AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization ("the Agreement"), dated as of the
12th day of May, 2003, by and between Cach Foods, Inc., a Nevada corporation
("CACH") and U. S. Wireless Online, Inc., a Georgia corporation ("WIRELESS") and
those certain shareholders of WIRELESS ("Shareholders") identified on Exhibit A,
with reference to the following:
A. CACH is a Nevada corporation organized on May 4, 1998. CACH has authorized
capital stock of 100,000,000 common shares and 5,000,000 preferred shares,
$.001 par value, of which 12,152,000 common shares, pre-split, are issued
and outstanding and no preferred shares are issued and outstanding;
B. WIRELESS is a privately held corporation organized under the laws of the
State of Georgia on June 8, 2000 and WIRELESS has authorized capital stock
of 100,000,000 common shares, $.001 par value, of which 49,442,170 shares
are issued and outstanding;
C. The respective Boards of Directors of CACH and WIRELESS have deemed it
advisable and in the best interests of CACH and WIRELESS that WIRELESS be
acquired by CACH, pursuant to the terms and conditions set forth in this
Agreement;
D. CACH and WIRELESS propose to enter into this Agreement which provides among
other things that not less than 80% of the outstanding shares of WIRELESS
be acquired by CACH, in exchange for up to 13,472,846 post split shares of
CACH and such additional items as more fully described in the Agreement;
and
E. The parties desire the transaction to qualify as a tax-free reorganization
under Section 368 (a)(1)(B) of the Internal Revenue Code of 1986, as
amended.
NOW, THEREFORE, in consideration of the mutual promises contained herein
and other good and valuable consideration, receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1.ARTICLE
THE ACQUISITION
1.1 At the Closing, not less than 39,543,736 common shares, which represents
not less than 80% of the outstanding shares of WIRELESS shall be acquired
by CACH in exchange for up to 13,472,846 post split restricted common
shares of CACH (the "Shares"). The Shares of WIRELESS to be exchanged and
the Shares of CACH to be issued in this transaction shall be exchanged and
issued as set forth in Exhibit A to this Agreement which number of Shares
are incorporated herein by reference. In addition to the 11,492,565 post
split CACH shares to be issued to the WIRELESS shareholders identified on
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Exhibit A, attached hereto, up to an additional 1,980,281 post split CACH
shares may be issued to the remaining WIRELESS shareholders at the same
exchange rate as those WIRELESS shareholders listed on Exhibit A if they do
not exercise their dissenters rights.
1.2 At the Closing, the WIRELESS shareholders listed in Exhibit A will deliver
certificates for the shares of WIRELESS listed in Exhibit A, duly endorsed
so as to make CACH the sole holder thereof, free and clear of all claims
and encumbrances and CACH shall deliver a transmittal letter directed to
the transfer agent of CACH directing the issuance of the Shares to the
shareholders of WIRELESS as set forth on Exhibit A of this Agreement.
1.3 Following the reorganization there will be a total of 15,485,806 common
shares, pre-split, $.001 par value, issued and outstanding in CACH and no
preferred shares will be issued and outstanding.
1.4 Following the reorganization, WIRELESS will be a majority-owned subsidiary
of CACH.
2.ARTICLE
THE CLOSING
2.1 The consummation of the transactions contemplated by this Agreement (the
"Closing") shall take place at 609 Judge Building, ▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ on or before May 15, 2003, (the "Closing Date") or at
such other place or date and time as may be agreed to by the parties
hereto.
2.2 The following conditions are a part of this Agreement and must be completed
on the Closing Date, or such other date specified by the parties:
(a) Those directors listed on Schedule II will be appointed to, and shall
be the sole members of, the Board of Directors of CACH. Those
directors listed on Schedule I shall resign as directors of CACH.
(b) Those officers listed on Schedule I will resign as officers of CACH
and those officers listed on Schedule II shall be appointed as
officers as specified thereon.
(c) CACH will obtain the necessary approval and amend its Articles of
Incorporation to change the name of the Company to "U. S. Wireless
Online, Inc." or such similar name as is available in the State of
Nevada.
(d) Prior to closing, CACH is to effect a .48 to 1 reverse split of the
12,152,000 current issued and outstanding CACH shares with rounding up
for any fractional shares.
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(e) At closing, certain CACH shareholders will surrender 3,820,000 post
split shares (with pre-exchange CACH shareholders retaining 2,012,960
post split shares) in exchange for a promissory note in the principal
amount of $250,000 secured by all of the assets of WIRELESS with the
CACH shareholders to be placed in first lien position of such secured
assets except for those assets with existing lienholders as listed on
Schedule III, then the CACH shareholders will be placed in a second
lien position.
(f) Options to purchase 1,528,154 shares of WIRELESS common stock shall be
exchanged for options to purchase 1,528,154 shares of CACH common
stock as identified on Schedule IV.
(g) WIRELESS agrees to pay up to $10,000.00 in legal fees related to the
preparation of this Agreement and related documents and filings.
(h) WIRELESS agrees to submit the appropriate application and fees to have
the Company listed in Standard & Poors following the Closing of this
Agreement. (i) Notwithstanding any provision of this Agreement to the
contrary, a holder of any WIRELESS shares has the right to demand
payment for such WIRELESS shares by exercising dissenters' rights in
accordance with Article 13 of the Georgia Business Corporation Code. A
copy of Article 13 is attached hereto and incorporated herein by
reference as Schedule V.
(j) At closing, all of the current assets of Cach Foods, Inc. shall be
assigned to ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, including but not limited to all
intellectual property, brand or trade names, contact lists, equipment
and research and development.
3.ARTICLE
REPRESENTATIONS AND WARRANTIES OF CACH
3.1 CACH hereby represents and warrants to WIRELESS as follows:
(a) CACH shall deliver to WIRELESS, on or before Closing, each of the
following:
(1) Financial Statements. Audited financial statements of CACH
---------------------
including, but not limited to, balance sheets, income statements,
statements of stockholders' equity and statements of cash flows
from the fiscal years ended December 2001 and 2002, prepared in
accordance with generally accepted accounting principles,
consistently applied, and which fairly present the financial
condition of CACH at the dates thereof. (Schedule A)
(2) Property. An accurate list and description of all property, real
--------
or personal, owned by CACH of a value equal to or greater than
$1,000.00. (Schedule B.)
(3) Liens and Liabilities. A complete and accurate list of all
-----------------------
material liens, encumbrances, easements, security interests or
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similar interests in or affecting any of the assets listed on
Schedule B (Schedule C.) together with a complete and accurate
list of all debts, liabilities and obligations of CACH incurred
or owing as of the date of this Agreement. (Schedule C.1.)
(4) Leases and Contracts. A complete and accurate list of all
----------------------
material leases (whether of real or personal property) and each
contract, promissory note, mortgage, license, franchise, or other
written agreement to which CACH is a party which involves or can
reasonably be expected to involve aggregate future payments or
receipts by CACH (whether by the terms of such lease, contract,
promissory note, license, franchise or other written agreement or
as a result of a guarantee of the payment of or indemnity against
the failure to pay same) of $1,000.00 or more annually during the
twelve-month period ended December 31, 2002, or any consecutive
twelve-month period thereafter, except any of said instruments
which terminate or are cancelable without penalty during such
twelve-month period. (Schedule D.)
(5) Loan Agreements. Complete and accurate copies of all loan
----------------
agreements and other documents with respect to obligations of
CACH for the repayment of borrowed money, including a listing
thereof. (Schedule E.)
(6) Consents Required. A complete list of all agreements wherein
------------------
consent to the transaction herein contemplated is required; or
where notice of such transaction is required at or subsequent to
closing, or where consent to an acquisition, consolidation, or
sale of all or substantially all of the assets is required.
(Schedule F.)
(7) Articles and Bylaws. Complete and accurate copies of the Articles
-------------------
of Incorporation and Bylaws of CACH together with all amendments
thereto to the date hereof. (Schedule G.)
(8) Shareholders. A complete list of all persons or entities holding
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capital stock of CACH (as certified by CACH's transfer agent) or
any rights to subscribe for, acquire, or receive shares of the
capital stock of CACH (whether warrants, calls, options, or
conversion rights), including copies of all stock option plans
whether qualified or nonqualified, and other similar agreements.
(Schedule H.)
(9) Officers and Directors. A complete and current list of all
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Officers and Directors of CACH, each of whom shall resign
effective as of the Closing Date. (Schedule I.)
(10) Salary Schedule. A complete and accurate list (in all material
----------------
respects) of the names and the current salary for each present
employee of CACH who received $1,000.00 or more in aggregate
compensation from CACH whether in salary, bonus or otherwise,
during the year 2002, or who is presently scheduled to receive
from CACH a salary in excess of $1,000.00 during the fiscal year
ending December 31, 2003, including in each case the amount of
compensation received or scheduled to be received, and a schedule
of the hourly rates of all other employees listed according to
departments. All such employees are "at will" employees of CACH.
(Schedule J.)
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(11) Litigation. A complete and accurate list (in all material
----------
respects) of all material civil, criminal, administrative,
arbitration or other such proceedings or investigations
(including without limitations unfair labor practice matters,
labor organization activities, environmental matters and civil
rights violations) pending or, to the knowledge of CACH
threatened, which may materially and adversely affect CACH.
(Schedule K.)
(12) Tax Returns. Accurate copies of all Federal and State tax returns
-----------
for CACH for the last five fiscal years. (Schedule L.)
(13) Agency Reports. Copies of all material reports or filings (and a
---------------
list of the categories of reports or filings made on a regular
basis) made by CACH under ERISA, EEOC, FDA and all other
governmental agencies (federal, state or local) during the last
two fiscal years. (Schedule M.)
(14) Banks. A true and complete list, as of the date of this
-----
Agreement, showing (1) the name of each bank in which CACH has an
account or safe deposit box, and (2) the names and addresses of
all signatories. (Schedule N.)
(15) Jurisdictions Where Qualified. A list of all jurisdictions
-------------------------------
wherein CACH is qualified to do business and is in good standing,
including a copy of all certificates of good standing or
existence, as applicable, that such jurisdictions shall have
issued no later than 30 days prior to the date of this Agreement.
(Schedule O.)
(16) Subsidiaries. A complete list of all subsidiaries of CACH.
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(Schedule P.) The term "Subsidiary" or "Subsidiaries" shall
include corporations, unincorporated associations, partnerships,
limited liability companies, joint ventures, or similar entities
in which CACH has an interest, direct or indirect.
(17) Union Matters. An accurate list and description (in all material
--------------
respects) of all union contracts and collective bargaining
agreements of CACH, if any. (Schedule Q.)
(18) Employee and Consultant Contracts. A complete and accurate list
-----------------------------------
of all employee and consultant contracts which CACH may have,
other than those listed in the schedule on Union Matters.
(Schedule R.)
(19) Employee Benefit Plans. Complete and accurate copies of all
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salary, stock options, bonus, incentive compensation, deferred
compensation, profit sharing, retirement, pension, group
insurance, disability, death benefit or other benefit plans,
trust agreements or arrangements of CACH in effect on the date
hereof or to become effective after the date hereof, together
with copies of any determination letters issued by the Internal
Revenue Service with respect thereto. (Schedule S.)
(20) Insurance Policies. A complete and accurate list and a
-------------------
description of all material insurance policies naming CACH as an
insured or beneficiary or as a loss payable payee or for which
CACH has paid all or part of the premium in force on the date
hereof, specifying any notice or other information possessed by
CACH regarding possible claims thereunder, cancellation thereof
or premium increases thereon, including any policies now in
effect naming CACH as beneficiary covering the business
activities of CACH. (Schedule T.)
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(21) Customers. A complete and accurate list (in all material
---------
respects) of the customers of CACH, including presently effective
contracts of CACH accounting for the principal revenues of CACH,
indicating the dollar amounts of gross income of each such
customer for the period ended December 31, 2002 (including but
not limited to subscribers to the services or materials or
publications of CACH for the previous two calendar years).
(Schedule U.)
(22) Licenses and Permits. A complete list of all licenses, permits
----------------------
and other authorizations of CACH. (Schedule V.)
(b) ORGANIZATION, STANDING AND POWER. CACH is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Nevada with all requisite corporate power to own or lease its
properties and carry on its businesses as are now being conducted.
(c) QUALIFICATION. CACH is duly qualified and is licensed as a foreign
corporation authorized to do business in each jurisdiction wherein it
conducts its business operations where in each jurisdiction the
failure to qualify would have a material adverse effect on CACH or its
business operations.
(d) CAPITALIZATION OF CACH. The authorized capital stock of CACH consists
of 100,000,000 shares of Common Stock and 5,000,000 shares of
Preferred Stock, $.001 par value, of which the only shares issued and
outstanding shall be common shares issued to shareholders listed on
Schedule H, which shares were duly authorized, validly issued and
fully paid and nonassessable, and were issued in accordance with the
registration provisions of the Securities Act of 1933, as amended (the
"Securities Act") and any relevant registration or qualification
provisions of state securities laws or pursuant to valid exemptions
therefrom. There are no preemptive rights with respect to the CACH
stock. There is no agreement or understanding between any persons
and/or entities, which affects or relates to the voting or giving of
written consents with respect to any security or by a director of
CACH.
(e) AUTHORITY. The execution and delivery of this Agreement and
consummation of the transactions contemplated herein have been duly
authorized by all necessary corporate actions, including but not
limited to duly and validly authorized action and approval by the
Board of Directors, on the part of CACH. This Agreement constitutes
the valid and binding obligation of CACH enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium or similar laws now or hereafter in effect
relating to creditors' rights generally or to general principles of
equity. This Agreement has been duly executed by CACH and the
execution and delivery of this Agreement and the consummation of the
transactions contemplated by this Agreement shall not result in any
breach of any terms or provisions of CACH's Articles of Incorporation
or Bylaws or of any other agreement, contract, indenture, mortgage,
license, contract, note, bond, court order or instrument to which CACH
is a party or by which it is bound.
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(f) ABSENCE OF UNDISCLOSED LIABILITIES. CACH has no material liabilities
of any nature, whether fixed, absolute, contingent or accrued, which
were not reflected on the financial statements set forth in Schedule A
or otherwise disclosed in this Agreement or any of the Schedules or
Exhibits attached hereto. As of the Closing, CACH shall have no assets
or liabilities other than those resulting from the acquisition of
WIRELESS.
(g) ABSENCE OF CHANGES. Since December 31, 2002 there has not been any
material adverse change in the condition (financial or otherwise),
assets, liabilities, properties, earnings, business or prospects of
CACH, except for changes resulting from completion of those
transactions described in Section [2.02(E)] and Section [5.01].
(h) TAX MATTERS. All taxes and other assessments and levies which CACH is
required by law to withhold or to collect have been duly withheld and
collected, and have been paid over to the proper government
authorities or are held by CACH in separate bank accounts for such
payment or are represented by depository receipts, and all such
withholdings and collections and all other payments due in connection
therewith (including, without limitation, employment taxes, both the
employee's and employer's share) have been paid over to the government
or placed in a separate and segregated bank account for such purpose.
There are no known deficiencies in income taxes for any periods and
further, the representations and warranties as to absence of
undisclosed liabilities contained in Section 3.01(f) include any and
all tax liabilities of whatsoever kind or nature (including, without
limitation, all federal, state, local and foreign income, profit,
franchise, sales, use and property taxes) due or to become due,
incurred in respect of or measured by CACH income or business prior to
the Closing Date. Further, CACH has timely filed all federal, state
and local tax returns it is required to file. Each such return is
complete and accurate.
(i) OPTIONS, WARRANTS, ETC. Except as otherwise described in Schedule H,
there are no outstanding options, warrants, calls, convertible
securities, commitments or agreements of any character to which CACH
or its shareholders are a party or by which CACH or its shareholders
are bound, or are a party, calling for the issuance of shares of
capital stock of CACH or any securities representing the right to
purchase or otherwise receive any such capital stock of CACH. CACH has
not declared and is not otherwise obligated to pay, any dividends,
whether in cash, stock or other property.
(j) TITLE TO ASSETS. Except for liens set forth in Schedule C, CACH is the
sole unconditional owner of, with good and marketable title to, all
assets listed in the schedules as owned by it and all other property
and assets are free and clear of all mortgages, liens, pledges,
charges or encumbrances of any nature whatsoever.
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(k) AGREEMENTS IN FORCE AND EFFECT. Except as set forth in Schedules D and
E, all material contracts, agreements, plans, promissory notes, bonds,
indentures, mortgages, leases, policies, licenses, franchises or
similar instruments to which CACH is a party are valid and in full
force and effect on the date hereof, and CACH has not breached any
material provision of, and is not in default in any material respect
under the terms of, any such contract, agreement, plan, promissory
note, bond, indenture, mortgage, lease, policy, license, franchise or
similar instrument which breach or default would have a material
adverse effect upon the business, operations, properties or financial
condition of CACH.
(l) LEGAL PROCEEDINGS, ETC. Except as set forth in Schedule K, there are
no civil, criminal, administrative, arbitration or other such
proceedings or investigations pending or, to the knowledge of either
CACH or the shareholders thereof, threatened, in which, individually
or in the aggregate, an adverse determination would materially and
adversely affect the assets, properties, business or operations of
CACH. CACH has substantially complied with, and is not in default in
any material respect under, any laws, ordinances, requirements,
regulations or orders applicable to its businesses.
(m) GOVERNMENTAL REGULATION. To the knowledge of CACH and except as set
forth in Schedule K, CACH is not in violation of or in default with
respect to any applicable law or any applicable rule, regulation,
order, writ or decree of any court or any governmental commission,
board, bureau, agency or instrumentality, or delinquent with respect
to any report required to be filed with any governmental commission,
board, bureau, agency or instrumentality which violation or default
could have a material adverse effect upon the business, properties,
operations or financial condition of CACH.
(n) BROKERS AND FINDERS. CACH shall be solely responsible for payment to
any broker or finder retained by CACH for any brokerage fees,
commissions or finders' fees in connection with the transactions
contemplated herein. CACH has not agreed to pay any fees or
commissions to any party.
(o) ACCURACY OF INFORMATION. No representation or warranty by CACH
contained in this Agreement and no statement contained in any
certificate or other instrument delivered or to be delivered to
WIRELESS pursuant hereto or in connection with the transactions
contemplated hereby (including without limitation all Schedules and
exhibits hereto) contains or will contain any untrue statement of
material fact or omits or will omit to state any material fact
necessary in order to make the statements contained herein or therein
not misleading.
(p) SUBSIDIARIES. Except as listed in Schedule P, CACH does not have any
other subsidiaries or own capital stock representing ten percent (10%)
or more of (i) the issued and outstanding stock of any other
corporation, (ii) the interest in any partnership or joint venture, or
(iii) the membership interests in any limited liability company.
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(q) CONSENTS. Except as listed in Schedule F, no consent or approval of,
or registration, qualification or filing with, any governmental
authority or other person is required to be obtained or accomplished
by CACH or any shareholder thereof in connection with the consummation
of the transactions contemplated hereby.
(r) IMPROPER PAYMENTS. Neither CACH, nor any person acting on behalf of
CACH has made any payment or otherwise transmitted anything of value,
directly or indirectly, to (i) any official or any government or
agency or political subdivision thereof for the purpose of influencing
any decision affecting the business of CACH, (ii) any customer,
supplier or competitor of CACH or employee of such customer, supplier
or competitor, for the purpose of obtaining, retaining or directing
business for CACH, or (iii) any political party or any candidate for
elective political office nor has any fund or other asset of CACH been
maintained that was not fully and accurately recorded on the books of
account of CACH.
(s) COPIES OF DOCUMENTS. CACH has made available for inspection and
copying by WIRELESS and its duly authorized representatives, and will
continue to do so at all times, true and correct copies of all
documents that it has filed with the Securities and Exchange
Commission and all other governmental agencies which are material to
the terms and conditions contained in this Agreement. CACH has timely
filed all reports, notices, forms and other documents, including
registration statements, required by it to be filed with the
Securities and Exchange Commission. CACH is in compliance with the
Sarbannes-Oxley Act of 2002 and the regulations promulgated
thereunder. Furthermore, all filings by CACH with the Securities and
Exchange Commission, and all other governmental agencies, including
but not limited to the Internal Revenue Service, have contained
information which is true and correct, in all material respects and
did not contain any untrue statement of a material fact or omit to
state any material fact necessary to make the statements made therein
not misleading or which could have any material adverse effect upon
the assets, properties, financial condition or operations of CACH or
adversely affect the objectives of this Agreement with respect to
WIRELESS including, but not limited to, the issuance and subsequent
trading of the shares of common stock of CACH to be received hereby,
subject to compliance by the shareholders of WIRELESS with applicable
law.
(t) VALID ISSUANCE OF SECURITIES. The Shares, when issued, sold and
delivered in accordance with the terms of this Agreement for the
consideration expressed herein, will be duly and validly issued, fully
paid and non-assessable, and will be free of restrictions on transfer
other than restrictions on transfer under this Agreement and
applicable state and federal securities laws.
(u) RELATED PARTY TRANSACTIONS. No employee, officer or director of CACH
or member of his or her immediate family is indebted to CACH, nor is
9
CACH indebted (or committed to make loans or extend or guarantee
credit) to any of them. No member of the immediate family of any
officer or director of CACH is directly or indirectly interested in
any material contract with CACH.
(v) FOREIGN ASSETS CONTROL REGULATIONS. The issuance of the Shares by CACH
will not violate the Trading with the Enemy Act, as amended, or any of
the foreign assets control regulations of the United States Treasury
Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling
legislation or executive order relating thereto. Without limiting the
foregoing, CACH (i) is not or will not become a blocked person
described in Section 1 of Executive Order 13224 of September 23, 2001
Blocking Property and Prohibiting Transactions With Persons Who
Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49049
(2001)) or (ii) does not knowingly engage or will not engage in any
dealings or transactions, or be otherwise associated, with any such
person.
(w) PRIVATE OFFERING BY CACH. Neither CACH nor anyone acting on its behalf
has offered the Shares of any similar securities for sale to, or
solicited any offer to buy any of the same from, or otherwise
approached or negotiated in respect thereof with, any person other
than the shareholders of WIRELESS, each of which has been offered the
Shares in a private sale for investment. Neither CACH nor anyone
acting on its behalf has taken, or will take, any action that would
subject the issuance of the Shares to the registration requirements of
Section 5 of the Securities Act.
4.ARTICLE
REPRESENTATIONS AND WARRANTIES OF WIRELESS
4.1 WIRELESS and where applicable, each shareholder of WIRELESS who executes
this Agreement, hereby represents and warrants to CACH as follows:
(a) WIRELESS shall deliver to CACH, on or before Closing, or as to Section
4.1(a)(1) within 60 days after the date of this Agreement, the
following:
(1) Financial Statements. Audited financial statements of WIRELESS
---------------------
including, but not limited to, balance sheets, income statements,
statements of stockholders' equity and statements of cash flows
from the fiscal years ended December 2001 and 2002, prepared in
accordance with generally accepted accounting principles,
consistently applied, and which fairly present the financial
condition of WIRELESS at the dates thereof.Schedule AA)
(2) Property. An accurate list and description of all property, real
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or personal owned by WIRELESS of a value equal to or greater than
$1,000.00. (Schedule BB)
(3) Liens and Liabilities. A complete and accurate list of all
-----------------------
material liens, encumbrances, easements, security interests or
similar interests in or affecting any of the assets listed on
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Schedule BB. (Schedule CC.) A complete and accurate list of all
debts, liabilities and obligations of WIRELESS incurred or owing
as of the date of this Agreement. (Schedule CC.1.)
(4) Leases and Contracts. A complete and accurate list of all
----------------------
material leases (whether of real or personal property) and each
contract, promissory note, mortgage, license, franchise, or other
written agreement to which WIRELESS is a party which involves or
can reasonably be expected to involve aggregate future payments
or receipts by WIRELESS (whether by the terms of such lease,
contract, promissory note, license, franchise or other written
agreement or as a result of a guarantee of the payment of or
indemnity against the failure to pay same) of $1,000.00 or more
annually during the twelve-month period ended December 31, 2001
or any consecutive twelve-month period thereafter, except any of
said instruments which terminate or are cancelable without
penalty during such twelve-month period. (Schedule DD.)
(5) Loan Agreements. Complete and accurate copies of all loan
----------------
agreements and other documents with respect to obligations of
WIRELESS for the repayment of borrowed money, including a listing
thereof. (Schedule EE.)
(6) Consents Required. A complete list of all agreements wherein
------------------
consent to the transaction herein contemplated is required; or
where notice of such transaction is required at or subsequent to
closing, or where consent to an acquisition, consolidation, or
sale of all or substantially all of the assets is required.
(Schedule FF.)
(7) Articles and Bylaws. Complete and accurate copies of the Articles
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of Incorporation and Bylaws of WIRELESS, together with all
amendments thereto to the date hereof. (Schedule GG.)
(8) Shareholders. A complete list of all persons or entities holding
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capital stock of WIRELESS or any rights to subscribe for,
acquire, or receive shares of the capital stock of WIRELESS
(whether warrants, calls, options, or conversion rights),
including copies of all stock option plans whether qualified or
nonqualified, and other similar agreements. (Schedule HH.)
(9) Officers and Directors. A complete and current list of all
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officers and Directors of WIRELESS. (Schedule II.)
(10) Salary Schedule. A complete and accurate list (in all material
---------------
respects) of the names and the current salary or each present
employee of WIRELESS who received $1,000 or more in aggregate
compensation from WIRELESS whether in salary, bonus or otherwise,
who is presently scheduled to receive from WIRELESS a salary in
excess of $1,000.00 during the fiscal year ending December 31,
2003, including in each case the amount of compensation received
or scheduled to be received, and a schedule of the hourly rates
of all other employees listed according to departments. (Schedule
JJ.)
(11) Litigation. A complete and accurate list (in all material
----------
respects) of all material civil, criminal, administrative,
arbitration or other such proceedings or investigations
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(including without limitations unfair labor practice matters,
labor organization activities, environmental matters and civil
rights violations) pending or, to the knowledge of WIRELESS
threatened, which may materially and adversely affect WIRELESS.
(Schedule KK.)
(12) Tax Returns. Accurate copies of all Federal and State tax returns
-----------
for WIRELESS for the last five fiscal years, if any. (Schedule
LL.)
(13) Agency Reports. Copies of all material reports or filings (and a
---------------
list of the categories of reports or filings made on a regular
basis) made by WIRELESS under ERISA, EEOC, FDA and all other
governmental agencies (federal, state or local) for the last five
fiscal years. (Schedule MM.)
(14) A true and complete list (in all material respects), as of the
date of this Agreement, showing (1) the name of each bank in
which WIRELESS has an account or safe deposit box, and (2) the
names and addresses of all signatories. (Schedule NN.)
(15) Jurisdictions Where Qualified.A list of all jurisdictions wherein
-----------------------------
WIRELESS is qualified to do business and is in good standing.
(Schedule OO.)
(16) Subsidiaries. A complete list of all subsidiaries of WIRELESS.
------------
(Schedule PP.) The term "Subsidiary" or "Subsidiaries" shall
include corporations, unincorporated associations, partnerships,
limited liability companies, joint ventures, or similar entities
in which WIRELESS has an interest, direct or indirect.
(17) Union Matters. An accurate list and description (in all material
--------------
respects of union contracts and collective bargaining agreements
of WIRELESS, if any. (Schedule QQ.)
(18) Employee and Consultant Contracts. A complete and accurate list
-----------------------------------
of all employee and consultant contracts which WIRELESS may have,
other than those listed in the schedule on Union Matters.
(Schedule RR.)
(19) Employee Benefit Plans. Complete and accurate copies of all
------------------------
salary, stock option, bonus, incentive compensation, deferred
compensation, profit sharing, retirement, pension, group
insurance, disability, death benefit or other benefit plans,
trust agreements or arrangements of WIRELESS in effect on the
date hereof or to become effective after the date hereof,
together with copies of any determination letters issued by the
Internal Revenue Service with respect thereto. (Schedule SS.)
(20) Insurance Policies. A complete and accurate list (in all material
------------------
respects) and description of all material insurance policies
naming WIRELESS as an insured or beneficiary or as a loss payable
payee or for which WIRELESS has paid all or part of the premium
in force on the date hereof, specifying any notice or other
information possessed by WIRELESS regarding possible claims
thereunder, cancellation thereof or premium increases thereon,
including any policies now in effect naming WIRELESS as
beneficiary covering the business activities of WIRELESS.
(Schedule TT.)
12
(21) Customers. A complete and accurate list (in all material
---------
respects) of the customers of WIRELESS, including all presently
effective contracts of WIRELESS to be assigned toWIRELESS,
accounting for the principal revenues of WIRELESS, indicating the
dollar amounts of gross revenues of each such customer for the
period ended December 31, 2002. (Schedule UU.)
(22) Licenses and Permits. A complete list of all licenses, permits
----------------------
and other authorizations of WIRELESS. (Schedule VV)
(b) ORGANIZATION, STANDING AND POWER. WIRELESS is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Georgia with all requisite corporate power to own or lease
its properties and carry on its business as is now being conducted.
(c) QUALIFICATION. WIRELESS is duly qualified and licensed as a foreign
corporation authorized to do business in each jurisdiction wherein it
conducts business operations where in each jurisdiction the failure to
qualify would have a material adverse effect on WIRELESS or its
business operations.
(d) CAPITALIZATION OF WIRELESS. The authorized capital stock of WIRELESS
consists of 100,000,000 common shares of Common Stock, $.001 par value
per share, of which the only shares issued and outstanding are
49,430,000 shares issued to the shareholders listed on Schedule HH,
which shares were duly authorized, validly issued and fully paid and
nonassessable. There are no preemptive rights with respect to the
WIRELESS stock.
(e) AUTHORITY. The execution and delivery of this Agreement and
consummation of the transactions contemplated herein have been duly
authorized by all necessary corporate action, including but not
limited to duly and validly authorized action and approval by the
Board of Directors, on the part of WIRELESS. This Agreement
constitutes the valid and binding obligation of WIRELESS, enforceable
against it in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium or similar laws now or
hereafter in effect relating to creditors' rights generally or to
general principles of equity. This Agreement has been duly executed by
WIRELESS and the execution and delivery of this Agreement and the
consummation of the transactions contemplated by this Agreement shall
not result in any breach of any terms or provisions of WIRELESS 's
Articles of Incorporation or Bylaws or of any other agreement,
contract, indenture, mortgage, license, note, bond, court order or
instrument to which WIRELESS is a party or by which it is bound.
(f) ABSENCE OF UNDISCLOSED LIABILITIES. WIRELESS has no material
liabilities of any nature, whether fixed, absolute, contingent or
accrued, which were not reflected on the financial statements set
forth in Schedule AA or otherwise disclosed in this Agreement or any
of the Schedules or Exhibits attached hereto.
13
(g) ABSENCE OF CHANGES. Since December 21, 2002, , there has not been any
material adverse change in the condition (financial or otherwise),
assets, properties, liabilities, earnings or business of WIRELESS,
except for changes resulting from completion of those transactions
described in Section [5.02].
(h) TAX MATTERS. All taxes and other assessments and levies which WIRELESS
is required by law to withhold or to collect have been duly withheld
and collected, and have been paid over to the proper government
authorities or are held by WIRELESS in separate bank accounts for such
payment or are represented by depository receipts, and all such
withholdings and collections and all other payments due in connection
therewith (including, without limitation, employment taxes, both the
employee's and employer's share) have been paid over to the government
or placed in a separate and segregated bank account for such purpose.
There are no known deficiencies in income taxes for any periods and
further, the representations and warranties as to absence of
undisclosed liabilities contained in Section 4.01(f) include any and
all tax liabilities of whatsoever kind or nature (including, without
limitation, all federal, state, local and foreign income, profit,
franchise, sales, use and property taxes) due or to become due,
incurred in respect of or measured by WIRELESS income or business
prior to the Closing Date. Further, WIRELESS has timely filed all
federal, state and local tax returns it is required to file. Each such
return is complete and accurate.
(i) OPTIONS, WARRANTS, ETC. Except as otherwise described in Schedule HH,
there are no outstanding options, warrants, calls, convertible
securities, commitments or agreements of any character to which
WIRELESS or its shareholders are a party or by which WIRELESS or its
shareholders are bound, or are a party, calling for the issuance of
shares of capital stock of WIRELESS or any securities representing the
right to purchase or otherwise receive any such capital stock of
WIRELESS. WIRELESS has not declared and is not otherwise obligated to
pay, any dividends whether in cash, stock or other property.
(j) TITLE TO ASSETS. Except for liens set forth in Schedule CC, WIRELESS
is the sole and unconditional owner of, with good and marketable title
to, all the assets and patents listed in the schedules as owned by
them and all other property and assets are free and clear of all
mortgages, liens, pledges, charges or encumbrances of any nature
whatsoever.
(k) AGREEMENTS IN FORCE AND EFFECT. Except as set forth in Schedules DD
and EE, all material contracts, agreements, plans, promissory notes,
bonds, indentures, mortgages, leases, policies, licenses, franchises
or similar instruments to which WIRELESS is a party are valid and in
full force and effect on the date hereof, and WIRELESS has not
breached any material provision of, and is not in default in any
material respect under the terms of, any such contract, agreement,
plan, promissory note, bond, indenture, mortgage, lease, policy,
license, franchise or similar instrument which breach or default would
have a material adverse effect upon the business, operations,
properties or financial condition of WIRELESS.
14
(l) LEGAL PROCEEDINGS, ETC. Except as set forth in Schedule KK, there are
no civil, criminal, administrative, arbitration or other such
proceedings or investigations pending or to the knowledge of WIRELESS,
threatened, in which, individually or in the aggregate, an adverse
determination would materially and adversely affect the assets,
properties, business or operations of WIRELESS. WIRELESS has
substantially complied with, and is not in default in any material
respect under, any laws, ordinances, requirements, regulations or
orders applicable to its businesses.
(m) GOVERNMENTAL REGULATION. To the knowledge of WIRELESS and except as
set forth in Schedule KK, WIRELESS is not in violation of or in
default with respect to any applicable law or any applicable rule,
regulation, order, writ or decree of any court or any governmental
commission, board, bureau, agency or instrumentality, or delinquent
with respect to any report required to be filed with any governmental
commission, board, bureau, agency or instrumentality which violation
or default could have a material adverse effect upon the business,
properties, operations or financial condition of WIRELESS.
(n) BROKER AND FINDERS. WIRELESS shall be solely responsible for payment
to any broker or finder retained by WIRELESS for any brokerage fees,
commissions or finders' fees in connection with the transactions
contemplated herein.
(o) ACCURACY OF INFORMATION. No representation or warranty by WIRELESS
contained in this Agreement and no statement contained in any
certificate or other instrument delivered or to be delivered to CACH
pursuant hereto or in connection with the transactions contemplated
hereby (including without limitation all Schedules and Exhibits
hereto) contains or will contain any untrue statement of a material
fact or omits or will omit to state any material fact necessary in
order to make the statements contained herein or therein not
misleading.
(p) SUBSIDIARIES. Except as listed in Schedule PP, WIRELESS does not have
any other subsidiaries or own capital stock representing ten percent
(10%) or more of (i) the issued and outstanding stock of any other
corporation, (ii) the interest in any partnership or joint venture, or
(iii) the membership interests in any limited liability company.
(q) CONSENTS. Except as listed in Schedule FF, no consent or approval of,
or registration, qualification or filing with, any other governmental
authority or other person is required to be obtained or accomplished
by WIRELESS or any shareholder thereof, in connection with the
consummation of the transactions contemplated hereby.
(r) IMPROPER PAYMENTS. No person acting on behalf of WIRELESS has made any
payment or otherwise transmitted anything of value, directly or
indirectly, to (i) any official or any government or agency or
political subdivision thereof for the purpose of influencing any
15
decision affecting the business of WIRELESS, or (ii) any political
party or any candidate for elective political office, nor has any fund
or other asset of WIRELESS been maintained that was not fully and
accurately recorded on the books of account of WIRELESS.
(s) COPIES OF DOCUMENTS. WIRELESS has made available for inspection and
copying by CACH and its duly authorized representatives, and will
continue to do so at all times, true and correct copies of all
material documents that it has filed with any governmental agency and
that is material to the terms and conditions contained in this
Agreement. Furthermore, all filings by WIRELESS with governmental
agencies, including but not limited to the Internal Revenue Service,
have contained information which is true and correct in all material
respects and did not contain any untrue statement of a material fact
or omit to state any material fact necessary to make the statements
made therein not misleading or which could have any material adverse
effect upon the assets, properties, financial condition or operations
of WIRELESS or adversely affect the objectives of this Agreement.
(t) INVESTMENT INTENT OF SHAREHOLDERS. Each shareholder of WIRELESS
represents and warrants to CACH that the shares of CACH being acquired
pursuant to this Agreement are being acquired for his own account and
for investment and not with a view to the public resale or
distribution of such shares and further acknowledges that the shares
being issued have not been registered under the Securities Act and are
"restricted securities" as that term is defined in Rule 144
promulgated under the Securities Act and must be held indefinitely
unless they are subsequently registered under the Securities Act or an
exemption from such registration is available.
5. Article
CONDUCT AND TRANSACTIONS PRIOR TO THE EFFECTIVE TIME OF THE ACQUISITION
5.1 CONDUCT AND TRANSACTIONS OF CACH. During the period from the date hereof to
the date of Closing, CACH shall:
(a) Conduct its operations in the ordinary course of business, including
but not limited to, paying all obligations as they mature, complying
with all applicable tax laws, filing all tax returns (which shall be
complete and accurate) required to be filed and paying all taxes due;
(b) Maintain its records and books of account in a manner that fairly and
correctly reflects its income, expenses, assets and liabilities.
16
(c) CACH shall not during such period, except in the ordinary course of
business, without the prior written consent of WIRELESS:
(1) Except as otherwise contemplated or required by this Agreement,
sell, dispose of or encumber any of its properties or assets;
(2) Except as otherwise contemplated or required by this Agreement,
declare or pay any dividends on shares of its capital stock or
make any other distribution of assets to the holders thereof;
(3) Except as otherwise contemplated or required by this Agreement,
issue, reissue or sell, or issue options or rights to subscribe
to, or enter into any contract or commitment to issue, reissue or
sell, any shares of its capital stock or acquire or agree to
acquire any shares of its capital stock;
(4) Except as otherwise contemplated and required by this Agreement,
amend its Articles of Incorporation or merge or consolidate with
or into any other corporation or sell all or substantially all of
its assets or change in any manner the rights of its capital
stock or other securities;
(5) Except as contemplated or required by this Agreement, pay or
incur any obligation or liability, direct or contingent, of more
than $1,000;
(6) Incur any indebtedness for borrowed money, assume, guarantee,
endorse or otherwise become responsible for obligations of any
other party, or make loans or advances to any other party;
(7) Make any material change in its insurance coverage;
(8) Increase in any manner the compensation, direct or indirect, of
any of its officers or executive employees;
(9) Except in accordance with existing employment contracts, enter
into any agreement or make any commitment to any labor union or
organization;
(10) Make any capital expenditures.
5.2 CONDUCT AND TRANSACTIONS OF WIRELESS . During the period from the date
hereof to the date of Closing, WIRELESS shall:
(a) Obtain an investment letter from each shareholder of WIRELESS who does
not otherwise exercise dissenters' rights in a form substantially
similar to the one attached hereto as Exhibit B.
(b) Conduct the operations of WIRELESS in the ordinary course of business.
(c) WIRELESS shall not during such period, except in the ordinary course
of business, without the prior written consent of CACH:
(1) Except as otherwise contemplated or required by this Agreement,
sell, dispose of or encumber any of the properties or assets of
WIRELESS;
(2) Declare or pay any dividends on shares of its capital stock or
make any other distribution of assets to the holders thereof;
17
(3) Issue, reissue or sell, or issue options or rights to subscribe
to, or enter into any contract or commitment to issue, reissue or
sell, any shares of its capital stock or acquire or agree to
acquire any shares of its capital stock;
(4) Except as otherwise contemplated and required by this Agreement,
amend its Articles of Incorporation or merge or consolidate with
or into any other corporation or sell all or substantially all of
its assets or change in any manner the rights of its capital
stock or other securities;
(5) Except as otherwise contemplated and required by this Agreement,
pay or incur any obligation or liability, direct or contingent,
of more than $1,000;
(6) Incur any indebtedness for borrowed money, assume, guarantee,
endorse or otherwise become responsible for obligations of any
other party, or make loans or advances to any other party;
(7) Make any material change in its insurance coverage;
(8) Increase in any manner the compensation, direct or indirect, of
any of its officers or executive employees;
(9) Except in accordance with existing employment contracts, enter
into any agreement or make any commitment to any labor union or
organization;
(10) Make any material capital expenditures in excess of $1,000.00.
(11) Allow any of the foregoing actions to be taken by any subsidiary
of WIRELESS.
6.ARTICLE
RIGHTS OF INSPECTION
6.1 During the period from the date of this Agreement to the date of Closing of
the acquisition, CACH and WIRELESS agree to use their best efforts to give
the other party, including its representatives and agents, full access to
the premises, books and records of each of the entities, and to furnish the
other with such financial and operating data and other information
including, but not limited to, copies of all legal documents and
instruments referred to on any schedule or exhibit hereto, with respect to
the business and properties of CACH or WIRELESS, as the case may be, as the
other shall from time to time request; provided, however, if there are any
such investigations: (1) they shall be conducted in such manner as not to
unreasonably interfere with the operation of the business of the other
parties and (2) such right of inspection shall not affect in any way
whatsoever any of the representations or warranties given by the respective
parties hereunder. In the event of termination of this Agreement, CACH and
WIRELESS will each return to the other all documents, work papers and other
materials obtained from the other party in connection with the transactions
contemplated hereby, and will take such other steps necessary to protect
the confidentiality of such material.
18
7.ARTICLE
CONDITIONS TO CLOSING
7.1 CONDITIONS TO OBLIGATIONS OF WIRELESS. The obligation of WIRELESS to
perform this Agreement is subject to the satisfaction of the following
conditions on or before the Closing unless waived in writing by WIRELESS.
(a) REPRESENTATIONS AND WARRANTIES. There shall be no information
disclosed in the schedules delivered by CACH which in the opinion of
WIRELESS would materially adversely affect the proposed transaction
and intent of the parties as set forth in this Agreement. The
representations and warranties of CACH set forth in Article 3 hereof
shall be true and correct in all material respects as of the date of
this Agreement and as of the Closing as though made on and as of the
Closing, except as otherwise permitted by this Agreement.
(b) PERFORMANCE OF OBLIGATIONS. CACH shall have in all material respects
performed all agreements required to be performed by it under this
Agreement and shall have performed in all material respects any
actions contemplated by this Agreement prior to or on the Closing and
CACH shall have complied in all material respects with the course of
conduct required by this Agreement.
(c) CORPORATE ACTION. CACH shall have furnished minutes, certified copies
of corporate resolutions and/or other documentary evidence
satisfactory to counsel for WIRELESS that CACH has submitted with this
Agreement and any other documents required hereby to such parties for
approval as provided by applicable law.
(d) CONSENTS. Execution of this Agreement by the shareholders of WIRELESS
and any consents necessary for or approval of any party listed on any
Schedule delivered by CACH whose consent or approval is required
pursuant thereto shall have been obtained.
(e) FINANCIAL STATEMENTS. WIRELESS shall have been furnished with audited
financial statements of CACH including, but not limited to, balance
sheets, income statements, statements of stockholders' equity and
statements of cash flow from fiscal years ended December 31, 2001 and
2002. Such financial statements shall have been prepared in conformity
with generally accepted accounting principles on a basis consistent
with those of prior periods and fairly present the financial position
of CACH as of December 31, 2002.
19
(f) STATUTORY REQUIREMENTS. All statutory requirements for the valid
consummation by CACH of the transactions contemplated by this
Agreement shall have been fulfilled.
(g) GOVERNMENTAL APPROVAL. All authorizations, consents, approvals,
permits and orders of all federal and state governmental agencies
required to be obtained by CACH for consummation of the transactions
contemplated by this Agreement shall have been obtained. All filings,
including filings with the Securities and Exchange Commission, shall
have been made or if required to be made promptly upon consummation of
this Agreement, a copy of such proposed filings, including Form 8-K or
otherwise in connection with this transaction, shall have been
provided by CACH to WIRELESS for its approval prior to the filing of
the Form 8-K or other required filings.
(h) CHANGES IN FINANCIAL CONDITION OF CACH. There shall not have occurred
any material adverse change in the financial condition or in the
operations of the business of CACH, except expenditures in furtherance
of this Agreement.
(i) ABSENCE OF PENDING LITIGATION. CACH is not engaged in or threatened
with any suit, action, or legal, administrative or other proceedings
or governmental investigations pertaining to this Agreement, the
consummation of the transactions contemplated hereunder.
(j) AUTHORIZATION FOR ISSUANCE OF STOCK. WIRELESS shall have received in
form and substance satisfactory to counsel for WIRELESS a letter
instructing and authorizing the Registrar and Transfer Agent for the
shares of common stock of CACH to issue stock certificates with the
appropriate legend relating to the restricted nature of the shares
under the Securities Act and representing ownership of CACH common
stock to WIRELESS shareholders in accordance with the terms of this
Agreement and a letter from said Registrar and Transfer Agent
acknowledging receipt of the letter of instruction and stating to the
effect that the Registrar and Transfer Agent holds adequate supplies
of stock certificates necessary to comply with the letter of
instruction and the terms and conditions of this Agreement.
7.2 CONDITIONS TO OBLIGATIONS OF CACH. The obligation of CACH to perform this
Agreement is subject to the satisfaction of the following conditions on or
before the Closing unless waived in writing by CACH.
(a) REPRESENTATIONS AND WARRANTIES. There shall be no information
disclosed in the schedules delivered by WIRELESS, which in the opinion
of CACH, would materially adversely affect the proposed transaction
and intent of the parties as set forth in this Agreement. The
representations and warranties of WIRELESS set forth in Article 4
hereof shall be true and correct in all material respects as of the
date of this Agreement and as of the Closing as though made on and as
of the Closing, except as otherwise permitted by this Agreement.
20
(b) PERFORMANCE OF OBLIGATIONS. WIRELESS shall have in all material
respects performed all agreements required to be performed by it under
this Agreement and shall have performed in all material respects any
actions contemplated by this Agreement prior to or on the Closing and
WIRELESS shall have complied in all respects with the course of
conduct required by this Agreement.
(c) CORPORATE ACTION. WIRELESS shall have furnished minutes, certified
copies of corporate resolutions and/or other documentary evidence
satisfactory to Counsel for CACH that WIRELESS has submitted with this
Agreement and any other documents required hereby to such parties for
approval as provided by applicable law.
(d) CONSENTS. Any consents necessary for or approval of any party listed
on any Schedule delivered by WIRELESS, whose consent or approval is
required pursuant thereto, shall have been obtained.
(e) FINANCIAL STATEMENTS. CACH shall have been furnished or will be
furnished within 60 days of the date of this Agreement with audited
financial statements of WIRELESS including, but not limited to,
balance sheets, income statements, statements of stockholders equity
and statements of cash flows from the fiscal years ended December 2001
and 2002, prepared in accordance with generally accepted accounting
principles consistently applied and which fairly present the financial
condition of WIRELESS at the dates thereof.
(f) STATUTORY REQUIREMENTS. All statutory requirements for the valid
consummation by WIRELESS of the transactions contemplated by this
Agreement shall have been fulfilled.
(g) GOVERNMENTAL APPROVAL. All authorizations, consents, approvals,
permits and orders of all federal and state governmental agencies
required to be obtained by WIRELESS for consummation of the
transactions contemplated by this Agreement shall have been obtained.
(h) EMPLOYMENT AGREEMENTS. Existing WIRELESS employment agreements will
have been delivered to counsel for CACH.
(i) CHANGES IN FINANCIAL CONDITION OF WIRELESS. There shall not have
occurred any material adverse change in the financial condition or in
the operations of the business of WIRELESS, except expenditures in
furtherance of this Agreement.
21
(j) ABSENCE OF PENDING LITIGATION. WIRELESS is not engaged in or
threatened with any suit, action, or legal, administrative or other
proceedings or governmental investigations pertaining to this
Agreement or the consummation of the transactions contemplated
hereunder.
(k) SHAREHOLDER APPROVAL. The WIRELESS shareholders shall have approved
the Agreement and Plan of Reorganization.
8.ARTICLE
MATTERS SUBSEQUENT TO CLOSING
8.1 COVENANT OF FURTHER ASSURANCE. The parties covenant and agree that they
shall, from time to time, execute and deliver or cause to be executed and
delivered all such further instruments of conveyance, transfer,
assignments, receipts and other instruments, and shall take or cause to be
taken such further or other actions as the other party or parties to this
Agreement may reasonably deem necessary in order to carry out the purposes
and intent of this Agreement. CACH agrees to have filed with the Securities
and Exchange Commission a Form 8-K within the prescribed period therein
reflecting the terms of this transaction with a subsequent amendment
thereto to be filed within the prescribed period to contain the required
financial statements of WIRELESS.
9.ARTICLE
NATURE AND SURVIVAL OF REPRESENTATIONS
9.1 All statements contained in any written certificate, schedule, exhibit or
other written instrument delivered by CACH or WIRELESS pursuant hereto, or
otherwise adopted by CACH, by its written approval, or by WIRELESS by its
written approval, or in connection with the transactions contemplated
hereby, shall be deemed representations and warranties by CACH or WIRELESS
as the case may be. All representations, warranties and agreements made by
either party shall survive for the period of the applicable statute of
limitations and until the discovery of any claim, loss, liability or other
matter based on fraud, if longer.
10.ARTICLE
TERMINATION OF AGREEMENT AND ABANDONMENT OF REORGANIZATION
10.1 TERMINATION. Anything herein to the contrary notwithstanding, this
Agreement and any agreement executed as required hereunder and the
acquisition contemplated hereby may be terminated at any time before the
Closing as follows:
(a) By mutual written consent of the Boards of Directors of CACH and
WIRELESS.
22
(b) By the Board of Directors of CACH if any of the conditions set forth
in Section 7.02 shall not have been satisfied by the Closing Date.
(c) By the Board of Directors of WIRELESS if any of the conditions set
forth in Section 7.01 shall not have been satisfied by the Closing
Date.
10.2 TERMINATION OF OBLIGATIONS AND WAIVER OF CONDITIONS; PAYMENT OF EXPENSES.
In the event this Agreement and the acquisition are terminated and
abandoned pursuant to this Article 10 hereof, this Agreement shall become
void and of no force and effect and there shall be no liability on the part
of any of the parties hereto, or their respective directors, officers,
shareholders or controlling persons to each other. Each party hereto will
pay all costs and expenses incident to its negotiation and preparation of
this Agreement and any of the documents evidencing the transactions
contemplated hereby, including fees, expenses and disbursements of counsel.
11.ARTICLE
EXCHANGE OF SHARES; FRACTIONAL SHARES
11.1 EXCHANGE OF SHARES. At the Closing, CACH shall issue a letter to the
transfer agent of CACH with a copy of the resolution of the Board of
Directors of CACH authorizing and directing the issuance of CACH shares as
set forth on Exhibit A to this Agreement. Any fractional shares of CACH
issued as a result of this exchange shall be rounded up to the next whole
number of shares.
11.2 RESTRICTIONS ON SHARES ISSUED TO WIRELESS . Due to the fact that WIRELESS
will receive shares of CACH common stock in connection with the acquisition
which have not been registered under the 1933 Act by virtue of the
exemption provided in Section 4(2) of such Act, those shares of CACH will
contain the following legend:
The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended. The shares have been
acquired for investment and may not be sold or offered for sale in the
absence of an effective Registration Statement for the shares under
the Securities Act of 1933, as amended, or an opinion of counsel to
the Corporation that such registration is not required.
12.ARTICLE
MISCELLANEOUS
12.1 CONSTRUCTION. This Agreement shall be construed and enforced in accordance
with the laws of the State of Nevada excluding the conflicts of laws.
23
12.2 NOTICES. All notices necessary or appropriate under this Agreement shall be
effective when personally delivered or deposited in the United States mail,
postage prepaid, certified or registered, return receipt requested, and
addressed to the parties last known address which addresses are currently
as follows:
If to "CACH" If to "WIRELESS"
Cach Foods ▇▇▇▇ ▇▇▇▇▇▇, CEO
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇.▇. Wireless Online, Inc.
Star, Idaho ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With copies to: With copies to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇. (▇▇▇▇), Esq.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
12.3 AMENDMENT AND WAIVER. The parties hereby may, by mutual agreement in
writing signed by each party, amend this Agreement in any respect. Any term
or provision of this Agreement may be waived in writing signed by an
authorized officer at any time by the party which is entitled to the
benefits thereof, such waiver right shall include, but not be limited to,
the right of either party to:
(a) Extend the time for the performance of any of the obligations of the
other;
(b) Waive any inaccuracies in representations by the other contained in
this Agreement or in any document delivered pursuant hereto;
(c) Waive compliance by the other with any of the covenants contained in
this Agreement, and performance of any obligations by the other; and
(d) Waive the fulfillment of any condition that is precedent to the
performance by the party so waiving of any of its obligations under
this Agreement.
Any writing on the part of a party relating to such amendment, extension or
waiver as provided in this Section 12.3 shall be valid if authorized or ratified
by the Board of Directors of such party.
12.4 REMEDIES NOT EXCLUSIVE. No remedy conferred by any of the specific
provisions of this Agreement is intended to be exclusive of any other
remedy, and each and every remedy shall be cumulative and shall be in
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addition to every other remedy given hereunder or now or hereafter existing
at law or in equity or by statute or otherwise. The election of any one or
more remedies by CACH or WIRELESS shall not constitute a waiver of the
right to pursue other available remedies.
12.5 COUNTERPARTS. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
12.6 BENEFIT. This Agreement shall be binding upon, and inure to the benefit of,
the respective successors and assigns of CACH and WIRELESS and its
shareholders.
12.7 ENTIRE AGREEMENT. This Agreement and the Schedules and Exhibits attached
hereto, represent the entire agreement of the undersigned regarding the
subject matter hereof, and supersedes all prior written or oral
understandings or agreements between the parties.
12.8 EXPENSES. WIRELESS shall bear all expenses incurred in connection with the
negotiation, execution, closing, and performance of this Agreement,
including counsel fees and accountant fees.
12.9 CAPTIONS AND SECTION HEADINGS. Captions and section headings used herein
are for convenience only and shall not control or affect the meaning or
construction of any provision of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
CACH, INC.U.S. WIRELESS ONLINE,, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------- -------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------- ----------------------
Title: President Title: Chief Executive Officer
--------- -------------------------
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EXHIBIT A
SHAREHOLDER DATA AND ACKNOWLEDGMENTS
OF
U.S.WIRELESS ONLINE, INC. SHAREHOLDERS
By execution below, each of the undersigned hereby approves the Agreement and
Plan of Reorganization with Cach Foods, Inc. and undersigned hereby represents
and warrants that the undersigned has read the Agreement and Plan of
Reorganization with CACH, INC. and understands its terms and conditions. By
execution below, each of the undersigned acknowledges and agrees to the
specified surrender of shares and directs that shares be issued as provided.
Shares to be Surrendered Shares to be Issued Recipient and Address
------------------------- ------------------- --------------------------
20,375,000 5,552,128 ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Approved By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------------------------------------------
12,050,000 3,283,590 ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Approved By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------
▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------------------------------------------
9,000,000 2,452,474 ISP Ventures, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Approved By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------
▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------------------------------------------
750,000 204,373 ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Approved By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------
▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------------------------------------------------
26
EXHIBIT B
INVESTMENT REPRESENTATION STATEMENT
PURCHASER:
ISSUER:CACH, Inc. (Referred to hereinbelow as the "Company")
SECURITY:Common Stock, par value $.001
QUANTITY:_______________ Shares
In connection with the purchase of the above-listed Securities of the Company,
I, the purchaser represent to the Company the following:
1. Investment. (a) I am aware of the Company's business affairs and financial
----------
condition. I am purchasing the Securities for investment for my own account
only and not with a view to, or for resale in connection with, any
"distribution" thereof within the meaning of the Securities Act of 1933, as
amended (the "Securities Act"). These securities have not been registered
under the Securities Act by reason of a specific exemption therefrom, which
exemption depends on, among other things, the bona fide nature of the
investment intent as expressed herein. In this connection I understand
that, in view of the Securities and Exchange Commission ("SEC"), the
statutory basis for such exemption may be unavailable if my representation
was predicated solely upon a present intention to hold these Securities for
the minimum capital gains period specified under tax statutes, for a
deferred sale, for or until an increase or decrease in the market price of
the Securities or for the period of one year or any other fixed period in
the future.
(b) I have examined or have had an opportunity to examine, before the date
hereof, such documents and information relevant to this transaction as may
have been requested from the Company, in that connection, I have taken all
steps necessary to evaluate the merits and risks of this offering.
(c) I have had an opportunity to ask questions of and receive answers from
officers of the Company, or a person or persons acting on its behalf,
concerning the terms and conditions of this investment, and all such
questions have been answered to my full satisfaction.
2. Restrictions on Transfer Under Securities Act. I further acknowledge and
------------------------------------------------
understand that the Securities must be held indefinitely unless they are
subsequently registered under the Securities Act and registered and/or
qualified under applicable state securities laws or unless an exemption
from such registration and/or qualification is available. Moreover, I
understand that the Company is under no obligation to register the
Securities. In addition, I understand that the certificate evidencing the
Securities will be imprinted with a legend which prohibits the transfer of
the Securities unless they are registered or unless the Company receives an
opinion of counsel reasonably satisfactory to the Company that such
registration is not required.
27
3. Sales Under Rule 144. I am aware of the adoption of Rule 144 by the SEC
-----------------------
promulgated under the Securities Act, which in substance permits limited
public resale of securities acquired in a non- public offering subject to
the satisfaction of certain conditions, including: (i) the availability of
certain current public information about the Company, (ii) the resale being
made through a broker in an unsolicited "broker's transaction" or in
transactions directly with a " market maker," and (iv) the amount of
securities sold during any three-month period not exceeding specified
limitations (generally 1% of the total shares outstanding).
4. Limitations on Rule 144. I further acknowledge and understand that the
--------------------------
Company is not now, and at any time I wish to sell the Securities may not
be, satisfying the public information requirement of Rule 144, and, in such
case, I would be precluded from selling the Securities under Rule 144 even
if the minimum holding period under Rule 144 had been satisfied.
In Witness Whereof, the undersigned has executed this Investor Representation
Statement with knowledge that the above-named Issuer will rely on the truth and
completeness of the representations and warrantees contained herein.
DATE PURCHASER
---------------------------------
Name:----------------------------
(Printed)
28