EXHIBIT 10.1
AGREEMENT
THIS AGREEMENT is made this 29TH day of April, 2002, by and between
EQUITABLE ASSETS INCORPORATED, a Belize corporation having its principal office
and place of business in Belize City, Belize ("Equitable"), UNICORP, INC., a
Nevada corporation having its principal office and place of business in Houston,
Xxxxxx County, Texas ("Unicorp"), MED-X SYSTEMS, INC., a Texas corporation
having its principal office and place of business in Houston, Xxxxxx County,
Texas ("Med-X"), and ALEXANDER & XXXX, INC., a Nevada corporation having its
principal office and place of business in San Diego, San Diego County,
California ("Alexander & Xxxx").
WHEREAS, Equitable is the controlling stockholder of Unicorp, holding
approximately 79.6 percent of the issued and outstanding shares of the common
stock of Unicorp; and
WHEREAS, Unicorp owns all of the issued and outstanding shares of the
capital stock of Med-X (the "Med-X Stock"); and
WHEREAS, Unicorp desires to spin-off Med-X (the "Spin-Off") to its
stockholders (the "Unicorp Stockholders"); and
WHEREAS, following the Spin-Off, and subject to all of the terms of this
Agreement, Alexander & Xxxx desires to merge with and into Med-X; and
WHEREAS, Equitable, as the controlling stockholder of Unicorp, desires to
ensure that Unicorp and Med-X perform all of their obligations hereunder;
NOW, THEREFORE, in consideration of the foregoing and the following mutual
covenants and agreements, the parties hereto do hereby agree as follows:
1. Spin-Off and Registration. Unicorp will Spin-Off Med-X to the
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Unicorp Stockholders. The Spin-Off will be accomplished by Unicorp's
distribution to the Unicorp Stockholders of all of the issued and outstanding
shares of the Med-X Stock owned by Unicorp. Further, the Spin-Off shall be
exempt from registration under the Securities Act of 1933, as amended (the
"Securities Act"). In conjunction with the Spin-Off, Med-X and Unicorp will
promptly cause the Med-X Stock to be registered pursuant to a Registration
Statement on Form 10-SB (the "Exchange Act Registration") under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). After the Spin-Off and
the effectiveness of the Exchange Act Registration, Med-X will be a fully
reporting company under the Exchange Act and will have no liabilities. In
addition, Med-X will have at least 992 "round lot" stockholders.
2. Merger. In conjunction with the Spin-Off and the Exchange Act
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Registration, Alexander & Xxxx will enter into an agreement of merger (the
"Merger Agreement") with Med-X, whereby Alexander & Xxxx will merge with and
into Med-X pursuant to Section 368(a)(1)(A) of the Internal Revenue Code of
1986, as amended (the "Merger"). Med-X will be the surviving entity, but it
will change its name to "Alexander & Xxxx, Inc." The Merger Agreement will
provide that the issued and outstanding shares of the Med-X Stock following the
Merger will be held seven and one-half percent (7.5%) by the Med-X shareholders
and ninety two and one-half percent (92.5%) by those persons who are the
shareholders of Alexander & Xxxx before the Merger. The Merger Agreement will
contain the usual and customary representations and warranties, including, but
not limited to, a representation and warranty with respect to the fact that
Med-X has no liabilities, all shareholders of Med-X are the Unicorp Stockholders
as a result of the Spin-Off, and such other matters as to which the parties can
reasonably agree. In addition, the Merger Agreement will provide for an opinion
of counsel by the attorney representing Unicorp, Equitable, and Med-X that the
Spin-Off, the Exchange Act Registration, and the Merger have been authorized and
concluded in conformity with all applicable laws, including, but not limited to
the Securities Act and the Exchange Act, and any applicable state corporate and
securities laws. The Merger Agreement shall further provide that the Merger
will close 20 days following the mailing of the Information Statement described
below to the Unicorp Stockholders.
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3. Information Statement. Prior to the Merger, Med-X and Unicorp will
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promptly prepare and send to the Unicorp Stockholders an Information Statement
as required by the Exchange Act (the "Information Statement") in connection with
notifying the Unicorp Stockholders about the approval of the Merger by Equitable
as the controlling stockholder of Unicorp.
4. Registration of Equitable's Shares. Alexander & Xxxx shall register
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for resale all of the Med-X Stock to be received by Equitable as a result of the
Spin-Off and the Merger. Such registration shall be pursuant to a registration
statement to be filed by Alexander & Xxxx immediately after the Merger on Form
SB-2 under the Securities Act.
5. Representations of Unicorp and Equitable. Unicorp and Equitable
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represent that:
(a) Equitable owns approximately 79.6 percent of the issued and
outstanding shares of the voting capital stock of Unicorp, and as such, it has
the power and authority to cause Unicorp and Med-X to perform all of their
obligations hereunder.
(b) Unicorp owns all of the issued and outstanding shares of the
capital stock of Med-X, and is fully authorized to perform all of its
obligations hereunder.
6. Covenants of Equitable and Unicorp. Equitable hereby covenants
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that, as the controlling stockholder of Unicorp and by extension, Med-X, it will
cause both Unicorp and Med-X to perform all of their obligations hereunder.
Unicorp and Med-X hereby covenant that they will perform all of their
obligations hereunder.
7. Conditions Precedent to Alexander & Xxxx'x Obligations.
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Notwithstanding anything herein contained to the contrary, Alexander & Xxxx
shall have no obligation hereunder with respect to the Merger or any other
matter referred to herein, if any representation by Unicorp or Equitable is
untrue, or Equitable, Unicorp, or Med-X shall fail to perform any of their
obligations hereunder.
8. Unicorp's, Equitable, and Med-X's Expenses. Equitable, Unicorp, and
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Med-X will pay all of their costs in connection with the Spin-Off, the Exchange
Act Registration, and preparation of the Information Statement.
9. Alexander & Xxxx'x Expenses. Alexander & Xxxx will pay all costs
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associated with the Merger, and the expenses of printing, mailing, and delivery
of the Information Statement, provided Unicorp, Equitable, and Med-X have
performed all of their obligations hereunder. It is understood by Alexander &
Xxxx that the only obligation of Unicorp, Equitable, and Med-X with respect to
the printing, mailing and delivery of the Information Statement is to provide a
print ready copy of same to Alexander & Xxxx.
10. Agreements and Documents. In carrying out the intent of this
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Agreement, there are several agreements and documents which will need to be
prepared, including, but not limited to the Exchange Act Registration, the
Information Statement, and the Merger Agreement. The parties agree to act in
good faith and to attempt to reasonably agree on the terms of such agreements
and documents.
11. Payments to Equitable. In consideration of this Agreement,
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Alexander & Xxxx will pay the sum of $75,000 to Equitable as follows:
(a) Upon the execution of this Agreement, Alexander & Xxxx shall pay to
Equitable the sum of $37,500; and
(b) At the closing of the Merger, Alexander & Xxxx shall pay to
Equitable the sum $37,500. In addition, at the closing of the Merger, Alexander
& Xxxx will pay to Equitable any of the expenses which have not been previously
paid as described in Paragraph 8 hereof.
12. Assignment. Notwithstanding anything herein contained to the
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contrary, Alexander & Xxxx, at its sole option, without the prior consent of
Equitable, Unicorp, or Med-X, may assign, transfer, and convey all of its rights
hereunder to any other party who agrees to assume all of Alexander & Xxxx'x
obligations hereunder, whereupon, Alexander & Xxxx shall have no further
obligation to Equitable, Unicorp, or Med-X, and likewise, neither Equitable,
Unicorp, nor Med-X shall have any further obligation to Alexander & Xxxx. In
the event of any such assignment, Equitable shall not be required to return the
amount of any payments received from Alexander & Xxxx hereunder.
13. Attorney's Fees. In the event that it should become necessary for
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any party entitled hereunder to bring suit against any other party to this
Agreement for enforcement of the covenants herein contained, the parties hereby
covenant and agree that the party who is found to be in violation of said
covenants shall also be liable for all reasonable attorney's fees and costs of
court incurred by the other parties hereto.
14. Mediation and Arbitration. All disputes arising or related to this
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Agreement must exclusively be resolved first by mediation with a mediator
selected by the parties, with such mediation to be held in Houston, Texas. If
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such mediation fails, then any such dispute shall be resolved by binding
arbitration under the Commercial Arbitration Rules of the American Arbitration
Association in effect at the time the arbitration proceeding commences, except
that (a) Texas law and the Federal Arbitration Act must govern construction and
effect, (b) the locale of any arbitration must be in Houston, Texas, and (c) the
arbitrator must with the award provide written findings of fact and conclusions
of law. Any party may seek from a court of competent jurisdiction any
provisional remedy that may be necessary to protect its rights or assets pending
the selection of the arbitrator or the arbitrator's determination of the merits
of the controversy. The exercise of such arbitration rights by any party will
not preclude the exercise of any self-help remedies (including without
limitation, setoff rights) or the exercise of any non-judicial foreclosure
rights. An arbitration award may be entered in any court having jurisdiction.
15. Benefit. All the terms and provisions of this Agreement shall be
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binding upon and inure to the benefit of and be enforceable by the parties
hereto, and their respective heirs, executors, administrators, personal
representatives, successors and assigns.
16. Notices. All notices, requests, demands, and other communications
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hereunder shall be in writing and delivered personally or sent by registered or
certified United States mail, return receipt requested with postage prepaid, or
by telecopy or e-mail, if to Unicorp, Equitable, or Med-X, addressed to Xx.
Xxxxx X. Xxxx at 0000 Xxxxxxx, Xxxx, Xxxxx 00000, with a copy to M. Xxxxxxx
Xxxxxxx, Esq., at X.X. Xxx 000000, Xxxxxxx, Xxxxx 00000 and Xxx Xxxxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxx 00000, telecopier (000) 000-0000, and e-mail
xxxxxxxx@xxxxxxx.xxx; and if to Alexander & Xxxx, addressed to Xx. Xxxxxxx
Xxxxxxxxx at 0000 Xxx Xxx Xxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000,
telecopier (000) 000-0000, and e-mail xxxxxxxxxxx@xx.xxx. Any party hereto may
change its address upon 10 days' written notice to any other party hereto.
17. Construction. Words of any gender used in this Agreement shall be
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held and construed to include any other gender, and words in the singular number
shall be held to include the plural, and vice versa, unless the context requires
otherwise. In addition, the pronouns used in this Agreement shall be understood
and construed to apply whether the party referred to is an individual,
partnership, joint venture, corporation or an individual or individuals doing
business under a firm or trade name, and the masculine, feminine and neuter
pronouns shall each include the other and may be used interchangeably with the
same meaning.
18. Waiver. No course of dealing on the part of any party hereto or
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its agents, or any failure or delay by any such party with respect to exercising
any right, power or privilege of such party under this Agreement or any
instrument referred to herein shall operate as a waiver thereof, and any single
or partial exercise of any such right, power or privilege shall not preclude any
later exercise thereof or any exercise of any other right, power or privilege
hereunder or thereunder.
19. Cumulative Rights. The rights and remedies of any party under this
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Agreement and the instruments executed or to be executed in connection herewith,
or any of them, shall be cumulative and the exercise or partial exercise of any
such right or remedy shall not preclude the exercise of any other right or
remedy.
20. Invalidity. In the event any one or more of the provisions
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contained in this Agreement or in any instrument referred to herein or executed
in connection herewith shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect the other provisions of this Agreement or any such other
instrument.
21. Time of the Essence. Time is of the essence of this Agreement.
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22. Headings. The headings used in this Agreement are for convenience
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and reference only and in no way define, limit, simplify or describe the scope
or intent of this Agreement, and do not effect or constitute a part of this
Agreement.
23. Excusable Delay. None of the parties hereto shall be obligated to
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perform and none shall be deemed to be in default hereunder, if the performance
of a non-monetary obligation is prevented by the occurrence of any of the
following, other than as the result of the financial inability of the party
obligated to perform: acts of God, strikes, lock-outs, other industrial
disturbances, acts of a public enemy, wars or war-like action (whether actual,
impending or expected and whether de jure or de facto), acts of terrorists,
arrest or other restraint of governmental (civil or military) blockades,
insurrections, riots, epidemics, landslides, lightning, earthquakes, fires,
hurricanes, storms, floods, washouts, sink holes, civil disturbances,
explosions, breakage or accident to equipment or machinery, confiscation or
seizure by any government of public authority, nuclear reaction or radiation,
radioactive contamination or other causes, whether of the kind herein
enumerated, or otherwise, that are not reasonably within the control of the
party claiming the right to delay performance on account of such occurrence.
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24. No Third-Party Beneficiary. Any agreement to pay an amount and any
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assumption of liability herein contained, express or implied, shall be only for
the benefit of the undersigned parties and their respective successors and
assigns (as herein expressly permitted), and such agreements and assumptions
shall not inure to the benefit of the obligees or any other party, whomsoever,
it being the intention of the parties hereto that no one shall be or be deemed
to be a third-party beneficiary of this Agreement.
25. Multiple Counterparts. This Agreement may be executed in one or
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more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
26. Governing law; Jurisdiction. This Agreement shall be governed by
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and construed in accordance with the laws of the State of Texas, without regard
to any conflicts of laws provisions thereof. Each party hereby irrevocably
submits to the personal jurisdiction of the United States District Court for
Xxxxxx County, Texas, as well as of the District Courts of the State of Texas in
Xxxxxx County, Texas over any suit, action or proceeding arising out of or
relating to this Agreement. Each party hereby irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of the venue of any such mediation, arbitration, suit, action
or proceeding brought in any such county and any claim that any such mediation,
arbitration, suit, action or proceeding brought in such county has been brought
in an inconvenient forum.
27. Perfection of Title. The parties hereto shall do all other acts
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and things that may be reasonably necessary or proper, fully or more fully, to
evidence, complete or perfect this Agreement, and to carry out the intent of
this Agreement.
28. Entire Agreement. This instrument contains the entire
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understanding of the parties with respect to the subject matter hereof, and may
not be changed orally, but only by an instrument in writing signed by the party
against whom enforcement of any waiver, change, modification, extension, or
discharge is sought.
IN WITNESS WHEREOF, this Agreement has been executed in multiple
counterparts on the date first written above.
UNICORP, INC.
By /S/ XXXXX X. XXXX
Xxxxx X. Xxxx, President
EQUITABLE ASSETS, INCORPORATED
By /S/ XXXXX X. XXXX
Xxxxx X. Xxxx, President
MED-X SYSTEMS, INC.
By /S/ XXXXX X. XXXX
Xxxxx X. Xxxx, President
ALEXANDER & XXXX, INC.
By /S/ XXXXXXX XXXXXXXXX
Xxxxxxx Xxxxxxxxx, Chairman
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