AGREEMENT AND PLAN OF TENDER OFFER
BY AND AMONG
PARA MAS INTERNET, INC.
A NEVADA CORPORATION
AND
AMERIGROUP, INC.
A NEVADA CORPORATION
Effective as of July 8, 2003
AGREEMENT AND PLAN OF TENDER OFFER
THIS AGREEMENT AND PLAN OF TENDER OFFER (this "Agreement") is made and
entered into this 8th day of July, 2003, by and among Para Mas Internet, Inc., a
Nevada corporation ("PMI"), and AmeriGroup, Inc., a Nevada corporation,
("AmeriGroup").
PREMISES
A. This Agreement provides for the Tender Offer by PMI of 100% of the
issued and outstanding capital stock of AmeriGroup.
B. The board of directors of AmeriGroup with respect to AmeriGroup, and the
board or directors of PMI with respect to PMI, have determined, subject to the
terms and conditions set forth in this Agreement, that the tender offer
contemplated hereby is desirable and in the best interests of the stockholders
of AmeriGroup and PMI. This Agreement is being entered into for the purpose of
setting forth the terms and conditions of the proposed tender offer.
AGREEMENT
NOW, THEREFORE, on the stated premises and for and in consideration of the
mutual covenants and agreements hereinafter set forth and the mutual benefits to
the parties to be derived herefrom, it is hereby agreed as follows:
ARTICLE I
REPRESENTATIONS, COVENANTS AND WARRANTIES OF AMERIGROUP
As an inducement to and to obtain the reliance of PMI, AmeriGroup
represents and warrants as follows:
SECTION 1.1 ORGANIZATION. AmeriGroup 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 is duly authorized, qualified, franchised and
licensed under all applicable laws, regulations, ordinances and orders of public
authorities to own all of its properties and assets and to carry on its business
in all material respects as it is now being conducted, including qualification
to do business as a foreign corporation in the jurisdiction in which the
character and location of the assets owned by it or the nature of the business
transacted by it requires qualification. Included in Schedule 1.1 are complete
and correct copies of the articles of incorporation, bylaws and amendments
thereto of AmeriGroup as in effect on the date hereof. The execution and
delivery of this Agreement do not and the consummation of the transactions
contemplated by this Agreement in accordance with the terms hereof will not
violate any provision of AmeriGroup's articles of incorporation or bylaws.
AmeriGroup has full power, authority and legal right and has taken all action
required by law, its articles of incorporation, its bylaws or otherwise to
authorize the execution and delivery of this Agreement.
SECTION 1.2 CAPITALIZATION. All issued and outstanding shares of AmeriGroup
are legally issued, fully paid and nonassessable and are not issued in violation
of the preemptive or other rights of any person. AmeriGroup has no other
securities, warrants or options issued other than as set forth in the Schedule
1.2.
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SECTION 1.3 SUBSIDIARIES. AmeriGroup does not have any subsidiaries other
than MobileScan, Inc., a Nevada corporation.
SECTION 1.4 FINANCIAL STATEMENTS. Included in Schedule 1.4 is AmeriGroup's
financial statements. Relevant thereto:
(a) the AmeriGroup balance sheet presents fairly as of its date the
financial condition of AmeriGroup and AmeriGroup does not have, as of the date
of such balance sheet, except as noted and to the extent reflected or reserved
against therein, any liabilities or obligations (absolute or contingent) which
should be reflected in a balance sheet or the notes thereto and all material
assets reflected therein are properly reported and present fairly the value of
the assets of AmeriGroup, in accordance with generally accepted accounting
principles;
(b) AmeriGroup has no material liabilities with respect to the payment of
any provincial, federal, state, county, local or other taxes (including any
deficiencies, interest or penalties), except for taxes accrued but not yet due
and payable;
(c) AmeriGroup has filed or is preparing to file all, state, federal and
local income tax returns required to be filed by it from inception to the date
hereof, if any;
(d) the books and records, financial and others, of AmeriGroup are in all
material respects complete and correct and have been maintained in accordance
with good business accounting practices; and
(e) except as and to the extent disclosed in the most recent AmeriGroup
balance sheet and schedules, AmeriGroup has no material liabilities contingent
or otherwise, whether direct or indirect, matured or unmatured.
SECTION 1.5 INFORMATION. The information concerning AmeriGroup set
forth in this Agreement and in the AmeriGroup Schedules is complete and accurate
in all material respects and does not contain any untrue statement of a material
fact or omit to state a material fact required to make the statements made, in
light of the circumstances under which they were made, not misleading.
SECTION 1.6 LIST OF SHAREHOLDERS. Attached hereto as Schedule 1.6 is a list
of shareholders who in the aggregate own 100% of the issued and outstanding
capital shares of AmeriGroup.
SECTION 1.7 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as set forth in
this Agreement, the AmeriGroup Schedules, or as otherwise disclosed to PMI:
(a) there has not been: (i) any material adverse change in the
business, operations, properties, assets or condition of AmeriGroup; or (ii) any
damage, destruction or loss to AmeriGroup (whether or not covered by insurance)
materially and adversely affecting the business, operations, properties, assets
or condition of AmeriGroup;
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(b) AmeriGroup has not: (i) amended its articles of incorporation or
bylaws; (ii) declared or made, or agreed to declare or make, any payment of
dividends or distributions of any assets of any kind whatsoever to stockholders
or purchased or redeemed or agreed to purchase or redeem any of its capital
stock; (iii) waived any rights of value which in the aggregate are extraordinary
or material considering the business of AmeriGroup; (iv) made any material
change in its method of management, operation or accounting; (v) entered into
any other material transaction; (vi) made any accrual or arrangement for or
payment of bonuses or special compensation of any kind or any severance or
termination pay to any present or former officer or employee; (vii) increased
the rate of compensation payable or to become payable by it to any of its
officers or directors or any of its employees whose monthly compensation exceeds
$5,000; or (viii) made any increase in any profit sharing, bonus, deferred
compensation, insurance, pension, retirement or other employee benefit plan,
payment or arrangement made to, for, or with its officers, directors or
employees;
(c) AmeriGroup has not: (i) granted or agreed to grant any options,
warrants or other rights for its stocks, bonds or other corporate securities
calling for the issuance thereof; (ii) borrowed or agreed to borrow any funds or
incurred or become subject to, any material obligation or liability (absolute or
contingent) except liabilities incurred in the ordinary course of business;
(iii) paid any material obligation or liability (absolute or contingent) other
than current liabilities reflected in or shown on the most recent AmeriGroup
balance sheet and current liabilities incurred since that date in the ordinary
course of business; (iv) sold or transferred, or agreed to sell or transfer, any
of its assets, properties or rights (except assets, properties or rights not
used or useful in its business which, in the aggregate have a value of less than
$5,000); (v) made or permitted any amendment or termination of any contract,
agreement or license to which it is a party if such amendment or termination is
material, considering the business of AmeriGroup; or (vi) issued, delivered or
agreed to issue or deliver any stock, bonds or other corporate securities,
including debentures (whether authorized and unissued or held as treasury
stock); and
(d) to the best knowledge of AmeriGroup, it has not become subject to any
law or regulation which materially and adversely affects, or in the future may
adversely affect, the business, operations, properties, assets or condition of
AmeriGroup.
SECTION 1.8 TITLE AND RELATED MATTERS. AmeriGroup has good and
marketable title to and is the sole and exclusive owner of all of its
properties, inventory, interests in properties and assets, real and personal
(collectively, the "Assets") which are reflected in the AmeriGroup balance
sheet or acquired after that date (except properties, interests in properties
and assets sold or otherwise disposed of since such date in the ordinary course
of business), free and clear of all liens, pledges, charges or encumbrances
except: (a) statutory liens or claims not yet delinquent; and (b) such
imperfections of title and easements as do not and will not, materially detract
from or interfere with the present or proposed use of the properties subject
thereto or affected thereby or otherwise materially impair present business
operations on such properties. Except as set forth in the AmeriGroup Schedules,
AmeriGroup owns free and clear of any liens, claims, encumbrances, royalty
interests or other restrictions or limitations of any nature whatsoever any and
all procedures, techniques, marketing plans, business plans, methods of
management or other
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information utilized in connection with AmeriGroup's
business. No third party has any right to, and AmeriGroup has not received any
notice of infringement of or conflict with asserted rights of others with
respect to any product, technology, data, trade secrets, know-how, proprietary
techniques, trademarks, service marks, trade names or copyrights which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a materially adverse effect on the business, operations,
financial conditions or income of AmeriGroup or any material portion of its
properties, assets or rights.
SECTION 1.9 LITIGATION AND PROCEEDINGS. Other than possible complaints made
to state and/or other regulatory authorities by Xxxxxx Xxxxxxx, to the best of
AmeriGroup's knowledge and belief, there are no actions, suits, proceedings or
investigations pending or threatened by or against AmeriGroup or affecting
AmeriGroup or its properties, at law or in equity, before any court or other
governmental agency or instrumentality, domestic or foreign or before any
arbitrator of any kind that would have a material adverse effect on the
business, operations, financial condition or income of AmeriGroup. AmeriGroup
does not have any knowledge of any default on its part with respect to any
judgment, order, writ, injunction, decree, award, rule or regulation of any
court, arbitrator or governmental agency or instrumentality or of any
circumstances which, after reasonable investigation, would result in the
discovery of such a default.
SECTION 1.10 CONTRACTS.
(a) Except as included in Schedule 1.10, there are no material
contracts, agreements, franchises, license agreements or other commitments to
which AmeriGroup is a party or by which it or any of its assets, products,
technology or properties are bound;
(b) except as included or described in the AmeriGroup Schedules or reflected
in the most recent AmeriGroup balance sheet, AmeriGroup is not a party to any
oral or written: (i) contract for the employment of any officer or employee
which is not terminable on thirty (30) days or less notice; (ii) profit sharing,
bonus, deferred compensation, stock option, severance pay, pension benefit or
retirement plan, agreement or arrangement covered by Title IV of the Employee
Retirement Income Security Act, as amended; (iii) agreement, contract or
indenture relating to the borrowing of money; (iv) guaranty of any obligation,
other than one on which AmeriGroup is a primary obligor, for collection and
other guaranties of obligations, which, in the aggregate do not exceed more than
one year or providing for payments in excess of $5,000 in the aggregate; (v)
consulting or other similar contracts with an unexpired term of more than one
year or providing for payments in excess of $5,000 in the aggregate; (vi)
collective bargaining agreements; (vii) agreement with any present or former
officer or director of AmeriGroup; or (viii) contract, agreement or other
commitment involving payments by it of more than $5,000 in the aggregate; and
(c) to AmeriGroup's knowledge, all contracts, agreements, franchises,
license agreements and other commitments to which AmeriGroup is a party or by
which its properties are bound and which are material to the operations of
AmeriGroup taken as a whole, are valid and enforceable by AmeriGroup in all
respects, except as limited by
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bankruptcy and insolvency laws and by other laws
affecting the rights of creditors generally.
SECTION 1.11 MATERIAL CONTRACT DEFAULTS. To the best of AmeriGroup's
knowledge and belief, AmeriGroup is not in default in any material respect under
the terms of any outstanding contract, agreement, lease or other commitment
which is material to the business, operations, properties, assets or condition
of AmeriGroup, and there is no event of default in any material respect under
any such contract, agreement, lease or other commitment in respect of which
AmeriGroup has not taken adequate steps to prevent such a default from
occurring.
SECTION 1.12 NO CONFLICT WITH OTHER INSTRUMENTS. The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, or
constitute an event of default under, any material indenture, mortgage, deed of
trust or other material contract, agreement or instrument to which AmeriGroup is
a party or to which any of its properties or operations are subject.
SECTION 1.13 GOVERNMENTAL AUTHORIZATIONS. To the best of AmeriGroup's
knowledge, AmeriGroup has all licenses, franchises, permits or other
governmental authorizations legally required to enable AmeriGroup to conduct its
business in all material respects as conducted on the date hereof. Except for
compliance with provincial, federal and state securities and corporation laws,
as hereinafter provided, no authorization, approval, consent or order of, or
registration, declaration or filing with, any court or other governmental body
is required in connection with the execution and delivery by AmeriGroup of this
Agreement and the consummation by AmeriGroup of the transactions contemplated
hereby.
SECTION 1.14 COMPLIANCE WITH LAWS AND REGULATIONS. To the best of
AmeriGroup's knowledge, AmeriGroup has complied with all applicable statutes
and regulations of any provincial, federal, state or other governmental entity
or agency thereof, except to the extent that noncompliance would not materially
and adversely affect the business, operations, properties, assets or condition
of AmeriGroup or would not result in AmeriGroup's incurring any material
liability.
SECTION 1.15 APPROVAL OF AGREEMENT The board of directors of AmeriGroup has
authorized the execution and delivery of this Agreement by AmeriGroup and has
approved the transactions contemplated hereby.
SECTION 1.16 MATERIAL TRANSACTIONS OR AFFILIATIONS. There exists no
material contract, agreement or arrangement between AmeriGroup or any
predecessor and any person who was at the time of such contract, agreement or
arrangement an officer, director or person owning of record, or known by
AmeriGroup to own beneficially, ten percent (10%) or more of the issued and
outstanding common shares of AmeriGroup and which is to be performed in whole or
in part after the date hereof. In all of such transactions, the amount paid or
received, whether in cash, in services or in kind, has been during the full term
thereof, and is required to be during the unexpired portion of the term thereof,
no less favorable to AmeriGroup than terms available from otherwise unrelated
parties in arms-length transactions. There are no commitments by AmeriGroup,
whether written or oral, to lend any funds to, borrow any money from or enter
into any other material transactions with, any such affiliated person.
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SECTION 1.17 LABOR RELATIONS. AmeriGroup has never had a work stoppage
resulting from labor problems. To the best knowledge of AmeriGroup, no union or
other collective bargaining organization is organizing or attempting to organize
any employee of AmeriGroup.
SECTION 1.20 SHAREHOLDERS. AmeriGroup has a total of approximately 90
shareholders. AmeriGroup believes that over 80 of its shareholders are
accredited investors as defined in Rule 501(a) promulgated under the Securities
Act of 1933.
ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES OF PMI
As an inducement to, and to obtain the reliance of AmeriGroup, PMI
represents and warrants as follows:
SECTION 2.1 ORGANIZATION. PMI 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 is duly authorized, qualified, franchised and licensed under
all applicable laws, regulations, ordinances and orders of public authorities to
own all of its properties and assets and to carry on its business in all
material respects as it are now being conducted. The execution and delivery of
this Agreement does not and the consummation of the transactions contemplated by
this Agreement in accordance with the terms hereof will not, violate any
provision of PMI's articles of incorporation or bylaws. PMI has taken all
action required by law, its articles of incorporation, its bylaws or otherwise
to authorize the execution and delivery of this Agreement. PMI has full power,
authority and legal right and has taken all action required by law, its articles
of incorporation, bylaws or otherwise to consummate the transactions herein
contemplated.
SECTION 2.2 SUBSIDIARIES. PMI has no subsidiaries other than International
Bible Games ("IBG").
SECTION 2.3 FINANCIAL STATEMENTS.
(a) Included in the XXXXX data base of the Securities and Exchange
Commission are the audited balance sheet of PMI for the fiscal years ended
December 31, 2000 and 1999, and the related statements of operations and
deficit, changes in stockholders' equity and cash flows for the years then
ended, and the unaudited balance sheet and related statement of operations and
deficit, changes in stockholders' equity and cash flow for the period ended
March 31, 2001. PMI believes there has been no adverse material change in its
financial condition since the dates of those statements other than the issuance
of approximately 4,000,000 shares of common stock pursuant a registration on
Form S-8 and incurring approximately $29,000 in debt to the Apostolic Faith
Church and other investors.
(b) All such financial statements have been prepared in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved. The PMI balance sheets present fairly as of their respective
dates the financial
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condition of PMI. PMI did not have as of the date of any of
such PMI balance sheets, any liabilities or obligations (absolute or contingent)
which should be reflected in a balance sheet or the notes thereto prepared in
accordance with generally accepted accounting principles other than as listed
herein, and all assets reflected therein are properly reported and present
fairly the value of the assets of PMI, in accordance with generally accepted
accounting principles. The statements of operations and deficit, changes in
stockholders' equity and cash flow reflect fairly the information required to be
set forth therein by generally accepted accounting principles.
(c) The books and records, financial and others, of PMI are in all material
respects complete and correct and have been maintained in accordance with good
business accounting practices.
(d) PMI has no liabilities with respect to the payment of any federal,
state, county, local or other taxes (including any deficiencies, interest or
penalties).
SECTION 2.4 INFORMATION. The information concerning PMI as set forth
in this Agreement is complete and accurate in all material respects and does not
contain any untrue statement of a material fact or omit to state a material fact
required to make the statements made, in light of the circumstances under which
they were made, not misleading.
SECTION 2.5 OPTIONS AND WARRANTS. There are no existing options, warrants,
calls or commitments of any character to which PMI is a party and by which it is
bound.
SECTION 2.6 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as described
herein:
(a) PMI has not: (i) amended its articles of incorporation or bylaws;
(ii) waived any rights of value which in the aggregate are extraordinary or
material considering the business of PMI; (iii) made any material change in its
method of management, operation or accounting; or (iv) made any accrual or
arrangement for or payment of bonuses or special compensation of any kind or any
severance or termination pay to any present or former officer or employee;
(b) PMI has not: (i) granted or agreed to grant any options, warrants or
other rights for its stocks, bonds or other corporate securities calling for the
issuance thereof; or (ii) borrowed or agreed to borrow any funds or incurred or
become subject to, any material obligation or liability (absolute or
contingent); and
(c) to the best knowledge of PMI, it has not become subject to any law or
regulation which materially and adversely affects, or in the future may
adversely affect, the business, operations, properties, assets or condition of
PMI.
SECTION 2.7 TITLE AND RELATED MATTERS. PMI owns no real, personal or
intangible property.
SECTION 2.8 LITIGATION AND PROCEEDINGS. There are no actions, suits or
proceedings pending or, to the best of PMI's knowledge and belief, threatened by
or against or affecting PMI,
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at law or in equity, before any court or other
governmental agency or instrumentality, domestic or foreign, or before any
arbitrator of any kind that would have a material adverse effect on the
business, operations, financial condition, income or business prospects of PMI.
PMI does not have any knowledge of any default on its part with respect to any
judgment, order, writ, injunction, decree, award, rule or regulation of any
court, arbitrator or governmental agency or instrumentality.
SECTION 2.9 CONTRACTS.
(a) there are no material contracts, agreements, franchises, license
agreements, or other commitments to which PMI is a party or by which it or any
of its properties are bound.
(b) PMI is not a party to any contract, agreement, commitment or instrument
or subject to any charter or other corporate restriction or any judgment, order,
writ, injunction, decree or award which materially and adversely affects, or in
the future may (as far as PMI can now foresee) materially and adversely affect,
the business, operations, properties, assets or conditions of PMI; and
(c) PMI is not a party to any material oral or written: (i) contract for
the employment of any officer or employee; (ii) profit sharing, bonus, deferred
compensation, stock option, severance pay, pension, benefit or retirement plan,
agreement or arrangement covered by Title IV of the Employee Retirement Income
Security Act, as amended; (iii) agreement, contract or indenture relating to the
borrowing of money; (iv) guaranty of any obligation for the borrowing of money
or otherwise, excluding endorsements made for collection and other guaranties of
obligations; (v) consulting or other similar contract; (vi) collective
bargaining agreement; (vii) agreement with any present or former officer or
director of PMI; or (viii) contract, agreement, or other commitment involving
payments by it of more than $1,000 in the aggregate.
SECTION 2.10 NO CONFLICT WITH OTHER INSTRUMENTS. The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, or
constitute an event of default under, any material indenture, mortgage, deed of
trust or other material contract, agreement or instrument to which PMI is a
party or to which any of its properties or operations are subject.
SECTION 2.11 MATERIAL CONTRACT DEFAULTS. To the best of PMI's knowledge and
belief, PMI is not in default in any material respect under the terms of any
outstanding contract, agreement, lease or other commitment which is material to
the business, operations, properties, assets or condition of PMI, and there is
no event of default in any material respect under any such contract, agreement,
lease or other commitment in respect of which PMI has not taken adequate steps
to prevent such a default from occurring.
SECTION 2.12 GOVERNMENTAL AUTHORIZATIONS. To the best of PMI's knowledge,
PMI has all licenses, franchises, permits and other governmental authorizations
that are legally required to enable it to conduct its business operations in all
material respects as conducted on the date
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hereof. Except for compliance with
federal and state securities or corporation laws, no authorization, approval,
consent or order of, or registration, declaration or filing with, any court or
other governmental body is required in connection with the execution and
delivery by PMI of the transactions contemplated hereby.
SECTION 2.13 COMPLIANCE WITH LAWS AND REGULATIONS. Except with respect to
periodic reports to be filed with the Securities and Exchange Commission, to the
best of PMI's knowledge and belief, PMI has complied with all applicable
statutes and regulations of any federal, state or other governmental entity or
agency thereof, except to the extent that noncompliance would not materially and
adversely affect the business, operations, or condition of PMI or would not
result in PMI's incurring any material liability.
SECTION 2.14 INSURANCE. PMI has no insurable properties and no insurance
policies.
SECTION 2.15 APPROVAL OF AGREEMENT The board of directors of PMI have
authorized the execution and delivery of this Agreement by PMI and have approved
the transactions contemplated hereby.
SECTION 2.16 MATERIAL TRANSACTIONS OR AFFILIATIONS. There is no material
contract, agreement or arrangement between PMI and any person who was at the
time of such contract, agreement or arrangement an officer, director or person
owning of record, or known by PMI to own beneficially, ten percent (10%) or more
of the issued and outstanding common stock of PMI and which is to be performed
in whole or in part after the date hereof. PMI has no commitment, whether
written or oral, to lend any funds to, borrow any money from or enter into any
other material transactions with, any such affiliated person.
SECTION 2.17 LABOR RELATIONS. PMI has never had a work stoppage resulting
from labor problems. PMI has no employees other than its officers and
directors.
ARTICLE III
TENDER OFFER
SECTION 3.1 TENDER OFFER. Upon the signing of this Agreement, PMI
will make a tender offer to the shareholders of AmeriGroup to acquire 100% of
the issued and outstanding common shares of AmeriGroup in which PMI will issue
one common share of PMI for each common share of AmeriGroup to be acquired. PMI
will caused to be prepared applicable disclosure to be issued to the
shareholders of AmeriGroup in connection with the tender offer.
SECTION 3.2 ISSUANCE OF PMI COMMON SHARES. Upon receipt of the AmeriGroup
shares from the AmeriGroup shareholders, PMI shall cause to be issued PMI common
shares to the AmeriGroup shareholders on a basis of one common share of PMI for
each share of AmeriGroup surrendered. PMI will also issue approximately
10,042,105 PMI common shares to IBG shareholders and creditors in exchange for a
release of all claims against PMI. It is the intent and the purpose of the
parties that following the issuance of the approximate 10,042,105 PMI common
shares as set forth above, all shareholders of PMI that are not shareholders of
PMI
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by reason of exchanging AmeriGroup shares, shall hold a total of 5% of all
of the issued and outstanding shares of PMI. Additional shares of PMI will be
issued as necessary to accomplish this intent.
SECTION 3.3 DIRECTORS OF PMI. Upon the issuance of PMI shares to a
majority of the shareholders of AmeriGroup, PMI shall cause the board of
directors to consist of two members which shall be Xxxx Xxxxxxx and Xxx Xxxxxxx.
ARTICLE IV
SPECIAL COVENANTS
SECTION 4.1 AVAILABILITY OF RULE 144. Each of the parties acknowledge
that the stock of PMI to be issued pursuant to this Agreement will be
"restricted securities," as that term is defined in Rule 144 as promulgated
pursuant to the Securities Act. PMI will at its earliest convenience register
such shares under the Securities Act, or otherwise. In addition, PMI will use
its best efforts to: (a) comply with the public information requirements of
Rule 144 so as to make available to the shareholders of PMI the provisions of
Rule 144 pursuant to this paragraph; and (b) within ten (10) days of any written
request of any stockholder of PMI, PMI will provide to such stockholder written
confirmation of compliance with this paragraph. The stockholders of PMI holding
restricted securities of PMI as of the date of this Agreement and their
respective heirs, administrators, personal representatives, successors and
assigns, are intended third party beneficiaries of the provisions set forth
herein. The covenants set forth in this Section 4.1 shall survive the
consummation of the transactions herein contemplated.
SECTION 4.2 INFORMATION FOR PMI PUBLIC REPORTS. AmeriGroup will furnish PMI
with all information concerning AmeriGroup and the AmeriGroup Stockholders,
including all financial statements, required for inclusion in any registration
statement or public report intended to be filed by PMI pursuant to the
Securities Act, the Exchange Act, or any other applicable federal or state law.
AmeriGroup covenants that all information so furnished for either such
registration statement or other public release by PMI, including its financial
statements, shall be true and correct in all material respects without omission
of any material fact required to make the information stated not misleading.
SECTION 4.3 SPECIAL COVENANTS AND REPRESENTATIONS REGARDING THE PMI COMMON
SHARES TO BE ISSUED IN THE TENDER OFFER. The consummation of this Agreement,
including the issuance of the PMI common shares to the stockholders of
AmeriGroup as contemplated in the tender offer, constitutes the offer and sale
of securities under the Securities Act, and applicable state statutes. Such
transaction shall be consummated in reliance on exemptions from the registration
and prospectus delivery requirements of such statutes including Rule 506 under
the Securities Act, which depend, inter alia, upon the circumstances under which
the AmeriGroup stockholders acquire such securities. In connection with reliance
upon exemptions from the registration and prospectus delivery requirements for
such transactions, the parties agree that requisite copies of Form D in the form
attached hereto as Exhibit B will be filed with the Securities and Exchange
Commission and with each state in which any AmeriGroup shareholder is resident
together with requisite state filing fees, if any, to qualify for applicable
state
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exemptions for federal covered securities. All filings shall be made
within 15 days of the share exchange.
SECTION 4.4 DISTRIBUTION OF BIBLE GAME. PMI will release any and all rights
to the Bible Game and any inventory and in exchange, IBG will satisfy all debt
owed to DTG shareholders and the Apostolic Faith Church and hold PMI harmless
from the same.
ARTICLE V
MISCELLANEOUS
SECTION 5.1 BROKERS AND FINDERS. The parties each agree to indemnify
the other against any claim by any third person for any commission, brokerage or
finder's fee or other payment with respect to this Agreement or the transactions
contemplated hereby based on any alleged agreement or understanding between the
indemnifying party and such third person, whether express or implied from the
actions of the indemnifying party.
SECTION 5.2 LAW. This Agreement shall be construed and interpreted in
accordance with the laws of the State of Nevada.
SECTION 5.3 NOTICES. Any notices or other communications required or
permitted hereunder shall be sufficiently given if personally delivered to it or
sent by registered mail or certified mail, postage prepaid, or by prepaid
telegram addressed as follows:
If to AmeriGroup: 0000 X. Xxxxxxx Xxxx, Xxxxx 000
Xxxx, Xxxxxxx 00000
If to PMI: 000 Xxxxxx Xx.
Xxxxxxxxxx, XX X0X 0X0
or such other addresses as shall be furnished in writing by any party in the
manner for giving notices hereunder, and any such notice or communication shall
be deemed to have been given as of the date so delivered, mailed, or
telegraphed.
SECTION 5.4 ATTORNEYS' FEES. In the event that any party institutes
any action or suit to enforce this Agreement or to secure relief from any
default hereunder or breach hereof, the breaching party or parties shall
reimburse the non-breaching party or parties for all costs, including reasonable
attorneys' fees, incurred in connection therewith and in enforcing or collecting
any judgment rendered therein.
SECTION 5.5 SCHEDULES; KNOWLEDGE. Each party is presumed to have full
knowledge of all information set forth in the other party's Schedules delivered
pursuant to this Agreement.
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SECTION 5.6 THIRD PARTY BENEFICIARIES. This contract is solely among
AmeriGroup and PMI and, except as specifically provided, no director, officer,
stockholder, employee, agent, independent contractor or any other person or
entity shall be deemed to be a third party beneficiary of this Agreement.
SECTION 5.7 ENTIRE AGREEMENT This Agreement represents the entire agreement
between the parties relating to the subject matter hereof. This Agreement alone
fully and completely expresses the agreement of the parties relating to the
subject matter hereof. There are no other courses of dealing, understandings,
agreements, representations or warranties, written or oral, except as set forth
herein. This Agreement may not be amended or modified, except by a written
agreement signed by all parties hereto.
SECTION 5.8 SURVIVAL; TERMINATION. Except as otherwise provided herein, the
representations, warranties and covenants of the respective parties shall
survive the consummation of the transactions herein contemplated.
SECTION 5.9 COUNTERPARTS FACSIMILE EXECUTION. For purposes of this
Agreement, a document (or signature page thereto) signed and transmitted by
facsimile machine or telecopier is to be treated as an original document. The
signature of any party thereon, for purposes hereof, is to be considered as an
original signature, and the document transmitted is to be considered to have the
same binding effect as an original signature on an original document. At the
request of any party, a facsimile or telecopy document is to be re-executed in
original form by the parties who executed the facsimile or telecopy document.
No party may raise the use of a facsimile machine or telecopier machine as a
defense to the enforcement of the Agreement or any amendment or other document
executed in compliance with this Section.
SECTION 5.10 AMENDMENT OR WAIVER. Every right and remedy provided herein
shall be cumulative with every other right and remedy, whether conferred herein,
at law, or in equity, and may be enforced concurrently herewith, and no waiver
by any party of the performance of any obligation by the other shall be
construed as a waiver of the same or any other default then, theretofore, or
thereafter occurring or existing. This Agreement may be amended by a writing
signed by all parties hereto, with respect to any of the terms contained herein,
and any term or condition of this Agreement may be waived or the time for
performance hereof may be extended by a writing signed by the party or parties
for whose benefit the provision is intended.
SECTION 5.11 INCORPORATION OF RECITALS. All of the recitals hereof are
incorporated by this reference and are made a part hereof as though set forth at
length herein.
SECTION 5.12 EXPENSES. Each party herein shall bear all of their respective
costs and expenses incurred in connection with the negotiation of this Agreement
and in the consummation of the transactions provided for herein and the
preparation therefore.
SECTION 5.13 HEADINGS; CONTEXT. The headings of the sections and paragraphs
contained in this Agreement are for convenience of reference only and do not
form a part hereof and in no way modify, interpret or construe the meaning of
this Agreement.
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SECTION 5.14 BENEFIT. This Agreement shall be binding upon and shall inure
only to the benefit of the parties hereto, and their permitted assigns
hereunder. This Agreement shall not be assigned by any party without the prior
written consent of the other party.
SECTION 5.15 PUBLIC ANNOUNCEMENTS. Except as may be required by law,
neither party shall make any public announcement or filing with respect to the
transactions provided for herein without the prior consent of the other party
hereto.
SECTION 5.16 SEVERABILITY. In the event that any particular provision or
provisions of this Agreement or the other agreements contained herein shall for
any reason hereafter be determined to be unenforceable, or in violation of any
law, governmental order or regulation, such unenforceability or violation shall
not affect the remaining provisions of such agreements, which shall continue in
full force and effect and be binding upon the respective parties hereto.
SECTION 5.17 NO STRICT CONSTRUCTION. The language of this Agreement shall
be construed as a whole, according to its fair meaning and intendment, and not
strictly for or against either party hereto, regardless of who drafted or was
principally responsible for drafting the Agreement or terms or conditions hereof
SECTION 5.18 EXECUTION KNOWING AND VOLUNTARY. In executing this Agreement,
the parties severally acknowledge and represent that each: (a) has fully and
carefully read and considered this Agreement; (b) has been or has had the
opportunity to be fully apprised by its attorneys of the legal effect and
meaning of this document and all terms and conditions hereof; and (c) is
executing this Agreement voluntarily, free from any influence, coercion or
duress of any kind.
SECTION 5.19 SHAREHOLDER MEETING. In addition to the obligations contained
herein, as soon as practicable after the signing of this Agreement, all parties
to this Agreement shall cooperate to see that a meeting of the shareholders of
PMI be held at which the PMI shareholders shall adopt and approve amendments to
the PMI Articles of Incorporation changing the name of PMI to "Para Mas Mall,
Inc." (or such other name as may be available and acceptable to management of
AmeriGroup) and increase the authorized capital of PMI to 350,000,000 common
shares.
SECTION 5.20 LOCK-UP AGREEMENTS. PMI shares issued pursuant to this
Agreement may be subject to lock-up agreements as reasonably recommended by
market makers as necessary to create a market in the PMI common shares after the
tender offer. However, absent the shareholders consent, a lock up agreement
will not restrict the immediate transfer of more than 75% of a shareholders
stock and will free up 10% of the remaining stock each month thereafter or 25%
of the remaining stock each quarter thereafter, whichever is less.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective officers, hereunto duly authorized, and entered into as of
the date first above written.
AmeriGroup, Inc., a Nevada corporation
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Xxxx Xxxxxxx
Its: CEO
Para Mas Internet, Inc., a Nevada corporation
By: /s/ Xxx XxXxxxxx
-------------------------------------
Xxx XxXxxxxx
Its: CEO
