SHARE EXCHANGE AGREEMENT
BY AND BETWEEN
MEDICAL STAFFING SOLUTIONS, INC.
AND
TELESCIENCE INTERNATIONAL, INC.
Dated as of SEPTEMBER 25, 2003
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SHARE EXCHANGE AGREEMENT
THIS SHARE EXCHANGE AGREEMENT, dated as of September 25, 20032, by
and between Medical Staffing Solutions, Inc. a Nevada corporation
("MSSI"), and TELESCIENCE INTERNATIONAL, INC., a Virginia corporation
("TELESCIENCE" or the "Company") (collectively, the "Parties").
WHEREAS, MSSI is a corporation organized under the laws of the State
of Nevada and has a class of securities registered with the Securities and
Exchange Commission ("SEC") pursuant to Section 12(g) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act");
WHEREAS, TELESCIENCE is a corporation organized under the laws of the
State of Virginia and is a privately owned and operated company.
WHEREAS, the respective board of directors of MSSI and TELESCIENCE
have approved the exchange of shares of TELESCIENCE Common Stock for
shares of MSSI Common Stock pursuant to the terms of this Agreement (the
"Share Exchange"), such that immediately following the Share Exchange, the
TELESCIENCE Shareholder shall hold approximately 80% of MSSI and
TELESCIENCE shall be a wholly owned subsidiary of MSSI;
WHEREAS, the Share Exchange is intended to qualify as a tax free
reorganization under the Internal Revenue Code of 1986, as amended (the
"Code"), but no opinion of counsel or Internal Revenue Service
determination shall be obtained for treatment and shall not be a condition
to Closing;
NOW, THEREFORE, in consideration of the mutual terms, conditions and
other agreements set forth herein, the parties hereto hereby agree as
follows:
ARTICLE I
EXCHANGE OF SHARES FOR COMMON STOCK
SECTION 1.1. AGREEMENT TO EXCHANGE SHARES FOR COMMON STOCK. On the
Closing Date (as hereinafter defined) and upon the terms and subject to
the conditions set forth in this Agreement, the TELESCIENCE Shareholders
shall sell, assign, transfer, convey and deliver the Shares (representing
4,000,000 shares or 100% of its common stock of TELESCIENCE) to MSSI, and
MSSI shall accept the Shares from TELESCIENCE in exchange for 2,200,000
pre-dividend, 33,000,000 post-dividend newly issued shares of MSSI Common
Stock, which represents approximately 80% of the issued and outstanding
shares of the Company on a post merger basis.
SECTION 1.2. [INTENTIONALLY OMITTED].
SECTION 1.3. CLOSING. The closing of such exchange (the "Closing")
shall take place at 11:00 a.m. Eastern Time on the first business day
after the conditions to closing set forth in Articles VI and VII have been
satisfied or waived, or at such other time and date as the parties hereto
shall agree in writing (the "Closing Date"), at the principal offices of
the Company. At the Closing, the TELESCIENCE Shareholder shall deliver to
MSSI the stock certificate(s) representing the Shares, duly endorsed in
blank for transfer or accompanied by appropriate stock powers duly
executed in blank. In full consideration and exchange for the Shares (the
"Exchange Shares"), MSSI shall exchange with the TELESCIENCE Shareholder
2,200,000 pre-dividend shares of the MSSI Common Stock, par value $.001
per share (the "Common Stock"), of MSSI.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF TELESCIENCE
TELESCIENCE hereby represents, warrants and agrees as follows:
SECTION 2.1. CORPORATE ORGANIZATION.
(a) TELESCIENCE is a corporation duly organized, validly
existing and in good standing under the laws of the State of Virginia, and
has all requisite corporate power and authority to own its properties and
assets and to conduct its business as now conducted and is duly qualified
to do business in good standing in each jurisdiction in where the nature
of the business conducted or the ownership or leasing of its properties
makes such qualification and being in good standing necessary, except
where the failure to be so qualified and in good standing will not have a
material adverse effect on the business, operations, properties, assets,
condition or results of operation of TELESCIENCE ( "TELESCIENCE Material
Adverse Effect");
(b) Copies of the Articles of Incorporation and By-laws of
TELESCIENCE, with all amendments thereto to the date hereof, have been
furnished to MSSI, and such copies are accurate and complete as of the
date hereof. The minute books of TELESCIENCE are current as required by
law, contain the minutes of all meetings of the Board of Directors from
date of incorporation to this date, and adequately reflect all material
actions taken by the Board of Directors of TELESCIENCE.
SECTION 2.2. CAPITALIZATION OF TELESCIENCE. The authorized capital
stock of TELESCIENCE consists of 10,000,000 shares of common stock $.01
par value per share, of which 4,000,000 shares are outstanding. All of the
shares of capital stock have been duly authorized and validly issued, and
are fully paid and nonassessable and no personal liability attaches to the
ownership thereof. The Shares are the sole outstanding shares of capital
stock of TELESCIENCE , and there are no outstanding options, warrants,
agreements, commitments, conversion rights, preemptive rights or other
rights to subscribe for, purchase or otherwise acquire any of the shares
of capital stock or any unissued or treasury shares of capital stock of
TELESCIENCE.
SECTION 2.3. SUBSIDIARIES AND EQUITY INVESTMENTS. TELESCIENCE has no
subsidiaries or equity interest in any corporation, partnership or joint
venture with the exception of those listed on Schedule 2.3 of this
agreement.
SECTION 2.4. AUTHORIZATION AND VALIDITY OF AGREEMENTS. TELESCIENCE
has all corporate power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement by TELESCIENCE and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary corporate
action and no other corporate proceedings on the part of TELESCIENCE are
necessary to authorize this Agreement or to consummate the transactions
contemplated hereby.
SECTION 2.5. NO CONFLICT OR VIOLATION. The execution, delivery and
performance of this Agreement by TELESCIENCE does not and will not violate
or conflict with any provision of the Articles of Incorporation or By-laws
of TELESCIENCE, and does not and will not violate any provision of law, or
any order, judgment or decree of any court or other governmental or
regulatory authority, nor violate nor will result in a breach of or
constitute (with due notice or lapse of time or both) a default under or
give to any other entity any right of termination, amendment, acceleration
or cancellation of any contract, lease, loan agreement, mortgage, security
agreement, trust indenture or other agreement or instrument to which
TELESCIENCE is a party or by which any of them is bound or to which any of
its or their respective properties or assets is subject, nor will result
in the creation or imposition of any lien, charge or encumbrance of any
kind whatsoever upon any of the properties or assets of TELESCIENCE, nor
will result in the cancellation, modification, revocation or suspension of
any of the licenses, franchises, permits to which TELESCIENCE is bound.
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SECTION 2.6. CONSENTS AND APPROVALS. Schedule 2.6 sets forth a true
and complete list of each consent, waiver, authorization or approval of
any governmental or regulatory authority, domestic or foreign, or of any
other person, firm or corporation, and each declaration to or filing or
registration with any such governmental or regulatory authority, that is
required in connection with the execution and delivery of this Agreement
by TELESCIENCE or the performance by TELESCIENCE of its or their
obligations hereunder.
SECTION 2.7. FINANCIAL STATEMENTS. TELESCIENCE was incorporated in
the State of Virginia and commenced operations on October 9, 1987. As a
condition precedent to Closing TELESCIENCE must furnish to MSSI financial
statements for the period ended December 31, 2002 (the financial
statements being hereinafter referred to as the "Financial Statements").
Following Closing and within the prescribed period required by the SEC
TELESCIENCE must deliver audited Financial Statement prepared by a
qualified Accounting firm (preferably ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Company LLC, TII's
current auditors). The Financial Statements, including the notes thereto,
(i) were prepared in accordance with generally accepted accounting
principles, (ii) present fairly, in all material aspects, the financial
position, results of operations and changes in financial position of
TELESCIENCE, as consolidated, as of such date and for the periods then
ended, (iii) are complete, correct and in accordance with the books of
account and records of TELESCIENCE, (iv) can be reconciled with the
financial statements and the financial records maintained and the
accounting methods applied by TELESCIENCE for federal income tax purposes,
(v) and contain all entries recommended by TELESCIENCE's Accountants.
SECTION 2.8. ABSENCE OF CERTAIN CHANGES OR EVENTS.
Since January 1, 2003 and except as set forth on Schedule 2.8:
(a) TELESCIENCE has operated in the ordinary course of business
consistent with past practice and there has not been any material adverse
change in the assets, properties, business, operations, prospects, net
income or conditions financial or otherwise of TELESCIENCE. TELESCIENCE
does not know or has reason to know of any event, condition, circumstance
or prospective development which threatens or may threaten to have a
material adverse effect on the assets, properties, operations, prospects,
net income or financial condition of TELESCIENCE;
(b) there has not been any substantive change in any method of
accounting or accounting practice of TELESCIENCE;
(c) there has not been any declarations, setting aside or
payment of dividends or distributions with respect to shares of
TELESCIENCE or any redemption, purchase or other acquisition of any other
TELESCIENCE's securities; and
(d) a material increase in the compensation payable or to
become payable to any director or officer of TELESCIENCE.
SECTION 2.9. [INTENTIONALLY OMITTED]
SECTION 2.10. ABSENCE OF UNDISCLOSED LIABILITIES. Except as set forth
on Schedule 2.10 TELESCIENCE has no indebtedness or liability, absolute or
contingent, known or unknown, which is not shown or provided for on the
balance sheet of TELESCIENCE as of that date included in the Financial
Statements other than liabilities incurred or accrued in the ordinary
course of business. Except as shown in such balance sheets or in the notes
to the Financial Statements, TELESCIENCE is not directly or indirectly
liable upon or with respect to (by discount, repurchase agreements or
otherwise), or obligated in any other way to provide funds in respect of,
or to guarantee or assume, any debt, obligation or dividend of any person.
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SECTION 2.11. INTERESTS IN REAL PROPERTY. Except as set forth on
Schedule 2.11, TELESCIENCE does not own any item of or interest in real
property.
SECTION 2.12. PERSONAL PROPERTY. TELESCIENCE owns all personal
property ("Personal Property") purported to be owned by it as of the date
hereof, in each case free and clear of all Liens, except for those Liens
described in Schedule 2.12. All of the Personal Property owned or leased
by, and commonly used or necessary for or in the operations of
TELESCIENCE: (i) is in such operating condition repair as may be necessary
to carry on the business of TELESCIENCE as it is now being conducted,
subject only to ordinary wear and tear; and (ii) is sufficient, in the
aggregate, for all purposes of the business of TELESCIENCE.
SECTION 2.13. LICENSES, PERMITS AND GOVERNMENTAL APPROVALS. Schedule
2.13 sets forth a true and complete list of all licenses, permits,
franchises, authorizations and approvals issued or granted to TELESCIENCE
by any federal, state or local government, or any department, agency,
board, commission, bureau or instrumentality of any of the foregoing (the
"Licenses and Permits"), and all pending applications therefor. Each
License and Permit is valid and in full force and effect, and, to
TELESCIENCE's best knowledge, is not subject to any pending or threatened
administrative or judicial proceeding to revoke, cancel, suspend or
declare such License and Permit invalid in any respect. The Licenses and
Permits are sufficient and adequate in all material respects to permit the
continued lawful conduct of TELESCIENCE's business in the manner now
conducted and as has been proposed by TELESCIENCE to be conducted. Except
as set forth in Schedule 2.13, no such License and Permit will in any way
be affected by, or terminate or lapse by reason of the transactions
contemplated by this Agreement.
SECTION 2.14. COMPLIANCE WITH LAW. The operations of TELESCIENCE have
been conducted in accordance with all applicable laws, regulations, orders
and other requirements of all courts and other governmental or regulatory
authorities having jurisdiction over TELESCIENCE and its assets,
properties and operations, including, without limitation, all such laws,
regulations, orders and requirements promulgated by or relating to
consumer protection, equal opportunity, health, environmental protection,
architectural barriers to the handicapped, fire, zoning and building and
occupation safety except where such non-compliance would not have a
TELESCIENCE Material Adverse Effect. TELESCIENCE has not received notice
of any violation of any such law, regulation, order or other legal
requirement, and is not in default with respect to any order, writ,
judgment, award, injunction or decree of any national, state or local
court or governmental or regulatory authority or arbitrator, domestic or
foreign, applicable to TELESCIENCE or any of its assets, properties or
operations.
SECTION 2.15. LITIGATION. Except as set forth on Schedule 2.15, there
are no claims, actions, suits, proceedings, labor disputes or
investigations pending or, to the best of the TELESCIENCE's knowledge,
threatened before any federal, state or local court or governmental or
regulatory authority, domestic or foreign, or before any arbitrator of any
nature, brought by or against TELESCIENCE or any of its officers,
directors, employees, agents or affiliates involving, affecting or
relating to any assets, properties or operations of TELESCIENCE or the
transactions contemplated by this Agreement, nor is any basis known to it
for any such action, suit, proceeding or investigation. Schedule 2.15 sets
forth a list and a summary description of all such pending actions, suits,
proceedings, disputes or investigations. Neither TELESCIENCE nor any of
its assets or properties is subject to any order, writ, judgment, award,
injunction or decree of any country, judicial, state or local court or
governmental or regulatory authority or arbitrator, that would have a
TELESCIENCE Material Adverse Effect on its assets, properties, operations,
prospects, net income or financial condition or which would or might
interfere with the transactions contemplated by this Agreement.
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SECTION 2.16. CONTRACTS. Schedule 2.16 sets forth a true and complete
list of all material contracts, agreements and other instruments to which
TELESCIENCE is a party or otherwise relating to or affecting any of its
assets, properties or operations, including, without limitation, all
written or oral, express or implied, material, (a) contracts, agreements
and commitments not made in the ordinary course of business; (b) purchase
and supply contracts; (c) contracts, loan agreements, repurchase
agreements, mortgages, security agreements, trust indentures, promissory
notes and other documents or arrangements relating to the borrowing of
money or for lines of credit; (d) leases and subleases of real or personal
property; (e) agreements and other arrangements for the sale of any assets
other than in the ordinary course of business or for the grant of any
options or preferential rights to purchase any assets, property or rights;
(f) contracts or commitments limiting or restraining TELESCIENCE from
engaging or competing in any lines of business or with any person, firm,
or corporation; (h) partnership and joint venture agreements; and (i) all
amendments, modifications, extensions or renewals of any of the foregoing
(the foregoing contracts, agreements and documents are hereinafter
referred to collectively as the "Commitments" and individually as a
"Commitment"). Each Commitment is valid, binding and enforceable against
the parties thereto in accordance with its terms, and in full force and
effect on the date hereof. TELESCIENCE has performed all obligations
required to be performed by it to date under, and is not in default in
respect of, any Commitment, and to TELESCIENCE's best knowledge no event
has occurred which, with due notice or lapse of time or both, would
constitute such a default. To the best of TELESCIENCE's knowledge, no
other party to any Commitment is in default in respect thereof, and no
event has occurred which, with due notice or lapse of time or both, would
constitute such a default.
SECTION 2.17. EMPLOYEE PLANS. Schedule 2.17 lists every pension,
savings, retirement, severance health, insurance or other employee benefit
plan (collectively referred to herein as the "Plans") which TELESCIENCE
maintains, or has any obligation to contribute to and TELESCIENCE is in
compliance with such plans.
SECTION 2.18. INSURANCE. Schedule 2.18 lists the insurance and the
aggregate coverage amount and type and generally applicable deductibles of
all policies of title, liability, fire, casualty, business interruption,
workers' compensation, disability and other forms of insurance insuring
the properties, assets and operations of the business of TELESCIENCE.
Except as set forth in Schedule 2.18, all such policies and bonds are in
full force and effect, underwritten by financially sound and reputable
insurers (to TELESCIENCE's best knowledge) and sufficient for all
applicable requirements of law and will not in any way be effected by or
terminated or lapsed by reason of the consummation of the transactions
contemplated by this Agreement. TELESCIENCE is not in material default
under any provisions of any such policy of insurance and has not received
notice of cancellation of any such insurance. Except as set forth in
Schedule 2.18, there is no claim by TELESCIENCE pending under any of such
policies or bonds as to which coverage has been questioned, denied or
disputed by the underwriters of such policies or bonds.
SECTION 2.19. ENVIRONMENTAL MATTERS. TELESCIENCE has obtained and
maintained in effect all licenses, permits and other authorizations
required under all applicable laws, regulations and other requirements of
governmental or regulatory authorities relating to pollution or to the
protection of the environment ("Environmental Laws") and is in compliance
with all Environmental Laws and with all such licenses, permits and
authorizations except where the failure to comply would not have a
TELESCIENCE Material Adverse Effect. TELESCIENCE has not performed or
suffered any act which could give rise to, or has otherwise incurred
liability to any person (governmental or not) under any Environmental
Laws, nor has TELESCIENCE received notice of any such liability or any
claim therefor.
SECTION 2.20. LABOR MATTERS.
(a) Except as set forth in Schedule 2.20: (i) TELESCIENCE is
not a party to any outstanding employment agreements or contracts with
officers or employees that are not terminable at will, or that provide for
the payment of any bonus or commission; (ii) TELESCIENCE is not a party to
any agreement, policy or practice that requires it to pay termination or
severance pay to salaried, non-exempt or hourly employees (other than as
required by law); (iii) TELESCIENCE is not a party to any collective
bargaining agreement or other labor union contract applicable to persons
employed by TELESCIENCE nor does TELESCIENCE know of any activities or
proceedings of any labor union to organize any such employees.
TELESCIENCE has not breached or otherwise failed to comply with any
provisions of any employment or labor agreement, and there are no
grievances outstanding thereunder.
(b) Except as set forth in Schedule 2.20: (i) TELESCIENCE is in
compliance in all material respects with all applicable laws relating to
employment and employment practices, wages, hours, and terms and
conditions of employment; (ii) there is no unfair labor practice charge or
complaint pending; (iii) there is no labor strike, material slowdown or
material work stoppage or lockout actually pending or, to TELESCIENCE's
best knowledge, threatened against or affecting TELESCIENCE, and
TELESCIENCE has not experienced any strike, material slow down or material
work stoppage, lockout or other collective labor action by or written
respect to employees of TELESCIENCE; (iv) there are no charges with
respect to or relating to TELESCIENCE pending before the Equal Employment
Opportunity Commission or any state, local or foreign agency responsible
for the prevention of unlawful employment practices; (v) TELESCIENCE has
received no formal notice from any federal, state, local or foreign agency
responsible for the enforcement of labor or employment laws of an
intention to conduct an investigation of TELESCIENCE and no such
investigation is in progress.
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SECTION 2.21. BOOKS AND RECORDS. The minute books of TELESCIENCE all
the contents of which have been previously made available to MSSI and its
representatives, contain accurate records of all meetings of, and
corporate action taken by (including action taken by written consent), the
shareholders and Board of Directors of TELESCIENCE. TELESCIENCE does not
have any of its respective records, systems, controls, data or information
recorded, stored, maintained, operated or otherwise wholly or partly
dependent upon or held by any means (including any electronic, mechanical
or photographic process, whether computerized or not) which (including all
means of access thereto and therefrom) are not under the exclusive
ownership and direct control of TELESCIENCE.
SECTION 2.22. SURVIVAL. Each of the representations and warranties
set forth in this Article II shall be deemed represented and made by
TELESCIENCE at the Closing as if made at such time and shall survive the
Closing for a period terminating on the first anniversary of the Closing.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF MSSI
MSSI represents, warrants and agrees as follows:
SECTION 3.1. CORPORATE ORGANIZATION.
(a) MSSI is a corporation duly organized, validly existing and
in good standing under the laws of the State of Nevada, and has all
requisite corporate power and authority to own its properties and assets
and to conduct its business as now conducted and is duly qualified to do
business in good standing in each jurisdiction in where the nature of the
business conducted by MSSI or the ownership or leasing of its properties
makes such qualification and being in good standing necessary, except
where the failure to be so qualified and in good standing will not have a
material adverse effect on the business, operations, properties, assets,
condition or results of operation of MSSI (a "MSSI Material Adverse
Effect").
(b) Copies of the Articles of Incorporation and By-laws of
MSSI, with all amendments thereto to the date hereof, have been furnished
to TELESCIENCE, and such copies are accurate and complete as of the date
hereof. The minute books of MSSI are current as required by law, contain
the minutes of all meetings of the Board of Directors, committees of the
Board of Directors from the date of incorporation to this date, and
adequately reflect all material actions taken by the Board of Directors
and committees of the Board of Directors of MSSI.
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SECTION 3.2. CAPITALIZATION OF MSSI; TITLE TO THE SHARES. The
authorized capital stock of MSSI consists of (a) 50,000,000 of common
stock, par value $.001 per share, of which 10,500,000 shares are
outstanding and 5 million shares of preferred stock of which none is
outstanding (the "MSSI Shares"). All of the outstanding shares of capital
stock have been duly authorized and validly issued, and are fully paid and
nonassessable and free of preemptive or similar rights and no personal
liability attaches to the ownership thereof. As of the date of Closing,
the Board of Directors and a majority of the shareholders of MSSI will
duly authorize a resolution so as to approve: (i) a 15 for one forward
split of MSSI's outstanding common stock (or equivalent stock dividend)
and an increase in its authorized shares of Common Stock to 200,000,000
shares; (ii) the creation of a class of authorized shares of Preferred
Stock in the amount of 20,000,000 shares; (iii) change in the name of the
Company; (iv) upon the issuance of 30,000,000 shares to the shareholder of
TELESCIENCE, the cancellation of all but 7,500,000 post-split "free
trading" shares of . Said amendment to the Articles of Incorporation will
be duly and properly filed as soon after the Closing as is feasibly
possible. Except as set forth on Schedule 3.2, the MSSI Shares are the
sole outstanding shares of capital stock of MSSI, and there are no
outstanding options, warrants, agreements, commitments, conversion rights,
preemptive rights or other rights to subscribe for, purchase or otherwise
acquire any of the shares of capital stock or any unissued or treasury
shares of capital stock of MSSI.
SECTION 3.3. SUBSIDIARIES. MSSI has no subsididaries other than
those listed on Schedule 3.3.
SECTION 3.4. AUTHORIZATION AND VALIDITY OF AGREEMENTS. MSSI has all
corporate power and authority to execute and deliver this Agreement, to
execute all attendant documents and instruments necessary to consummate
the transaction herein contemplated, and to exchange the MSSI Shares with
the TELESCIENCE Shareholders, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. All of MSSI's Common
Stock to be issued and sold to each TELESCIENCE Shareholders pursuant to
this Agreement, when issued and delivered as provided herein shall be duly
authorized, validly issued and non-assessable and free of preemptive or
similar rights. The execution and delivery of this Agreement by MSSI and
the consummation of the transactions contemplated hereby have been duly
authorized by all necessary corporate action and no other corporate
proceedings on the part of MSSI are necessary to authorize this Agreement
or to consummate the transactions contemplated hereby.
SECTION 3.5. NO CONFLICT OR VIOLATION. Except as otherwise set forth
on Schedule 3.4, the execution, delivery and performance of this Agreement
by MSSI does not and will not violate or conflict with any provision of
the Articles of Incorporation or By-laws of MSSI, and does not and will
not violate any provision of law, or any order, judgment or decree of any
court or other governmental or regulatory authority, nor violate nor will
result in a breach of or constitute (with due notice or lapse of time or
both) a default under or give to any other entity any right of
termination, amendment, acceleration or cancellation of any contract,
lease, loan agreement, mortgage, security agreement, trust indenture or
other agreement or instrument to which MSSI is a party or by which it is
bound or to which any of its respective properties or assets is subject,
nor will result in the creation or imposition of any lien, charge or
encumbrance of any kind whatsoever upon any of the properties or assets of
MSSI, nor will result in the cancellation, modification, revocation or
suspension of any of the licenses, franchises, permits to which MSSI is
bound.
SECTION 3.6. CONSENTS AND APPROVALS. Schedule 3.5 sets forth a true
and complete list of each consent, waiver, authorization or approval of
any governmental or regulatory authority, domestic or foreign, or of any
other person, firm or corporation, and each declaration to or filing or
registration with any such governmental or regulatory authority, that is
required in connection with the execution and delivery of this Agreement
by MSSI or the performance by MSSI of its obligations hereunder.
SECTION 3.7. FINANCIAL STATEMENTS. MSSI has heretofore furnished to
TELESCIENCE (a) audited financial statements as of and for the year ended
on December 31, 2002, accompanied by the reports thereon of MSSI's
Accountants, (the "Financial Statements"). The Financial Statements,
including the notes thereto, (i) were prepared in accordance with
generally accepted accounting principles, (ii) present fairly, in all
material respects, the financial position, results of operations and
changes in financial position of MSSI as of such dates and for the periods
then ended, (iii) are complete, correct and in accordance with the books
of account and records of MSSI, (iv) can be reconciled with the financial
statements and the financial records maintained and the accounting methods
applied by MSSI for federal income tax purposes, and (v) contain all
entries recommended by MSSI's Accountants.
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SECTION 3.8. ABSENCE OF CERTAIN CHANGES OR EVENTS. Since January 1,
2003, and except (i) as contemplated by this Agreement (ii) set forth in
the reports filed by MSSI (the "MSSI Public Reports") with the SEC or
(iii) as set forth on Schedule 3.7:
(a) MSSI has operated in the ordinary course of business
consistent with past practice and there has not been any material adverse
change in the assets, properties, business, operations, prospects, net
income or conditions financial or otherwise of MSSI. MSSI does not know or
has reason to know of any event, condition, circumstance or prospective
development which threatens or may threaten to have a material adverse
effect on the assets, properties, operations, prospects, net income or
financial condition of MSSI;
(b) there has not been any substantive change in any method of
accounting or accounting practice of MSSI;
(c) there have not been any declarations, setting aside or
payment of dividends or distributions with respect to shares of MSSI or
any redemption, purchase or other acquisition of any other MSSI's
securities; and
(d) an increase in the compensation payable or to become
payable to any director or officer of MSSI other than pursuant to
employment agreements or consistent with prior past practices.
SECTION 3.9. [INTENTIONALLY OMITTED]
SECTION 3.10. ABSENCE OF UNDISCLOSED LIABILITIES. Except as set forth
on Schedule 3.9, MSSI has no indebtedness or liability, absolute or
contingent, known or unknown, which is not shown or provided for on the
balance sheet of MSSI as of December 31, 2002, other than liabilities
incurred or accrued in the ordinary course of business. Except as shown in
such balance sheet or in the notes to the Financial Statements or as
disclosed in a MSSI Public Report, MSSI is not directly or indirectly
liable upon or with respect to (by discount, repurchase agreements or
otherwise), or obligated in any other way to provide funds in respect of,
or to guarantee or assume, any debt, obligation or dividend of any person,
except endorsements in the ordinary course of business in connection with
the deposit of items for collection.
SECTION 3.11. INTERESTS IN REAL PROPERTY. MSSI does not own or lease
any real property.
SECTION 3.12. PERSONAL PROPERTY. MSSI owns all personal property
(including properties that may be deemed to be a mix of personal property
and Real Property, ("Personal Property")) purported to be owned by it as
of the date hereof, in each case free and clear of all Liens, except for
those Liens described in Schedule 3.12. All of the Personal Property owned
or leased by, and commonly used or necessary for or in the operations of,
any of, MSSI: (i) is, in the aggregate, in such operating condition repair
as may be necessary to carry on the business of MSSI as it is now being
conducted, subject only to ordinary wear and tear; and (ii) is sufficient,
in the aggregate, for all purposes of the business of MSSI.
SECTION 3.13. LICENSES, PERMITS AND GOVERNMENTAL APPROVALS. There
are no licenses, permits, franchises, authorizations and approvals issued
or granted to MSSI by any federal, state or local government, or any
department, agency, board, commission, bureau or instrumentality of any of
the foregoing (the "Licenses and Permits"), or any pending applications
therefor.
SECTION 3.14 COMPLIANCE WITH LAW. The operations of MSSI have been
conducted in accordance with all applicable laws, regulations, orders and
other requirements of all courts and other governmental or regulatory
authorities having jurisdiction over MSSI and its assets, properties and
operations, including, without limitation, all such laws, regulations,
orders and requirements promulgated by or relating to consumer protection,
equal opportunity, health, environmental protection, architectural
barriers to the handicapped, fire, zoning and building and occupation
safety except where such non-compliance would not have a MSSI Material
Adverse Effect. MSSI has not received notice of any violation of any such
law, regulation, order or other legal requirement, and is not in default
with respect to any order, writ, judgment, award, injunction or decree of
any national, state or local court or governmental or regulatory authority
or arbitrator, domestic or foreign, applicable to MSSI or any of its
assets, properties or operations.
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SECTION 3.15. LITIGATION. Except as disclosed in a MSSI Public
Report, there are no claims, actions, suits, proceedings, labor disputes
or investigations pending or, to the best of the MSSI's knowledge,
threatened before any federal, state or local court or governmental or
regulatory authority, domestic or foreign, or before any arbitrator of any
nature, brought by or against MSSI or any of its officers, directors,
employees, agents or affiliates involving, affecting or relating to any
assets, properties or operations of MSSI or the transactions contemplated
by this Agreement, nor is any basis known to MSSI for any such action,
suit, proceeding or investigation. Schedule 3.15 sets forth a list and a
summary description of all such pending actions, suits, proceedings,
disputes or investigations. Neither MSSI nor any of its assets or
properties is subject to any order, writ, judgment, award, injunction or
decree of any federal, state or local court or governmental or regulatory
authority or arbitrator, that would have a MSSI Material Adverse Effect on
its assets, properties, operations, prospects, net income or financial
condition or which would or might interfere with the transactions
contemplated by this Agreement.
SECTION 3.16. CONTRACTS. Schedule 3.16 sets forth a true and complete
list of all material contracts, agreements and other instruments to which
MSSI is a party or otherwise relating to or affecting any of its assets,
properties or operations, including, without limitation, all written or
oral, express or implied, material, (a) contracts, agreements and
commitments not made in the ordinary course of business; (b) purchase and
supply contracts; (c) contracts, loan agreements, repurchase agreements,
mortgages, security agreements, trust indentures, promissory notes and
other documents or arrangements relating to the borrowing of money or for
lines of credit; (d) leases and subleases of real or personal property;
(e) agreements and other arrangements for the sale of any assets other
than in the ordinary course of business or for the grant of any options or
preferential rights to purchase any assets, property or rights; (f)
contracts or commitments limiting or restraining MSSI from engaging or
competing in any lines of business or with any person, firm, or
corporation; (h) partnership and joint venture agreements; and (i) all
amendments, modifications, extensions or renewals of any of the foregoing
(the foregoing contracts, agreements and documents are hereinafter
referred to collectively as the "Commitments" and individually as a
"Commitment"). Except as disclosed in a MSSI Public Report, each
Commitment is valid, binding and enforceable against the parties thereto
in accordance with its terms, and in full force and effect on the date
hereof except as disclosed in a MSSI Public Report. MSSI has performed all
obligations required to be performed by it to date under, and is not in
default in respect of, any Commitment, and to MSSI's best knowledge no
event has occurred which, with due notice or lapse of time or both, would
constitute such a default except as disclosed in a MSSI Public Report. To
the best of MSSI's knowledge, no other party to any Commitment is in
default in respect thereof, and no event has occurred which, with due
notice or lapse of time or both, would constitute such a default.
SECTION 3.17. EMPLOYEE PLANS. MSSI has complied in all material
respects with the requirements of Section 4980B of the Code and Sections
601 to 608 of ERISA relating to continuation coverage for group health
plans. MSSI has no employee welfare benefit plan (an "Employee Welfare
Plan"), as defined in Section 3(1) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), and no employee pension
benefit plan as defined in Section 3(2) of ERISA (an "Employee Pension
Plan"). Additionally, there are no pension, savings, retirement,
severance health, insurance or other employee benefit plan (collectively
referred to herein as the "Plans") which MSSI maintains, or has any
obligation to contribute to.
SECTION 3.18. INSURANCE. Schedule 3.18 lists the insurance and the
aggregate coverage amount and type and generally applicable deductibles of
all policies of title, liability, fire, casualty, business interruption,
workers' compensation, disability and other forms of insurance insuring
the properties, assets and operations of the business of MSSI. Except as
set forth in Schedule 3.18, all such policies and bonds are in full force
and effect, underwritten by financially sound and reputable insurers (to
MSSI's best knowledge) and sufficient for all applicable requirements of
law and will not in any way be effected by or terminated or lapsed by
reason of the consummation of the transactions contemplated by this
Agreement. MSSI is not in material default under any provisions of any
such policy of insurance and has not received notice of cancellation of
any such insurance. Except as set forth in Schedule 3.18, there is no
claim by MSSI pending under any of such policies or bonds as to which
coverage has been questioned, denied or disputed by the underwriters of
such policies or bonds.
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SECTION 3.19. ENVIRONMENTAL MATTERS. MSSI has obtained and maintained
in effect all licenses, permits and other authorizations required under
all applicable laws, regulations and other requirements of governmental or
regulatory authorities relating to pollution or to the protection of the
environment ("Environmental Laws") and is in compliance with all
Environmental Laws and with all such licenses, permits and authorizations
except where the failure to comply would not have a MSSI Material Adverse
Effect. MSSI has not performed or suffered any act which could give rise
to, or has otherwise incurred liability to any person (governmental or
not) under the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. S 9601 et seq. or any other Environmental Laws,
nor has Company received notice of any such liability or any claim
therefor or submitted notice pursuant to Section 103 of such Act to any
governmental agency with respect to any of its respective assets.
SECTION 3.20. LABOR MATTERS.
(a) Except as set forth in Schedule 3.20: (i) MSSI is not a
party to any outstanding employment agreements or contracts with officers
or employees that are not terminable at will, or that provide for the
payment of any bonus or commission; (ii) MSSI is not a party to any
agreement, policy or practice that requires it to pay termination or
severance pay to salaried, non-exempt or hourly employees (other than as
required by law); (iii) MSSI is not a party to any collective bargaining
agreement or other labor union contract applicable to persons employed by
MSSI nor does MSSI know of any activities or proceedings of any labor
union to organize any such employees. MSSI has not breached or otherwise
failed to comply with any provisions of any employment or labor agreement,
and there are no grievances outstanding thereunder.
(b) Except as set forth in Schedule 3.20; (i) MSSI is in compliance
in all material respects with all applicable laws relating to employment
and employment practices, wages, hours, and terms and conditions of
employment; (ii) there is no unfair labor practice charge or complaint
pending before the National Labor Relations Board ("NLRB"); (iii) there is
no labor strike, material slowdown or material work stoppage or lockout
actually pending or, to MSSI's best knowledge, threatened against or
affecting MSSI, and MSSI has not experienced any strike, material slow
down or material work stoppage, lockout or other collective labor action
by or written respect to employees of MSSI; (iv) there is no
representation claim or petition pending before the NLRB and no question
concerning representation exists relating to the employees of MSSI; (v)
there are no charges with respect to or relating to MSSI pending before
the Equal Employment Opportunity Commission or any state, local or foreign
agency responsible for the prevention of unlawful employment practices;
(vi) MSSI has received no formal Notice from any federal, state, local or
foreign agency responsible for the enforcement of labor or employment laws
of an intention to conduct an investigation of MSSI and no such
investigation is in progress.
SECTION 3.21. SEC FILINGS. MSSI has heretofore delivered to the
TELESCIENCE copies of MSSI's Annual Report for the year ended December 31,
2002. As of such date, such report compiled in all material respects with
all applicable requirements of the Exchange Act, and did not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading. MSSI has filed, timely, all periodic and other reports,
schedules, forms exhibits, statements and other documents required to be
filed by it with the SEC under the Exchange Act. MSSI is in compliance, to
the extent applicable, with all reporting obligations under either Section
12(b), 12(g) or 15(d) of the 1934 Act. The Company has registered its
Common Stock pursuant to Section 12 of the 1934 Act and the Common Stock
is listed and trades on the Over-The-Counter Bulletin Board. There is no
fact known to the Company (other than general economic conditions known to
the public generally) that has not been publicly disclosed by MSSI that
(i) could reasonably be expected to have a material adverse effect on the
condition (financial or otherwise) or on earnings, business affairs,
properties or assets of the Company, or (ii) could reasonably be expected
to materially and adversely affect the ability of the Company to perform
its obligations pursuant to this Agreement.
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SECTION 3.23. BOOKS AND RECORDS. The minute books of MSSI, all the
contents of which have been previously made available to TELESCIENCE and
its representatives, contain accurate records of all meetings of, and
corporate action taken by (including action taken by written consent), the
shareholders and Board of Directors of MSSI. MSSI does not have any of
its respective records, systems, controls, data or information recorded,
stored, maintained, operated or otherwise wholly or partly dependent upon
or held by any means (including any electronic, mechanical or photographic
process, whether computerized or not) which (including all means of access
thereto and therefrom) are not under the exclusive ownership and direct
control of MSSI.
SECTION 3.24. SURVIVAL. Each of the representations and warranties
set forth in this Article IV shall be deemed represented and made by MSSI
at the Closing as if made at such time and shall survive the Closing for a
period terminating on the fourth anniversary.
ARTICLE IV
COVENANTS
SECTION 4.1. CERTAIN CHANGES AND CONDUCT OF BUSINESS.
(a) From and after the date of this Agreement and until the
Closing Date, MSSI shall conduct, its business solely in the ordinary
course consistent with past practices and, in a manner consistent with all
representations or warranties of MSSI, and without the prior written
consent of TELESCIENCE, MSSI will not, except as required or permitted
pursuant to the terms hereof:
(i) make any material change in the conduct of
its businesses and operations enter into any transaction other than in the
ordinary course of business consistent with past practices;
(ii) make any change in its Articles of
Incorporation or By-laws; issue any additional shares of capital stock or
equity securities or grant any option, warrant or right to acquire any
capital stock or equity securities or issue any security convertible into
or exchangeable for its capital stock or alter in any material term of any
of its outstanding securities or make any change in its outstanding shares
of capital stock or its capitalization, whether by reason of a
reclassification, recapitalization, stock split or combination, exchange
or readjustment of shares, stock dividend or otherwise;
(iii) (A) incur, assume or guarantee any
indebtedness for borrowed money, issue any notes, bonds, debentures or
other corporate securities or grant any option, warrant or right to
purchase any thereof, except pursuant to transactions in the ordinary
course of business consistent with past practices, or (B) issue any
securities convertible or exchangeable for debt securities of MSSI;
(iv) make any sale, assignment, transfer,
abandonment or other conveyance of any of its assets or any part thereof;
(v) subject any of its assets, or any part
thereof, to any Lien or suffer such to be imposed other than such Liens as
may arise in the ordinary course of business consistent with past
practices by operation of law which will not have a material adverse
effect on MSSI;
(vi) acquire any assets, raw materials or
properties, or enter into any other transaction, other than in the
ordinary course of business consistent with past practices;
(vii) enter into any new (or amend any
existing) employee benefit plan, program or arrangement or any new (or
amend any existing) employment, severance or consulting agreement, grant
any general increase in the compensation of officers or employees
(including any such increase pursuant to any bonus, pension, profit-
sharing or other plan or commitment) or grant any increase in the
compensation payable or to become payable to any employee, except in
accordance with pre-existing contractual provisions or consistent with
past practices;
(viii) make or commit to make any material
capital expenditure;
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(ix) pay, loan or advance any amount to, or
sell, transfer or lease any properties or assets to, or enter into any
agreement or arrangement with, any of its affiliates;
(x) guarantee any indebtedness for borrowed
money or any other obligation of any other person;
(xi) fail to keep in full force and effect
insurance comparable in amount and scope to coverage maintained by it (or
on behalf of it) on the date hereof;
(xii) take any other action that would cause any of the
representations and warranties made by it in this Agreement not to remain
true and correct in all material;
(xiii) make any loan, advance or capital
contribution to or investment in any person;
(xiv) make any change in any method of
accounting or accounting principle, method, estimate or practice (xv)
settle, release or forgive any claim or
litigation or waive any right;
(xvi) commit itself to do any of the foregoing.
Additionally, MSSI shall:
(xvii) continue to maintain, in all material
respects, its properties in accordance with present practices in a
condition suitable for its current use;
(xviii) file, when due or required, federal,
state, foreign and other tax returns and other reports required to be
filed and pay when due all taxes, assessments, fees and other charges
lawfully levied or assessed against it, unless the validity thereof is
contested in good faith and by appropriate proceedings diligently
conducted;
(xix) continue to conduct its business in the
ordinary course consistent with past practices;
(xx) keep its books of account, records and
files in the ordinary course and in accordance with existing practices;
and
(xxi) continue to maintain existing business
relationships with suppliers.
SECTION 4.2. ACCESS TO PROPERTIES AND RECORDS. TELESCIENCE shall
afford MSSI, and MSSI shall afford to TELESCIENCE's accountants, counsel
and representatives full access during normal business hours throughout
the period prior to the Closing Date (or the earlier termination of this
Agreement) to all of such parties properties, books, contracts,
commitments and records and, during such period, shall furnish promptly to
the requesting party all other information concerning the other party's
business, properties and personnel as the requesting party may reasonably
request, provided that no investigation or receipt of information pursuant
to this Section 4.2 shall affect any representation or warranty of or the
conditions to the obligations of any party.
SECTION 4.3. NEGOTIATIONS. From and after the date hereof until
the earlier of the Closing or the termination of this Agreement, no party
to this Agreement nor its officers or directors (subject to such
director's fiduciary duties) nor anyone acting on behalf of party or
persons shall, directly or indirectly, encourage, solicit, engage in
discussions or negotiations with, or provide any information to, any
person, firm, or other entity or group concerning any merger, sale of
substantial assets, purchase or sale of shares of common stock or similar
transaction involving any party thereof except as permitted herein A party
shall promptly communicate to any other party any inquiries or
communications concerning any such transaction which they may receive or
of which they may become aware of.
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SECTION 4.4. CONSENTS AND APPROVALS. The parties, (i) shall use
their reasonable commercial efforts to obtain all necessary consents,
waivers, authorizations and approvals of all governmental and regulatory
authorities, domestic and foreign, and of all other persons, firms or
corporations required in connection with the execution, delivery and
performance by them of this Agreement, and (ii) shall diligently assist
and cooperate with each party in preparing and filing all documents
required to be submitted by a party to any governmental or regulatory
authority, domestic or foreign, in connection with such transactions and
in obtaining any governmental consents, waivers, authorizations or
approvals which may be required to be obtained connection with such
transactions.
SECTION 4.5. PUBLIC ANNOUNCEMENT. Unless otherwise required by
applicable law, the parties hereto shall consult with each other before
issuing any press release or otherwise making any public statements with
respect to this Agreement and shall not issue any such press release or
make any such public statement prior to such consultation.
SECTION 4.6. RESIGNATIONS OF MSSI'S OFFICERS AND DIRECTORS. On
the date of this Agreement, MSSI shall receive the resignations of all
officers and directors of MSSI and MSSI shall have caused such persons as
directed by TELESCIENCE to be appointed to MSSI as officers and directors
of MSSI.
SECTION 4.7 . TELESCIENCE ISSUANCE. From and after the date of
this Agreement until the Closing Date, TELESCIENCE shall not issue any
additional shares of its capital stock.
ARTICLE V
CONDITIONS AND OBLIGATIONS TO CLOSING OF MSSI
The obligations of MSSI to consummate the transactions
contemplated by this Agreement are subject to the fulfillment, at or
before the Closing Date, of the following conditions, any one or more of
which may be waived by MSSI in its sole discretion:
SECTION 5.1. REPRESENTATIONS AND WARRANTIES OF TELESCIENCE.
All representations and warranties made by TELESCIENCE in this Agreement
shall be true and correct on and as of the Closing Date as if again made
by TELESCIENCE on and as of such date.
SECTION 5.2. FINANCIAL STATEMENTS.
TELESCIENCE shall have delivered all of the required Financial Statements
set forth in Section 2.7 of this agreement to MSSI on or before the
Closing.
SECTION 5.3 AGREEMENTS AND COVENANTS. TELESCIENCE shall have
performed and complied in all material respects to all agreements and
covenants required by this Agreement to be performed or complied with by
any of them on or prior to the Closing Date.
SECTION 5.4. CONSENTS AND APPROVALS. All consents, waivers,
authorizations and approvals of any governmental or regulatory authority,
domestic or foreign, and of any other person, firm or corporation,
required in connection with the execution, delivery and performance of
this Agreement shall be in full force and effect on the Closing Date.
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SECTION 5.5. NO VIOLATION OF ORDERS. No preliminary or permanent
injunction or other order issued by any court or governmental or
regulatory authority, domestic or foreign, nor any statute, rule,
regulation, decree or executive order promulgated or enacted by any
government or governmental or regulatory authority, which declares this
Agreement invalid in any respect or prevents the consummation of the
transactions contemplated hereby, or which materially and adversely
affects the assets, properties, operations, prospects, net income or
financial condition of TELESCIENCE shall be in effect; and no action or
proceeding before any court or governmental or regulatory authority,
domestic or foreign, shall have been instituted or threatened by any
government or governmental or regulatory authority, domestic or foreign,
or by any other person, or entity which seeks to prevent or delay the
consummation of the transactions contemplated by this Agreement or which
challenges the validity or enforceability of this Agreement.
SECTION 5.6. OTHER CLOSING DOCUMENTS. MSSI shall have received
such
other certificates, instruments and documents in confirmation of the
representations and warranties of TELESCIENCE or in furtherance of the
transactions contemplated by this Agreement as MSSI or its counsel may
reasonably request.
ARTICLE VI
CONDITIONS AND OBLIGATIONS OF CLOSING TO TELESCIENCE
The obligations of TELESCIENCE to consummate the transactions
contemplated by this Agreement are subject to the fulfillment, at or
before the Closing Date, of the following conditions, any one or more of
which may be waived by TELESCIENCE in its sole discretion, as the case may
be.
SECTION 6.1. REPRESENTATIONS AND WARRANTIES OF MSSI. All
representations and warranties made by MSSI in this Agreement shall be
true and correct on and as of the Closing Date as if again made by MSSI on
and as of such date.
SECTION 6.2. FINANCIAL STATEMENTS.
(a) MSSI shall have delivered the Financial Statements set forth
Section 3.7 to TELESCIENCE on or before Closing.
SECTION 6.2. AGREEMENTS AND COVENANTS. MSSI shall have performed and
complied in all material respects to all agreements and covenants required
by this Agreement to be performed or complied with by it on or prior to
the Closing Date.
SECTION 6.3. CONSENTS AND APPROVALS. All consents, waivers,
authorizations and approvals of any governmental or regulatory authority,
domestic or foreign, and of any other shareholder, person, firm or
corporation, required in connection with the execution, delivery and
performance of this Agreement, shall have been duly obtained and shall be
in full force and effect on the Closing Date, including but not limited to
the approval of the Board of Directors of TELESCIENCE, and the majority
shareholders of TELESCIENCE. In connection with obtaining a majority
shareholder approval and under the rules and regulations of the Exchange
Act, TELESCIENCE/MSSI will file a Schedule 14C with the SEC and the
shareholder approval will be effective 21 days following the day the
definitive Schedule 14C is filed with the SEC and the information
statement mailed to MSSI's shareholders.
SECTION 6.4. NO VIOLATION OF ORDERS. No preliminary or permanent
injunction or other order issued by any court or other governmental or
regulatory authority, domestic or foreign, nor any statute, rule,
regulation, decree or executive order promulgated or enacted by any
government or governmental or regulatory authority, domestic or foreign,
that declares this Agreement invalid or unenforceable in any respect or
which prevents the consummation of the transactions contemplated hereby,
or which materially and adversely affects the assets, properties,
operations, prospects, net income or financial condition of MSSI and its
subsidiaries, taken as a whole, shall be in effect; and no action or
proceeding before any court or government or regulatory authority,
domestic or foreign, shall have been instituted or threatened by any
government or governmental or regulatory authority, domestic or foreign,
or by any other person, or entity which seeks to prevent or delay the
consummation of the transactions contemplated by this Agreement or which
challenges the validity or enforceability of this Agreement.
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SECTION 6.5. GOODSTANDING AND OTHER CERTIFICATES. MSSI shall have
delivered to TELESCIENCEa certificate form the Secretary of State or other
appropriate official of their respective jurisdictions of incorporation,
to the effect that MSSI is in good standing in such jurisdiction
SECTION 6.6. OTHER CLOSING DOCUMENTS. TELESCIENCE shall have
received such other certificates, instruments and documents in
confirmation of the representations and warranties of MSSI or in
furtherance of the transactions contemplated by this Agreement as
TELESCIENCE or its counsel may reasonably request.
SECTION 6.7. RESIGNATION. MSSI currently has 2 members of its Board
of Directors and 2 officers of the parent Company, Medical Staffing
Solutions, Inc. All of such officers and directors shall resign upon the
signing of this Agreement. Upon resignation of all the officers and
directors of MSSI, TELESCIENCE nominees will be appointed as officers and
directors. The TELESCIENCE nominees will be submitted to MSSI prior to
Closing with appropriate background and personal contact information on
each nominee.
SECTION 6.8. CORPORATE MATTERS. MSSI shall amend its Certificate
of Incorporation to increase its authorized capital stock to 220,000,000
shares, of which 200,000,000 shall be common stock and 20,000,000 shall be
preferred stock.
SECTION 6.9. OPTION AGREEMENTS. Certain shareholders of MSSI
shall have entered into option agreements with certain designated persons
and entities to the reasonable satisfaction of TELESCIENCE.
ARTICLE VII
TERMINATION AND ABANDONMENT
SECTION 7.1. METHODS OF TERMINATION. This Agreement may be
terminated and the transactions contemplated hereby may be abandoned at
any time before the Closing:
(a) By the mutual written consent of TELESCIENCE and MSSI;
(b) By MSSI, upon a material breach of any
representation, warranty, covenant or agreement on the part of TELESCIENCE
set forth in this Agreement, or if any representation or warranty of
TELESCIENCE shall become untrue, in either case such that any of the
conditions set forth in Article VI hereof would not be satisfied (a)
"TELESCIENCE Breach"), and such breach shall, if capable of cure, have
not been cured within ten (10) days after receipt by the party in breach
of a notice from the non-breaching party setting forth in detail the
nature of such breach;
(c) By TELESCIENCE, upon a material breach of any
representation, warranty, covenant or agreement on the part of MSSI set
forth in this Agreement, or, if any representation or warranty of MSSI
shall become untrue, in either case such that any of the conditions set
forth in Article VII hereof would not be satisfied (a "MSSI Breach"), and
such breach shall, if capable of cure, not have been cured within ten (10)
days after receipt by the party in breach of a notice from the non-
breaching party setting forth in detail the nature of such breach;
(d) By either TELESCIENCE or MSSI, if the Closing shall
not have consummated before ninety (90) days after the date hereof;
provided, however, that this Agreement may be extended by written notice
of either TELESCIENCE or MSSI, if the Closing shall not have been
consummated as a result of MSSI, TELESCIENCE having failed to receive all
required regulatory approvals or consents with respect to this transaction
or as the result of the entering of an order as described in this
Agreement; and further provided, however, that the right to terminate this
Agreement under this Section 7.1(d) shall not be available to any party
whose failure to fulfill any obligations under this Agreement has been the
cause of, or resulted in, the failure of the Closing to occur on or before
this date.
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(e) By either TELESCIENCE or MSSI if a court of
competent jurisdiction or governmental, regulatory or administrative
agency or commission shall have issued an order, decree or ruling or taken
any other action (which order, decree or ruling the parties hereto shall
use its best efforts to lift), which permanently restrains, enjoins or
otherwise prohibits the transactions contemplated by this Agreement.
SECTION 7.2. PROCEDURE UPON TERMINATION. In the event of
termination and abandonment of this Agreement by TELESCIENCE or MSSI
pursuant to Section 7.1, written notice thereof shall forthwith be given
to the other parties and this Agreement shall terminate and the
transactions contemplated hereby shall be abandoned, without further
action. If this Agreement is terminated as provided herein, no party to
this Agreement shall have any liability or further obligation to any other
party to this Agreement except as provided in Sections 9.1, 9.4 and 9.5
hereof; provided, however, that no termination of this Agreement pursuant
to this Article VII shall relieve any party of liability for a breach of
any provision of this Agreement occurring before such termination.
ARTICLE VIII
POST-CLOSING AGREEMENTS
SECTION 8.1. CONSISTENCY IN REPORTING. Each party hereto agrees
that: (i) the transaction is intended to qualify as a tax-free transaction
under the Code; (ii) the transaction shall be reported for Federal income
tax purposes as a tax-free transaction; (iii) for purposes of all
financial statements, tax returns and reports, and communications with
third parties, the transactions contemplated in this agreement and
ancillary or collateral transactions will be treated as a tax-free
transaction; and (iv) if the characterization of any transaction
contemplated in this agreement or any ancillary or collateral transaction
is challenged, each party hereto will testify, affirm and ratify that the
characterization contemplated in such agreement was with the
characterization intended by the party; provided, however, that nothing
herein shall be construed as giving rise to any obligation if the
reporting position is determined to be incorrect by final decision of a
court of competent jurisdiction.
SECTION 8.2. INDEMNITY. Each party shall indemnify and hold the
other party harmless for acts or omissions pertaining to this agreement
that are not detailed herein and that may occur in the future without
knowledge at the execution of this agreement.
ARTICLE IX
MISCELLANEOUS PROVISIONS
SECTION 9.1. SURVIVAL OF PROVISIONS. The respective
representations, warranties, covenants and agreements of each of the
parties to this Agreement (except covenants and agreements which are
expressly required to be performed and are performed in full on or before
the Closing Date) shall survive the Closing Date and the-consummation of
the transactions contemplated by this Agreement, subject to Sections 2.22
and 3.24. In the event of a breach of any of such representations,
warranties or covenants, the party to whom such representations,
warranties or covenants have been made shall have all rights and remedies
for such breach available to it under the provisions of this Agreement or
otherwise, whether at law or in equity, regardless of any disclosure to,
or investigation made by or on behalf of such party on or before the
Closing Date.
SECTION 9.2. PUBLICITY. Neither party shall cause the publication
of any press release or other announcement with respect to this Agreement
or the transactions contemplated hereby without the consent of the other
party, unless a press release or announcement is required by law. If any
such announcement or other disclosure is required by law, the disclosing
party agrees to give the non-disclosing party prior notice and an
opportunity to comment on the proposed disclosure.
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SECTION 9.3. SUCCESSORS AND ASSIGNS; NO THIRD-PARTY
BENEFICIARIES. This Agreement shall inure to the benefit of, and be
binding upon, the parties hereto and their respective successors and
assigns; provided, however, that no
party shall assign or delegate any of the obligations created under this
Agreement without the prior written consent of the other party.
SECTION 9.4 BROKERS AND FINDERS.
TELESCIENCE represents and warrants to MSSI that, except
for INFE Ventures, Inc., they have not employed the services of a broker
or finder in connection with this Agreement or any of the transactions
contemplated hereby. TELESCIENCE will be responsible for compensating INFE
Ventures, Inc. in connection with this transaction.
SECTION 9.5. FEES AND EXPENSES. Except as otherwise expressly
provided
in this Agreement, all legal and other fees, costs and expenses incurred
in connection with this Agreement and the transactions contemplated hereby
shall be paid by the party incurring such fees, costs or expenses.
SECTION 9.6. NOTICES. All notices and other communications given
or made pursuant hereto shall be in writing and shall be deemed to have
been given or made if in writing and delivered personally or sent by
registered or certified mail (postage prepaid, return receipt requested)
to the parties at the following addresses:
(a) If to MSSI, to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Attorney-at-law
Suite 234 Valley Commerce Center
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇
(b) If to TELESCIENCE, to:
TELESCIENCE INTERNATIONAL, INC.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇. ▇. ▇▇▇▇▇, Ph.D., Chief Executive Officer
(c) With a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Attorney-at-law
▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇, LLP
Suite 100
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇
or to such other persons or at such other addresses as shall be furnished
by either party by like notice to the other, and such notice or
communication shall be deemed to have been given or made as of the date so
delivered or mailed. No change in any of such addresses shall be effective
insofar as notices under this Section 9.6 are concerned unless such
changed address is located in the United States of America and notice of
such change shall have been given to such other party hereto as provided
in this Section 9.6.
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SECTION 9.7. ENTIRE AGREEMENT. This Agreement, together with the
exhibits hereto, represents the entire agreement and understanding of the
parties with reference to the transactions set forth herein and no
representations or warranties have been made in connection with this
Agreement other than those expressly set forth herein or in the exhibits,
certificates and other documents delivered in accordance herewith. This
Agreement supersedes all prior negotiations, discussions, correspondence,
communications, understandings and agreements between the parties relating
to the subject matter of this Agreement and all prior drafts of this
Agreement, all of which are merged into this Agreement. No prior drafts of
this Agreement and no words or phrases from any such prior drafts shall be
admissible into evidence in any action or suit involving this Agreement.
SECTION 9.8. SEVERABILITY. This Agreement shall be deemed
severable, and the invalidity or unenforceability of any term or provision
hereof shall not affect the validity or enforceability of this Agreement
or of any other term or provision hereof. Furthermore, in lieu of any such
invalid or unenforceable term or provision, the parties hereto intend that
there shall be added as a part of this Agreement a provision as similar in
terms to such invalid or unenforceable provision as may be possible and be
valid and enforceable.
SECTION 9.9. TITLES AND HEADINGS. The Article and Section
headings contained in this Agreement are solely for convenience of
reference and shall not affect the meaning or interpretation of this
Agreement or of any term or provision hereof.
SECTION 9.10. COUNTERPARTS. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original and all of
which together shall be considered one and the same agreement.
SECTION 9.11. [Intentionally Omitted}.
SECTION 9.12. ENFORCEMENT OF THE AGREEMENT. The parties hereto
agree that irreparable damage would occur if any of the provisions of this
Agreement were not performed in accordance with their specific terms or
were otherwise breached. It is accordingly agreed that the parties shall
be entitled to an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions hereto,
this being in addition to any other remedy to which they are entitled at
law or in equity.
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SECTION 9.13. GOVERNING LAW. This Agreement shall be governed by
and interpreted and enforced in accordance with the laws of the State of
Virginia without giving effect to the choice-of-law provisions thereof.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
MEDICAL STAFFING SOLUTIONS, INC.
By: __________________
Its:___________________
TELESCIENCE INTERNATIONAL, INC.
By: ___________________
▇.▇.▇▇▇▇▇, Chief Executive Officer
▇.▇. ▇▇▇▇▇, INDIVIDUALLY AS 100% SHAREHOLDER OF TELESCIENCE
_____________________________
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