AGREEMENT AND PLAN OF REORGANIZATION
BETWEEN
MOBILE DESIGN CONCEPTS, INC.
AND
BIOACCELERATE, INC.
TABLE OF CONTENTS
1. Plan of Reorganization 1
2. Exchange of Shares 1
3. Pre-Closing Events 2
4. Exchange of Securities 2
5. Other Events Occurring at Closing 2
6. Delivery of Shares 3
7. Representations of Bioaccelerate Stockholders 3
8. Representations of Bioaccelerate 3
9. Representations of MODS and Dixon 5
10. Closing 8
11. Conditions Precedent to the Obligations of BIOACCELERATE 8
12. Conditions Precedent to the Obligations of MODS 10
13. Indemnification 10
14. Nature and Survival of Representations 11
15. Documents at Closing 11
16. Finder's Fees 12
17. Miscellaneous 12
Signature Page 14
Exhibit A - Bioaccelerate Stockholder Schedule
Exhibit B - Amendment to Articles of Incorporation
Exhibit C - Form of Investment Letter
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (hereinafter the
"Agreement") is entered into effective as of this day of
August, 2004, by and among Mobile Design Concepts, Inc., a Nevada
corporation (hereinafter "MODS"); Lynn Dixon, the sole officer and
director of MODS (hereinafter " Dixon"); Bioaccelerate, Inc.., a Delaware
corporation (hereinafter "Bioaccelerate "), and the owners of the
outstanding shares of common stock of Bioaccelerate (hereinafter the
"BIOACCELERATE Stockholders").
RECITALS:
WHEREAS, the Bioaccelerate Stockholders own all of the issued and
outstanding common stock of Bioaccelerate (the "Bioaccelerate Common
Stock"). MODS desires to acquire the Bioaccelerate Common Stock solely
in exchange for voting common stock of MODS, making Bioaccelerate a wholly-
owned subsidiary of MODS; and
WHEREAS, the Bioaccelerate Stockholders (as set forth on Exhibit "A")
desire to acquire voting common stock of MODS in exchange for the
Bioaccelerate Common Stock, as more fully set forth herein.
NOW THEREFORE, for the mutual consideration set out herein and other
good and valuable consideration, the legal sufficiency of which is hereby
acknowledged, the parties agree as follows:
AGREEMENT
1. Plan of Reorganization. It is hereby agreed that the
Bioaccelerate Common Stock shall be acquired by MODS in exchange solely
for MODS common voting stock (the "MODS Shares"). It is the intention of
the parties hereto that all of the issued and outstanding shares of
capital stock of Bioaccelerate shall be acquired by MODS in exchange
solely for MODS common voting stock and that this entire transaction
qualify as a corporate reorganization under Section 368(a)(1)(B) and/or
Section 351 of the Internal Revenue Code of 1986, as amended, and related
or other applicable sections thereunder.
2. Exchange of Shares. MODS and Bioaccelerate Stockholders agree
that on the Closing Date or at the Closing as hereinafter defined, the
Bioaccelerate Common Stock shall be delivered at Closing to MODS in
exchange for the MODS Shares, as follows:
(a) At Closing, MODS shall, subject to the conditions set forth
herein, be obligated to issue an aggregate of up to 32,000,000 shares of
MODS common stock for delivery to the Bioaccelerate Stockholders in
exchange for 100% of the Bioaccelerate Common Stock.
(b) Each consenting Bioaccelerate Stockholder shall execute this
Agreement or a written consent to the exchange of their Bioaccelerate
Common Stock for MODS Shares along with any other exchanging security
holders of Bioaccelerate.
(c) Unless otherwise agreed by MODS and Bioaccelerate this
transaction shall close only in the event MODS is able to acquire at least
80% of the outstanding Bioaccelerate Common Stock; however, it is the
intent of the parties to have MODS acquire all of the Bioaccelerate Common
Stock.
3. Pre-Closing Events. The Closing is subject to the completion of
the following:
(a) At or prior to the time of Closing, MODS shall have 1,375,015
shares of its common stock issued and outstanding and no other shares of
capital stock issued or outstanding and there shall be no outstanding
options, warrants or other rights to purchase or otherwise acquire MODS
securities except as otherwise described herein relating to the
transactions described herein.
(b) MODS shall have no, and shall demonstrate to the satisfaction of
Bioaccelerate that it has no, material assets and no liabilities
contingent or fixed.
(c) MODS shall complete on or before closing a 3.5 to 1 reverse split
which reduce its outstanding common stock from 4,812,800 shares to
1,375,015 shares.
4. Exchange of Securities. As of the Closing Date each of the
following shall occur:
(a) All shares of Bioaccelerate Common Stock issued and outstanding
on the Closing Date shall be exchanged for the MODS Shares (up to an
aggregate amount of 32,000,000 MODS Shares) to be delivered at Closing
subject to the conditions set forth below. All such outstanding shares of
Bioaccelerate Common Stock shall be deemed, after Closing, to be owned by
MODS. The holders of such certificates previously evidencing shares of
Bioaccelerate Common Stock outstanding immediately prior to the Closing
Date shall cease to have any rights with respect to such shares of
Bioaccelerate Common Stock except as otherwise provided herein or by law;
(b) With respect to the 32,000,000 shares of the Company's common
stock to be issued to the Stockholders of Bioaccelerate said shares shall
be issued to the Bioaccelerate Stockholders in proportion to their
Bioaccelerate stock ownership set forth on Exhibit "A".
5. Other Events Occurring at Closing. At Closing, the following
shall be accomplished:
(a) MODS shall file an amendment to its Articles of Incorporation
with the Secretary of State of the State of Nevada in substantially the
form attached hereto as Exhibit "B" effecting an amendment to its Articles
of Incorporation to reflect a name change (as selected by Bioaccelerate ),
but expected to be Bioaccelerate Holdings, Inc.
(b) The resignation of the existing MODS sole officer and director
and appointment of new officers and directors as specified in this
Agreement.
(c) As of the Closing, MODS shall adopt a 2004 Stock option Program
(including incentive stock options) in such amount, at such exercise price
and pursuant to such a vesting schedule as reasonable determined by
Bioaccelerate.
6. Delivery of Shares. On or as soon as practicable after the
Closing Date, Bioaccelerate will use its best efforts to cause the
Bioaccelerate Stockholders to surrender certificates for cancellation
representing their shares of Bioaccelerate Common Stock, against delivery
of certificates representing the MODS Shares for which the shares of
Bioaccelerate Common Stock are to be exchanged at Closing.
7. Representations of Bioaccelerate Stockholders. Each
Bioaccelerate Stockholder hereby represents and warrants each only as to
its own Bioaccelerate Common Stock, effective this date and the Closing
Date as follows:
(a) Except as may be set forth in Exhibit "A", the Bioaccelerate
Common Stock is free from claims, liens, or other encumbrances, and at the
Closing Date said Bioaccelerate Stockholder will have good title and the
unqualified right to transfer and dispose of such Bioaccelerate Common
Stock.
(b) Said Bioaccelerate Stockholder is the sole owner of the issued
and outstanding Bioaccelerate Common Stock as set forth in Exhibit "A";
(c) Said Bioaccelerate Stockholder has no present specific intent to
sell or dispose of the MODS Shares and is not under a binding obligation,
formal commitment, or existing plan to sell or otherwise dispose of the
MODS Shares.
8. Representations of Bioaccelerate . Bioaccelerate hereby
represents and warrants as follows, which warranties and representations
shall also be true as of the Closing Date:
(a) Except as noted on Exhibit "A", the Bioaccelerate Stockholders
listed on the attached Exhibit "A" are the sole record and beneficial
owners of the issued and outstanding common stock of Bioaccelerate .
(b) Bioaccelerate has no outstanding or authorized capital stock,
warrants, options or convertible securities other than as described in the
Bioaccelerate Financial Statements or on Exhibit "A", attached hereto.
(c) The unaudited financial statements as of and for the periods
ended May 31, 2004, which have been delivered to MODS ("Bioaccelerate
Financial Statements") fairly present the financial condition of
Bioaccelerate as of the dates thereof. There are no material liabilities
or obligations, either fixed or contingent, not disclosed in the
Bioaccelerate Financial Statements or in any exhibit thereto or notes
thereto other than contracts or obligations in the ordinary course of
business and expenses incurred in connection with the transactions
contemplated by this Agreement; and no such contracts or obligations in
the ordinary course of business constitute liens or other liabilities
which materially alter the financial condition of Bioaccelerate as
reflected in the Bioaccelerate Financial Statements. Bioaccelerate has
good title to all assets shown on the
Bioaccelerate Financial Statements
subject only to dispositions and other transactions in the ordinary course
of business, the disclosures set forth therein and liens and encumbrances
of record.
(d) Since the date of the Bioaccelerate Financial Statements, there
have not been any material adverse changes in the financial position of
Bioaccelerate except changes arising in the ordinary course of business,
or from the incurrence of expenses in connection with the transactions
contemplated by this Agreement. which changes will in no event materially
and adversely affect the financial position of Bioaccelerate assuming
Closing occurs.
(e) Bioaccelerate is not a party to any material pending litigation
or, to its best knowledge, any governmental investigation or proceeding,
not reflected in the Bioaccelerate Financial Statements, and to its best
knowledge, no material litigation, claims, assessments or any governmental
proceedings are threatened against Bioaccelerate .
(f) Bioaccelerate is in good standing in its jurisdiction of
incorporation, and is in good standing and duly qualified to do business
in each jurisdiction where required to be so qualified except where the
failure to so qualify would have no material negative impact on
Bioaccelerate .
(g) Bioaccelerate has (or, by the Closing Date, will have filed) all
material tax, governmental and/or related forms and reports (or extensions
thereof) due or required to be filed and has (or will have) paid or made
adequate provisions for all taxes or assessments which have become due as
of the Closing Date.
(h) Bioaccelerate has not materially breached any material agreement
to which it is a party. Bioaccelerate has previously given MODS copies or
access thereto of all material contracts, commitments and/or agreements to
which BIOACCELERATE is a party including all relationships or dealings
with related parties or affiliates.
(i) Bioaccelerate has no subsidiary corporations except as disclosed
in writing to MODS.
(j) Bioaccelerate has made all material corporate financial records,
minute books, and other corporate documents and records available for
review to present management of MODS prior to the Closing Date, during
reasonable business hours and on reasonable notice.
(k) The execution of this Agreement does not materially violate or
breach any material agreement or contract to which Bioaccelerate is a
party and has been duly authorized by all appropriate and necessary
corporate action under Delaware or other applicable law and Bioaccelerate,
to the extent required, has obtained all necessary approvals or consents
required by any agreement to which Bioaccelerate is a party.
(l) All disclosure information provided by Bioaccelerate for the
purpose of being set forth in disclosure documents of MODS or otherwise
delivered to MODS by Bioaccelerate for use in connection with the
transaction (the "Acquisition") described herein is true, complete as to
the items described) and accurate in all material respects.
9. Representations of MODS and Dixon. MODS, and Dixon to the best
of his knowledge, hereby jointly and severally represent and warrant as
follows, each of which representations and warranties shall continue to be
true as of the Closing Date:
(a) As of the Closing Date, the MODS Shares, to be issued and
delivered to the Bioaccelerate Stockholders hereunder will, when so
issued and delivered, constitute, duly authorized, validly and legally
issued shares of MODS common stock, fully-paid and nonassessable. The
total number of MODS shares of common stock outstanding as of the Closing
Date shall be 1,375,085 prior to the completion of the acquisition of
Bioaccelerate. As of the Closing Date, MODS will have no outstanding or
authorized securities, warrants, options, other rights to purchase or
otherwise acquire capital stock or securities of the Company, preemptive
rights, rights of first refusal, registration rights or related
commitments of any nature other than as described herein. Lynn Dixon
hereby agrees to surrender for cancellation sufficient shares as required
to round up all fractional shares so that MODS has 1,375,085 shares
outstanding at closing.
(b) MODS has the corporate power and authority to enter into this
Agreement and to perform its respective obligations hereunder. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all
necessary corporate action, including the board of directors and
shareholders of MODS. The execution and performance of this Agreement
will not constitute a material breach of any agreement, indenture,
mortgage, license or other instrument or document to which MODS is a party
or by which its assets and properties are bound, and will not violate any
judgment, decree, order, writ, rule, statute, or regulation applicable to
MODS or its properties. The execution and performance of this Agreement
will not violate or conflict with any provision of the Articles of
Incorporation or by-laws of MODS.
(c) MODS has delivered to Bioaccelerate a true and complete copy of
its audited financial statements for the years ended December 31, 2001,
2002, and 2003, as well as for the six months ended June 30, 2004. (the
"MODS Financial Statements"). The MODS Financial Statements are complete,
accurate and fairly present the financial condition of MODS as of the
dates thereof and the results of its operations for the periods them
ended. There are no material liabilities or obligations either fixed or
contingent not reflected therein. The MODS Financial Statements have been
prepared in accordance with generally accepted accounting principles
applied on a consistent basis (except as may be indicated therein or in
the notes thereto) and fairly present the financial position of MODS as of
the dates thereof and the results of it operations and changes in
financial position for the periods then ended. Immediately following the
Closing, DHTS's present management will cause all of MODS's financial
records, including state and federal tax returns, to be delivered to new
management nominated by the Bioaccelerate stockholders.
(d) Since June 30, 2004, there have not been any material adverse
changes in the financial condition of MODS except with regard to
disbursements to pay reasonable and ordinary expenses in connection with
maintaining its corporate status and pursuing the matters contemplated in
this Agreement and the disposition of MODS's remaining assets and the
payment of all liabilities. Prior to Closing, all accounts payable and
other liabilities of MODS shall be paid and satisfied in full and MODS
shall, at Closing, have no obligations, debts, claims or liabilities of
any nature either contingent or fixed (including without limitation, any
tax liabilities not yet due, except for Nevada franchise taxes, if any).
(e) MODS is not a party to or the subject of any pending litigation,
claims, decrees, orders, stipulations or governmental investigation or
proceeding not reflected in the MODS Financial Statements or otherwise
disclosed herein, and there are no lawsuits, claims, assessments,
investigations, or similar matters, threatened or contemplated against or
affecting MODS, its management or its properties.
(f) MODS is duly organized, validly existing and in good standing
under the laws of the State of Nevada; has the corporate power to own its
property and to carry on its business as now being conducted and is duly
qualified to do business in any jurisdiction where so required except
where the failure to so qualify would have no material negative impact on
it.
(g) MODS has filed all federal, state, county and local income,
excise, property and other tax, governmental and/or related returns,
forms, or reports, which are due or required to be filed by it prior to
the date hereof, except where the failure to do so would have no material
adverse impact on MODS, and has paid or made adequate provision in the
MODS Financial Statements for the payment of all taxes, fees, or
assessments which have or may become due pursuant to such returns or
pursuant to any assessments received. MODS is not delinquent or obligated
for any tax, penalty, interest, delinquency or charge.
(h) There are no existing options, calls, warrants, preemptive
rights or commitments of any character relating to the issued or unissued
capital stock or other securities of MODS, except as contemplated in this
Agreement.
(i) The corporate financial records, minute books, and other
documents and records of MODS have been made available to Bioaccelerate
prior to the Closing and shall be delivered to new management of MODS at
Closing.
(j) MODS has not breached, nor is there any pending, or to the
knowledge of management, any threatened claim that MODS has breached, any
of the terms or conditions of any agreements, contracts or commitments to
which it is a party or by which it or its assets are is bound. The
execution and performance hereof will not violate any provisions of
applicable law or any agreement to which MODS is subject. MODS hereby
represents that it has no business operations or material assets and it is
not a party to any material contract or commitment other than appointment
documents with its transfer agent, and that it has disclosed to
Bioaccelerate all relationships or dealings with related parties or
affiliates.
(k) MODS common stock is currently approved for quotation on the
Electronic Bulletin under the symbol "MODS" and there are no stop orders
in effect with respect thereto. MODS has provided Bioaccelerate with
copies of all correspondence between MODS and NASDAQ and MODS and the
NASD. MODS has not been informed, and has no reason to believe, that its
common stock will be delisted by the NASD.
(l) All information regarding MODS which has been provided to
Bioaccelerate or otherwise disclosed in connection with the transactions
contemplated herein, is true, complete and accurate in all material
respects. MODS has provided to BIOACCELERATE all material information
regarding MODS. MODS and Dixon specifically disclaim any responsibility
regarding disclosures as to Bioaccelerate, its business or its financial
condition.
(m) As of Closing the outstanding capitalization of MODS shall
consist of 2,500,000 shares of common stock, but prior to the issuance of
shares to the Bioaccelerate Stockholders pursuant to the terms of this
Agreement, But not including any options under the 2003 Stock Option Plan
to be adopted at Closing.
(n) The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby will not (a)
constitute a violation (with or without the giving of notice or lapse of
time, or both) of any provision of law or any judgment, decree, order,
regulation or rule of any court or other governmental authority applicable
to MODS, (b) require any consent, approval or authorization of, or
declaration, filing or registration with, any person, except for
compliance with applicable securities laws and the filing of all documents
necessary to consummate the transaction with any governmental entity, (c)
result in a default (with or without the giving of notice or lapse of
time, or both) under, acceleration or termination of, or the creation in
any party of the right to accelerate, terminate, modify or cancel, any
agreement, lease, note or other restriction, encumbrance, obligation or
liability to which MODS is a party or by which either is bound or to which
any of their assets are subject, (d) result in the creation of any
material lien or encumbrance upon the assets of MODS or the funds being
delivered in connection herewith, or (e) conflict with or result in a
breach of or constitute a default under any provision of the charter
documents of MODS.
(o) MODS has, and at the Closing Date MODS shall have, disclosed to
Bioaccelerate all events, conditions and facts materially affecting the
business, finances and legal status of MODS.
(p) The corporate financial records, minute books, and other records
of MODS are to be available to Bioaccelerate prior to the Closing Date and
will be turned over to newly appointed management of MODS, in their
entirety, at Closing.
(q) There are no existing or threatened liabilities, claims,
lawsuits, nor to MODS's best knowledge, is there any basis for the same,
with respect to MODS's original stock issuance to its founders, its
subsequent securities offerings, solicitation of proxies in connection
with any stockholders' meeting, other dealings with its stockholders, the
public trading of MODS's securities, activities of brokers in connection
with MODS's securities, whether on behalf of the Securities and Exchange
Commission, state agencies or other persons. This includes matters
relating to state or federal securities laws as well as general common law
or state corporation law principles.
(r) This Agreement is enforceable against MODS in accordance with
its terms.
(s) MODS has files all periodic reports required to be filed with the
SEC and all such reports are accurate and complete in all material
respects.
10. Closing. The Closing of the transactions contemplated herein
shall take place on such date (the "Closing") as mutually determined by
the parties hereto when all conditions precedent have been met and all
required documents have been delivered, which Closing is expected to take
place as soon as practicable but no later than August 31, 2004, unless
extended by mutual consent of all parties hereto. The "Closing Date" of
the transactions described herein (the "Acquisition"), shall be that date
on which all conditions set forth herein have been met and the MODS Shares
are issued in exchange for the BIOACCELERATE Common Stock. Absent further
mutual agreement, no party shall have any further obligations under this
Agreement if all conditions precedent to its obligations are not fulfilled
by August 31, 2004.
11. Conditions Precedent to the Obligations of Bioaccelerate . All
obligations of BIOACCELERATE under this Agreement are subject to the
fulfillment, prior to or as of the Closing and/or the Closing Date, as
indicated below, of each of the following conditions:
(a) The representations and warranties by or on behalf of Dixon and
MODS contained in this Agreement or in any certificate or document
delivered pursuant to the provisions hereof shall be true in all material
respects at and as of the Closing and Closing Date as though such
representations and warranties were made at and as of such time.
(b) MODS shall have performed and complied with all covenants,
agreements, and conditions set forth in, and shall have executed and
delivered all documents required by this Agreement to be performed or
complied with or executed and delivered by it prior to or at the Closing.
(c) On or before the Closing, the board of directors, and
shareholders representing a majority interest the outstanding common stock
of MODS, shall have approved in accordance with applicable state
corporation law the execution and delivery of this Agreement and the
consummation of the transactions contemplated herein.
(d) On or before the Closing Date, MODS shall have delivered to
Bioaccelerate certified copies of resolutions of the board of directors
and shareholders of MODS approving and authorizing the execution, delivery
and performance of this Agreement and authorizing all of the necessary and
proper action to enable MODS to comply with the terms of this Agreement
including the election of Bioaccelerate 's nominees to the Board of
Directors of MODS and all matters outlined herein.
(e) The Acquisition shall be permitted by applicable law and MODS
shall have sufficient shares of its capital stock authorized to complete
the Acquisition.
(f) At Closing, the existing sole officer and director of MODS shall
have resigned in writing from all positions as director and officer of
MODS effective upon the election and appointment of the Bioaccelerate
nominees.
(g) At the Closing, all instruments and documents delivered to
Bioaccelerate and Bioaccelerate Stockholders, and all actions taken by
MODS, pursuant to the provisions hereof, and all matters relating to
compliance with applicable securities laws, shall be reasonably
satisfactory to legal counsel for Bioaccelerate .
(h) The shares of restricted MODS capital stock to be issued to
Bioaccelerate Stockholders at Closing will be validly issued,
nonassessable and fully-paid under Nevada corporation law and will be
issued in compliance with all federal, state and applicable corporation
and securities laws.
(i) Bioaccelerate and Bioaccelerate Stockholders shall have
received the advice of their tax advisor, if deemed necessary by them, as
to all tax aspects of the Acquisition.
(j) Bioaccelerate shall have received all necessary and required
approvals and consents from required parties and its shareholders.
(k) At the Closing, MODS shall have delivered to Bioaccelerate an
opinion of its counsel dated as of the Closing to the effect that:
(i) MODS is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its
incorporation;
(ii) This Agreement has been duly authorized, executed and
delivered by MODS and is a valid and binding obligation of MODS
enforceable in accordance with its terms;
(iii) MODS through its board of directors and stockholders has
taken all corporate action necessary for performance under this
Agreement, including, without limitation, authorization and
effectuation of the reverse stock split and the amendment of its
Articles of Incorporation.
(iv) The documents executed and delivered by MODS to
Bioaccelerate and Bioaccelerate Stockholders hereunder are valid
duly executed and delivered, and binding in accordance with their
terms and vest in Bioaccelerate Stockholders, as the case may be,
all right, title and interest in and to the MODS Shares to be issued
pursuant to the terms hereof, and the MODS Shares when issued will be
duly and validly issued, fully-paid and nonassessable;
(v) MODS has the corporate power to execute, deliver and
perform under this Agreement;
(vi) The execution, delivery and performance of this Agreement
and the, consummation of the transactions contemplated hereby will
not (a) to the best of such counsel's knowledge, constitute a
violation (with or without the giving of notice or lapse of time, or
both) of any provision of law or any judgment, decree, order,
regulation or rule of any court or other governmental authority
applicable to MODS, (b) require any consent, approval or
authorization of, or declaration, filing or registration with, any
person, except for compliance with applicable securities laws and the
filing of all documents necessary to consummate the transaction with
any governmental entity, (c) to the best of such counsel's knowledge
result in a default (with or without the giving of notice or lapse of
time, or both) under, acceleration or termination of, or the creation
in any party of the right to accelerate, terminate, modify or cancel,
any agreement, lease, note or other restriction, encumbrance,
obligation or liability to which MODS is a party or by which either
is bound or to which any of their assets are subject, (d) result in
the creation of any material lien or encumbrance upon the assets of
MODS or the funds being delivered in connection herewith, or (e)
conflict with or result in a breach of or constitute a default under
any provision of the charter documents of MODS
(vii) Legal counsel for MODS is not aware of any liabilities,
claims or lawsuits involving MODS; and
12. Conditions Precedent to the Obligations of MODS. All
obligations of MODS under this Agreement are subject to the fulfillment,
prior to or at the Closing, of each of the following conditions:
(a) The representations and warranties by Bioaccelerate and
Bioaccelerate Stockholders contained in this Agreement or in any
certificate or document delivered pursuant to the provisions hereof shall
be true in all material respects at and as of the Closing as though such
representations and warranties were made at and as of such time.
(b) Bioaccelerate shall have performed and complied with, in all
material respects, all covenants, agreements, and conditions required by
this Agreement to be performed or complied with by it prior to or at the
Closing;
(c) Bioaccelerate shall deliver on behalf of each of the
Bioaccelerate Stockholders a letter commonly known as an "Investment
Letter," signed by each of said shareholders, in substantially the form
attached hereto as Exhibit "C", acknowledging that the MODS Shares are
being acquired for investment purposes.
(d) Bioaccelerate shall deliver an opinion of its legal counsel to
the effect that:
13. Indemnification. For a period of one year from the Closing,
MODS and Dixon agree to jointly and severally indemnify and hold harmless
Bioaccelerate and the Bioaccelerate Stockholders, and Bioaccelerate
agrees to indemnify and hold harmless MODS and Dixon, at all
times after
the date of this Agreement against and in respect of any liability, damage
or deficiency, all actions, suits, proceedings, demands, assessments,
judgments, costs and expenses including attorney's fees incident to any of
the foregoing, resulting from any material misrepresentations made by an
indemnifying party to an indemnified party, an indemnifying party's breach
of covenant or warranty or an indemnifying party's nonfulfillment of any
agreement hereunder, or from any material misrepresentation in or omission
from any certificate furnished or to be furnished hereunder.
To the extent there is a material breach in this Agreement pursuant
to which Bioaccelerate is entitled to indemnification, Bioaccelerate shall
be entitled to cause MODS management to issue to the Bioaccelerate
Stockholders additional shares of MODS common stock based on its fair
market value at the time in an amount equal to any claim or liability
which may arise, all in addition to any other remedies which may be
available.
14. Nature and Survival of Representations. All representations,
warranties and covenants made by any party in this Agreement shall survive
the Closing and the consummation of the transactions contemplated hereby
for one year from the Closing. All of the parties hereto are executing
and carrying out the provisions of this Agreement in reliance solely on
the representations, warranties and covenants and agreements contained in
this Agreement and not upon any investigation upon which it might have
made or any representation, warranty, agreement, promise or information,
written or oral, made by the other party or any other person other than as
specifically set forth herein.
15. Documents at Closing. At the Closing, the following documents
shall be delivered:
(a) Bioaccelerate will deliver, or will cause to be delivered, to
MODS the following:
(i) a certificate executed by the President and Secretary of
Bioaccelerate to the effect that all representations and warranties
made by Bioaccelerate under this Agreement are true and correct as of
the Closing, the same as though originally given to MODS on said
date;
(ii) a certificate from the jurisdiction of incorporation of
Bioaccelerate dated at or about the Closing to the effect that
Bioaccelerate is in good standing under the laws of said
jurisdiction;
(iii) Investment Letters in the form attached hereto as Exhibit
"C" executed by each Bioaccelerate Stockholder;
(iv) such other instruments, documents and certificates, if
any, as are required to be delivered pursuant to the provisions of
this Agreement;
(v) certified copies of resolutions adopted by the shareholders
and/or directors of Bioaccelerate authorizing this transaction; and
(vi) all other items, the delivery of which is a condition
precedent to the obligations of MODS as set forth herein.
(b) MODS will deliver or cause to be delivered to Bioaccelerate:
(i) stock certificates representing the MODS Shares to be issued
as a part of the stock exchange as described herein;
(ii) a certificate of the President of MODS, to the effect that
all representations and warranties of MODS made under this Agreement
are true and correct as of the Closing, the same as though originally
given to Bioaccelerate on said date;
(iii) certified copies of resolutions adopted by MODS's board
of directors and MODS's Stockholders authorizing the Acquisition and
all related matters described herein;
(iv) certificate from the jurisdiction of incorporation of MODS
dated at or about the Closing Date that MODS is in good standing
under the laws of said state;
(v) opinion of MODS's counsel as described in Section 11(k)
above;
(vi) such other instruments and documents as are required to be
delivered pursuant to the provisions of this Agreement;
(vii) resignation of the existing officer and director of MODS;
(viii) all corporate and financial records of MODS; and
(ix) all other items, the delivery of which is a condition
precedent to the obligations of Bioaccelerate , as set forth in
Section 12 hereof.
16. Finder's Fees. MODS, represents and warrants to
Bioaccelerate , and Bioaccelerate represents and warrants to MODS that
neither of them, or any party acting on their behalf, has incurred any
liabilities, either express or implied, to any "broker" of "finder" or
similar person in connection with this Agreement or any of the
transactions contemplated hereby other than the arrangements described in
Section 5(d) hereof, which do not include any finders fees. In this
regard, MODS, on the one hand, and Bioaccelerate on the other hand, will
indemnify and hold the other harmless from any claim, loss, cost or
expense whatsoever (including reasonable fees and disbursements of
counsel) from or relating to any such express or implied liability other
than as disclosed herein.
17. Miscellaneous.
(a) Further Assurances. At any time, and from time to time, after
the Closing Date, each party will execute such additional instruments and
take such action as may be reasonably requested by the other party to
confirm or perfect title to any property transferred hereunder or
otherwise to
carry out the intent and purposes of this Agreement.
(b) Waiver. Any failure on the part of any party hereto to comply
with any of its
obligations, agreements or conditions hereunder may be waived in writing
by the party to whom such compliance is owed.
(c) Amendment. This Agreement may be amended only in writing as
agreed to by all parties hereto.
(d) Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been given if delivered in
person or sent by prepaid first class registered or certified mail, return
receipt requested.
(e) Headings. The section and subsection headings in this Agreement
are inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
(f) Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
(g) Governing Law. This Agreement shall be construed and enforced
in accordance with the laws of the State of Nevada.
(h) Binding Effect. This Agreement shall be binding upon the
parties hereto and inure to the benefit of the parties, their respective
heirs, administrators, executors, successors and assigns.
(i) Entire Agreement. This Agreement and the attached Exhibits
constitute the entire agreement of the parties covering everything agreed
upon or understood in the transaction. There are no oral promises,
conditions, representations, understandings, interpretations or terms of
any kind as conditions or inducements to the execution hereof.
(j) Severability. If any part of this Agreement is deemed to be
unenforceable the balance of the Agreement shall remain in full force and
effect.
IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above written.
MOBILE DESIGN CONCEPTS, INC.
By:
Lynn Dixon, President
Lynn Dixon, individually
BIOACCELERATE, INC.
By:______________________________
C:\TGK\BioAcc\Agreememt and Plan of reorganization1.doc
EXHIBIT "A"
To Agreement and Plan of Reorganization
List of Bioaccelerate Shareholders
Name and Address Bioaccelerate Shares MODS Shares
EXHIBIT "B"
To Agreement and Plan of Reorganization
Form of Amendment to Articles of Incorporation
EXHIBIT "C"
To Agreement and Plan of Reorganization
Form of Investment Letter