1
Exhibit 2.1
AGREEMENT
Agreement dated effective as of July 26, 2000 by and between Xxxxxxxx.xxx,
Inc., a Delaware corporation (the "Company"), Medinex Systems, Inc., a Delaware
corporation (f/k/a Xxxxxxxxxx.xxx, Inc.) ("Medinex"), and, with respect to
Section 1.7 of the Agreement, Xxxxxx X. Xxxx and Xxxxx X. Xxxx (collectively
hereinafter referred to as "Xxxx").
RECITALS
1. In order to acquire from Medinex certain assets related to
its internet public policy and its political business ("Assets"), the Company
entered into that certain Asset Purchase Agreement dated July 14, 2000
("Purchase Agreement"), in connection with which, the Company agreed to issue to
Medinex 40,100,000 shares of the Company's Common Stock. The transaction
contemplated by the Purchase Agreement is hereinafter sometimes referred to as
the "Transaction." The Company and Medinex desire to void the Transaction ab
initio (that is, at its inception), with the effect that Medinex is the owner of
the Assets and the shares of the Company's Common Stock issuable in the
Transaction are restored to the status of authorized but unissued shares of the
Company.
2. The Company, Medinex and Xxxx desire to exchange mutual
general releases in order to restore the parties to their respective positions
immediately prior to the execution and delivery of the Purchase Agreement.
3. In connection with the transaction contemplated by this
Agreement, Medinex will pay at closing $52,217 to the Company and $75,000 to the
law firm of Xxxxx Xxxxxxx Freed & Gesmer. Further, the Company will share with
Medinex fifty (50%) percent of the amount by which the net proceeds from the
sale of the Website (defined below) exceed five hundred thousand dollars
($500,000).
4. The Company desires that Medinex host and provide basic
maintenance to the Company's URL "Xxxxxxxx.xxx" and the related technology and
content (the "Website"), for a period of up to six (6) months, and Medinex is
willing to host and provide such basic maintenance to the Website.
5. The consideration being exchanged by the parties is
intended to defray the costs the parties incurred in connection with the
Transaction.
NOW THEREFORE, IT IS AGREED AS FOLLOWS:
AGREEMENT
1.1 VOIDING OF TRANSACTION. The Company and Medinex agree that
the Transaction is void ab initio (that is, at its inception), with the effect
that Medinex remains the owner of all of the Assets and the shares of the
Company's Common Stock are restored to the status of authorized but unissued
shares. The Purchase Agreement and all related documents and all documents
delivered in connection therewith are hereby terminated ab initio and are of no
force or effect whatsoever.
1.2 LIABILITIES ASSUMED. In order to restore the parties to
their respective positions immediately prior to the execution of the Purchase
Agreement, Medinex hereby assumes all liabilities of the Company incurred after
July 26, 2000 until the Closing (defined below) (except for legal fees and
expenses incurred by the Company in connection with the transaction contemplated
hereby), and Medinex shall indemnify and hold the Company harmless from and
against any and all claims, damages, liabilities, costs and expenses (including
reasonable attorneys fees) arising out of any such assumed liabilities and the
activities of the Company during such period. The Company shall indemnify and
hold Medinex harmless from and against any and all claims, damages, liabilities,
costs and expenses (including reasonable attorney's fees), arising out of the
Company's activities following the Closing.
1.3 PAYMENTS AT CLOSING. At the Closing, Medinex shall make
the following payments by wire transfer: (1) fifty two thousand two hundred and
seventeen dollars ($52,217) shall be wire transferred to the Company and (2)
seventy five thousand dollars ($75,000) shall be wire transferred to the law
firm of Xxxxx Xxxxxxx Xxxxx & Gesmer. The Company will issue Medinex 100,000
shares of Common Stock of the Company at
2
the Closing. These payments and stock issuances are intended to defray
costs incurred by the Company and Medinex in connection with the Transaction.
1.4 HOSTING OF WEBSITE. For no additional consideration,
Medinex shall, for a period of up to six months, host and provide a reasonable
level of basic maintenance of the Website.
1.5 SALE OF WEBSITE. In order to defray costs incurred by
Medinex in connection with the Transaction, at such time as the Company sells
the Website (or any part thereof), the Company shall pay to Medinex an amount
equal to fifty (50%) percent of the amount, if any, by which the net proceeds
received from the sale of the Website exceed five hundred thousand dollars
($500,000). Any amount payable to Medinex hereunder shall be paid when and as
received by the Company. "Net proceeds" for the purposes of this paragraph means
the proceeds from the sale of the Website, less any expenses incurred by the
Company in connection with such sale, including, but not limited to, selling
commissions. Medinex and the Company shall use their best efforts to promote the
sale of the Website.
1.6 CLOSING. The transaction contemplated by this Agreement
shall be closed on or before October 10, or at such other time as the parties
may agree in writing (the "Closing" or the "Closing Date").
1.7 MUTUAL GENERAL RELEASE. Xxxx and the Company hereby fully,
forever, irrevocably and unconditionally release, remise and discharge Medinex
and its officers, directors, stockholders, corporate affiliates, attorneys,
agents and employees from any and all claims, charges, complaints, demands,
actions, causes of action, suits, rights, debts, sums of money, costs, accounts,
reckonings, covenants, contracts, agreements, promises, doings, omissions,
damages, executions, obligations, liabilities, and expenses (including attorneys
fees and costs), of every kind and nature which any of them ever had or now have
against Medinex or its officers, directors, stockholders, corporate affiliates,
attorneys, agents and employees (including, but not limited to, all claims
arising out of the Transaction and the voiding thereof).
Medinex hereby fully, forever, irrevocably and unconditionally
releases, remises and discharges Xxxx and the Company, and its officers,
directors, stockholders, corporate affiliates, attorneys, agents and employees
from any and all claims, charges, complaints, demands, actions, causes of
action, suits, rights, debts, sums of money, costs, accounts, reckonings,
covenants, contracts, agreements, promises, doings, omissions, damages,
executions, obligations, liabilities, and expenses (including attorneys fees and
costs), of every kind and nature which it ever had or now has against Xxxx, the
Company or any of its officers, directors, stockholders, corporate affiliates,
attorneys, agents and employees (including, but not limited to, all claims
arising out of the Transaction and the voiding thereof).
1.8 RESIGNATION OF OFFICERS AND DIRECTORS. At the Closing, the
Company shall deliver a certified copy of a written consent of the Board of
Directors of the Company authorizing the transaction contemplated by this
Agreement and removing without cause all of the officers of the Company and
resignations of Xxxx Xxxxxx and Xxxx Xxxxxxxxx as directors of the Company. The
Company shall at the Closing return all corporate records of the Company
delivered in connection with the Transaction to the law firm of Xxxxx Xxxxxxx
Freed & Gesmer. Medinex shall deliver at the Closing certified copies of minutes
or written consents of its Board of Directors authorizing the transactions
contemplated by this Agreement.
1.9 PIGGYBACK REGISTRATION RIGHTS. If the Company after the
Closing files a registration statement under the Securities Act of 1933, as
amended (other than on Form S-8 or S-4 or any successor forms), then the Company
shall notify Medinex of such registration and, if Medinex so requests, include
on such registration statement the 100,000 shares of the Company's Common Stock
received by Medinex hereunder, unless any underwriter of the offering being
registered under such registration statement shall determine that it is not in
the best interest of the Company to include such shares of Common Stock on such
registration statement, in which case such shares may be excluded from such
registration statement. In addition, as a condition of including such shares of
Common Stock on any such registration statement, Medinex shall, if required by
any such underwriter, agree to "lock-up" such shares of common stock for such
period as such underwriter may require, not to exceed one year. The Company
shall bear the cost of any such registration, excluding any legal fees and
expenses of Medinex and any underwriting discounts and commissions incurred in
connection with the sale of Medinex's shares of the Company's Common Stock.
1.10 EXPENSES OF THIS TRANSACTION. Each party shall bear its
own expenses in connection with the transactions contemplated by this Agreement.
3
1.11 CORPORATE APPROVALS. The transactions contemplated by
this Agreement are subject to final approval of the respective Boards of
Directors of the Company and Medinex.
1.12 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof and
supercedes all prior agreements, understandings, and arrangements, whether oral
or written.
1.13 AMENDMENT. This agreement may be amended, modified or
supplemented only by a written agreement signed by all of the parties hereto.
1.14 NOTICES. All notices, requests, demands, and other
communications required or permitted hereunder will be in writing and will be
deemed to have been duly given when delivered by hand or two days after being
mailed by certified or registered mail, return receipt requested, with postage
prepaid:
If to Medinex, to: Medinex Systems, Inc.
000 Xxxxxxxxxx Xxxx, Xxxxx X
Xxxx Xxxxx, XX 00000
with copy to: Xxxx Xxxxxxx, Esq.
Xxxxxxx, Xxxxxx, Xxxxxxx, Rock & Fields, Chtd.
000 X. Xxxxxxx Xxxx., 00xx Xxxxx
Post Xxxxxx Xxx 000
Xxxxx, XX 00000-0000
or to such other person or address as Medinex furnishes to the Company pursuant
to the above.
If to the Company, to: Xxxxxxxx.xxx, Inc.
0000 Xx. Xxxxx Xxxx
Xxxxx, XX 00000
with copy to: Xxxx X. Xxxxxxx, Xx., Esq.
Xxxxx Xxxxxxx Xxxxx & Gesmer
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
or to such person or address as the Company furnishes to Medinex pursuant to
the above.
1.15 FURTHER ACTION, COUNTERPARTS, SAVINGS CLAUSE. The parties
hereto shall execute and deliver all documents, provide all information, and
take or forbear from all such action as may be necessary or appropriate to
achieve the purpose of the Agreement which is to restore the parties to
substantially the position each occupied immediately prior to the execution of
the Purchase Agreement. This Agreement may be executed in several counterparts
and transmitted by facsimile and all so executed shall constitute one Agreement,
binding on all the parties hereto even though all the parties are not
signatories to the original or the same counterpart. Nothing herein shall be
construed to be to the benefit of any third party, nor is it intended that any
provision shall be for the benefit of any third party. If any provision of this
Agreement, or the application of such provision to any person or circumstance,
shall be held invalid, the remainder of this Agreement, or the application of
such provision to persons or circumstances other than those as to which it is
held invalid, shall not be affected thereby.
[Remainder of page intentionally left blank]
4
IN WITNESS WHEREOF, the undersigned have executed this Agreement the
date and year set forth above.
Xxxxxxxx.xxx, Inc., a Delaware corporation
/s/ Xxxx Xxxxxxxxx
----------------------------------------------
By: Xxxx Xxxxxxxxx, President
Medinex Systems, Inc., a Delaware corporation
/s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
By: Xxxxxxx X. Xxxxxx, President and
Chief Executive Officer
/s/ Xxxxxx X. Xxxx
----------------------------------------------
Xxxxxx X. Xxxx, individually, but only with
respect to Section 1.7 of this Agreement
/s/ Xxxxx X. Xxxx
----------------------------------------------
Xxxxx X. Xxxx, individually, but only with
respect to Section 1.7 of this Agreement
