1
ACQUISITION & PLAN OF REORGANIZATION
THIS ACQUISITION AGREEMENT AND PLAN OF REORGANIZATION (hereinafter the
Agreement) is made and entered into as of the ___ day of _____, 2000 by and
between FREAH BREATH INDUSTRIES, INC., a Nevada corporation (hereinafter FBID)
and ADVANCED INTERACTIVE, INC., a Nevada corporation (hereinafter AII).
RECITALS
WHEREAS, FBID is a fully reporting 12G corporation, publicly trading
(symbol FBID) on the OTC Bulletin Board.
WHEREAS, Advanced Interactive, Inc., is a privately held Nevada corporation
engaged in developing a broadband technology business.
WHEREAS, FBID desires to acquire the assets subject to the liabilities and
100% of the capital stock of Advanced Interactive, Inc., a Nevada corporation in
exchange for 20,800,000 shares of authorized but unissued FBID stock and the
acknowledgement of options to purchase 3,500,000 shares of stock at $.055 per
share standing on the books of AII.
WHEREAS, the parties hereto desire to reorganize the management and
operations of FBID to include AII and its operations.
NOW, THEREFORE, in consideration of the premises and mutual representation,
warranties, and covenants herein contained, the parties agree as follows:
ARTICLE 1
ACQUISITION AND EXCHANGE OF SHARES
SECTION 1.1 Acquisition. The parties hereto agree that FBID shall acquire
from AII 100% of the equity interest and 100% of the common stock of AII and AII
shall assign and transfer to FBID all rights, titles, interest in the assets
designated in Exhibit 1.1 attached hereto and, made a part hereof. FBID further
agrees to assume and become obligated to these specific liabilities, debts,
obligations and encumbrances of AII that are specifically set forth and
described in Exhibit 1.2 attached hereto and by reference made a part hereof. In
exchange for the above FBID agrees to issue 20,800,000 shares of authorized but
unissued common stock, par value of $.001, said shares are to be issued to the
shareholders of AII pursuant to the terms and conditions set forth herein. In
addition to the shares, FBID will honor options to purchase 3,500,000 shares of
stock at $.055 per share. The parties hereto agree further that the business and
management of FBID shall be reorganized.
SECTION 1.2 Issuance of Shares
(a) Upon the Closing of this Agreement, FBID shall cause to be issued and
delivered to AII, stock certificates representing 20,800,000 par value $0.001
per share.
(b) The shares of FBID Common Stock to be issued hereunder shall be
authorized but previously unissued shares of FBID Common Stock and shall be
issued directly to and in the name of the shareholders of AII.
(c) All shares of FBID Common Stock to be issued hereunder are deemed
"restricted securities" as defined by Rule 144 of the Securities Act of 1933, as
amended ("the 1933 Act"), and AII shall represent that they are acquiring said
shares for investment purposes only and without the intent to make a further
distribution of the shares until such time as appropriate regulatory approval
for any such distribution has been properly obtained. All shares of FBID Common
Stock to be issued under the terms of this Agreement shall be issued pursuant to
an exemption from the registration requirements of the 1933 Act, under Section
4(2) of the 1933 Act and the rules and regulations promulgated thereunder.
(d) AII agrees that in the event it decides to distribute to its
shareholders the FBID shares to be acquired hereby, either in part or in whole,
AII will make all necessary and requisite filing with the appropriate state and
federal agencies to register such distribution under the applicable securities
laws.
SECTION 1.3 Closing. The closing of this Agreement and the transactions
contemplated hereby (the "Closing") shall take place on the __ day of _____,
2000 (the "Closing Date"), at a time and place to be mutually agreed upon by the
parties hereto, and shall be subject to the provisions of ARTICLE X of this
Agreement. At the Closing:
(a) AII shall cause to be delivered to FBID fully executed instruments of
conveyance which when executed and delivered to FBID, shall immediately convey
and transfer to FBID, all of AII interests in the assets set forth in Exhibit
1.1;
(b) FBID shall take all necessary and appropriate actions and execute all
necessary and appropriate documents to assume completely and become obligated to
all liabilities, debts, obligations and/or other encumbrances of AII otherwise
set forth in Exhibit 1.2 annexed hereto;
(c) FBID shall deliver to AII, certificates representing an aggregate of
20,800,000 shares of FBID Common Stock and which certificates shall bear a
standard restrictive legend in the form customarily used with restricted
securities;
(d) FBID shall deliver an Officer's Certificate as described in Sections
9.1 and 9.2 hereof, dated the Closing Date, that all representations,
warranties, covenants and conditions set forth herein by FBID are true and
correct as of, or have been fully performed and complied with by the Closing
Date; and
(e) AII shall deliver an Officer's Certificate as described in Sections 8.1
and 8.2 hereof, dated the Closing Date, that all representations, warranties,
covenants and conditions set forth herein by AII are true and correct as of, or
have been fully performed and complied with by, the Closing Date;
SECTION 1.4 AII Special Meeting of Shareholders. In anticipation of this
Agreement, AII, shall hold Special Meetings of Shareholders in lieu of Annual
Meeting of Shareholders on ________, 2000 in order to transact certain business
related to the ratification of this Agreement, including, but limited to (I)
electing a new Board of Directors consisting of __________, ________________,
and _______________, and (II) ratification of this Agreement and the
transactions contemplated hereby, AND (iii) Amendment to Articles of
Incorporation of FBID that changes the corporate name to Advanced Interactive,
Inc.
SECTION 1.5 Consummation of Transaction. If, at the Closing, no condition exists
which would permit any of the parties to terminate this Agreement, or a
condition then exists and the party entitled to terminate because of that
condition elects not to do so, then the transactions herein contemplated shall
be consummated upon such date, and then and thereupon FBID will file the
necessary documents that may be required by the State of Nevada.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF FBID
FBID hereby represents, warrants and agrees that:
SECTION 2.1 Organization of FBID. FBID is a Nevada corporation duly organized,
validly existing and in good standing under the laws of the State of Nevada, is
duly qualified and in good standing as a foreign corporation in every
jurisdiction in which such qualification is necessary, and has the corporate
power and authority to own its properties and assets and to transact the
business in which it is engaged. There no other corporations or other entities
with respect to which (i) FBID owns all of the outstanding stock or other
interest, or (ii) FBID may be deemed to be in control because of factors or
relationships other that the quantity of stock or other interest owned. FBID has
all requisite corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. This Agreement
is the legal, valid and binding obligation of FBID, enforceable against FBID in
accordance with its respective terms except to the extent that such enforcement
may be limited by applicable bankruptcy, insolvency and other similar laws
affecting creditors' rights generally.
SECTION 2.2 Capitalization of FBID. The authorized capital stock of FBID
currently consists of 50,000,000 shares of Common Stock, par value $.001 per
share, of which 11,858,900 shares are presently issued and outstanding. All
issued and outstanding shares of common stock of FBID have been duly authorized
and validly issued and are fully paid and non-assessable. There are no options,
warrants, rights, calls, commitments or agreements of any character obligating
FBID to issue any shares of its capital stock or any security representing the
right to purchase or otherwise receive any such stock. Shares of FBID Common
Stock to be issued pursuant to this Agreement, when so issued, will be duly
authorized, validly issued, fully paid and non-assessable.
SECTION 2.3 Charter Documents. Complete and correct copies of the Articles of
Incorporation and By-Laws of FBID and all amendments thereto, have been or will
be delivered to AII prior to the Closing, and certified copies of the FBID
Articles of Incorporation and By-Laws are annexed hereto as Exhibit 2.3 and by
this reference made a part hereof.
SECTION 2.4 Financial Statements. FBID's certified financial statements for the
period ending December 31, 1998, December 31, 1999 and September 30, 2000
unaudited, a copy of which is annexed hereto as Exhibit 2.4 and by this
reference made a part hereof, are true and complete in all material respects,
having been prepared in accordance with generally accepted accounting principles
applied on a consistent basis for the periods covered by such statements, and
fairly present, in accordance with generally accepted accounting principles, the
financial condition of FBID, and results of its operations for the periods
covered thereby. Except as otherwise disclosed to AII, in writing and as set
forth herein, there has been no material adverse change in the business
operations, assets, properties, prospects or condition (financial or otherwise)
of FBID taken as a whole from that reflected in the financial statements
referred to in this Section 2.4, of which AII, based its decision to enter into
this Agreement.
SECTION 2.5 Absence of Certain Changes or Events. Since the date of the FBID
financial report for the period ending September 30, 2000, and except as
disclosed otherwise herein, FBID has not (i) issued or sold any promissory note,
stock, bond, option or other corporate security of which it was an issuer or
other obligor, (ii) discharged or satisfied any lien or encumbrance or paid any
obligation or liability, absolute or contingent, direct or indirect, (iii)
incurred or suffered to be incurred any liability or obligation whatsoever, (iv)
caused or permitted any lien, encumbrance or security interest to be created or
arise on or in any of its properties or assets, (v) declared or made any
dividend, payment or distribution to stock holders or purchased or redeemed or
agreed to purchase or redeem any shares of its capital stock, (vi) reclassified
its shares of capital stock, or (vii) entered into any agreement or transaction
except in connection with the execution and performance of this Agreement.
SECTION 2.6 Assets and Liabilities. FBID has good and marketable title to all of
its assets and property, free and clear of any and all liens, claims and
encumbrances, except as may be otherwise explicitly set forth herein. As of date
hereon, FBID does not have any debts, liabilities or obligations of any nature,
whether accrued, absolute, contingent, or otherwise, whether due or to become
due, that are not fully reflected in the FBID Balance Sheet dated September 30,
2000 except as may be explicitly set forth herein.
SECTION 2.7. Tax Returns and Payments. All of FBID's tax returns (federal,
state, city, county or foreign) which are required by law to be filed on or
before the date of this Agreement, have been duly filed or extended with the
appropriate governmental authority. FBID has paid all taxes to be due on said
returns, any assessments made against FBID and all other taxes, fees and similar
charges imposed on FBID by any governmental authority (other than those, the
amount or validity of which is being contested in good faith by appropriate
proceedings). No tax liens have been filed and no claims are being assessed with
respect to any such taxes, fees or other similar charges.
SECTION 2.8 Required Authorizations. There have been or will be timely filed,
given, obtained or taken, all applications, notices, consents, approvals,
orders, registrations, qualifications waivers or other actions of any kind
required by virtue of execution and delivery of this Agreement by FBID or the
consummation by it of the transactions contemplated hereby.
SECTION 2.9 Compliance with Law and Government Regulations. FBID is in
compliance with and is not in violation of, applicable federal, state, local or
foreign statutes, laws and regulations (including without limitation, any
applicable building, zoning or other law, ordinance or regulation) affecting its
properties or the operation of its business.
SECTION 2.10 Litigation. There is no litigation, arbitration, proceeding or
investigation pending or threatened to which FBID is a party or which may result
in any material change in the business or condition, financial or otherwise, of
FBID or in any of its properties or assets, or which might result in any
liability on the part of FBID or which questions the validity of this Agreement
or of any action taken or to be taken pursuant to or in connection with the
provisions of this Agreement, and to the best knowledge of FBID, there is no
basis for any such litigation, arbitration, proceeding or investigation.
SECTION 2.11 Investigation of Financial Condition. In addition to making
available for review by AII, all financial statements, books and records of
FBID, and without in any manner reducing or otherwise mitigating the
representations contained herein, AII, shall have the opportunity to meet with
FBID's accountants and attorneys to discuss the financial condition of FBID and
to make whatever further independent investigation deemed necessary and prudent.
SECTION 2.12 Governmental Consent. No consent, approval, authorization or order
of, or registration, qualification, designation, declaration or filing with, any
governmental authority on the part of FBID is required in connection with the
execution and delivery of this Agreement or the carrying out of any transactions
contemplated hereby.
SECTION 2.13 Authority. FBID and its Board of Directors shall have approved this
Agreement and the transactions contemplated hereby prior to the Closing and duly
authorized the execution and delivery hereof. FBID has full power, authority and
legal right to enter into this Agreement and to consummate the transactions
contemplated hereby, and all corporate action necessary to authorize the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby has been duly and validly taken.
SECTION 2.14 Full Disclosure. None of the representations and warranties made by
FBID herein, or in any exhibit, certificate or memorandum furnished or to be
furnished by FBID on its behalf pursuant hereto, contains or will contain any
untrue statement of material fact, or omits any material fact, the omission of
which would be misleading.
ARTICLE III
COVENANTS OF FBID
SECTION 3.1 Conduct Prior to the Closing. Between the date hereof and the
Closing:
(a) FBID will not enter into any agreement, contract or commitment, whether
written or oral, or engage in any transaction, without the knowledge and prior
written consent of AII;
(b) FBID will not declare any dividends or distributions with respect to
its capital stock or amend its Articles of Incorporation or By-Laws, without the
prior written consent of AII;
(c) FBID will not authorize, issue, sell, purchase or redeem any shares of
its capital stock without the prior written consent of AII:
(d) FBID will comply with all requirements which federal or state law may
impose on it with respect to this Agreement and the transactions contemplated
hereby, and will promptly cooperate with and furnish information to AII, in
connection with any such requirements imposed upon the parties hereto in
connection therewith;
(e) FBID will not incur any indebtedness for money borrowed, or issue or
sell any debt securities, incur or suffer to be incurred any liability or
obligation of any nature whatsoever, or cause or permit any lien, encumbrance or
security interest to be created or arise on or in any of its properties or
assets, acquire or dispose of fixed assets, change employment terms, enter into
any material or long-term contract, guarantee obligations of any third party,
settle or discharge any balance sheet receivable for less than its stated amount
or enter into any other transaction other than in the regular course of
business, except to comply with the terms of this Agreement, without the consent
of AII;
(f) FBID shall grant to AII and its counsel, accountants and other
representatives, full access during normal business hours during the period
prior to the Closing to all its respective properties, books, contracts,
commitments and records and, during such period, furnish promptly to AII such
representatives all information relating to FBID as AII, may reasonably request;
and
(g) Except for the transactions contemplated by this Agreement, FBID will
conduct its business in the normal course, and shall not sell, pledge or assign
its assets without the prior written consent of AII.
SECTION 3.2 Affirmative Covenants. Prior to Closing, FBID will do the following:
(a) Use its best efforts to accomplish all actions necessary to consummate
this Agreement, including satisfaction of all the conditions contained in this
Agreement;
(b) Call for and properly hold a meeting of its Board of Directors for the
purpose of conducting the business and ratifying those proposals as set forth in
Section 1.4 above.
(c) Promptly notify AII in writing of any material adverse change in the
financial condition, business, operations or key personnel of FBID, any breach
of its representations or warranties contained herein, and any material
contract, agreement, license or other agreement which, if in effect on the date
of this Agreement, should have been included in this Agreement or in an exhibit
annexed hereto and made a part hereof; and
(d) Reserve, and promptly after the Closing, issue and deliver to AII or
its designees the number of shares of FBID Common Stock required hereunder; and
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF AII
AII hereby represents, warrants and agrees that:
SECTION 4.1 Organization of AII. AII is a Nevada corporation.
SECTION 4.2 Charter Documents. Complete and correct copies of the Articles of
Incorporation and By-Laws of AII and its affiliates and all amendments thereto,
have been or will be delivered to FBID prior to the Closing.
SECTION 4.3 Financial Statements/Assets and Liabilities. AII has good and
marketable title to all of the assets to be transferred and delivered to FBID
hereunder, free and clear of any and all liens, claims and encumbrances, except
as may be otherwise set forth herein and in its financial statements and further
set forth in Exhibit 4.3 annexed hereto and by this reference made a part
hereof.
SECTION 4.4 Tax Returns and Payments. All of AII tax returns (federal, state,
city, county or foreign) which are required by law to be filed on or before the
date of this Agreement, have been duly filed or extended with the appropriate
governmental authority. AII has paid all taxes to be due on said returns, any
assessments made against AII, and all other taxes, fees and similar charges
imposed on AII by any governmental authority (other than those, the AII, amount
or validity of which is being contested in good faith by appropriate
proceedings). No tax liens have been filed and no claims are being assessed with
respect to any such taxes, fees or other similar charges.
SECTION 4.5 Required Authorizations. There have been or will be timely filed,
given, obtained or taken, all applications, notices, consents, approvals,
orders, registrations, qualifications waivers or other actions of any kind
required by virtue of execution and delivery of this Agreement by AII or the
consummation by it of the transactions AII, contemplated hereby.
SECTION 4.6 Compliance with Law and Government Regulations AII is in compliance
with all applicable statutes, regulations, decrees, orders, restrictions,
guidelines and standards, whether mandatory or voluntary, affecting its
properties and operations, imposed by the United States of America, and any
state or foreign country or government to which AII is subject.
SECTION 4.7 Litigation. There is no litigation, arbitration, proceeding or
investigation pending or threatened to which AII are a party or which may result
in any material change in the business or condition, financial or otherwise, of
AII or in any of its properties or assets, or which might result in any
liability on the part of AII or which questions the validity of this Agreement
or of any action taken or to be taken pursuant to or in connection with the
provisions of this Agreement, and to the best knowledge of AII there is no basis
for any such litigation, arbitration, proceeding or investigation.
SECTION 4.8 Investigation of Financial Condition. In addition to making
available for review by FBID all financial statements, books and records of
FBID, and without in any manner reducing or otherwise mitigating the
representations contained herein, FBID shall have the opportunity to meet with
AII accountants and attorneys to discuss the financial condition of AII and to
make whatever further independent investigation deemed necessary and prudent.
SECTION 4.9 Governmental Consent. No consent, approval, authorization or order
of, or registration, qualification, designation, declaration or filing with, any
governmental authority on the part of AII, is required in connection with the
execution and delivery of this Agreement or the carrying out of any transactions
contemplated hereby.
SECTION 4.10 Authority. AII, and its shareholders shall have approved this
Agreement and the transactions contemplated hereby prior to the Closing and duly
authorized the execution and delivery hereof. AII, has full power, authority and
legal right to enter into this Agreement and to consummate the transactions
contemplated hereby, and all corporate action necessary to authorize the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby has been duly and validly taken. Those persons
executing this Agreement represent that they have received the authority to act
on behalf of and for the shareholders of AII, and that in the event additional
shareholder approvals are required, such approvals will be obtained at the next
scheduled annual meeting of AII.
SECTION 4.11 Investment Purpose. AII hereby represents that it is acquiring the
shares of FBID Common Stock to be issued hereunder for investment purposes only
and not with a view for further distribution or resale. AII further represents
and acknowledges that the FBID shares issued hereunder are "restricted
securities" and may not be sold, traded or otherwise transferred without
registration under the 1933 Act or exemption therefrom. AII further represents
that in the event it decides to distribute to its shareholders the FBID shares
to be acquired hereby, either in part or in whole, AII, will make all necessary
and requisite filing with the appropriate state and federal agencies to register
such distribution under the applicable securities laws.
SECTION 4.12 Full Disclosure. None of the representations and warranties made by
AII herein, or in any exhibit, certificate or memorandum furnished or to be
furnished by FBID, on its behalf, contains or will contain any untrue statement
of material fact, or omit any material fact, the omission of which would be
misleading.
ARTICLE V
COVENANTS AII
SECTION 5.1 Conduct Prior to Closing. Between the date hereof and the Closing:
(a) AII will not enter into any material agreement, contract or commitment,
whether written or oral, or engage in any transaction, without the prior written
consent of FBID;
(b) AII will not declare any dividends or distributions with respect to its
capital stock or amend its Articles of Incorporation or By-Laws, without the
prior written consent of FBID;
(c) Except within the regular course of business, AII will not incur any
indebtedness for money borrowed or issue to sell any debt securities, or incur
or suffer to be incurred any liability or obligation of any nature whatsoever,
or cause or permit any lien, encumbrance or security interest to be created or
arise on or in any of its properties or assets, with the prior written consent
of FBID;
(d) AII will comply with all requirements which federal or state law may
impose on it with respect to this Agreement and the transactions contemplated
hereby, and will promptly cooperate with and furnish information to FBID in
connection with any such requirements imposed upon the parties hereto in
connection therewith; and
(e) AII shall grant to FBID and its counsel, accountants and other
representatives, full access during normal business hours during the period
prior to the Closing to all its respective properties, books, contracts,
commitments and records and, during such period, furnish promptly to FBID and
such representatives all information relating to AII may reasonably request.
SECTION 5.2 Affirmative Covenants. Prior to Closing, AII will do the following:
(a) Obtained the approval of its Board of Directors and shareholders to
proceed with this Agreement and obtain any further shareholder approvals, which
may be required, at the next scheduled annual meeting of AII shareholders;
(b) Use its best efforts to accomplish all actions necessary to consummate
this Agreement, including satisfaction of all the conditions contained in the
Agreement; and
(c) Promptly notify FBID in writing of any materially adverse change in the
financial condition, business, operations or key personnel of AII any breach of
its representations or warranties contained herein, and any material contract,
agreement, license or other agreement which, if in effect on the date of this
Agreement, should have been included in this Agreement.
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.1 Expenses. Whether or not the transactions contemplated in this
Agreement are consummated, all costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall be paid by the
party incurring such expense or as otherwise agreed to herein.
SECTION 6.2 Brokers and Finders. Each of the parties hereto represents, as to
itself, that with the exception of the consideration and additional shares of
FBID Common Stock to be paid and issued pursuant to the Letter of Intent , dated
_______, 2000 annexed hereto as Exhibit 6.2 and by this reference made a part
hereof, and to which FBID acknowledges and agrees fulfill the terms thereof, no
other agent, broker, investment banker or other firm or person is or will be
entitled to any broker's or finder's fee or any other commission or similar fee
in connection with any of the transactions contemplated by this Agreement.
SECTION 6.3 Necessary Actions. Subject to the terms and conditions herein
provided, each of the parties hereto agrees to use all reasonable efforts to
take, or cause to be taken, all action, and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement.
In the event at any time after the Closing, any further action is necessary or
desirable to carry out the purposes of this Agreement, the proper officers
and/or directors of FBID or AII as the case may be, shall take all such
necessary action.
SECTION 6.4 Indemnification. Each party to this Agreement hereby agrees to
defend and hold the other party harmless against and in respect of any and all
claims, demands, losses, costs, expenses, obligations, liabilities, damages,
recoveries and deficiencies, including interest, penalties, and reasonable
attorney fees, that they shall incur or suffer, which arise out of, result from
or relate to any material breach of, or failure by the party to perform any of
its respective representations, warranties, covenants and agreements in this
Agreement or in any exhibit or other instrument furnished or to be furnished by
the party under this Agreement.
ARTICLE VII
CONDITIONS TO OBLIGATIONS OF THE PARTIES
The obligations of the parties under this Agreement are subject to the
fulfillment and satisfaction of each of the following conditions:
SECTION 7.1 Legal Action. No preliminary or permanent injunction or other
order by any federal or state court which prevents the consummation of this
Agreement or any of the transactions contemplated by this Agreement shall have
been issued and remain in effect.
SECTION 7.2 Absence of Termination. The obligations to consummate the
transactions contemplated hereby shall not have been canceled pursuant to
Article X hereof.
SECTION 7.3 Required Approvals. FBID and AII shall have received all such
approvals, consents, authorizations or modifications as may be required to
permit the performance by FBID and AII of the respective obligations under this
Agreement, and the consummation of the transactions herein contemplated, whether
from governmental authorities or other persons and FBID and AII shall each have
received any and all permits and approvals from any regulatory authority having
jurisdiction required for the lawful consummation of this Agreement.
SECTION 7.4 Blue Sky Compliance. There shall have been obtained any and all
permits, approvals and consents of the Securities or "Blue-Sky" Commissions of
any jurisdictions, and of any other governmental body or agency, which
respective counsel for FBID and AII, may reasonably deem necessary or
appropriate so that consummation of the transactions contemplated by this
Agreement may be in compliance with all applicable laws.
ARTICLE VIII
CONDITIONS PRECEDENT TO OBLIGATIONS OF AII
All obligations of FBID under this Agreement are subject to the fulfillment
and satisfaction by AII prior to or at the time of the Closing, of each of the
following conditions, any one or more of which may be waived by FBID.
SECTION 8.1 Representations and Warranties True at the Closing. All
representations and warranties of AII contained in this Agreement will be true
and correct at and as of the time of the Closing, and AII shall have delivered
to FBID a certificate, dated the date of the Closing, to such effect and in the
form and substance satisfactory to FBID, and signed, in the case of AII, by its
president and secretary.
SECTION 8.2 Performance. The obligations of AII to be performed on or
before the Closing pursuant to the terms of this Agreement shall have been duly
performed at such time, and AII shall have delivered to FBID a certificate,
dated the date of the Closing, to such effect and in form and substance
satisfactory to FBID.
SECTION 8.3 Authority. All action required to be taken by, or on the part
of AII and its shareholders, if required, to authorize the execution, delivery
and performance of this Agreement by AII, and the consummation of the
transactions contemplated hereby, shall have been duly and validly taken.
SECTION 8.4 Absence of Certain Changes or Events. There shall not have
occurred, since the date hereof, any adverse change in the business, condition,
(financial or otherwise), assets or liabilities of AII or any event or condition
of any character adversely affecting AII, and it shall have delivered to FBID,
certificates, dated the date of the Closing, to such effect and in form and
substance satisfactory to FBID and signed, in the case of AII, by its president
and secretary.
ARTICLE IX
CONDITIONS PRECEDENT TO OBLIGATIONS AII
All obligations of AII under this Agreement are subject to the fulfillment
and satisfaction by FBID prior to or at the time of the Closing, of each of the
following conditions, any one or more of which may be waived by AII.
SECTION 9.1 Representations and Warranties True at the Closing. All
representations and warranties of FBID contained in this Agreement will be true
and correct at and as of the time of the Closing, and FBID shall have delivered
to AII a certificate, dated the date of the Closing, to such effect and in the
form and substance satisfactory to AII and signed, in the case of FBID, by its
president and secretary.
SECTION 9.2 Performance. Each of the obligations of FBID to be performed on
or before the Closing pursuant to the terms of this Agreement shall have been
duly performed at such time of Closing, and FBID shall have delivered to AII a
certificate, dated the date of the Closing, to such effect and in form and
substance satisfactory to AII and signed, in the case of FBID by its president
and secretary.
SECTION 9.3 Authority. All action required to be taken by, or on the part
of FBID to authorize the execution, delivery and performance of this Agreement
by FBID and the consummation of the transactions contemplated hereby, shall have
been duly and validly taken.
SECTION 9.4 Absence of Certain Changes or Events. There shall not have
occurred, since the date hereof, any adverse change in the business, condition,
(financial or otherwise), assets or liabilities of FBID or any event or
condition of any character adversely affecting FBID, and it shall have delivered
to AII, certificates, dated the date of the Closing, to such effect and in form
and substance satisfactory to AII and signed, in the case of FBID, by its
president and secretary.
ARTICLE X
TERMINATION
SECTION 10.1 Termination. Notwithstanding anything herein or elsewhere to
the contrary, this Agreement may be terminated:
(a) By mutual agreement of the parties hereto at any time prior to Closing;
(b) By the board of directors of FBID at any time prior to the closing in
the event:
(i) a condition to performance by FBID under this Agreement or a covenant
of AII contained herein shall not be fulfilled on or before the time of the
Closing or at such other time and date specified for the fulfillment for such
covenant or condition; or
(ii) a material default or breach of this Agreement shall be made by AII;
or
(iii) the Closing shall not have taken place on or prior to June 30, 2000.
(c) By the board of directors of AII at any time prior to the closing in
the event:
(i) a condition to AII performance under this Agreement or a covenant of
FBID contained in this Agreement shall not be fulfilled on or before the Closing
or at such other time and date specified for the fulfillment of such covenant or
conditions;
(ii) a material default or breach of this Agreement shall be made by FBID;
or
(iii) the Closing shall not have taken place on or prior to ________, 2000.
SECTION 10.2 Effect of Termination. If this Agreement is terminated, this
Agreement, except as to Sections 11.1, 11.2, shall no longer be of any force or
effect and there shall be no liability on the part of any party or its
respective directors, officers or stockholders; provided however, that in the
case of a Termination without cause by a party or a termination pursuant to
Sections 10.1(b) (i) or 10.1 (c) (i) hereof because of a prior material default
under or a material breach of this Agreement by another party, the damages which
the aggrieved party or parties may recover from the defaulting party or parties
shall in no event exceed the amount of out-of-pocket costs and expenses incurred
by such aggravated party or parties in connection with this Agreement.
SECTION 10.3 Recision. In the event that prior to _______, 2000, AII fails
to obtain any and all consents and/or approvals that may be required from the
AII shareholders or any regulatory authority for the approval and ratification
of this Agreement, then this Agreement shall be rescinded and become null and
void with the result that all shares of FBID Common Stock issued to AII
hereunder are to be deemed canceled and no longer outstanding on the transfer
records of FBID and that those assets set forth in Exhibit 1.1 hereto shall be
returned to AII.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Cost and Expenses. All costs and expenses incurred in
connection with this Agreement will be paid by AII. In the event of any
termination of this Agreement pursuant to Section 10.1 or 10.3, subject to the
provisions of Section 11.2, AII bear all expenses.
SECTION 11.2 Extension of Time: Waivers. At any time prior to the Closing
date:
(a) FBID may (i) extend the time for the performance of any of the
obligations or other acts of AII, (ii) waive any inaccuracies in the
representations and warranties of AII contained herein or in any document
delivered pursuant hereto by AII, and (iii) waive compliance with any of the
agreements or conditions contained herein to be performed by AII. Any agreement
on the part of FBID to any such extension or waiver shall be valid only if set
forth in an instrument, in writing, signed on behalf of FBID;
(b) AII, may (i) extend the time for the performance of any of the
obligations or other acts of FBID, (ii) waive any inaccuracies in the
representations and warranties of FBID contained herein or in any document
delivered pursuant hereto by FBID and (iii) waive compliance with any of the
agreements or conditions contained herein to be performed by FBID. Any agreement
on the part of AII to any such extension or waiver shall be valid only if set
forth in an instrument, in writing, signed on behalf of AII;
SECTION 11.3 Notices. Any notice to any party hereto pursuant to this
Agreement shall be given by Certified or Registered Mail, addressed as follows:
ADVANCED INTERACTIVE, INC.
Suite 2101, 1177 West Hastings
Vancouver, BC V6E2K3
FRESH BREATH INDUSTRIES, INC.
210-195 W. 2ND
Vancouver, BC V5Y1B8
Additional notices are to be given to each party, at such other address
should be designated in writing comply as to delivery with the terms of this
Section 11.3. All such notices shall be effective when sent, addressed as
aforesaid.
SECTION 11.4 Parties in Interest. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and the respective successors and
designees. Nothing in this Agreement is intended to confer, expressly or by
implication, upon any other person any rights or remedies under or by reason of
this Agreement.
SECTION 11.5 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and together shall
constitute one document. The delivery by facsimile of an executed counterpart of
this Agreement shall be deemed to be an original and shall have the full force
and effect of an original executed copy.
SECTION 11.6 Severability. The parties hereto agree and affirm that none of
the provisions herein is dependent upon the validity of any other provision, and
if any part of this Agreement is deemed to be unenforceable, the remainder of
the Agreement shall remain in full force and effect.
SECTION 11.7 Headings. The Article and Section headings are provided herein
for convenience of reference only and do not constitute a part of this
Agreement.
SECTION 11.8 Governing Law. This Agreement shall be governed by the laws of
the State of Nevada. Any action to enforce the provisions of this Agreement
shall be brought in a court of competent jurisdiction in the State of Nevada and
in no other place.
SECTION 11.9 Survival of Representations and Warranties. All terms,
conditions, representations and warranties set forth in this Agreement or in any
instrument, certificate, opinion, or other writing providing for in it, shall
survive the Closing and the delivery of the shares of FBID Common Stock
transferred hereunder at the Closing, regardless of any investigation made by or
on behalf of any of the parties hereto.
SECTION 11.10 Assignability. This Agreement shall not be assignable by any
of the parties hereto without the prior written consent of the other parties.
SECTION 11.11 Amendment. This Agreement may be amended with the approval of
the boards of directors of FBID and AII at any time before or after approval
thereof by directors of FBID, if required, and AII; but after such approval by
the FBID directors, no amendment shall be made which substantially and adversely
changes the terms hereof. This Agreement may not be amended except by an
instrument, in writing, signed on behalf of each of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Acquisition Agreement in a manner legally binding upon them as of the date first
above written.
FBID
FRESH BREATH INDUSTRIES, INC. ATTEST:
By:__________ ______________
Its: President Secretary
AII
ADVANCED INTERACTIVE, INC. ATTEST
By:____________________ ________________________
Its: President Director
CERTIFICATE
OF
FRESH BREATH INDUSTRIES, INC.
The undersigned, __________and ____________ hereby certify that they are
the President and Secretary respectively, of FRESH BREATH INDUSTRIES, INC., a
Nevada corporation and further certify as follows:
1. That the representations and warranties of FRESH BREATH INDUSTRIES,
INC., contained in the Acquisition Agreement (the "Agreement") by and between
FBID, a Nevada corporation, and FRESH BREATH INDUSTRIES, INC., are true and
correct at and as of the date hereof.
2. The obligations and covenants of FRESH BREATH INDUSTRIES, INC., to be
performed and observed on or before the Closing as defined in the Agreement have
been duly performed and observed.
3. Except as otherwise disclosed in the Agreement, there has not occurred
since the date thereof, any adverse change in the business, condition (financial
or otherwise), assets or liabilities of the Company or any event or condition of
any character adversely affecting the Company.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of
this day of , 2000.
FRESH BREATH INDUSTRIES, INC.
By: _________________
President
By: _________________
Secretary
CERTIFICATE
OF
ADVANCED INTERACTIVE, INC.
The undersigned, _____________ and ________________ hereby certify that
they are the President and Secretary respectively, of ADVANCED INTERACTIVE,
INC., a Nevada corporation and further certify as follows:
1. That the representations and warranties of ADVANCED INTERACTIVE, INC.,
contained in the Acquisition Agreement (the "Agreement") by and between FBID, a
Nevada corporation, and ADVANCED INTERACTIVE, INC., are true and correct at and
as of the date hereof.
2. The obligations and covenants of ADVANCED INTERACTIVE, INC., to be
performed and observed on or before the Closing as defined in the Agreement have
been duly performed and observed.
3. Except as otherwise disclosed in the Agreement, there has not occurred
since the date thereof, any adverse change in the business, condition (financial
or otherwise), assets or liabilities of the Company or any event or condition of
any character adversely affecting the Company.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of
this day of , 2000.
ADVANCED INTERACTIVE, INC.
By: ____________________
President
By:
Secretary
