Agreement and Plan of Reorganization
by and among
PATHBIOTEK DIAGNOSTICS INC.
a Texas corporation
and
ATNG, INC.
a Nevada corporation
and
ATNG ACQUISITION, INC.
a Texas corporation
dated: August ____, 2001
AGREEMENT AND PLAN OF REORGANIZATION
PATHOBIOTEK DIAGNOSTICS INC.
and
ATNG, INC.
and
ATNG ACQUISITION, INC.
This Agreement and Plan of Reorganization ("Agreement"), dated as of
August ___, 2001, among PATHOBIOTEK DIAGNOSTICS INC. (Patho), a Texas
Corporation, ATNG, Inc., a Nevada Corporation, ATNG ACQUISITION, INC.
(Acquisition), a Texas Corporation, and the shareholders of ATNG ("ATNG
Shareholders") who will join this agreement by execution.
W I T N E S S E T H:
A. WHEREAS, Patho and ATNG are corporations duly organized under the
laws of the State of Texas and Nevada, respectively. ATNG Acquisition, Inc., a
Texas corporation is a wholly owned subsidiary of Patho.
B. Plan of Reorganization. The ATNG Shareholders are the owners of all
of the issued and outstanding common stock of ATNG. It is the intention that all
of the issued and outstanding stock of ATNG shall be acquired by Acquisition in
exchange solely for common stock of Patho. For federal income tax purposes it is
intended that this exchange shall qualify as a reorganization within the meaning
of SEC 368 (a)(1)(B) of the Internal Revenue Code of 1986, as amended (the
"Code").
C. Exchange of Shares. Patho and the ATNG Shareholders agree that all
of the common shares issued and outstanding of ATNG shall be acquired by
Acquisition in exchange for 27,836,186 shares of the common stock of Patho. The
pro rata numbers of the Patho shares, on the closing date, shall be delivered to
the individual shareholders in exchange for their ATNG shares as hereinafter set
forth.
D. WHEREAS, the parties hereto wish to enter into this Agreement, pur-
suant to the provisions of the Texas Statutes.
E. Immediately after closing hereunder ATNG and Acquisition shall file
Articles of Merger whereby ATNG is merged into Acquisition with ATNG being the
survivor.
F. On the date of delivery of audits of ATNG, Patho and ATNG shall
merge in a parent/sub merger.
NOW, THEREFORE, it is agreed among the parties as follows:
ARTICLE I
The Consideration
1.1 Subject to the conditions set forth herein on the "Effective Date"
(as herein defined), Shareholders of ATNG shall surrender all of their shares of
ATNG for 27,836,186 common shares of Patho common stock. The transactions
contemplated by this Agreement shall be completed at a closing ("Closing") on a
closing date ("Closing Date") which shall be 90 days after date hereof.
On the Closing Date, all of the documents to be furnished to Patho and
ATNG, including the documents to be furnished pursuant to Article VII of this
Agreement, shall be delivered to M. A. Xxxxxxx, to be held in escrow until the
Effective Date or the date of termination of this Agreement, whichever first
occurs, and thereafter shall be promptly distributed to the parties as their
interests may appear.
1.2 At the Effective Date, ATNG shall become a wholly owned subsidiary
of Acquisition. ATNG's shareholders shall receive pro rata shares of $.0001 par
value voting common stock of Patho as follows:
Patho shall issue 27,836,186 of its shares of common stock for 100% of
the outstanding common shares of ATNG, pro rata to the shareholders of ATNG.
1.3 If this Agreement is duly adopted by the holders of the requisite
number of shares of ATNG, in accordance with the applicable laws and subject to
the other provisions hereof, such documents as may be required by law to
accomplish the Agreement shall be filed as required by law to effectuate same,
and it shall become effective. The time of filing the last document required by
law shall be the Effective Date for the Agreement. For accounting purposes, the
Agreement shall be effective as of 12:01 a.m., on the last day of the month
preceding the Effective Date.
1.4 On or before October 15, 2001, ATNG shall have paid $250,000 to
Patho (less prior advances) to cover expenses incurred by Patho.
ARTICLE II
Issuance and Exchange of Shares
2.1 The shares of $.0001 par value common stock of Patho shall be
issued by it to ATNG shareholders at closing.
2.2 ATNG represents that no outstanding options or warrants for its
unissued shares exist, except as shown hereafter. All preferred stock of ATNG
due for redemption as of the date hereof shall have been redeemed as of closing
date, if any.
Outstanding Warrants and Options:
Xxxxxxxx Xxxxxxx W- 200,000 Shares @ $7.20 per Share
Dish Network W-5,000,000 Shares @ $7.20 per Share
Premiere Radio Networks Broadcasting O- 500,000 Shares @ $6.00 per Share
Employees and Others O- 3,200,000 Shares @ TBD
W=Warrants
O=Options
2.3 The stock transfer books of ATNG shall be closed on the Effective
Date, and thereafter no transfers of the stock of ATNG shall be made. ATNG shall
appoint an exchange agent ("Exchange Agent"), to accept surrender of the
certificates representing the common shares of ATNG, and to deliver in exchange
for such surrendered certificates, shares of common stock of Patho. The
authorization of the Exchange Agent may be terminated by Patho after six months
following the Effective Date. Upon termination of such authorization, any shares
of ATNG and any funds held by the Exchange Agent for payment to ATNG
shareholders pursuant to this Agreement shall be transferred to Patho or its
designated agent who shall thereafter perform the obligations of the Exchange
Agent. If outstanding certificates for shares of ATNG are not surrendered or the
payment for them not claimed prior to such date on which such payments would
otherwise escheat to or become the property of any governmental unit or agency,
the unclaimed items shall, to the extent permitted by abandoned property and
other applicable law, become the property of Patho (and to the extent not in its
possession shall be paid over to it), free and clear of all claims or interest
of any persons previously entitled to such items. Notwithstanding the foregoing,
neither the Exchange Agent nor any party to this Agreement shall be liable to
any holder of ATNG shares for any amount paid to any governmental unit or agency
having jurisdiction of such unclaimed item pursuant to the abandoned property or
other applicable law of such jurisdiction.
2.4 No fractional shares of Patho stock shall be issued as a result of
the Agreement. Shares shall be rounded to nearest whole share.
2.5 At the Effective Date, each holder of a certificate or certificates
representing common shares of ATNG, upon presentation and surrender of such
certificate or certificates to the Exchange Agent, shall be entitled to receive
the consideration set forth herein, except that holders of those shares as to
which dissenters' rights shall have been asserted and perfected pursuant to
Nevada law shall not be converted into shares of Patho common stock, but shall
represent only such dissenters' rights. Upon such presentation, surrender, and
exchange as provided in this Section 2.5, certificates representing shares of
ATNG previously held shall be canceled. Until so presented and surrendered, each
certificate or certificates which represented issued and outstanding shares of
ATNG at the Effective Date shall be deemed for all purposes to evidence the
right to receive the consideration set forth in Section 1.2 of this Agreement.
If the certificates representing shares of ATNG have been lost, stolen,
mutilated or destroyed, the Exchange Agent shall require the submission of an
indemnity agreement and may require the submission of a bond in lieu of such
certificate.
ARTICLE III
Representations, Warranties
and Covenants of ATNG
No representations or warranties are made by any director, officer,
employee or shareholder of ATNG as individuals, except as and to the extent
stated in this Agreement or in a separate written statement (the "ATNG
Disclosure Statement"), if any. ATNG hereby represents, warrants and covenants
to Patho except as stated in the ATNG Disclosure Statement, as follows:
3.1 ATNG is a corporation duly organized, validly existing and in good
standing under the laws of the State of Nevada, and has the corporate power and
authority to own or lease its properties and to carry on its business as it is
now being conducted. The Articles of Incorporation and Bylaws of ATNG are
complete and accurate, and the minute books of ATNG contain a record, which is
complete and accurate in all material respects, of all meetings, and all
corporate actions of the shareholders and board of directors of ATNG.
3.2 The aggregate number of shares which ATNG is authorized to issue is
50,000,000 Class A shares of common stock of which 27,836,186 shares are or will
be issued and outstanding on the Effective Date.
3.3 ATNG has complete and unrestricted power to enter into and, upon
the appropriate approvals as required by law, to consummate the transactions
contemplated by this Agreement.
3.4 Neither the making of nor the compliance with the terms and
provisions of this Agreement and consummation of the transactions contemplated
herein by ATNG will conflict with or result in a breach or violation of the
Articles of Incorporation or Bylaws of ATNG.
3.5 The execution, delivery and performance of this Agreement has been
duly authorized and approved by ATNG's Board of Directors.
3.6 ATNG will deliver to Patho consolidated audited financial
statements of ATNG, as of December 31, 2000, within 60 days of date hereof. All
such statements, herein sometimes called "ATNG Financial Statements," are
complete and correct in all material respects and, together with the notes to
these financial statements, present fairly the financial position and results of
operations of ATNG for the periods included. The said statements will have been
prepared in accordance with generally accepted accounting principles. Interim
unaudited financial statements of ATNG shall be provided within 5 days after
delivery of audited financial statements.
3.7 Since the dates of the ATNG Financial Statements, there have not
been any material adverse changes in the business or condition, financial or
otherwise of ATNG.
3.8 There are no legal proceedings or regulatory proceedings involving
material claims pending, or to the knowledge of the officers of ATNG, threatened
against ATNG or affecting any of its assets or properties, except an employee
dismissal suit has been filed by Xxxxx Xxxxx, Former CFO, and ATNG is not in any
material breach or violation of or default under any contract or instrument to
which ATNG is a party, and no event has occurred which with the lapse of time or
action by a third party could result in a material breach or violation of or
default by ATNG under any contract or other instrument to which ATNG is a party
or by which it or any of its properties may be bound or affected, or under its
respective Articles of Incorporation or Bylaws, nor is there any court or
regulatory order pending, applicable to ATNG.
3.9 All liability of ATNG has been properly provided for and is
adequate to comply with all regulatory requirements regarding same.
3.10 The representations and warranties of ATNG shall be true and
correct as of the date hereof and as of the Effective Date.
3.11 ATNG has no employee benefit plan, including non-qualified stock
awards, options, and consulting fees for independent contractors.
3.12 No representation or warranty by ATNG in this Agreement, the ATNG
Disclosure Statement or any certificate delivered pursuant hereto contains any
untrue statement of a material fact or omits to state any material fact
necessary to make such representation or warranty not misleading.
3.13 Intellectual Property. All trade names, inventions, discoveries,
ideas, research, engineering, methods, practices, processes, systems, formulae,
designs, drawings, products, projects, improvements, developments, know-how, and
trade secrets which are used in the conduct of ATNG's business, whether
registered or unregistered (collectively the "Proprietary Rights") are owned by
ATNG. To the knowledge of ATNG, ATNG created or developed such Proprietary
Rights and such Proprietary Rights are not subject to any restriction, lien,
encumbrance, right, title or interest in others. All of the foregoing
Proprietary Rights that are not in the public domain stand solely in the name of
ATNG and not in the name of any shareholder, director, officer, agent, partner
or employee or anyone else known to ATNG and none of the same have any right,
title, interest, restriction, lien or encumbrance therein or thereon or thereto.
To the knowledge of ATNG, ATNG's ownership and use of the Proprietary Rights do
not and will not infringe upon, conflict with or violate in any material respect
any patent, copyright, trade secret or other lawful proprietary right of any
other party, and no claim is pending or, to the knowledge of ATNG, threatened to
the effect that the operations of ATNG infringe upon or conflict with the
asserted rights of any other person under any of the Proprietary Rights, and to
the knowledge of ATNG there is no reasonable basis for any such claim (whether
or not pending or threatened). No claim is pending, or to the knowledge of each
Seller and ATNG, threatened to the effect that any such Proprietary Rights owned
or licensed by ATNG, or which ATNG otherwise has the right to use, is invalid or
unenforceable by ATNG and there is no reasonable basis for any such claim
(whether or not pending or threatened). ATNG has not granted or assigned to any
other person or entity any right to manufacture, have manufactured, assemble or
sell the products or proposed products.
3.14 a. Liens. Except as disclosed on Schedule 3.14(a), no one
other than Seller has any right, title, interest, lien, claim, security
interest, restriction or encumbrance in, on or to ATNG's assets.
b. Material Contracts. Other than as disclosed on Schedule
3.14(b), Seller does not have any material obligation, contract, agreement,
lease, sublease, commitment or understanding of any kind, nature or description,
oral or written, fixed or contingent due or to become due, existing or inchoate.
c. No Undisclosed Liabilities. ATNG does not have any material
liabilities or obligations, including, without limitation, contingent
liabilities for the performance of any obligation, except for (i) liabilities or
obligations which are disclosed or fully provided for in ATNG's Financial
Statements, (ii) liabilities or obligations disclosed in this Agreement or in
any Schedules to this Agreement, and (iii) liabilities not in excess of $25,000
in the aggregate.
d. Environmental Matters. (i) ATNG has not received notice of
any violation of or investigation relating to any environmental or pollution
law, regulation, or ordinance with respect to assets now or previously owned or
operated by ATNG that has not been fully and finally resolved; (ii) All permits,
licenses and other authorizations which are required under United States,
federal, state, provincial and local laws with respect to pollution or
protection of the environment ("Environmental Laws") relating to assets now
owned or operated by ATNG or any of its subsidiaries, including Environmental
Laws relating to actual or threatened emissions, discharges or releases of
pollutants, contaminants or hazardous or toxic materials or wastes
("Pollutants"), have been obtained and are effective, and, with respect to
assets previously owned or operated by ATNG, were obtained and were effective
during the time of ATNG's operation; (iii) To the knowledge of ATNG, no
conditions exist on, in or about the properties now or previously owned or
operated by ATNG or any third-party properties to which any Pollutants generated
by ATNG were sent or released that could give rise on the part of ATNG to
liability under any Environmental Laws, claims by third parties under
Environmental Laws or under common law or the occurrence of costs to avoid any
such liability or claim; and (iv) to the knowledge of ATNG, all operators of
ATNG's assets are in compliance with all terms and conditions of such
Environmental Laws, permits, licenses and authorizations, and are also in
compliance with all other limitations, restrictions, conditions, standards,
prohibitions, requirements, obligations, schedules and timetables contained in
such laws or contained in any regulation, code, plan, order, decree, judgment,
notice or demand letter issued, entered, promulgated or approved thereunder,
relating to ATNG's assets.
ARTICLE IV
Representations, Warranties and Covenants of
Pathobiotek Diagnostics Inc.
No representations or warranties are made by any director, officer,
employee or shareholder of Patho as individuals, except as and to the extent
stated in this Agreement or in a separate written statement.
Patho hereby represents, warrants and covenants to ATNG, except as
stated in the Patho Disclosure Statement, as follows:
4.1 Patho is a corporation duly organized, validly existing and in good
standing under the laws of the State of Texas, and has the corporate power and
authority to own or lease its properties and to carry on its business as it is
now being conducted. The Articles of Incorporation and Bylaws of Patho, copies
of which have been delivered to ATNG, are complete and accurate, and the minute
books of Patho contain a record, which is complete and accurate in all material
respects, of all meetings, and all corporate actions of the shareholders and
Board of Directors of Patho.
4.2 The aggregate number of shares which Patho is authorized to issue
is 20,000,000 shares (now being changed to 100,000,000 shares) of common stock
with a par value of $.0001 per share, of which 587,000 shares (post reverse
split) of such common stock will be issued and outstanding, fully paid and
non-assessable, prior to closing under this agreement. Patho has no outstanding
options, warrants or other rights to purchase, or subscribe to, or securities
convertible into or exchangeable for any shares of capital stock. No preferred
stock of Patho is outstanding.
4.3 Patho has complete and unrestricted power to enter into and, upon
the appropriate approvals as required by law, to consummate the transactions
contemplated by this Agreement.
4.4 Patho owns 100% of the issued and outstanding shares of Acquisition
at the date hereof.
4.5 Neither the making of nor the compliance with the terms and
provisions of this Agreement and consummation of the transactions contemplated
herein by Patho will conflict with or result in a breach or violation of the
Articles of Incorporation or Bylaws of Patho.
4.6 The execution of this Agreement has been duly authorized and
approved by Patho's Board of Directors.
4.7 Patho has delivered to ATNG financial statements of Patho dated
December 31, 2000. All such statements, herein sometimes called "Patho Financial
Statements" are (and will be) complete and correct in all material respects and,
together with the notes to these financial statements, present fairly the
financial position and results of operations of Patho of the periods indicated.
All statements of Patho will have been prepared in accordance with generally
accepted accounting principles.
4.8 Since the dates of the Patho Financial Statements, there have not
been any material adverse changes in the business or condition, financial or
otherwise, of Patho. Patho does not have any material liabilities or
obligations, secured or unsecured except as shown on updated financials (whether
accrued, absolute, contingent or otherwise).
4.9 Patho has delivered to ATNG a list and description of all pending
legal proceedings involving Patho, none of which will materially adversely
affect them, and, except for these proceedings, there are no legal proceedings
or regulatory proceedings involving material claims pending, or, to the
knowledge of the officers of Patho, threatened against Patho or affecting any of
its assets or properties, and Patho is not in any material breach or violation
of or default under any contract or instrument to which Patho is a party, and no
event has occurred which with the lapse of time or action by a third party could
result in a material breach or violation of or default by Patho under any
contract or other instrument to which Patho is a party or by which they or any
of their respective properties may be bound or affected, or under their
respective Articles of Incorporation or Bylaws, nor is there any court or
regulatory order pending, applicable to Patho.
4.10 Patho shall not enter into or consummate any transactions prior to
the Effective Date other than in the ordinary course of business and will pay no
dividend, or increase the compensation of officers and will not enter into any
agreement or transaction which would adversely affect its financial condition.
4.11 Patho is not a party to any contract performable in the future
except its land lease obligation which will not adversely affect it.
4.12 The representations and warranties of Patho shall be true and
correct as of the date hereof and as of the Effective Date.
4.13 Patho has delivered, or will deliver within two weeks of the date
of this Agreement, to ATNG, all of its corporate books and records for review,
true and correct copies of Patho tax returns since 1996, if any. Patho will also
deliver to ATNG on or before the Closing Date any reports relating to the
financial and business condition of Patho which occur after the date of this
Agreement and any other reports sent generally to its shareholders after the
date of this Agreement.
4.14 Patho has no employee benefit plan in effect at this time.
4.15 No representation or warranty by Patho in this Agreement, the
Patho Disclosure Statement or any certificate delivered pursuant hereto contains
any untrue statement of a material fact or omits to state any material fact
necessary to make such representation or warranty not misleading.
4.16 Patho agrees that all rights to indemnification now existing in
favor of the employees, agents, directors or officers of ATNG and its
subsidiaries, as provided in the Articles of Incorporation or Bylaws or
otherwise in effect on the date hereof shall survive the transactions
contemplated hereby in accordance with their terms, and Patho expressly assumes
such indemnification obligations of ATNG.
ARTICLE V
Obligations of the Parties Pending the Effective Date
5.1 This Agreement shall be duly submitted to the shareholders of ATNG
for the purpose of considering and acting upon this Agreement in the manner
required by law at a meeting of shareholders on a date selected by ATNG, such
date to be the earliest practicable date. The Board of Directors of ATNG,
subject to its fiduciary obligations to shareholders, shall use its best efforts
to obtain the requisite approval of ATNG shareholders of this Agreement and the
transactions contemplated herein. ATNG and Patho shall take all reasonable and
necessary steps and actions to comply with and to secure ATNG shareholder
approval of this Agreement and regulations of such states.
5.2 At all times prior to the Effective Date during regular business
hours, each party will permit the other to examine its books and records and the
books and records of its subsidiaries and will furnish copies thereof on
request. It is recognized that, during the performance of this Agreement, each
party may provide the other parties with information which is confidential or
proprietary information. During the term of this Agreement, and for four years
following the termination of this Agreement, the recipient of such information
shall protect such information from disclosure to persons, other than members of
its own or affiliated organizations and its professional advisers, in the same
manner as it protects its own confidential or proprietary information from
unauthorized disclosure, and not use such information to the competitive
detriment of the disclosing party. In addition, if this Agreement is terminated
for any reason, each party shall promptly return or cause to be returned all
documents or other written records of such confidential or proprietary
information, together with all copies of such writings and, in addition, shall
either furnish or cause to be furnished, or shall destroy, or shall maintain
with such standard of care as is exercised with respect to its own confidential
or proprietary information, all copies of all documents or other written records
developed or prepared by such party on the basis of such confidential or
proprietary information. No information shall be considered confidential or
proprietary if it is (a) information already in the possession of the party to
whom disclosure is made, (b) information acquired by the party to whom the
disclosure is made from other sources, or (c) information in the public domain
or generally available to interested persons or which at a later date passes
into the public domain or becomes available to the party to whom disclosure is
made without any wrongdoing by the party to whom the disclosure is made.
5.3 Patho and ATNG shall promptly provide each other with information
as to any significant developments in the performance of this Agreement, and
shall promptly notify the other if it discovers that any of its representations,
warranties and covenants contained in this Agreement or in any document
delivered in connection with this Agreement was not true and correct in all
material respects or became untrue or incorrect in any material respect.
5.4 All parties to this Agreement shall take all such action as may be
reasonably necessary and appropriate and shall use their best efforts in order
to consummate the transactions contemplated hereby as promptly as practicable.
ARTICLE VI
Procedure Exchange
6.1 At the Effective Date, the exchange shall be effected as set forth
in Texas Revised Statutes with common stock certificates of Patho being
exchanged for ATNG common stock certificates as and when submitted to the
transfer agent.
ARTICLE VII
Conditions Precedent to the
Consummation of the Exchange
The following are conditions precedent to the consummation of the
Agreement on or before the Effective Date:
7.1 ATNG shall have performed and complied with all of its respective
obligations hereunder which are to be complied with or performed on or before
the Effective Date and Patho and ATNG shall provide one another at the Closing
with a certificate to the effect that such party has performed each of the acts
and undertakings required to be performed by it on or before the Closing Date
pursuant to the terms of this Agreement.
7.2 This Agreement, the transactions contemplated herein shall have
been duly and validly authorized, approved and adopted, at meetings of the
shareholders of ATNG duly and properly called for such purpose in accordance
with the applicable laws.
7.3 No action, suit or proceeding shall have been instituted or shall
have been threatened before any court or other governmental body or by any
public authority to restrain, enjoin or prohibit the transactions contemplated
herein, or which might subject any of the parties hereto or their directors or
officers to any material liability, fine, forfeiture or penalty on the grounds
that the transactions contemplated hereby, the parties hereto or their directors
or officers, have violated any applicable law or regulation or have otherwise
acted improperly in connection with the transactions contemplated hereby, and
the parties hereto have been advised by counsel that, in the opinion of such
counsel, such action, suit or proceeding raises substantial questions of law or
fact which could reasonably be decided adversely to any party hereto or its
directors or officers.
7.4 All actions, proceedings, instruments and documents required to
carry out this Agreement and the transactions contemplated hereby and the form
and substance of all legal proceedings and related matters shall have been
approved by counsel for ATNG and Patho.
7.5 The representations and warranties made by ATNG and Patho in this
Agreement shall be true as though such representations and warranties had been
made or given on and as of the Effective Date, except to the extent that such
representations and warranties may be untrue on and as of the Effective Date
because of (1) changes caused by transactions suggested or approved in writing
by ATNG or (2) events or changes (which shall not, in the aggregate, have
materially and adversely affected the business, assets, or financial condition
of Patho or ATNG during or arising after the date of this Agreement.)
7.6 ATNG shall have furnished Patho with:
(1) a certified copy of a resolution or resolutions duly adopted by the
Board of Directors of ATNG approving this Agreement and the transactions
contemplated by it and directing the submission thereof to a vote of the
shareholders of ATNG;
(2) a certified copy of a resolution or resolutions duly adopted by a
majority of all of the classes of outstanding shares of ATNG capital stock
approving this Agreement and the transactions contemplated by it;
(3) an agreement from each "affiliate" of ATNG as defined in the rules
adopted under the Securities Act of 1933, as amended, to the effect that (a) the
affiliate is familiar with SEC Rules 144 and 145; (b) none of the shares of
Patho common stock will be transferred by or through the affiliate in violation
of the Federal Securities Laws; (c) the affiliate will not sell or in any way
reduce his risk relative to any Patho common stock received pursuant to this
Agreement until such time as financial results covering at least 30 days of
post-closing date combined operations shall have been published by Patho on SEC
Form 10-Q or otherwise; and (d) the affiliate acknowledges that Patho is under
no obligation to register the sale, transfer, or the disposition of Patho common
stock by the affiliate or to take any action necessary in order to make an
exemption from registration available to the affiliate, but understands that
Patho will satisfy the public information requirements of Rules 144 and 145
during the three-year period following the Closing Date.
(4) Each shareholder of ATNG shall sign an Exchange Agreement as
contained on Schedule A.
7.7 Patho shall furnish ATNG with a certified copy of a resolution or
resolutions duly adopted by the Board of Directors of Patho, approving this
Agreement and the transactions contemplated by it.
ARTICLE VIII
Termination and Abandonment
8.1 Anything contained in this Agreement to the contrary
notwithstanding, the Agreement may be terminated and abandoned at any time
(whether before or after the approval and adoption thereof by the shareholders
of ATNG) prior to the Effective Date:
(a) By mutual consent of ATNG and Patho;
(b) By ATNG, or Patho, if any condition set forth in Article VII
relating to the other party has not been met or has not been waived;
(c) By ATNG, or Patho, if any suit, action or other proceeding shall be
pending or threatened by the federal or a state government before any court or
governmental agency, in which it is sought to restrain, prohibit or otherwise
affect the consummation of the transactions contemplated hereby;
(d) By any party, if there is discovered any material error, misstate-
ment or omission in the representations and warranties of another party;
(e) By any party if the Agreement Effective Date is not within 30 days
from the date hereof; or
(f) ATNG shall have the right to assign this agreement to any other
entity, at any time, subject to the due diligence terms herein.
8.2 Any of the terms or conditions of this Agreement may be waived at
any time by the party which is entitled to the benefit thereof, by action taken
by its Board of Directors provided; however, that such action shall be taken
only if, in the judgment of the Board of Directors taking the action, such
waiver will not have a materially adverse effect on the benefits intended under
this Agreement to the party waiving such term or condition.
ARTICLE IX
Termination of Representation and
Warranties and Certain Agreements
9.1 The respective representations and warranties of the parties hereto
shall expire with, and be terminated and extinguished by consummation of the
Agreement; provided, however, that the covenants and agreements of the parties
hereto shall survive in accordance with their terms.
ARTICLE X
Miscellaneous
10.1 This Agreement embodies the entire agreement between the parties,
and there have been and are no agreements, representations or warranties among
the parties other than those set forth herein or those provided for herein.
10.2 To facilitate the execution of this Agreement, any number of
counterparts hereof may be executed, and each such counterpart shall be deemed
to be an original instrument, but all such counterparts together shall
constitute but one instrument. Counterparts shall include the execution of the
Exchange Agreement and Representations by all shareholders.
10.3 All parties to this Agreement agree that if it becomes necessary
or desirable to execute further instruments or to make such other assurances as
are deemed necessary, the party requested to do so will use its best efforts to
provide such executed instruments or do all things necessary or proper to carry
out the purpose of this Agreement.
10.4 This Agreement may be amended upon approval of the Board of
Directors of each party provided that the shares issuable hereunder shall not be
amended without approval of the requisite shareholders of ATNG.
10.5 Any notices, requests, or other communications required or
permitted hereunder shall be delivered personally or sent by overnight courier
service, fees prepaid, addressed as follows:
To ATNG:
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
To Pathobiotek Diagnostics Inc.:
4800 Research Forest Drive
The Woodlands, TX 77381- 4142
or such other addresses as shall be furnished in writing by any party, and any
such notice or communication shall be deemed to have been given as of the date
received.
10.6 No press release or public statement will be issued relating to
the transactions contemplated by this Agreement without prior approval of ATNG
and Patho. However, either ATNG or Patho may issue at any time any press release
or other public statement it believes on the advice of its counsel it is
obligated to issue to avoid liability under the law relating to disclosures, but
the party issuing such press release or public statement shall make a reasonable
effort to give the other party prior notice of and opportunity to participate in
such release or statement.
IN WITNESS WHEREOF, the parties have set their hands and seals this
_____ day of August, 2001.
ATNG, Inc.
By:
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Director
Attest:
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Secretary
Pathobiotek Diagnostics Inc.
By:
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President
Attest:
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Secretary
ATNG Acquisition, Inc.
By:
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President
Attest:
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Secretary
ATNG, INC. SHAREHOLDERS (by signature below or pursuant to execution of the
Exchange Agreement and Representations incorporating this Agreement by
reference.)
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EXCHANGE AGREEMENT AND REPRESENTATIONS
Gentlemen:
I understand that ATNG, Inc. ("ATNG"), a Nevada corporation is offering
to exchange its shares of stock of the Company, for shares of stock of
Pathobiotek Diagnostics Inc. ("Patho"), a Texas corporation (the "Company"),
pursuant to a Plan and Agreement of Reorganization ("Plan") between the two
companies dated August __, 2001.
I hereby offer to exchange all my shares of stock of ATNG, a Nevada
corporation, for an identical number of shares of Patho, a Texas corporation,
and tender my shares of ATNG herewith, and upon acceptance by you, agree to
become a shareholder of the Company. In order to induce the Company to accept my
offer, I advise you as follows; and acknowledge:
1. Corporate Documents. Receipt of copies of Articles, By-Laws, Plan
and Agreement of Reorganization (the "Plan"), and 10QSB for July 31, 2001,
including financial statements of ATNG and such other documents as I have
requested: I hereby acknowledge that I have received the documents (as may be
supplemented from time to time) relating to the Company and that I have
carefully read the information and that I understand all of the material
contained therein, and agree to the terms, and understand the risk factors as
described therein.
2. Availability of Information. I hereby acknowledge that the Company
has made available to me the opportunity to ask questions of, and receive
answers from the Company and any other person or entity acting on its behalf,
concerning the terms and conditions of the Plan and the information contained in
the corporate documents and to obtain any additional information, to the extent
the Company possesses such information or can acquire it without unreasonable
effort or expense, necessary to verify the accuracy of the information provided
by the Company and any other person or entity acting on its behalf.
3. Representations and Warranties. I represent and warrant to the
Company (and understand that it is relying upon the accuracy and completeness of
such representations and warranties in connection with the availability of an
exemption for the offer and exchange of the shares from the registration
requirements of applicable federal and state securities laws) that:
(a) RESTRICTED SECURITIES.
(I) I understand that the shares have not been
registered under the Securities Act of 1933, as amended (The Act), or any state
securities laws.
(II) I understand that if this exchange agreement is
accepted and the shares are issued to me, I cannot sell or otherwise dispose of
the shares unless the shares are registered under the Act or the state
securities laws or exemptions therefrom are available (and consequently, that I
must bear the economic risk of the investment for an indefinite period of time):
(III) I understand that the Company has no obligation
now or at any time to register the shares under the Act or the state securities
laws or obtain exemptions therefrom, except as stated in the exchange agreement.
(IV) I understand that the Company will restrict the
transfer of the shares in accordance with the foregoing representations.
(V) There is a limited public market for the common
stock of Patho, but no market for any other Patho securities, and there is no
certainty that such a market will ever develop or be maintained. There can be no
assurance that I will be able to sell or dispose of the Shares. Moreover, no
assignment, sale, transfer, exchange or other disposition of the Shares can be
made other than in accordance with all applicable securities laws. It is
understood a transferee may at a minimum be required to fulfill the investor
suitability requirements established by the Company, or registration may be
required.
(b) LEGEND.
I agree that any certificate representing the
shares will contain and be endorsed with the following, or a substantially
equivalent, LEGEND;
"This share certificate has been acquired pursuant to
an investment representation by the holder and shall
not be sold, pledged, hypothecated or donated or
other wise transferred except upon the issuance of a
favorable opinion by its counsel and the submission
to the Company of other evidence satisfactory to and
as required by counsel to the Company, that any such
transfer will not violate the Securities Act of 1933,
as amended, and applicable state securities laws.
These shares are not and have not been registered in
any jurisdiction."
(c) OWN ACCOUNT.
I am the only party in interest with respect to this
exchange offer, and I am acquiring the shares for investment for my own account
for the long-term investment only, and not with an intent to resell,
fractionalize, divide, or redistribute all or any part of my interest to any
other person.
(d) AGE: CITIZENSHIP.
I am at least twenty-one years old and a citizen of
the United States.
(e) ACCURACY OF INFORMATION.
All information which I have provided to the Company
concerning my financial position and knowledge of financial and business matters
is correct and complete as of the date set forth at the end hereof, and if there
should be any material change in such information prior to acceptance of this
exchange offer by the Company, I will immediately provide the Company with such
information.
4. Exchange Procedure. I understand that this exchange is subject to
each of the following terms and conditions:
(a) The Company may reject this exchange for legal reasons set
forth in the Plan and Agreement of Reorganization, and this exchange shall
become binding upon the Company only when accepted, in writing, by the Company.
(b) This offer may not be withdrawn by me.
(c) The share certificates to be issued and delivered pursuant
to this exchange will be issued in the name of and delivered to the undersigned.
5. Suitability. I hereby warrant and represent:
(a) That I can afford a complete loss of the investment and
can afford to hold the securities being received hereunder for an indefinite
period of time.
(b) That I consider this investment a suitable investment, and
(c) That I have had prior experience in financial matters and
investments.
6. I have been furnished and have carefully read the Plan and
information relating to the Company, including this form of Exchange Agreement.
I am aware that:
(a) There are substantial risks incident to the ownership of
Shares from the Company, and such investment is speculative and involves a high
degree of risk of loss by me of my entire investment in the Company;
(b) No federal or state agency has passed upon the Shares or
made any finding or determination concerning the fairness of this investment;
(c) The books and records of the Company will be reasonably
available for inspection by me and/or my investment advisors, if any, at the
Company's place of business.
(d) All assumptions and projections set forth in any documents
provided by the Company have been included therein for purposes of illustration
only, and no assurance is given that actual results will correspond with the
results contemplated by the various assumptions set forth therein.
(e) The Company is in the development stage, and its proposed
operations are subject to all of the risk inherent in the establishment of a new
business enterprise, including a limited operating history. The unlikelihood of
the success of the Company must be considered in light of the problems,
expenses, difficulties, complications and delays frequently encountered in
connection with the formation and operation of a new business and the
competitive environment in which the Company will operate.
7. I acknowledge that I have been advised to consult my own attorney
and investment advisor concerning the investment.
8. I acknowledge that the investment in the Company is an illiquid
investment. In particular, I recognize that:
(a) Due to restrictions described below, the lack of any
market existing or to exist for these Shares, in the event I should attempt to
sell my shares in the Company, my investment will be highly illiquid and,
probably must be held indefinitely.
(b) I must bear the economic risk of investment in the shares
for an indefinite period of time, since the Shares have not been registered
under the Securities Act of 1933, as amended, and issuance is made in reliance
upon Section 4(2) and 4(6) of said Act and/or Rules 501-506 of Regulation D
under the Act, whichever is applicable. Therefore, the Shares cannot be offered,
sold, transferred, pledged, or hypothecated to any person unless either they are
subsequently registered under said Act or an exemption from such registration is
available and the favorable opinion of counsel for the Company to that effect is
obtain, which is not anticipated. Further, unless said Shares are registered
with the securities commission of the state in which offered and sold, I may not
resell, hypothecate, transfer, assign or make other disposition of said Shares
except in a transaction exempt or exempted from the registration requirement of
the securities act of such state, and that the specific approval of such sales
by the securities regulatory body of the state is required in some states.
(c) My right to transfer my Shares will also be restricted by
the legend endorsed on the certificates.
9. I represent and warrant to the Company that:
(a) I have carefully reviewed and understand the risks of, and
other considerations relating to, the exchange of the shares, including the
risks of total loss in the event the company's business is unsuccessful.
(b) I and my investment advisors, if any, have been furnished
all materials relating to the Company and its proposed activities the Plan, the
Plan of shares, or anything which they have requested and have been afforded the
opportunity to obtain any additional information necessary to verify the
accuracy of any representations about the company;
(c) The Company has answered all inquiries that I and my
investment advisors, if any, have put to it concerning the Company and its
proposed activities and the Plan and exchange of the Shares;
(d) Neither I nor my investment advisors, if any, have been
furnished any offering literature other than the documents attached as exhibits
thereto and I and my investment advisors, if any, have relied only on the
information contained in such exhibits and the information, as described in
subparagraphs (b) and (c) above, furnished or made available to them by the
Company;
(e) I am acquiring the Shares for which I hereby subscribe for
my own account, as principal, for investment purposes only and with a view to
the resale of distribution of all or any part of such Shares, and that I have no
present intention, agreement or arrangement to divide my participation with
others or to resell, transfer or otherwise dispose of all or any part of the
Shares subscribed for unless and until I determine, at some future date, that
changed circumstances, not in contemplation at the time of this exchange, makes
such disposition advisable;
(f) I, the undersigned, if on behalf of a corporation,
partnership, trust, or other form of business entity, affirm that: it is
authorized and otherwise duly qualified to purchase and hold Shares in the
Company; recognize that the information under the caption as set forth in (a)
above related to investments by an individual and does not address the federal
income tax consequences of an investment by any of the aforementioned entities
and have obtained such additional tax advice that I have deemed necessary; such
entity has its principal place of business as set forth below; and such entity
has not been formed for the specific purpose of acquiring Shares in the Company.
(g) I have adequate means of providing for my current needs
and personal contingencies and have no need for liquidity in this investment;
and
(h) The information provided by the Company is confidential
and non-public and I agree that all such information shall be kept in confidence
by it and neither used by it to its personal benefit (other than in connection
with its exchange for the Shares) nor disclosed to any third party for any
reason; provided, however, that this obligation shall not apply to any such
information which (i) is part of the public knowledge or literature and readily
accessible at the date hereof; (ii) becomes part of the public knowledge or
literature and readily accessible by publication (except as a result of a breach
of these provisions); or (iii) is received from third parties (except those
parties who disclose such information in violation of any confidentiality
agreements including, without limitation, any Exchange Agreement they may have
with the Company).
10. I hereby adopt, accept, and agree to be bound by all the terms and
conditions of the Plan, and by all of the terms and conditions of the Articles
of Incorporation, and amendments thereto, and By-Laws of the Company. Upon
acceptance of this Exchange Agreement by the Company, I shall become a
shareholder for all purposes, and the shares exchanged for shall be issued.
11. The Exchange Agreement, upon acceptance by the Company, shall be
binding upon the heirs, executors, administrators, successors, and assigns of
mine.
12. I further represent and warrant:
(a) That I hereby agree to indemnify the Company and hold the
Company harmless from and against any and all liability, damage, cost, or
expense incurred on account of or arising out of:
(I) Any inaccuracy in my declarations, representa-
tions, and warranties hereinabove set forth;
(II) The disposition of any of the shares which I
will receive, contrary to my foregoing declarations, representations, and
warranties; and
(III) Any action, suit or proceeding based upon (1)
the claim that said declarations, representations, or warranties were inaccurate
or misleading or otherwise cause for obtaining damages or redress from the
Company; or (2) the disposition of any of the shares or any part thereof.
13. This Agreement shall be construed in accordance with and governed
by the laws of the State of Texas, except as to the manner in which the
subscriber elects to take title to the shares in the Company which shall be
construed in accordance with the State of his principal residence.
14. Upon request of the Company, I shall provide a sworn and signed
copy of my current financial statement.
15. Restrictions. This exchange is personal to the person/entity whose
name and address appear below. It may not be sold, transferred, assigned, or
otherwise disposed of to any other person, natural or artificial.
16. Conditions. This Exchange Agreement shall become binding upon the
Issuer and Investor only when accepted, in writing, by the Board of Directors of
the Issuer.
17. I hereby agree to convey title to all of my interest in all my
shares of ATNG, a Delaware corporation, to Patho, in exchange for an identical
number of shares of Patho, a Texas corporation.
DATED THIS DAY OF 2001.
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________________________________
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NAME OF PURCHASER/EXCHANGOR Tax I.D./SSN
--------------------------------
Signature of Purchaser/Exchangor:
--------------------------------
Residence Address
(----)--------------------------
Business Telephone
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Mailing Address (if different)
THIS EXCHANGE OFFER IS ACCEPTED THIS ______ day of ________________, 2001.
Pathobiotek Diagnostics Inc., a Texas Corporation
by:
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Its:
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SUBSCRIBER ACKNOWLEDGEMENT FORM TO BE USED
IF EXCHANGOR IS AN INDIVIDUAL
STATE OF __________________ )
) SS.
COUNTY OF ______________ )
On this day of , 2001, before me, the undersigned Notary Public, duly
commissioned and sworn, personally appeared known to me to be the person(s)
whose name is (or whose names are) subscribed to the within instrument, and
acknowledged that he (or she or they) executed the same.
IN WITNESS WHEREOF, I have hereunto set my and affixed my official seal
the day and year in the certificate above written.
My Commission expires:
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Notary Public
--------------------------------
Address
--------------------------------
NOTARY: Please complete state, county, date and names of all persons signing,
and affix notarial seal.
SUBSCRIBER ACKNOWLEDGMENT FORM TO BE USED
IF EXCHANGOR IS A CORPORATION, PARTNERSHIP OR TRUST
STATE OF __________________ )
) SS.
COUNTY OF ________________ )
On this ___day of __________, 2001, before me, the undersigned Notary
Public, duly commissioned and sworn, personally appeared and known to me to be
the person(s) whose name is (or whose names are) subscribed to the within
instrument, and acknowledged that he (or she or they) executed the same.
IN WITNESS WHEREOF, I have hereunto set my and affixed my official seal
the day and year in the certificate above written.
My Commission expires:
--------------------------------
--------------------------------
Notary Public
--------------------------------
Address
--------------------------------
NOTARY: Please complete state, county, date and names of all persons signing,
and affix notarial seal.
CERTIFICATE
I hereby certify that:
(A) The Corporation, Partnership or Trust designated below has been
duly formed and is validly existing, with full power and authority to invest in
.
(B) The Exchange Agreement and representations of the Corporation,
Partnership or Trust have each been duly and validly authorized, executed and
delivered by the Corporation, Partnership or Trust, and, upon the acceptance of
such exchange by , will each constitute the valid, binding and enforceable
agreement of the Corporation, Partnership, or Trust, as appropriate.
DATED THIS DAY OF , 2001.
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Name of Corporation, Signature of Authorized Officer,
Partnership or Trust Partner, or Trustee
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State of Incorporation of Print Name/Title of Authorized
Organization Officer, Partner, or Trustee
IF CORPORATION PLEASE ATTEST:
Street Address
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Corporate Secretary or Other
City, State, Zip Code Officer
