AGREEMENT AND PLAN OF REORGANIZATION
MRI Medical Diagnostics, Inc.
This Agreement is made as of the 20th day of June, 1997 by and among MRI
Medical Diagnostics, Inc., a Colorado corporation (hereinafter referred to
as "MRI") and Alpine Herbs & Nutrition International, Inc. a Nevada
corporation having its principal office in Palm Desert, California
(hereinafter referred to as "Alpine"), and is based on the following:
PREMISES
A. This Agreement provides for the exchange of all of the
outstanding common stock of Alpine for shares of common voting stock of
MRI, all for the purpose of effecting a tax-free reorganization pursuant to
Sections 354, 368(a)(1)(A) and 368(a)(2)(E) of the Internal Revenue Code of
1986, as amended.
B. The Boards of Directors of Alpine and MRI have agreed, subject to
the conditions set forth in this Agreement, and by these premises do hereby
evidence their agreement, that it is desirable and in the best interests of
said corporations and their stockholders, that Alpine be held as a wholly-
owned subsidiary of MRI. This Agreement is being entered into for the
purposes of setting forth the terms and conditions of the exchange of the
shares of Alpine into shares of MRI.
AGREEMENT
Now, therefore, on the stated premises and for and in consideration of
the mutual covenants and agreements hereinafter set forth and the mutual
benefits to the parties to be derived here from, it is hereby agreed as
follows:
ARTICLE 1
REPRESENTATIONS, COVENANTS AND WARRANTIES OF MRI
As an inducement to, and to obtain the reliance of Alpine, MRI
represents and warrants as follows:
1.1 ORGANIZATION, GOOD STANDING, POWER, ETC. MRI (i) is a
corporation duly organized, validly existing and in good standing under
the law of the State of Colorado; (ii) is qualified or authorized to do
business as a foreign corporation and is in good standing in all
jurisdictions in which qualification or authorization may be required;
and (iii) has all requisite corporate power and authority, licenses and
permits to own or lease and operate their properties and carry on their
business as presently being conducted and to execute, deliver and perform
this Agreement and consummate the transactions contemplated hereby.
1.2 CERTIFICATE OF INCORPORATION AND BYLAWS. Upon execution of
this Agreement by both parties MRI will furnish to Alpine's
representatives complete and correct copies of (i) their
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Certificates of Incorporation, as amended to date, and (ii) their Bylaws,
as amended to date. MRI's Certificate of Incorporation and Bylaws are in
full force and effect, and they are not in violation of any of the
provisions thereof.
1.3 CAPITALIZATION. The authorized capital stock of MRI consists
solely of 50,000,000 shares of Common Stock, no par value, (the "MRI
Common Stock"), of which, on the date hereof 42,500,000 shares are issued
and outstanding and no shares are held in the treasury of MRI. Subject
to the Closing of this Agreement, MRI shall effectuate five (5) to one
(1) share reverse split resulting in 8,500,000 shares outstanding. At
the Closing of this Agreement, 4,000,000 shares of MRI Common Stock will
have been lawfully and validly issued to the Shareholders of Alpine. All
of such issued and outstanding shares of the MRI Common Stock have been
duly authorized and validly issued and are fully paid and non-assessable
with no personal liability attaching to the ownership thereof. MRI also
has authorized 10,000,000 shares of preferred stock, no par value, of
which none is nor has ever been issued. All issued and outstanding
shares are legally issued, fully paid and nonassessable, and were not
issued in violation of the preemptive or other rights of any person.
1.4 OPTIONS, WARRANTS, RIGHTS, ETC. MRI does not have outstanding
any option, warrant or other right to purchase or convert any obligation
into, any shares of MRI Common Stock, nor any instruments or obligations
to confer or create such rights.
1.5 SUBSIDIARIES. MRI has no subsidiaries, and MRI does not own a
controlling interest in any capital stock of any corporation.
1.6 AUTHORIZATION OF AGREEMENT. This Agreement has been or will be
at Closing duly and validly authorized, executed and delivered by MRI.
1.7 TAX MATTERS. On or before Closing, MRI will have prepared and
filed with the appropriate United States, state and local governmental
agencies, and all foreign countries and political subdivisions thereof,
all tax returns required to be filed through its March 31, 1996 Fiscal
year; MRI will have paid all taxes shown on such tax returns to be
payable or which have become due pursuant to any assessment, deficiency,
notice, 30-day letter or similar notice received by it; and the
provisions for income taxes payable in the Balance Sheets of MRI
delivered to Alpine are sufficient for all accrued and unpaid taxes,
whether or not disputed and for all periods to and including the date of
such Balance Sheet. On or before Closing, MRI will provide true and
accurate copies of all tax returns filed for the last three fiscal years.
1.8 COMPLIANCE WITH APPLICABLE LAWS. The conduct by MRI of their
business does not violate or infringe on any domestic (federal, state or
local) or foreign law, statute, ordinance or regulation now in effect,
or, to the knowledge of MRI , proposed to be adopted, the enforcement of
which would materially and adversely affect its business or the value of
its properties or assets.
1.9 LITIGATION. There is no material claim, action, suit,
proceeding, arbitration, investigation or inquiry pending before any
federal, state, municipal, foreign or other court or governmental or
administrative body or agency, or any private arbitration tribunal, or to
the knowledge of MRI, threatened, against, relating to or affecting MRI
or any of their properties or business, or the transactions contemplated
by this Agreement; nor to the knowledge of MRI is there any basis for any
such material claim, action, suit, proceeding, arbitration, investigation
or
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inquiry which may have any adverse effect upon the assets, properties or
business of MRI, or the transactions contemplated by this Agreement.
Neither MRI nor any officer, director, partner or employee of MRI , have
been permanently or temporarily enjoined by order, judgment or decree of
any court or other tribunal or any agency from engaging in or continuing
any conduct or practice in connection with the business engaged in by
MRI. There is not in existence at present any order, judgment or decree
of any court or other tribunal or any agency enjoining or requiring MRI
to take any material action of any kind or to which MRI or their
respective business, properties or assets are subject or bound. MRI are
not in default under any order, license, regulation or demand of any
federal, state or municipal or other governmental agency or with respect
to any order, writ, injunction or decree or any court which would have a
materially adverse impact upon MRI's operations or affairs.
1.10 OTHER INFORMATION. MRI does not presently have any material
contractual commitments, non-executive officer employees or employee
benefit commitments. In addition, none of the information and documents
made or to be made available by MRI or any of its representatives to
Alpine or any of its representatives in connection with the transactions
contemplated by this Agreement is materially false or misleading or
contains any material misstatements of fact or omits any material fact
necessary to be stated in order to make the statements therein not
misleading.
1.11 NO ADVERSE CHANGES. Since the date of MRI's most recent
audited financial statements, there has been no material adverse change
in MRI's financial condition, assets, liabilities, or business.
1.12 EXCHANGE ACT FILINGS AND FINANCIAL STATEMENTS. On or before
Closing, MRI will have delivered to Alpine true and accurate copies of
all Financial Statements and reports filed by MRI with the United States
Securities and Exchange Commission (the SEC) pursuant to Section 12(g) of
the Securities Exchange Act of 1934 (the 1934 Act) through December 31,
1993 including without limitation, registration statements, 10-K's,
10-Q's, Form 8's, etc. for each of the annual, quarterly or other fiscal
periods from the first to its last filings in 1993. MRI financial
statements have been prepared in accordance with generally accepted
accounting principles applied on a basis consistent with that of prior
years or periods and fairly present the financial position and results of
operations of MRI as of the respective dates and for the periods
indicated in such statements. The Balance Sheets of MRI included in the
statements make full and adequate provision for all obligations,
liabilities or commitments (fixed and contingent) of MRI as of their
respective dates. As of the date of such financial statements, MRI had
no material obligations, liabilities or commitments (fixed or contingent)
not required to be reserved against in the foregoing financial statements
or disclosed in the notes thereto in accordance with generally accepted
accounting principles, and since the date of the most recent balance
sheet has not incurred any material obligations, liabilities or
commitments except the transactions contemplated by this Agreement. MRI
will file all reports required of it under the 1934 Act as a result of
this transaction, including a Form 8-K.
1.13 SHAREHOLDER LIST. Upon execution of this Agreement by both
parties, MRI shall furnish to Alpine a true and complete list of all
shareholders of MRI, including name, address, telephone number, and
relationship of any beneficial or indirect interests known to MRI or its
officers, directors, or advisors, of greater than 5,000 shares
individually and/or in the aggregate of such beneficial or indirect
interests.
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ARTICLE 2
REPRESENTATIONS, COVENANTS AND WARRANTIES OF ALPINE
As an inducement to, and to obtain the reliance of MRI, Alpine represents
and warrants as follows:
2.1 ORGANIZATION, GOOD STANDING, POWER, ETC. Alpine (i) is a
corporation duly organized, validly existing and in good standing under
the laws of the State of Nevada (ii) is qualified or authorized to do
business as a foreign corporation and is in good standing in all
jurisdictions in which qualification or authorization may be required;
and (iii) has all requisite corporate power and authority, licenses,
permits and franchises to own or lease and operate its properties and
carry on its business as presently being conducted and to execute,
deliver and perform this Agreement and consummate the transactions
contemplated hereby.
2.2 CERTIFICATE OF INCORPORATION AND BYLAWS. Upon execution of
this Agreement by both parties, Alpine will furnish to MRI's
representatives a complete and correct copy of (i) Alpine's Certificate
of Incorporation, as amended to date; and (ii) Alpine's Bylaws, as
amended to date. Alpine's Certificate of Incorporation and Bylaws are in
full force and effect, and Alpine is not in violation of any of the
provisions thereof.
2.3 CAPITALIZATION. The authorized capital stock of Alpine will
consist solely of 25,000 shares of Common Stock, no par value, (the
"Alpine Common Stock"), of which, on the date hereof 25,000 shares are
issued and outstanding and no shares are held in the treasury of Alpine.
All of such issued and outstanding shares of Alpine Common Stock and
preferred stock have been duly authorized and validly issued and are
fully paid and non-assessable with no personal liability attaching to the
ownership thereof.
2.4 OPTIONS, WARRANTS, RIGHTS, ETC. Alpine does not have
outstanding any option, warrant or other right to purchase or convert any
obligation into, any shares of the Alpine Common Stock, nor any
instruments or obligations to confer or create such rights.
2.5 SUBSIDIARIES. Alpine does not have any subsidiaries and does
not own a controlling interest in any capital stock of any corporation.
2.6 AUTHORIZATION OF AGREEMENT. This Agreement has been or will be
at Closing duly and validly authorized, executed and delivered by Alpine.
2.7 FINANCIAL STATEMENTS. Alpine has delivered or will deliver
prior to Closing, to MRI audited financial statements for its most recent
fiscal year, together with unaudited interim financial statements for the
five months ended May 31, 1997. These financial statements have been
prepared in accordance with generally accepted accounting principles
applied on a basis consistent with that of prior years or periods, are
correct and complete and fairly present the financial position and
results of operations of Alpine as of the respective dates and for the
periods indicated in such statements. The Balance Sheets of Alpine
included in the statements make full and adequate provisions for all
obligations, liabilities or commitments (fixed and contingent) of
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Alpine as of their respective dates. As of the date of such financial
statements, Alpine has no obligations, liabilities or commitments (fixed
or contingent) not required to be reserved against in the foregoing
financial statements or disclosed in the notes thereto in accordance with
generally accepted accounting principles, except the transactions
contemplated by this Agreement.
2.8 MATERIAL CONTRACTS. Except as set forth herein, there has not
occurred any default by Alpine or any event which with the lapse of time
or the election of any person other than Alpine, or any combination
thereof, will become a default, except defaults, if any, which will not
result in any material loss to or liability of Alpine.
2.9 PERMITS, LICENSES, ETC. Alpine has all permits, licenses,
orders and approvals of federal, state, local or foreign governmental or
regulatory bodies that are required in order to permit it to carry on its
business as presently conducted.
2.10 COMPLIANCE WITH APPLICABLE LAWS. The conduct by Alpine of its
business does not violate or infringe upon any domestic (federal, state
or local) or foreign law, statute, ordinance or regulation now in effect,
or, to the knowledge of Alpine, proposed to be adopted, the enforcement
of which would materially and adversely affect its business or the value
of its properties or assets.
2.11 LITIGATION. There is no material claim, action, suit,
proceeding, arbitration, investigation or inquiry pending before any
federal, state, municipal, foreign or other court or governmental or
administrative body or agency, or any private arbitration tribunal, or to
the knowledge of Alpine threatened, against, relating to or affecting
Alpine or any of its properties or business, or the transactions
contemplated by this Agreement; nor to the knowledge of Alpine is there
any basis for any such material claim, action, suit, proceeding,
arbitration, investigation or inquiry which may have any adverse effect
upon the assets, properties or business of Alpine, or the transactions
contemplated by this Agreement. Neither Alpine nor any officer,
director, partner or employee of Alpine, has been permanently or
temporarily enjoined by order, judgment or decree of any court or other
tribunal or any agency from engaging in or continuing any conduct or
practice in connection with the business engaged in by Alpine. There is
not in existence at present any order, judgment or decree of any court or
other tribunal or any agency enjoining or requiring Alpine to take any
material action of any kind or to Alpine or its respective business,
properties or assets are subject or bound. Alpine is not in default
under any order, license, regulation or demand of any federal, state or
municipal or other governmental agency or with respect to any order,
writ, injunction or decree of any court which would have a materially
adverse impact upon Alpine's operations or affairs.
2.12 OTHER INFORMATION. None of the information and documents
which have been furnished or made available by Alpine or any of its
representatives to MRI or any of their representatives in connection with
the transactions contemplated by this Agreement is materially false or
misleading or contains any material misstatements of fact or omits any
material fact necessary to be stated in order to make the statements
therein not misleading.
2.13 INVESTMENT REPRESENTATION. The Alpine shareholders are
acquiring the shares of MRI Common Stock issuable hereunder for their own
account and agree not to distribute such Shares within the meaning of the
Securities Act of 1933 (the 1933 Act) unless an appropriate registration
statement has been filed with the SEC or unless an exemption from
registration under
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the 1933 Act is available according to opinion of counsel for MRI. Each
certificate for Shares shall be stamped or otherwise imprinted with the
following or a substantially similar legend:
"The shares represented by this certificate have not been registered
under the Securities Act of 1933 (the "Act") nor any state securities
laws. These shares may not be offered for sale, sold or otherwise
transferred except pursuant to an effective registration statement under
the Act or pursuant to an opinion of counsel acceptable to MRI that an
exemption from such registration is available."
On or before Closing, Alpine will obtain from all Alpine
shareholders information and representations that said shareholders have
sufficient investment sophistication and ability to take the financial
risks associated with this transaction and those representations
contained in this Section 2.13, which meet the standards for availability
of an exemption from the registration requirements of the 1933 Act and
from the registration and/or qualification requirements of any other
applicable securities law. The foregoing notwithstanding, the Shares
issuable hereunder may be registered in the name of or transferred to
family members, trusts and other related parties.
ARTICLE 3
PLAN OF EXCHANGE
3.1 THE EXCHANGE. The issued and outstanding shares of common
stock of Alpine shall be converted into shares of MRI Common Stock as
follows:
(a) Each share of Alpine Common Stock outstanding on the
Closing Date shall be converted into 160 shares of MRI Common Stock;
or a total of approximately 4,000,000 shares of MRI Common Stock for
all of the issued and outstanding shares of Alpine. MRI shall not
issue or exchange any fractional shares or interests in the MRI
Common Stock in connection with the foregoing conversion. If any
holder of Alpine common stock would otherwise be entitled to a
fractional share on exchange of such shares, MRI shall round the
number of shares of the MRI Common Stock to be issued to such
stockholder to the nearest whole share. The exchanged MRI Common
Stock shall thereupon be validly issued and outstanding, fully paid,
and nonassessable and shall not be liable to any further call, nor
shall the holder thereof be liable for any further payments with
respect thereto.
(b) After the Closing Date, each holder of an outstanding
certificate which prior thereto represented shares of Alpine Common
Stock shall be entitled, on surrender thereof to receive in exchange
therefor a certificate or certificates representing the number of
whole shares of MRI Common Stock into which the shares of Common
Stock so surrendered shall have been converted as aforesaid in such
denominations as such holder may request. Until so surrendered,
each such outstanding certificate (which prior to the Effective Date
of the exchange represented shares of Common Stock of Alpine) shall
for all purposes evidence the ownership of the shares of MRI Common
Stock into which such shares shall have been converted; provided,
that dividends or other distributions which are payable in respect
of shares of MRI Common Stock into which shares of Alpine shall not
be paid to holders of certificates representing such shares of
Alpine Common Stock until
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such certificates shall have been surrendered in exchange for
certificates representing MRI Common Stock. On such surrender, the
holder(s) of such shares shall be entitled to receive such dividends
or other distributions without interest.
3.2 CLOSING. The Closing of the transactions contemplated by this
Agreement shall take place on such date as may be agreed upon by the
parties, but no later than July 15, 1997 (herein called the "Closing
Date"), at the offices of MRI, 480 Camino Del Rio South, Suite 140, San
Diego, California 92108, or such other time and location as the parties
may mutually agree.
3.3 CLOSING EVENTS. At the Closing, each of the respective parties
hereto shall execute, acknowledge, and deliver (or shall cause to be
executed, acknowledged, and delivered) any agreements, resolutions, or
other instruments required by this Agreement to be so delivered at or
prior to the Closing, together with such other items as may be reasonably
requested by the parties hereto and their respective legal counsel in
order to effectuate or evidence the transactions contemplated hereby.
3.4 DIRECTORS OF MRI. Effective on the Closing Date of this
transaction, the Board of Directors of MRI shall consist of the
individuals named by Alpine in Section 3.5 hereof, and the existing
directors of MRI and any others shall have submitted their resignations
to take effect at closing.
3.5 OFFICERS OF MRI. Effective on the Closing Date of this
transaction all existing executive officers and employees of MRI shall
have submitted their resignations effective on Closing, and the Board
shall have elected new officers of MRI to consist of the following
persons:
NAME OFFICE
---- ------
Ronald C. Hibbard President, Treasurer, Director
Rod Jones Vice President, Secretary, Director
Dr. Arnold Fox Director
ARTICLE 4
SPECIAL COVENANTS
4.1 DUE DILIGENCE. The parties hereto shall have up to and
including June 30, 1997 within which to complete their due diligence
investigations on the other party and the transaction contemplated
hereunder. In the event either party hereto decides, in its sole
discretion, not to proceed with the Closing based on its due diligence
investigation, it shall notify the other in writing on or before 5:00
P.M. Pacific Time, June 30, 1997 of such decision and this Agreement,
except of Sections 4.4, 4.5 and 6.11 shall become null and void, and no
liability shall occur to any of the parties herein.
4.2 EXCHANGE OF INFORMATION. Each party shall cooperate fully by
exchanging information requested by the other party in a timely manner.
Without in any manner reducing or otherwise
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mitigating the representations contained herein, each party and/or its
attorneys shall have the opportunity to meet with the accountants and
attorneys of the other party to discuss its respective legal and
financial condition and this transaction. If this transaction is not
completed, all documents received by each party and/or its attorney shall
be returned to the other party and all such information so received shall
be treated as confidential in accordance with Section 6.11.
4.3 CONDUCT OF BUSINESS. Prior to Closing, MRI and Alpine shall
each conduct its business in the normal course, and shall not sell,
pledge, or assign any assets, without the prior written approval of the
other party, except in the regular course of business. Neither MRI or
Alpine shall amend its Articles of Incorporation or Bylaws, declare
dividends, redeem or sell stock or other securities, incur additional or
newly-funded liabilities, acquire or dispose of fixed assets, change
employment terms, enter into any material or long-term contract,
guarantee obligations of any third party, settle or discharge any balance
sheet receivable for less than its stated amount, pay more on any
liability than its stated amount, or enter into any other transaction
other than in the regular course of business and with notice to the other
party.
4.4 INDEMNIFICATION BY MRI. MRI agrees to indemnify, defend and
hold Alpine and their respective shareholders harmless against and in
respect of any and all claims, demands, losses, costs, expenses,
obligations, liabilities, damages, recoveries and deficiencies, including
interest, penalties, and reasonable attorney fees, that they shall incur
or suffer, which arise out of, result from or relate to any breach of, or
failure by MRI to perform any of its representations, warranties,
covenants or agreements in this Agreement or in any schedule,
certificate, exhibit or other instrument furnished or to be furnished by
MRI under this Agreement. This Section shall survive the Closing or a
decision not to proceed pursuant to Section 4.1.
4.5 INDEMNIFICATION BY ALPINE. Alpine agrees to indemnify, defend
and hold MRI and their respective shareholders harmless against and in
respect of any and all claims, demands, losses, costs, expenses,
obligations, liabilities, damages, recoveries and deficiencies, including
interest, penalties, and reasonable attorney fees, that they shall incur
or suffer, which arise out of, result from or relate to any breach of, or
failure by Alpine to perform any of its representations, warranties,
covenants or agreements in this Agreement or in any schedule,
certificate, exhibit or other instrument furnished or to be furnished by
Alpine under this Agreement. This Section shall survive the Closing or a
decision not to proceed pursuant to Section 4.1.
4.6 FILINGS PURSUANT TO THE SECURITIES EXCHANGE ACT OF 1934. After
Closing, MRI (by its new management) agrees to file all necessary
documents and information on the appropriate forms, with the SEC, which
are necessary to bring current and maintain MRI as a full reporting
company under the 1934 Act. Such filing(s) shall be made as soon as
possible after the Closing.
4.7 NASDAQ QUOTATION. After Closing, MRI (by its new management)
agrees to use its best efforts to cause the outstanding shares of the MRI
Common Stock to be included in the NASDAQ Stock Market as soon as
reasonably possible upon meeting NASDAQ requirements.
ARTICLE 5
CONDITIONS PRECEDENT TO OBLIGATIONS OF PARTIES
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5.1 ALPINE'S CLOSING CONDITIONS. The obligations of Alpine
hereunder are subject to fulfillment prior to or at the Closing of each
of the following conditions:
(a) CLOSING DATE. The transactions contemplated by this
Agreement shall be closed on or before July 15, 1991.
(b) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of MRI made pursuant to Article 1 above, shall be true
and accurate in all material respects as of the Closing Date.
(c) Performance. MRI shall have performed and complied with
all agreements and conditions required by this Agreement to be
performed or complied with by it prior to or at the Closing.
(d) NO ADVERSE CHANGES. There shall not have been, since the
date of the latest audited financial statements of MRI, any
materially adverse change in MRI's financial condition, assets,
liabilities or business.
(e) OPINION OF MRI'S COUNSEL. MRI shall have delivered to
Alpine an opinion of MRI's counsel dated the Closing Date to the
effect that: (i) MRI is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Colorado, has all requisite power to carry on its business as now
being conducted and to execute, deliver and perform this Agreement
and to perform its obligations thereunder; (ii) MRI is duly
qualified to do business as a foreign corporation and is good
standing in each jurisdiction in which the nature of the business
conducted by it or the property owned, operated or leased by it
makes such qualification necessary; (iii) this Agreement has been
duly authorized by all necessary corporate action on the part of
MRI, has been duly executed and delivered by MRI and constitutes the
legal, valid and binding obligation of MRI enforceable in accordance
with its terms except as enforceability thereof may be limited by
the insolvency or other laws affecting the rights of creditors and
the enforcement of remedies; (iv) MRI has prepared and filed with
the SEC all periodic reports required of it under the 1934 Act
through December 31, 1993; (v) the Shares issuable hereunder have
been duly authorized and will be validly issued; fully paid and
non-assessable with no personal liability attaching to the ownership
thereof; (vi) neither the execution, delivery and performance by MRI
of this Agreement, nor compliance by MRI with the terms and
provisions hereof, will conflict with, or result in a breach of the
terms, conditions or provisions of, or will constitute a default
under, the Articles of Incorporation or Bylaws of MRI or any
agreement or instrument known to such counsel to which MRI is a
party or by which MRI or any of its properties or assets are bound;
(vii) there are no actions, suits or proceedings pending or, to the
knowledge of such counsel, threatened against MRI before any court
or administrative agency, which have, in the opinion of such
counsel, if adversely decided, will have any material adverse effect
on the business or financial condition of MRI or which questions the
validity of this Agreement or the Shares issuable hereunder. In
rendering his opinion, counsel shall be allowed to rely on written
representations of officers and directors of the Company as to
factual matters without independent verification thereof.
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(f) CURRENT STATUS WITH SECURITIES AND EXCHANGE COMMISSION.
MRI shall have prepared and filed with the SEC all periodic reports
required under the 1934 Act pursuant to Section 15(d) thereof
through December 31, 1993.
(g) DUE DILIGENCE. Alpine shall have completed and be
satisfied with its due diligence investigation of MRI pursuant to
Article 4.
5.2 MRI'S CLOSING CONDITIONS. The obligations of MRI hereunder are
subject to fulfillment prior to or at the Closing of each of the
following conditions:
(a) CLOSING DATE. The transactions contemplated by this
Agreement shall be closed on or before July 15, 1997.
(b) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Alpine made pursuant to Article 2 above, shall be true
and accurate in all material respects as of the Closing Date.
(c) PERFORMANCE. Alpine shall have performed and complied
with all agreements and conditions required by this Agreement to be
performed or complied with by it prior to or at the Closing.
(d) NO ADVERSE CHANGES. There shall not have been, since the
date of the latest audited financial statements of Alpine, any
materially adverse change in Alpine's financial condition, assets,
liabilities or business.
(e) OPINION OF ALPINE'S COUNSEL. Alpine shall have delivered
to MRI, an opinion of Alpine's counsel dated the Closing Date to the
effect that: (i) Alpine is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada
has all requisite power to carry on its business as now being
conducted and to execute, deliver and perform this Agreement and to
perform its obligations thereunder; (ii) Alpine is duly qualified to
do business as a foreign corporation and is in good standing in each
jurisdiction in which the nature of the business conducted by it or
the property owned, operated or leased by it makes such
qualification necessary; (iii) this Agreement has been duly
authorized by all necessary corporate action on the part of Alpine,
has been duly executed and delivered by Alpine and constitutes the
legal, valid and binding obligation of Alpine, enforceable in
accordance with its terms except as enforceability thereof may be
limited by the insolvency or other laws affecting the rights of
creditors and the enforcement of remedies; (iv) neither the
execution, delivery and performance by Alpine of this Agreement, nor
compliance by Alpine with the terms and provisions hereof, will
conflict with, or result in a breach of the terms, conditions or
provisions of, or will constitute a default under, the Articles of
Incorporation or Bylaws of Alpine or any agreement or instrument
known to such counsel to which Alpine is a party or by which Alpine
or any of its properties or assets is bound; (v) there are no
actions, suits or proceedings pending or, to the knowledge of such
counsel, threatened against Alpine before any court or
administrative agency, which, in the opinion of such counsel, if
adversely decided, will have any material adverse effect on the
business or financial condition of Alpine or which questions the
validity of this Agreement. In rendering their
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opinion, counsel shall be allowed to rely on written representations
of officers and directors of the Company as to factual matters
without independent verification thereof.
(f) DUE DILIGENCE. MRI shall have completed and be satisfied
with its due diligence investigation of Alpine pursuant to Article
4.
(g) SHAREHOLDER APPROVAL. MRI shall have received on or
before closing shareholder approval pursuant to Colorado law of the
Reverse Split.
ARTICLE 6
MISCELLANEOUS
6.1 EXPENSES AND FURTHER ASSURANCES. The parties hereto shall each
bear their respective costs and expenses incurred in connection with the
transactions contemplated by this Agreement. Each party hereto will use
its best efforts provide any and all additional information, execute and
deliver any and all documents or other written material and perform any
and all acts necessary to carry-out the intent of this Agreement.
6.2 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. All of
the representations, warranties and covenants made as of the date of this
Agreement and as of Closing, shall survive the closing of this
transaction.
6.3 SUCCESSORS AND ASSIGNS. All representations, warranties,
covenants and agreements in this Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
heirs, representatives, successors and assigns whether so expressed or
not.
6.4 GOVERNING LAW. This Agreement is to be governed by and
interpreted under the laws of the State of Colorado, without giving
effect to the principles of conflicts of laws thereof.
6.5 NOTICES. All notices, requests, consents and other
communications hereunder shall be in writing and shall be deemed to have
been duly given (a) on date of delivery if delivered personally or (b) on
the fifth day after being sent by certified mail, return receipt
requested, with postage prepaid as follows:
If to MRI addressed to: Michael A. Sunstein, President
MRI Medical Diagnostics, Inc.
480 Camino Del Rio South #140
San Diego, CA 92108
If to Alpine, addressed to: Ronald C. Hibbard
73-260 El Paseo, Suite 3D
Palm Desert, California 92260
6.6 SECTION AND OTHER HEADINGS. The section and other headings
herein contained are for convenience only and shall not be construed as
part of this Agreement.
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6.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and each counterpart shall constitute an original
instrument, but all such separate counterparts shall constitute but one
and the same instrument.
6.8 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties hereto and supersedes all prior agreements,
understandings and arrangements, oral or written, between the parties
hereto with respect to the subject matter hereof. This Agreement may not
be amended or modified, except by a written agreement signed by all
parties hereto.
6.9 SEVERABILITY. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffectual to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining
terms and provisions of this Agreement or affecting the validity or
enforceability of any of the terms or provisions of this Agreement in any
other jurisdiction.
6.10 ATTORNEYS' FEES. In the event that any party institutes any
action or suit to enforce this Agreement or to secure relief from any
default hereunder or breach hereof, the breaching party or parties shall
reimburse the non-breaching party or parties for all costs, including
reasonable attorneys' fees, incurred in connection therewith and in
enforcing or collecting any judgment rendered therein.
6.11 CONFIDENTIALITY. Each party hereto agrees with the other
parties that, unless and until this Agreement has been consummated, or
for a period of one (1) year from the date of this Agreement if the
transaction contemplated by this Agreement is not consummated it and its
representatives will hold in strict confidence all data and information
obtained with respect to the other party from any representative,
Officer, Director or employee, or from any books or records or from
personal inspection, of such other party, and shall not use such data or
information or disclose the same to others, except: (i) to the extent
such data or information has theretofore been publicly disclosed, is a
matter of public knowledge or is required by law to be publicly
disclosed; and (ii) to the extent that such data or information must be
used or disclosed in order to consummate the transactions contemplated by
this Agreement.
IN WITNESS WHEREOF, the corporate parties hereto have caused this
Agreement to be executed by their respective Officers, hereunto duly
authorized, as of the date first above written.
MRI MEDICAL DIAGNOSTICS, INC.
By: /s/ Michael A. Sunstein By: /s/ Jason Sunstein
----------------------------- -----------------------------
Michael A. Sunstein, President Jason Sunstein, Secretary
ALPINE HERBS & NUTRITION INTERNATIONAL, INC.
By: /s/ Ronald C. Hibbard By: /s/ Ronald C. Hibbard
----------------------------- -----------------------------
Ronald C. Hibbard, Ronald C. Hibbard, Secretary
Executive Vice President
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