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AGREEMENT made as of the 12th day of May 1997, by and between ATM
Holdings, Inc., a Nevada corporation ("Holdings"), the persons listed on the
signature page hereof (who are individually and collectively referred to as
"Shareholders"), and Nationwide Automated Systems, Inc., a California
corporation, ("Nationwide").
WHEREAS, Shareholders are the owners of all of the issued and
outstanding shares of Nationwide ("Nationwide Shares"), and
WHEREAS, Holdings desires to acquire all of the Nationwide Shares from
Shareholders in exchange for shares of Holdings' common stock, par value $.0001
per share ("Common Stock").
NOW THEREFORE, in consideration of the mutual promises, warranties,
representations, covenants and other statements contained herein, the parties
agree as follows:
1. Holdings shall acquire the Nationwide Shares from Shareholders in
exchange for Five Million Five Hundred Thousand (5,500,000) shares of its
authorized but unissued shares of Common Stock. Such shares are hereinafter
referred to as the "Acquisition Shares."
2. Holdings shall acquire the Nationwide Shares by issuing the
Acquisition Shares to the Shareholders as set forth on Exhibit A hereto. In no
event shall Holdings be required to issue more than an aggregate of Five Million
Five Hundred Thousand (5,500,000) shares of Common Stock in exchange for the
Nationwide Shares.
3. The closing of this transaction shall take place on the date first
above written. Such date is hereinafter referred to as the "Closing Date".
4. On the Closing Date, the following shall occur:
(a) Holdings shall deliver to Shareholders certificates representing an
aggregate of Five Million Five Hundred Thousand (5,500,000) of the Acquisition
Shares. Such certificates shall be issued in the names of Shareholders as set
forth on Exhibit A attached hereto. Certificates representing the Acquisition
Shares so delivered shall be issued in such denominations as may be reasonably
requested by Shareholders and shall bear such legends as may be appropriate and
reasonably requested by Holdings.
(b) Each Shareholder shall execute and deliver to Holdings an investment
letter with respect to the Acquisition Shares in such form as may reasonably be
requested by Holdings dated as of the Closing Date.
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(c) Each Shareholder shall deliver his Nationwide Shares to Holdings
with such signatures, signature guarantees, assignments, certificates and other
documentation which may reasonably be requested by Holdings.
(d) Each Shareholder shall execute and deliver to Holdings a release in
substantially the form attached hereto as Exhibit B dated as of the Closing
Date.
(e) Each of the present officers and directors of Holdings shall deliver
his written resignation to Holdings dated as of the Closing Date.
(f) It is the intention of all the parties hereto that the actions to be
taken pursuant to this Section shall be deemed to have been done simultaneously.
5. Representations and Warranties of Holdings:
(a) It is a corporation duly organized and validly existing under the
laws of the State of Nevada.
(b) Its Articles of Incorporation and By-Laws have not been modified or
amended and it has no knowledge of any proceeding or action that would affect
its Articles of Incorporation or By-Laws.
(c) It has authorized capital stock of 50,000,000 shares of common
stock, $.0001 par value per share and 10,000,000 shares of preferred stock,
$.001 per share.
(d) No shares of preferred stock are outstanding and One Million Five
Hundred Thousand (1,500,000) shares of Common Stock are outstanding. Except for
the transactions contemplated by this Agreement, it has no obligations,
commitments or agreements to issue any shares of preferred stock or additional
shares of Common Stock.
(e) Except for the transactions contemplated by this Agreement, it is
not a party to any contract or agreement.
(f) Its Board of Directors has approved the transactions contemplated by
this Agreement.
6. Representations and Warranties of Shareholders:
Each Shareholder represents and warrants as follows:
(a) Each Shareholder is the sole owner of the Nationwide Shares listed
opposite his name on Exhibit A.
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(b) The Nationwide Shares owned by each Shareholder listed opposite his
name on Exhibit A are free and clear of all claims, liens and encumbrances.
(c) Each Shareholder has full power and authority to enter into this
Agreement and perform the actions contemplated hereby.
(d) Notwithstanding any exemption that may be provided pursuant to any
federal, state or other regulation, each Shareholder agrees not to publicly sell
any of the Acquisition Shares for a period of two (2) years commencing with the
Closing Date and agrees to have the certificates representing the Acquisition
Shares stamped with a legend referencing this Agreement and the restriction on
the public sale of such shares as provided for herein.
(e) In the event that Holdings (including Nationwide) does not have
Consolidated Net Income (as herein defined) of at least One Million Five Hundred
Thousand ($1,500,000) Dollars for the fiscal year ending December 31, 1999,
Shareholders shall return to Holdings for cancellation an aggregate of Two
Million (2,000,000) of the Acquisition Shares. The shares subject to this return
provision are referred to herein as the "Return Shares". "Consolidated Net
Income" is defined as the consolidated net income of Holdings and its
subsidiaries (including Nationwide) as set forth on its audited consolidated
financial statements for the fiscal year ending December 31, 1999. Each
Shareholder agrees to place certificates representing his proportionate amount
of the Return Shares in escrow with Holdings and to have such certificates
affixed with a legend referencing this Agreement and the return provisions
provided for herein. Upon the attainment by Holdings of One Million Five Hundred
Thousand ($1,500,000) Dollars of Consolidated Net Income for the fiscal year
ending December 31, 1999, the Return Shares shall be released from escrow and
returned to Shareholders without the legend provided for herein.
(f) Each Shareholder is not an officer, director, affiliate or 5% or
more shareholder of any company or business entity that directly or indirectly
competes with the business of Nationwide.
(g) Each Shareholder agrees not to become an officer, director,
employee, affiliate or 5% or more shareholder of any company or business entity
that directly or indirectly competes with the business of Nationwide for a
period of five (5) years commencing with the Closing Date.
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7. Representations and Warranties of Nationwide:
(a) It is a corporation duly organized and existing under the laws of
the State of California and is qualified to do business under the laws of such
jurisdictions where it conducts its business.
(b) The only shares of capital stock that its has outstanding are the
Nationwide Shares and all of the Nationwide Shares are validly issued, fully
paid and non-assessable.
(c) It has no obligations, commitments or agreements to issue any
additional shares of common stock or any other equity security.
(d) It possesses all licenses, permits, etc. required and necessary for
it to conduct its operations in the normal course of business.
(e) Except for the contracts and agreements set forth on Exhibit C
attached hereto, it has no material agreements, contracts or commitments.
(f) Its audited balance sheet as of December 31, 1996 attached hereto as
Exhibit D is accurate as of such date and it owns and has title to all of the
assets included on such balance sheet free and clear of any claims or
encumbrances except as set forth thereon. As of December 31, 1996, it had no
liabilities other than those set forth on such balance sheet.
(g) Its unaudited balance sheet as of March 31, 1997 attached hereto as
Exhibit E is accurate as of such date and it owns and has title to all of the
assets included on such balance sheet free and clear of any claims or
encumbrances except as set forth thereon. As of March 31, 1997, it had no
liabilities other than those set forth on such balance sheet.
(h) Through the Closing Date, there has been no adverse change in its
financial condition or results of operations that would make such March 31, 1997
balance sheet inaccurate or misleading.
(i) It has filed all documents, statements and returns required by all
government agencies and all amounts due to any government agency have been paid
or provided for in its financial statements.
(j) It has no subsidiaries or is a party to any joint venture,
partnership or similar agreement.
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(k) It has no litigation pending, or to the best of its knowledge, there
is no litigation threatened against it.
8. Neither this Agreement, nor any provision hereof, shall be amended or
modified or deemed amended or modified, except by an agreement in writing duly
subscribed and acknowledged with the same formality as this Agreement. Any
waiver by either party of any provision of this Agreement or any right or option
hereunder, shall not be controlling nor shall it prevent or stop such party from
thereafter enforcing such provision, right or option, and the failure of either
party to insist in any one or more instances upon the strict performances of any
of the terms and provisions of this Agreement by the other party shall not be
construed as a waiver or relinquishment for the future of any such term or
provision, but the same shall continue in full force and effect.
9. All matters affecting the interpretation of this Agreement and the
rights of the parties hereto shall be governed by the laws of the State of
California.
10. In the event that any provision of this Agreement shall be held
contrary to, or invalid under the laws of any country, state or other
jurisdiction, such invalidity shall not affect in any way any provision hereof,
all of which shall continue in full force and effect in any country, state or
jurisdiction in which such provision is legal and valid.
11. Each of the respective rights and obligations of the parties
hereunder shall be deemed independent and may be enforced independently,
irrespective of any other rights and obligations set forth herein.
12. This Agreement contains the entire understanding of the parties, who
hereby acknowledge that there have been and are no representations, warranties,
covenants or understandings other than those expressly set forth herein.
13. This Agreement may be signed in counterparts and, when all such
counterparts are considered together, they shall act as a formal and binding
document by those affixing their signature to such counterparts.
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IN WITNESS WHEREOF, the parties hereto have set their hands and seals as of the
day and year first above written.
ATM HOLDINGS, INC.
By/s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx, President
Attest:
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx, Secretary
NATIONWIDE AUTOMATED SERVICES, INC.
By /s/ Xxxx Xxxxxx
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Xxxx Xxxxxx, President
Attest:
/s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx, Secretary
SHAREHOLDERS:
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
/s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
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