Exhibit 2.1
PURCHASE AND ASSIGNMENT AGREEMENT
PURCHASE AND ASSIGNMENT AGREEMENT (this "Agreement"), dated
this 3rd day of January, 2001 (the "Effective Date" or "Closing
Date"), among ADVANTAGE MARKETING SYSTEMS, INC., an Oklahoma
corporation ("AMS"), having its offices at 2601 Northwest
Expressway, Suite 1210W, Oklahoma City, Oklahoma 73112, LIFE
SCIENCE TECHNOLOGIES HOLDINGS, INC., an Oklahoma corporation and
a wholly-owned subsidiary of AMS ("Acquisition Sub"), GUS
HOLDING, INC., a Nevada corporation ("GHI"), RMS LIMITED
PARTNERSHIP, Nevada limited partnership ("RMS"), LIFE SCIENCE
TECHNOLOGIES, INC., a Nevada corporation ("LSTI"), and Life
Science Technologies of Canada, Inc. ("LSTCI"), having their
offices at 6990 Lake Ellenor Drive, Orlando, Florida 32809.
W I T N E S S E T H:
WHEREAS, GHI is the sole general partner and RMS is the sole
limited partner of Life Science Technologies Holdings Limited
Partnership, a Nevada Limited Partnership ("LST Holdings") and
LSTI is the sole general partner and LST Holdings is the sole
limited Partner of Life Science Technologies Limited, Life
Science Technologies of Japan, and LST Fulfillment Limited
Partnership, each a Nevada limited partnership and the sole
shareholder of Life Science Technologies of Canada, Inc., and
together with LST Holdings (the "LST Entities");
WHEREAS, RMS and GHI desire to sell their partnership
interests in LST Holdings and LSTI desires to sell its general
partnership interests in Life Science Technologies Limited, Life
Science Technologies of Japan, and LST Fulfillment Limited
Partnership and all of the common stock of Life Science
Technologies of Canada, Inc., (collectively these partnership
interests and common stock are referred to as the "Partnership
Interests") and Acquisition Sub and AMS desire to purchase the
Partnership Interests;
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements herein contained, and intending
to be legally bound hereby, AMS, Acquisition Sub, GHI, RMS and
LSTI agree as follows:
(a) SECTION 1. Purchase and Transaction Consideration.
Purchase and Sale. On the Effective Time, and subject to and
upon the terms and conditions of this Agreement, GHI, RMS and
LSTI hereby sell, assign, convey, set over, transfer and deliver
to Acquisition Sub the Partnership Interests and Acquisition Sub
hereby purchases, acquires and accepts all right, title and
interest of GHI, RMS and LSTI in the Partnership Interests (the
"Purchase and Sale"), free and clear of any lien, charge, claim,
pledge, security interest or other encumbrance of any type or
kind whatsoever, against receipt of the Transaction Consideration
(as defined below).
(a) Transaction Consideration. (i) Payment and Deliveries
on Effective Date. (A) AMS on the Effective Date pays and
delivers to GHI, RMS and LSTI the aggregate sum of $1,000,000 in
immediately available funds via wire transfer, and (B) AMS,
Acquisition Sub and the LST Entities make in favor of and
delivers to RMS a promissory note in the form attached hereto as
Exhibit A, in the principal sum of $500,000, such principal
amount of such note being subject to increase or decrease in an
amount equal to the amount by which the book value of the
tangible assets of the LST Entities is greater than or less than
$1,500,000. AMS' obligations under the promissory note shall be
secured by all of the assets of the LST Entities including,
without limitation, inventory, intellectual property and tangible
and intangible assets and AMS shall execute financing statements
covering such assets prepared by GHI, RMS and LSTI to be filed by
GHI, RMS and LSTI in each jurisdiction in which such assets are
located in order to provide GHI, RMS and LSTI with a perfected
priority security interest in and to such assets.
(ii) Installment Payments. On or before the 15th day
of each of the 60 months following the Effective Date (the
"Payment Date"), AMS shall pay to RMS or its designee the greater
of (A) 5% of the gross sales of LST Products (as defined below)
during the calendar month preceding the Payment Date or (B)
$41,666.67 (the "Installment Payments"). "LST Products" means
the products sold by the LST Entities prior to the Effective Date
and any related products or products utilizing proprietary
technology of the LST Entities, including but not limited to
adaptogen based products, developed or sold by AMS or any of its
affiliates after the Effective date. At the election of RMS
exercised prior to payment of an Installment Payment, in lieu of
payment of all or any portion of any Installment Payment in cash,
RMS shall be issued and delivered one share of the Company's
common stock, $0.0001 par value per share ("Common Stock") for
each $3.00 of the Installment Payment in accordance with the
option agreement attached hereto as Exhibit B (the "Option
Agreement"). Provided, however, AMS shall not be obligated to
issue more than 860,000 of its Common Stock pursuant to the
Option Agreement without the prior approval of the holders of the
outstanding Common Stock of AMS.
SECTION 2. Taking of Necessary Action; Further Action .
Each of AMS, Acquisition Sub, GHI, LSTI and RMS will take all
such reasonable and lawful action as may be necessary or
appropriate in order to effectuate the Purchase in accordance
with this Agreement as promptly as possible.
SECTION 3. Director Position. DELETED.
SECTION 4. Entire Agreement . This Agreement constitutes
the entire agreement and supersedes all prior agreements and
undertakings, both written and oral, among the parties, or any of
them, with respect to the subject matter hereof.
SECTION 5. Counterparts . This Agreement may be executed
in one or more counterparts, and by the different parties hereto
in separate counterparts, each of which when executed shall be
deemed to be an original but all of which taken together shall
constitute one and the same agreement.
SECTION 6. Disclaimer and Limitation on Liability. Each of
GHI, RMS and LSTI represents and warrants that it owns the
Partnership Interests to be assigned to Acquisition Sub pursuant
to this Agreement free and clear of any liens, claims or
encumbrances. GHI, RMS AND LSTI MAKE NO FURTHER REPRESENTATIONS
OR WARRANTIES, EITHER EXPRESS OR IMPLIED WITH RESPECT TO THE
PARTNERSHIP INTERESTS OR THE ASSETS, LIABILITIES, BUSINESS OR
PROSPECTS OF LST HOLDINGS, LIFE SCIENCES TECHNOLOGIES LIMITED,
LIFE SCIENCES TECHNOLOGIES OF JAPAN, LIFE SCIENCE TECHNOLOGIES OF
CANADA, INC., LST FULFILLMENT LIMITED PARTNERSHIP AND ANY SUCH
REPRESENTATIONS OR WARRANTIES (INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-
INFRINGEMENT) ARE HEREBY OVERRIDDEN, EXCLUDED AND DISCLAIMED.
UNDER NO CIRCUMSTANCES WILL RMS, GHI OR LSTI OR AND OF THEIR
RELATED PARTIES BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT,
SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OR LOST PROFITS, WHETHER
FORESEEABLE OR UNFORESEEABLE, BASED ON CLAIMS OF AMS OR
ACQUISITION SUB ARISING OUT OF A BREACH OF FAILURE OF A WARRANTY,
BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT
LIABILITY OR OTHERWISE. AMS and Acquisition Sub represent and
acknowledge that they have conducted a due diligence review of
the business, operations and financial condition of the LST
Entities and have had opportunity to discuss such with the
management of the LST Entities to the extent AMS and Acquisition
Sub deemed necessary. AMS presently conducts a business similar
in nature to that conducted by the LST Entities and is able to
evaluate and understand the risks associated with the purchase of
the Partnership Interests and is not relying on any
representations or warranties by the LST Entities, GHI, RMS or
LSTI except as set forth herein.
SECTION 7. Governing Law. This Agreement shall be governed
by and construed according to the laws of the State of Oklahoma,
without regard to principles of conflict of laws.
SECTION 8. Confidentiality. Except as otherwise required by
law, the parties agree to maintain the confidentiality of the
terms of this agreement and further agree not to issue any press
release regarding this transaction or the LST Entities without
the prior approval of RMS.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first written above.
"AMS" ADVANTAGE MARKETING SYSTEMS, INC.
By JOHN W. HAIL
John W. Hail, Chief Executive Officer
"Acquisition Sub" LIFE SCIENCE TECHNOLOGIES HOLDINGS, INC.
By JOHN W. HAIL
John W. Hail, Chief Executive Officer
"GHI" GHI HOLDING, INC.
RICHARD W. BAKER
By Richard W. Baker, Secretary and Treasurer
"LSTI" LIFE SCIENCE TECHNOLOGIES, INC.
RICHARD W. BAKER
By Richard W. Baker, Secretary and Treasurer
"RMS" RMS LIMITED PARTNERSHIP
By RICHARD W. BAKER
Richard W. Baker, General Partner
