AGREEMENT
EXHIBIT
2.1
AGREEMENT
An
Agreement made the 30th day of January 2009 by and among InMedica Development
Corporation, a Utah corporation (“InMedica”), MicroCor, Inc., a Utah corporation
(“MicroCor”), Law Investments CR, S.A., a Costa Rica corporation (“Law
Investments”) and SNG Consulting, LLC, an Arizona LLC (“SNG”).
RECITALS
WHEREAS
InMedica is the majority shareholder of MicroCor, holding 57% of the issued and
outstanding stock of MicroCor; and
WHEREAS
MicroCor is the principal asset of InMedica and MicroCor owns a certain
technology known as the “Hematocrit Technology” which InMedica has caused to be
developed for the purpose of non-invasive measurement of human hematocrit;
and
WHEREAS
InMedica, Law Investments and SNG have an agreement in principle whereby
InMedica has granted to Law Investments and SNG options to acquire a majority of
the issued and outstanding stock of InMedica; and
WHEREAS
MicroCor and InMedica desire to provide for disposition of the proceeds of any
sale or any commercialization of the Hematocrit Technology so as to benefit the
existing shareholders of InMedica and Law Investments and SNG are willing to
enter into an agreement whereby the existing shareholders of InMedica would
obtain the benefit of any sale or commercialization of the Hematocrit
Technology; and
WHEREAS
the parties desire to implement certain provisions for the governance of
MicroCor, so as to benefit the existing shareholders of InMedica in the event
that Law Investments and SNG become the control persons and majority
shareholders of InMedica and the Hematocrit Technology is thereafter
commercialized or sold;
THEREFORE,
in consideration of the mutual promises contained herein and other good and
valuable consideration, the parties agree as follows:
AGREEMENT
1. Management of MicroCor.
InMedica, Law Investments and SNG respectively agree that they will vote
and cause their affiliates to vote InMedica’s ownership in MicroCor to elect or
re-elect Xxxxx X. Xxxxx, Xxxxx Xxxxxx and Xxxxxxx Xxxxxxxxx, and any successor
nominated by them or the survivor(s) of them to serve as members of the board of
directors of MicroCor for a period of time not to exceed the first to occur of
the following events: (1) the spin off, merger, liquidation or dissolution of
MicroCor; (2) a resolution of the Board of Directors of MicroCor to abandon
further development or research involving the Hematocrit Technology; (3) the
sale of the Hematocrit Technology by MicroCor and distribution of the proceeds
thereof as provided herein; or (4) a date not to exceed two years from the date
of this Agreement. For purposes of this agreement, Law Investments and SNG
affiliates include but are not limited to any entity or person granted options
by InMedica to acquire stock in InMedica in connection with or related to these
transactions. Synergistic Equities Ltd shall not be considered an
affiliate.
During
the period of management of MicroCor by Xxxxx, Xxxxxx and Xxxxxxxxx, the
MicroCor board shall have all of the powers and discretion of a board of
directors as provided by law, including but not limited to the following
traditional or additional rights and powers:
a)
to designate a record date on which the existing shareholders of InMedica are
determined, pursuant to a current list from the transfer agent. Said current
list of existing InMedica shareholders will be issued InMedica Series B
Preferred Stock the terms and conditions of which will allow for the
participation in any spin off, distribution, liquidation, sale or similar event
of MicroCor assets (called the “Spin-off Shareholders”;
b)
to determine the method of distribution of MicroCor shares or assets to the
Spin-off Shareholders of InMedica which may be by spin off, distribution,
liquidation, sale, preferred stock distribution or other method and to determine
the terms and conditions of any such spin off, distribution, liquidation, sale
or other method.
c)
the MicroCor Board shall expend any proceeds received from any sales of MicroCor
assets to satisfy and settle MicroCor debts (as described in Section 1(d) below)
including taxes owed by MicroCor or InMedica, if any, from such sale
of any or all of the MicroCor assets, to satisfy amounts owed to MicroCor
Management, to satisfy the $150,000 plus interest owed to Xxxxx, Xxxxxx and
Xxxxxxxxx represented by three services promissory notes made by MicroCor, and
to pay any and all transaction expenses or otherwise associated with the
spin off, distribution, liquidation, sale or other method of distribution of
proceeds from any such sale.
d)
to negotiate, reach agreements and settlements with lenders, creditors,
interested parties and shareholders of MicroCor, including but not limited to
Quest Diagnostics, InMedica, EliTech, Xxx Xxx Technologies Company, Ltd., Wescor
and/or others, to write off, settle, or compromise royalties receivable by
InMedica without further consent by the InMedica board as then constituted, to
make agreements, and exercise any other power or prerogative, in their sole
discretion, they deem advisable for the best interests of MicroCor and the Spin
Off Shareholders.
e)
to appoint new members of the board of directors of MicroCor, including
their own successors.
f)
to terminate the Joint Venture Agreement among InMedica, MicroCor,
Wescor, Inc. and Xxx Xxx Technologies Company, Ltd, to terminate the royalty
obligation and minimum royalty obligations there under and to unilaterally
absolve MicroCor of any further obligation to pay accrued or future minimum or
other royalties there under to InMedica. However in the event MicroCor
successfully disposes of the Hematocrit Technology, regardless of nature, at no
time will MicroCor terminate its obligation to make a distribution to the
InMedica Class B Preferred Shareholders.
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2. Disposition of
Proceeds. In the event of any sale or commercialization of the
Hematocrit Technology, or any spin off, merger, liquidation or dissolution of
MicroCor or a sale of all or substantially all of the MicroCor assets or similar
event or events, resulting in the disposition of the Hematocrit Technology (the
“Transaction”), then InMedica, Law Investments and SNG and their affiliates
agree that the proceeds of such Transaction shall be distributed pro rata to the
Spin-off Shareholders and the other shareholders of MicroCor, except that Law
Investments, SNG and their affiliated owners of InMedica shall not participate
in such proceeds or spin off, notwithstanding their then existing ownership of
InMedica.
3.
General.
a) Notices. Any
notice will be deemed effective on the date such notice is placed,
first
class postage prepaid, in the U.S. mail, correctly addressed to the party to
which notice is being given.
b)
Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit
of the respective successors and assigns of the parties hereto, except that
neither party may assign or transfer its rights hereunder without the prior
written consent of the other parties.
c) Construction. This
Agreement and all documents and instruments associated herewith
shall be governed by, and construed and interpreted in accordance with, the laws
of the State of Utah and the parties each irrevocably consents to the
jurisdiction of any Utah court of competent jurisdiction for the purposes of
enforcement of and the seeking of any remedy pursuant to this
Agreement.
d) Provisions
Hereof Separable. Any provision of this Agreement or other
documents
associated herewith, which may be found to be invalid, shall be deemed separable
and shall not invalidate the remainder of the provisions, provided the essential
purposes of said documents are not impaired.
e) Counterparts. This
Agreement may be signed in any number of counterparts, each
of which shall be deemed an original, and such counterparts together shall
constitute one and the same instrument.
f) Merger
and Amendment. This Agreement supersedes any previous
understandings,
agreements, or commitments, whether written or oral, between the parties with
respect to the subject matter hereof. This Agreement may not be
amended or modified except in writing, signed by the parties
hereto.
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g) Language. The
grammatical number or gender of any language used in this Agreement
or in any of the accompanying documents shall include the appropriate singular
or plural number and masculine, feminine or neuter gender as the context may
appropriately require.
h) Attorneys
Fees. In any litigation arising under this Agreement, the prevailing
party
in such litigation shall be entitled to recover his/her/its reasonable
attorney’s fees and costs.
i) Further
Assurances. Each party agrees to execute and deliver, or cause to be
executed
and delivered, all such documents and instruments and shall take, or cause to be
taken all such further or other actions as are reasonably necessary or desirable
upon the request of any other party to more fully effectuate the purposes and
intent of this Agreement.
IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and
delivered as of the date and year first above written.
| INMEDICA DEVELOPMENT CORPORATION | |
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| /s/ Xxxxx X. Xxxxx | |
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| Xxxxx X. Xxxxx, Chairman |
| MICROCOR, INC. | |
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| /s/ Xxxxx Xxxxxx | |
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| Xxxxx Xxxxxx, President |
| Law Investments CR, S.A., a Costa Rica Corporation | ||
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| By: | /s/ Xxxxxx Xxxxxxxx | |
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| Xxxxxx Xxxxxxxx, President | ||
| SNG Consulting, LLC, an Arizona LLC | ||
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| By: | /s/ Xxxxxx Xxxxxxxx | |
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| Xxxxxx Xxxxxxxx, Managing Member | ||
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