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Exhibit 2.01 EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT (this "Agreement") is made this 11th day of
December 2001, by and among ALTRIMEGA HEALTH CORPORATION, a Nevada corporation
("Altrimega"); ADVANCED MESSAGING WIRELESS, INC., a Texas corporation
("Advanced"); and the persons listed in Exhibit A-1 hereof who are the owners
of record of all ownership interest of Advanced who execute and deliver the
Agreement ("Advanced Stockholders"), based on the following:
Recitals
Altrimega wishes to acquire all the ownership interest stock of Advanced
in exchange for the common stock of Altrimega in a transaction intended to
qualify as a tax-free exchange pursuant to section 368(a)(1)(B) of the
Internal Revenue Code of 1986, as amended. The parties intend for this
Agreement to represent the terms and conditions of such tax-free
reorganization, which Agreement the parties hereby adopt.
Agreement
Based on the stated premises, which are incorporated herein by reference,
and for and in consideration of the mutual covenants and agreements
hereinafter set forth, the mutual benefits to the parties to be derived here
from, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, it is hereby agreed as follows:
ARTICLE I
EXCHANGE OF STOCK
1.01 Exchange of Interests. On the terms and subject to the conditions
set forth in this Agreement, on the Closing Date (as defined in Section 1.04
hereof), the Advanced Stockholders shall assign, transfer, and deliver to
Altrimega, free and clear of all liens, pledges, encumbrances, charges,
restrictions, or claims of any kind, nature, or description, all of their
respective ownership interest in Advanced (the "Advanced Shares") owned by the
Advanced Stockholders which interests shall represent one hundred percent
(100%) of the ownership interest in Advanced, and Altrimega agrees to acquire
such ownership interests on such date by issuing and delivering in exchange
therefor an aggregate of 10,000,000 restricted shares of Altrimega common
stock, par value $0.001 per share, (the "Altrimega Common Stock"). Such
shares of Altrimega Common Stock shall be issued pro rata based on the
percentage of ownership interest held as of the Closing Date as set forth
opposite the Advanced Stockholder's respective names in Exhibit A-1.
1.02 Delivery of Certificates by Advanced Stockholders. The transfer of
Advanced Shares by the Advanced Stockholders shall be effected by the delivery
to Altrimega at the Closing (as set forth in Section 1.04 hereof) of
certificates representing the Advanced Shares endorsed in blank or accompanied
by stock powers executed in blank, with all signatures medallion guaranteed.
1.03 Operation as Wholly-Owned Subsidiary. After giving effect to the
transaction contemplated hereby, Altrimega will own one hundred percent (100%)
of the ownership interest of Advanced and Advanced will be a wholly-owned
subsidiary of Altrimega operating under the name Advanced Messaging Wireless,
Inc., or such other name as Altrimega may determine.
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1.04 Closing and Parties. The Closing contemplated hereby shall be held
at a mutually agreed upon time and place on the completion and satisfaction of
the conditions set forth in Articles IV and V of the Agreement and agreed to in
writing by the parties (the "Closing Date"). The Closing may be accomplished
by express mail, overnight courier, conference telephone call or as otherwise
agreed to by the respective parties or their duly authorized representatives.
1.05 Closing Events.
(a) Altrimega Deliveries. Subject to fulfillment or waiver of the
conditions set forth in Article IV, Altrimega shall deliver to Advanced at
Closing all the following:
(i) Copies of the resolutions of the board of directors and the
majority stockholders of Altrimega authorizing the execution and performance of
this Agreement and the contemplated transactions; and
(ii) Certificates for 10,000,000 shares of Altrimega Common Stock in
the names of the Advanced Stockholders or their respective designees and in the
amounts set forth in Exhibit A-1; and
In addition to the above deliveries, Altrimega shall take all steps and actions
as Advanced and the Advanced Stockholders may reasonably request or as may
otherwise be reasonably necessary to consummate the transactions contemplated
hereby.
(b) Advanced Deliveries. Subject to fulfillment or waiver of the
conditions set forth in Article V, Advanced and/or the Advanced Stockholder's
shall deliver to Altrimega at Closing all the following:
(i) Copies of the resolutions of the board of directors and of the
majority stockholders of Advanced authorizing the execution and performance of
this Agreement and the contemplated transactions; and
(ii) The certificates representing the Advanced Shares endorsed in
blank or accompanied by stock powers executed in blank, with all signatures
medallion guaranteed.
In addition to the above deliveries, Advanced shall take all steps and actions
as Altrimega may reasonably request or as may otherwise be reasonably necessary
to consummate the transactions contemplated hereby.
1.06 Termination.
(a) This Agreement may be terminated by the board of directors of
either Altrimega or Advanced at any time prior to the Closing Date if:
(i) There shall be any actual or threatened action or proceeding
before any court or any governmental body which shall seek to restrain,
prohibit, or invalidate the transactions contemplated by this Agreement and
which, in the reasonable judgment of such board of directors, made in good
faith and based upon the advice of its legal counsel, makes it inadvisable to
proceed with the transactions contemplated by this Agreement;
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(ii) Any of the transactions contemplated hereby are disapproved by
any regulatory authority whose approval is required to consummate such
transactions or in the reasonable judgment of such board of directors, made in
good faith and based on the advice of counsel, there is substantial likelihood
that any such approval will not be obtained or will be obtained only on a
condition or conditions which would be unduly burdensome, making it inadvisable
to proceed with the exchange;
In the event of termination pursuant to this paragraph (a) of Section 1.06, no
obligation, right, or liability shall arise hereunder, and each party shall
bear all of the expenses incurred by it in connection with the negotiation,
preparation, and execution of this Agreement and the transactions contemplated
hereby.
(b) This Agreement may be terminated at any time prior to the Closing
Date by action of the board of directors of Altrimega if (i) shareholders of
Advanced owning more than five percent (5%) of the issued and outstanding
shares of Advanced capital stock perfect their dissenter's rights, if any, with
respect to the approval of this Agreement and the transactions contemplated
hereby, (ii) Advanced shall fail to comply in any material respect with any of
its covenants or agreements contained in this Agreement or if any of the
representations or warranties of Advanced contained herein shall be inaccurate
in any material respect or (iii) there has been any material adverse change in
the business or financial condition of Advanced other than as contemplated
herein. In the event of termination pursuant to this paragraph (b) of this
section 1.06, no obligation, right, remedy, or liability shall arise hereunder.
All parties shall bear their own costs incurred in connection with the
negotiation, preparation, and execution of this Agreement and the transactions
contemplated hereby.
(c) This Agreement may be terminated at any time prior to the Closing
Date by action of the board of directors of Advanced if (i) less than 50% of
the Shareholders of Altrimega vote in favor of this Agreement and the
transactions contemplated hereby, (ii) shareholders of Altrimega owning more
than five percent (5%) of the issued and outstanding shares of Altrimega
capital stock perfect their dissenter's rights, if any, with respect to the
approval of this Agreement and the transactions contemplated hereby, (iii)
Altrimega shall fail to comply in any material respect with any of its
covenants or agreements contained in this Agreement or if any of the
representations or warranties of Altrimega contained herein shall be inaccurate
in any material respect, or (iv) there has been any adverse change in the
business or financial condition of Altrimega. In the event of termination
pursuant to this paragraph (c) of this section 1.06, no obligation, right,
remedy, or liability shall arise hereunder. All parties shall each bear their
own costs incurred in connection with the negotiation, preparation, and
execution of this Agreement and the transactions contemplated hereby.
ARTICLE II
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF ALTRIMEGA
As an inducement to, and to obtain the reliance of Advanced, Altrimega
represents and warrants as follows:
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2.01 Organization. Altrimega is, and will be on the Closing Date, 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 and will be 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, and there are no other jurisdictions in which it is
not so qualified in which the character and location of the assets owned by it
or the nature of the material business transacted by it requires qualification,
except where failure to do so would not have a material adverse effect on its
business, operations, properties, assets or condition. 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 Altrimega's articles of incorporation or bylaws, or
other agreement to which it is a party or by which it is bound.
2.02 Approval of Agreement. Altrimega has full power, authority, and
legal right and has taken, or will take, all action required by law, its
articles of incorporation, bylaws, and otherwise to execute and deliver this
Agreement and to consummate the transactions herein contemplated. The board of
directors of Altrimega has authorized and approved the execution, delivery, and
performance of this Agreement and the transactions contemplated hereby; subject
to compliance with state and federal corporate and securities laws.
2.03 Capitalization. The authorized capitalization of Altrimega consists
of 50,000,000 shares of common stock and 10,000,000 shares of preferred stock,
$0.001 par value, of which 22,020,000 shares of common stock and no shares of
preferred stock are issued and outstanding. All issued and outstanding shares
of Altrimega Common Stock are legally issued, fully paid, and nonassessable and
not issued in violation of the preemptive or other right of any person. There
are no dividends or other amounts due or payable with respect to any of the
shares of capital stock of Altrimega.
2.04. SEC Reports; Financial Statements.
(a) Altrimega has filed all forms, reports and documents (including
all Exhibits, Schedules and Annexes thereto) required to be filed by it with
the SEC since it became subject to the reporting requirements of section 13 or
15(d) of the Exchange Act, including any amendments or supplements thereto
(collectively, including any such forms, reports and documents filed after the
date hereof, the "Altrimega SEC Reports "), and, with respect to the Altrimega
SEC Reports filed by Altrimega after the date hereof and prior to the Closing
Date, will deliver or make available, to Advanced all of its Altrimega SEC
Reports in the form filed with the SEC. The Altrimega SEC Reports (i) were
(and any Altrimega SEC Reports filed after the date hereof will be) in all
material respects in accordance with the requirements of the Securities Act or
the Exchange Act, as the case may be, and the rules and regulations promulgated
thereunder, and (ii) as of their respective filing dates, did not (and any
Altrimega SEC Reports filed after the date hereof will not) contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. On the
Closing Date, Altrimega shall be current in the filing of the Altrimega SEC
Reports.
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(b) Included in Schedule 2.04 are the audited balance sheets of
Altrimega as of December 31, 2000 and 1999, and the related statements of
operations, stockholders' equity (deficit), and cash flows for the fiscal year
ended December 31, 2000, and 1999, including the notes thereto, and the
accompanying report of Xxxxxxxx, Xxxxxxxx & Xxxxxx, X.X., independent certified
public accountants, together with the notes thereto and representations by the
principal accounting and financial officer of Altrimega to the effect that such
financial statements contain all adjustments (all of which are normal recurring
adjustments) necessary to present fairly the results of operations and
financial position for the periods and as of the dates indicated.
(c) The financial statements of Altrimega delivered pursuant to
Section 2.04(b) have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods involved as
explained in the notes to such financial statements. The Altrimega financial
statements present fairly, in all material respects, as of their respective
dates, the financial position of Altrimega. Altrimega did not have, as of the
date of any such financial statements, except as and to the extent reflected or
reserved against therein, any liabilities or obligations (absolute or
contingent) which should be reflected in any financial statement or the notes
thereto prepared in accordance with generally accepted accounting principles,
and all assets reflected therein presently fairly the assets of Altrimega in
accordance with generally accepted accounting principles. The statements of
revenues and expenses and cash flows present fairly the financial position and
result of operations of Altrimega as of their respective dates and for the
respective periods covered thereby.
(d) Altrimega has filed or will file as the Closing Date all tax
returns required to be filed by it from inception to the Closing Date. All
such returns and reports are accurate and correct in all material respect.
Altrimega has no material liabilities with respect to the payment of any
federal, state, county, local, or other taxes (including any deficiencies,
interest, or penalties) accrued for or applicable to the period ended on the
date of the most recent balance sheet of Altrimega, except to the extent
reflected on such balance sheet and all such dates and years and periods prior
thereto and for which Altrimega may at said date have been liable in its own
right or as transferee of the assets of, or as successor to, any other
corporation or entity, except for taxes accrued but not yet due and payable,
and no deficiency assessment or proposed adjustment of any such tax return is
pending, proposed or contemplated. None of such income tax returns has been
examined or is currently being examined by the Internal Revenue Service and no
deficiency assessment or proposed adjustment of any such return is pending,
proposed or contemplated. Altrimega has not made any election pursuant to the
provisions of any applicable tax laws (other than elections that relate solely
to methods of accounting, depreciation, or amortization) that would have an
adverse affect on Altrimega, its financial condition, its business as presently
conducted or proposed to be conducted, or any of its respective properties or
assets. There are no outstanding agreements or waivers extending the statutory
period of limitation applicable to any tax return of Altrimega.
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(e) The books and records, financial and otherwise, of Altrimega are
in all material respects complete and correct and have been maintained in
accordance with sound business and bookkeeping practices so as to accurately
and fairly reflect, in reasonable detail, the transactions and dispositions of
the assets of Altrimega and Altrimega has maintained a system of internal
accounting controls sufficient to provide reasonable assurances that (i)
transactions have been and are executed in accordance with management's general
or specific authorization; (ii) transactions are recorded as necessary to
permit the preparation of financial statements in conformity with generally
accepted accounting principles or any other criteria applicable to such
statements and to maintain accountability for assets; (iii) access to assets is
permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals, and appropriate action is taken
with respect to any differences.
2.05 Outstanding Warrants and Options. Altrimega has no existing
warrants or options, calls, or commitments of any nature relating to the
authorized and unissued Altrimega Common Stock.
2.06 Litigation and Proceedings. There are no material actions, suits,
or administrative or other proceedings pending or, to the knowledge of
Altrimega, threatened by or against Altrimega or adversely affecting Altrimega
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. Altrimega 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.
2.07 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 Altrimega is a party or to
which any of its properties or operations are subject.
2.08 Altrimega Schedules. Altrimega has delivered to Advanced the
following schedules, which are collectively referred to as the "Altrimega
Schedules" and which consist of the following separate schedules dated as of
the date of execution of this Agreement:
(a) A schedule including copies of the articles of incorporation and
bylaws of Altrimega in effect as of the date of this Agreement;
(b) A schedule containing copies of resolutions adopted by the board
of directors and majority shareholders of Altrimega approving this Agreement
and the transactions herein contemplated;
(c) A schedule setting forth any other information, together with any
required copies of documents, required to be disclosed in the Altrimega
Schedules by Sections 2.01 through 2.06.
Altrimega shall cause the Altrimega Schedules and the instruments delivered to
Advanced hereunder to be updated after the date hereof up to and including a
specified date not more than three business days prior to the Closing Date.
Such updated Altrimega Schedules shall be delivered prior to and as a condition
precedent to the obligation of Advanced to close.
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ARTICLE III
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF ADVANCED
As an inducement to, and to obtain the reliance of, Service Holding, Asian
Pacific represents and warrants as follows:
3.01 Organization. Advanced is, and will be on the Closing Date, a
corporation duly organized, validly existing, and in good standing under the
laws of the state of Texas and has the corporate power and is and will be 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, and there are no other jurisdictions in which it is
not so qualified in which the character and location of the assets owned by it
or the nature of the material business transacted by it requires qualification,
except where failure to do so would not have a material adverse effect on its
business, operations, properties, assets or condition of Advanced. 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 Advanced's articles of incorporation or
bylaws, or other material agreement to which it is a party or by which it is
bound.
3.02 Approval of Agreement. Advanced has full power, authority, and
legal right and has taken, or will take, all action required by law, its
articles of incorporation, bylaws, or otherwise to execute and deliver this
Agreement and to consummate the transactions herein contemplated. The board of
directors of Advanced have authorized and approved the execution, delivery, and
performance of this Agreement and the transactions contemplated hereby; subject
to the approval of the Advanced Stockholders.
3.03 Capitalization. The authorized capitalization of Advanced consists
of 50,000,000 shares of capital stock, no par value of which as of the date
hereof 777,776 shares are issued and outstanding. All issued and outstanding
share of Advanced are legally issued, fully paid, and nonassessable and not
issued in violation of the preemptive or other right of any person. There are
no dividends or other amounts due or payable with respect to any of the shares
of capital stock of Advanced.
3.04 Financial Statements.
(a) Included in Schedule 3.04 will be the audited balance sheets of
Advanced as of December 31, 2001 and 2000, and the related statements of
operations, stockholders' equity (deficit), and cash flows for the fiscal year
ended December 31, 2001, including the notes thereto, and the accompanying
report of an independent certified public accountants, together with the notes
thereto and representations by the principal accounting and financial officer
of Advanced to the effect that such financial statements contain all
adjustments (all of which are normal recurring adjustments) necessary to
present fairly the results of operations and financial position for the periods
and as of the dates indicated.
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(b) The audited financial statements delivered pursuant to Section
3.04(a) have been prepared in accordance with United States generally accepted
accounting principles consistently applied throughout the periods involved and,
when required to be audited, have been audited by a certified public
accountants licensed to practice in the United States and before the Securities
and Exchange Commission. The audited financial statements have been presented
in accordance with the requirements of Regulation S-X promulgated by the SEC
regarding the form and content of and requirements for financial statements to
be filed with the SEC. The financial statements of Advanced will present
fairly, as of their respective dates, the financial position of Advanced.
(c) Advanced has filed or will have filed as of the Closing Date all
tax returns required to be filed by it from inception to the Closing Date. All
such returns and reports are accurate and correct in all material respects.
Advanced has no material liabilities with respect to the payment of any
federal, state, county, local, or other taxes (including any deficiencies,
interest, or penalties) accrued for or applicable to the period ended on the
date of the most recent unaudited balance sheet of Advanced, except to the
extent reflected on such balance sheet and adequately provided for and those
which are not yet due and payable, and all such dates and years and periods
prior thereto and for which Advanced may at said date have been liable in its
own right or as transferee of the assets of, or as successor to, any other
corporation or entity, except for taxes accrued but not yet due and payable,
and to Advanced's best knowledge no deficiency assessment or proposed
adjustment of any such tax return is pending, proposed or contemplated. Proper
and accurate amounts of taxes have been withheld by or on behalf of Advanced
with respect to all material compensation paid to employees of Advanced for all
periods ending on or before the date hereof, and all deposits required with
respect to compensation paid to such employees have been made, in complete
compliance with the provisions of all applicable federal, state, and local tax
and other laws. To Advanced's best knowledge, none of such income tax returns
has been examined or is currently being examined by the Internal Revenue
Service, and no deficiency assessment or proposed adjustment of any such return
is pending, proposed, or contemplated. Advanced has not made any election
pursuant to the provisions of any applicable tax laws (other than elections
that relate solely to methods of accounting, depreciation, or amortization)
that would have a material adverse affect on Advanced, its financial condition,
its business as presently conducted or proposed to be conducted, or any of its
properties or material assets. There are no tax liens upon any of the assets
of Advanced. There are no outstanding agreements or waivers extending the
statutory period of limitation applicable to any tax return of Advanced.
(d) The books and records, financial and otherwise, of Advanced are in
all material respects complete and correct and have been maintained in
accordance with sound business and bookkeeping practices so as to accurately
and fairly reflect, in reasonable detail, the transactions and dispositions of
the assets of Advanced. Advanced has maintained a system of internal
accounting controls sufficient to provide reasonable assurances that (i)
transactions have been and are executed in accordance with management's general
or specific authorization; (ii) transactions are recorded as necessary to
permit the preparation of financial statements in conformity with generally
accepted accounting principles or any other criteria applicable to such
statements and to maintain accountability for assets; (iii) access to assets is
permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals, and appropriate action is taken
with respect to any differences.
3.05 Outstanding Warrants and Options. Advanced has no issued warrants
or options, calls, or commitments of any nature relating to the authorized and
unissued Advanced capital stock.
3.06 Title and Related Matters. Except as provided herein or disclosed
in the most recent Advanced balance sheet, Advanced has good and marketable
title to all of its properties, inventory, interests in properties, technology,
whether patented or un-patented, and assets, which are reflected in the most
recent Advanced 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 mortgages,
liens, pledges, charges, or encumbrances, except (i) statutory liens or claims
not yet delinquent; and (ii) 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. To the best
knowledge of Advanced, its technology does not infringe on the copyright,
patent, trade secret, know-how, or other proprietary right of any other person
or entity and comprises all such rights necessary to permit the operation of
the business of Advanced as now being conducted or as contemplated.
3.07 Litigation and Proceedings. There are no material actions, suits,
or proceedings pending or, to the knowledge of Advanced, threatened by or
against Advanced or adversely affecting Advanced, at law or in equity, before
any court or other governmental agency or instrumentality, domestic or foreign,
or before any arbitrator of any kind. Advanced 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.
3.08 Material Contract Defaults. Advanced 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 Advanced, and there is no event of default or other
event which, with notice or lapse of time or both, would constitute a default
in any material respect under any such contract, agreement, lease, or other
commitment in respect of which Advanced has not taken adequate steps to prevent
such a default from occurring.
3.09 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 Advanced is a party or to
which any of its properties or operations are subject.
3.10 Governmental Authorizations. Advanced has all licenses, franchises,
permits, and other governmental authorizations that are legally required to
enable it to conduct its business in all material respects as conducted on the
date of this Agreement. Except for compliance with applicable 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
Advanced of this Agreement and the consummation by Advanced of the transactions
contemplated hereby.
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3.11 Compliance With Laws and Regulations. Advanced has complied with
all applicable statutes and regulations of any national, provincial, 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 Advanced or except to the
extent that noncompliance would not result in the occurrence of any material
liability for Advanced.
3.12 Advanced Schedules. Advanced has delivered to Altrimega the
following schedules, which are collectively referred to as the "Advanced
Schedules" and which consist of the following separate schedules dated as of
the date of execution of this Agreement:
(a) A schedule including copies of the articles of incorporation and
bylaws of Advanced and all amendments thereto in effect as of the date of this
Agreement;
(b) A schedule containing copies of resolutions adopted by the board
of directors and the majority of the shareholders of Advanced approving this
Agreement and the transactions herein contemplated;
(c) A schedule setting forth the financial statements required
pursuant to Section 3.04 hereof; and
(d) A schedule setting forth any other information, together with any
required copies of documents, required to be disclosed in the Advanced
Schedules by Sections 3.01 through 3.11.
Advanced shall cause the Advanced Schedules and the instruments delivered to
Altrimega hereunder to be updated after the date hereof up to and including a
specified date not more than three business days prior to the Closing Date.
Such updated Advanced Schedules shall be delivered prior to and as a condition
precedent to the obligation of Altrimega to close.
ARTICLE IV
CONDITIONS PRECEDENT TO OBLIGATIONS OF ADVANCED
The obligations of Advanced under this Agreement are subject to the
satisfaction of Altrimega, at or before the Closing Date, of the following
conditions:
4.01 Majority Stockholders Approval. Altrimega shall obtain, through a
majority written consent of its stockholders, approval of this Agreement and
the transactions contemplated hereby.
4.02 Accuracy of Representations. The representations and warranties
made by Altrimega in this Agreement were true when made and shall be true at
the Closing Date with the same force and affect as if such representations and
warranties were made at and as of the Closing Date (except for changes therein
permitted by this Agreement), and Altrimega shall have performed or complied
with all covenants and conditions required by this Agreement to be performed or
complied with by Altrimega prior to or at the Closing.
4.03 No Material Adverse Change. Prior to the Closing Date, there shall
not have occurred any material adverse change in the financial condition,
business, or operations of Altrimega, nor shall any event have occurred which,
with the lapse of time or the giving of notice, may cause or create any
material adverse change in the financial condition, business, or operations of
Altrimega.
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4.04 Other Items. Advanced shall have received such further documents,
certificates, or instruments relating to the transactions contemplated hereby
as Advanced may reasonably request.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF ALTRIMEGA
The obligations of Altrimega under this Agreement are subject to the
satisfaction of Advanced, at or before the Closing Date, of the following
conditions:
5.01 Completion of Acquisitions by Advanced and Delivery of Certain
Historical and Pro Forma Financial Information. Prior to the Closing Date,
Advanced shall have completed the terms for acquisition of Excel Wireless, Inc.
("Excel") and Communication Syndicate, Inc. ("CSI"). Both Excel and CSI are
providers of retail communication services. Advanced shall make the
acquisitions in exchange of shares of the capital stock of Advanced and/or
cash, so that on the Closing Date, any shares of capital stock issued by
Advanced in connection with said acquisitions will be exchanged pro rata by the
Advanced Stockholders in exchange for Altrimega Common Stock as set forth in
Exhibit A-1 hereto. In connection therewith, Advanced shall provide Altrimega
with the financial information for Excel and CSI required under Item 310(c) of
Regulation S-B, promulgated under the Securities Act.
5.02 Advanced Stockholder Approval. Advanced shall call and hold a
meeting of its stockholders, or obtain through a majority written consent of
its stockholders, whereby the stockholders of Advanced authorize and approve
this Agreement and the transactions contemplated hereby.
5.03 Accuracy of Representations. The representations and warranties
made by Advanced and the Advanced Stockholders in this Agreement were true when
made and shall be true at the Closing Date with the same force and affect as if
such representations and warranties were made at and as of the Closing Date
(except for changes therein permitted by this Agreement), and Advanced shall
have performed or complied with all covenants and conditions required by this
Agreement to be performed or complied with by Advanced prior to or at the
Closing.
5.04 No Material Adverse Change. Prior to the Closing Date, there shall
not have occurred any material adverse change in the financial condition,
business or operations of Advanced, nor shall any event have occurred which,
with the lapse of time or the giving of notice, may cause of create any
material adverse change in the financial condition, business, or operations of
Advanced.
5.05 Other Items. Altrimega shall have received such further documents
certificates, or instruments relating to the transactions contemplated hereby
as Altrimega may reasonably request.
ARTICLE VI
SPECIAL COVENANTS
6.01 New Board of Directors and Officers. Upon Closing of the
transactions contemplated by this Agreement, the current board of directors and
officers of Altrimega shall resign and in their place nominees of Advanced
shall be appointed, subject to the approval of the suitability and
qualifications of such nominees.
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6.02 The Acquisition of Altrimega Common Stock. Altrimega and Advanced
understand and agree that the consummation of this Agreement including the
issuance of the Altrimega Common Stock to Advanced Stockholders in exchange for
the Advanced Shares as contemplated hereby, constitutes the offer and sale of
securities under the Securities Act and applicable state statutes. Altrimega
and Advanced agree that such transactions shall be consummated in reliance on
exemptions from the registration and prospectus delivery requirements of such
statutes which depend, among other items, on the circumstances under which such
securities are acquired. The certificates representing the Altrimega Common
Stock shall be marked with the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND ARE
"RESTRICTED SECURITIES" WITHIN THE MEANING OF RULE 144 PROMULGATED UNDER THE
SECURITIES ACT. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT
BE SOLD OR TRANSFERRED WITHOUT COMPLYING WITH RULE 144 IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION OR OTHER COMPLIANCE UNDER THE SECURITIES ACT.
In connection with the transaction contemplated by this Agreement, Altrimega
and Advanced shall each file, with the assistance of the other and their
respective legal counsel, such notices, applications, reports, or other
instruments as may be deemed by them to be necessary or appropriate in an
effort to document reliance on such exemptions, and the appropriate regulatory
authority in the states where the Advanced Stockholders reside unless an
exemption requiring no filing is available in such jurisdictions, all to the
extent and in the manner as may be deemed by such parties to be appropriate.
6.03 Securities Filings. Altrimega shall be responsible for the
preparation of any required filing with the Securities and Exchange Commission
and Advanced will be responsible for any and all filings in any jurisdiction
where its stockholders reside which would require a filing with a governmental
agency as a result of the transactions contemplated in this Agreement.
ARTICLE VII
MISCELLANEOUS
The covenants set forth in this section shall survive the Closing Date and
the consummation of the transactions herein contemplated.
7.01 No Representation Regarding Tax Treatment. No representation or
warranty is being made by any party to any other regarding the treatment of
this transaction for national, provincial, federal or state income taxation.
Each party has relied exclusively on its own legal, accounting, and other tax
adviser regarding the treatment of this transaction for federal and state
income taxes and on no representation, warranty, or assurance from any other
party or such other party's legal, accounting, or other adviser.
7.02 Governing Law. This Agreement shall be governed by, enforced and
construed under and in accordance with the laws of the State of Nevada.
7.03 Notices. Any notices or other communications required or permitted
hereunder shall be sufficiently given if personally delivered, if sent by
facsimile or telecopy transmission or other electronic communication confirmed
by registered or certified mail, postage prepaid, or if sent by prepaid
overnight courier to the address of the respective parties 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 or sent by facsimile or telecopy
transmission or other electronic communication, or one day after the date so
sent by overnight courier.
7.04 Attorney's 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
nonbreaching party or parties for all costs, including reasonable attorneys'
fees, incurred in connection therewith and in enforcing or collecting any
judgment rendered therein.
7.05 Schedules; Knowledge. Whenever in any section of this Agreement
reference is made to information set forth in the schedules provided by
Altrimega or Advanced such reference is to information specifically set forth
in such schedules and clearly marked to identify the section of this Agreement
to which the information relates. Whenever any representation is made to the
"knowledge" of any party, it shall be deemed to be a representation that no
officer or director of such party, after reasonable investigation, has any
knowledge of such matters.
7.06 Entire Agreement. This Agreement represents the entire agreement
between the parties relating to the subject matter hereof. All previous
agreements between the parties, whether written or oral, have been merged into
this Agreement. 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.
7.07 Survival; Termination. The representations, warranties, and
covenants of the respective parties shall survive the Closing Date and the
consummation of the transactions herein contemplated for a period of six months
from the Closing Date, unless otherwise provided herein.
7.08 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which taken
together shall be but a single instrument.
7.09 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 such remedies may be enforced concurrently, 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. At any time prior to the Closing Date, 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 thereof may be extended by
a writing signed by the party or parties for whose benefit the provision is
intended.
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7.10 Acceptance by Fax. This Agreement shall be accepted, effective and
binding, for all purposes, when the parties shall have signed and transmitted
to each other, by telecopier or otherwise, copies of the signature pages
hereto.
IN WITNESS WHEREOF, the corporate parties hereto have caused this
Agreement to be executed by their respective officers, hereunto duly
authorized, as of the date first above written.
ALTRIMEGA HEALTH CORPORATION, ADVANCED MESSAGING WIRELESS, INC.
a Nevada corporation a Texas corporation
By: /S/ Xxxxxx X. Xxxxxx /S/ Xxxxxxxxxxx X. Early
Its Duly Authorized Officer Its Duly Authorized Officer
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Exhibit A-1
Advanced Messaging Wireless, Inc.
List of Stockholders
[To be provided at Closing]
