EXHIBIT 2
MERGER AGREEMENT
THIS MERGER AGREEMENT (the "Agreement") is entered into on September
___, 2000, by and among MEDICAL TECHNOLOGY VENTURES, INC., a Delaware
corporation ("MTV") and HEMOKINETICS, INC., a District of Columbia corporation
("Hemokinetics").
RECITALS
The Boards of Directors of Hemokinetics and MTV believe that the merger
of Hemokinetics with and into MTV would be advantageous and beneficial and in
the best interests of MTV and Hemokinetics and their respective shareholders.
It is the intention of the parties hereto that: (i) Hemokinetics shall
be merged with and into MTV (the "Merger") (ii) effective as of Closing, each
outstanding share of the common stock of Hemokinetics will be converted into a
number of shares of the Merger Stock (as hereafter defined) equal to the number
of shares of Merger Stock divided by the number of shares of Hemokinetics common
stock outstanding as of the Closing Date; (ii) the issuance of the Merger Stock
shall be registered under the Securities Act of 1933, as amended (the
"Securities Act"), and under applicable state securities laws; and (iii) the
Merger shall qualify as a tax-free reorganization under Section 368(a)(1)(A) of
the Internal Revenue Code of 1986, as amended (the "Code").
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and intending to be legally bound, the parties hereto agree as
follows:
1. RECITALS AND DEFINITIONS.
(a) The foregoing RECITALS are true and correct, and
are incorporated herein and made a part hereof.
(b) For purposes of this Agreement, the terms set forth
below shall have the following meanings:
<TABLE>
<S> <C>
MTV STATEMENTS - audited financial statements of MTV as of and for the fiscal
year ended December 31, 1999
HEMOKINETICS
STATEMENTS - audited financial statements of Hemokinetics as of and for the
fiscal year ended June 30, 1999, and unaudited financial
statements of Hemokinetics as of and for the six months
ended December 31, 1999
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CLOSING - the consummation of the transaction of events set forth in
Section 11 hereof
CLOSING DATE - the day on which the Closing is held as set forth in Section 7
hereof and the time that Articles of Merger are filed in
accordance with the laws of the State of Delaware and the
District of Columbia
COMMON STOCK - Common Stock, $.001 par value per share, of MTV
MERGER - the merger of Hemokinetics with and into MTV which will
result in the conversion of each outstanding share of the
common stock of Hemokinetics into shares of the Merger
Stock
MERGER STOCK - 254,795 shares of MTV Common Stock
</TABLE>
2. THE MERGER.
(a) Hemokinetics and MTV agree that on the Closing Date
Hemokinetics shall be merged with and into MTV, which shall be the surviving
corporation. Pursuant to the Merger, each share of common stock of Hemokinetics
issued and outstanding immediately prior to the Closing shall, without any
action on the part of the holder thereof, be converted into a number of shares
of the Merger Stock (as hereafter defined) equal to the number of shares of
Merger Stock divided by the number of shares of Hemokinetics common stock
outstanding as of the Closing Date. No other consideration shall be payable to
the Hemokinetics stockholders in connection with the Merger. The issuance of the
Merger Stock will be registered pursuant to the Securities Act and applicable
state securities laws.
(b) From and after the Closing, the Articles of Incorporation
and Bylaws of MTV as in effect immediately prior to the Closing shall be the
Articles of Incorporation and Bylaws of MTV, as the surviving corporation, until
further amended.
3. REPRESENTATIONS AND WARRANTIES OF MTV. As a material inducement to
Hemokinetics to enter into this Agreement and consummate the transactions
contemplated hereby, MTV makes the following representations and warranties to
Hemokinetics. The representations and warranties are true and correct in all
material respects at this date, and will be true and correct in all material
respects on the Closing Date as though made on and as of such date.
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(a) DUE ORGANIZATION. MTV is a corporation duly organized and
validly existing; its status is active; it is qualified to do business and in
good standing in each state where the properties owned, leased or operated, or
the business conducted, by them require such qualification and where failure to
so qualify would have a material adverse effect on their financial condition,
properties, business or results of operations. MTV has the power to own its
properties and assets and to carry on its business as now presently conducted.
(b) CAPITALIZATION. The authorized capitalization of MTV
consists of 20,000,000 shares of $.001 par value common stock of which 2,293,155
shares are currently issued and outstanding. All issued and outstanding shares
are duly authorized, validly issued, fully paid and non-assessable, and have
been issued in compliance with applicable federal and state securities laws and
regulations. Except for the foregoing, there are no outstanding or presently
authorized securities, warrants, preemptive rights, subscription rights or
options to issue any of MTV's securities.
(c) SHARES OF MERGER STOCK; NATURE OF TRANSACTIONS. The Merger
Stock will be validly and legally issued, free and clear of all liens,
encumbrances, transfer fees and preemptive rights, and will be fully paid and
non-assessable. When consummated, the transactions provided in this Agreement,
including the issuance and delivery of the Merger Stock, will constitute a
tax-free reorganization under Section 368(a)(1)(A) of the Code.
(d) MTV STATEMENTS. Schedule 3(d) contains the MTV Statements.
The MTV Statements and financial information contained therein present fairly
the financial condition of MTV for the periods covered (subject, in the case of
unaudited statements, to normal year-end audit adjustments which will not be
material to MTV, taken as a whole, in amount or effect). The MTV Statements have
been prepared in accordance with generally accepted accounting principles,
consistently applied. The books and records of MTV, financial and other, are in
all material respects complete and correct and have been maintained in
accordance with good business and accounting practices.
(e) UNDISCLOSED LIABILITIES. MTV does not have any liabilities
or obligations of any nature, fixed or contingent, matured or unmatured, that
are not shown or otherwise provided for in MTV Statements, except for
liabilities and obligations arising subsequent to the date of MTV Statements in
the ordinary course of business, none of which individually or in the aggregate
will be materially adverse to the business or financial condition of MTV. There
are no material loss contingencies (as such term is used in Statement of
Financial Accounting Standards No. 5 of the Financial Accounting Standards
Board) of MTV that will not be adequately provided for.
(f) MATERIAL ADVERSE CHANGE. Since the date of the most
recent MTV Statements, the business of MTV has been operated in the ordinary
course and there has not been:
(i) Any material adverse change in the business,
condition (financial or otherwise), results of operations, prospects,
properties, assets, liabilities, earnings or net worth of MTV for such period or
at any time during such period.
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(ii) Any material damage, destruction or loss
(whether or not covered by insurance) affecting MTV or its assets, properties or
businesses.
(iii) Any declaration, setting aside or payment
of any dividend or other distribution in respect of any shares of the capital
stock of MTV, or any direct or indirect redemption, purchase or other
acquisition of any such stock or any agreement to do so.
(iv) Any issuance or sale by MTV, or agreement by
MTV to sell or pledge any of its securities. No irrevocable proxies have been
given with respect to any securities of MTV.
(v) Any statute, rule, regulation or order
adopted by any governmental body, agency or authority (including orders of
regulatory authorities with jurisdiction over MTV) that materially and adversely
affects MTV or its business or financial condition.
(vi) Any material increase in the rate of
compensation or in bonus or commission payments payable or to become payable to
any of the salaried employees of MTV; provided, however, that this subsection
shall not restrict or limit MTV in any way from hiring additional personnel who
are required for their operations.
(vii) Any other events or conditions of any
character that may reasonably be expected to have a materially adverse effect on
MTV or their business or financial condition.
(g) LITIGATION. There are no actions, suits, claims,
investigations or legal, administrative or arbitration proceedings pending or,
to the knowledge of MTV, threatened against MTV, whether at law or in equity, or
before or by any federal, state, municipal, local, foreign or other governmental
department, commission, board, bureau, agency or instrumentality, nor does MTV
know of any basis for any such action, suit, claim, investigation or proceeding.
(h) COMPLIANCE: GOVERNMENTAL AUTHORIZATIONS. MTV has complied
in all material respects with all federal, state, local or foreign laws,
ordinances, regulations and orders applicable to its business, including without
limitation, federal and state securities, banking collection and consumer
protection laws and regulations that, if not complied with, would materially and
adversely affect its businesses. MTV has all federal, state, local and foreign
governmental licenses and permits necessary for the conduct of its business.
Such licenses and permits are in full force and effect. MTV knows of no
violations of any such licenses or permits. No proceedings are pending or
threatened to revoke or limit the use of such licenses or permits.
(i) TAX MATTERS. MTV has, or at the time of the Closing
hereunder will have, filed all federal, state and local tax or related returns
and reports due or required to be filed, which reports will accurately reflect
in all material respects the amount of taxes due. MTV has paid all amounts or
taxes or assessments that would be delinquent if not paid as of the date of this
Agreement, and will have paid such required amounts as of the Closing Date.
There are no tax liens with respect to any properties owned by MTV.
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(j) DUE AUTHORIZATION. Subject only to approval of this
Agreement by MTV's shareholders, this Agreement has been duly authorized,
executed and delivered by MTV and constitutes a valid and binding agreement of
MTV enforceable in accordance with its terms, except as such enforcement may be
limited by applicable bankruptcy, insolvency, moratorium, and other similar laws
relating to, limiting or affecting the enforcement of creditors rights generally
or by the application of equitable principles. Neither the execution and
delivery of this Agreement, nor the consummation of the transactions
contemplated hereby, nor compliance with any of the provisions hereof, will
violate any order, writ, injunction or decree of any court or governmental
authority, or violate or conflict with in any material respect or constitute a
default under (or give rise to any right of termination, cancellation or
acceleration under) any provisions of MTV's Articles of Incorporation or Bylaws,
the terms or conditions or provisions of any note, bond, lease, mortgage,
obligation, agreement, understanding, arrangement or restriction of any kind to
which MTV is a party or by which MTV or its properties may be bound, or violates
any statute, law, rule or regulation applicable to MTV. No consent or approval
by any governmental authority is required in connection with the execution and
delivery by MTV of this Agreement or the consummation of the transactions
contemplated hereby.
(k) FULL DISCLOSURE. MTV has not, and will not have at
the Closing Date, withheld disclosure of any events, conditions, and facts of
which it may have knowledge and that may materially and adversely affect the
business or prospects of Hemokinetics.
(l) BROKERAGE FEES. MTV has not incurred, and will not
incur, any liability for brokerage or finder's fees or similar charges in
connection with this Agreement.
(m) NO APPROVALS REQUIRED. No approval, authorization,
consent, order or other action of, or filing with, any person, firm or
corporation or any court, administrative agency or other governmental authority
is required in connection with the execution and delivery by MTV of this
Agreement or the consummation of the transactions described herein, except to
the extent that MTV may be required to file reports in accordance with relevant
regulations under federal and state securities laws.
4. REPRESENTATIONS AND WARRANTIES OF HEMOKINETICS. Hemokinetics,
as a material inducement to MTV to enter into this Agreement and consummate the
transactions contemplated hereby, makes the following representations and
warranties to MTV, which representations and warranties are true and correct in
all material respects at this date, and will be true and correct in all material
respects on the Closing Date as though made on and as of such date.
(a) DUE ORGANIZATION. Hemokinetics is a corporation duly
organized, validly existing and in good standing under the laws of the District
of Columbia. Hemokinetics has the corporate power to own its property and to
carry on its business as now presently conducted.
(b) CAPITALIZATION. The authorized capital stock of
Hemokinetics consists of 26,250,000 shares of Common Stock Class A, $.01 par
value, of which 1,309,998.2 shares are
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outstanding as of the date of this Agreement. All of the outstanding shares of
Common Stock have been validly issued and are fully paid and non-assessable.
Hemokinetics has no shares of Common Stock reserved for issuance and there are
no outstanding subscriptions, options, warrants, rights, convertible securities
or other agreements or commitments of any character relating to the issued or
unissued Common Stock or other securities of Hemokinetics obligating
Hemokinetics to issue any securities.
(c) HEMOKINETICS STATEMENTS. Schedule 4(c) contains the
Hemokinetics Statements. The Hemokinetics Statements fairly present the
financial position of Hemokinetics as of the date thereof. The books and
records, financial and other, of Hemokinetics are in all material respects
complete and correct.
(d) UNDISCLOSED LIABILITIES. Hemokinetics has no liabilities
or obligations of any nature, fixed or contingently matured or unmatured, that
are not shown or otherwise provided for in Hemokinetics Statements or have not
been disclosed to MTV.
(e) MATERIAL ADVERSE CHANGE. Since the date of the most
recent Hemokinetics Statements, the business of Hemokinetics has been operated
in the ordinary course and there has not been:
(i) Any material adverse change in the business,
condition (financial or otherwise), results of operations, prospects,
properties, assets, liabilities, earnings or net worth of Hemokinetics for such
period or at any time during such period.
(ii) Any material damage, destruction or loss
(whether or not covered by insurance) affecting Hemokinetics or its assets,
properties or businesses.
(iii) Any declaration, setting aside or payment of
any dividend or other distribution in respect of any shares of the capital stock
of Hemokinetics, or any direct or indirect redemption, purchase or other
acquisition of any such stock or any agreement to do so.
(iv) Any issuance or sale by Hemokinetics, or
agreement by Hemokinetics to sell or pledge any of its securities. No
irrevocable proxies been given with respect to any securities of Hemokinetics.
(v) Any statute, rule, regulation or order
adopted by any governmental body, agency or authority (including orders of
regulatory authorities with jurisdiction over Hemokinetics) that materially and
adversely affects Hemokinetics or its business or financial condition.
(vi) Any material increase in the rate of
compensation or in bonus or commission payments payable or to become payable to
any of the salaried employees of Hemokinetics.
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(vii) Any other events or conditions of any
character that may reasonably be expected to have a materially adverse effect on
Hemokinetics or its business or financial condition.
(f) LITIGATION. There are no actions, suits, claims,
investigations or legal, administrative or arbitration proceedings pending
against Hemokinetics, its assets or business, whether at law or in equity, or
before or by any federal, state, municipal, local, foreign or other governmental
department, commission, board, bureau, agency or instrumentality, nor does
Hemokinetics know of a threat of, or any basis for, any such action, suit,
claim, investigation or proceeding.
(g) COMPLIANCE: GOVERNMENTAL AUTHORIZATIONS. Hemokinetics has
complied in all material respects with all federal, state, local or foreign
laws, ordinances, regulations and orders applicable to its business, including
without limitation, federal and state securities, banking collection and
consumer protection laws and regulations that, if not complied with, would
materially and adversely affect its businesses. Hemokinetics has all federal,
state, local and foreign governmental licenses and permits necessary for the
conduct of its business. Such licenses and permits are in full force and effect.
Hemokinetics knows of no violations of any such licenses or permits. No
proceedings are pending or threatened to revoke or limit the use of such
licenses or permits.
(h) TAX MATTERS. Hemokinetics has filed all federal, state and
local, tax or related returns and reports due or required to be filed, which
reports accurately reflect in all material respects the amount of taxes due.
Hemokinetics has paid all taxes or assessments that have become due, other than
taxes or charges being contested in good faith or not yet finally determined.
Hemokinetics is not aware of any tax liens with respect to any properties owned
by Hemokinetics.
(i) DUE AUTHORIZATION. Subject only to approval of this
Agreement by Hemokinetics' shareholders, this Agreement has been duly
authorized, executed and delivered by Hemokinetics and constitutes a valid and
binding agreement of Hemokinetics enforceable in accordance with its terms,
except as such enforcement may be limited by applicable bankruptcy, insolvency,
moratorium, and other similar laws relating to, limiting or affecting the
enforcement of creditors rights generally or by the application of equitable
principles. Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated hereby, nor compliance with any of
the provisions hereof, will violate any order, writ, injunction or decree of any
court or governmental authority, or violate or conflict with in any material
respect or constitute a default under (or give rise to any right of termination,
cancellation or acceleration under) any provisions of Hemokinetics' Articles of
Incorporation or Bylaws, the terms or conditions or provisions of any note,
bond, lease, mortgage, obligation, agreement, understanding, arrangement or
restriction of any kind to which Hemokinetics is a party or by which
Hemokinetics or its properties may be bound, or violates any statute, law, rule
or regulation applicable to Hemokinetics. No consent or approval by any
governmental authority is required in connection with the execution
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and delivery by Hemokinetics of this Agreement or the consummation of the
transactions contemplated hereby.
(j) FULL DISCLOSURE. Hemokinetics has not, and will not have
at the Closing Date, withheld disclosure of any events, conditions, and facts of
which it may have knowledge and that may materially and adversely affect the
business or prospects of Hemokinetics.
(k) BROKERAGE FEES. Hemokinetics has not incurred, and will
not incur, any liability for brokerage or finder's fees or similar charges in
connection with this Agreement.
(l) NO APPROVALS REQUIRED. No approval, authorization,
consent, order or other action of, or filing with, any person, firm or
corporation or any court, administrative agency or other governmental authority
is required in connection with the execution and delivery by Hemokinetics of
this Agreement or the consummation of the transactions described herein, except
to the extent that Hemokinetics may be required to file reports in accordance
with relevant regulations under federal and state securities laws.
5. COVENANTS AND AGREEMENTS. The parties covenant and agree as
follows:
(a) CONDUCT OF BUSINESS. From the date hereof through the date
of the Closing, Hemokinetics and MTV shall conduct their respective businesses
in the ordinary course and in material compliance with all requirements of law
to which they are subject, keep their respective business and properties
substantially intact.
(b) LITIGATION. Hemokinetics and MTV shall promptly notify
each other of any lawsuit, claims, proceedings or investigations which after the
date hereof are threatened or commenced against it or against any officer,
director, employee, affiliate or consultant of it, with respect to the
transactions contemplated hereby or which reasonably could be expected to have a
material adverse effect.
(c) SHAREHOLDER APPROVAL. At the earliest practicable date
following the date hereof, each of MTV and Hemokinetics shall obtain their
respective shareholders' approval adopting this Agreement and approving the
Merger.
(d) ISSUANCE OF CAPITAL STOCK. Neither MTV nor Hemokinetics
shall issue, commit to issue, redeem or purchase, or amend the terms of, any of
its capital stock after the date hereof.
(e) NOTIFICATION OF CERTAIN EVENTS. Each of MTV and
Hemokinetics shall promptly be given notice by the other of any event, condition
or circumstance occurring from the date hereof through the Closing Date which
would constitute or which would, with the passage of time or giving notice or
both, constitute a violation or breach of any representation or warranty
contained herein occurring with respect to the party required to give notice
pursuant to this Section.
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(f) TAX TREATMENT. MTV and Hemokinetics undertake and agree to
take no action which would cause the Merger to fail to qualify as a
reorganization within the meaning of Section 368(a)(1)(A) of the Code, and agree
that they will file no tax returns or otherwise take a position inconsistent
with such tax treatment.
6. DUE DILIGENCE AND TERMINATION. Hemokinetics and MTV each shall
be entitled to conduct, and all of the parties agree to cooperate in the conduct
of, such due diligence as Hemokinetics or MTV may wish to conduct prior to and
on the Closing Date to verify the truth, accuracy and completeness of
representations and warranties of the other parties to this Agreement. Either
party may terminate this Agreement without liability to the other if the Merger
has not been completed by December 31, 2000.
7. CLOSING DATE. Both parties will diligently and continuously
pursue the actions required to close the Merger as soon as possible, using best
efforts to close by September 29, 2000. Either party may extend the Closing Date
upon demonstration to the reasonable satisfaction of the other party that they
are diligently pursuing the performance of, and compliance with, all conditions
precedent to their obligations hereunder.
8. CONDITIONS PRECEDENT TO OBLIGATIONS OF MTV. All obligations of
MTV under this Agreement are subject to the fulfillment, prior to or on the
Closing Date (unless otherwise stated herein), of each of the following
conditions, any one or all of which may be waived by MTV:
(a) The shareholders of Hemokinetics and MTV shall have
approved the execution of this Agreement and the Merger thereby.
(b) The representations and warranties made by Hemokinetics
contained in this Agreement or in any certificate or document delivered to MTV
pursuant to the provisions hereof at the Closing shall be true in all material
respects at and as of the time of the Closing as though such representations and
warranties were made at and as of such time.
(c) Hemokinetics shall have performed and complied in all
material respects with all covenants, agreements and conditions required by this
Agreement to be performed or complied with by it prior to or at the Closing.
(d) Any Due Diligence Examination by MTV prior to the Closing
Date shall not have resulted in the discovery of any materially adverse
information concerning the business, condition (financial or otherwise), results
of operations, prospects, properties, assets, liabilities, earnings or net worth
of Hemokinetics.
9. CONDITIONS PRECEDENT TO OBLIGATIONS OF HEMOKINETICS. All
obligations of Hemokinetics under this Agreement are subject to the fulfillment,
prior to or on the Closing Date, of each of the following conditions, any one or
all of which may be waived in writing by Hemokinetics:
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(a) The shareholders of MTV and Hemokinetics shall have
approved the execution of this Agreement and the Merger thereby.
(b) The representations and warranties made by MTV contained
in this Agreement or in any certificate or document delivered to Hemokinetics
pursuant to the provisions hereof at the Closing shall be true in all material
respects at and as of the time of the Closing as though such representations and
warranties were made at and as of such time.
(c) MTV shall have performed and complied in all material
respects with all covenants, agreements, and conditions required by this
Agreement to be performed or complied with by it prior to or at the Closing.
(d) Any Due Diligence Examination by Hemokinetics prior to the
Closing Date shall not have resulted in the discovery of any materially adverse
information concerning the business, condition (financial or otherwise), results
of operations, prospects, properties, assets, liabilities, earnings or net worth
of MTV.
10. NATURE OF REPRESENTATIONS AND WARRANTIES. All of the parties
hereto are executing and carrying out the provisions of this Agreement in
reliance on the representations, warranties, covenants and agreements contained
in this Agreement or at the Closing of the transactions herein provided for, and
any investigation that they might have made or any other representations,
warranties, covenants, agreements, promises or information, written or oral,
made by the other party or parties or any other person shall not be deemed a
waiver of any breach of any such representation, warranty, covenant or
agreement.
11. CLOSING. At the Closing, the following transactions shall
occur, all of such transactions being deemed to occur simultaneously:
(a) Hemokinetics will deliver, or cause to be delivered, to
MTV the following:
(i) All corporate records of Hemokinetics,
including without limitation corporate minute books (which shall contain copies
of the Articles of Incorporation and Bylaws, as amended to the Closing Date),
stock books, stock transfer books, corporate seals, and such other corporate
books and records as may reasonably be requested by MTV and its counsel.
(ii) A Certificate of Status from the Secretary
of State of the District of Columbia, dated at or about the Closing Date, to the
effect that such corporation is in good standing under the laws of the District
of Columbia.
(iii) Copies of resolutions of the Board of
Directors and Shareholders of Hemokinetics authorizing the transactions
contemplated under this Agreement.
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(iv) Such documents as may be needed to
accomplish the Merger under the corporate laws of the District of Columbia.
(v) Such other instruments, documents and
certificates, if any, as are required to be delivered pursuant to the provisions
of this Agreement or that may be reasonably requested in furtherance of the
provisions of this Agreement.
(b) MTV will deliver or cause to be delivered to
Hemokinetics:
(i) Stock issuance instructions to MTV's
transfer agent for the conversion of Hemokinetics common stock to MTV common
stock, within five business days after the Closing Date.
(ii) A Certificate of Status for MTV from the
Secretary of State of Delaware, dated at or about the Closing Date, to the
effect that such corporation is in good standing under the laws of Delaware.
(iii) Copies of resolutions of the Board of
Directors and Shareholders of MTV authorizing the transactions contemplated
under this Agreement.
(iv) Such documents as may be needed to
accomplish the Merger under the corporate laws of the State of Delaware.
(v) Such other instruments, documents and
certificates, if any, as are required to be delivered pursuant to the provisions
of this Agreement, or that may be reasonably requested in furtherance of the
provisions of this Agreement.
12. MISCELLANEOUS.
(a) FURTHER ASSURANCES. At any time, and from time to time,
after the Closing, each party will execute such additional instruments and take
such further action as may be reasonably requested by the other party to confirm
or perfect title to any property transferred hereunder or otherwise to carry out
the intent and purposes of this Agreement.
(b) TIME. Time is of the essence.
(c) SURVIVAL OF REPRESENTATIONS. All covenants and agreements
made herein shall survive the Closing through all applicable statutes of
limitation. All covenants and agreements by or on behalf of the parties hereto
that are contained or incorporated in this Agreement shall bind and inure to the
benefit of the successors and assigns of all parties hereto.
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(d) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof.
It supersedes all prior negotiations, letters and understandings relating to the
subject matter hereof.
(e) AMENDMENT. This Agreement may not be amended, supplemented
or modified in whole or in part except by an instrument in writing signed by the
party or parties against whom enforcement of any such amendment, supplement or
modification is sought.
(f) CHOICE OF LAW. This Agreement shall be interpreted,
construed and enforced in accordance with the laws of the State of Florida
(except insofar as District of Columbia and Delaware law shall govern the Merger
and the corporate actions of the parties contemplated hereby).
(g) HEADINGS. The section and subsection headings in
this Agreement are inserted for convenience only and shall not affect in any way
the meaning or interpretation of this agreement.
(h) CONSTRUCTION. The parties hereto and their respective
legal counsel participated in the preparation of this Agreement; therefore, this
Agreement shall be construed neither against nor in favor of any of the parties
hereto, but rather in accordance with the fair meaning thereof.
(i) EFFECT OF WAIVER. The failure of any party at any time or
times to require performance of any provision of this Agreement will in no
manner affect the right to enforce the same. The waiver by any party of any
breach of any provision of this Agreement will not be construed to be a waiver
by any such party of any succeeding breach of that provision or a waiver by such
party of any breach of any other provision.
(j) SEVERABILITY. The invalidity, illegality or
unenforceability of any provision or provisions of this Agreement will not
affect any other provision of this Agreement, which will remain in full force
and effect, nor will the invalidity, illegality or unenforceability of a portion
of any provision of this Agreement affect the balance of such provision. In the
event that any one or more of the provisions contained in this Agreement or any
portion thereof shall for any reason be held to be invalid, illegal or
unenforceable in any respect, this Agreement shall be reformed, construed and
enforced as if such invalid, illegal or unenforceable provision had never been
contained herein.
(k) ENFORCEMENT. Should it become necessary for any party to
institute legal action to enforce the terms and conditions of this Agreement,
the successful party will be awarded reasonable attorneys' fees at all trial and
appellate levels, expenses and costs. The parties hereto acknowledge and agree
that any party's remedy at law for a breach or threatened breach of any of the
provisions of this Agreement would be inadequate and such breach or threatened
breach shall be per se deemed as causing irreparable harm to such party.
Therefore, in the event of such breach or threatened breach, the parties hereto
agree that, in addition to any available remedy at law, including but not
limited to monetary damages, an aggrieved party, without posting any bond, shall
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be entitled to obtain, and the offending party agrees not to oppose the
aggrieved party's request for, equitable relief in the form of specific
enforcement, temporary restraining order, temporary or permanent injunction, or
any other equitable remedy that may then be available to the aggrieved party.
(l) BINDING NATURE. This Agreement will be binding upon and
will inure to the benefit of any successor or successors of the parties hereto.
(m) NO THIRD-PARTY BENEFICIARIES. No person shall be deemed to
possess any third-party beneficiary right pursuant to this Agreement. It is the
intent of the parties hereto that no direct benefit to any third party is
intended or implied by the execution of this Agreement.
(n) EXPENSES. All expenses incident to the preparation of
documents for, and closing of, the Merger will be borne by MTV.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
HEMOKINETICS, INC.
By: /S/ EDWARD G. GREGER
-----------------------------------
Edward G. Greger. M.D., President
MEDICAL TECHNOLOGY VENTURES, INC.
By: /S/ GIL DORLAND
-----------------------------------
Gil Dorland, President
List of Schedules:
Schedule 3(d) - MTV Financial Statements
Schedule 4(c) - Hemokinetics Financial Statements
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