR ANY OF ITS SUBSIDIARIES HAS COMMITTED ANY UNFAIR LABOR PRACTICE. NONE OF
THE DIRECTORS AND OFFICERS (AND EMPLOYEES WITH RESPONSIBILITY FOR EMPLOYMENT
MATTERS) OF CO-OP AND ITS SUBSIDIARIES HAS ANY KNOWLEDGE OF ANY ORGANIZATIONAL
EFFORT PRESENTLY BEING MADE OR THREATENED BY OR ON BEHALF OF ANY LABOR UNION
WITH RESPECT TO EMPLOYEES OF CO-OP OR ANY OF ITS SUBSIDIARIES.
(P) EMPLOYEE BENEFITS. NONE OF CO-OP AND ITS SUBSIDIARIES HAS EVER
ESTABLISHED OR MAINTAINED ANY "EMPLOYEE BENEFIT PLAN" (AS SUCH TERM IS DEFINED
IN 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED) AND
ANY OTHER EMPLOYEE BENEFIT PLAN, PROGRAM OR ARRANGEMENT OF ANY KIND.
(Q) CERTAIN BUSINESS RELATIONSHIPS WITH CO-OP AND ITS SUBSIDIARIES. NONE OF
CO-OP'S AND ITS SUBSIDIARIES' DIRECTORS, OFFICERS, EMPLOYEES, AND SHAREHOLDERS,
OR THEIR RESPECTIVE AFFILIATES, HAS BEEN INVOLVED IN ANY BUSINESS ARRANGEMENT OR
RELATIONSHIP WITH CO-OP OR ANY OF ITS SUBSIDIARIES WITHIN THE PAST 12 MONTHS,
AND NONE OF CO-OP'S AND ITS SUBSIDIARIES' DIRECTORS, OFFICERS, EMPLOYEES, AND
SHAREHOLDERS, OR THEIR RESPECTIVE AFFILIATES, OWNS ANY ASSET, TANGIBLE OR
INTANGIBLE, WHICH IS USED IN THE BUSINESS OF CO-OP OR ANY OF ITS SUBSIDIARIES.
(R) DISCLOSURE. THE DEFINITIVE INFORMATION STATEMENT WILL COMPLY WITH THE
DISCLOSURE REQUIREMENTS SET FORTH IN REGULATION 14C AND SCHEDULE 14C ADOPTED
UNDER THE SECURITIES EXCHANGE ACT IN ALL MATERIAL RESPECTS. THE DEFINITIVE
INFORMATION STATEMENT WILL NOT CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL FACT
OR OMIT TO STATE A MATERIAL FACT NECESSARY IN ORDER TO MAKE THE STATEMENTS MADE
THEREIN, IN THE LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WILL BE MADE, NOT
MISLEADING; PROVIDED, HOWEVER, THAT CO-OP MAKES NO REPRESENTATION OR WARRANTY
WITH RESPECT TO ANY INFORMATION THAT MOLI AND ENTERPRISES WILL SUPPLY
SPECIFICALLY FOR USE IN THE DEFINITIVE INFORMATION STATEMENTS.
(S) DISCLOSURE. THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS 4 DO
NOT CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO STATE ANY
MATERIAL FACT NECESSARY IN ORDER TO MAKE THE STATEMENTS AND INFORMATION
CONTAINED IN THIS 4 NOT MISLEADING.
4. MOLI'S AND ENTERPRISES' REPRESENTATIONS AND WARRANTIES. EACH OF
MOLI AND ENTERPRISES, MAKES THE REPRESENTATIONS AND WARRANTIES TO CO-OP
CONTAINED IN THIS 4 AS OF THE DATE OF THIS AGREEMENT AND AS OF THE CLOSING DATE
(AS THOUGH MADE THEN AND AS THOUGH THE CLOSING DATE WERE SUBSTITUTED FOR THE
DATE OF THIS AGREEMENT THROUGHOUT THIS 4), EXCEPT AS SET FORTH IN THE
DISCLOSURE SCHEDULE WITH THE INTENT THAT CO-OP RELY ON SUCH REPRESENTATIONS AND
WARRANTIES IN ENTERING INTO THIS AGREEMENT AND CONSUMMATING THE TRANSACTIONS
CONTEMPLATED HEREBY. THE DISCLOSURE SCHEDULE WILL BE ARRANGED IN PARAGRAPHS
CORRESPONDING TO THE NUMBERED AND LETTERED PARAGRAPHS CONTAINED IN THIS 4.
(A) ORGANIZATION. EACH OF MOLI AND ENTERPRISES IS A CORPORATION DULY
ORGANIZED, VALIDLY EXISTING, AND IN GOOD STANDING UNDER THE LAWS OF THE
JURISDICTION OF ITS INCORPORATION.
(B) CAPITALIZATION. THE ENTIRE AUTHORIZED CAPITAL STOCK OF MOLI CONSISTS OF
50,000,000 MOLI SHARES, OF WHICH 2,326,474 MOLI SHARES ARE ISSUED AND
OUTSTANDING, AND 10,000,000 SHARES OF PREFERRED STOCK, NO PAR VALUE, OF WHICH NO
SHARES ARE ISSUED AND OUTSTANDING. ALL OF THE ISSUED AND OUTSTANDING MOLI
SHARES HAVE BEEN DULY AUTHORIZED AND ARE VALIDLY ISSUED, FULLY PAID, AND
NON-ASSESSABLE. EXCEPT AS SET FORTH IN 4(B) OF THE DISCLOSURE SCHEDULE, THERE
ARE NO OUTSTANDING OR AUTHORIZED OPTIONS, WARRANTS, PURCHASE RIGHTS,
SUBSCRIPTION RIGHTS, CONVERSION RIGHTS, EXCHANGE RIGHTS, OR OTHER CONTRACTS OR
COMMITMENTS THAT COULD REQUIRE MOLI TO ISSUE, SELL, OR OTHERWISE CAUSE TO BECOME
OUTSTANDING ANY OF ITS CAPITAL STOCK. THERE ARE NO OUTSTANDING OR AUTHORIZED
STOCK APPRECIATION, PHANTOM STOCK, PROFIT PARTICIPATION, OR SIMILAR RIGHTS WITH
RESPECT TO MOLI.
(C) AUTHORIZATION OF TRANSACTION. EACH OF MOLI AND ENTERPRISES HAS FULL
POWER AND AUTHORITY (INCLUDING FULL CORPORATE OR OTHER ENTITY POWER AND
AUTHORITY) TO EXECUTE AND DELIVER THIS AGREEMENT AND TO PERFORM ITS OBLIGATIONS
HEREUNDER. THIS AGREEMENT CONSTITUTES THE VALID AND LEGALLY BINDING OBLIGATION
OF EACH OF MOLI AND ENTERPRISES, ENFORCEABLE IN ACCORDANCE WITH ITS TERMS AND
CONDITIONS.
(D) NON-CONTRAVENTION. NEITHER THE EXECUTION AND THE DELIVERY OF THIS
AGREEMENT, NOR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY, WILL
(I) TO THE KNOWLEDGE OF ANY DIRECTOR OR OFFICER OF MOLI, VIOLATE ANY
CONSTITUTION, STATUTE, REGULATION, RULE, INJUNCTION, JUDGMENT, ORDER, DECREE,
RULING, CHARGE, OR OTHER RESTRICTION OF ANY GOVERNMENT, GOVERNMENTAL AGENCY, OR
COURT TO WHICH EITHER MOLI OR ENTERPRISES IS SUBJECT OR (II) VIOLATE ANY
PROVISION OF THE CHARTER, BYLAWS, OR OTHER GOVERNING DOCUMENTS OF EITHER MOLI OR
ENTERPRISES OR (III) CONFLICT WITH, RESULT IN A BREACH OF, CONSTITUTE A DEFAULT
UNDER, RESULT IN THE ACCELERATION OF, CREATE IN ANY PARTY THE RIGHT TO
ACCELERATE, TERMINATE, MODIFY, OR CANCEL, OR REQUIRE ANY NOTICE UNDER ANY
AGREEMENT, CONTRACT, LEASE, LICENSE, INSTRUMENT, OR OTHER ARRANGEMENT TO WHICH
EITHER MOLI OR ENTERPRISES IS A PARTY OR BY WHICH IT IS BOUND OR TO WHICH ANY OF
ITS ASSETS IS SUBJECT. TO THE KNOWLEDGE OF ANY DIRECTOR OR OFFICER OF MOLI, AND
OTHER THAN IN CONNECTION WITH THE PROVISIONS OF THE BUSINESS CORPORATION ACT,
THE SECURITIES EXCHANGE ACT, THE SECURITIES ACT, AND STATE SECURITIES LAWS,
NEITHER MOLI NOR ENTERPRISES NEEDS TO GIVE ANY NOTICE TO, MAKE ANY FILING WITH,
OR OBTAIN ANY AUTHORIZATION, CONSENT, OR APPROVAL OF ANY GOVERNMENT OR
GOVERNMENTAL AGENCY IN ORDER FOR THE PARTIES TO CONSUMMATE THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT.
(E) BROKERS' FEES. NEITHER MOLI NOR ENTERPRISES HAS ANY LIABILITY OR
OBLIGATION TO PAY ANY FEES OR COMMISSIONS TO ANY BROKER, FINDER, OR AGENT WITH
RESPECT TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT FOR WHICH CO-OP OR
ANY OF ITS SUBSIDIARIES COULD BECOME LIABLE OR OBLIGATED.
(F) FILINGS WITH SEC. MOLI HAS MADE ALL FILINGS WITH SEC THAT IT HAS BEEN
REQUIRED TO MAKE WITHIN THE PAST THREE YEARS UNDER THE SECURITIES ACT AND THE
SECURITIES EXCHANGE ACT (COLLECTIVELY THE "PUBLIC REPORTS"). EACH OF THE PUBLIC
REPORTS HAS COMPLIED WITH THE SECURITIES ACT AND THE SECURITIES EXCHANGE ACT IN
ALL MATERIAL RESPECTS. NONE OF THE PUBLIC REPORTS, AS OF THEIR RESPECTIVE
DATES, CONTAINED ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMITTED TO STATE A
MATERIAL FACT NECESSARY IN ORDER TO MAKE THE STATEMENTS MADE THEREIN, IN LIGHT
OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING. MOLI HAS
DELIVERED TO CO-OP A CORRECT AND COMPLETE COPY OF EACH PUBLIC REPORT FILED WITH
THE SEC SINCE JANUARY 1, 2003 (TOGETHER WITH ALL EXHIBITS AND SCHEDULES THERETO
AND AS AMENDED TO DATE).
(G) FINANCIAL STATEMENTS. MOLI HAS FILED QUARTERLY REPORTS ON FORM 10-QSB
FOR THE FISCAL QUARTERS ENDED SEPTEMBER 30, 2003 (THE "MOST RECENT FISCAL
QUARTER END"), JUNE 30, 2003, AND MARCH 31, 2003 AND AN ANNUAL REPORT ON FORM
10-KSB FOR THE FISCAL YEAR ENDED DECEMBER 31, 2002. THE FINANCIAL STATEMENTS
INCLUDED IN OR INCORPORATED BY REFERENCE INTO THESE PUBLIC REPORTS (INCLUDING
THE RELATED NOTES AND SCHEDULES) HAVE BEEN PREPARED IN ACCORDANCE WITH GAAP
APPLIED ON A CONSISTENT BASIS THROUGHOUT THE PERIODS COVERED THEREBY, PRESENT
FAIRLY THE FINANCIAL CONDITION OF MOLI AND ITS SUBSIDIARIES AS OF THE INDICATED
DATES AND THE RESULTS OF OPERATIONS OF MOLI AND ITS SUBSIDIARIES FOR THE
INDICATED PERIODS, ARE CORRECT AND COMPLETE IN ALL RESPECTS, AND ARE CONSISTENT
WITH THE BOOKS AND RECORDS OF MOLI AND ITS SUBSIDIARIES.
(H) EVENTS SUBSEQUENT TO MOST RECENT FISCAL QUARTER END. SINCE THE MOST
RECENT FISCAL QUARTER END, THERE HAS NOT BEEN ANY MATERIAL ADVERSE CHANGE.
(I) UNDISCLOSED LIABILITIES. NEITHER MOLI NOR ANY OF ITS SUBSIDIARIES HAS
ANY LIABILITY (AND, TO THEIR KNOWLEDGE, THERE IS NO BASIS FOR ANY PRESENT OR
FUTURE ACTION, SUIT, PROCEEDING, HEARING, INVESTIGATION, CHARGE, COMPLAINT,
CLAIM, OR DEMAND AGAINST ANY OF THEM GIVING RISE TO ANY LIABILITY), INCLUDING
ANY LIABILITY FOR TAXES, EXCEPT FOR (I) LIABILITIES SET FORTH ON THE FACE OF THE
BALANCE SHEET DATED AS OF THE MOST RECENT FISCAL QUARTER END (RATHER THAN IN ANY
NOTES THERETO), (II) LIABILITIES ARISING FORM OR INCIDENT TO HE NEGOTIATION AND
EXECUTION OF THIS AGREEMENT AND CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED
HEREBY, AND (III) LIABILITIES WHICH HAVE ARISEN AFTER THE MOST RECENT FISCAL
QUARTER END IN THE ORDINARY COURSE OF BUSINESS (NONE OF WHICH RESULTS FROM,
ARISES OUT OF, RELATES TO, IS IN THE NATURE OF, OR WAS CAUSED BY ANY BREACH OF
CONTRACT, BREACH OF WARRANTY, TORT, INFRINGEMENT, OR VIOLATION OF LAW).
(J) LEGAL COMPLIANCE. MOLI AND ENTERPRISES AND THEIR RESPECTIVE
PREDECESSORS AND AFFILIATES HAVE COMPLIED WITH ALL APPLICABLE LAWS (INCLUDING
RULES, REGULATIONS, CODES, PLANS, INJUNCTIONS, JUDGMENTS, ORDERS, DECREES,
RULINGS, AND CHARGES THERE UNDER AND INCLUDING THE FOREIGN CORRUPT PRACTICES
ACT, 15 U.S.C. 78DD-1 ET SEQ.) OF FEDERAL, STATE, LOCAL, AND FOREIGN GOVERNMENTS
(AND ALL AGENCIES THEREOF), AND NO ACTION, SUIT, PROCEEDING, HEARING,
INVESTIGATION, CHARGE, COMPLAINT, CLAIM, DEMAND, OR NOTICE HAS BEEN FILED OR
COMMENCED AGAINST ANY OF THEM ALLEGING ANY FAILURE SO TO COMPLY.
(K) TAX MATTERS.
(I) MOLI AND EACH OF ITS SUBSIDIARIES HAVE FILED ALL TAX RETURNS THAT
THEY WERE REQUIRED TO FILE UNDER APPLICABLE LAWS AND REGULATIONS. ALL SUCH TAX
RETURNS WERE CORRECT AND COMPLETE IN ALL RESPECTS AND HAVE BEEN PREPARED IN
SUBSTANTIAL COMPLIANCE WITH ALL APPLICABLE LAWS AND REGULATIONS. ALL TAXES DUE
AND OWING BY MOLI OR ANY ITS SUBSIDIARIES (WHETHER OR NOT SHOWN ON ANY TAX
RETURN) HAVE BEEN PAID. NEITHER MOLI NOR ANY OF ITS SUBSIDIARIES CURRENTLY IS
THE BENEFICIARY OF ANY EXTENSION OF TIME WITHIN WHICH TO FILE ANY TAX RETURN.
NO CLAIM HAS EVER BEEN MADE BY AN AUTHORITY IN A JURISDICTION WHERE MOLI OR ANY
OF ITS SUBSIDIARIES DOES NOT FILE TAX RETURNS THAT IT IS OR MAY BE SUBJECT TO
TAXATION BY THAT JURISDICTION. THERE ARE NO LIENS FOR TAXES (OTHER THAN TAXES
NOT YET DUE AND PAYABLE) UPON ANY OF THE ASSETS OF MOLI OR ANY OF ITS
SUBSIDIARIES.
(II) MOLI AND EACH OF ITS SUBSIDIARIES HAVE WITHHELD AND PAID ALL TAXES
REQUIRED TO HAVE BEEN WITHHELD AND PAID IN CONNECTION WITH ANY AMOUNTS PAID OR
OWING TO ANY EMPLOYEE, INDEPENDENT CONTRACTOR, CREDITOR, STOCKHOLDER, OR OTHER
THIRD PARTY.
(L) LITIGATION. 4(L) OF THE DISCLOSURE SCHEDULE SETS FORTH EACH
INSTANCE IN WHICH MOLI, ENTERPRISES, OR ANY OF THEIR RESPECTIVE DIRECTORS (I) IS
SUBJECT TO ANY OUTSTANDING INJUNCTION, JUDGMENT, ORDER, DECREE, RULING, OR
CHARGE OR (II) IS A PARTY OR, TO THE KNOWLEDGE OF ANY OF DIRECTORS AND OFFICERS
(AND EMPLOYEES WITH RESPONSIBILITY FOR LITIGATION MATTERS) OF MOLI OR
ENTERPRISES, IS THREATENED TO BE MADE A PARTY TO ANY ACTION, SUIT, PROCEEDING,
HEARING, OR INVESTIGATION OF, IN, OR BEFORE ANY COURT OR QUASI-JUDICIAL OR
ADMINISTRATIVE AGENCY OF ANY FEDERAL, STATE, LOCAL, OR FOREIGN JURISDICTION OR
BEFORE ANY ARBITRATOR. NONE OF THE ACTIONS, SUITS, PROCEEDINGS, HEARINGS, AND
INVESTIGATIONS SET FORTH IN 4(L) OF THE DISCLOSURE SCHEDULE COULD RESULT IN ANY
MATERIAL ADVERSE CHANGE. NONE OF THE DIRECTORS AND OFFICERS (AND EMPLOYEES WITH
RESPONSIBILITY FOR LITIGATION MATTERS) OF MOLI OR ENTERPRISES HAS ANY REASON TO
BELIEVE THAT ANY SUCH ACTION, SUIT, PROCEEDING, HEARING, OR INVESTIGATION MAY BE
BROUGHT OR THREATENED AGAINST MOLI OR ENTERPRISES OR THAT THERE IS ANY BASIS FOR
THE FOREGOING.
(J) DISCLOSURE. THE DEFINITIVE INFORMATION STATEMENT WILL COMPLY WITH THE
DISCLOSURE REQUIREMENTS SET FORTH IN REGULATION 14C AND SCHEDULE 14C ADOPTED
UNDER THE SECURITIES EXCHANGE ACT IN ALL MATERIAL RESPECTS. THE DEFINITIVE
INFORMATION STATEMENTS WILL NOT CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL FACT
OR OMIT TO STATE A MATERIAL FACT NECESSARY IN ORDER TO MAKE THE STATEMENTS MADE
THEREIN, IN THE LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WILL BE MADE, NOT
MISLEADING; PROVIDED, HOWEVER, THAT MOLI AND ENTERPRISES MAKE NO REPRESENTATION
OR WARRANTY WITH RESPECT TO ANY INFORMATION THAT CO-OP WILL SUPPLY SPECIFICALLY
FOR USE IN THE DEFINITIVE INFORMATION STATEMENTS.
(J) ▇▇▇▇▇▇▇▇-▇▇▇▇▇ COMPLIANCE. MOLI HAS, SINCE JULY 30, 2002, INCLUDED IN
ITS PUBLIC REPORTS THE DISCLOSURE REQUIRED BY ITEM 307 OF REGULATION S-B AND THE
CERTIFICATIONS REQUIRED BY 302 AND 906 OF THE ▇▇▇▇▇▇▇▇-▇▇▇▇▇ ACT OF 2002, AND
HAS NOT EXTENDED OR MAINTAINED CREDIT, ARRANGED FOR THE EXTENSION OF CREDIT, OR
RENEWED AN EXTENSION OF CREDIT, IN THE FORM OF A PERSONAL LOAN TO OR FOR ANY
DIRECTOR OR EXECUTIVE OFFICER OF MOLI OR ITS SUBSIDIARIES, THAT IS PROHIBITED BY
402 OF THE ▇▇▇▇▇▇▇▇-▇▇▇▇▇ ACT OF 2002.
(K) CERTAIN BUSINESS RELATIONSHIPS WITH MOLI AND ITS SUBSIDIARIES.
EXCEPT AS SET FORTH IN 4(K) OF THE DISCLOSURE SCHEDULE, NONE OF MOLI'S AND ITS
SUBSIDIARIES' DIRECTORS, OFFICERS, EMPLOYEES, AND SHAREHOLDERS, OR THEIR
RESPECTIVE AFFILIATES, HAS BEEN INVOLVED IN ANY BUSINESS ARRANGEMENT OR
RELATIONSHIP WITH MOLI OR ANY OF ITS SUBSIDIARIES WITHIN THE PAST 12 MONTHS, AND
NONE OF MOLI'S AND ITS SUBSIDIARIES' DIRECTORS, OFFICERS, EMPLOYEES, AND
SHAREHOLDERS, OR THEIR RESPECTIVE AFFILIATES, OWNS ANY ASSET, TANGIBLE OR
INTANGIBLE, WHICH IS USED IN THE BUSINESS OF MOLI OR ANY OF ITS SUBSIDIARIES.
5. COVENANTS. THE PARTIES AGREE AS FOLLOWS WITH RESPECT TO THE PERIOD
FROM AND AFTER THE EXECUTION OF THIS AGREEMENT.
(A) GENERAL. EACH OF THE PARTIES WILL USE ITS REASONABLE BEST EFFORTS
TO TAKE ALL ACTION AND TO DO ALL THINGS NECESSARY, PROPER, OR ADVISABLE IN ORDER
TO CONSUMMATE AND MAKE EFFECTIVE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT
(INCLUDING SATISFACTION, BUT NOT WAIVER, OF THE CLOSING CONDITIONS SET FORTH IN
6 BELOW).
(B) REGULATORY MATTERS AND APPROVALS. EACH OF THE PARTIES WILL GIVE ANY
NOTICES TO, MAKE ANY FILINGS WITH, AND USE ITS REASONABLE BEST EFFORTS TO OBTAIN
ANY AUTHORIZATIONS, CONSENTS, AND APPROVALS OF GOVERNMENTS AND GOVERNMENTAL
AGENCIES IN CONNECTION WITH THE MATTERS REFERRED TO IN 3(D) AND 4(D) ABOVE.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING:
(I) STATE SECURITIES LAWS. AS SOON AS PRACTICABLE FOLLOWING THE
DELIVERY OF THE FINANCIAL STATEMENTS BY CO-OP TO MOLI, MOLI, WITH THE ASSISTANCE
OF CO-OP, WILL PREPARE AND FILE WITH THE UTAH SECURITIES DIVISION UNDER
61-1-14(2)(P) OR 14(2)(S) OF THE UTAH UNIFORM SECURITIES ACT A PRELIMINARY
INFORMATION STATEMENT THAT COMPLIES WITH THE DISCLOSURE REQUIREMENTS OF
REGULATION 14C AND SCHEDULE 14C ADOPTED UNDER THE SECURITIES EXCHANGE ACT
RELATING TO THE CO-OP SPECIAL MEETING AND MOLI SPECIAL MEETING. MOLI, IN
COOPERATION WITH CO-OP, WILL USE ITS REASONABLE BEST EFFORTS TO RESPOND TO THE
COMMENTS OF THE UTAH SECURITIES DIVISION THEREON AND WILL MAKE ANY FURTHER
FILINGS (INCLUDING AMENDMENTS AND SUPPLEMENTS) IN CONNECTION THEREWITH THAT MAY
BE NECESSARY, PROPER, OR ADVISABLE. MOLI WILL KEEP CO-OP AND ITS LEGAL COUNSEL
AND ACCOUNTANTS FULLY AND TIMELY INFORMED ABOUT ANY AND ALL COMMENTS FROM,
INQUIRIES BY, AND AGREEMENTS REACHED WITH, THE UTAH SECURITIES DIVISION.
(II) BUSINESS CORPORATION ACT.
(A) WITHIN FIVE DAYS FOLLOWING THE DATE ON WHICH THE UTAH SECURITIES
DIVISION DETERMINES IT HAS NO FURTHER COMMENTS ON THE PRELIMINARY INFORMATION
STATEMENT, CO-OP WILL DISTRIBUTE TO ITS STOCKHOLDERS THE DEFINITIVE INFORMATION
STATEMENT, WHICH WILL INCLUDE NOTICE OF THE CO-OP SPECIAL MEETING FOR A DATE NOT
LATER THAN 20 DAYS FOLLOWING THE DATE THE DEFINITIVE INFORMATION STATEMENT IS
DISSEMINATED TO THE CO-OP STOCKHOLDERS. AT THE CO-OP SPECIAL MEETING THE CO-OP
STOCKHOLDERS SHALL CONSIDER AND VOTE UPON THE ADOPTION OF THIS AGREEMENT AND THE
APPROVAL OF THE MERGER IN ACCORDANCE WITH THE BUSINESS CORPORATION ACT.
(B) WITHIN FIVE DAYS FOLLOWING THE DATE ON WHICH THE UTAH SECURITIES
DIVISION DETERMINES IT HAS NO FURTHER COMMENTS ON THE PRELIMINARY INFORMATION
STATEMENT, MOLI WILL DISTRIBUTE TO ITS STOCKHOLDERS THE DEFINITIVE INFORMATION
STATEMENT, WHICH WILL INCLUDE NOTICE OF THE MOLI SPECIAL MEETING FOR A DATE NOT
LATER THAN 20 DAYS FOLLOWING THE DATE THE DEFINITIVE INFORMATION STATEMENT IS
DISSEMINATED TO THE STOCKHOLDERS OF MOLI. AT THE MOLI SPECIAL MEETING THE MOLI
STOCKHOLDERS SHALL CONSIDER AND VOTE UPON THE ADOPTION OF THIS AGREEMENT, THE
ORI DISTRIBUTION, THE ELECTION OF DIRECTORS, AND AMENDMENT OF THE ARTICLES OF
INCORPORATION OF MOLI TO CHANGE ITS NAME TO DENTAL PATIENT CARE AMERICA, INC.
AND ADOPT SUCH OTHER CHANGES TO WHICH THE PARTIES MAY AGREE.
(C) ON OR BEFORE THE CLOSING DATE, MOLI SHALL PREPARE AND SIGN A WRITTEN
CONSENT AS THE SOLE STOCKHOLDER OF ENTERPRISES APPROVING THIS AGREEMENT AND THE
MERGER.
(D) THE DEFINITIVE INFORMATION STATEMENT SHALL CONTAIN THE AFFIRMATIVE
RECOMMENDATION OF THE BOARDS OF DIRECTORS OF CO-OP AND MOLI IN FAVOR OF THE
ADOPTION OF THIS AGREEMENT AND THE APPROVAL OF THE MERGER; PROVIDED, HOWEVER,
THAT NO DIRECTOR OR OFFICER OF CO-OP OR MOLI SHALL BE REQUIRED TO VIOLATE ANY
FIDUCIARY DUTY OR OTHER REQUIREMENT IMPOSED BY LAW IN CONNECTION THEREWITH.
(C) OPERATION OF BUSINESS. NEITHER MOLI NOR CO-OP WILL (AND WILL NOT
CAUSE OR PERMIT ANY OF ITS SUBSIDIARIES TO) ENGAGE IN ANY PRACTICE, TAKE ANY
ACTION, OR ENTER INTO ANY TRANSACTION OUTSIDE THE ORDINARY COURSE OF BUSINESS.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING:
(I) NEITHER CO-OP, MOLI NOR ANY OF THEIR SUBSIDIARIES WILL AUTHORIZE OR
EFFECT ANY CHANGE IN ITS CHARTER OR BYLAWS;
(II) NEITHER CO-OP, MOLI NOR ANY OF THEIR SUBSIDIARIES WILL GRANT ANY
OPTIONS, WARRANTS, OR OTHER RIGHTS TO PURCHASE OR OBTAIN ANY OF ITS STOCK OR
ISSUE, SELL, OR OTHERWISE DISPOSE OF ANY OF ITS CAPITAL STOCK (EXCEPT UPON THE
CONVERSION OR EXERCISE OF OPTIONS, WARRANTS, AND OTHER RIGHTS CURRENTLY
OUTSTANDING);
(III) NEITHER CO-OP, MOLI NOR ANY OF THEIR SUBSIDIARIES WILL DECLARE, SET
ASIDE, OR PAY ANY DIVIDEND OR DISTRIBUTION WITH RESPECT TO ITS STOCK (WHETHER IN
CASH OR IN KIND), OR REDEEM, REPURCHASE, OR OTHERWISE ACQUIRE ANY OF ITS CAPITAL
STOCK, EXCEPT FOR THE ORI DISTRIBUTION CONTEMPLATED BY THIS AGREEMENT;
(IV) NEITHER CO-OP, MOLI NOR ANY OF THEIR SUBSIDIARIES WILL ISSUE ANY NOTE,
BOND, OR OTHER DEBT SECURITY OR CREATE, INCUR, ASSUME, OR GUARANTEE ANY
INDEBTEDNESS FOR BORROWED MONEY OR CAPITALIZED LEASE OBLIGATION OUTSIDE THE
ORDINARY COURSE OF BUSINESS;
(V) NEITHER CO-OP, MOLI NOR ANY OF THEIR SUBSIDIARIES WILL IMPOSE ANY LIEN
UPON ANY OF ITS ASSETS OUTSIDE THE ORDINARY COURSE OF BUSINESS;
(VI) NEITHER CO-OP, MOLI NOR ANY OF THEIR SUBSIDIARIES WILL MAKE ANY CAPITAL
INVESTMENT IN, MAKE ANY LOAN TO, OR ACQUIRE THE SECURITIES OR ASSETS OF ANY
OTHER PERSON OUTSIDE THE ORDINARY COURSE OF BUSINESS;
(VII) NEITHER CO-OP, MOLI NOR ANY OF THEIR SUBSIDIARIES WILL MAKE ANY CHANGE
IN EMPLOYMENT TERMS FOR ANY OF ITS DIRECTORS, OFFICERS, AND EMPLOYEES OUTSIDE
THE ORDINARY COURSE OF BUSINESS; AND
(VIII) NEITHER CO-OP, MOLI NOR ANY OF THEIR SUBSIDIARIES WILL COMMIT TO ANY
OF THE FOREGOING.
(D) FULL ACCESS. CO-OP AND MOLI WILL (AND WILL CAUSE EACH OF THEIR
SUBSIDIARIES TO) PERMIT REPRESENTATIVES OF THE OTHER PARTY (INCLUDING LEGAL
COUNSEL AND ACCOUNTANTS) TO HAVE FULL ACCESS AT ALL REASONABLE TIMES, AND IN A
MANNER SO AS NOT TO INTERFERE WITH THE NORMAL BUSINESS OPERATIONS, TO ALL
PREMISES, PROPERTIES, PERSONNEL, BOOKS, RECORDS (INCLUDING TAX RECORDS),
CONTRACTS, AND BUSINESS DOCUMENTS, INCLUDING THOSE RELATED TO ANY SUBSIDIARIES.
EACH OF MOLI, CO-OP AND ENTERPRISES WILL TREAT AND HOLD AS SUCH ANY CONFIDENTIAL
INFORMATION IT RECEIVES FROM ANOTHER PARTY OR ANY OF ITS SUBSIDIARIES IN THE
COURSE OF THE REVIEWS CONTEMPLATED BY THIS 5(D), WILL NOT USE ANY OF THE
CONFIDENTIAL INFORMATION EXCEPT IN CONNECTION WITH THIS AGREEMENT, AND, IF THIS
AGREEMENT IS TERMINATED FOR ANY REASON WHATSOEVER, AGREES TO RETURN TO THE
PRODUCING PARTY ALL TANGIBLE EMBODIMENTS (AND ALL COPIES) THEREOF WHICH ARE IN
ITS POSSESSION.
(E) NOTICE OF DEVELOPMENTS. EACH PARTY WILL GIVE PROMPT WRITTEN NOTICE TO
THE OTHERS OF ANY MATERIAL ADVERSE DEVELOPMENT CAUSING A BREACH OF ANY OF ITS
OWN REPRESENTATIONS AND WARRANTIES IN 3 AND 4 ABOVE. NO DISCLOSURE BY ANY
PARTY PURSUANT TO THIS 5(E), HOWEVER, SHALL BE DEEMED TO AMEND OR SUPPLEMENT
THE DISCLOSURE SCHEDULE OR TO PREVENT OR CURE ANY MISREPRESENTATION, BREACH OF
WARRANTY, OR BREACH OF COVENANT.
(F) EXCLUSIVITY.
(I) CO-OP WILL NOT (AND WILL NOT CAUSE OR PERMIT ANY OF ITS
SUBSIDIARIES TO) SOLICIT, INITIATE, OR ENCOURAGE THE SUBMISSION OF ANY PROPOSAL
OR OFFER FROM ANY PERSON RELATING TO THE ACQUISITION OF ALL OR SUBSTANTIALLY ALL
OF THE CAPITAL STOCK OR ASSETS OF CO-OP OR ANY OF ITS SUBSIDIARIES (INCLUDING
ANY ACQUISITION STRUCTURED AS A MERGER, CONSOLIDATION, OR SHARE EXCHANGE);
PROVIDED, HOWEVER, THAT CO-OP, ITS SUBSIDIARIES, AND THEIR DIRECTORS AND
OFFICERS WILL REMAIN FREE TO PARTICIPATE IN ANY DISCUSSIONS OR NEGOTIATIONS
REGARDING, FURNISH ANY INFORMATION WITH RESPECT TO, ASSIST OR PARTICIPATE IN, OR
FACILITATE IN ANY OTHER MANNER ANY EFFORT OR ATTEMPT BY ANY PERSON TO DO OR SEEK
ANY OF THE FOREGOING TO THE EXTENT THEIR FIDUCIARY DUTIES MAY REQUIRE. CO-OP
SHALL NOTIFY MOLI IMMEDIATELY IF ANY PERSON MAKES ANY PROPOSAL, OFFER, INQUIRY,
OR CONTACT WITH RESPECT TO ANY OF THE FOREGOING.
(II) MOLI WILL NOT (AND WILL NOT CAUSE OR PERMIT ANY OF ITS SUBSIDIARIES TO)
SOLICIT, INITIATE, OR ENCOURAGE THE SUBMISSION OF ANY PROPOSAL OR OFFER FROM ANY
PERSON RELATING TO THE ACQUISITION BY MOLI OF ALL OR SUBSTANTIALLY ALL OF THE
CAPITAL STOCK OR ASSETS OF SUCH PERSON OR ANY OF ITS SUBSIDIARIES (INCLUDING ANY
ACQUISITION STRUCTURED AS A MERGER, CONSOLIDATION, OR SHARE EXCHANGE); PROVIDED,
HOWEVER, THAT MOLI, ITS SUBSIDIARIES, AND THEIR DIRECTORS AND OFFICERS WILL
REMAIN FREE TO PARTICIPATE IN ANY DISCUSSIONS OR NEGOTIATIONS REGARDING, FURNISH
ANY INFORMATION WITH RESPECT TO, ASSIST OR PARTICIPATE IN, OR FACILITATE IN ANY
OTHER MANNER ANY EFFORT OR ATTEMPT BY ANY PERSON TO DO OR SEEK ANY OF THE
FOREGOING TO THE EXTENT THEIR FIDUCIARY DUTIES MAY REQUIRE. MOLI SHALL NOTIFY
CO-OP IMMEDIATELY IF ANY PERSON MAKES ANY PROPOSAL, OFFER, INQUIRY, OR CONTACT
WITH RESPECT TO ANY OF THE FOREGOING.
6. CONDITIONS TO OBLIGATION TO CLOSE.
(A) CONDITIONS TO MOLI'S AND ENTERPRISES' OBLIGATION. THE OBLIGATION
OF EACH OF MOLI AND ENTERPRISES TO CONSUMMATE THE TRANSACTIONS TO BE PERFORMED
BY IT IN CONNECTION WITH THE CLOSING IS SUBJECT TO SATISFACTION OF THE FOLLOWING
CONDITIONS:
(I) THIS AGREEMENT AND THE MERGER SHALL HAVE RECEIVED THE REQUISITE
CO-OP STOCKHOLDER APPROVAL, THIS AGREEMENT AND THE ORI DISTRIBUTION SHALL HAVE
RECEIVED THE REQUISITE MOLI STOCKHOLDER APPROVAL, AND THE NUMBER OF DISSENTING
CO-OP SHARES SHALL NOT EXCEED FIVE PERCENT (5%) OF THE NUMBER OF OUTSTANDING
CO-OP SHARES;
(II) THE REPRESENTATIONS AND WARRANTIES SET FORTH IN 3 ABOVE SHALL BE TRUE
AND CORRECT IN ALL MATERIAL RESPECTS AT AND AS OF THE CLOSING DATE;
(III) CO-OP SHALL HAVE PERFORMED AND COMPLIED WITH ALL OF ITS COVENANTS
HEREUNDER IN ALL MATERIAL RESPECTS THROUGH THE CLOSING;
(IV) NO ACTION, SUIT, OR PROCEEDING SHALL BE PENDING OR THREATENED BEFORE
ANY COURT OR QUASI-JUDICIAL OR ADMINISTRATIVE AGENCY OF ANY FEDERAL, STATE,
LOCAL, OR FOREIGN JURISDICTION OR BEFORE ANY ARBITRATOR WHEREIN AN UNFAVORABLE
INJUNCTION, JUDGMENT, ORDER, DECREE, RULING, OR CHARGE WOULD (A) PREVENT
CONSUMMATION OF ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, (B)
CAUSE ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT TO BE RESCINDED
FOLLOWING CONSUMMATION, (C) AFFECT ADVERSELY THE RIGHT OF MOLI TO OWN THE
CAPITAL STOCK OF SURVIVING CORPORATION AND TO CONTROL SURVIVING CORPORATION AND
ITS SUBSIDIARIES, OR (D) AFFECT ADVERSELY THE RIGHT OF ANY OF SURVIVING
CORPORATION AND ITS SUBSIDIARIES TO OWN ITS ASSETS AND TO OPERATE ITS BUSINESSES
(AND NO SUCH INJUNCTION, JUDGMENT, ORDER, DECREE, RULING, OR CHARGE SHALL BE IN
EFFECT);
(V) THE CHIEF EXECUTIVE OFFICER OF CO-OP SHALL HAVE DELIVERED TO MOLI AND
ENTERPRISES A CERTIFICATE TO THE EFFECT THAT EACH OF THE CONDITIONS SPECIFIED
ABOVE IN 6(A)(I)-(IV) IS SATISFIED IN ALL RESPECTS; AND
(VI) ALL ACTIONS TO BE TAKEN BY CO-OP IN CONNECTION WITH CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED HEREBY AND ALL CERTIFICATES, INSTRUMENTS, AND OTHER
DOCUMENTS REQUIRED TO EFFECT THE TRANSACTIONS CONTEMPLATED HEREBY WILL BE
SATISFACTORY IN FORM AND SUBSTANCE TO MOLI AND ENTERPRISES.
MOLI AND ENTERPRISES MAY WAIVE ANY CONDITION SPECIFIED IN THIS 6(A) IF THEY
EXECUTE A WRITING SO STATING AT OR PRIOR TO THE CLOSING.
(B) CONDITIONS TO CO-OP'S OBLIGATION. THE OBLIGATION OF CO-OP TO
CONSUMMATE THE TRANSACTIONS TO BE PERFORMED BY IT IN CONNECTION WITH THE CLOSING
IS SUBJECT TO SATISFACTION OF THE FOLLOWING CONDITIONS:
(I) THIS AGREEMENT (AND, IN THE CASE OF CO-OP, THE MERGER) SHALL HAVE
RECEIVED THE REQUISITE CO-OP STOCKHOLDER APPROVAL AND REQUISITE MOLI STOCKHOLDER
APPROVAL, THE ORI DISTRIBUTION AND THE OTHER MATTERS PERTAINING TO AMENDMENT OF
THE ARTICLES OF INCORPORATION OF MOLI SET FORTH IN THE DEFINITIVE INFORMATION
STATEMENT SHALL HAVE RECEIVED THE REQUISITE MOLI STOCKHOLDER APPROVAL, THE
ELECTION OF EACH DIRECTOR NOMINATED AND PROPOSED FOR ELECTION IN THE DEFINITIVE
INFORMATION STATEMENT SHALL BE ELECTED BY A PLURALITY OF THE VOTE CAST FOR EACH
SUCH DIRECTOR, AND THE NUMBER OF DISSENTING MOLI SHARES SHALL NOT EXCEED ONE
PERCENT OF THE NUMBER OF OUTSTANDING MOLI SHARES;
(II) THE REPRESENTATIONS AND WARRANTIES SET FORTH IN 4 ABOVE SHALL BE TRUE
AND CORRECT IN ALL MATERIAL RESPECTS AT AND AS OF THE CLOSING DATE;
(III) EACH OF MOLI AND ENTERPRISES SHALL HAVE PERFORMED AND COMPLIED WITH
ALL OF ITS COVENANTS HEREUNDER IN ALL MATERIAL RESPECTS THROUGH THE CLOSING;
(IV) NO ACTION, SUIT, OR PROCEEDING SHALL BE PENDING OR THREATENED BEFORE
ANY COURT OR QUASI-JUDICIAL OR ADMINISTRATIVE AGENCY OF ANY FEDERAL, STATE,
LOCAL, OR FOREIGN JURISDICTION OR BEFORE ANY ARBITRATOR WHEREIN AN UNFAVORABLE
INJUNCTION, JUDGMENT, ORDER, DECREE, RULING, OR CHARGE WOULD (A) PREVENT
CONSUMMATION OF ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, (B)
CAUSE ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT TO BE RESCINDED
FOLLOWING CONSUMMATION, (C) AFFECT ADVERSELY THE RIGHT OF MOLI TO OWN THE
CAPITAL STOCK OF SURVIVING CORPORATION AND TO CONTROL SURVIVING CORPORATION AND
ITS SUBSIDIARIES, OR (D) AFFECT ADVERSELY THE RIGHT OF ANY OF SURVIVING
CORPORATION AND ITS SUBSIDIARIES TO OWN ITS ASSETS AND TO OPERATE ITS BUSINESSES
(AND NO SUCH INJUNCTION, JUDGMENT, ORDER, DECREE, RULING, OR CHARGE SHALL BE IN
EFFECT);
(V) THE CHIEF EXECUTIVE OFFICER OF EACH OF MOLI AND ENTERPRISES SHALL HAVE
DELIVERED TO CO-OP A CERTIFICATE TO THE EFFECT THAT EACH OF THE CONDITIONS
SPECIFIED ABOVE IN 6(B)(I)-(IV) IS SATISFIED IN ALL RESPECTS;
(VI) ALL ACTIONS TO BE TAKEN BY MOLI AND ENTERPRISES IN CONNECTION WITH
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY AND ALL CERTIFICATES,
INSTRUMENTS, AND OTHER DOCUMENTS REQUIRED TO EFFECT THE TRANSACTIONS
CONTEMPLATED HEREBY WILL BE SATISFACTORY IN FORM AND SUBSTANCE TO CO-OP;
(VII) ORI SHALL HAVE EXECUTED AND DELIVERED THE INDEMNITY AGREEMENT IN THE
FORM ATTACHED HERETO AS EXHIBIT C AS CONTEMPLATED IN 2(G);
(VIII) MOLI SHALL CAUSE TO BE SIGNED AND DELIVERED TO IT BY ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
AND ▇▇▇▇ ▇▇▇▇▇▇▇▇ A LOCKUP AGREEMENT IN THE FORM ATTACHED HERETO AS EXHIBIT D
WHEREBY SUCH PERSONS SHALL AGREE WITH MOLI THAT EACH SUCH PERSON, TOGETHER WITH
ANY ASSIGNEES, DONEES, HEIRS AND SUCCESSORS, WILL REFRAIN FROM SELLING ANY MOLI
SHARES UNTIL ON AND AFTER THE DATE THAT IS ONE YEAR AND THIRTY DAYS AFTER THE
EFFECTIVE TIME;
(IX) MOLI AND/OR CO-OP SHALL HAVE EXECUTED AND DELIVERED WITH ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, AND ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ EMPLOYMENT AND SEVERANCE AGREEMENTS
EFFECTIVE UPON THE CLOSING IN FORM AND SUBSTANCE AGREEABLE AND ACCEPTABLE TO
SUCH INDIVIDUALS; AND
(X) MOLI SHALL HAVE ISSUED AND DELIVERED, EFFECTIVE UPON THE CLOSING, STOCK
OPTIONS TO THE FOLLOWING PERSONS, COVERING THE FOLLOWING NUMBERS OF SHARES, AND
AT THE FOLLOWING EXERCISE PRICES:
NAME NUMBER OF SHARES EXERCISE PRICE
▇▇▇▇ DENTAL 200,000 $2.50 PER SHARE
▇▇▇▇▇ ▇▇▇▇▇ 50,000 2.50 PER SHARE
FMG 10,000 2.50 PER SHARE
▇. ▇▇▇▇ 2,000 2.50 PER SHARE
▇. ▇▇▇▇▇▇ 2,000 2.50 PER SHARE
(XI) MOLI SHALL DELIVER SIGNED RESIGNATIONS OF EACH AND EVERY OFFICER OF
MOLI HOLDING OFFICE IMMEDIATELY PRIOR TO CLOSING.
(XII) MOLI SHALL HAVE CAUSED THE ELECTION OF ▇▇▇▇▇▇▇ ▇▇▇▇▇ AND ▇▇▇▇▇▇
▇▇▇▇▇▇▇ AS DIRECTORS OF MOLI AS OF THE EFFECTIVE TIME, AND SHALL HAVE DELIVERED
THE RESIGNATIONS OF ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ AND ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ AS DIRECTORS OF MOLI.
▇▇▇▇▇ ▇. ("▇▇▇▇") ▇▇▇▇▇▇▇▇ WILL CONTINUE TO SERVE AS A DIRECTOR.
CO-OP MAY WAIVE ANY CONDITION SPECIFIED IN THIS 6(B) IF IT EXECUTES A WRITING
SO STATING AT OR PRIOR TO THE CLOSING.
7. TERMINATION.
(A) TERMINATION OF AGREEMENT. ANY OF THE PARTIES MAY TERMINATE THIS
AGREEMENT WITH THE PRIOR AUTHORIZATION OF ITS BOARD OF DIRECTORS (WHETHER BEFORE
OR AFTER STOCKHOLDER APPROVAL) AS PROVIDED BELOW:
(I) THE PARTIES MAY TERMINATE THIS AGREEMENT BY MUTUAL WRITTEN CONSENT
AT ANY TIME PRIOR TO THE EFFECTIVE TIME;
(II) MOLI AND ENTERPRISES MAY TERMINATE THIS AGREEMENT BY GIVING WRITTEN
NOTICE TO CO-OP AT ANY TIME PRIOR TO THE EFFECTIVE TIME (A) IN THE EVENT CO-OP
HAS BREACHED ANY MATERIAL REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN
THIS AGREEMENT IN ANY MATERIAL RESPECT, MOLI OR ENTERPRISES HAS NOTIFIED CO-OP
OF THE BREACH, AND THE BREACH HAS CONTINUED WITHOUT CURE FOR A PERIOD OF 30 DAYS
AFTER THE NOTICE OF BREACH OR (B) IF THE CLOSING SHALL NOT HAVE OCCURRED ON OR
BEFORE JUNE 30, 2004 BY REASON OF THE FAILURE OF ANY CONDITION PRECEDENT UNDER
6(A) HEREOF (UNLESS THE FAILURE RESULTS PRIMARILY FROM MOLI OR ENTERPRISES
BREACHING ANY REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THIS
AGREEMENT);
(III) CO-OP MAY TERMINATE THIS AGREEMENT BY GIVING WRITTEN NOTICE TO MOLI
AND ENTERPRISES AT ANY TIME PRIOR TO THE EFFECTIVE TIME (A) IN THE EVENT MOLI OR
ENTERPRISES HAS BREACHED ANY MATERIAL REPRESENTATION, WARRANTY, OR COVENANT
CONTAINED IN THIS AGREEMENT IN ANY MATERIAL RESPECT, CO-OP HAS NOTIFIED MOLI AND
ENTERPRISES OF THE BREACH, AND THE BREACH HAS CONTINUED WITHOUT CURE FOR A
PERIOD OF 30 DAYS AFTER THE NOTICE OF BREACH OR (B) IF THE CLOSING SHALL NOT
HAVE OCCURRED ON OR BEFORE JUNE 30, 2004 BY REASON OF THE FAILURE OF ANY
CONDITION PRECEDENT UNDER 6(B) HEREOF (UNLESS THE FAILURE RESULTS PRIMARILY
FROM CO-OP BREACHING ANY REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THIS
AGREEMENT);
(IV) ANY PARTY MAY TERMINATE THIS AGREEMENT BY GIVING WRITTEN NOTICE TO
THE OTHER PARTIES AT ANY TIME AFTER EITHER THE CO-OP SPECIAL MEETING OR THE MOLI
SPECIAL MEETING IN THE EVENT THIS AGREEMENT, THE MERGER, AND THE ORI
DISTRIBUTION FAIL TO RECEIVE THE REQUISITE CO-OP STOCKHOLDER APPROVAL AND
REQUISITE MOLI STOCKHOLDER APPROVAL.
(B) EFFECT OF TERMINATION. IF ANY PARTY TERMINATES THIS AGREEMENT
PURSUANT TO 7(A) ABOVE, ALL RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL TERMINATE WITHOUT ANY LIABILITY OF ANY PARTY TO ANY OTHER PARTY (EXCEPT
FOR ANY LIABILITY OF ANY PARTY THEN IN BREACH); PROVIDED, HOWEVER, THAT THE
CONFIDENTIALITY PROVISIONS CONTAINED IN 5(D) ABOVE SHALL SURVIVE ANY SUCH
TERMINATION.
8. MISCELLANEOUS.
(A) SURVIVAL. NONE OF THE REPRESENTATIONS, WARRANTIES, AND COVENANTS
OF THE PARTIES (OTHER THAN THE PROVISIONS IN 2 ABOVE CONCERNING THE EXCHANGE OF
MOLI SHARES FOR CO-OP SHARES AND THE ORI DISPOSITION BY THE ORI DISTRIBUTION OR
BY SALE) WILL SURVIVE THE EFFECTIVE TIME.
(B) PRESS RELEASES AND PUBLIC ANNOUNCEMENTS. NO PARTY SHALL ISSUE ANY PRESS
RELEASE OR MAKE ANY PUBLIC ANNOUNCEMENT RELATING TO THE SUBJECT MATTER OF THIS
AGREEMENT WITHOUT THE PRIOR WRITTEN APPROVAL OF THE OTHER PARTIES; PROVIDED,
HOWEVER, THAT ANY PARTY MAY MAKE ANY PUBLIC DISCLOSURE IT BELIEVES IN GOOD FAITH
IS REQUIRED BY APPLICABLE LAW OR ANY LISTING OR TRADING AGREEMENT CONCERNING ITS
PUBLICLY-TRADED SECURITIES (IN WHICH CASE THE DISCLOSING PARTY WILL USE ITS
REASONABLE BEST EFFORTS TO ADVISE THE OTHER PARTY PRIOR TO MAKING THE
DISCLOSURE).
(C) NO THIRD-PARTY BENEFICIARIES. THIS AGREEMENT SHALL NOT CONFER ANY
RIGHTS OR REMEDIES UPON ANY PERSON OTHER THAN THE PARTIES AND THEIR RESPECTIVE
SUCCESSORS AND PERMITTED ASSIGNS; PROVIDED, HOWEVER, THAT (I) THE PROVISIONS IN
2 ABOVE CONCERNING THE EXCHANGE OF MOLI SHARES FOR CO-OP SHARES ARE INTENDED FOR
THE BENEFIT OF CO-OP STOCKHOLDERS AND (II) THE PROVISIONS IN 2 ABOVE CONCERNING
THE ORI DISPOSITION BY THE ORI DISTRIBUTION OR BY SALE ARE INTENDED FOR THE
BENEFIT OF MOLI STOCKHOLDERS OR THE PURCHASER, AS APPLICABLE.
(D) ENTIRE AGREEMENT. THIS AGREEMENT (INCLUDING THE DOCUMENTS REFERRED TO
HEREIN) CONSTITUTES THE ENTIRE AGREEMENT AMONG THE PARTIES AND SUPERSEDES ANY
PRIOR UNDERSTANDINGS, AGREEMENTS, OR REPRESENTATIONS BY OR AMONG THE PARTIES,
WRITTEN OR ORAL, TO THE EXTENT THEY RELATE IN ANY WAY TO THE SUBJECT MATTER
HEREOF.
(E) SUCCESSION AND ASSIGNMENT. THIS AGREEMENT SHALL BE BINDING UPON AND
INURE TO THE BENEFIT OF THE PARTIES NAMED HEREIN AND THEIR RESPECTIVE SUCCESSORS
AND PERMITTED ASSIGNS. NO PARTY MAY ASSIGN EITHER THIS AGREEMENT OR ANY OF ITS
RIGHTS, INTERESTS, OR OBLIGATIONS HEREUNDER WITHOUT THE PRIOR WRITTEN APPROVAL
OF THE OTHER PARTIES.
(F) COUNTERPARTS. THIS AGREEMENT MAY BE EXECUTED IN ONE OR MORE
COUNTERPARTS, (INCLUDING BY MEANS OF FACSIMILE), EACH OF WHICH SHALL BE DEEMED
AN ORIGINAL BUT ALL OF WHICH TOGETHER WILL CONSTITUTE ONE AND THE SAME
INSTRUMENT.
(G) HEADINGS. THE SECTION HEADINGS CONTAINED IN THIS AGREEMENT ARE INSERTED
FOR CONVENIENCE ONLY AND SHALL NOT AFFECT IN ANY WAY THE MEANING OR
INTERPRETATION OF THIS AGREEMENT.
(H) NOTICES. ALL NOTICES, REQUESTS, DEMANDS, CLAIMS, AND OTHER
COMMUNICATIONS HEREUNDER WILL BE IN WRITING. ANY NOTICE, REQUEST, DEMAND, CLAIM,
OR OTHER COMMUNICATION HEREUNDER SHALL BE DEEMED DULY GIVEN (I) WHEN DELIVERED
PERSONALLY TO THE RECIPIENT, (II) ONE BUSINESS DAY AFTER BEING SENT TO THE
RECIPIENT BY REPUTABLE OVERNIGHT COURIER SERVICE (CHARGES PREPAID), (III) ONE
BUSINESS DAY AFTER BEING SENT TO THE RECIPIENT BY FACSIMILE TRANSMISSION OR
ELECTRONIC MAIL, OR (IV) FOUR BUSINESS DAYS AFTER BEING MAILED TO THE RECIPIENT
BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED AND POSTAGE PREPAID,
AND ADDRESSED TO THE INTENDED RECIPIENT AS SET FORTH BELOW:
IF TO CO-OP: DENTAL PATIENT CARE AMERICA, INC.
ATTN: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, PRESIDENT
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
EMAIL: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
COPY TO: A. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ESQ.
RAY, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
EMAIL: ▇▇▇▇▇▇▇@▇▇▇.▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
IF TO MOLI OR ENTERPRISES: MOUNTAIN OIL, INC.
ATTN: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, PRESIDENT
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
EMAIL: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
COPY TO: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ESQ.
COHNE, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.C.
525 EAST ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
EMAIL: ▇▇▇▇@▇▇▇▇▇▇.▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
ANY PARTY MAY CHANGE THE ADDRESS TO WHICH NOTICES, REQUESTS, DEMANDS, CLAIMS,
AND OTHER COMMUNICATIONS HEREUNDER ARE TO BE DELIVERED BY GIVING THE OTHER
PARTIES NOTICE IN THE MANNER HEREIN SET FORTH.
(I) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF UTAH WITHOUT GIVING EFFECT
TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF UTAH
OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY
JURISDICTION OTHER THAN THE STATE OF UTAH.
(J) AMENDMENTS AND WAIVERS. THE PARTIES MAY MUTUALLY AMEND ANY PROVISION OF
THIS AGREEMENT AT ANY TIME PRIOR TO THE EFFECTIVE TIME WITH THE PRIOR
AUTHORIZATION OF THEIR RESPECTIVE BOARDS OF DIRECTORS; PROVIDED, HOWEVER, THAT
ANY AMENDMENT EFFECTED SUBSEQUENT TO STOCKHOLDER APPROVAL WILL BE SUBJECT TO THE
RESTRICTIONS CONTAINED IN THE BUSINESS CORPORATION ACT. NO AMENDMENT OF ANY
PROVISION OF THIS AGREEMENT SHALL BE VALID UNLESS THE SAME SHALL BE IN WRITING
AND SIGNED BY ALL OF THE PARTIES. NO WAIVER BY ANY PARTY OF ANY PROVISION OF
THIS AGREEMENT OR ANY DEFAULT, MISREPRESENTATION, OR BREACH OF WARRANTY OR
COVENANT HEREUNDER, WHETHER INTENTIONAL OR NOT, SHALL BE VALID UNLESS THE SAME
SHALL BE IN WRITING AND SIGNED BY THE PARTY MAKING SUCH WAIVER NOR SHALL SUCH
WAIVER BE DEEMED TO EXTEND TO ANY PRIOR OR SUBSEQUENT DEFAULT,
MISREPRESENTATION, OR BREACH OF WARRANTY OR COVENANT HEREUNDER OR AFFECT IN ANY
WAY ANY RIGHTS ARISING BY VIRTUE OF ANY PRIOR OR SUBSEQUENT SUCH DEFAULT,
MISREPRESENTATION, OR BREACH OF WARRANTY OR COVENANT.
(K) SEVERABILITY. ANY TERM OR PROVISION OF THIS AGREEMENT THAT IS INVALID
OR UNENFORCEABLE IN ANY SITUATION IN ANY JURISDICTION SHALL NOT AFFECT THE
VALIDITY OR ENFORCEABILITY OF THE REMAINING TERMS AND PROVISIONS HEREOF OR THE
VALIDITY OR ENFORCEABILITY OF THE OFFENDING TERM OR PROVISION IN ANY OTHER
SITUATION OR IN ANY OTHER JURISDICTION.
(L) EXPENSES. EACH OF THE PARTIES WILL BEAR ITS OWN COSTS AND EXPENSES
(INCLUDING LEGAL FEES AND EXPENSES) INCURRED IN CONNECTION WITH THIS AGREEMENT
AND THE TRANSACTIONS CONTEMPLATED HEREBY; PROVIDED THAT ANY EXPENSES THAT WOULD
ORDINARILY BELONG TO MOLI (INCLUDING THE COST OF PRINTING NEW STOCK CERTIFICATES
AND ISSUING CERTIFICATES TO THE CO-OP STOCKHOLDERS AS A RESULT OF THE MERGER,
BUT NOT THE COST OR EXPENSE OF COMMUNICATING WITH THE CO-OP STOCKHOLDERS) THAT
REMAIN UNPAID ON OR ACCRUE AFTER THE CLOSING DATE SHALL BE ASSUMED AND PAID
SOLELY BY ORI.
(M) CONSTRUCTION. THE PARTIES HAVE PARTICIPATED JOINTLY IN THE NEGOTIATION
AND DRAFTING OF THIS AGREEMENT. IN THE EVENT AN AMBIGUITY OR QUESTION OF INTENT
OR INTERPRETATION ARISES, THIS AGREEMENT SHALL BE CONSTRUED AS IF DRAFTED
JOINTLY BY THE PARTIES AND NO PRESUMPTION OR BURDEN OF PROOF SHALL ARISE
FAVORING OR DISFAVORING ANY PARTY BY VIRTUE OF THE AUTHORSHIP OF ANY OF THE
PROVISIONS OF THIS AGREEMENT. ANY REFERENCE TO ANY FEDERAL, STATE, LOCAL, OR
FOREIGN STATUTE OR LAW SHALL BE DEEMED ALSO TO REFER TO ALL RULES AND
REGULATIONS PROMULGATED THERE UNDER, UNLESS THE CONTEXT OTHERWISE REQUIRES. THE
WORD "INCLUDING" SHALL MEAN INCLUDING WITHOUT LIMITATION.
(N) INCORPORATION OF EXHIBITS AND SCHEDULES. THE EXHIBITS AND SCHEDULES
IDENTIFIED IN THIS AGREEMENT ARE INCORPORATED HEREIN BY REFERENCE AND MADE A
PART HEREOF.
(O) TAX DISCLOSURE AUTHORIZATION. NOTWITHSTANDING ANYTHING HEREIN TO THE
CONTRARY, THE PARTIES (AND EACH AFFILIATE AND PERSON ACTING ON BEHALF OF ANY
PARTY) AGREE THAT EACH PARTY (AND EACH EMPLOYEE, REPRESENTATIVE, AND OTHER AGENT
OF SUCH PARTY) MAY DISCLOSE TO ANY AND ALL PERSONS, WITHOUT LIMITATION OF ANY
KIND, THE TRANSACTION'S TAX TREATMENT AND TAX STRUCTURE (AS SUCH TERMS ARE USED
IN CODE 6011 AND 6112 AND REGULATIONS THERE UNDER) CONTEMPLATED BY THIS
AGREEMENT AND ALL MATERIALS OF ANY KIND (INCLUDING OPINIONS OR OTHER TAX
ANALYSES) PROVIDED TO SUCH PARTY OR SUCH PERSON RELATING TO SUCH TAX TREATMENT
AND TAX STRUCTURE, SUBJECT TO COMPLIANCE WITH DISCLOSURE OBLIGATIONS UNDER
APPLICABLE FEDERAL OR STATE SECURITIES LAWS; PROVIDED, HOWEVER, THAT SUCH
DISCLOSURE MANY NOT BE MADE UNTIL THE EARLIER OF DATE OF (A) PUBLIC ANNOUNCEMENT
OF DISCUSSIONS RELATING TO THE TRANSACTION, (B) PUBLIC ANNOUNCEMENT OF THE
TRANSACTION, OR (C) EXECUTION OF AN AGREEMENT TO ENTER INTO THE TRANSACTION.
THIS AUTHORIZATION IS NOT INTENDED TO PERMIT DISCLOSURE OF ANY OTHER INFORMATION
INCLUDING (WITHOUT LIMITATION) (A) ANY PORTION OF ANY MATERIALS TO THE EXTENT
NOT RELATED TO THE TRANSACTION'S TAX TREATMENT OR TAX STRUCTURE, (B) THE
IDENTITIES OF PARTICIPANTS OR POTENTIAL PARTICIPANTS, (C) THE EXISTENCE OR
STATUS OF ANY NEGOTIATIONS, (D) ANY PRICING OR FINANCIAL INFORMATION (EXCEPT TO
THE EXTENT SUCH PRICING OR FINANCIAL INFORMATION IS RELATED TO THE TRANSACTION'S
TAX TREATMENT OR TAX STRUCTURE), OR (E) ANY OTHER TERM OR DETAIL NOT RELEVANT TO
THE TRANSACTION'S TAX TREATMENT OR THE TAX STRUCTURE.
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT AS OF THE
DATE FIRST ABOVE WRITTEN.
DENTAL COOPERATIVE, INC
BY: ____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, PRESIDENT
MOUNTAIN OIL, INC. MTOIL ENTERPRISES, INC.
BY: ________________________________ BY:___________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, PRESIDENT ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, PRESIDENT
OAKRIDGE RESOURCES, INC.
BY: ____________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, PRESIDENT
