Exhibit 2.1
ACQUISITION AGREEMENT AND PLAN OF MERGER
ACQUISITION AGREEMENT AND PLAN OF MERGER (this "Agreement") made as of this 14th
---------
day of March, 2003, by and among Kaire Holdings, Incorporated, an Delaware
corporation having its principal place of business at 0000 Xxxxxxxx Xxx., Xxx
Xxxxxx, XX 00000 ("KAHI"), KAHI Acquisition Sub, Inc., a Delaware corporation
----
("KAHI SUB"), and EntreMetrix, a Nevada corporation having its principal place
---------
of business at 00000 XxxXxxxxx Xxxxxxxxx, 0xx Xxxxx, Xxxxxx, Xxxxxxxxxx 00000
("ENTR").
----
CAPITALIZED TERMS USED IN THIS AGREEMENT AND NOT OTHERWISE DEFINED SHALL
HAVE THE MEANINGS ASCRIBED TO SUCH TERMS IN SECTION 27.
WHEREAS, ENTR shall acquire 100% of the common stock of KAHI SUB, a wholly
owned subsidiary of KAHI, upon the merger of KAHI SUB with and into ENTR in
exchange for a combination of a promissory note plus 250,000,000 of the issued
and outstanding shares of KAHI Common Stock.
WHEREAS, KAHI is authorized to issue 900,000,000 shares of its common
stock, par value $0.001 per share (the "KAHI Common Stock") of which 490,484,863
-----------------
shares are issued and outstanding (the "Outstanding KAHI Common Stock"); and
-----------------------------
WHEREAS, KAHI SUB is a wholly owned subsidiary of KAHI and is authorized to
issue 200 shares of common stock, par value $.001 (referred to as the "KAHI SUB
--------
Shares"), all of which such KAHI SUB Shares are issued and outstanding and owned
------
by KAHI; and
WHEREAS, the respective Boards of Directors of KAHI and KAHI SUB deem it
advisable and generally to the advantage and welfare of the Companies, and their
respective shareholders, that (i) KAHI SUB be merged with and into ENTR under
the terms and conditions hereinafter set forth (the "Merger") and to be a tax
free reorganization under Section 368(a)(1)(A) of the Code; and
NOW, THEREFORE, in consideration of the premises, covenants and conditions
hereof, the parties hereto do mutually agree as follows:
1. Vote on Merger and Related Matters. The Constituent Corporations
-------------------------------------
shall each, as soon as practicable, but prior to closing, and in no event later
than 10 days after the execution and delivery hereof, (i) cause a special
meeting of its shareholders to be called to consider and vote upon the Merger on
the terms and conditions hereinafter set forth, or (ii) obtain written consent
of such shareholders, as is necessary, to approve the Merger. Subject to the
further conditions and provisions of this Agreement, a closing of the Merger
shall be held (the "Closing"), and a certificate of merger and all other
-------
documents or instruments deemed necessary or appropriate by the parties hereto
to effect the Merger shall be executed and filed with the Secretaries of States
of the States of Nevada and Delaware as promptly as possible thereafter. The
certificate of merger for the Merger (the "Certificate of Merger") so filed
---------------------
shall be substantially in the forms of Exhibits A1 and A2 annexed hereto, with
------------------
such changes therein as the Boards of Directors of the Constituent Corporations
shall mutually approve.
2. Representations, Warranties and Covenants of ENTR. ENTR and the
-----------------------------------------------------
ENTR Shareholders, jointly and severally, represent, warrant and covenant as
follows, except to the extent set forth on the ENTR Schedule of Exceptions:
(a) ENTR is, and on the Effective Date will be, a duly organized
and a validly existing corporation in good standing under the laws of
Nevada and in such other jurisdictions as it is qualified to do business.
Each ENTR Shareholder, including the name of the Shareholder and address
for notice of the applicable Shareholder is set forth on the ENTR Schedule
of Exceptions ("Outstanding ENTR Shareholder Interests"). All Outstanding
--------------------------------------
ENTR Shareholder Interests, on the Effective Date, will be duly authorized,
validly issued, fully paid and nonassessable. There are no, and on the
Effective Date there will be no, issued or outstanding rights, options or
warrants to purchase any equity interest in ENTR, including but not limited
to any Shareholder interests of ENTR or any other issued or outstanding
securities of any nature convertible into or exercisable or exchangeable
for Shareholder interests of ENTR, as applicable.
The Outstanding ENTR Shareholder Interests have all been issued pursuant to
an appropriate exemption from the registration requirements of the
Securities Act and from any applicable registration requirements of the
various states.
(b) ENTR does not have, and on the Effective Date will not have,
any subsidiaries, nor does it own any direct or indirect interest in any
other business entity.
(c) ENTR has, and on the Effective Date will have, full power and
authority to enter into this Agreement and, subject to any required Member
or other third party approval in accordance with the laws of the State of
California, to consummate the transactions contemplated hereby. This
Agreement and the transactions contemplated hereby have been, or shall be
within 24 hours of the execution of this Agreement, duly approved by the
ENTR Board of Directors and Shareholders.
(d) ENTR is qualified or licensed as a foreign corporation in all
jurisdictions where its business or ownership of assets so requires, except
where the failure to be qualified or licensed would not have a material
adverse effect on the business of ENTR. The business of ENTR does not
require it to be registered as an investment company or investment advisor,
as such terms are defined under the Investment Company Act of 1940 and the
Investment Advisers Act of 1940, each as amended.
(e) The financial statements of ENTR, consisting of its Balance
Sheets as of ENTR's fiscal year-end December 31, 2002, its Statement of
Income (Loss) for the fiscal year ended December 31, 2002, its Statements
of Cash Flows for the fiscal year ended December 31, 2002, have been
audited by independent public accountants and fairly present the financial
position, results of operations and other information purported to be shown
therein, at the date and for the respective periods to which they apply.
All such financial statements have been prepared in conformity with
generally accepted accounting principles consistently applied throughout
the periods involved, and have been adjusted for all normal and recurring
accruals. All such financial statements (together, the "Financial
---------
Statements") are acknowledged by the signatures to this Agreement to have
----------
been delivered to KAHI and are incorporated herein and made a part hereof.
(f) There has not been, and on the Effective Date there will not
have been in the aggregate, any material adverse change in the condition,
financial or otherwise, of ENTR from that set forth in the Financial
Statements.
(g) Except for transactions occurring in the ordinary course of
business, there has not been, and on the Effective Date there will not have
been, any transactions involving ENTR since September 30, 2002 in an amount
in excess of $100,000.
(h) There are, and on the Effective Date will be, no liabilities
(including, but not limited to, tax liabilities) or claims against ENTR
(whether such liabilities or claims are contingent or absolute, direct or
indirect, matured or unmatured) not appearing on the Financial Statements,
other than liabilities incurred in the ordinary course of business or taxes
incurred on earnings since December 31, 2002.
(i) All federal, state, county and local income, excise, property
and other tax or information returns required to be filed by ENTR have been
filed, and all required taxes, fees or assessments have been paid or an
adequate reserve therefore has been established in the Financial
Statements. The federal income tax returns and state and foreign income tax
returns of ENTR have not been audited by the IRS or any other taxing
authority within the past five (5) years. Neither the IRS nor any state,
local or other taxing authority has proposed any additional taxes, interest
or penalties with respect to ENTR or any of their operations or businesses.
There are no pending, or to the knowledge of ENTR, threatened, tax claims
or assessments, and there are no pending, or to the knowledge of ENTR,
threatened, tax examinations by any taxing authorities. ENTR has not given
any waivers of rights (which are currently in effect) under applicable
statutes of limitations with respect to the federal income tax returns of
ENTR, for any year.
(j) Except as provided for in the Financial Statements, ENTR, has,
and on the Effective Date will have, good and marketable title to all of
its furniture, fixtures, equipment and other assets as set forth in the
Financial Statements, and such assets are owned free and clear of all
security interests, pledges, liens, restrictions and encumbrances of every
kind and nature, except as set forth in the Financial Statements.
(k) ENTR is the owner of its inventory as set forth in the
Financial Statements and has good and marketable title thereto.
(l) The accounts receivable as set forth in the Financial
Statements represent amounts due for goods sold or services rendered by
ENTR in the ordinary course of business and, except as reserved for in the
Financial Statements, are collectable in the ordinary course of business.
(m) A copy of all agreements, contracts, arrangements,
understandings and commitments, whether written or oral, to which ENTR is
or on the Effective Date will be, a party, or from which ENTR will receive
substantial benefits and which are material to ENTR (collectively,
"Contracts"), have been delivered to KAHI and KAHI SUB. A list of such
---------
Contracts is set forth on the ENTR Schedule of Exceptions, which such
schedule shall be amended at the Effective Date to reflect any Contracts
entered into between the date hereof and the Effective Date. ENTR is not
now, nor will be on the Effective Date, in material default under any
Contract. The validity, enforceability, and rights of ENTR contained in
each such Contract shall not be adversely affected by the Merger or the
transactions contemplated hereby or any actions taken in furtherance
hereof.
(n) There are, and on the Effective Date there will be, no legal,
administrative, arbitral or other proceedings, claims, actions or
governmental investigations of any nature pending, or to ENTR's knowledge,
as applicable, threatened, involving ENTR, individually or in the aggregate
in which an unfavorable determination could result in suspension or
termination of ENTR's business or authority to conduct such business in any
jurisdiction or could result in the payment by ENTR of more than $25,000
individually or $100,000 in the aggregate, or challenging the validity or
propriety of the transactions contemplated by this Agreement and, to ENTR's
best knowledge, there is no reasonable basis for any such proceeding,
claim, action or governmental investigation. ENTR is not a party to any
order, judgment or decree which will, or might reasonably be expected to,
materially adversely affect the business, operations, properties, assets or
financial condition of ENTR.
(o) Since December 31, 2002 there have been, and through the
Effective Date there will be (i) no bonuses or extraordinary compensation
to any of the officers, Managing Member or Members, (ii) no loans made to
or any other transactions with any of the officers, Managing Member or
Members or their families, and (iii) no dividends or other distributions
declared or paid by ENTR.
(p) ENTR has, and on the Effective Date will have, maintained
casualty and liability policies and other insurance policies with respect
to its business which are appropriate and customary for businesses similar
in size, industry and risk profile. Copies of all of the policies of
insurance and bonds presently in force with respect to ENTR, including
without limitation those covering properties, buildings, machinery,
equipment, worker's compensation, officers and directors and public
liability, have been delivered to KAHI and KAHI SUB. All such insurance is
outstanding and in full force and effect, with all premiums thereon duly
paid, and ENTR has not received any notice of cancellation of any such
policies.
(q) ENTR has, and on the Effective Date will have, no patents,
patent applications, trademarks, trademark registrations or applications,
trade names, copyrights, copyright registrations or applications, or other
intellectual property. ENTR does not have knowledge of any infringements by
it of any third party's intellectual property.
(r) Since its inception, ENTR has, and on the Effective Date will
have, in all material respects operated its business and conducted its
affairs in compliance with all applicable laws, rules and regulations,
except where the failure to so comply did not have and would not be
expected to have a material adverse effect on its business or property.
(s) There are, and on the Effective Date there will be, no loans,
leases or other Contracts outstanding between ENTR and any of its officers,
directors or any other Shareholder or any person related to or affiliated
with any such officers or director or any other Shareholder.
(t) During the past five year period neither ENTR, nor any of its
officers or directors, nor any person intended upon consummation of the
Merger to become an officer or director of either ENTR or KAHI or any
successor entity or subsidiary, has been the subject of:
(i) a petition under the Federal bankruptcy laws or any other
insolvency or moratorium law or has a receiver, fiscal agent or
similar officer been appointed by a court for the business or property
of ENTR or such person, or any partnership in which ENTR or any such
person was a general partner at or within two years before the time of
such filing, or any corporation or business association of which ENTR
or any such person was an executive officer at or within two years
before the time of such filing;
(ii) a conviction in a criminal proceeding or a named subject
of a pending criminal proceeding (excluding traffic violations which
do not relate to driving while intoxicated or driving under the
influence);
(iii) any order, judgment or decree, not subsequently
reversed, suspended or vacated, of any court of competent
jurisdiction, permanently or temporarily enjoining ENTR or any such
person from, or otherwise limiting, the following activities:
(A) acting as a futures commission merchant, introducing
broker, commodity trading advisor, commodity pool operator, floor
broker, leverage transaction merchant, any other person regulated
by the United States Commodity Futures Trading Commission
("CFTC") or an associated person of any of the foregoing, or as
----
an investment adviser, underwriter, broker or dealer in
securities, or as an affiliated person, director or employee of
any investment company, bank, savings and loan association or
insurance company, or engaging in or continuing any conduct or
practice in connection with such activity;
(B) engaging in any type of business practice; or
(C) engaging in any activity in connection with the
purchase or sale of any security or commodity or in connection
with any violation of Federal, state or other securities laws or
commodities laws;
(iv) any order, judgment or decree, not subsequently
reversed, suspended or vacated, of any Federal, state or local
authority barring, suspending or otherwise limiting for more than 60
days the right of ENTR or any such person to engage in any activity
described in the preceding sub-paragraph, or to be associated with
persons engaged in any such activity;
(v) a finding by a court of competent jurisdiction in a civil
action or by the Commission to have violated any securities law,
regulation or decree and the judgment in such civil action or finding
by the Commission has not been subsequently reversed, suspended or
vacated; or
(vi) a finding by a court of competent jurisdiction in a
civil action or by the CFTC to have violated any federal commodities
law, and the judgment in such civil action or finding by the CFTC has
not been subsequently reversed, suspended or vacated.
(u) ENTR does not have any pension plan, profit sharing or similar
employee benefit plan.
(v) Except for the consent and approval of the Members and the
filing of the Certificate of Merger, no consents or approvals of, or
filings or registrations with, any third party or any public body or
authority are necessary in connection with (i) the execution and delivery
by ENTR of this Agreement and (ii) the consummation by ENTR of the Merger
and by ENTR of all other transactions contemplated hereby. This Agreement
has been duly executed and delivered by ENTR and constitutes the legal,
valid and binding obligation of ENTR, enforceable against it in accordance
with the terms hereof, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws of general application relating
to or affecting the enforcement of rights hereunder or general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(w) ENTR knows of no person who rendered any service in connection
with the introduction of KAHI, KAHI SUB or ENTR to any of the other
companies, and they know of no claim by anyone for a "finder's fee" or
similar type of fee in connection with the Merger and the other
transactions contemplated
hereby (See "Conflict of Interest and ENTR Ownership Disclosure" on Page 1
of this Agreement.
(x) No employees of ENTR are on strike or to the best of their
knowledge threatening any strike or work stoppage. ENTR does not have any
obligations under any collective bargaining or labor union agreements nor
is ENTR involved in any material controversy with any of its employees or
any organization representing any of its employees.
(y) None of the information supplied or to be supplied by or about
ENTR for inclusion or incorporation by reference in any information
supplied to holders of KAHI Common Stock concerning the Merger, contains
any untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading.
(z) The execution and delivery by ENTR of this Agreement, the
consummation and performance of the transactions herein contemplated, and
compliance with the terms of this Agreement by ENTR will not conflict with,
result in a breach of or constitute or give rise to a default under (i) any
indenture, mortgage, deed of trust or other agreement, instrument or
Contract to which ENTR is now a party or by which it or any of its assets
or properties are bound; (ii) the Articles of Incorporation or the bylaws
of ENTR (a copy of both of which are attached hereto), in each case as
amended; or (iii) any law, order, rule, regulation, writ, injunction,
judgment or decree of any government, governmental instrumentality or
court, domestic or foreign, having jurisdiction over ENTR or any of its
business or properties wherein such breach could have a material adverse
effect on ENTR or any of its business or properties.
(aa) To the best of its knowledge, ENTR is not in violation of any
federal, state or local environmental law or regulation.
3. Representations and Warranties of KAHI SUB. KAHI SUB represents and
----------------------------------------------
warrants as follows:
(a) KAHI SUB is, and on the Effective Date will be, a duly
organized and validly existing corporation in good standing under the laws
of the State of Delaware, authorized to issue only the KAHI SUB Shares. On
the Effective Date there will be issued and outstanding all of the KAHI SUB
Shares, which shall be fully paid and nonassessable and all of which shall
be owned by KAHI. There are no, and on the Effective Date there will be no
issued or outstanding options or warrants to purchase KAHI SUB Shares or
any issued or outstanding securities of any nature convertible into KAHI
SUB Shares, or any agreements or understandings to issue any KAHI SUB
Shares, options or warrants.
(b) KAHI SUB has been organized solely for the purpose of
consummating the Merger and, since its inception, has had no business
activity of any nature other than those related to its organization or as
contemplated by this Agreement.
(c) KAHI SUB has, and on the Effective Date will have, full power
and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. This Agreement and the transactions
contemplated hereby have been duly approved by the Board of Directors of
KAHI SUB.
(d) Since its inception, KAHI SUB has not issued or committed
itself to issue, and to the Effective Date will not issue or commit to
issue, any KAHI SUB Shares or any options, rights, warrants, or other
securities convertible into KAHI SUB Shares, except for the issuance of the
KAHI SUB Shares to KAHI.
(e) Except for the consent and approval of the shareholders of
KAHI SUB, and the filing of the Certificate of Merger, no consents or
approvals of, or filings or registrations with, any third party or any
public body or authority are necessary in connection with (i) the execution
and delivery by KAHI SUB of this Agreement and (ii) the consummation by
KAHI SUB of the Merger and the other transactions contemplated hereby.
(f) The execution and delivery by KAHI SUB of this Agreement, the
consummation and performance of the transactions herein contemplated, and
compliance with the terms of this Agreement by KAHI SUB will not conflict
with, result in a breach of or constitute or give rise to a default under
any indenture, mortgage, deed of trust or other agreement, instrument or
contract to which KAHI SUB is now a party or by which it or any of its
assets or properties are bound or its Certificate of Incorporation or the
bylaws of KAHI SUB as amended, or any law, order, rule or regulation, writ,
injunction, judgment or decree of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over
KAHI SUB or any of its businesses or properties.
(g) KAHI SUB is, and on the Effective Date will be duly
authorized, qualified, and licensed under any and all applicable laws,
regulations, ordinances, or orders of public authorities to carry on its
business in the places and in the manner as presently conducted or as
contemplated in this Agreement. The business of KAHI SUB does not require
it to be registered as an investment company or investment adviser as such
terms are defined under the Investment Company Act and the Investment
Advisers Act of 1940, each as amended.
(h) KAHI SUB has, and on the Effective Date will have no
subsidiaries.
(i) Except for (i) the incurring of expenses of its organization,
(ii) the issuance of the KAHI SUB Shares to KAHI, (iii) the incurring of
expenses relating to this Agreement and the consummation of the
transactions contemplated by this Agreement, and (iv) the consummation of
the Merger, KAHI SUB has had, and on the Effective Date will have had no
business and no financial or other transactions of any nature whatsoever.
(j) KAHI SUB has, and on the Effective Date will have no
liabilities (including, but not limited to, tax liabilities) nor are there,
or on the Effective Date will there be, any claims against KAHI SUB
(whether such liabilities or claims are contingent or absolute, direct or
indirect, and matured or unmatured) except for liabilities for its
organization expenses or expenses incurred in connection with the Merger.
(k) KAHI SUB has, and on the Effective Date will have no fixtures,
furniture, equipment, inventory or accounts receivable.
(l) KAHI SUB has, and on the Effective Date will have no contracts
and commitments to which it is, or on the Effective Date will be a party,
except for this Agreement and other documents and instruments contemplated
hereby in connection with the Merger.
(m) There are, and on the Effective Date there will be no legal,
administrative, arbitral or other proceedings, claims, actions or
governmental investigations of any nature against KAHI SUB, or challenging
the validity or propriety of the transactions contemplated by this
Agreement and, to KAHI SUB's best knowledge, there is no reasonable basis
for any other proceeding, claim, action or governmental investigation
against KAHI SUB. KAHI SUB is not a party to any order, judgment or decree
which will, or might reasonably be expected to, materially adversely affect
the business, operations, properties, assets or financial condition of KAHI
SUB.
(n) Since the inception of KAHI SUB there have been, and to the
Effective Date there will be (i) no salaried or otherwise compensated
employees and no bonuses paid to any officer or director of KAHI SUB; (ii)
no loans made to or any transactions with any officer or director of KAHI
SUB; (iii) no dividends or other distributions declared or paid by KAHI
SUB; and (iv) no purchase by KAHI SUB of any KAHI SUB Shares.
(o) Since its inception, KAHI SUB has not issued or committed
itself to issue, and to the Effective Date will not issue or commit itself
to issue any KAHI SUB shares or any options, rights, warrants, or other
securities convertible into KAHI SUB Shares except for the issuance of the
KAHI SUB Shares to KAHI.
(p) KAHI SUB has no patents, patent applications, trademarks,
trademark registrations, tradenames, copyrights, copyright registrations or
applications therefor.
(q) Since its inception, KAHI SUB has, and on the Effective Date
will have in all material respects conducted its affairs in compliance with
all applicable laws, rules and regulations.
(r) During the past five year period, no officer or director of
KAHI SUB has been the subject of any Bad Event.
(s) KAHI SUB has no pension plan, profit sharing or similar
employee benefit plan.
(t) KAHI SUB knows of no person who rendered any service in
connection with the introduction of KAHI, KAHI SUB or ENTR to any of the
other Companies and they know of no claim by anyone for a "finder's fee" or
similar type of fee in connection with the Merger and the other
transactions contemplated hereby.
(u) KAHI SUB has no employees.
4. Representations and Warranties of KAHI. KAHI represents, warrants
----------------------------------------
and covenants, except to the extent set forth on the KAHI Schedule of Exceptions
or except as set forth in the reports required to be filed by KAHI under the
Securities Act and the Exchange Act of 1934, as amended, including pursuant to
Section 13(a) or 15(d) thereof ("SEC Reports"), as follows:
------------
(a) KAHI is a duly organized and validly existing corporation in
good standing under the laws of the State of Delaware, authorized to issue
an aggregate of 900,000,000 shares of KAHI Common Stock. As of the
Effective Date, other than KAHI Common Stock, there are no other securities
authorized and/or issuable under the KAHI Articles of Incorporation. On the
Effective Date, there will be issued and outstanding no more than
490,484,863 shares of KAHI Common Stock, all of which such issued and
outstanding shares will be validly issued, fully paid and nonassessable.
Except as contemplated by this Agreement, on the Effective Date there will
be no issued or outstanding options, warrants or other rights, or
commitments or agreements of any kind, contingent or otherwise, to purchase
or otherwise acquire shares of KAHI Common Stock or any issued or
outstanding securities of any nature convertible into shares of KAHI Common
Stock. There is no proxy or any other agreement, arrangement or
understanding of any kind authorized or outstanding which restricts, limits
or otherwise affects the right to vote any shares of KAHI Common Stock.
(b) KAHI is, and on the Effective Date will be, duly authorized,
qualified and licensed under any and all applicable laws, regulations,
ordinances or orders of public authorities to carry on its business in the
places and in the manner as presently conducted. The business of KAHI does
not require it to be registered as an investment company or investment
advisor, as such terms are defined under the Investment Company Act and the
Investment Advisors Act of 1940.
(c) KAHI has, and on the Effective Date does have subsidiaries
including the KAHI SUB.
(d) The financial statements of KAHI, consisting of its Balance
Sheets as at December 31, 2001 and 2000, and its Statement of Operations
for the fiscal years ended December 31, 2001 and 2000, its Statement of
Stockholders' Equity as of December 31, 2001 and 2000, and its Statement of
Cash Flows for the fiscal years ended December 31, 2001 and 2000, all
together with accompanying notes, have been audited by independent public
accountants, are complete and correct in all material respects, present
fairly the financial position of KAHI and the results of operations and
changes in financial position for the respective periods ended on such
dates, and were prepared in accordance with generally accepted accounting
principles consistently applied during the periods. The interim financial
statements of KAHI, consisting of its Balance Sheet as of September 30,
2002 and its Statement of Operations, Statement of Stockholders' Equity and
Statement of Cash Flows for the six-month period ending September 30, 2002
have been prepared in accordance with generally accepted accounting
principles and have been adjusted for all normal and recurring accruals and
present fairly the financial position of KAHI and the results of operations
and changes in financial position for the respective periods ended on such
dates, and were prepared in accordance with generally accepted accounting
principles consistently applied during the periods. All the financial
statements referenced herein regarding KAHI are collectively referred to as
the "KAHI Financial Statements", all of which are set forth in the SEC
---------------------------
Reports publicly filed with the Commission.
(e) There has not been, and on the Effective Date there will not
have been, any material change in the financial condition of KAHI from that
set forth in the KAHI Financial Statements except for (i) transactions in
the ordinary course of business, (ii) transactions relating to this
Agreement, and (iii) the
incurring of expenses and liabilities relating to this Agreement.
(f) There are, and on the Effective Date will be, no liabilities
(including, but not limited to, tax liabilities) or claims against KAHI
(whether such liabilities or claims are contingent or absolute, direct or
indirect, accrued or unaccrued and matured or unmatured) not appearing on
the KAHI Financial Statements, except for (i) liabilities for expenses
incurred relating to this Agreement and the consummation of the
transactions contemplated hereby and (ii) liabilities and commitments
incurred or made in the ordinary course of KAHI's business or taxes
incurred on earnings since December 31, 2002.
(g) All federal, state, county and local income, excise, property
or other tax returns required to be filed by KAHI have been filed and all
required taxes, fees or assessments have been paid or an adequate reserve
therefore has been set up in the KAHI Financial Statements.
(h) Reserved
(i) KAHI has, and on the Effective Date will have, no material
non-disclosed contracts to which it is, or on the Effective Date will be, a
party.
(j) There are, and on the Effective Date there will be, no legal,
administrative, arbitral or other proceedings, claims, actions or
governmental investigations of any nature pending or to KAHI's knowledge
threatened in writing, against KAHI, including, but not limited to any
shareholder claims or derivative actions, or challenging the validity or
propriety of the transactions contemplated by this Agreement, and, to
KAHI's best knowledge, there is no reasonable basis for any proceeding,
claim, action or governmental investigation against KAHI. KAHI is not a
party to any order, judgment or decree which will, or might reasonably be
expected to, materially adversely affect the business, operations,
properties, assets or financial condition of KAHI.
(k) Since December 31, 2002 and to the Effective Date there will
be (i) no salaried or otherwise compensated employees and no bonuses paid
to any officer or director of KAHI; (ii) no loans made to or transactions
with any officer or director of KAHI; (iii) no dividends or other
distributions declared or paid by KAHI; and (iv) no purchase by KAHI of any
of the KAHI common stock except those disclosed.
(l) KAHI has not issued or committed itself to issue, and to the
Effective Date will not issue or commit itself to issue, any additional
common shares or any options, rights, warrants, or other securities
convertible into common shares, except as contemplated by this Agreement.
(m) KAHI has no issued patents, trademarks, trademark
registrations, trade names, copyrights, copyright registrations or
applications therefor. KAHI has no knowledge of any infringements by it of
any third party's intellectual property.
(n) KAHI has, and on the Effective Date will have, in all material
respects operated its business and conducted its affairs in compliance with
all applicable laws, rules and regulations.
(o) On the Effective Date there will be no loans, leases,
commitments, arrangements or other contracts of any kind or nature
outstanding between (i) KAHI and (ii) any officer or director of KAHI or
any person related to or affiliated with any officer or director of KAHI.
(p) During the past five year period, no officer or director of
KAHI has been the subject of any Bad Event.
(q) KAHI has no pension plan, profit sharing or similar employee
benefit plan.
(r) Except for the consent and approval of the Boards of Directors
of KAHI SUB and KAHI and the Managing Member and Members to the Merger, the
filing of a Certificate of Merger, the filing of a Form 8-K within 15 days
of the Effective Date and the filing of a Form D with the Commission and
the State of California, no consents or approvals of, or filings or
registrations with, any third party or any public body or authority are
necessary in connection with (i) the execution and delivery by KAHI of this
Agreement and (ii) the consummation of the Merger and the other
transactions contemplated hereby.
KAHI has, and on the Effective Date will have, full power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby. This Agreement and the transactions contemplated hereby have been,
or will be prior to the Effective Date, duly approved by the Board of
Directors of KAHI. This Agreement has been duly executed and delivered by
KAHI and constitutes the legal, valid and binding obligation of KAHI
enforceable against it in accordance with the terms hereof except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws of general application relating to or affecting the enforcement of
rights hereunder or general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
(s) KAHI knows of no person who rendered any service in connection
with the introduction of KAHI, KAHI SUB or ENTR to any of the other
companies and they know of no claim by anyone for a "finder's fee" or
similar type of fee in connection with the Merger and the other
transactions contemplated hereby.
(t) None of the information supplied or to be supplied by or about
KAHI to ENTR concerning the Merger contains any untrue statement of a
material fact or omits to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they are made, not misleading.
(u) The execution and delivery by KAHI of this Agreement, the
consummation and performance of the transactions herein contemplated, and
compliance with the terms of this Agreement by KAHI will not conflict with,
result in a breach of or constitute a default under (i) any indenture,
mortgage, deed of trust or other agreement, instrument or contract to which
KAHI is now a party or by which it or any of its assets or properties is
bound; (ii) the Certificate of Incorporation, as amended, or the bylaws of
KAHI, in each case as amended; or (iii) any law, order, rule or regulation,
writ, injunction, judgment or decree of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over
KAHI or any of its business or properties.
(v) To the best of its knowledge, KAHI is not in violation of any
federal, state or local environmental law or regulation.
5. Representations and Warranties of each ENTR Shareholder. Each
-------------------------------------------------------------
Shareholder, including the director and officer, for itself and no other,
represents and warrants as follows:
(a) Investment Intent. Such Shareholder is acquiring the
------------------
Shareholder Securities as principal for its own account for investment
purposes only and not with a view to or for distributing or reselling such
Shareholder Securities or any part thereof. Such Shareholder is acquiring
the Shareholder Securities hereunder in the ordinary course of its
business. Such Shareholder does not have any agreement or understanding,
directly or indirectly, with any Person to distribute any of the
Shareholder Securities.
(b) Shareholder Status. Such Shareholder is an "accredited
-------------------
investor" as defined in Rule 501(a) under the Securities Act.
(c) Experience of suchShareholder. Such Shareholder, either alone
-----------------------------
or together with its representatives, has such knowledge, sophistication
and experience in business and financial matters so as to be capable of
evaluating the merits and risks of the prospective investment in the
Shareholder Securities, and has so evaluated the merits and risks of such
investment. Such Shareholder is able to bear the economic risk of an
investment in the Shareholder Securities and, at the present time, is able
to afford a complete loss of such investment.
(d) General Solicitation. Such Shareholder is not purchasing the
---------------------
Shareholder Securities as a result of any advertisement, article, notice or
other communication regarding the Shareholder Securities published in any
newspaper, magazine or similar media or broadcast over television or radio
or presented at any seminar or any other general solicitation or general
advertisement.
(e) KAHI's Information. Such Shareholder has read the SEC Reports
------------------
and has had an opportunity to discuss KAHI's business, management and
financial affairs with directors, officers and
management of KAHI and has had the opportunity to review KAHI's operations
and facilities. Such Shareholder has also had the opportunity to ask
questions of and receive answers from, KAHI and its management regarding
the terms and conditions of this investment.
(f) Residence. If such Shareholder is an individual, then such
---------
Shareholder resides in the state or province identified in the address of
such Shareholder set forth on the ENTR Schedule of Exceptions; if such
Shareholder is a partnership, corporation, limited liability company or
other entity, then the office or offices of such Shareholder in which its
investment decision was made is located at the address or addresses of such
Shareholder set forth on ENTR Schedule of Exceptions.
(g) Rule 144. Such Shareholder acknowledges and agrees that the
---------
Shareholder Securities are "restricted securities" as defined in Rule 144
promulgated under the Securities Act as in effect from time to time and
must be held indefinitely unless they are subsequently registered under the
Securities Act or an exemption from such registration is available. Such
Shareholder has been advised or is aware of the provisions of Rule 144,
which permits limited resale of shares purchased in a private placement
subject to the satisfaction of certain conditions, including, among other
things: the availability of certain current public information about KAHI,
the resale occurring following the required holding period under Rule 144
and the number of shares being sold during any three-month period not
exceeding specified limitations.
6. Representations to Survive Closing. All of the representations,
-------------------------------------
covenants and warranties contained in this Agreement (including all statements
contained in any certificate or other instrument delivered by or on behalf of
KAHI, KAHI SUB or ENTR pursuant hereto or in connection with the transactions
contemplated hereby) shall survive the Closing for a period of three (3) years
from the Effective Date.
7. Surviving Corporation. The surviving entity shall be ENTR. Its
----------------------
name, identities, articles of organization, operating agreement, existence,
purposes, powers, objects, franchises, rights and immunities shall be unaffected
and unimpaired by the Merger, except as described in the Certificate of Merger.
8. Treatment of Shares of Constituent Corporations. The terms and
----------------------------------------------------
conditions of the Merger, the mode of carrying the same into effect, and the
manner and basis of converting the securities of each of the Constituent
Corporations are as follows:
(a) All of the Outstanding ENTR Shareholder Interests shall be
converted by virtue of the Merger at the Effective Date into, in the
aggregate, 250,000,000 shares of KAHI Common Stock ("Shareholder
-----------
Securities"). After the Effective Date, each Shareholder, upon surrender of
----------
their Outstanding ENTR Shareholder Interest (shares) existing immediately
prior to the Effective Date, shall be entitled to receive from KAHI,
pro-rata based upon their respective share of such Outstanding Shareholder
Interest, certificates representing their share of the Shareholder
Securities, which certificates shall contain any appropriate restrictive
legend concerning the resale of such securities. Until so surrendered, any
outstanding certificates or other documentation which, prior to the
Effective Date, represented Outstanding ENTR Shareholder Interests, shall
be deemed for all corporate purposes to evidence ownership of the
Shareholder Securities into which such Outstanding ENTR Shareholder
Interests shall be convertible into. Upon such surrender, Outstanding ENTR
Shareholder Interests so surrendered shall no longer be outstanding and
shall automatically be canceled and retired and shall cease to exist. Upon
conversion, any fractional shares resulting from conversion shall be
rounded to the nearest whole number of Shares.
(b) All of the KAHI SUB Shares shall be converted by virtue of the
Merger at the Effective Date into, in the aggregate, Shareholder Interests
representing 100% of the Shareholder Interests of ENTR, and all of such
interests shall be held by KAHI.
(c) The separate existence and corporate organization of KAHI SUB,
except insofar as it may be continued by statute, shall cease on Effective
Date and ENTR shall become a wholly owned subsidiary of KAHI.
9. Rights and Liabilities of Surviving Corporation. (a) On and after
------------------------------------------------
the Effective Date, ENTR, as the surviving entity of the Merger, shall succeed
to and possess, without further act or deed, all of the estate, rights,
privileges, powers and franchises, both public and private and all of the
property, real, personal and mixed, of KAHI SUB; all debts due to KAHI SUB on
whatever account shall be vested in ENTR; all claims, demands, property, rights,
privileges, powers, franchises and every other interest of KAHI SUB shall be as
effectively the property of
ENTR as they were of KAHI SUB; the title to any real estate by deed or otherwise
in KAHI SUB shall not revert or be in any way impaired by reason of the Merger,
but shall be vested in ENTR; all rights of creditors and all liens upon any
property of KAHI SUB shall be preserved unimpaired, limited in lien to the
property affected by such lien at the Effective Date; all debts, liabilities and
duties of KAHI SUB shall thenceforth attach to ENTR and may be enforced against
it to the same extent as if such debts, liabilities and duties had been incurred
or contracted by it; and ENTR shall indemnify and hold harmless KAHI and the
officers and directors of KAHI SUB against all such debts, liabilities and
duties and against all claims and demands arising out of the Merger.
10. Further Assurances of Title. As and when requested by ENTR, or by
----------------------------
any of its successors or assigns, KAHI SUB shall execute and deliver, or cause
to be executed and delivered, all such deeds and instruments and will take or
cause to be taken all such further action as ENTR may deem necessary or
desirable in order to vest in and confirm to ENTR title to and possession of the
property acquired by ENTR by reason or as a result of the Merger and otherwise
to carry out the intent and purposes hereof, and the officers and directors of
ENTR and KAHI are fully authorized in the name of ENTR or KAHI or otherwise to
take any and all such action.
11. Conditions of Obligations of KAHI SUB and KAHI. The obligation of
-----------------------------------------------
KAHI SUB and KAHI to consummate the Merger is subject to the following
conditions prior to the Effective Date:
(a) ENTR has not suffered an uninsured loss on account of fire,
flood, accident, or other calamity of such a character as to interfere
materially with the continuous operation of its business or materially
affect adversely its condition, financial or otherwise, regardless of
whether or not such loss shall have been insured.
(b) That no material transactions shall have been entered into by
ENTR other than transactions in the ordinary course of business between
December 31, 2002 and the Effective Date, other than as referred to in this
Agreement or in the schedules annexed, except with the prior written
consent of KAHI.
(c) Except as disclosed in this Agreement or in the schedules
annexed hereto, that no material adverse change in the aggregate shall have
occurred in the financial condition of ENTR since December 31, 2002.
(d) That none of the properties or assets of ENTR shall have been
sold or otherwise disposed of other than in the ordinary course of business
during such period, except with the prior written consent of KAHI.
(e) That ENTR shall have performed and complied with the
provisions and conditions of this Agreement on its part to be performed and
complied with, and that the representations and warranties made by ENTR in
this Agreement are true and correct, both when made and as of the Effective
Date.
(f) That all applicable filings and regulatory approvals required
to be made or obtained by ENTR have been made or obtained.
(g) That this Agreement and the transactions contemplated hereby
shall have been approved by appropriate action of ENTR.
(h) That there shall have been full compliance with the applicable
securities or "blue sky" laws and regulations of any state or other
governmental body having jurisdiction over the Merger.
(i) That KAHI shall have received from ENTR the following
documents:
(i) original signature pages of this Agreement duly executed
by ENTR, the directors and each Shareholder;
(ii) Good Standing Certificate of ENTR from the State of
Nevada;
(iii) Certificate of Organization of ENTR from the State of
Nevada;
(iv) Organizational minutes of ENTR and any other documents
required by Section 16;
(v) Articles of Incorporation and bylaws of ENTR;
(vi) an opinion from counsel to ENTR, substantially in the
form of Exhibit C attached hereto;
----------
(vii) Written consent of the ENTR Board of Directors
authorizing the Merger;
(viii) Certificate of the Board of Directors evidencing
compliance with the provisions of this Section 11;
(ix) Form D and evidence of filing with the State of Nevada;
and
(x) Original signature page of each Certificate of Merger for
filing with the Secretary of State of Nevada.
12. Conditions of Obligations of ENTR. The obligations of ENTR to
-------------------------------------
consummate the Merger are subject to the following conditions prior to the
Effective Date:
(a) That KAHI SUB and KAHI are in compliance with their respective
representations, warranties and covenants contained herein, and that ENTR
shall receive from each of KAHI SUB and KAHI a certificate to such effect
from the President of KAHI SUB and KAHI as of the Effective Date.
(b) That KAHI SUB and KAHI shall not have suffered any loss on
account of fire, flood, accident or other calamity of such a character as
to interfere materially with the continuous operation of its business or
materially affect adversely its condition, financial or otherwise,
regardless of whether or not such loss shall have been insured.
(c) That no material transactions shall have been entered into by
KAHI SUB or KAHI other than transactions in the ordinary course of business
since December 31, 2002, other than as referred to in this Agreement,
except with the prior written consent of ENTR.
(d) That no material adverse change shall have occurred in the
financial condition of KAHI SUB or KAHI since December 31, 2002 other than
as referred to in this Agreement.
(e) That none of the properties or assets of KAHI SUB or KAHI
shall have been sold or otherwise disposed of other than in the ordinary
course of business December 31, 2002, except with the written consent of
ENTR.
(f) That KAHI SUB and KAHI shall each have performed and complied
with the provisions and conditions of this Agreement on its part to be
performed and complied with, and that the representations and warranties
made by KAHI herein are true and correct.
(g) That all applicable filings and regulatory approvals required
to be made or obtained by KAHI have been made or obtained.
(h) That KAHI shall have held a meeting of its Board of Directors
at which meeting all of its directors shall have resigned seriatim and the
persons designated by ENTR shall have been elected as directors of KAHI,
all subject to the consummation of the Merger.
(i) That ENTR shall have received from KAHI and KAHI SUB the
following documents:
(i) original signature page of this Agreement duly executed
by KAHI and KAHI SUB;
(ii) Good Standing Certificate of KAHI;
(iii) Good Standing Certificate of KAHI SUB;
(iv) Certificate of Incorporation of KAHI;
(v) Certificate of Incorporation of KAHI SUB;
(vi) Organizational minutes of KAHI and any other documents
required by Section 15;
(vii) Organizational minutes of KAHI SUB and any other
documents required by Section 15;
(viii) By-Laws of KAHI;
(ix) By-Laws of KAHI SUB;
(x) an opinion from counsel to KAHI SUB, substantially in
the form of Exhibit D attached hereto;
----------
(xi) Written consent of shareholders of KAHI SUB authorizing
the Merger;
(xii) Written consent of the Board of Directors of KAHI
authorizing the Merger;
(xiii) Officer's Certificate of KAHI evidencing compliance
with the provisions of this Section 12; and
(xiv) Officer's Certificate of KAHI SUB evidencing compliance
with the provisions of this Section 12.
13. Abandonment. This Agreement and the Merger may be abandoned (a) by
-----------
any of the Companies, acting by its Board of Directors, at any time prior to its
adoption by the shareholders of such Company, as provided by law, (b) by any of
the Companies, acting by its Board of Directors by written notice to the other
parties hereto, at any time in the event of the failure of any condition in
favor of such entity as to which the consummation of the Merger is subject, or
(c) by the consent of all the Companies, acting each by its Board of Directors,
at any time after such adoption by such shareholders and prior to the Effective
Date. In the event of abandonment of this Agreement, the same shall become
wholly void and of no effect, and there shall be no further liability or
obligation hereunder on the part of any of the Companies, their respective
Boards of Directors or any other party to this Agreement.
14. Closing or Termination. In the event the Closing of this Agreement
----------------------
shall not take place by March 15, 2003, due to failure of any condition of
closing required herein, any party shall have the right to terminate this
Agreement, in which event no party shall have any further right or obligation as
against any other.
15. Delivery of Corporate Proceedings of KAHI and KAHI SUB. At the
-----------------------------------------------------------
Closing, KAHI and KAHI SUB shall deliver to counsel for ENTR the originals of
all of the corporate proceedings of KAHI and KAHI SUB, duly certified by their
respective Secretaries, relating to this Agreement.
16. Delivery of Corporate Proceedings of ENTR. At the Closing, ENTR
---------------------------------------------
shall deliver to counsel for KAHI and KAHI SUB the originals of all of the
corporate proceedings of ENTR, duly certified by its Secretary, relating to this
Agreement and a draft of the language proposed to be included the Form 8-K to be
filed within 15 days of the Effective Day, which draft shall be substantially in
compliance with the requirements of Form 8-K.
17. Limitation of Liability. The representations and warranties made
------------------------
by any party to this Agreement are intended to be relied upon only by the other
parties to this Agreement and by no other person. Nothing contained in this
Agreement shall be deemed to confer upon any person not a party to this
Agreement any third party beneficiary rights or any other rights of any nature
whatsoever.
18. Further Instruments and Actions. Each party shall deliver such
---------------------------------
further instruments and take such further action as may be reasonably requested
by any other in order to carry out the intent and purposes of this Agreement.
19. Governing Law. This Agreement is being delivered and is intended
--------------
to be performed in the State of Nevada and shall be construed and enforced in
accordance with the laws of such State without regard to conflicts of laws
thereof.
20. Notices. All notices or other communications to be sent by any
-------
party to this Agreement to any other party to this Agreement shall be sent by
certified mail, nationwide overnight delivery service or by personal delivery or
nationwide overnight courier to the addresses hereinbefore designated, or such
other addresses as may hereafter be designated in writing by a party.
21. Binding Agreement. This Agreement represents the entire agreement
------------------
among the parties hereto with respect to the matters described herein and is
binding upon and shall inure to the benefit of the parties hereto and their
legal representatives, successors and permitted assigns. This Agreement may not
be assigned and, except as stated herein, may not be altered or amended except
in writing executed by the party to be charged.
22. Counterparts. This Agreement may be executed in counterparts, all
------------
of which, when taken together, shall constitute the entire Agreement.
23. Severability. The provisions of this Agreement shall be severable,
------------
so that the unenforceability, validity or legality of any one provision shall
not affect the enforceability, validity or legality of the remaining provisions
hereof.
24. Joint Drafting. This Agreement shall be deemed to have been
---------------
drafted jointly by the parties hereto, and no inference or interpretation
against any party shall be made solely by virtue of such party allegedly having
been the draftsperson of this Agreement.
25. Reliance on Certificates. In rendering any opinion referred to
--------------------------
herein, counsel for the parties hereto may rely, as to any factual matters
involved in their respective opinions, on certificates of public officials and
of corporate and company officers, and on such other evidence as such counsel
may reasonably deem appropriate and, as to the matters governed by the laws of
jurisdictions other than the United States or the States of Nevada and Delaware,
an opinion of local counsel in such other jurisdiction(s), which counsel shall
be satisfactory to the other parties in the exercise of their reasonable
discretion.
26. Public Announcements. All parties hereto agree that any public
---------------------
announcement, press release or other public disclosure of the signing of this
Agreement shall be made jointly and only after all parties hereto have reviewed
and approved the language and timing of such disclosure, except as such
disclosure may be required pursuant to any legal obligation or order of any
court having proper jurisdiction over any of the parties hereto.
27. Definitions. In addition to the terms defined elsewhere in this
-----------
Agreement, the following terms have the meanings indicated in this Section 27:
"Bad Events" shall mean, collectively, the events described in clauses
----------
(i) through (vi) of Section 2(t).
"Certificate of Merger" shall have the meaning set forth in Section 1.
---------------------
"CFTC" shall have the meaning set forth in Section 2(t)(iii)(A).
----
"Closing" shall have the meaning set forth in Section 1.
-------
"Code" shall mean the Internal Revenue Code of 1986, as amended.
----
"Commission" shall mean the Securities and Exchange Commission.
----------
"Commission Reports" shall have the meaning set forth in the opening
-------------------
paragraph of Section 4
"Companies" shall mean, collectively, KAHI, KAHI SUB and ENTR.
---------
"Contracts" shall have the meaning set forth in Section 2(m).
---------
"Constituent Corporations" shall mean, collectively, ENTR and KAHI
-------------------------
SUB.
"Effective Date" shall mean the date the Certificate of Merger is
---------------
filed with the State of Delaware.
"ENTR" shall mean EntreMetrix, a Nevada Corporation.
"KAHI" shall mean Kaire Holdings, Inc., a Delaware corporation.
----
"KAHI Common Stock" shall have the meaning set forth in the second
-------------------
recital to this Agreement.
"KAHI Financial Statements" shall have the meaning set forth in
---------------------------
Section 4(d).
"KAHI Schedule of Exceptions" shall mean the schedule of exceptions to
---------------------------
the representations, warranties and covenants of KAHI annexed hereto
and made a part hereof.
"Financial Statements" shall have the meaning set forth in Section
---------------------
2(e).
"KAHI SUB" shall mean KAHI Acquisition Subsidiary, Inc., a Delaware
---------
corporation and wholly owned subsidiary of KAHI.
"KAHI SUB Shares" shall have the meaning set forth in the third
-----------------
recital to this Agreement.
"IRS" shall mean the Internal Revenue Service.
---
"Shareholder" shall mean each Shareholder of ENTR as set forth on the
-----------
ENTR Schedule of Exceptions.
"Shareholder Securities" shall mean the Shareholder Shares.
-----------------------
"Shareholder Shares" shall have the meaning set forth in Section 8(a).
------------------
"Merger" shall have the meaning set forth in the fourth recital to
------
this Agreement.
"Outstanding KAHI Common Stock" shall have the meaning set forth in
--------------------------------
the second recital to this Agreement.
"Outstanding ENTR Shareholder Interests" shall have the meaning set
-----------------------------------------
forth in Section 2(a).
"Securities Act" shall mean the Securities Act of 1933, as amended,
---------------
and the rules and regulation promulgated thereunder.
"ENTR Schedule of Exceptions" shall mean the schedule of exceptions to
---------------------------
the representations, warranties and covenants of ENTR annexed hereto
and made a part hereof.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have made and executed this
Agreement as of the day and year first above written.
KAIRE HOLDINGS, INC.
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
KAHI ACQUISITION SUBSIDIARY, INC.
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
ENTREMETRIX
/s/ Xxxxxxx. X. XxXxxxxx
Xxxxxxx X. XxXxxxxx
