Exhibit 2
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF
MERGER, dated September 1, 2009, is made and
entered into among MEDX SYSTEMS, INC., a Florida corporation
(the "Purchaser"),
PHARMACITY CORPORATION, a Nevada corporation (the
"Company"), WI ACQUISITION,
INC., a Florida corporation and
wholly owned subsidiary of the
Company
("Subsidiary") and Iryna Kravchuk ("Stockholder").
WHEREAS, the parties desire that on the
terms and subject to the conditions
contained in this Agreement, Purchaser merge with and into
the Subsidiary, with
the Subsidiary surviving the transaction; and
WHEREAS, for federal income
tax purposes, it is intended that the Merger
will be a reorganization described in Section 368 of the Code.
NOW, THEREFORE, in
consideration of the mutual promises and
covenants
hereinafter contained, and intending to be legally
bound, the parties to this
Agreement hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. The
following terms, as used herein, shall have
the
following meanings:
(a) "Action"
means any action, claim, dispute,
proceeding, suit or
investigation (whether civil, criminal, administrative or
investigative), or any
appeal therefrom.
(b)
"Affiliate" means any Person, a spouse of such Person,
any child
or parent sharing the same household with such Person,
any director or officer
of such Person, and any other Person directly
or indirectly controlling or
controlled by or under direct or indirect common control with such
Person.
(c)
"Agreement" means this Agreement and Plan
of Merger and shall
include all of the Schedules and Exhibits attached hereto.
(d)
"Approval" means any approval, authorization,
consent, license,
franchise, order, registration, permit or other confirmation of or
by, or filing
with, a Person.
(e)
"Business Day" means any day other than a Saturday, a
Sunday, a
legal holiday in the State of Florida or a day on which
commercial banks in the
State of Florida are permitted or authorized to close.
(f) "Code"
means the Internal Revenue Code of 1986, as
amended, and
the regulations thereunder.
(g) "Company
Common Stock" means the common stock, par value $0.00001
per share, of the Company.
(h)
"Condition" means, with respect to a
Person, the business,
liabilities, properties, prospects, assets,
operations, results of operations
and/or condition (financial or otherwise) of such Person.
(i)
"Damages" means any claim,
loss, deficiency (financial or
otherwise), Liability, cost or
expense (including, without limitation,
reasonable attorneys' fees, costs and expenses) or damage of
any kind or nature
whatsoever.
(j)
"Environmental Laws" means all
currently existing foreign,
federal, state and local laws, regulations, rules
and ordinances relating to
pollution or protection of the
environment or human health and
safety,
including, without limitation, laws relating to releases or
threatened releases
of Hazardous Materials into the indoor
or outdoor environment (including,
without limitation, ambient air, surface water,
groundwater, land, surface and
subsurface strata) or otherwise
relating to the manufacture,
processing,
distribution, use, treatment, storage,
release, transport or handling of
Hazardous Materials and all laws and regulations with regard
to record keeping,
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notification, disclosure and
reporting requirements respecting
Hazardous
Materials, and all laws relating to endangered or
threatened species of fish,
wildlife and plants and the management or use of natural
resources.
(k) "FBCA"
means the Florida Business Corporation Act.
(l)
"Forward Split" means a forward split of
the Company's Common
Stock at the ratio of 19 shares of Company
Common Stock for each share of
Company Common Stock outstanding immediately prior thereto.
(m)
"GAAP" means United States
generally accepted accounting
principles.
(n)
"Governmental Authority" means any United States
federal, state,
local, foreign or other governmental, administrative or
regulatory authority,
body, agency, court, tribunal or similar entity.
(o)
"Hazardous Materials" means any substance:
(i) the presence of
which requires or may require investigation or remediation of any
kind under any
Environmental Laws; (ii) which is defined
as "hazardous waste," "hazardous
material," "residual waste," "hazardous substance," "pollutant" or
"contaminant"
under any federal, state or local statute,
regulation, rule or ordinance or
amendments thereto including, without
limitation, CERCLA and/or the Resource
Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.) or
(iii) which is
otherwise regulated pursuant to any applicable Environmental
Law.
(p)
"Indemnified Party" means any party entitled to
indemnification
pursuant to Section 10.1 hereof.
(q)
"Indemnifying Party" means any party required
to indemnify an
Indemnified Party pursuant to Section 10.1 hereof.
(r) "Law"
means any federal, state, local or foreign
law, statute,
rule, regulation, ordinance, standard, requirement, administrative
ruling, order
or process (including, without
limitation, any zoning or land use law
or
ordinance, building code, Environmental Law, securities, blue
sky, civil rights
or occupational health and
safety law or regulation) or
administrative
interpretation thereof, and any court, or arbitrator's order or
process.
(s)
"Liability" means any debt, liability, commitment or obligation
of
any kind, character or nature whatsoever, whether known or
unknown, secured or
unsecured, accrued, fixed, absolute, contingent or otherwise, and
whether due or
to become due.
(t) "Lien"
means any lien, statutory lien, pledge, mortgage,
security
interest, charge, encumbrance,
easement, right of way, covenant,
claim,
restriction, right, option, conditional sale or other title
retention agreement
of any kind or nature.
(u)
"Material Adverse Effect" means, with respect to
a Person, any
change or effect that is materially adverse to the Condition of
such Person.
(v) "Person"
means any individual, partnership, corporation,
limited
liability company, association, business
trust, joint venture, governmental
entity, business entity or other entity of any kind or
nature, including any
business unit of such Person.
(w)
"Purchaser Common Stock" means the common stock of the
Purchaser.
(x) "Representatives" means
with respect to any Person,
its
stockholders, employees, officers,
directors, investment bankers, attorneys,
agents, representatives or Affiliates.
(y)
"Securities Act" means the Securities Act of 1933, as amended,
and
the rules and regulations thereto.
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(z)
"Stockholder Shares" means 2,000,000 shares of
pre-Forward Split
Company Common Stock held of
record in the name of the
Stockholder, or
80,000,000 shares of post-Forward Split Company Common
Stock held of record in
the name of the Stockholder, as the case may be.
(aa) "Tax"
means any United States federal, state or local or
foreign
income, gross receipts, license, severance, occupation,
premium, environmental
(including taxes under Code Section 59A), customs, duties,
profits, disability,
registration, alternative or add-on minimum, estimated,
withholding, payroll,
employment, unemployment insurance, social security (or similar),
excise, sales,
use, value-added, occupancy, franchise,
real property, personal property,
business and occupation, windfall profits,
capital stock, stamp, transfer,
workmen's compensation or other tax, fee or imposition of any
kind whatsoever,
including any interest, penalties, additions, assessments or
deferred liability
with respect thereto, whether disputed or not.
(bb) "Tax
Law" means the Law (including any applicable regulations
or
any administrative pronouncement) of any Governmental
Authority relating to any
Tax.
(cc) "Tax
Return" means any federal, state, local or foreign
return,
declaration, report, claim for refund, amended return,
declaration of estimated
Tax or information return or statement relating
to Taxes, and any schedule,
exhibit, attachment or other materials submitted with any of
the foregoing, and
any amendment thereto.
1.2 Accounting Terms. All accounting terms
not specifically defined in
this Agreement shall be construed in accordance with GAAP
consistently applied.
1.3 Singular and Plural
Forms. The use herein of the singular form also
denotes the plural form, and the use of the plural form
herein also denotes the
singular form, as in each case the context may require.
1.4 Gender Forms. The use herein of any
gender word (such as "he" or "his")
includes both the male and female genders.
ARTICLE II
THE
MERGER
2.1 Upon Execution of this
Agreement. Notwithstanding any other terms of
this Agreement:
(a)
Concurrently with the execution of this Agreement, the
Stockholder
has deposited in escrow with Purchaser's counsel stock certificates
representing
the Stockholder Shares. Each such stock
certificate shall be accompanied by a
stock power executed in blank,
medallion guaranteed. The form of
escrow
agreement is attached hereto as Exhibit A.
(b)
Concurrently with the execution of this Agreement, Purchaser
shall
pay Stockholder a nonrefundable payment of $100,000, in
immediately available
funds.
(c) In the
event the transactions set forth in this
Agreement close
pursuant to the terms hereof, on or before the
Effective Time the Stockholder
Shares shall be released from escrow and returned
to the Company's transfer
agent for cancellation.
(d) In
the event this Agreement is
terminated for any reason,
concurrently with, or as soon as possible
thereafter, the Stockholder Shares
shall be released from escrow and transferred to Purchaser.
(e)
The Company hereby appoints Paul
Schmidt as the assistant
secretary of the Company, and authorizes and directs Mr.
Schmidt to execute, on
behalf o the Company, all documentation necessary to
effectuate the closing of
the transactions set forth herein.
2.2 The Merger. Subject
to the terms and conditions set forth in this
Agreement and in accordance with the FBCA, at the
Effective Time, Purchaser
shall be merged with and into the Subsidiary in
accordance with this Agreement
and the separate existence of
Purchaser shall cease (the "Merger").
The
Subsidiary shall survive the Merger and the
Company and shall continue to be
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governed by the laws of the
State of Florida (as such, the
"Surviving
Corporation"). The Merger shall have the effects set forth in the
FBCA.
2.3 Closing. The closing of the Merger
(the "Closing") shall take place (i)
at the offices of Roetzel &
Andress, Ft. Lauderdale, Florida, as soon
as
practicable, but in any event within three Business Days
after the day on which
the last to be fulfilled or waived of the conditions
set forth in Articles VII
and VIII (other than those conditions that by their
nature are to be fulfilled
at the Closing, but subject to the fulfillment or
waiver of such conditions)
shall be fulfilled or waived in accordance with this
Agreement or (ii) at such
other place and time or on such other date as the
parties may agree in writing
(the "Closing Date").
2.4 Effective Time of the Merger.
The Merger shall become effective on the
date and at the time at which a properly executed
certificate of merger (the
"Certificate of Merger") is duly filed with the Secretary of
State of the State
of Florida, or at such later date and time as may
be specified therein. The
Certificate of Merger filing shall be made as soon as
practicable on or after
the Closing Date. When used in this Agreement, the term
"Effective Time" means
the date and time on which such Certificate of Merger is so
filed or such later
time as the parties shall designate therein.
2.5 Certificate of
Incorporation. The Certificate of Incorporation of the
Subsidiary as in effect immediately prior to the
Effective Time shall be the
Certificate of Incorporation of the
Surviving Corporation unless and until
amended as provided by Law and the Certificate of
Incorporation.
2.6 By-Laws. The by-laws of the
Subsidiary as in effect immediately prior
to the Effective Time shall be the by-laws of the Surviving
Corporation unless
and until amended in accordance
with their terms and the Certificate of
Incorporation of the Surviving Corporation.
2.6 Directors.
(a) Of
the Surviving Corporation. The directors of
Purchaser at the
Effective Time shall be the initial directors of the
Surviving Corporation and
shall hold office from the Effective Time until their
respective successors are
duly elected or appointed and qualify in the manner provided
in the Certificate
of Incorporation and by-laws of the
Surviving Corporation or as otherwise
provided by Law.
(b) Of the
Company. The directors of Purchaser at the Effective
Time
shall be the directors of the Company and shall hold office
from the Effective
Time until their respective successors are duly elected or
appointed and qualify
in the manner provided in the Certificate of
Incorporation and by-laws of the
Company or as otherwise provided by Law.
2.7 Officers.
(a) Of
the Surviving Company. The officers of the
Purchaser at the
Effective Time shall be the initial officers of the
Surviving Corporation and
shall hold office from the Effective Time until their
respective successors are
duly elected or appointed and qualify in the manner provided
in the Certificate
of Incorporation and by-laws of the
Surviving Corporation, or as otherwise
provided by Law.
(b) Of the
Company. The officers of Purchaser at the
Effective Time
shall be the officers of the Company and shall hold
office from the Effective
Time until their respective successors are duly elected or
appointed and qualify
in the manner provided in the Certificate of
Incorporation and by-laws of the
Company or as otherwise provided by Law.
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ARTICLE III
CONVERSION OF SHARES
3.1 Effect on Capital Stock.
(a) Common
Stock. At the Effective Time, by virtue of the Merger
and
without any action on the part of any stockholder of Subsidiary,
the Company, or
Purchaser, each share of
Purchaser Common Stock issued and
outstanding
immediately prior to the Effective Time shall be
converted into the right to
receive 0.135319 shares of Company Common Stock pre-Forward
Split, or 5.4127574
shares of Company Common Stock post-Forward Split, as
the case may be. Each of
the shares of Purchaser Common Stock converted in
accordance with this Section
3.1 shall no longer be outstanding and shall
automatically be cancelled and
retired and shall cease to exist, and each holder of a
certificate representing
any such shares of Purchaser Common Stock shall
cease to have any rights with
respect thereto, except the right to receive the consideration set
forth in this
Section 3.1, upon the surrender of such certificate in
accordance with Section
3.2 hereof. Each share of Subsidiary Common stock outstanding
immediately prior
to the Effective Time shall remain outstanding after the Effective
Time.
(b) Options
and Warrants. At the Effective Time,
by virtue of the
Merger and without any action on the part of any holder of an
option or warrant
issued by the Purchaser and
outstanding as of the Effective
Time (the
"Options/Warrants"), the Company shall assume the obligations of
Purchaser under
the Options/Warrants, such that upon the exercise
of any such Option/Warrant
pursuant to the terms thereof, the Option/Warrant holder
shall receive 0.135319
shares of Company Common Stock pre-Forward Split, or 5.4127574
shares of Company
Common Stock post-Forward Split, as the case may be, for each
1 share of Common
Stock of the Purchaser the Option/Warrant holder would have
received otherwise.
Other than as set forth
in this Section 3.1(b),
all terms of the
Options/Warrants shall remain unchanged (e.g. exercise
price, term, etc.). The
Company shall also assume and adopt the Purchaser's 2008 Equity
Incentive Plan.
3.2 Surrender of Certificates
Representing Shares. At the Effective Time,
each shareholder of Purchaser, upon
surrender to the Company of one or more
certificates in valid form representing the shares of
Purchaser Common Stock,
duly endorsed in blank or accompanied by duly executed
stock powers, shall be
entitled to receive the consideration set forth in Section 3.1 in
respect of the
shares of capital stock represented by such certificates.
Until so surrendered,
each such certificate shall, after
the Effective Time, represent for all
purposes only the right to receive such
consideration as set forth in Section
3.1 Each certificate representing shares of
Company Common Stock issued upon
surrender of Purchaser Common Stock shall bear a legend
stating:
"THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY
THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), OR
APPLICABLE STATE SECURITIES LAWS AND
THESE SECURITIES MAY NOT BE SOLD OR
TRANSFERRED UNLESS (I) A REGISTRATION STATEMENT
COVERING SUCH SALE OR TRANSFER
IS EFFECTIVE UNDER THE ACT OR (II) THE TRANSACTION IS EXEMPT
FROM REGISTRATION
UNDER THE ACT, AND IF THE ISSUER REQUESTS,
AN OPINION SATISFACTORY TO THE
CORPORATION TO SUCH EFFECT HAS BEEN RENDERED BY COUNSEL."
3.3 No Fractional Shares. No certificates
or scrip representing fractional
shares of Purchaser Common Stock shall be issued upon the surrender
for exchange
of certificates representing shares of Purchaser
Common Stock. In lieu of any
such fractional shares of Company
Common Stock, each holder of shares of
Purchaser Common Stock who would otherwise have been entitled to a
fraction of a
share of Company Common Stock upon surrender of stock
certificates for exchange
pursuant to this Article III will be issued one
full share of Company Common
Stock in consideration of said fractional share of Purchaser Common
Stock.
ARTICLE IV
REPRESENTATIONS AND
WARRANTIES OF THE COMPANY AND THE STOCKHOLDER
The Company and the
Stockholder hereby represent and
warrant to the
Purchaser, as of the date hereof and as of the Closing Date, as
follows:
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4.1 Organization and
Good Standing. The Company is a corporation
duly
incorporated, validly existing and in good standing under the
laws of the State
of Nevada and has the requisite power
and authority and all governmental
licenses, authorizations, consents and approvals
required to own, operate and
lease its properties and assets and to conduct its
business as it is now being
owned, operated, leased and
conducted. The Company is not required to
be
qualified or licensed to do
business as a foreign
corporation in any
jurisdiction.
4.2 Corporate Records. Copies
of the certificate of incorporation of the
Company, certified by the Secretary of State of the State of
Nevada, and of the
by-laws of the Company, certified by
the Secretary of such corporation,
heretofore delivered to the Purchaser are
true and complete copies of such
instruments as amended to the date of this
Agreement. Such certificate of
incorporation and by-laws of the Company
are in full force and effect. The
Company is not in violation of any provision of its certificate of
incorporation
or by-laws.
4.3 Corporate Power and Authority.
The Company has the requisite corporate
power and authority to execute
and deliver this Agreement, perform
its
obligations hereunder and consummate the transactions
contemplated hereby. The
execution and delivery of this Agreement by the Company,
the performance by it
of its obligations hereunder, and the
consummation by it of the transactions
contemplated hereby have been duly authorized by
all necessary corporate and
stockholder actions on the part of the Company. This
Agreement constitutes the
legal, valid and binding obligation of the Company,
enforceable against it in
accordance with its terms, except as the same may
be limited by bankruptcy,
insolvency, reorganization, moratorium or
similar Laws now or hereafter in
effect relating to creditors' rights generally and subject to
general principles
of equity.
4.4 Capitalization.
(a)
The authorized capital stock of the Company
consists solely of
75,000,000 shares of Company Common Stock, par value $0.00001
per share. There
are 2,404,000 shares of Company Common Stock
outstanding, of which 2,000,000
shares are being cancelled concurrently with the
Closing. No shares of Company
Common Stock are held as treasury shares.
(b) All of
the issued and outstanding shares of Company Common
Stock
are validly issued, fully paid and nonassessable and
free of preemptive rights
and were issued in compliance with all applicable Laws
concerning the issuance
of securities. There are not any shares of capital
stock of the Company issued
or outstanding or any options,
warrants, subscriptions, calls,
rights,
convertible securities or other agreements or commitments
obligating the Company
to issue, transfer, sell, redeem, repurchase or otherwise
acquire any shares of
its capital stock or securities. There are not any notes,
bonds, debentures or
other indebtedness of the Company having the right to vote
(or convertible into
or exchangeable for securities having the
right to vote) on any matters upon
which the Company's stockholders may vote. There are no
outstanding contractual
obligations, commitments, understandings or
arrangements of the Company to
repurchase, redeem or otherwise acquire or make
any payment in respect of or
measured or determined based on the value
or market price of any shares of
capital stock of the Company, and there are no irrevocable
proxies with respect
to shares of capital stock of
the Company. There are no agreements
or
arrangements pursuant to which the Company is or could
be required to register
shares of Company Common Stock or other securities under the
Securities Act.
4.5 Subsidiaries. The Company
does not own, directly or indirectly, any
capital stock or other ownership interest
in any corporation, partnership,
limited liability company, joint venture or
other business association or
entity, other than 100 shares (100%) of
common stock of Subsidiary, which
Subsidiary was formed for the purpose of entering
into the transactions set
forth herein, and has no
business operations, assets, or
liabilities,
whatsoever.
4.6 No Violation. Except
for the filing of the Certificate of Merger,
neither the execution and delivery of
this Agreement by the Company, the
performance by it of its obligations hereunder, nor
the consummation by it of
the transactions contemplated hereby, will (a)
contravene any provision of the
certificate of incorporation or bylaws of
the Company; (b) violate, be in
conflict with, constitute a default under, permit the
termination of, cause the
acceleration (whether after the giving of notice or the
lapse of time or both)
of the maturity of, any debt or obligation
of the Company or binding on the
Surviving Corporation after the Closing, require the consent
of any other party
to, constitute a breach of, create a loss of a benefit
under, or result in the
creation or imposition of any Lien upon any of the
properties or assets of the
Company under, any note, bond, license, mortgage,
indenture, lease, contract,
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agreement, instrument or commitment
relating to the Company to which it is a
party or by which it or any of its assets or properties
constituting part of the
business of the Company are bound.
4.7 Approvals.
(a)
Except for the filing of
the Certificate of Merger,
no
declaration, filing or registration with,
notice to, nor Approval of, any
Governmental Authority is required to be
made, obtained or given by or with
respect to the Company or Subsidiary in connection with the
execution, delivery
or performance by the Company or Subsidiary of this
Agreement, the performance
by it of its obligations hereunder or the consummation by it of the
transactions
contemplated hereby.
(b) The
Company and Subsidiary have all Approvals
required for its
operation and the use and ownership or leasing of its properties
and assets that
constitute part of the business, as currently operated,
used, owned or leased.
All of such Approvals are valid, in full force and effect and
in good standing,
except where the failure to be so would not,
individually or in the aggregate,
have a Material Adverse Effect on the Condition
of the Company. There is no
proceeding pending or, to the
knowledge of the Company, threatened,
that
disputes the validity of any such Approval or
that is likely to result in the
revocation, cancellation or suspension, or any adverse
modification of any such
Approval.
4.8 No Undisclosed Liabilities; Company
Records. The Company does not have,
and as a result of the transactions contemplated by
this Agreement, will not
have, any Liabilities (whether absolute, accrued,
contingent or otherwise, and
whether due or to become due). The minute books
and stock record books of the
Company have been maintained in accordance with sound
business practices. The
minute books of the Company contain
accurate and complete records of all
meetings held of, and corporate action taken by, the Company's
stockholders, the
Board of Directors, and committees of the Board of Directors of the
Company.
4.9 Leases of Personal Property; Material
Contracts; No Default.
(a) The
Company does not have any leases for personal property.
(b)
Schedule 4.9(b) hereto sets forth a true and complete list of
all
agreements to which the Company is
a party or by which it or any of its
properties or assets are bound (collectively, the
"Contracts"). The Company has
delivered or made available to the Purchaser a true and complete
copy of each of
the Contracts or other agreements listed on Schedule 4.9(b)
hereto.
(c) Except
as set forth on Schedule 4.9(c) hereto, the
Company has
performed in all material respects, or
is now performing in all material
respects, its obligations under, and is not
in default (and would not by the
lapse of time or the giving of notice or both be in default) under,
or in breach
or violation of, nor has it received notice of any asserted
claim of a material
default by the Company under, or a material breach or
violation by the Company
of any Contracts and, to the
knowledge of the Company, the other party or
parties thereto are performing in all material respects and are not
in violation
thereunder.
4.10 Litigation. There is no Action
pending against or affecting or, to the
knowledge of the Company, threatened against or affecting, the
Company or any of
its assets, properties or rights before any court
or arbitrator or any other
Governmental Authority. To the knowledge of the Company, there are
no facts that
would likely result in any such Action.
4.11 Compliance with
Laws. The Company is in compliance in all material
respects with all Laws applicable thereto. The Company is not at
present charged
with or, to the knowledge of the Company, threatened with any
charge concerning
or under any investigation with respect to,
any violation, in any material
respect, of any provision of any Law, and the Company is not
in violation of or
in default under, and to the knowledge of the
Company, no event has occurred
which, with the lapse of time or the giving of notice or
both, would result in
the violation of or default under, the terms of any
judgment, decree, order,
injunction or writ of any court or other Governmental
Authority.
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4.12 Taxes.
(a) The
Company has (x) duly and timely filed (or there has been filed
on its behalf) with the appropriate Governmental
Authorities all Tax Returns
required to be filed by it, and all such Tax
Returns are true, correct and
complete and (y) timely paid (or properly accrued on
the Company's books) or
there has been paid on its
