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AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION ("Agreement") dated the 30th day of
June, 1999, between Diabetex International Corp. a Nevada corporation
(hereinafter Buyer or "Diabetex"), and Advanced Metabolic Systems Inc., the
single stockholder (hereinafter "Stockholder") of Advanced Metabolic
Technologies, Inc. a Nevada corporation (hereinafter "AMTech").
Whereas the Stockholder was, or will be, issued an aggregate of eight hundred
and fifty thousand (850,000) shares of voting common stock, $.001 par value, of
AMTech, constituting all of the issued and outstanding capital stock of AMTech
(the "Shares") in return for the transfer to AMTech of the assets, except for
cash and accounts receivable, including the intellectual properties of
Stockholder, Advanced Metabolic Systems, Inc. a Delaware Corporation, and;
Whereas it was and is the intention of AMTech to acquire the assets,
intellectual property rights and technologies of Advanced Metabolic Systems,
Inc., except for cash and accounts receivable, in exchange for 850,000 Shares of
AMTech, thereby causing AMTech to become a wholly owned subsidiary of the
Stockholder, and;
Whereas the Buyer (Diabetex) desires to acquire from Stockholder all of the
Shares of AMTech in exchange for Nine and One-Half percent (9.5%) of all shares
of the Buyer's common stock after closing, with a $.002 par value per share,
and;
Whereas this Agreement is being entered into for the purpose of implementing the
foregoing desires, and sets forth the terms and conditions pursuant to which the
Stockholder is selling to the Buyer, and the Buyer is purchasing from the
Stockholder solely in exchange for voting common shares of the Buyer, all of the
issued and outstanding Shares of AMTech, now therefore;
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In consideration of the mutual agreement contained herein, the parties agree as
follows:
1. EXCHANGE OF SHARES WITH PREREQUISITE EVENTS.
1.1. Shares Being Exchanged. Subject to the terms and conditions of this
Agreement, at the Closing provided for in Paragraph 2.01 hereof (the
"Closing"), the Stockholder will sell, assign and deliver to the
Buyer (Diabetex) all equity ownership rights and outstanding shares
of AMTech, as set forth herein.
1.2. Consideration. Subject to the terms and conditions of this
Agreement, the Buyer will deliver to the Stockholder at the Closing
in full payment for the aforesaid sale, assignment and delivery of
the Shares, an aggregate of nine and one half percent (9.5%) of all
outstanding shares of the Buyer, Diabetex, International, Corp., par
value $.002 per share, as determined immediately after the Closing
of this agreement and including the shares issued in the Closing.
1.3. Holdings of AMTech. As of the date and time of the exchange of
shares by Stockholder and Buyer, AMTech will have acquired all of
the rights, titles and interests in and to the assets of Advanced
Metabolic Systems, including the intellectual property rights
thereof, except for the cash and accounts receivable thereof and
minor personal property in the offices of AMSys, and shall have a
written estopple certificate of non-revocation of license by Xxxxxx
X. Xxxx, M.D. and the Aoki Diabetes Research Institute for all
licensed technologies therefrom.
2. CLOSING
2.1. Time and Place. The Closing of the transactions contemplated by this
Agreement will be as soon as is possible, and on or before June 30,
1999, the end of the fiscal year for Stockholder, and shall take
place at the offices of the Buyer and Stockholder simultaneously,
and by facsimile documents.
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2.2. Deliveries by the Stockholder and AMTech. At the Closing, the
Stockholder and AMTech will deliver to the Buyer, Diabetex
International Corp., (unless previously delivered) the following:
2.2.1. Certificates representing all equity interests and Shares,
duly endorsed or accompanied by stock owners duly executed in
blank and otherwise in form acceptable for transfer on the
books of AMTech.
2.2.2. The stock books, stock ledgers, minute books and corporate
seal of AMTech (all other books and records of AMTech
being located in AMTech's corporate premises).
2.2.3. Certificates from appropriate authorities as to the good
standing of AMTech and a receipt for payment of all currently
due taxes of AMTech.
2.2.4. Any reasonably necessary and requested investment letters and
other such necessary documents referred to in Paragraph 8.01
hereof. Subsequent to the Closing, should the Stockholder
further distribute any Shares of Buyer received hereunder,
the Buyer will not reissue said Shares under new name or
title without first receiving written acknowledgment of, and
pledge of compliance with the terms of this Agreement by the
new stockholder or stockholders in a form reasonably
acceptable to Buyer.
2.2.5. All other previously undelivered items required to be
delivered by the Buyer to the Stockholder at or prior to
Closing.
2.3. Deliveries by the Buyer. At the Closing, the Buyer is delivering
(unless previously delivered) the following:
2.3.1. A certificate for nine and one half percent (9.5%) of the
outstanding shares of the Buyer as of and immediately after
the Closing, in accordance with the terms hereof, which
shares shall be adjusted, if at all, by an accounting which
shall take place within thirty (30) days of the Closing.
2.3.2. All other previously undelivered items required to be
delivered by the Buyer to the Stockholder at or prior to
Closing.
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3. RELATED TRANSACTIONS
There are no related transactions.
4. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The Stockholder hereby represents and warrants jointly and severally
(except that in the case of Paragraphs 4.1, 4.2 and 4.3 hereof contained therein
are made jointly and severally by the Stockholder and AMTech) to the Buyer as
follows:
4.1. Title to the Shares. The Stockholder holds, and is transferring to
the Buyer at the Closing, good, valid, and marketable title to eight
hundred and fifty thousand (850,000) Shares of AMTech, free and
clear of all liens, claims, options, charges and encumbrances
whatsoever.
4.2. Valid and Binding Agreements. As to the Stockholder, this Agreement
constitutes the valid and binding agreement of the Stockholder,
enforceable in accordance with its terms.
4.3. Organization of AMTech.
(a). AMTech is a corporation duly organized, validly existing and in
good standing under the laws of the State of Nevada and has the
corporate power and authority to carry on business as presently
conducted and necessary to enter into the terms of this agreement.
(b). The copies of the Articles of Incorporation, and all amendments
thereto, of AMTech, the official Minute of the Board of Directors,
and the Bylaws of AMTech, delivered to Buyer, as of the date of
closing, are complete and correct copies of the Articles of
Incorporation and Bylaws of AMTech as amended and in effect on the
date of closing, and no minutes have been included in such minute
books since such examination by the Buyer that have not also been
furnished to the Buyer.
(c). AMTech is not licensed or qualified to do business as a foreign
corporation in any jurisdiction and is not required to be so
licensed or qualified or, if required, the failure to be so licensed
or qualified will not have a material adverse effect on or result in
any material liability to AMTech.
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4.4. Capitalization of AMTech.
(a). The authorized capital stock of AMTech consists solely of one
million (1,000,000) shares of common stock, $.0l par value, of which
eight hundred and fifty thousand (850,000) shares are outstanding
and no shares are held as treasury shares. All issued shares of
AMTech are duly authorized, validly issued and outstanding, fully
paid, and non-assessable.
(b). Except for the 1,000,000 Common Shares, there are no shares of
capital stock or other securities of AMTech outstanding; and there
are no options, warrants or rights to purchase or acquire any
securities of AMTech as of the date of closing.
4.5. Subsidiaries and Affiliates. AMTech does not own any capital stock
or other securities of any corporation and has no direct or indirect
interest in any other entity or business other than the business
presently directly conducted by it.
4.6. No Violation of Agreements. Neither the execution nor delivery of
this Agreement, nor the consummation of the transactions
contemplated hereby violates or will violate, or conflicts with or
will conflict with, or constitutes a default under or will
constitute a default under any documents relating to AMTech.
4.7. Financial Statements. The Stockholder will deliver to the Buyer a
balance sheet ("Balance Sheet") of AMTech, showing that as and from
its inception to the date of closing, there exists no transactions
not related to the making of this agreement.
4.8. No Undisclosed Liabilities. Except as set forth on the Balance
Sheets, neither AMTech nor the Stockholder knows of any basis for
the assertion of liabilities against AMTech.
4.9. Tax Returns. AMTech has no tax returns due, or has duly filed all
tax reports and returns required to be filed by it and has duly paid
all taxes and other charges due or claimed to be due from it by
federal, state or local taxing authorities.
4.10. Title to Properties. Except as otherwise reflected on the Balance
Sheet, AMTech has good, valid and marketable title to all its
properties and assets, real, personal, and mixed, tangible and
intangible, including, without limitation, the properties and assets
reflected in the Balance Sheet.
4.11. Fixed Assets. Schedule 1 attached hereto lists, if any, the fixed
assets of AMTech. Furthermore, AMTech warrants all such property to
be in good
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condition or sound working order with no known defects. Furthermore,
neither AMTech nor the Stockholder has received any notification
that there is any violation of any building, zoning, or other law,
ordinance or regulation in respect of such property and to the best
of their knowledge, no such violation exists.
4.12. Leases. Schedule 2 attached hereto lists, if any, all personal
property leases to which AMTech is a party. AMTech asserts that it
has no real property leases, and that each said lease is valid,
binding and enforceable in accordance with its terms, and is in full
force and effect.
4.13. Patents, Trademarks, Trade Names, etc. Schedule 3 attached hereto
lists all patents, trademarks, trade names, etc. owned by, under
license to or used by AMTech and formerly used by Stockholder.
4.14. Litigation. AMTech knows of no actions, proceedings, or
investigations pending or, to the best knowledge and belief of
AMTech and the Stockholder, threatened by or against AMTech.
4.15. Insurance. Any and all policies of fire, liability, workmen's
compensation and product liability necessary for the prior
operations of AMTech are in effect with respect to AMTech and its
operations as of the date of closing. Schedule 4 attached hereto
lists all insurance policies currently in effect.
4.16. Bank Accounts. The AMTech bank account(s) are listed in Schedule 5
attached hereto including bank, bank branch, account number(s) and
current balance(s). It is understood that the cash on hand and
accounts receivable to Stockholder shall not be part of the transfer
of assets to AMTech.
4.17. Contracts and Commitments. Except as specifically identified in the
Balance Sheet, and the Schedules attached or referred to herein, and
the assets purchase agreement with Stockholder, AMTech has no
contracts, commitments, arrangements or understandings that are
material to its business, operations, financial condition or
prospects. The terms of the Assets Purchase Agreement are
incorporated into this agreement.
4.18. Customers and Suppliers. At the Closing, the Stockholder is
delivering to the Buyer a list of the names and addresses of any
customers and suppliers of AMTech.
4.19. Compliance with Applicable Law. AMTech has duly complied, in respect
of its operations, real property, equipment, all other property,
practices, and all other aspects of its business, with all
applicable laws
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(whether statutory or otherwise), rules, regulations, ordinances,
judgments, and decrees of all governmental authorities (federal,
state, local or other laws), including, but not limited to, the
Federal Occupational Safety and Health Act and all Laws relating to
environmental protection and conservation. Neither AMTech nor the
Stockholder has received any notification of any asserted present or
past failure to comply.
4.20. Disclosure. All facts material to all assets and financial condition
of AMTech are reflected in the Balance Sheet, or have been disclosed
herein, or have been disclosed to the Buyer in writing. No
representation or warranty by the Stockholder contained in this
Agreement and no statement contained in any certificate, schedule,
list or other writing furnished to the Buyer pursuant to the
provisions hereof, contains any untrue statement of a material fact
or omits to state a material fact necessary in order to make the
statements therein not misleading.
5. REPRESENTATIONS AND WARRANTIES OF THE BUYER The Buyer hereby represents and
warrants to the Stockholder as follows:
5.1. Title to the Shares. The Buyer will issue and transfer to the
Stockholder at the Closing, good, valid, and marketable title to
nine and one-half percent (9.5%) of the outstanding Shares of Common
Stock following closing as specified in Paragraph 1.2 hereof, free
and clear of all liens, claims, options, charges and encumbrances
whatsoever.
5.2. Valid and Binding Agreements. As to the Buyer, this Agreement
constitutes a valid and binding agreement of the Buyer, enforceable
in accordance with its terms.
5.3. Organization of Buyer.
5.4. (a). The Buyer is a corporation duly organized, validly existing and
in good standing under the laws of its State incorporation and has
the corporate power and authority to carry on business as presently
conducted.
(b). The copies of the Articles of Incorporation, and all amendments
thereto, as certified by the Secretary of State and of the Bylaws,
as amended to date, of the Buyer, as certified by its Secretary,
which have heretofore been delivered to the Stockholder, are
complete and correct copies of the Articles of Incorporation and
Bylaws of the Buyer as amended and in effect on the date of closing.
All material Minutes of the Buyer are contained in minute books of
the Buyer, heretofore furnished to the Stockholder for examination,
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and no minutes have been included in such minute books since such
examination by the Stockholder that have not also been furnished to
the Stockholder.
(c). The Buyer is not licensed or qualified to do business as a
foreign corporation in any jurisdiction and is not required to be so
licensed or qualified or, if required, the failure to be so licensed
or qualified will not have a material adverse effect on or result in
any material liability to the Buyer.
5.5. Capitalization of the Buyer.
(a). The authorized capital stock of the Buyer consists solely of
approximately twelve million (12,000,000) shares of common stock,
$.02 par value, issued and outstanding. All issued shares of the
Buyer are duly authorized, validly issued and outstanding, fully
paid, and non-assessable.
(b). Except for the shares to be issued to the Stockholder, there
are no shares of capital stock or other securities of Buyer
outstanding; there are no options, warrants or rights to purchase or
acquire any securities of Buyer.
5.6. Subsidiaries and Affiliates. Except as disclosed in writing to
Stockholder, Buyer does not own any capital stock or other
securities of any corporation and has no direct or indirect
interest, in any business other than the business presently directly
conducted by it.
5.7. No Violation of Agreements. Neither the execution nor delivery of
the Agreement, nor the consummation of the transactions contemplated
hereby violates or will violate, or conflicts with or will conflict
with, or constitutes a default under or will constitute a default
under any documents relating to Buyer.
5.8. Financial Statements. The Buyer will deliver to the Stockholder its
last issued balance sheet.
5.9. No Undisclosed Liabilities. Except as set forth on the Balance
Sheet, Buyer knows of any basis for the assertion of liabilities or
against Buyer not reflected on the Balance Sheets.
5.10. Absence of Certain Changes. Since the date of the most recent
Balance Sheet, there have been no material adverse changes in the
financial condition of Buyer as of the date of closing.
5.11. Tax Returns. The Buyer has no tax returns due, or has duly filed all
tax reports and returns required to be filed by it and has duly paid
all taxes and
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other charges due or claimed to be due from it by federal, state or
local taxing authorities.
5.12. Title to Properties. Except as otherwise reflected on the
Balance Sheet, Buyer has good, valid and marketable title to
all its properties and assets, real, personal, and mixed,
tangible and intangible, including, without limitation, the
properties and assets reflected in the Balance Sheet.
5.13. Litigation. Buyer knows of no actions, proceedings, or
investigations pending or, to the best knowledge and belief of
Buyer, threatened by or against Buyer.
5.14. Contracts and Commitments. Except as specifically identified
in the Balance Sheet, Buyer has no contracts, commitments,
arrangements or understandings that are material to its
business, operations, financial condition or prospects.
5.15. Compliance with Applicable Law. Buyer has duly complied, in
respect of its operations, real property, machinery and
equipment, all other property, practices, and all other
aspects of its business, with all applicable laws (whether
statutory or otherwise), rules, regulations, ordinances,
judgments, and decrees of all governmental authorities
(federal, state, local or other laws), including, but not
limited to, the Federal Occupational Safety and Health Act and
all Laws relating to environmental protection and
conservation. Buyer has not received any notification of any
asserted present or past failure to comply with any such law.
5.16. Disclosure. All facts material to all assets, business,
operations, and financial condition of Buyer are reflected in
the Balance Sheet, or have been disclosed herein, or have been
disclosed to the Stockholder by Buyer in writing. No
representation or warranty by the Buyer contained in this
Agreement and no statement contained in any certificate,
schedule, list or other writing furnished to the Buyer
pursuant to the provisions hereof, contains any untrue
statement of a material fact or omits to state a material fact
necessary in order to make the statements therein not
misleading.
5.17. No Preemptive Rights. The stockholders of the Buyer are not by
virtue of their ownership of the Buyer's common shares
entitled to any preemptive rights or subscription privileges
with respect to the Buyer's Shares to be issued hereunder.
5.18. Delivery of Reports. The Buyer, being a "non-reporting"
company, is not required to publish an Annual Report and, as a
result, has no such report
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to deliver to the Stockholder. Buyer will become a reporting company
as and for the purpose of retaining its trading status on the OTC
Bulletin Board.
5.19. Compliance with Rule 144. Upon receipt from time to time of written
notice from the Stockholder that the Stockholder presently intends
to make routine sales of the Buyer's Shares under Rule 144
promulgated under the Securities Act of 1933, as amended (the
"Act"), the Buyer will use its best efforts to make available the
information necessary under Rule 144(c) to enable such sales to be
made. Such obligation will continue until the earlier of the
completion of all sales then intended to be made by the Stockholder
or the end of the three-month period commencing on the date of such
notice, provided that a further notice indicating a continued
present intention to make routine sales of the Buyer's Shares under
Rule 144 shall be deemed a new notice for purposes of this
Paragraph.
6. SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION; SET-OFF
6.1. Survival of Representations. All representations, warranties, and
agreements made by any party in this Agreement or pursuant hereto
shall survive the Closing hereunder.
6.2. Statements as Representations. All statements contained in any
certificate, schedule, list, document, or other writing delivered
pursuant hereto or in connection with the transactions contemplated
hereby, shall be deemed representations and warranties within the
meaning of Paragraph 6.1 hereof
7. PROVISIONS REGARDING BUYER'S SHARES
7.1. Representations by the Stockholder. The Stockholder represents and
warrants to the Buyer that it is his present intention to acquire
the Buyer's Shares for investment and not with a view to the
distribution or resale thereof, except in accordance with law or a
winding up and dissolution of Stockholder, and the parties receiving
such shares of Buyer shall confirm such intentions to the Buyer by
letter simultaneously with the execution hereof, said letter
attached hereto as Exhibit 6.
7.2. Agreements by the Stockholder. The Stockholder agrees that he will
not offer, sell, transfer, assign, mortgage, pledge or otherwise
dispose of or encumber any of the Buyer's Shares delivered to him
pursuant to this
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Agreement unless (i) in the opinion of counsel to the Buyer or in
the opinion of the Division of Corporate Finance (the "Division") of
the Securities and Exchange Commission (the "Commission") expressed
in a "no-action" letter (which letter and the request therefor shall
be in form and substance satisfactory to counsel for the Buyer),
registration of such shares under the Act, and the rules and
regulations of the Commission thereunder, as then in effect, is not
required in connection with such transaction; (ii) sale of the
Buyer's Shares is permissible under Rule 144 of the Commission under
the Act, in which event the Stockholder shall furnish the Buyer with
an opinion of counsel (which counsel shall be The Xxxxxxxxxxx Law
Firm or such other counsel reasonably satisfactory to counsel for
the Buyer and which opinion shall be in form and substance
reasonably satisfactory to the Buyer) to the effect that the sale of
the Buyer's Shares proposed to be sold is permissible under Rule
144, provided that the Buyer agrees to make such representations as
may be reasonably requested by such counsel and that the Buyer can
then accurately make concerning the Buyer's qualifications under
Rule 144(c); or (iii) a registration statement under the Act is then
in effect with respect to such shares and the purchaser or
transferee has been furnished with a prospectus meeting the
requirements of Section 10 of the Act.
7.3. Legends and Certificates. The Stockholder agrees that the Buyer may
endorse on any certificate for the Buyer's Shares to be delivered to
or on behalf of the Stockholder pursuant to this Agreement an
appropriate legend referring to the provisions hereof, and that the
Buyer may instruct its transfer agents not to transfer any such
shares unless advised by the Buyer of the compliance with such
provisions.
7.4. Restrictions. The Stockholder agrees that until distribution and
further as a part of any disbursement or distribution of Buyer's
Shares received hereunder, Stockholder agrees, and shall obtain a
written agreement from any beneficiary of said disbursement or
distribution that, for a contiguous period of two (2) years
following the closing, beneficiary shall not short sell any of the
Shares received, shall not loan shares to any other person or entity
to effectuate a short sale, and shall not, without the prior written
permission of Buyer, deposit or hold the shares of Buyer in street
name where they might be subject to loans of shares for short
selling. The Stockholder further acknowledges that the shares being
acquired from Buyer are not registered and thus are subject to rule
144 or other securities rules, regulations. Refusal
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of Stockholder or beneficiary to execute such an agreement shall be
sufficient grounds for denial of transfer of title to the Shares by
Buyer.
8. MISCELLANEOUS
8.1. Tax Status: Buyer and Stockholder acknowledge that the exchange
hereof does not qualify as a tax-free exchange as to Stockholder,
and that the value of the stock of Buyer must be discounted as it is
not free trading, is not currently heavily traded in volume, is
subject to the terms of this agreement, has no operating history in
the business, and as such, is agreed to be reasonably valued at
$6.00 per share, as of the date of this agreement and closing.
8.2. Purchase of Services. Buyer hereby agrees, for a period of no less
than one year after the date of closing, to offer to acquire the
services of Stockholder in consulting for reimbursement and
acquiring reimbursement for the operations of its clinics. For such
services Buyer shall pay to Stockholder Seventy Five Thousand
Dollars, ($75,000) for consulting fees and payment of $25,000 will
be made at Closing toward such fees, with quarterly payments of
$16,700 per quarter paid on the first day of such quarter for the
duration thereof. Nothing contained herein shall prohibit Buyer from
offering to employ Xx. Xxxxxxx prior to the end of the one year
period, and failure to make payments thereof shall be a material
breach of this agreement and entitle Stockholder to return shares
equal to those received, and rescind this agreement with election
thereof in writing, and ten days to cure such nonpayment.
8.3. NASD status: Buyer agrees that within the time allowed by the NASD
to remain a publicly traded company it will submit such forms and
information with the Securities and Exchange Commission and NASD so
as to remain, at a minimum, a company qualified to be traded on the
OTC Bulletin Board, and to take all reasonable steps to undertake to
become more than just a bulletin board trading company thereon.
Buyer further agrees to continue to file all such documents as are
reasonably necessary to continue such status for no less than two
years from the date of closing.
8.4. Shareholder Approval: Buyer acknowledges that Stockholder has
verbally obtained the approval of the shareholders required under
law to ratify the agreement made hereby, and that formal agreement
shall be obtained from a majority of common shareholders, and a
two-thirds majority of all preferred
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shareholders who have been further granted additional provisions as
common and preferred shareholders in connection with such votes, as
contained in the board minutes of the board actions which approved
the terms of this agreement.
8.5. Payment of Research Services: In connection with the sale of assets,
the Aoki Diabetes Research Institute has agreed to receive Fifty
Thousand Dollars in lieu of the amount unpaid for research services
to Stockholder. Such payment shall be made no later than July 10,
1999.
8.6. Prior Grants: Connecticut Innovations, and Stockholder agreed to
certain to satisfy the terms of a prior grant, a copy of which is
provided at Closing.
8.7. Prior Data: Buyer acknowledges that the intellectual properties of
AMTech include data from certain trials at the University of
Wisconsin, which have not been fully paid for, and that an amount of
approximately Twenty Four Thousand Dollars is still owed to receive
that data.
8.8. Payment for Costs: At the Closing, Buyer will pay Stockholder
$150,000 for the costs of Closing (for which there shall be no
accounting to Buyer) and Buyer agrees to make additional payments as
agreed between the parties but in no event shall all payments
pursuant to this Section 8.8 exceed $15,000 per month. Failure to
make payments thereof shall be a material breach of this agreement
and entitle Stockholder to return shares equal to those received,
and rescind this agreement with election thereof in writing, and ten
days to cure such non-payment.
8.9. Further Assurances. From time to time, at the Buyer's request and
without further consideration, the Stockholder will execute and
deliver to the Buyer such documents and take such action as the
Buyer may reasonably request in order to consummate more effectively
the transactions contemplated hereby and to vest in the Buyer good,
valid and marketable title to the Shares.
8.10. Parties in Interest. Except as otherwise expressly provided herein,
all the terms and provisions of this agreement shall be binding
upon, shall inure to the benefit of, and shall be enforceable by the
respective heirs, beneficiaries, personal and legal representatives,
successors, and assigns of the parties hereto.
8.11. Entire Agreement. This Agreement, including the exhibits, schedules,
lists and other documents and writings referred to herein or
delivered pursuant hereto, which form a part hereof, contain the
entire understanding of the parties with respect to this subject
matter. No representations of
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projections, business success, or prospective activities or success
of any kind are made by the parties hereto. The provisions for
performance by Buyer as set forth herein shall be material in all
respects.
8.12. Headings, etc. The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretations of this Agreement.
8.13. Notice. All notice, request, demands and other communications
hereunder ("Notices") shall be in writing and shall be deemed to
have been duly given if delivered or mailed (registered or certified
mail, postage prepaid, return receipt requested) as follows:
If to Stockholder: Xxxxxxx Xxxxxxx,
8776 Killdee, Xxxxxxxxxx, XX 00000
And copies to: Xxxxx XxXxxxx, Attorney at Law,
The Diepenbrock Firm, Sacramento, CA.
Xxxxxxx X. Xxxxxxxx,
000 Xxxxxx Xxxxx Xx.,
Xxx Xxxxxx, XX, 00000
If to Buyer: Xxxxxx X. Xxxxxxxxx,
0000 Xx. Xxxx Xxxxxx, Xxxx Xxxx Xxxx, XX 00000.
And copies to: Xxxxx X. Xxxx,
000 Xxxx Xxxxxx Xx, Xxxxxxx Xxxx, XX 00000
Xxxxxx Xxxxx, Esq. 0000 Xx. Xxxxx Xxxx Xxxxxx,
Xxxxxxx, XX 00000
or such other address(es) as any party may have furnished to the
others in writing in accordance herewith, except that Notices of
change of address(es) shall only be effective upon receipt. All
Notices shall be deemed received on the date of delivery or, if
mailed, on the date appearing on the return receipt therefore. All
notices shall be followed by courtesy call to determine if receipt
was actually made.
8.14. Counterparts. This agreement may be executed simultaneously in
several counterparts, each of which shall be deemed an original but
all of which together shall constitute one and the same instrument.
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8.15. Arbitration of Disputes. The parties hereto agree that in the event
of a dispute that cannot be resolved by the parties, it shall be
submitted to binding arbitration for resolution under the Commercial
Arbitration rules of the American Arbitration Associations, with
binding arbitration to take place in Chicago, Illinois, or at such
other agreed place. The arbitration decision may be entered as a
judgment in any court of competent jurisdiction. The prevailing
party shall be awarded reasonable attorneys fees including costs
prior to arbitration and arbitration fees.
8.16 This Agreement shall be governed by and construed pursuant to the
laws of the State of Nevada.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the
Stockholder and by a duly authorized officer of the Buyer on the date first
written.
For the Buyer
By
------------------------------------
Title:
Advanced Metabolic Systems, Inc.
Name /s/ Xxxxxxx X. Xxxxxxx, CEO
----------------------------------
By XXXXXXX X. XXXXXXX, CEO
------------------------------------
Title
Acquisition Agreement and Plan of Reorganization. Page 15
16
UNANIMOUS CONSENT IN LIEU OF
SPECIAL MEETING OF THE BOARD OF DIRECTORS OF
DIABETEX INTERNATIONAL CORPORATION
The Undersigned, being all of the Directors of Diabetex International
Corporation, a Nevada corporation ("the Company"), hereby takes the following
action:
WHEREAS the Company has acquired all of the shares of Advanced Metabolic
Technologies, Inc. from Advance Metabolic Systems, Inc. pursuant to an Agreement
and Plan of Reorganization; and
WHEREAS, the Agreement calls for the issuance of shares by the Company.
THEREFORE BE IT RESOLVED, that the Company issue 850,000 shares of
restricted common stock to Advanced Metabolic Systems, Inc.
Effective the 30th day of July, 1999.
/s/ Xxxxxx Xxxxxxxxx
-----------------------
Xxxxxx Xxxxxxxxx
17
MINUTES OF ORGANIZATIONAL MEETING
OF THE
BOARD OF DIRECTORS,
Advanced Metabolic Technologies Inc.
A special meeting of the Board of Directors of Advanced Metabolic
Technologies Inc, a Nevada Corporation was held on June 30, 1999.
Present were: Xxxxxx X. Xxxx, M.D. and Xxxxxxx X. Xxxxxxx
Absent were: None.
The initial Director called the meeting to order for the initial meeting
of the Board of Directors, having been appointed by the Initial Board of
Directors Member, and acted as follows:
The Chairman called the meeting and announced that the meeting was held
pursuant to law as the Organizational Meeting of the Board of Directors.
1. It was then moved, seconded and resolved that the By-Laws being submitted to
the Corporation be adopted by the Board as the By-Laws of the Corporation, which
By-Laws were consistent with the Articles of Incorporation. It was further
moved, seconded and resolved that:
(i) That there shall be no less than one (1), nor more than seven
(7) members of the Board of Directors serving during the year.
(ii) That each Director shall have access to all financial records
of the company.
The issue of the Board of Directors was discussed, and Xxxxxxx X. Xxxxxxx,
initial member of the Board of Directors, appointed Xxxxxx X. Xxxx, M.D. as a
member of the board. Xx. Xxxxxxx then resigned his Board posting having acted
only to incorporate the Company, and appoint Xx. Xxxx to the Board.
The issue of officers was addressed, and Xx. Xxxx appointed himself as the
sole officer and director of the Company, pending the exchange of the shares of
AMTech for shares of Diabetex as contemplated and agreed between the companies.
The subject of the pending exchange agreement with Advanced Metabolic
Systems, Inc, was discussed, and Xx. Xxxxxxx reported that AMSys wanted to have
the Company execute the Asset Purchase and Exchange of Shares agreement being
circulated on or before June 30, 1999, in order to facilitate the reorganization
of Diabetex, AMSys, and AMTech.
18
It was then moved, seconded and resolved that the President of the
Corporation, execute the Asset Sale and Exchange Agreement, and present to AMSys
the certificates for 850,000 shares of AMTech in exchange for almost all assets
of AMSys as set forth in the agreement.
There being no further business to come before the board, the meeting was
duly adjourned, and a tentative date selected for the next meeting.
June 30, 1999
/s/ Xxxxxx X. Xxxx, M.D.
----------------------------------
Xxxxxx X. Xxxx, M.D. Sole Director
Agreed as to Appointment and Resignation:
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxx
19
XXXX OF SALE June 30, 1999
ALL ASSETS EXCEPT ATTACHED EXHIBIT
In accordance with the Agreement for Exchange of Stock for Assets executed by
Advance Metabolic Systems, Inc., and Advanced Metabolic Technologies Inc.,
Advanced Metabolic Systems, Inc., a Delaware Corporation, hereby sells,
transfers and assigns all rights, titles and interest in and to all assets of
Advanced Metabolic Systems Inc., save and except for its bank account balance,
the accounts receivable prior to July 1, 1999, and the list of assets set forth
in the attached Exhibit "A" exceptions to Assets Transferred and sold.
This xxxx of sale is executed this June 30, 1999 at Sacramento, California by
the Undersigned, Chief Executive Officer of Advanced Metabolic Systems Inc, with
the authority of the Board of Directors.
/s/ Xxxxxxx X. Xxxxxxx, CEO
-----------------------------------------
Xxxxxxx X. Xxxxxxx, CEO
Advanced Metabolic Systems Inc.
