ACQUISITION AGREEMENT AND PLAN OF REORGANIZATION
This Acquisition Agreement ("Agreement"), effective as of November 22, 2000,
is made by and between Altrex, Inc. ("Altrex" or "BUYER"), the acquiring
entity, on the one hand, and Internet CallCenter Pte Ltd. ("ICALL"), the
entity being acquired, and all the shareholders of ICALL (the "SELLERS" or
"ICALL Shareholder(s)"), as listed on attached Exhibit A, on the other hand.
Recitals
WHEREAS, ICALL has developed certain business plans, strategies, and
strategic business relationships (the "ICALL Business Plan"); and
WHEREAS, ICALL and the SELLERS are desirous to merge ICALL (the "Merger")
with a company that is listed on the NASDAQ OTC Bulletin Board ("OTC-BB") and
is established as a public reporting company with the United States
Securities and Exchange Commission ("SEC") in a transaction meant to qualify
as a "tax-free" reorganization under section 368(a)(1)(A) of the Internal
Revenue Code of 1986, as amended; and,
WHEREAS, ALTREX is a publicly traded company listed on the OTC-BB that has
established itself as a reporting company with the SEC; and,
WHEREAS, ALTREX is desirous of entering into a reverse takeover of ICALL in
order to pursue the ICALL Business Plan thus far established; and,
WHEREAS, the parties hereto desire to make certain representations,
warranties, covenants, and agreements in connection with the Merger and also
to prescribed conditions to the Merger.
Agreement
NOW, WHEREFORE, in consideration of the representations, warranties,
agreements, and mutual covenants set forth below, and other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties
hereto agree as follows.
1. EXCHANGE OF STOCK.
1.1 Number of Shares. Each ICALL Shareholder agrees to transfer to ALTREX at
the Closing (defined below) the number of shares of common stock of ICALL,
$1.00 par value per share, shown opposite his name in Exhibit A in exchange
for the number of common stock of ALTREX (ALTREX Shares), $0.001 par value,
as shown against his name in Exhibit A. The aggregate number of shares in
ICALL (ICALL Shares) to be transferred to ALTREX shall be 14,950,002 and the
aggregate number of ALTREX Shares to be issued to ICALL Shareholders in
exchange for the ICALL Shares shall be 6,500,000 ALTREX Shares, $0.001 par
value, as provided in paragraph 1.5 below.
1.2 Exchange of Certificates. Each and every holder of an outstanding
certificate or certificates theretofore representing shares of ICALL common
stock shall surrender such certificate(s) for cancellation to ALTREX, and
shall receive in exchange a certificate or certificates representing the
number of full shares of ALTREX Shares into which the shares of ICALL common
stock represented by the certificate or certificates so surrendered shall
have been converted. The transfer of ICALL shares by the ICALL Shareholder(s)
shall be effected by the delivery to ALTREX at the Closing of certificates
representing the transferred shares endorsed in blank or accompanied by stock
powers executed in blank. The ICALL Shares transferred herein shall represent
all the issued and outstanding shares of ICALL, including all warrants,
options, stock rights and all other securities of ICALL owned by the
Shareholder, if any.
1.3 Fractional Shares. Fractional shares of ALTREX Shares shall not be
issued, but in lieu thereof ALTREX shall round up fractional shares to the
next highest whole number.
1.4 Further Assurances. At the Closing and from time to time thereafter, the
ICALL Shareholders shall execute such additional instruments and take such
other action as may be required to sell, transfer, and assign the transferred
stock to ALTREX and to confirm ALTREX's title thereto.
1.5 Securities Exchanged. The securities of ICALL owned by each ICALL
Shareholder, and the relative securities of ALTREX for which they will be
exchanged, as at the date hereof, are set out in Exhibit A. The parties
hereby acknowledge that between the date hereof and Closing, there may be
changes in the shareholding of each ICALL Shareholder, if any, and the
securities to be exchanged shall be adjusted accordingly.
1.6 Shares Cancelled. All but 12,000 shares, in aggregate, of the total
ALTREX common shares held by the current officers and directors of ALTREX
shall be cancelled at the Closing.
1.7 Securities Outstanding After Closing. Immediately following the Closing,
there will be issued and outstanding in ALTREX, 11,512,000 common shares, par
value $0.001. The respective shareholdings of the directors, shareholders
each holding more than 10% of the total issued and paid-up share capital of
ALTREX (Affiliate) and the key management employees of ICALL at Closing will
be as set out in Exhibit J.
2. EXCHANGE OF OTHER SECURITIES.
2.1 Save in respect of the ICALL Shares, there are no outstanding warrants,
options, stock rights, or other securities of ICALL that are subject to
exchange under Sections 1.1 and 1.5.
3. CLOSING.
3.1 The closing contemplated herein (Closing) shall be held on such date
falling on or before December 20, 2000 as the parties may agree at the
offices of ICALL at ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, #▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, unless another place or time is agreed upon in writing by the parties
without requiring the meeting of the parties hereof. All proceedings to be
taken and all documents to be executed at the Closing shall be deemed to have
been taken, delivered and executed simultaneously, and no proceeding shall be
deemed taken nor documents deemed executed or delivered until all have been
taken, delivered and executed. The date of Closing may be accelerated or
extended by agreement of the parties.
3.2 Any copy, facsimile telecommunication or other reliable reproduction of
the writing or transmission required by this Agreement or any signature
required thereon may be used in lieu of an original writing or transmission
or signature for any and all purposes for which the original could be used,
provided that such copy, facsimile telecommunication or other reproduction
shall be a complete reproduction of the entire original writing or
transmission or original signature.
3.3 The Merger. Subject to the terms and conditions of this Agreement, upon
the Closing ICALL shall be acquired by and become a wholly owned subsidiary
of ALTREX in accordance with the General Corporate Law of the State of
Nevada.
3.4 Filings. Upon the Closing, ALTREX will file, or caused to be filed,
articles of merger and make and/or cause to be made all other filings or
recordings required by Nevada Law in connection with the Merger with the
Secretary of State of Nevada, which articles of merger and other filings and
recordings shall be in the form required by and executed in accordance with
the applicable provisions of Nevada Law. The Merger shall become effective
at the time the articles of merger for such Merger are duly filed with the
Secretary of State of Nevada or at such later time as may be designated in
the articles of merger.
3.5 Directors and Officers. From and after the Closing, until successors are
duly elected or appointed and qualified in accordance with applicable law,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, and Seah ▇▇▇ ▇▇▇▇ shall be the directors of
ALTREX.
3.6 No Roll-Back of Shares. From and after Closing, ALTREX shall not roll-
back or reverse-split its shares for a period two years without the
approval of shareholders representing 100% of the then issued and outstanding
shares.
3.7 No Registration of Shares for Sale. For a period of one year from the
date of Closing, ALTREX shall not register, or have registered on its behalf,
with the SEC, any shares of ALTREX (or the Surviving Entity) common stock for
public sale.
4. UNEXCHANGED CERTIFICATES.
Until surrendered, each outstanding certificate that prior to the Closing
represented ICALL common stock shall be deemed for all purposes, other than
the payment of dividends or other distributions, to evidence ownership of the
number of shares of ALTREX common stock into which it was converted. No
dividend or other distribution shall be paid to the holders of certificates
of ICALL common stock until presented for exchange at which time any
outstanding dividends or other distributions shall be paid.
5.REPRESENTATIONS AND WARRANTIES OF ICALL.
ICALL represents and warrants the following:
5.1 Corporate Status. ICALL is a corporation duly organized, validly
existing, and in good standing under the laws of the Republic of Singapore
and is licensed or qualified as a foreign corporation in all jurisdictions in
which it carries on business and in which the nature of its business or the
character or ownership of its properties makes such licensing or
qualification necessary.
5.2 Capitalization. The authorized capital stock of ICALL consists of
16,800,000 shares of common stock, $1.00 par value, of which 14,950,002
shares are issued and outstanding, all duly authorized, validly issued, fully
paid and non-assessable. ICALL has not issued or granted, or agreed to issue
or grant, any warrants, options, stock rights or other securities.
5.3 Subsidiaries. ICALL holds interest in no subsidiaries.
5.4 Financial Statements. All financial statements of ICALL from its
inception to and including the close as of October 31, 2000, and including
audited financial statements if available, were, or will be by the Close,
furnished to ALTREX and such statements accurately and fairly present the
financial position of ICALL as of the respective dates of such financial
statements, and the results of its operations for the respective periods
indicated computed on the basis used for filing ICALL's federal tax returns,
consistently applied. ICALL will deliver to ALTREX, within 45 days following
the Closing, audited financial statements for the period from inception
through December 31, 2000.
5.5 Undisclosed Liabilities. ICALL has no liabilities of any nature, except
to the extent indicated on Exhibit C, whether accrued, absolute, contingent,
or otherwise, including, without limitation, tax liabilities and interest due
or to become due.
5.6 Litigation. There is no litigation or proceeding pending, or to ICALL's
knowledge threatened, against or relating to ICALL, its properties or
business.
5.7 Contracts. ICALL is not a party to any material contracts other than
those listed on Exhibit B.
5.8 No Violation. Execution of this Agreement and performance by ICALL
hereunder will have been duly authorized by all requisite corporate action on
the part of ICALL, and this Agreement constitutes a valid and binding
obligation of ICALL, performance hereunder will not violate any provision of
any charter, bylaw, indenture, mortgage, lease, or agreement, or any order,
judgment, decree, law, or regulation to which any property of ICALL is
subject or by which ICALL is bound.
5.9 Taxes. ICALL has filed in correct form all federal, state, and other tax
returns of every nature required to be filed by it and has paid all taxes as
shown on such returns and all assessments, fees and charges received by it to
the extent that such taxes, assessments, fees and charges have become due.
ICALL has also paid all taxes which do not require the filing of returns and
which are required to be paid by it. To the extent that tax liabilities have
accrued, but have not become payable, they have been adequately reflected as
liabilities on the books of ICALL and are reflected in the financial
statements furnished hereto.
5.10 Corporate Authority. ICALL has full corporate power and authority to
enter into this Agreement and to carry out its obligations hereunder, and
will deliver at the Closing a certified copy of resolutions of its board of
directors authorizing execution of this Agreement by its officers and
performance thereunder.
5.11 Access to Records. From the date of this Agreement to the Closing, ICALL
will, subject to the obligation of ALTREX in paragraph 7.15 below, (1) give
to ALTREX and its representatives full access during normal business hours to
all of its offices, books, records, contracts, and other corporate documents
and properties so that ALTREX may inspect and audit them and (2) furnish such
information concerning ICALL's properties and affairs as ALTREX may
reasonably request.
5.12 Confidentiality. Until the Closing (and permanently if there is no
Closing), ICALL and the ICALL Shareholder(s) will keep confidential any
information that they obtain from ALTREX concerning its properties, assets,
and business. If the transactions contemplated by this Agreement are not
consummated, ICALL and the ICALL Shareholder will return to ALTREX all
written matter with respect to ALTREX obtained by them in connection with the
negotiation or consummation of this Agreement.
6. REPRESENTATIONS AND WARRANTIES OF THE ICALL SHAREHOLDERS.
The ICALL Shareholders, represent and warrant as follows:
6.1 Title to Shares. Each ICALL Shareholder is the owner, free and clear of
any liens and encumbrances, of the number of ICALL shares which are listed in
Exhibit A and which he has contracted to exchange and which together
represent all the issued and outstanding shares of ICALL.
6.2 Litigation. There is no litigation or proceeding pending, or to the ICALL
Shareholder's knowledge threatened, against or relating to shares of ICALL
held by the ICALL Shareholder.
6.3 No Approval. The ICALL Shareholders understand that the shares to be
received from ALTREX have not been approved or disapproved by the SEC or any
state securities agencies.
6.4 Investment Intent. ICALL Shareholders are acquiring the ALTREX common
shares solely for investment for his or her own account and not with a view
to, or for, resale in connection with any distribution within the meaning of
the Securities Act, the Exchange Act, or any other applicable state
securities acts.
6.5 Speculative Nature. ICALL Shareholders understand the speculative nature
and risks associated with ALTREX and confirm that ALTREX Shares are suitable
and consistent with his or her investment program and that his or her
financial position enables him or her to bear the risks of this investment
and that there may not be any public market for ALTREX Shares.
6.6 Information. ICALL Shareholders have been provided with all the
information requested of ALTREX and with all information needed by them to
make an informed decision with respect to the ALTREX Common Shares.
7. REPRESENTATIONS AND WARRANTIES OF ALTREX.
ALTREX represents and warrants as follows:
7.1 Corporate Status. ALTREX is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Nevada and is
licensed or qualified as a foreign corporation in all states in which the
nature of its business or the character or ownership of its properties makes
such licensing or qualification necessary.
7.2 Capitalization. The authorized capital stock of ALTREX consists of
75,000,000 shares of common stock, $0.001 par value per share, of which
25,000,000 shares are issued and outstanding, all fully paid and non-
assessable.
7.3 Subsidiaries. ALTREX has no subsidiaries.
7.4 Public Company. ALTREX filed with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934, a registration statement on
Form 10-SB and received clearance from the SEC on its FORM 10SB during
October, 1999, voluntarily registering as a publicly reporting company.
7.5 Public Filings. ALTREX has timely filed all reports required to be filed
by it under Section 13 of the Securities Exchange Act of 1934.
7.6 Financial Statements. The unaudited financial statements of ALTREX as of
September 30, 2000, or such other period as are acceptable to ICALL
("ALTREX's Financial Statements") and furnished to ICALL are correct and
fairly present the financial condition of ALTREX as of the dates and for the
periods involved, and such statements were prepared in accordance with
generally accepted accounting principles consistently applied.
7.7 Undisclosed Liabilities. ALTREX had no liabilities of any nature except
to the extent reflected or reserved against in ALTREX's Financial Statements,
whether accrued, absolute, contingent, or otherwise, including, without
limitation, tax liabilities and interest due or to become due, and ALTREX's
accounts receivable, if any, are collectible in accordance with the terms of
such accounts, except to the extent of the reserve therefore in ALTREX's
Financial Statements.
7.8 Absence of Material Changes. Between the date of ALTREX's Financial
Statements and the date of Closing, there have not been, except as set forth
in a list certified by the president of ALTREX and delivered to ICALL, (1)
any changes in ALTREX's financial condition, assets, liabilities, or business
which, in the aggregate, have been materially adverse; (2) any damage,
destruction, or loss of or to ALTREX's property, whether or not covered by
insurance; (3) any declaration or payment of any dividend or other
distribution in respect of ALTREX's capital stock, or any direct or indirect
redemption, purchase, or other acquisition of any such stock; (4) any
increase paid or agreed to in the compensation, retirement benefits, or other
commitments to employees; or (5) any other changes which may have a material
adverse effect on ALTREX's financial position, condition, business or
operations.
7.9 Litigation. There is no litigation or proceeding pending, or to ALTREX's
knowledge threatened, against or relating to ALTREX, its properties or
business, except as set forth in a list certified by the president of ALTREX
and delivered to ICALL.
7.10 Contracts. ALTREX is not a party to any material contract other than
those listed on Exhibit D attached hereto.
7.11 No Violation. Execution of this Agreement and performance by ALTREX
hereunder has been, or will be by Closing, duly authorized by all requisite
corporate action on the part of ALTREX, and this Agreement constitutes a
valid and binding obligation of ALTREX, performance hereunder will not
violate any provision of any charter, bylaw, indenture, mortgage, lease, or
agreement, or any order, judgment, decree, law, or regulation to which any
property of ALTREX is subject or by which ALTREX is bound.
7.12 Taxes. ALTREX has filed in correct form all federal, state, and other
tax returns of every nature required to be filed by it and has paid all taxes
as shown on such returns and all assessments, fees and charges received by it
to the extent that such taxes, assessments, fees and charges have become due.
ALTREX has also paid all taxes which do not require the filing of returns and
which are required to be paid by it. To the extent that tax liabilities have
accrued, but have not become payable, they have been adequately reflected as
liabilities on the books of ALTREX and are reflected in the financial
statements furnished hereto. There is no action, suit, proceeding,
investigation, audit or claim now proposed or pending against or threatened,
with respect to ALTREX in respect of any tax obligation, there are no liens
for taxes upon the assets of ALTREX and ALTREX has not requested any
extension of time within which to file any return.
7.13 Title to Property. ALTREX has good and marketable title to all
properties and assets, real and personal, reflected in ALTREX's Financial
Statements, except as since sold or otherwise disposed of in the ordinary
course of business, and ALTREX's properties and assets are subject to no
mortgage, pledge, lien, or encumbrance, except for liens shown therein, with
respect to which no default exists. The properties and assets of ALTREX
described in ALTREX's Financial Statements are the only properties or assets
required for ALTREX to carry on its business, as such business has been
represented to ICALL and the ICALL Shareholders.
7.14 Corporate Authority. ALTREX has full corporate power and authority to
enter into this Agreement and to carry out its obligations hereunder, and
will deliver at the Closing a certified copy of resolutions of its board of
directors authorizing execution of this Agreement by its officers and
performance thereunder.
7.15 Confidentiality. Until the Closing (and permanently if there is no
Closing), ALTREX and its representatives will keep confidential any
information, except that information needed to be filed in 14A filings with
the SEC, they obtain from ICALL concerning its properties, assets, and
business. If the transactions contemplated by this Agreement are not
consummated, ALTREX will return to ICALL all written matter with respect to
ICALL obtained by it in connection with the negotiation or consummation of
this Agreement.
7.16 Investment Intent. ALTREX is acquiring the ICALL shares to be
transferred to it under this Agreement for investment and not with a view to
the sale or distribution thereof, and ALTREX has no commitment or present
intention to sell or otherwise dispose of its stock.
7.17 No Approval and Access to Information. ALTREX understands that the
shares to be received from ICALL Shareholders have not been registered with
or reviewed and approved or disapproved by the SEC or any state securities
agencies, and no federal or state securities law administrator has reviewed
or approved any disclosure or other material concerning ICALL or ICALL
Shares. Buyer has been provided with and reviewed all information concerning
ICALL and the ICALL Shares as it has deemed necessary or appropriate as a
prudent and knowledgeable investor to enable it to make an informed
investment decision concerning the ICALL Shares.
7.18 Suppliers and Customers. Save as disclosed in Exhibit E, there are no
suppliers and the customers that are material to the business of ALTREX. The
Merger will not affect the relationship of ALTREX with any supplier or
customer.
7.19 Insurance. Exhibit F sets forth a list of all insurance policies held
by or on behalf of ALTREX. Such policies are valid and binding in accordance
with their terms, are in full force and effect, and insure against risks and
liabilities to an extent and in a manner customary in the industry in which
ALTREX operates. All premiums have been paid in full. ALTREX has not received
any notice from any of its insurance carriers that any insurance premiums
will be materially increased in the future or that any insurance coverage
listed in Exhibit F will not be available in the future on substantially the
same terms as now in effect.
7.20 Key Management Employees. Exhibit G sets forth (a) the name and total
compensation of each key management employee of the ALTREX and (b) the name
and total compensation of each other employee, consultant, agent or other
representative of ALTREX. Save as disclosed in Exhibit G, there is no
accrual for, or any commitment or agreement by ALTREX to pay wage and salary
and any other direct or indirect compensation increases, bonuses or pay.
7.21 Receivables. All accounts and notes receivable are reflected on
ALTREX's Financial Statements, and all accounts and notes receivable arising
subsequent to the date of ALTREX's Financial Statements: (a) have arisen in
ALTREX's ordinary course of business; and (b) subject only to a reserve for
bad debts computed in a manner consistent with past practice and reasonably
estimated to reflect the probable results of collection, have been collected
or are collectible in ALTREX's ordinary course of business in the aggregate
recorded amounts thereof in accordance with their terms.
7.22 Intangible Property. Save as disclosed in Exhibit H, ALTREX does not
own any patents, trademarks, copyrights, service marks and trade names or has
made any applications for any of the foregoing. There are no other patents,
trademarks, copyrights, service marks or trade names that are material to
ALTREX's business as presently conducted or as being developed. ALTREX owns,
or is licensed or otherwise has the full right to use, all patents,
trademarks, trade names, service names, copyrights, technology, know-how and
processes ("Intellectual Property Rights") used in or necessary for the
conduct of its business and which are material thereto. The business
conducted by ALTREX does not conflict with or infringe any valid Intellectual
Property Rights of any third party in any way. ALTREX has not received
notice and is not aware of any of its Intellectual Property Rights being
infringed upon or appropriated by third parties.
8. CONDUCT PENDING THE CLOSING.
ALTREX, ICALL and the ICALL Shareholders covenant that between the date of
this Agreement and the Closing as to each of them:
8.1 No change will be made in the charter documents, by-laws, or other
corporate documents of ALTREX or ICALL unless the party making any such
change notifies the other in writing.
8.2 No ICALL Shareholder will transfer, assign, hypothecate, lien, or
otherwise dispose or encumber the ICALL shares of common stock owned by him.
8.3 Each of ALTREX and ICALL shall not (a) declare or pay any dividends or
declare or make any other distributions of any kind to its shareholders, or
make any direct or indirect redemption, retirement, purchase or other
acquisition of any of its respective shares; (b) incur any indebtedness for
borrowed money; (c) reduce its cash or short-term investments or their
equivalent, other than to meet cash needs arising in the ordinary course of
business, consistent with past practices; (d) waive any material right under
any material contract or other agreement of the type required to be
disclosed; (e) make any change in its accounting methods or practices or made
any change in depreciation or amortisation policies or rates adopted by it;
(f) materially change any of its business policies, including, without
limitation, advertising, investment, marketing, pricing, purchasing,
production, personnel, sales, returns, budget or product acquisition
policies; (g) make any loan or advance to any of its shareholders, officers,
directors, employees, consultants, agents or other representatives, or make
any other loan or advance otherwise than in the ordinary course of business;
(h) except for inventory or equipment in the ordinary course of business,
sell, abandon or make any other disposition of any of its properties or make
any acquisition of all or any part of the properties, share capital or
business of any other person; (i) pay, directly or indirectly, any of its
material liabilities before the same becomes due in accordance with its terms
or otherwise than in the ordinary course of business; (j) terminate or fail
to renew, or receive any written threat (that was not subsequently withdrawn)
to terminate or fail to renew, any contract or other agreement that is or was
material to its condition, financial or otherwise; (k) amend its Memorandum
and Articles of Association (or other constitutional documents) or merge with
or into or consolidate with any other person, subdivide or in any way
reclassify any shares of its share capital or change or agree to change in
any manner the rights of its outstanding share capital or the character of
its business; or (l) engage in any other material transaction other than in
the ordinary course of business.
9. CONDITIONS PRECEDENT TO OBLIGATION OF ICALL AND THE SHAREHOLDERS.
ICALL's and the ICALL Shareholders' obligation to consummate this exchange
shall be Subject to fulfillment on or before the Closing of each of the
following conditions, unless waived in writing by ICALL or the Shareholders
as appropriate:
9.1 ALTREX's Representations and Warranties. The representations and
warranties of ALTREX set forth herein shall be true and correct at the
Closing as though made at and as of that date, except as affected by
transactions contemplated hereby.
9.2 ALTREX's Covenants. ALTREX shall have performed all covenants required to
be performed by it on or before the Closing by this Agreement.
9.3 Board of Director Approval. This Agreement shall have been approved by
the board of directors of ALTREX.
9.4.Regulatory Approvals. ALTREX shall have received all Federal and state
regulatory approvals required of them to complete the transactions
contemplated by this Agreement.
9.5 Supporting Documents of ALTREX. ALTREX shall have delivered to ICALL and
the Shareholder(s) supporting documents in form and substance reasonably
satisfactory to ICALL and the Shareholder(s), to the effect that: (a) ALTREX
is a corporation duly organized, validly existing, and in good standing; (b)
ALTREX's authorized capital stock is as set forth herein; (c) Certified
copies of the resolutions of the board of directors of ALTREX authorizing the
execution of this Agreement and the consummation hereof; (d) Secretary's
certificate of incumbency of the officers and directors of ALTREX; (e)
ALTREX's unaudited financial statement to close of most recent fiscal
quarter; and (f) Any document as may be specified herein or required to
satisfy the conditions, representations and warranties enumerated elsewhere
herein.
9.6 Shareholder Approval of Merger, Directors, Other. This Acquisition
Agreement and Plan of Reorganization, including the election of the new
Directors and Officers designated in paragraph 3.5 and approval of the
prohibition against (1) a reverse-split of shares discussed in paragraph 3.6
and (2) registration of shares for public sale for a period of one year,
shall have been approved and adopted by the affirmative vote of a majority of
the outstanding shares of ALTREX Common Shares entitled to vote thereon based
on a properly prepared proxy statement.
9.7 Resignation Officers and Directors/Cancel Shares. The officers and
directors of ALTREX shall have resigned any and all their positions as
officers, directors, and employees of ALTREX and signed an agreement,
acceptable to the ICALL Shareholders, cancelling all but 12,000 of the ALTREX
shares, in aggregate, held by such officers and directors.
9.8 Shareholder Approval of Name Change. A majority of the Shareholders of
ALTREX will have elected to change the name of ALTREX to Internet CallCenter,
Inc.
10. CONDITIONS PRECEDENT TO OBLIGATION OF ALTREX.
ALTREX's obligation to consummate this merger shall be Subject to fulfillment
on or before the Closing of each of the following conditions, unless waived
in writing by ALTREX:
10.1 ICALL's and the Shareholder's Representations and Warranties. The
representations and warranties of ICALL and the Shareholder set forth herein
shall be true and correct at the Closing as though made at and as of that
date, except as affected by transactions contemplated hereby.
10.2 ICALL's and the Shareholder's Covenants. ICALL and the Shareholder shall
have performed all covenants required by this Agreement to be performed by
them on or before the Closing.
10.3 Board of Director Approval. This Agreement shall have been approved by
the board of directors of ICALL
10.4 Shareholder Execution. Exhibit I, ICALL Shareholder Approval and
Investor Qualification, substantially in the form attached hereto and
incorporated herein by this reference shall have been executed by each and
every shareholder of ICALL.
10.5 Supporting Documents of ICALL. ICALL shall have delivered to ALTREX
supporting documents in form and Substance reasonably satisfactory to ALTREX
to the effect that: (a) ICALL is a corporation duly organized, validly
existing, and in good standing; (b) ICALL's capital stock is as set forth
herein; (c) Certified copies of the resolutions of the board of directors of
ICALL authorizing the execution of this Agreement and the consummation
hereof; (d) Secretary's certificate of incumbency of the officers and
directors of ICALL; (e) All financial statements of ICALL from its inception
to and including the close of the most recent fiscal quarter, including
audited financial statements if available; and (f) Any document as may be
specified herein or required to satisfy the conditions, representations and
warranties enumerated elsewhere herein.
10.6 Regulatory Approvals. ICALL shall have received all Federal and state
regulatory approvals required of them to complete the transactions
contemplated by this Agreement.
10.7 Agreement Acknowledging Shares. ICALL shall have signed an agreement
acknowledging the cancellation of all but 12,000 of the ALTREX shares held,
in aggregate, by the current ALTREX Officers and Directors and the
anticipated lapse of "restrictions" on these shares under Rule 144.
10.8 Conversion/Payment of All Management Loans to ICALL. Prior to the
Closing, all loans made to ICALL by ICALL management will be paid in full or
converted to shares of ICALL, which shares, if any, shall be exchanged as
ICALL Shares under this Agreement and included in Exhibit A hereto. ICALL
shall supply evidence to this effect under section 10.5 above.
10A. COVENANTS OF ALTREX.
10A.1 Conduct of the Company. Except as specifically contemplated by this
Agreement, ALTREX will and shall cause ICALL: (a) to conduct its business in
the ordinary course in accordance with applicable laws and use its best
efforts to preserve and maintain the properties, business and relationships
with suppliers, customers, employees, agents and others having relationships
with it; (b) not to take or omit to take or agree or commit to take or omit
to take any action that would make any representation and warranty any action
that would make any representation and warranty hereunder inaccurate in any
material respect at, or as of any time prior to Closing and (c), not issue
any Shares or other voting securities or any securities convertible or
exchangeable into Shares or other voting securities or establish a record
date for such purposes unless otherwise approved by their respective
directors or shareholders, as the case may be.
10A.2 Non-competition. Each of the ALTREX Shareholders shall not (and shall
procure that none of their Affiliates shall) except with the prior written
consent of the respective directors or shareholders of ALTREX or ICALL, as
the case may be, during the term of this Agreement: (a) exploit develop,
carry on or be engaged, concerned or interested, directly or indirectly,
within whether as shareholder, director, partner, agent or otherwise, in
carrying on any other business in competition (whether directly or
indirectly) with the business of ALTREX or ICALL except through ALTREX or
ICALL; (b) solicit or entice away from ALTREX or ICALL the custom of any
person who shall at the time of the solicitation or enticement, or attempted
solicitation or enticement, have been a customer, client, agent or
correspondent of ALTREX or ICALL in the habit of dealing with ALTREX or ICALL
at any time within the preceding two years; (c) solicit or entice away from
ALTREX or ICALL, any person who is a Key Management Employee whether or not
such person would thereby breach his contract of employment by reason of
leaving the employment of ALTREX or ICALL; and (d) ensure that all permits
and all extensions or renewals thereof relevant to the business of ALTREX or
ICALL are awarded to or validly issued in the name of ALTREX or ICALL, as the
case may be. While the restrictions aforesaid are considered by the parties
to be reasonable in all the circumstances, it is agreed that if any one or
more of such restrictions shall, either taken by itself or themselves
together, be adjudged to go beyond what is reasonable, but would otherwise be
reasonable if any particular restriction or restrictions were deleted or if
any part or parts of the wording thereof were deleted, restricted or limited
in a particular manner, then the restrictions shall apply with such
deletions, restrictions or limitations, as the case may be.
10A.3 Affiliate Transactions. All transactions between ALTREX or ICALL on
the one hand and any of their directors or shareholders or their Affiliates
on the other hand will be on an arms' length basis on terms fair to ALTREX or
ICALL (as the case may be) and at least as favourable as could have been
obtained from unrelated third parties. The directors and shareholders of
ALTREX and the directors of ICALL shall cause their Affiliates to comply with
the terms of this paragraph.
10A.4 Information; Assistance. ALTREX and ICALL will provide, and will cause
their respective Affiliates to provide, and will cause their respective
assistance required by the shareholders or which the shareholders may
reasonably request to enable it to comply with all applicable laws. ALTREX
and ICALL will provide to the shareholders of ALTREX: (a) annual budget in
relation to ALTREX and ICALL at least 30 days prior to each financial year
end of ALTREX and ICALL, as the case may be; (b) annual audited and
consolidated accounts of ALTREX and ICALL within 180 days of each financial
year end of ALTREX or ICALL, as the case may be; (c) quarterly unaudited and
[unconsolidated] accounts of ALTREX and ICALL within 60 days of the end of
each calendar quarter provided that the shareholders shall be entitled to
receive unaudited and consolidated accounts of ALTREX and ICALL if the
shareholders shall so request; and (d) all other information as may be
requested by the shareholders from time to time. All information to be
provided to the shareholders shall be prepared in a format to be agreed by
ALTREX or ICALL, as the case may be, and the shareholders.
11. INDEMNIFICATION.
11.1 Indemnification of ALTREX. ICALL agrees to indemnify ALTREX against any
loss, damage, or expense (including reasonable attorney fees) suffered by
ALTREX from (1) any breach by ICALL or the Shareholder of this Agreement or
(2) any inaccuracy in or breach of any of the representations, warranties, or
covenants by ICALL or the ICALL Shareholders herein; provided, however, that
(a) ALTREX shall be entitled to assert rights of indemnification hereunder
only if and to the extent that it suffers losses, damages, and expenses
(including reasonable attorney fees) exceeding $5,000 in the aggregate and
(b) ALTREX shall give notice of any claims hereunder within twelve months
beginning on the date of the Closing. No loss, damage, or expense shall be
deemed to have been sustained by ALTREX to the extent of insurance proceeds
paid to, or tax benefits realizable by, ALTREX as a result of the event
giving rise to such right to indemnification.
11.2 Indemnification of ICALL and the ICALL Shareholders. ALTREX agrees to
indemnify ICALL and the ICALL Shareholders against any loss, damage, or
expense (including reasonable attorney fees) suffered by ICALL or by any
ICALL Shareholder from (1) any breach by ALTREX of this Agreement or (2) any
inaccuracy in or breach of any of ALTREX's representations, warranties, or
covenants herein.
11.3 Defense of Claims. Upon obtaining knowledge thereof, the indemnified
party shall promptly notify the indemnifying party of any claim that has
given or could give rise to a right of indemnification under this Agreement.
If the right of indemnification relates to a claim asserted by a third party
against the indemnified party, the indemnifying party shall have the right to
employ counsel acceptable to the indemnified party to cooperate in the
defense of any such claim. As long as the indemnifying party is defending any
such claim in good faith, the indemnified party will not settle such claim.
If the indemnifying party does not elect to defend any such claim, the
indemnified party shall have no obligation to do so.
12 TERMINATION.
This Agreement may be terminated: (1) by mutual consent in writing; or (2) by
ICALL, the ICALL Shareholder or ALTREX if there has been a material
misrepresentation or material breach of any warranty or covenant by any other
party.
13 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
Subject to Paragraph 11 hereof, the representations and warranties of ICALL,
the ICALL Shareholders and ALTREX set out herein shall survive the Closing.
14 ARBITRATION SCOPE.
The parties hereby agree that any and all claims (except only for requests
for injunctive or other equitable relief) whether existing now, in the past
or in the future as to which the parties or any affiliates may be adverse
parties, and whether arising out of this agreement or from any other cause,
will be resolved by arbitration before the American Arbitration Association.
SITUS. The situs of arbitration shall be chosen by the party against whom
arbitration is sought, provided only that arbitration shall be held at a
place in the reasonable vicinity of such party's place of business or primary
residence and shall be within the United States. The situs of counterclaims
will be the same as the situs of the original arbitration. Any disputes
concerning situs will be decided by the American Arbitration Association.
APPLICABLE LAW. The law applicable to the arbitration and this agreement
shall be that of the State of California, determined without regard to its
provisions which would otherwise apply to a question of conflict of laws. Any
dispute as to the applicable law shall be decided by the arbitrator.
DISCLOSURE AND DISCOVERY. The arbitrator may, in its discretion, allow the
parties to make reasonable disclosure and discovery in regard to any matters
that are the Subject of the arbitration and to compel compliance with such
disclosure and discovery order. The arbitrator may order the parties to
comply with all or any of the disclosure and discovery provisions of the
Federal Rules of Civil Procedure, as they then exist, as may be modified by
the arbitrator consistent with the desire to simplify the conduct and
minimize the expense of the arbitration. Any award or decision by the
American Arbitration Association shall be final, binding and non-appealable
except as to errors of law. The prevailing party in any such arbitration
shall be entitled to the payment by the losing party of its reasonable costs
and attorneys' fees. MEASURE OF DAMAGES. In any adverse action, the parties
shall restrict themselves to claims for compensatory damages and no claims
shall be made by any party or affiliate for lost profits, punitive or
multiple damages. COVENANT NOT TO ▇▇▇. The parties covenant that under no
conditions will any party or any affiliate file any action against the other
(except only requests for injunctive or other equitable relief) in any forum
other than before the American Arbitration Association, and the parties agree
that any such action, if filed, shall be dismissed upon application and shall
be referred for arbitration hereunder with costs and attorney's fees to the
prevailing party. INTENTION. It is the intention of the parties and their
affiliates that all disputes of any nature between them, whenever arising,
from whatever cause, based on whatever law, rule or regulation, whether
statutory or common law, and however characterized, be decided by arbitration
as provided herein and that no party or affiliate be required to litigate in
any other forum any disputes or other matters except for requests for
injunctive or equitable relief. This agreement shall be interpreted in
conformance with this stated intent of the parties and their affiliates.
15 GENERAL PROVISIONS.
15.1 Further Assurances. From time to time, each party will execute such
additional instruments and take such actions as may be reasonably required to
carry out the intent and purposes of this Agreement.
15.2 Waiver. Any failure on the part of either party hereto to comply with
any of its obligations, agreements, or conditions hereunder may be waived in
writing by the party to whom such compliance is owed.
15.3 Brokers. Each party agrees to indemnify and hold harmless the other
party against any fee, loss, or expense arising out of claims by brokers or
finders employed or alleged to have been employed by the indemnifying party.
15.4 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been given if delivered in person or sent
by prepaid first-class certified mail, return receipt requested, or
recognized commercial courier service, as follows: If to ALTREX, to: ▇▇▇▇▇
▇▇▇▇▇▇, South ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. If to ICALL, to ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, #▇▇-▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
15.5 Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of California.
15.6 Assignment. This Agreement shall inure to the benefit of, and be binding
upon, the parties hereto and their successors and assigns; provided, however,
that any assignment by either party of its rights under this Agreement
without the written consent of the other party shall be void.
15.7 Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. signatures sent
by facsimile transmission shall be deemed to be evidence of the original
execution thereof.
15.8 Effective Date. The effective date of this Agreement shall be November
22, 2000.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
effective date stated above.
ALTREX ICALL
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇, President ▇▇▇▇▇▇▇ ▇▇▇▇, President/CEO
List of Exhibits:
A. List of ICALL Shareholders, ICALL Common Shares owned, and ALTREX Common
Shares to be Exchanged
B. List of all Material Contracts of ICALL
C. List of all Material Liabilities of ICALL
D. List of Material Contracts of ALTREX
E. List of Material Suppliers and Customers of ALTREX
F. List of Insurance Held by ALTREX
G. List of Key Management and Employees of ALTREX
H. List of Intangible Property Owned by ALTREX
I. ICALL Shareholder Approval and Investor Qualification
J. List of Shareholding of Directors, Shareholders holding more than 10% of
ALTREX and Key Management Employees of ALTREX.