Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is made this 2nd day
of April 2003 by and among Micro-Economics, Inc., a Nevada corporation (the
"Parent"), E Med Sub, Inc., a Delaware corporation (the "Subsidiary")(the Parent
and the Subsidiary are sometimes collectively referred to as "Micro"), and E Med
Future, Inc., a Delaware corporation (the "Company").
RECITALS:
WHEREAS, the Boards of Directors of the Parent, the Subsidiary and the
Company have determined that it is advisable and in the best interests of their
respective stockholders for the Parent and the Subsidiary to enter into a
business combination with the Company upon the terms and subject to the
conditions set forth herein;
WHEREAS, in furtherance of such combination, the Boards of Directors of the
Parent, the Subsidiary and the Company have each approved the merger of the
Subsidiary with and into the Company (the "Merger"), upon the terms and subject
to the conditions set forth herein, in accordance with the applicable provisions
of the Delaware General Corporation Law ("DGCL");
WHEREAS, the Parent, the Subsidiary and the Company intend, by approving
resolutions authorizing this Agreement, to adopt this Agreement as a plan of
reorganization within the meaning of Section 368(a) of the Internal Revenue Code
of 1986, as amended (the "Code"), and the regulations promulgated thereunder;
NOW THEREFORE, in consideration of the mutual promises, covenants and
representations contained herein, the Parent, the Subsidiary and the Company
hereby agree as follows:
ARTICLE I
THE MERGER
1.01 The Merger. Upon the terms and subject to the conditions set forth in
Article VIII, and in accordance with the DGCL, at the Effective Time (as defined
below in Section 1.02), the Subsidiary shall be merged with and into the
Company. As a result of the Merger, the separate corporate existence of the
Subsidiary shall cease and the Company shall continue as the surviving
corporation of the Merger.
1.02 Effective Time; Closing. As promptly as practicable and in no event
later than the second business day following the satisfaction or, if
permissible, waiver of the conditions set forth in Article VIII (or such other
date as may be agreed in writing by each of the parties hereto), the parties
hereto shall cause the Merger to be consummated by filing this Agreement or a
certificate of merger or certificate of ownership and merger (in any case, the
"Certificate of Merger") with the Secretary of State of the State of Delaware in
such form as is required by, and executed in accordance with, the relevant
provisions of the DGCL. The term "Effective Time" means the date and time of the
filing
of the Certificate of Merger with the Secretary of State of the State of
Delaware (or such later time as may be agreed in writing by each of the parties
hereto and specified in the Certificate of Merger). Immediately prior to the
filing of the Certificate of Merger, a closing will be held at the offices of
Kohrman Jackson & Krantz P.L.L., 1375 East Ninth Street, 20th Floor, Cleveland,
Ohio 44114 (or such other place as the parties may agree) (the "Closing").
1.03 Effect of the Merger. At the Effective Time, the effect of the Merger
shall be as provided in the applicable provisions of the DGCL. Without limiting
the generality of the foregoing, and subject thereto, at the Effective Time, all
the property, rights, privileges, powers and franchises of the Company and the
Subsidiary shall vest in the Company, and all debts, liabilities, obligations,
restrictions, disabilities and duties of each of the Company and the Subsidiary
shall become the debts, liabilities, obligations, restrictions, disabilities and
duties of the Company.
1.04 Directors and Officers. At the Effective Time, the officers and
directors of the Company shall be as follows:
Robert Ochsendorf President and Director
Dane Donohue Executive Vice President and Director
Juan J. Perez Director
ARTICLE II
CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES
2.01 Conversion of Securities. At the Effective Time, by virtue of the
Merger and without any action on the part of the Subsidiary, the Company or the
holders of any of the following securities:
(a) each share of Series A Preferred Stock, $0.001, of the Company (the
"Company Series A") issued and outstanding immediately prior to the Effective
Time shall be canceled and shall be converted into the right to receive 5,000
shares (the "Exchange Ratio") of common stock, par value $.001 per share, of the
Parent (the "Parent Common Stock"); provided, however, that, if between the date
of this Agreement and the Effective Time the outstanding shares of Parent Common
Stock shall have been changed into a different number of shares or a different
class, by reason of any stock dividend, subdivision, reclassification,
recapitalization, split, combination or exchange of shares, the Exchange Ratio
shall be correspondingly adjusted to the extent appropriate to reflect such
stock dividend, subdivision, reclassification, recapitalization, split,
combination or exchange of shares;
(b) each share of the common stock, $0.001, of the Company (the "Company
Common Stock") issued and outstanding prior to the Effective Time (all issued
and outstanding shares of the Company Common Stock and the Company Series A
being hereinafter collectively referred to as the "Company Securities") shall be
canceled and shall be converted into the right to receive the number of shares
of Parent Common Stock equal to the Exchange Ratio divided by 5,000 (all such
shares of Parent Common Stock being herein referred to as the "Merger
Consideration"); and
2
(c) each share of common stock, par value $.001 per share, of the
Subsidiary issued and outstanding immediately prior to the Effective Time shall
be converted into and exchanged for one validly issued, fully paid and
non-assessable share of common stock of the Company.
2.02 Exchange of Certificates.
(a) Exchange Procedures. At the Closing, the Company shall surrender to
Parent all certificates representing shares of the Company Securities (the
"Certificates") that are in the Company's possession in exchange for the Merger
Consideration. Certificates representing the Merger Consideration shall be
issued to the Company's stockholders. Immediately following the Effective Time,
all Certificates surrendered to Parent shall be canceled. Any stockholder of the
Company whose Certificates are not delivered at the Closing shall receive the
Merger Consideration with respect to such Certificates upon delivery to Parent
after the Closing of such Certificates.
(b) Distributions with Respect to Unexchanged Shares of Parent Common
Stock. No dividends or other distributions declared or made after the Effective
Time with respect to the Parent Common Stock with a record date after the
Effective Time shall be paid to the holder of any unsurrendered Certificate with
respect to the shares of Parent Common Stock represented thereby until the
holder of such Certificate shall surrender such Certificate.
(c) No Further Rights in Company Common Stock. All shares of Parent Common
Stock issued upon conversion of the Company Common Stock in accordance with the
terms hereof shall be deemed to have been issued in full satisfaction of all
rights pertaining to such Company Common Stock.
(d) No Fractional Shares. No certificate or scrip representing fractional
shares of Parent Common Stock shall be issued upon the surrender for exchange of
Certificates, and such fractional share interests will not entitle the owner
thereof to vote or to any other rights of a stockholder of Parent. In lieu of
any such fractional shares, the aggregate number of shares of Parent Common
Stock to which each holder of a fractional share interest is entitled pursuant
to this Section 2.02(d) shall be rounded to the nearest whole share of Parent
Common Stock.
(e) No Liability. Neither Parent nor the Company shall be liable to any
holder of shares of the Company Securities or the Parent Securities for any such
shares, or cash delivered to a public official pursuant to any abandoned
property, escheat or similar law.
(f) Lost Certificates. If any Certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
such Certificate to be lost, stolen or destroyed and, if required by the
Company, the posting by such person of a bond, in such reasonable amount as the
Company may direct, as indemnity against any claim that may be made against it
with respect to such Certificate, the Parent will issue in exchange for such
lost, stolen or destroyed Certificate the Merger Consideration and any dividends
or other distributions to which the holders thereof are entitled.
3
2.03 Stock Transfer Books. At the Effective Time, the stock transfer books
of the Company shall be closed and there shall be no further registration of
transfers of Shares thereafter on the records of the Company. From and after the
Effective Time, the holders of Certificates representing shares of the Company
Securities outstanding immediately prior to the Effective Time shall cease to
have any rights with respect to such shares, except as otherwise provided in
this Agreement or by law.
ARTICLE III
INDEMNIFICATION / NO AFFILIATE
3.01 Indemnification of Micro. Micro hereby agrees to indemnify and hold
harmless (i) the Company and its respective affiliates from and against all
claims, damages, liabilities, losses, expenses or proceedings (collectively, the
"Claims") asserted against, resulting to, imposed upon or incurred by the
Company and its respective affiliates, by reason of, arising out of or resulting
from the inaccuracy or breach of any representation or warranty of the Parent or
Subsidiary contained in or made pursuant to Article V of this Agreement
(regardless of whether such breach, representation and warranty is subject to a
materiality exception or is made to the knowledge of Micro) and (ii) the Company
from any liability arising out of the ownership or operation of Micro prior to
the Effective Time.
3.02 Indemnification of the Company. The Company hereby agrees to indemnify
and hold harmless (i) Micro and their respective affiliates from and against all
Claims asserted against, resulting to, imposed upon or incurred by Micro and
their respective affiliates, by reason of, arising out of or resulting from the
inaccuracy or breach of any representation or warranty of the Company contained
in or made pursuant to Article IV of this Agreement (regardless of whether such
breach, representation and warranty is subject to a materiality exception or is
made to the knowledge of the Company) and (ii) Micro from any liability arising
out of the ownership or operation of the Company prior to the Effective Time.
3.03 No Affiliate. All parties agree that after the Effective Time, that
neither Capital General Corporation, a Utah corporation, nor any of its officers
and directors have any ongoing or other business relationship with any of the
parties to this Agreement, or their officers, directors and promoters, nor any
family or other relationships with such, and therefore have no ability to
exercise any control or influence over the management and conduct of Micro's
business.
ARTICLE IV
REPRESENTATIONS, AGREEMENTS AND WARRANTIES OF THE COMPANY
THE COMPANY hereby represents, agrees and warrants that:
4.01 Organization. The Company (i) is a corporation duly organized, validly
existing, and in good standing under the laws of Delaware, (ii) has all
necessary corporate power and authority to own, lease and operate its properties
and to carry on its business as now owned and operated by it or
4
presently proposed to be conducted, and (iii) is duly qualified to do business
and is in good standing in any jurisdiction its business requires qualification,
except in those jurisdictions where the failure to be so qualified could not
reasonably be expected to have individually or in the aggregate a material
adverse effect on the business, assets, liabilities, results of operations,
financial condition or prospects (a "Material Adverse Effect") of the Company.
4.02 Capital. The authorized capital stock of the Company consists of
20,000,000 shares of the Company Common Stock and 10,000 shares of the Company
Series A. As of the date of this Agreement, no shares of the Company Common
Stock and 3,970 shares of the Company Series A are issued and outstanding as
described in Exhibit 4.02. All of the issued and outstanding shares are validly
issued, fully paid and nonassessable and free of preemptive rights. Except as
set forth in this section, there are no shares of capital stock of the Company
issued or outstanding or any options, warrants, subscriptions, calls, rights,
convertible securities or other agreements or commitments obligating the Company
to issue, transfer, sell, redeem, repurchase or otherwise acquire any shares of
its capital stock or securities.
4.03 Subsidiaries. The Company does not have any subsidiaries.
4.04 Directors and Officers. Exhibit 4.04 to this Agreement contains the
names and titles of all directors and officers of the Company as of the date of
this Agreement.
4.05 Financial Statements. Exhibit 4.05 to this Agreement includes the
audited financial statements of the Company as of December 31, 2001 and the
unaudited financial statements of the Company as of September 30, 2002. The
financial statements have been prepared in accordance with generally accepted
accounting principles and practices ("GAAP") consistently followed throughout
the period indicated, other than the unaudited financial statements which do not
include all footnotes required by GAAP, and fairly present the financial
position of the Company as of the dates of the balance sheets included in the
financial statements and the results of operations for the periods indicated.
4.06 Absence of Changes. Since September 30, 2002, the Company has in all
material respects conducted its business in the ordinary course consistent with
past practices and there has not occurred: (i) any material change in its
financial condition or operations except for changes in the ordinary course of
business. (ii) any capital investment in, any loan to or any acquisition of the
securities or assets of any other person; (ii) any creation, incurrence,
assumption or guarantee of any indebtedness, (iii) any amendments or changes in
the certificate of incorporation or bylaws of the Company, (ii) any material
change in the accounting methods, principles or practices of the Company except
as required by GAAP or as a result of a change in law, (iv) any sale, issuance
or other disposition of any of its capital stock, or grant of any options,
warrants or other rights of any kind with respect to any of its capital stock,
or (v) the making of any loan to, or entry into any transaction with, any of its
directors, officers and employees outside the ordinary course of business.
4.07 Absence of Undisclosed Liabilities. Except as disclosed in Exhibit
4.05, the Company does not have any material debt, liability or obligation of
any nature, whether accrued, absolute, contingent or otherwise, and whether due
or to become due.
5
4.08 Tax Returns. Within the times and in the manner prescribed by law, the
Company has (i) filed (or will timely file) all federal, state or local tax
returns required by law to be filed by it for tax years ended prior to the date
of this Agreement and all such returns are or will be complete and accurate in
all material respects, (ii) paid all taxes, assessments and penalties due and
payable and (iii) made adequate provision on its most recent balance sheet for
any unpaid taxes. There are no present disputes or liens as to taxes of any
nature payable by the Company.
4.09 Investigation of Financial Condition. Without in any manner reducing
or otherwise mitigating the representations contained herein, Parent, Subsidiary
or their attorneys shall have the opportunity to meet with accountants and
attorneys to discuss the financial condition of the Company. The Company shall
make available to Parent, Subsidiary or their attorneys all books and records of
the Company. If the transaction contemplated hereby is not completed, all
documents received by Parent, Subsidiary or their attorneys shall be returned to
the Company and all information so received shall be treated as confidential.
4.10 Patents, Trade Names and Rights. The Company owns or holds all
necessary patents, trademarks, service marks, trade names, copyrights and other
rights necessary to the conduct or proposed conduct of its business, except as
could not reasonably be expected to have individually or in the aggregate a
Material Adverse Effect on the Company.
4.11 Compliance with Laws. The Company has complied with, and is not in
violation of, applicable federal, state or local statutes, laws and regulations
affecting its properties or the operation of its business except where the
failure to be in such compliance could not reasonably be expected to have
individually or in the aggregate a Material Adverse Effect on the Company.
4.12 Litigation. The Company is not a party to, nor to the best of its
knowledge is there pending or threatened, any suit, action, arbitration or
legal, administrative or other proceeding, or governmental investigation
concerning its business, assets or financial condition. The Company is not in
default with respect to any order, writ, injunction or decree of any federal,
state, local or foreign court or agency, nor is it engaged in any lawsuits to
recover monies due to it.
4.13 Authority. The Board of Directors of the Company authorized the
execution of this Agreement and the consummation of the transactions
contemplated herein. Subject to stockholder approval, the Company has full power
and authority to execute, deliver and perform the transactions contemplated by
this Agreement. This Agreement constitutes a legal, valid and binding agreement
of the Company, enforceable against the Company in accordance with its terms,
subject as to the enforcement of remedies to general equitable principles and to
bankruptcy, insolvency or similar laws.
4.14 Ability to Carry Out Obligations. No filing with, and no permit,
authorization consent or approval of, any court, tribunal or Governmental Person
is necessary for the execution, delivery and performance of this Agreement by
the Company or of the transactions contemplated by this Agreement. The execution
and delivery of this Agreement by the Company and the performance of its
obligations hereunder in the time and manner contemplated will not cause,
constitute or
6
conflict with or result in (i) any breach or default of the provisions of any
license, indenture, mortgage, charter, instrument, certificate of incorporation,
bylaw or other agreement or instrument to which it is a party or by which it may
be bound, nor will any consents or authorizations of any party other than those
hereto be required, (ii) an event that would permit any party to any agreement
or instrument to terminate it or to accelerate the maturity of any indebtedness
or other obligation, (iii) an event that would result in the creation or
imposition of any lien, charge or encumbrance on any asset, (iv) a violation of
any order, writ, injunction, decree, statute, rule or regulation applicable to
the Company, or (v) the suspension, termination or revocation of any
certificates of need, accreditation, registrations, licenses, permits and other
consents or approvals of Governmental Persons applicable to the Company except
in the case of clauses (ii), (iv) and (v) for violation, breaches, defaults,
terminations, cancellations, accelerations, creations, impositions, suspension
or revocations which could not reasonably be expected to have individually or in
the aggregate a Material Adverse Effect on the Company. "Governmental Person"
means any governmental, quasi-governmental, judicial, public or statutory
instrumentality, authority, agency, bureau, body or entity of the United States
of America or of any state, county, municipality or other political subdivision
of the United States of America.
4.15 No Default. The Company is not in violation or breach of, or default
under (and no event has occurred which with notice or the lapse of time or both
would constitute a violation or breach of, or a default under) any term,
condition or provision of (i) its articles of incorporation or bylaws, (ii) any
note, bond, mortgage, deed of trust, security interest, indenture, license,
agreement, plan, contract, lease, insurance policy, commitment or other
instrument or obligation to which the Company is a party or by which it or any
of its properties or assets may be bound or affected, (iii) any order, writ,
injunction, decree, statute, rule or regulation applicable to the Company or any
of its properties or assets, or (iv) any license, permit and other consent or
approval of Governmental Persons applicable to the Company.
4.16 Brokers. No broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission payable by the Company in
connection with the transactions contemplated by this Agreement based upon
arrangements made by and on behalf of the Company.
4.17 Assets. Except as disclosed in Exhibit 4.05, the Company has good and
marketable title to all of its property free and clear of any and all liens,
claims or encumbrances.
4.18 Investment Intent. The Company understands and acknowledges that the
shares of common stock of the Parent offered or sold pursuant to this Agreement
are being offered in reliance upon the exemption from registration requirements
of the Securities Act of 1933, as amended (the "Securities Act"), pursuant to
Section 4(2) of the Securities Act and the rules and regulations promulgated
thereunder, for nonpublic offerings and that the shares issued to its
stockholders in connection with the merger will be restricted shares subject to
Rule 144 of the Securities Act.
4.19 Public "Shell" Corporation. The Company is aware that the Parent has
public stockholders and is a "shell" corporation without significant assets or
liabilities. The Company acknowledges that a Form 8-K must be filed with the
United States Securities and Exchange Commission ("SEC") within fifteen days
after the closing of this Agreement which filing requires
7
that audited financial statements be filed within sixty days after the filing of
the 8-K, and the Company agrees that such responsibility shall not be the
responsibility of the officers and directors of the Parent or the Subsidiary,
but the sole responsibility of the officers and directors of the Company.
4.20 No Assurances or Warranties. The Company acknowledges that there can
be no assurance regarding the tax consequences of this transaction, nor can
there be any assurance that the Code or the regulations promulgated thereunder
will not be amended in such manner as to deprive it of any tax benefit that
might otherwise be received. The Company acknowledges that it is relying upon
the advice of its tax advisors with respect to the tax aspects of the
transactions contemplated by this Agreement. No representations or warranties
have been made by the Parent, Subsidiary or their officers, directors,
affiliates or agents, as to the benefits to be derived by the Company in
completing this transaction, nor have any of them made any warranty or
agreement, expressed of implied, as to the tax or securities consequences of the
transactions contemplated by this Agreement or the tax or securities
consequences of any action contemplated by this Agreement.
4.21 Full Disclosure. None of the representations, warranties or statements
made by the Company contained in this Agreement or any other documents delivered
by the Company pursuant to this Agreement contains or will contain any untrue
statement of material fact, or omits to state any material fact necessary to
make the statements in this Agreement and any other document, in light of the
circumstances in which they were made, not misleading.
ARTICLE V
REPRESENTATIONS, AGREEMENTS AND WARRANTIES
OF THE PARENT AND THE SUBSIDIARY
The Parent and Subsidiary represent, agree and warrant that:
5.01 Organization. Each of the Parent and the Subsidiary (i) is a
corporation duly organized, validly existing, and in good standing under the
laws of Nevada and Delaware, respectively, (ii) has all necessary corporate
power and authority to own, lease and operate its properties and to carry on its
business as now owned and operated by it or presently proposed to be conducted,
and (iii) is duly qualified to do business and in good standing in any
jurisdiction its business requires qualification, except in those jurisdictions
where the failure to be so qualified could not reasonably be expected to have
individually or in the aggregate a Material Adverse Effect on Micro.
5.02 Capital. The authorized capital stock of the Parent consists of
50,000,000 shares of the Parent Common Stock. As of the date of this Agreement,
1,000,000 shares of the Parent Common Stock are currently issued and outstanding
as described on Exhibit 5.02. The authorized capital stock of the Subsidiary
consists of 3,000 shares of common stock. As of the date of this Agreement, 100
shares are currently issued and outstanding, all of which are held by Parent.
All of the issued and outstanding shares of each of the Parent and the
Subsidiary are validly issued, fully paid and nonassessable and free of
preemptive rights. Except as set forth in this section, there are no shares of
capital stock of the Parent or the Subsidiary issued or outstanding or any
options, warrants,
8
subscriptions, calls, rights, convertible securities or other agreements or
commitments obligating the Parent or the Subsidiary to issue, transfer, sell,
redeem, repurchase or otherwise acquire any shares of its capital stock or
securities.
5.03 Subsidiaries. Other than the Subsidiary, Micro has no other
subsidiaries and does not own any interest in any other enterprise, whether or
not such enterprise is a corporation.
5.04 Directors and Officers. Exhibit 5.04 to this Agreement contains the
names and titles of the officers and directors of the Parent and the Subsidiary
as of the date of this Agreement.
5.05 Financial Statements. Exhibit 5.05 to this Agreement includes the
audited financial statements of the Parent as of December 31, 2002. The
financial statements have been prepared in accordance with GAAP consistently
followed throughout the period indicated and fairly present the financial
position of the Parent as of the dates of the balance sheets included in the
financial statements and the results of operations for the periods indicated.
5.06 Absence of Changes. Since December 31, 2002, Micro has in all
material respects conducted its business in the ordinary course consistent with
past practices and there has not occurred: (i) any material change in its
financial condition or operations except for changes in the ordinary course of
business, (ii) any capital investment in, any loan to or any acquisition of the
securities or assets of any other person; (ii) any creation, incurrence,
assumption or guarantee of any indebtedness, (iii) any amendments or changes in
the articles of incorporation or bylaws of the Parent or the Subsidiary, (ii)
any material change in the accounting methods, principles or practices of Micro
except as required by GAAP or as a result of a change in law, (iv) any sale,
issuance or other disposition of any of its capital stock, or grant of any
options, warrants or other rights of any kind with respect to any of its capital
stock, or (v) the making of any loan to, or entry into any transaction with, any
of its directors, officers and employees outside the ordinary course of
business.
5.07 Absence of Undisclosed Liabilities. Except as disclosed in Exhibit
5.05, Micro does not have any debt, liability or obligation of any nature,
whether accrued, absolute, contingent or otherwise, and whether due or to become
due.
5.08 Tax Returns. Within the times and in the manner prescribed by law,
Micro has (i) filed (or will timely file) all federal, state or local tax
returns required by law to be filed by it for tax years ended prior to the date
of this Agreement and all such returns are or will be complete and accurate in
all material respects, (ii) paid all taxes, assessments and penalties due and
payable and (iii) made adequate provision on its most recent balance sheet for
any unpaid taxes. There are no present disputes or liens as to taxes of any
nature payable by Micro.
5.09 Investigation of Financial Condition. Without in any manner reducing
or otherwise mitigating the representations contained herein, the Company shall
have the opportunity to meet with the accountants and attorneys of Micro to
discuss the financial condition of Micro. Micro shall make available to the
Company all books and records of Micro. If the transaction contemplated hereby
is not completed, all documents received by the Company or its attorneys shall
be returned to Micro and all information so received shall be treated as
confidential.
9
5.10 Compliance with Laws. Micro has complied with, and is not in
violation of, applicable federal, state or local statutes, laws and regulations
affecting its properties or the operation of its business except where the
failure to be in such compliance could not reasonably be expected to have
individually or in the aggregate a Material Adverse Effect on Micro and Micro
has complied with, and is not in violation of, applicable federal and state
securities laws.
5.11 Litigation. Micro is not a party to, nor to the best of its knowledge
is there pending or threatened, any suit, action, arbitration or legal,
administrative or other proceedings, or governmental investigation concerning
its business, assets or financial condition. Micro is not in default with
respect to any order, writ, injunction or decree of any Governmental Person, nor
is it engaged in any lawsuits to recover monies due to it
5.12 Authority. The Board of Directors of each of the Parent and the
Subsidiary has authorized the execution of this Agreement and the consummation
of the transactions contemplated herein. Subject to stockholder approval, Micro
has full power and authority to execute, deliver and perform the transactions
contemplated by this Agreement. This Agreement constitute a legal, valid and
binding agreement of Micro, enforceable against Micro in accordance with its
terms, subject as to the enforcement of remedies to equitable principles and to
bankruptcy, insolvency or similar laws.
5.13 Ability to Carry Out Obligations. No filing with, and no permit,
authorization consent or approval of, any court, tribunal or Governmental Person
is necessary for the execution, delivery and performance of this Agreement by
Micro or of the transactions contemplated by this Agreement. The execution and
delivery of this Agreement by Micro and the performance of its obligations
hereunder will not cause, constitute, conflict with or result in (i) any breach
or default of the provisions of any license, indenture, mortgage, charter,
instrument, certificate of incorporation, bylaw or other agreement or instrument
to which it is a party or by which it may be bound, nor will any consents or
authorizations of any party other that those hereto be required, (ii) an event
that would permit any party to any agreement or instrument to terminate it or to
accelerate the maturity of any indebtedness or other obligation, (iii) an event
that would result in a creation or imposition of any lien, charge or encumbrance
on any asset, (iv) a violation of any order, writ, injunction, decree, statute,
rule or regulation applicable to Micro, or (v) the suspension, termination or
revocation of any certificates of need, accreditation, registrations, licenses,
permits and other consents or approvals of Governmental Persons applicable to
Micro except in the case of clauses (ii), (iv) and (v) for violation, breaches,
defaults, terminations, cancellations, accelerations, creations, impositions,
suspension or revocations which could not reasonably be expected to have
individually or in the aggregate a Material Adverse Effect on Micro.
5.14 No Default. Micro is not in violation or breach of, or default under
(and no event has occurred which with notice or the lapse of time or both would
constitute a violation or breach of, or a default under) any term, condition or
provision of (i) its articles of incorporation or bylaws, (ii) any note, bond,
mortgage, deed of trust, security interest, indenture, license, agreement, plan,
contract, lease, insurance policy, commitment or other instrument or obligation
to which Micro is a party or by which it or any of its properties or assets may
be bound or affected, (iii) any order, writ, injunction, decree, statute, rule
or regulation applicable to Micro or any of its properties or assets, or (iv)
any
10
license, permit and other consent or approval of Governmental Persons applicable
to Micro.
5.15 Brokers. Except as disclosed in Exhibit 5.15, no broker, finder or
investment banker is entitled to any brokerage, finder's or other fee or
commission payable by Micro in connection with the transactions contemplated by
this Agreement based upon arrangements made by and on behalf of Micro.
5.16 Securities Disclosures. Micro has filed all forms, reports,
schedules, proxy materials, registration statements and related prospectuses and
supplements and other documents required to be filed by Micro with the SEC
pursuant to the Securities Act or the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), through the year ended December 31, 2002 and up to
the date hereof (collectively, the "SEC Documents"). The SEC Documents were, and
those additional documents filed between the date hereof and the closing date of
this Agreement will be, prepared and filed in full compliance with the rules and
regulations promulgated by the SEC, and do not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
in order to make the statements contained therein, in light of the circumstances
under which they were made, not misleading. The Registration Statement filed by
the Parent on June 30, 1993 and any post-effective amendments thereto have been
declared effective by the SEC and no stop order suspending the effectiveness of
the Registration Statement or any post-effective amendments thereto have been
issued and no proceeding for that purpose has been initiated or threatened by
the SEC. The required filings and procedures for the listing and issuance of a
symbol for Parent's Common Stock by the NASDAQ Over-the-Counter Bulletin Board
have been complied with, and Parent's Common Stock is currently listed under the
symbol MENM and will continue to be eligible for listing immediately upon the
consummation of the Merger.
5.17 Full Disclosure. None of the representations, warranties or
statements made by Micro contained in this Agreement or any other documents
delivered by Micro pursuant to this Agreement contains or will contain any
untrue statement of material fact, or omits to state any material fact necessary
to make the statements in this Agreement and any other document, in light of the
circumstances in which they were made, not misleading.
ARTICLE VI
CONDUCT OF BUSINESSES PENDING THE MERGER
6.01 Conduct of Business by the Company Pending the Merger. The Company
agrees that, between the date of this Agreement and the Effective Time, except
as contemplated by any other provision of this Agreement, unless the Parent
shall otherwise consent in writing (such consent not to be unreasonably withheld
or delayed) the business of the Company shall be conducted only in, and the
Company shall not take any action except in the ordinary course of business and
in a manner consistent with past practice.
6.02 Conduct of Business by Parent Pending the Merger. Parent agrees that,
between the date of this Agreement and the Effective Time, except as
contemplated by any other provision of this Agreement, unless the Company shall
otherwise consent in writing (such consent not to be
11
unreasonably withheld or delayed) the business of the Parent shall be conducted
only in, and Parent shall not take any action except in the ordinary course of
business and in a manner consistent with past practice.
ARTICLE VII
ADDITIONAL AGREEMENTS
7.01 Filing of Form 8-K. Immediately after the Effective Time, new
management of the Parent will procure the prompt preparation and file with the
SEC appropriate notice describing this transaction on Form 8-K or other
applicable form, and otherwise comply with the provisions of the Exchange Act.
In addition, new management of the Parent will prepare and file with the SEC an
amendment to the Form 8-K that includes the financial statements and pro forma
financial information prepared pursuant to Regulation S-X for the periods
specified in Rule 3.05(b) within 60 days after filing the original report on
Form 8-K.
7.02 Obligations of Parent. Parent shall take all action necessary to
cause Parent to perform its obligations under this Agreement and to consummate
the Merger on the terms and subject to the conditions set forth in this
Agreement.
7.03 Further Action; Consents; Filings. Upon the terms and subject to the
conditions hereof, each of the parties hereto shall use its reasonable best
efforts to (i) take, or cause to be taken, all appropriate action and do, or
cause to be done, all things necessary, proper or advisable under applicable law
or otherwise to consummate and make effective the Merger and the other
transactions contemplated by this Agreement, (ii) obtain from Governmental
Persons any consents, licenses, permits, waivers, approvals, authorizations or
orders required to be obtained or made by Parent or the Company in connection
with the authorization, execution and delivery of this Agreement and the
consummation of the Merger and the other transactions contemplated by this
Agreement and (iii) make all necessary filings, and thereafter make any other
required submissions, with respect to this Agreement, the Merger and the other
transactions contemplated by this Agreement required under (A) the Exchange Act
and the Securities Act and the rules and regulations thereunder and any other
applicable federal or state securities laws and (B) any other applicable law.
The parties hereto shall cooperate with each other in connection with the making
of all such filings, including by providing copies of all such documents to the
non-filing party and its advisors prior to filing and, if requested, by
accepting all reasonable additions, deletions or changes suggested in connection
therewith.
7.04 Plan of Reorganization. This Agreement is intended to constitute a
"plan of reorganization" within the meaning of section 1.368-2(g) of the income
tax regulations promulgated under the Code. From and after the date of this
Agreement and until the Effective Time, each party hereto shall use its
reasonable best efforts to cause the Merger to qualify, and will not knowingly
take any action, cause any action to be taken, fail to take any action or cause
any action to fail to be taken which action or failure to act could prevent the
Merger from qualifying, as a reorganization under the provisions of section
368(a) of the Code. Following the Effective Time, neither Parent nor any of its
affiliates shall knowingly take any action, cause any action to be taken, fail
to take any action or cause any action to fail to be taken, which action or
failure to act could cause the Merger to fail to
12
qualify as a reorganization under section 368(a) of the Code.
7.05 Change of Corporate Name of Parent. Prior to the Effective Time,
Parent shall have caused all appropriate corporate action to have been taken to
amend its articles of incorporation to change the name of Micro Economics, Inc.
to E Med Future, Inc. or another appropriate name selected by the Company.
7.06 Board of Directors of Parent. The present directors of Parent shall
have caused the appointment of the individuals listed in Section 1.05 of this
Agreement to the Board of Directors of Parent at the Effective Time followed by
the immediate resignation of all present officers and directors of Parent.
7.07 Public Announcements. The initial press release relating to this
Agreement shall be a joint press release the text of which has been agreed to by
each of Parent and the Company.
ARTICLE VIII
CONDITIONS TO THE MERGER
8.01 Conditions to the Obligations of Each Party. The obligations of the
Company, Parent and the Subsidiary to consummate the Merger are subject to the
satisfaction or waiver (where permissible) of the following conditions:
(a) this Agreement and the issuance of the Merger Consideration pursuant
to the terms of the Merger, as the case may be, contemplated hereby shall have
been approved and adopted by the requisite affirmative vote of (i) the
stockholders of the Company in accordance with the DGCL and the Company's
certificate of incorporation and (ii) the stockholders of Subsidiary in
accordance with the rules of the DGCL and Subsidiary's articles of
incorporation;
(b) no Governmental Person or court of competent jurisdiction located or
having jurisdiction in the United States shall have enacted, issued,
promulgated, enforced or entered any law, rule, regulation, judgment, decree,
executive order or award which is then in effect and has the effect of making
the Merger illegal or otherwise prohibiting consummation of the Merger; and
(c) all consents, approvals and authorizations legally required to be
obtained to consummate the Merger shall have been obtained from and made with
all Governmental Persons.
8.02 Conditions to the Obligations of Micro. The obligations of Micro to
consummate the Merger are subject to the satisfaction or waiver (where
permissible) of the following additional conditions:
(a) each of the representations and warranties of the Company contained
in this Agreement shall be true and correct as of the Effective Time as though
made on and as of the Effective Time, except where failure to be so true and
correct would not have a Material Adverse Effect, and except that those
representations and warranties which address matters only as of a
13
particular date shall remain true and correct as of such date, except where
failure to be so true and correct would not have a Material Adverse Effect, and
Parent shall have received a certificate of the chief executive officer or chief
financial officer of the Company to such effect; and
(b) the Company shall have performed or complied with all agreements and
covenants required by this Agreement to be performed or complied with by it on
or prior to the Effective Time, except where the failure to so comply would not
have a Material Adverse Effect, and Parent shall have received a certificate of
the chief executive officer or chief financial officer of the Company to that
effect.
8.03 Conditions to the Obligations of the Company. The obligations of the
Company to consummate the Merger are subject to the satisfaction or waiver
(where permissible) of the following additional conditions:
(a) each of the representations and warranties of Micro contained in this
Agreement shall be true and correct as of the Effective Time, as though made on
and as of the Effective Time, except where the failure to be so true and correct
would not have a Material Adverse Effect, and except that those representations
and warranties which address matters only as of a particular date shall remain
true and correct as of such date, except where the failure to be so true and
correct would not have a Material Adverse Effect, and the Company shall have
received a certificate of the chief executive officer or chief financial officer
of Parent to such effect; and
(b) Micro shall have performed or complied with all agreements and
covenants required by this Agreement to be performed or complied with by it on
or prior to the Effective Time, except where the failure to comply would not
have a Material Adverse Effect, and the Company shall have received a
certificate of the chief executive officer or chief financial officer of Parent
to that effect.
ARTICLE IX
TERMINATION, AMENDMENT AND WAIVER
9.01 Termination. This Agreement may be terminated and the Merger and the
other transactions contemplated by this Agreement may be abandoned at any time
prior to the Effective Time, notwithstanding any requisite approval and adoption
of this Agreement and the transactions contemplated by this Agreement, as
follows:
(a) by mutual written consent duly authorized by the Boards of Directors
of each of Parent and the Company;
(b) a Governmental Person or court of competent jurisdiction located or
having jurisdiction in the United States shall have enacted, issued,
promulgated, enforced or entered a law, rule, regulation, judgment, decree,
executive order or award which is final and nonappealable preventing the
consummation of the Merger; or
(c) by Parent or the Company upon a breach of any material
representation, warranty,
14
covenant or agreement on the part of the Parent or the Company set forth in this
Agreement, or if any representation or warranty of the Parent or the Company
shall have become untrue.
9.02 Effect of Termination. Except as provided in Section 9.01, in the
event of termination, this Agreement shall forthwith become void, there shall be
no liability under this Agreement on the part of Parent, the Subsidiary or the
Company or any of their respective officers or directors, and all rights and
obligations of each party hereto shall cease, provided, however, that nothing
herein shall relieve any party from liability for the willful breach of any of
its representations, warranties, covenants or agreements set forth in this
Agreement.
9.03 Amendment. This Agreement may be amended by the parties hereto by
action taken by or on behalf of their respective Boards of Directors at any time
prior to the Effective Time; provided, however, that, after the approval of this
Agreement by the stockholders of the Company, no amendment may be made which
would reduce the amount or change the type of consideration into which each
Share shall be converted upon consummation of the Merger. This Agreement may not
be amended except by an instrument in writing signed by the parties hereto.
9.04 Waiver. At any time prior to the Effective Time, any party hereto
may (a) extend the time for the performance of any obligation or other act of
any other party hereto, (b) waive any inaccuracy in the representations and
warranties contained herein or in any document delivered pursuant hereto, and
(c) waive compliance with any agreement or condition contained herein. Any such
extension or waiver shall be valid if set forth in an instrument in writing
signed by the party or parties to be bound thereby.
9.05 Expenses. All legal, accounting and other expenses incurred in
connection with this Agreement and the transactions contemplated by this
Agreement shall be paid by the party incurring such expenses, whether or not the
Merger or any other transaction is consummated.
ARTICLE X
GENERAL PROVISIONS
10.01 Survival of Representations, Warranties and Agreements. The
representations, warranties and covenants set forth in this Agreement or in any
instrument, certificate, opinion or other writing provided for in it, shall
survive the Closing Date.
10.02 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed to have been
given on the date of service if served personally on the party to whom notice is
to be given, or on the third day after mailing if mailed to the party to whom
notice is to be given, by first class mail, registered or certified, postage
prepaid, and properly addressed as follows:
if to Parent or the Subsidiary:
Ms. Krista Nielson
Capital General Corporation
15
8661 S. Highland Drive, #150
Sandy, Utah 84093
Fax: 801-485-7774
with a copy to (which shall not constitute notice to such party):
David H. Day, Esq.
Day, Shell & Liljenquist, L.C.
45 East Vine Street
Murray, Utah 84107
Fax: 801-262-6758
if to the Company:
E Med Future, Inc.
794 Morrison Road
Suite 911
Columbus, Ohio 43230
Fax: 614-577-1009
with a copy to (which shall not constitute notice to the Company):
Christopher J. Hubbert, Esq.
Kohrman Jackson & Krantz P.L.L.
1375 East Ninth Street, 20/th/ Floor
Cleveland, Ohio 44114
Fax: 216-631-6536
10.03 Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated by this Agreement is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in a mutually acceptable
manner in order that the transactions contemplated by this Agreement be
consummated as originally contemplated to the fullest extent possible.
10.04 Assignment; Binding Effect; Benefit. Neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any of
the parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties. Subject to the preceding sentence, this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns.
10.05 Governing Law; Forum. This Agreement shall be governed by, and
construed in
16
accordance with, the laws of the State of Delaware.
10.06 Headings. The descriptive headings contained in this Agreement are
included for convenience of reference only and shall not affect in any way the
meaning or interpretation of this Agreement.
10.07 Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
and delivered shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement.
10.08 Entire Agreement. This Agreement constitutes the entire agreement
among the parties with respect to the subject matter hereof and supersede all
prior agreements and understandings among the parties with respect thereto. No
addition to or modification of any provision of this Agreement shall be binding
upon any party hereto unless made in writing and signed by all parties hereto.
17
IN WITNESS WHEREOF, the Parent, the Subsidiary and the Company have caused
this Agreement to be executed as of the date first written above by their
respective officers thereunto duly authorized.
Micro-Economics, Inc.
_________________________
By: Krista Nielson
Its: President
E Med Sub, Inc.
_________________________
By: Krista Nielson
Its: President
E Med Future, Inc.
_________________________
By: Dane Donohue
Its: Vice President
18