EXHIBIT 10.3
AGREEMENT AND PLAN OF REORGANIZATION
BY AND AMONG
PATHBIOTEK DIAGNOSTICS INC.
A TEXAS CORPORATION
AND
ATNG, INC.
A NEVADA CORPORATION
AND
ATNG ACQUISITION, INC.
A TEXAS CORPORATION
DATED: AUGUST 24TH, 2001
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AGREEMENT AND PLAN OF REORGANIZATION
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PATHOBIOTEK DIAGNOSTICS INC.
AND
ATNG, INC.
AND
ATNG ACQUISITION, INC.
This Agreement and Plan of Reorganization ("Agreement"), dated as of August
24th 2001, among PATHOBIOTEK DIAGNOSTICS INC. (Patho), a Texas Corporation,
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ATNG, Inc., a Nevada Corporation, ATNG ACQUISITION, INC. (Acquisition), a Texas
Corporation, and the shareholders of ATNG ("ATNG Shareholders") who will join
this agreement by execution.
W I T N E S S E T H:
A. WHEREAS, Patho and ATNG are corporations duly organized under the laws
of the State of Texas and Nevada, respectively. ATNG Acquisition, Inc., a Texas
corporation is a wholly owned subsidiary of Patho.
B. Plan of Reorganization. The ATNG Shareholders are the owners of all of
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the issued and outstanding common stock of ATNG. It is the intention that all of
the issued and outstanding stock of ATNG shall be acquired by Acquisition in
exchange solely for common stock of Patho. For federal income tax purposes it is
intended that this exchange shall qualify as a reorganization within the meaning
of SEC 368 (a)(1)(B) of the Internal Revenue Code of 1986, as amended (the
"Code").
C. Exchange of Shares. Patho and the ATNG Shareholders agree that all of
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the common shares issued and outstanding of ATNG shall be acquired by
Acquisition in exchange for 27,836,186 shares of the common stock of Patho. The
pro rata numbers of the Patho shares, on the closing date, shall be delivered to
the individual shareholders in exchange for their ATNG shares as hereinafter set
forth.
D. WHEREAS, the parties hereto wish to enter into this Agreement,
pursuant to the provisions of the Texas Statutes.
E. Immediately after closing hereunder ATNG and Acquisition shall file
Articles of Merger whereby ATNG is merged into Acquisition with ATNG being the
survivor.
F. On the date of delivery of audits of ATNG, Patho and ATNG shall merge
in a parent/sub merger.
NOW, THEREFORE, it is agreed among the parties as follows:
ARTICLE I
THE CONSIDERATION
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1.1 Subject to the conditions set forth herein on the "Effective Date" (as
herein defined), Shareholders of ATNG shall surrender all of their shares of
ATNG for 27,836,186 common shares of Patho common stock. The transactions
contemplated by this Agreement shall be completed at a closing ("Closing") on a
closing date ("Closing Date") which shall be 90 days after date hereof.
On the Closing Date, all of the documents to be furnished to Patho and
ATNG, including the documents to be furnished pursuant to Article VII of this
Agreement, shall be delivered to M. A. Xxxxxxx, to be held in escrow until the
Effective Date or the date of termination of this Agreement, whichever first
occurs, and thereafter shall be promptly distributed to the parties as their
interests may appear.
1.2 At the Effective Date, ATNG shall become a wholly owned subsidiary of
Acquisition. ATNG's shareholders shall receive pro rata shares of $.0001 par
value voting common stock of Patho as follows:
Patho shall issue 27,836,186 of its shares of common stock for 100% of the
outstanding common shares of ATNG, pro rata to the shareholders of ATNG.
1.3 If this Agreement is duly adopted by the holders of the requisite
number of shares of ATNG, in accordance with the applicable laws and subject to
the other provisions hereof, such documents as may be required by law to
accomplish the Agreement shall be filed as required by law to effectuate same,
and it shall become effective. The time of filing the last document required by
law shall be the Effective Date for the Agreement. For accounting purposes, the
Agreement shall be effective as of 12:01 a.m., on the last day of the month
preceding the Effective Date.
1.4 On or before October 15, 2001, ATNG shall have paid $250,000 to Patho
(less prior advances) to cover expenses incurred by Patho.
ARTICLE II
ISSUANCE AND EXCHANGE OF SHARES
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2.1 The shares of $.0001 par value common stock of Patho shall be issued
by it to ATNG shareholders at closing.
2.2 ATNG represents that no outstanding options or warrants for its
unissued shares exist, except as shown hereafter. All preferred stock of ATNG
due for redemption as of the date hereof shall have been redeemed as of closing
date, if any.
Outstanding Warrants and Options:
Xxxxxxxx Xxxxxxx W- 200,000 Shares @ $7.20 per Share
Dish Network W-5,000,000 Shares @ $7.20 per Share
Premiere Radio Networks Broadcasting O- 500,000 Shares @ $6.00 per Share
Employees and Others O-3,200,000 Shares @ TBD
W=Warrants
O=Options
2.3 The stock transfer books of ATNG shall be closed on the Effective
Date, and thereafter no transfers of the stock of ATNG shall be made. ATNG shall
appoint an exchange agent ("Exchange Agent"), to accept surrender of the
certificates representing the common shares of ATNG, and to deliver in exchange
for such surrendered certificates, shares of common stock of Patho. The
authorization of the Exchange Agent may be terminated by Patho after six months
following the Effective Date. Upon termination of such authorization, any shares
of ATNG and any funds held by the Exchange Agent for payment to ATNG
shareholders pursuant to this Agreement shall be transferred to Patho or its
designated agent who shall thereafter perform the obligations of the Exchange
Agent. If outstanding certificates for shares of ATNG are not surrendered or the
payment for them not claimed prior to such date on which such payments would
otherwise escheat to or become the property of any governmental unit or agency,
the unclaimed items shall, to the extent permitted by abandoned property and
other applicable law, become the property of Patho (and to the extent not in its
possession shall be paid over to it), free and clear of all claims or interest
of any persons previously entitled to such items. Notwithstanding the foregoing,
neither the Exchange Agent nor any party to this Agreement shall be liable to
any holder of ATNG shares for any amount paid to any governmental unit or agency
having jurisdiction of such unclaimed item pursuant to the abandoned property or
other applicable law of such jurisdiction.
2.4 No fractional shares of Patho stock shall be issued as a result of the
Agreement. Shares shall be rounded to nearest whole share,
2.5 At the Effective Date, each holder of a certificate or certificates
representing common shares of ATNG, upon presentation and surrender of such
certificate or certificates to the Exchange Agent, shall be entitled to receive
the consideration set forth herein, except that holders of those shares as to
which dissenters' rights shall have been asserted and perfected pursuant to
Nevada law shall not be converted into shares of Patho common stock, but shall
represent only such dissenters' rights. Upon such presentation, surrender, and
exchange as provided in this Section 2.5, certificates representing shares of
ATNG previously held shall be canceled. Until so presented and surrendered, each
certificate or certificates which represented issued and outstanding shares of
ATNG at the Effective Date shall be deemed for all purposes to evidence the
right to receive the consideration set forth in Section 1.2 of this Agreement.
If the certificates representing shares of ATNG have been lost, stolen,
mutilated or destroyed,
the Exchange Agent shall require the submission of an indemnity agreement and
may require the submission of a bond in lieu of such certificate.
ARTICLE III
REPRESENTATIONS. WARRANTIES
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AND COVENANTS OF ATNG
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No representations or warranties are made by any director, officer,
employee or shareholder of ATNG as individuals, except as and to the extent
stated in this Agreement or in a separate written statement (the "ATNG
Disclosure Statement"), if any. ATNG hereby represents, warrants and covenants
to Patho except as stated in the ATNG Disclosure Statement, as follows:
3.1 ATNG is a corporation duly organized, validly existing and in good
standing under the laws of the State of Nevada, and has the corporate power and
authority to own or lease its properties and to carry on its business as it is
now being conducted. The Articles of Incorporation and Bylaws of ATNG are
complete and accurate, and the minute books of ATNG contain a record, which is
complete and accurate in all material respects, of all meetings, and all
corporate actions of the shareholders and board of directors of ATNG.
3.2 The aggregate number of shares which ATNG is authorized to issue is
50,000,000 Class A shares of common stock of which 27,836,186 shares are or will
be issued and outstanding on the Effective Date.
3.3 ATNG has complete and unrestricted power to enter into and, upon the
appropriate approvals as required by law, to consummate the transactions
contemplated by this Agreement.
3.4 Neither the making of nor the compliance with the terms and provisions
of this Agreement and consummation of the transactions contemplated herein by
ATNG will conflict with or result in a breach or violation of the Articles of
Incorporation or Bylaws of ATNG.
3.5 The execution, delivery and performance of this Agreement has been
duly authorized and approved by ATNG's Board of Directors.
3.6 ATNG will deliver to Patho consolidated audited financial statements
of ATNG, as of December 31, 2000, within 60 days of date hereof. All such
statements, herein sometimes called "ATNG Financial Statements," are complete
and correct in all material respects and, together with the notes to these
financial statements, present fairly the financial position and results of
operations of ATNG for the periods included. The said statements will have been
prepared in accordance with generally accepted accounting principles. Interim
unaudited financial statements of ATNG shall be provided within 5 days after
delivery of audited financial statements.
3.7 Since the dates of the ATNG Financial Statements, there have not been
any material adverse changes in the business or condition, financial or
otherwise of ATNG.
3.8 There are no legal proceedings or regulatory proceedings involving
material claims pending, or to the knowledge of the officers of ATNG, threatened
against ATNG or affecting any of its assets or properties, except an employee
dismissal suit has been filed by Xxxxx Xxxxx, Former CFO, and ATNG is not in any
material breach or violation of or default under any contract or instrument to
which ATNG is a party, and no event has occurred which with the lapse of time or
action by a third party could result in a material breach or violation of or
default by ATNG under any contract or other instrument to which ATNG is a party
or by which it or any of its properties may be bound or affected, or under its
respective Articles of Incorporation or Bylaws, nor is there any court or
regulatory order pending, applicable to ATNG.
3.9 All liability of ATNG has been properly provided for and is adequate
to comply with all regulatory requirements regarding same.
3.10 The representations and warranties of ATNG shall be true and correct
as of the date hereof and as of the Effective Date.
3.11 ATNG has no employee benefit plan, including non-qualified stock
awards, options, and consulting fees for independent contractors.
3.12 No representation or warranty by ATNG in this Agreement, the ATNG
Disclosure Statement or any certificate delivered pursuant hereto contains any
untrue statement of a material fact or omits to state any material fact
necessary to make such representation or warranty not misleading.
3.13 Intellectual Property. All trade names, inventions, discoveries,
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ideas, research, engineering, methods, practices, processes, systems, formulae,
designs, drawings, products, projects, improvements, developments, know-how, and
trade secrets which are used in the conduct of ATNG's business, whether
registered or unregistered (collectively the "Proprietary Rights") are owned by
ATNG. To the knowledge of ATNG, ATNG created or developed such Proprietary
Rights and such Proprietary Rights are not subject to any restriction, lien,
encumbrance, right, title or interest in others. All of the foregoing
Proprietary Rights that are not in the public domain stand solely in the name of
ATNG and not in the name of any shareholder, director, officer, agent, partner
or employee or anyone else known to ATNG and none of the same have any right,
title, interest, restriction, lien or encumbrance therein or thereon or thereto.
To the knowledge of ATNG, ATNG's ownership and use of the Proprietary Rights do
not and will not infringe upon, conflict with or violate in any material respect
any patent, copyright, trade secret or other lawful proprietary right of any
other party, and no claim is pending or, to the knowledge of ATNG, threatened to
the effect that the operations of ATNG infringe upon or conflict with the
asserted rights of any other person under any of the Proprietary Rights, and to
the knowledge of ATNG there is no reasonable basis for any such claim (whether
or not pending or threatened). No claim is pending, or to the knowledge of each
Seller and ATNG, threatened to the
effect that any such Proprietary Rights owned or licensed by ATNG, or which ATNG
otherwise has the right to use, is invalid or unenforceable by ATNG and there is
no reasonable basis for any such claim (whether or not pending or threatened).
ATNG has not granted or assigned to any other person or entity any right to
manufacture, have manufactured, assemble or sell the products or proposed
products.
3.14 a. Liens. Except as disclosed on Schedule 3.14(a), no one other than
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Seller has any right, title, interest, lien, claim, security interest,
restriction or encumbrance in, on or to ATNG's assets.
b. Material Contracts. Other than as disclosed on Schedule 3.14(b),
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Seller does not have any material obligation, contract, agreement, lease,
sublease, commitment or understanding of any kind, nature or description, oral
or written, fixed or contingent due or to become due, existing or inchoate.
c. No Undisclosed Liabilities. ATNG does not have any material
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liabilities or obligations, including, without limitation, contingent
liabilities for the performance of any obligation, except for (i) liabilities or
obligations which are disclosed or fully provided for in ATNG's Financial
Statements, (ii) liabilities or obligations disclosed in this Agreement or in
any Schedules to this Agreement, and (iii) liabilities not in excess of $25,000
in the aggregate.
d. Environmental Matters. (i) ATNG has not received notice of
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any violation of or investigation relating to any environmental or pollution
law, regulation, or ordinance with respect to assets now or previously owned or
operated by ATNG that has not been fully and finally resolved; (ii) All permits,
licenses and other authorizations which are required under United States,
federal, state, provincial and local laws with respect to pollution or
protection of the environment ("Environmental Laws") relating to assets now
owned or operated by ATNG or any of its subsidiaries, including Environmental
Laws relating to actual or threatened emissions, discharges or releases of
pollutants, contaminants or hazardous or toxic materials or wastes
("Pollutants"), have been obtained and are effective, and, with respect to
assets previously owned or operated by ATNG, were obtained and were effective
during the time of ATNG's operation; (iii) To the knowledge of ATNG, no
conditions exist on, in or about the properties now or previously owned or
operated by ATNG or any third-party properties to which any Pollutants generated
by ATNG were sent or released that could give rise on the part of ATNG to
liability under any Environmental Laws, claims by third parties under
Environmental Laws or under common law or the occurrence of costs to avoid any
such liability or claim; and (iv) to the knowledge of ATNG, all operators of
ATNG's assets are in compliance with all terms and conditions of such
Environmental Laws, permits, licenses and authorizations, and are also in
compliance with all other limitations, restrictions, conditions, standards,
prohibitions, requirements, obligations, schedules and timetables contained in
such laws or contained in any regulation, code, plan, order, decree, judgment,
notice or demand letter issued, entered, promulgated or approved thereunder,
relating to ATNG's assets.
ARTICLE IV
REPRESENTATIONS. WARRANTIES AND COVENANTS OF
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PATHOBIOTEK DIAGNOSTICS INC.
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No representations or warranties are made by any director, officer,
employee or shareholder of Patho as individuals, except as and to the extent
stated in this Agreement or in a separate written statement.
Patho hereby represents, warrants and covenants to ATNG, except as stated
in the Patho Disclosure Statement, as follows;
4.1 Patho is a corporation duly organized, validly existing and in good
standing under the laws of the State of Texas, and has the corporate power and
authority to own or lease its properties and to carry on its business as it is
now being conducted. The Articles of Incorporation and Bylaws of Patho, copies
of which have been delivered to ATNG, are complete and accurate, and the minute
books of Patho contain a record, which is complete and accurate in all material
respects, of all meetings, and all corporate actions of the shareholders and
Board of Directors of Patho.
4.2 The aggregate number of shares which Patho is authorized to issue is
20,000,000 shares (now being changed to 100,000,000 shares) of common stock with
a par value of $.0001 per share, of which 587,000 shares (post reverse split) of
such common stock will be issued and outstanding, fully paid and non-assessable,
prior to closing under this agreement. Patho has no outstanding options,
warrants or other rights to purchase, or subscribe to, or securities convertible
into or exchangeable for any shares of capital stock. No preferred stock of
Patho is outstanding.
4.3 Patho has complete and unrestricted power to enter into and, upon the
appropriate approvals as required by law, to consummate the transactions
contemplated by this Agreement.
4.4 Patho owns 100% of the issued and outstanding shares of Acquisition at
the date hereof.
4.5 Neither the making of nor the compliance with the terms and provisions
of this Agreement and consummation of the transactions contemplated herein by
Patho will conflict with or result in a breach or violation of the Articles of
Incorporation or Bylaws of Patho.
4.6 The execution of this Agreement has been duly authorized and approved
by Patho's Board of Directors.
4.7 Patho has delivered to ATNG financial statements of Patho dated
December 31, 2000. All such statements, herein sometimes called "Patho Financial
Statements"
are (and will be) complete and correct in all material respects and, together
with the notes to these financial statements, present fairly the financial
position and results of operations of Patho of the periods indicated. All
statements of Patho will have been prepared in accordance with generally
accepted accounting principles.
4.8 Since the dates of the Patho Financial Statements, there have not been
any material adverse changes in the business or condition, financial or
otherwise, of Patho. Patho does not have any material liabilities or
obligations, secured or unsecured except as shown on updated financials (whether
accrued, absolute, contingent or otherwise).
4.9 Patho has delivered to ATNG a list and description of all pending
legal proceedings involving Patho, none of which will materially adversely
affect them, and, except for these proceedings, there are no legal proceedings
or regulatory proceedings involving material claims pending, or, to the
knowledge of the officers of Patho, threatened against Patho or affecting any of
its assets or properties, and Patho is not in any material breach or violation
of or default under any contract or instrument to which Patho is a party, and no
event has occurred which with the lapse of time or action by a third party could
result in a material breach or violation of or default by Patho under any
contract or other instrument to which Patho is a party or by which they or any
of their respective properties may be bound or affected, or under their
respective Articles of Incorporation or Bylaws, nor is there any court or
regulatory order pending, applicable to Patho.
4.10 Patho shall not enter into or consummate any transactions prior to the
Effective Date other than in the ordinary course of business and will pay no
dividend, or increase the compensation of officers and will not enter into any
agreement or transaction which would adversely affect its financial condition.
4.11 Patho is not a party to any contract performable in the future except
its land lease obligation which will not adversely affect it.
4.12 The representations and warranties of Patho shall be true and correct
as of the date hereof and as of the Effective Date.
4.13 Patho has delivered, or will deliver within two weeks of the date of
this Agreement, to ATNG, all of its corporate books and records for review, true
and correct copies of Patho tax returns since 1996, if any. Patho will also
deliver to ATNG on or before the Closing Date any reports relating to the
financial and business condition of Patho which occur after the date of this
Agreement and any other reports sent generally to its shareholders after the
date of this Agreement.
4.14 Patho has no employee benefit plan in effect at this time.
4.15 No representation or warranty by Patho in this Agreement, the Patho
Disclosure Statement or any certificate delivered pursuant hereto contains any
untrue statement of a material fact or omits to state any material fact
necessary to make such representation or warranty not misleading.
4.16 Patho agrees that all rights to indemnification now existing in favor
of the employees, agents, directors or officers of ATNG and its subsidiaries, as
provided in the Articles of Incorporation or Bylaws or otherwise in effect on
the date hereof shall survive the transactions contemplated hereby in accordance
with their terms, and Patho expressly assumes such indemnification obligations
of ATNG.
ARTICLE V
OBLIGATIONS OF THE PARTIES PENDING THE EFFECTIVE DATE
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5.1 This Agreement shall be duly submitted to the shareholders of ATNG for
the purpose of considering and acting upon this Agreement in the manner required
by law at a meeting of shareholders on a date selected by ATNG, such date to be
the earliest practicable date. The Board of Directors of ATNG, subject to its
fiduciary obligations to shareholders, shall use its best efforts to obtain the
requisite approval of ATNG shareholders of this Agreement and the transactions
contemplated herein. ATNG and Patho shall take all reasonable and necessary
steps and actions to comply with and to secure ATNG shareholder approval of this
Agreement and regulations of such states.
5.2 At all times prior to the Effective Date during regular business
hours, each party will permit the other to examine its books and records and the
books and records of its subsidiaries and will furnish copies thereof on
request. It is recognized that, during the performance of this Agreement, each
party may provide the other parties with information which is confidential or
proprietary information. During the term of this Agreement, and for four years
following the termination of this Agreement, the recipient of such information
shall protect such information from disclosure to persons, other than members of
its own or affiliated organizations and its professional advisers, in the same
manner as it protects its own confidential or proprietary information from
unauthorized disclosure, and not use such information to the competitive
detriment of the disclosing party. In addition, if this Agreement is terminated
for any reason, each party shall promptly return or cause to be returned all
documents or other written records of such confidential or proprietary
information, together with all copies of such writings and, in addition, shall
either furnish or cause to be furnished, or shall destroy, or shall maintain
with such standard of care as is exercised with respect to its own confidential
or proprietary information, all copies of all documents or other written records
developed or prepared by such party on the basis of such confidential or
proprietary information. No information shall be considered confidential or
proprietary if it is (a) information already in the possession of the party to
whom disclosure is made, (b) information acquired by the party to whom the
disclosure is made from other sources, or (c) information in the public domain
or generally available to interested persons or which at a later date passes
into the public domain or becomes available to the party to whom disclosure is
made without any wrongdoing by the party to whom the disclosure is made.
5.3 Patho and ATNG shall promptly provide each other with information as
to any significant developments in the performance of this Agreement, and shall
promptly
notify the other if it discovers that any of its representations, warranties and
covenants contained in this Agreement or in any document delivered in connection
with this Agreement was not true and correct in all material respects or became
untrue or incorrect in any material respect.
5.4 All parties to this Agreement shall take all such action as may be
reasonably necessary and appropriate and shall use their best efforts in order
to consummate the transactions contemplated hereby as promptly as practicable.
ARTICLE VI
PROCEDURE EXCHANGE
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6.1 At the Effective Date, the exchange shall be effected as set forth in
Texas Revised Statutes with common stock certificates of Patho being exchanged
for ATNG common stock certificates as and when submitted to the transfer agent.
ARTICLE VII
CONDITIONS PRECEDENT TO THE
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CONSUMMATION OF THE EXCHANGE
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The following are conditions precedent to the consummation of the Agreement
on or before the Effective Date:
7.1 ATNG shall have performed and complied with all of its respective
obligations hereunder which are to be complied with or performed on or before
the Effective Date and Patho and ATNG shall provide one another at the Closing
with a certificate to the effect that such party has performed each of the acts
and undertakings required to be performed by it on or before the Closing Date
pursuant to the terms of this Agreement.
7.2 This Agreement, the transactions contemplated herein shall have been
duly and validly authorized, approved and adopted, at meetings of the
shareholders of ATNG duly and properly called for such purpose in accordance
with the applicable laws.
7.3 No action, suit or proceeding shall have been instituted or shall have
been threatened before any court or other governmental body or by any public
authority to restrain, enjoin or prohibit the transactions contemplated herein,
or which might subject any of the parties hereto or their directors or officers
to any material liability, fine, forfeiture or penalty on the grounds that the
transactions contemplated hereby, the parties hereto or their directors or
officers, have violated any applicable law or regulation or have otherwise acted
improperly in connection with the transactions contemplated hereby, and the
parties hereto have been advised by counsel that, in the opinion of such
counsel, such action, suit or proceeding raises substantial questions of law or
fact which could reasonably be decided adversely to any party hereto or its
directors or officers.
7.4 All actions, proceedings, instruments and documents required to carry
out this Agreement and the transactions contemplated hereby and the form and
substance of all legal proceedings and related matters shall have been approved
by counsel for ATNG and Patho.
7.5 The representations and warranties made by ATNG and Patho in this
Agreement shall be true as though such representations and warranties had been
made or given on and as of the Effective Date, except to the extent that such
representations and warranties may be untrue on and as of the Effective Date
because of (1) changes caused by transactions suggested or approved in writing
by ATNG or (2) events or changes (which shall not, in the aggregate, have
materially and adversely affected the business, assets, or financial condition
of Patho or ATNG during or arising after the date of this Agreement.)
7.6 ATNG shall have furnished Patho with:
(1) a certified copy of a resolution or resolutions duly adopted by the
Board of Directors of ATNG approving this Agreement and the transactions
contemplated by it and directing the submission thereof to a vote of the
shareholders of ATNG;
(2) a certified copy of a resolution or resolutions duly adopted by a
majority of all of the classes of outstanding shares of ATNG capital stock
approving this Agreement and the transactions contemplated by it;
(3) an agreement from each "affiliate" of ATNG as defined in the rules
adopted under the Securities Act of 1933, as amended, to the effect that (a) the
affiliate is familiar with SEC Rules 144 and 145; (b) none of the shares of
Patho common stock will be transferred by or through the affiliate in violation
of the Federal Securities Laws; (c) the affiliate will not sell or in any way
reduce his risk relative to any Patho common stock received pursuant to this
Agreement until such time as financial results covering at least 30 days of
post-closing date combined operations shall have been published by Patho on SEC
Form 10-Q or otherwise; and (d) the affiliate acknowledges that Patho is under
no obligation to register the sale, transfer, or the disposition of Patho common
stock by the affiliate or to take any action necessary in order to make an
exemption from registration available to the affiliate, but understands that
Patho will satisfy the public information requirements of Rules 144 and 145
during the three-year period following the Closing Date.
(4) Each shareholder of ATNG shall sign an Exchange Agreement as contained
on Schedule A.
7.7 Patho shall furnish ATNG with a certified copy of a resolution or
resolutions duly adopted by the Board of Directors of Patho, approving this
Agreement and the transactions contemplated by it.
ARTICLE VIII
TERMINATION AND ABANDONMENT
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8.1 Anything contained in this Agreement to the contrary notwithstanding,
the Agreement may be terminated and abandoned at any time (whether before or
after the approval and adoption thereof by the shareholders of ATNG) prior to
the Effective Date:
(a) By mutual consent of ATNG and Patho;
(b) By ATNG, or Patho, if any condition set forth in Article VII relating
to the other party has not been met or has not been waived;
(c) By ATNG, or Patho, if any suit, action or other proceeding shall be
pending or threatened by the federal or a state government before any court or
governmental agency, in which it is sought to restrain, prohibit or otherwise
affect the consummation of the transactions contemplated hereby;
(d) By any party, if there is discovered any material error, misstatement
or omission in the representations and warranties of another party;
(e) By any party if the Agreement Effective Date is not within 30 days
from the date hereof; or
(f) ATNG shall have the right to assign this agreement to any other
entity, at any time, subject to the due diligence terms herein.
8.2 Any of the terms or conditions of this Agreement may be waived at any
time by the party which is entitled to the benefit thereof, by action taken by
its Board of Directors provided; however, that such action shall be taken only
if, in the judgment of the Board of Directors taking the action, such waiver
will not have a materially adverse effect on the benefits intended under this
Agreement to the party waiving such term or condition.
ARTICLE IX
TERMINATION OFF REPRESENTATION AND
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WARRANTIES AND CERTAIN AGREEMENTS
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9.1 The respective representations and warranties of the parties hereto
shall expire with, and be terminated and extinguished by consummation of the
Agreement; provided, however, that the covenants and agreements of the parties
hereto shall survive in accordance with their terms.
ARTICLE X
MISCELLANEOUS
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10.1 This Agreement embodies the entire agreement between the parties, and
there have been and are no agreements, representations or warranties among the
parties other than those set forth herein or those provided for herein.
10.2 To facilitate the execution of this Agreement, any number of
counterparts hereof may be executed, and each such counterpart shall be deemed
to be an original instrument, but all such counterparts together shall
constitute but one instrument. Counterparts shall include the execution of the
Exchange Agreement and Representations by all shareholders.
10.3 All parties to this Agreement agree that if it becomes necessary or
desirable to execute further instruments or to make such other assurances as are
deemed necessary, the party requested to do so will use its best efforts to
provide such executed instruments or do all things necessary or proper to carry
out the purpose of this Agreement.
10.4 This Agreement may be amended upon approval of the Board of Directors
of each party provided that the shares issuable hereunder shall not be amended
without approval of the requisite shareholders of ATNG.
10.5 Any notices, requests, or other communications required or permitted
hereunder shall be delivered personally or sent by overnight courier service,
fees prepaid, addressed as follows:
To ATNG:
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
To Pathobiotek Diagnostics Inc.:
4800 Research Forest Drive
The Woodlands, TX 77381- 4142
or such other addresses as shall be furnished in writing by any party, and any
such notice or communication shall be deemed to have been given as of the date
received.
10.6 No press release or public statement will be issued relating to the
transactions contemplated by this Agreement without prior approval of ATNG and
Patho. However, either ATNG or Patho may issue at any time any press release or
other public statement it believes on the advice of its counsel it is obligated
to issue to avoid liability under the law relating to disclosures, but the party
issuing such press release or public statement shall make a reasonable effort to
give the other party prior notice of and opportunity to participate in such
release or statement.
IN WITNESS WHEREOF, the parties have set their hands and seals this 24th
----
day of August, 2001.
ATNG, Inc.
By: /s/ [Signature Unreadable]
--------------------------
Director
Attest:/s/ [Signature Unreadable]
--------------------------
Director
Pathobiotek Diagnostics Inc.
By: /s/ [Signature Unreadable]
--------------------------
President
Attest:/s/ [Signature Unreadable]
--------------------------
Secretary (illegible)
ATNG Acquisition, Inc.
By: /s/ [Signature Unreadable]
--------------------------
President
Attest:/s/ [Signature Unreadable]
--------------------------
Secretary (illegible)
