AGREEMENT FOR PURCHASE AND SALE OF STOCK AND PROMISSORY NOTE
Agreement for Purchase and Sale of Stock and Promissory Note dated as of
September 18, 2000 ("Agreement"), among Saratoga International Holdings Corp., a
Nevada corporation ("Saratoga"), Access World Wireless Services Inc., a Florida
corporation, ("Access Wireless") and Alaris Inc., a Nevada corporation
("Alaris"), Access Wireless and Alaris are hereinafter collectively referred to
as Seller.
BACKGROUND
a) Alaris owns Seventy-Five 74/100 percent (75.74%) or more of all of the
issued and outstanding shares of Access Wireless.
b) Alaris holds a Promissory Note issued by and due from Access Wireless dated
June 16, 2000 ("Note") in the approximate principal amount of $685,878.00 .
c) Access Wireless markets and sells telecommunications products and services,
including wireless cellular services and prepaid international and domestic
long distance calling service. Access Wireless also owns and operates
telecommunications service equipment (switches, routers and gateways) in
several major locations.
d) Saratoga is engaged in the acquisition of businesses for its future
operations including those specializing in sales of telecommunications
products and services. Saratoga desires to purchase from Alaris controlling
interest of Access Wireless and Alaris' interest in the Note.
The respective Boards of Directors of Saratoga, Access Wireless and Alaris have
each approved, upon the terms and subject to the conditions set forth in this
Agreement the purchase by Saratoga and the sale by Alaris of all of Alaris'
equity and other interests in Access Wireless, as set forth in Article I and by
which Access Wireless shall become a subsidiary of Saratoga.
In consideration of the respective representations, warranties, covenants and
agreements contained in this Agreement, Saratoga and Access Wireless and Alaris
hereby agree as follows:
ARTICLE I
PURCHASE AND SALE
1.01 Purchase and Sale. Upon the terms and subject to the conditions hereof,
Access Wireless shall become a subsidiary of Saratoga upon the Effective
Time of this Agreement subject to the conditions set forth in Article VII.
7
<PAGE>
1.02 Effective Time. This Agreement shall become effective at such time
("Effective Time") as the conditions set forth in Article VII are satisfied
or waived, if permissible.
1.03 Shares and the Note. At or prior to the Effective Time, by virtue of this
Agreement, the following events shall occur.
a) Each issued and outstanding share of common stock of Access Wireless
owned by Alaris shall be assigned, transferred and conveyed to
Saratoga free and clear of any and all liens, encumbrances, security
interest, claims and other restrictions or charges of any kind
whatsoever.
b) The Note shall be assigned, transferred and conveyed to Saratoga free
and clear of any and all liens, encumbrances, security interests,
claims and other restrictions or charges of any kind whatsoever.
1.04 Purchase Price For the Shares and the Note and Payment of Purchase Price.
At the Effective Time, Saratoga shall issue to Alaris four (4) million
shares of its common stock ("Common Stock") on terms and conditions set
forth in this Agreement.
1.05 Private Placement.
a) The Common Stock issued to Alaris have not been and will not be
registered with the Securities and Exchange Commission ("SEC") or the
securities commission of any state pursuant to an exemption from
registration by virtue of Saratoga's intended compliance with the
provisions of Section 4(2) of the Securities Act of 1933 ("Securities
Act"). Such exemption limits the number and types of investors to
which the offering of Common Stock may be made and restricts
subsequent transfers of the Common Stock so offered which also may be
restricted by state securities laws. The Common Stock may not be
resold or otherwise disposed of by Alaris unless, in the opinion of
counsel to Saratoga, registration under federal and applicable state
securities laws is not required or compliance is made with the
registration requirements of such laws.
b) At the Effective Time, Saratoga and Alaris shall enter into a
Registration Rights Agreement the terms and conditions of which shall
be as set forth in the sample Registration Rights Agreement annexed
hereto as Exhibit 1.05(b).
ARTICLE II
ISSUANCE OF SHARES
2.01 Issuance of Certificate. Promptly after the Effective Time, Saratoga shall
issue to Alaris a certificate representing the Common Stock under this
Agreement and simultaneously Alaris shall exchange and surrender the
certificate or certificates representing all of Alaris' shares in Access
Wireless and all of Alaris' right, title and interest in the Note.
8
<PAGE>
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
SARATOGA
Saratoga represents and warrants to Alaris and Access Wireless as of the date of
this Agreement and as of the Effective Time as follows:
3.01 Existence: Good Standing. Saratoga is a corporation duly incorporated,
validly existing and in good standing under the laws of its jurisdiction of
incorporation.
3.02 Capitalization. The authorized capital stock of Saratoga consists of
200,000,000 shares of Common Stock, par value $0.001 ("Shares") and
50,000,000 shares of Preferred Stock, par value $0.001. As of July 31,
2000, Saratoga's most recent fiscal quarter, there were 251,828 shares of
8% cumulative convertible redeemable shares of Preferred Stock issued and
outstanding and 61,254,703 shares of Common Stock issued and outstanding
including 2,000,000 shares of Common Stock held in escrow pending
completion and outcome of Saratoga's claim against Language Force Inc. All
issued and outstanding shares of Preferred Stock and issued and outstanding
shares of Common Stock are duly authorized, validly issued, free of
preemptive rights, non-assessable, and, except for the 2,000,000 shares of
Common Stock held in escrow, are fully paid. Options, warrants and other
rights to acquire from Saratoga or any of its subsidiaries and obligations
of Saratoga or any of its subsidiaries to issue, any capital stock, or
securities convertible into or exchangeable for capital stock or voting
securities of Saratoga as of October 31, 1999 are as set forth in
Saratoga's audited financial statements as of and for the fiscal year ended
October 31, 1999, a copy of which has been provided to Seller and is
annexed hereto as Exhibit 3.02.
3.03 Authorization: Validity and Effect of Agreements. Saratoga has the
requisite corporate power and authority to execute and deliver this
Agreement. The consummation by Saratoga of the transactions contemplated
hereby has been duly authorized by all requisite corporate action and the
issuance of the Common Stock to Alaris has been approved by the board of
directors of Saratoga at a meeting held August 2, 2000. This Agreement
constitutes the valid and legally binding obligation of Saratoga,
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, moratorium or other similar laws relating to creditors' rights
and general principles of equity.
3.04 No Violation. To the best of Saratoga's knowledge neither the execution and
delivery by Saratoga of this Agreement, nor the consummation by Saratoga of
the transactions contemplated hereby in accordance with the terms hereof,
will: (i) conflict with or result in a breach of any provisions of the
Articles of Incorporation or Bylaws of Saratoga (ii) violate, or conflict
with, or result in a breach of any provision of, or constitute a default
(or an event which with notice or lapse of time or both, would constitute a
default) under, or result in the termination or in a right of termination
or cancellation of, or accelerate the performance required by, or result in
the triggering of any payment of compensation under, or result in the
creation of any lien, security interest, charge or encumbrance ("Lien")
upon any of the material
9
<PAGE>
properties of Saratoga or its subsidiaries under, or result in being
declared void, voidable, or without further binding effect, any of the
terms, conditions or provisions of any note, bond, mortgage, indenture,
deed of trust or any material license, franchise, permit, lease, contract,
agreement or other instrument, commitment or obligation to which Saratoga
or any of Saratoga's subsidiaries is a party, or by which Saratoga or any
of Saratoga's subsidiaries or any of their respective properties is bound
or affected, except for any of the foregoing matters which would not have a
material adverse effect on the business, results of operations, financial
condition or prospects of Saratoga and its subsidiaries taken as a whole
("Saratoga Material Adverse Effect"); or (iii) other than the filings
required under the Securities Exchange Act of 1934, ("Exchange Act"), the
Securities Act or applicable state securities and "Blue Sky" laws or
filings in connection with the maintenance of its qualification to do
business in other jurisdictions, and the filings contemplated by Section
6.02 of this Agreement (collectively, "Regulatory Filings"), require any
material consent, approval or authorization of, or declaration, filings or
registration with, any domestic governmental or regulatory authority, the
failure to obtain or make which would have a Saratoga Material Adverse
Effect.
3.05 Documents. Saratoga has delivered to Seller the following documents:
o Form 10-SB as amended and as filed with the Securities and Exchange
Commission on June 6, 2000.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF ACCESS WIRELESS
Access Wireless represents and warrants to Saratoga as of the date of this
Agreement and as of the Effective Time as follows:
4.01 Existence; Good Standing; Corporate Authority; Compliance with Law. Access
Wireless is a corporation duly incorporated, validly existing and in good
standing under the laws of the jurisdictions of its incorporation. Access
Wireless is duly qualified as a foreign corporation to do business and is
in good standing in each jurisdiction in which the character of its
properties occupied, owned or held under lease or the nature of its
business makes such qualification or licensing necessary. The copies of
Access Wireless' Articles of Incorporation and by laws previously delivered
to Saratoga are true and correct and have not since been amended, modified
or rescinded.
4.02 Authorization, Validity and Effect of Agreements. Access Wireless has the
requisite corporate power and authority to execute and deliver this
Agreement. The consummation by Access Wireless of all transactions
contemplated hereby has been duly authorized by all requisite corporate
action and is required to be approved by the shareholders of Access
Wireless and such approval was obtained by shareholder consent on September
14, 2000. The consummation by Access Wireless of all transactions
contemplated hereby has been duly authorized by all requisite corporate
action and is required to be approved by the Board of Directors
10
<PAGE>
of Access Wireless and such approval was obtained at a meeting of the Board
of Directors of Access Wireless on September 14, 2000. This Agreement
constitutes the valid and legally binding obligation of Access Wireless,
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, moratorium or other similar laws relating to creditors' rights
and general principles of equity.
4.03 Capitalization. The authorized capital stock of Access Wireless consists of
1,000,000 shares of no par value common stock and no other classes of
stock, common or preferred, or other securities. There are 1,010 shares of
common stock issued and outstanding as of September 14, 2000. All issued
and outstanding shares of common stock are duly authorized, validly issued,
fully paid, non-assessable and free of preemptive rights. Access Wireless
is not a party to or bound by any written or oral contract or agreement
which grants to any person an option, warrant or right of first refusal or
other right of any character to acquire at any time, or upon the happening
of any stated events, any shares of or interest in Access Wireless, whether
or not presently authorized, issued or outstanding. There are outstanding
(i) no shares of capital stock or other voting securities of Access
Wireless, (ii) no securities of Access Wireless or any of its subsidiaries
convertible into or exchangeable for shares of capital stock or voting
securities of Access Wireless, (iii) no options or other rights to acquire
from Access Wireless or any of its subsidiaries, and no obligations of
Access Wireless or any of its subsidiaries to issue, any capital stock,
voting securities or securities convertible into or exchangeable for
capital stock or voting securities of Access Wireless, and (iv) no equity
equivalents, interest in the ownership or earnings of Access Wireless or
any of its subsidiaries or other similar rights. There are no outstanding
obligations of Access Wireless or any of its subsidiaries to repurchase,
redeem or otherwise acquire any securities of Access Wireless.
4.04 No Violation. Neither the execution and delivery by Access Wireless of this
Agreement nor the consummation by Access Wireless of the transactions
contemplated hereby in accordance with the terms hereof will: (i) conflict
with or result in a breach of any provisions of the Articles of
Incorporation or Bylaws of Access Wireless or its subsidiaries, (ii)
violate, or conflict with, or result in a breach of any provision of, or
constitute a default (or an event which, with notice or lapse of time or
both, would constitute a default) under, or result in the termination or in
a right of termination or cancellation of, or accelerate the performance
required by, or result in the triggering of any payment or compensation
under, or result in the creation of any lien upon any of the properties of
Access Wireless under, or result in being declared void, voidable, or
without further binding effect, any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, deed of trust or any material
license, franchise, permit, lease, contract, agreement or other instrument,
commitment or obligation of which Access Wireless or its subsidiaries is a
party, or by which Access Wireless or its subsidiaries or any of their
respective properties or assets is bound or affected, except for any of the
foregoing matters which, singularly or in the aggregate, would not have an
adverse effect on the business of Access Wireless ("Access Wireless
Material Adverse Effect"); (iii) other than the Regulatory filings, require
any material consent, approval or authorization of, or declaration, filing
or registration with, any domestic governmental or regulatory authority,
the failure to obtain or make which would have an Access Wireless
11
<PAGE>
Material Adverse Effect, or (iv) violate any order, writ, injunction,
decree, statute, rule or regulation applicable to Access Wireless, any of
its subsidiaries or any of their assets, except for violations which in the
aggregate would not have an Access Wireless Material Adverse Effect or
materially adversely affect the ability of Access Wireless to consummate
the Agreement.
4.05 Documents. Access Wireless has delivered to Saratoga the following
documents:
1. Unaudited financial statements as of and for the period ended June 30,
2000.
2. List of Assets
3. List of Liabilities
4.06 Assets and Liabilities. Access Wireless hereby represents and warrants that
it has no contingent or other liabilities other than those listed in
Exhibit 4.06 annexed hereto. The assets owned by Access Wireless as set
forth in Exhibit 4.06(a) annexed hereto, at the Effective Time shall be
free and clear of any and all liens, claims or other encumbrances.
4.07 Material Contracts. Access Wireless hereby represents and warrants that all
of Materials Contracts which are essential to its business ("Material
Contracts") are set forth in Exhibit 4.07. Access Wireless further
represents and warrants that all the Material Contracts as set forth in
Exhibit 4.07 are valid, binding and enforceable according to their terms
against each party to the contracts, subject to the effect of bankruptcy,
fraudulent conveyance or transfer, insolvency, reorganization, arrangement,
liquidation, conservatorship, and moratorium laws, to limitations imposed
by other laws and judicial decisions relating to or affecting the rights of
creditors or secured creditors generally, to general principals of equity.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
OF ALARIS
Alaris represents and warrants to Saratoga as of the date of this Agreement and
as of the Effective Time as follows:
5.01 Existence; Good Standing; Corporate Authority; Compliance with Law. Alaris
is a corporation duly incorporated, validly existing and in good standing
under the laws of the jurisdictions of their incorporation. Alaris is duly
qualified as a foreign corporation to do business and is in good standing
in each jurisdiction in which the character of its properties occupied,
owned or held under lease or the nature of its business makes such
qualification or licensing necessary.
5.02 Authorization, Validity and Effect of Agreements. Alaris has the requisite
corporate power and authority to execute and deliver this Agreement. The
consummation by Alaris of all transactions contemplated hereby has been
duly authorized by all requisite corporate action and is required to be
approved by the Board of Directors of Alaris and such approval was obtained
at a meeting of the Board of Directors of Alaris on August 28, 2000. This
Agreement constitutes the
12
<PAGE>
valid and legally binding obligation of Alaris, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency, moratorium or
other similar laws relating to creditors' rights and general principles of
equity.
5.03 [Intentionally Omitted}
5.04 No Violation. Neither the execution and delivery by Alaris of this
Agreement nor the consummation by Alaris of the transactions contemplated
hereby in accordance with the terms hereof will: (i) conflict with or
result in a breach of any provisions of the Articles of Incorporation or
Bylaws of Alaris or its subsidiaries, (ii) violate, or conflict with, or
result in a breach of any provision of, or constitute a default (or an
event which, with notice or lapse of time or both, would constitute a
default) under, or result in the termination or in a right of termination
or cancellation of, or accelerate the performance required by, or result in
the triggering of any payment or compensation under, or result in the
creation of any Lien upon any of the properties of Alaris under, or result
in being declared void, voidable, or without further binding effect, any of
the terms, conditions or provisions of any note, bond, mortgage, indenture,
deed of trust or any material license, franchise, permit, lease, contract,
agreement or other instrument, commitment or obligation of which Alaris or
its subsidiaries is a party, or by which Alaris or its subsidiaries or any
of their respective properties or assets is bound or affected, except for
any of the foregoing matters which, singularly or in the aggregate, would
not have an adverse effect on the business of Alaris ("Alaris Material
Adverse Effect"); (iii) other than the Regulatory filings, require any
material consent, approval or authorization of, or declaration, filing or
registration with, any domestic governmental or regulatory authority, the
failure to obtain or make which would have an Alaris Material Adverse
Effect, or (iv) violate any order, writ, injunction, decree, statute, rule
or regulation applicable to Alaris, any of its subsidiaries or any of their
assets, except for violations which in the aggregate would not have an
Alaris Material Adverse Effect or materially adversely affect the ability
of Alaris to consummate the Agreement.
ARTICLE VI
COVENANTS
6.01 Conduct of Business. From and after the date of this Agreement until the
Effective Time or this Agreement is terminated, unless Access Wireless has
consented in writing thereto, Saratoga, and, with respect to (e) and (f)
below, Saratoga and Access Wireless:
a) Shall, and shall cause its subsidiaries to, conduct its operations
according to its usual, regular and ordinary course in substantially
the same manner as heretofore conducted;
b) Shall use reasonable efforts, and shall cause its subsidiaries to use
reasonable efforts, to preserve intact its business organization and
goodwill, keep available the services of its officers and employees
and maintain satisfactory relationships with those persons having
business relationships with it;
13
<PAGE>
c) Shall confer on a regular basis with one or more representatives of
Saratoga to report operational matters of materiality and any
proposals to engage in material transactions;
d) Shall not amend its Articles of Incorporation or By Laws;
e) Shall promptly notify the other parties hereto of any material
emergency or other material change in the condition (financial or
otherwise), business, properties, assets, liabilities, prospects or
the normal course of its businesses or in the operation of its
properties, any material litigation or material governmental
complaints, investigations or hearings (or communications indicating
that the same may be contemplated), or the breach in any material
respect of any representation or warranty contained herein;
f) Shall promptly deliver to the other parties hereto true and correct
copies of any report, statement or Exhibit filed with or delivered to
the SEC, any other Governmental entity (other than routine corporate
tax and other filings in the ordinary course of business) or any
shareholder of Access Wireless or Saratoga, as the case may be,
subsequent to the date of this Agreement;
g) Shall not (i) issue, sell or pledge, or agree to issue, sell or
pledge, any shares of its capital stock, effect any stock split or
otherwise change its capitalization as it existed on the date hereof,
(ii) grant, confer or award any option, warrant, conversion right or
other right to acquire any shares of its capital stock or grant any
right to convert or exchange any securities of Access Wireless for
Common Stock, (iii) increase any compensation or enter into or amend
any employment agreement with any of its present or future officers or
directors, other than in the ordinary course of Access Wireless
business, (iv) adopt any new employee benefit plan, other than in the
ordinary course of Access Wireless business (including any stock
option, stock benefit or stock purchase plan) or amend any existing
employee benefit plan in any material respect, other than in the
ordinary course of business, except, in each case, for changes which
are less favorable to participants in such plans or as may be required
by applicable law, or (v) amend any employment agreement with an
officer or increase any compensation payable pursuant to such
employment agreements;
h) Shall not (i) except in the normal course of business as consistent
with prior practice, declare, set aside or pay any dividend (whether
in cash, stock or property) or make any other distribution or payment
with respect to any shares of its capital stock or (ii) directly or
indirectly redeem, purchase or otherwise acquire any shares of its
capital stock or make any commitment for any such action;
i) Shall not, and shall not permit its subsidiaries to (i) sell, lease or
otherwise dispose of any assets of Access Wireless or its subsidiaries
(including capital stock) which are of a material amount, individually
or in the aggregate, or (ii) make any acquisition, by means of merger
or otherwise, of any assets or securities which are of a material
amount, individually or in the aggregate; and
14
<PAGE>
j) Shall not, and shall not permit its subsidiaries to, agree in writing
to take or otherwise take (i) any of the foregoing actions or (ii) any
action which would make any representation or warranty of Alaris
herein untrue or incorrect.
6.02 Filings; Other Action. Subject to the terms and conditions herein provided,
Access Wireless, Alaris and Saratoga shall: (i) promptly make their
respective filings and thereafter make any other required submissions under
the HSR act with respect to the Effective Time if required; (ii) use all
reasonable efforts to cooperate with one another in (a) determining which
filings are required to be made prior to the Effective Time with, and which
consents, approvals, permits or authorizations are required to be obtained
prior to the Effective Time from, governmental or regulatory authorities of
the United States, the several states, and other jurisdictions in
connection with the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby and (b) timely making
all such filings and timely seeking all such consents, approvals, permits
or authorizations; and (iii) use best efforts to take, or cause to be
taken, all other action and do, or cause to be done, all other things
necessary, proper or appropriate to consummate and make effective the
transactions contemplated by this Agreement. If, at any time after the
Effective Time, any further action is necessary or desirable to carry out
the purpose of this Agreement, the proper officers and directors of
Saratoga, Alaris and Access Wireless shall use best efforts to take all
such necessary action.
6.03 Due Diligence Review. From the date hereof to the Effective Time, each of
Saratoga and Access Wireless shall allow all designated officers,
attorneys, accountants and other representatives of Saratoga and Access
Wireless, as the case may be, access at all reasonable times to the records
and files, correspondence, audits and properties, as well as to all
information relating to commitments, contracts, titles and financial
position, or otherwise pertaining to the business and affairs of Saratoga,
Alaris and their respective subsidiaries.
For the purpose of conducting their respective due diligence
investigations, each party will make available to the other for examination
and reproduction all documents and data of every kind and character
relating to this Agreement and the transactions contemplated hereby, in
possession or control of, or subject to reasonable access by either party.
All such due diligence investigation shall be completed and each party
shall notify the other in writing of the satisfaction or removal of this
due diligence review condition on or prior to the Effective Time.
Upon mutual agreement of the parties, additional time may be allowed to
complete such due diligence investigation. Should a party ("Reviewing
Party") become aware of any information during its due diligence
investigation which, in the opinion of the Reviewing Party, could have
material adverse impact on this Agreement and/or the transactions
contemplated hereby, the Reviewing Party shall immediately notify the other
party ("Receiving Party") in writing of such information and the concerns
which such information has caused. The Receiving Party shall have a
reasonable time to respond to those concerns. In the event that the
concerns cannot be resolved to the satisfaction of the Reviewing Party, the
Reviewing Party shall have the right to terminate this Agreement without
further liability hereunder. Each party shall bear
15
<PAGE>
the costs and expenses of its own due diligence investigation hereunder,
including the fees and expenses of professional advisors
6.04 Indemnification.
a (i) After the Effective Time, Saratoga shall, to the fullest extent
permitted, indemnify, defend and hold harmless the present and
former directors and officers of Access Wireless and any
subsidiaries and their respective heirs, executors,
administrators and legal representatives (individually, an
"Indemnified Party" and, collectively, the "Indemnified Parties"
) against all losses, expenses, claims, damages or liabilities
arising out of actions or omissions occurring on or prior to the
Effective Time (including, without limitation, acts or omissions
relating to the transactions contemplated by this Agreement
(collectively "Losses")). In connection with the foregoing
obligations from and after the Effective Time, Saratoga shall
bear the cost of expenses incurred in defending against any
claim, action, suit, proceeding or investigation arising out of
any alleged acts or omissions occurring on or prior to the
Effective Time (including, without limitation, acts or omissions
relating to the transactions contemplated by this Agreement), as
incurred to the fullest extent permitted under applicable law.
All rights to indemnification, including provisions relating to
advances, expenses and exculpation of director liability,
existing in favor of the Indemnified Parties as provided in
Saratoga's or Access Wireless' Articles of Incorporation and
Bylaws, as in effect as of the date of this Agreement, with
respect to matters occurring through the Effective Time, will
survive the Effective Time and will continue in full force and
effect.
(ii) Any Indemnified Party will promptly notify Saratoga of any claim,
action, suit, proceeding or investigation for which such party
may seek indemnification under this Section (a "Third Party
Claim"). In the event of any such Third Party Claim, (x) within
twenty (20) days of receipt of such notice, Saratoga will have
the right to assume the defense thereof, and Saratoga will not be
liable to such Indemnified Parties for any legal expenses of
other counsel or any other expenses subsequently incurred
thereafter by such Indemnified Parties in connection with the
defense thereof, except that all Indemnified Parties (as a group)
will have the right to retain one separate counsel, acceptable to
such Indemnified Parties, as the expense of the Indemnifying
Party if the named parties to any such proceeding include both
the Indemnified Party and Saratoga and the representation of such
parties by the same counsel would be inappropriate due to a
conflict of interest between them, and each Indemnified Party
will have the right to retain a separate counsel, acceptable to
such Indemnified Party, at the expense of the Indemnifying Party,
if representation of such Indemnified Party and the other
Indemnified Parties as a group would be inappropriate due to a
conflict of interest between them and (y) the Indemnified Parties
will cooperate in the defense of any such matter. If Saratoga
fails to take action within twenty (20) days as set forth in (x)
above, then the Indemnified Party shall have the right to pay,
compromise or defend any Third Party Claim and to assert the
amount of any payment on the Third Party Claim plus the expense
of defense or settlement as a Loss. Saratoga will not be liable
for any settlement affected without its prior written consent,
unless it has failed to take
16
<PAGE>
action within the twenty (20) day period after receipt of notice
as set forth above. Notwithstanding the foregoing, Saratoga will
not have any obligation under this Section 6.04 to indemnify an
Indemnified Party when and if a court of competent jurisdiction
ultimately determines and such determination becomes final, that
the indemnification of such Indemnified Party in the manner
contemplated hereby is prohibited by applicable law.
b) Saratoga shall pay all reasonable expenses, including reasonable
attorneys' fees, that may be incurred by any Indemnified Parties in
enforcing the indemnity and other obligations provided for in this
Section 6.04.
c) The rights of each Indemnified Party hereunder shall be in addition to
any other rights such Indemnified Party may have under the Articles of
Incorporation or by laws of Saratoga, under the Nevada Statute or
otherwise. The provisions of this Section shall survive the
consummation of the Effective Time and expressly are intended to
benefit each of the Indemnified Parties and will be binding on all
successors and assigns of Saratoga.
6.05 Further Action. Each party hereto shall, subject to the fulfillment at or
before the Effective Time of each of the conditions of performance set
forth herein or the waiver thereof, perform such further acts and execute
such documents as may be reasonably required to effect the Effective Time.
6.06 Expenses. Whether or not the Effective Time is consummated, except as
provided in Section 7.01 hereof or as provided otherwise herein, all costs
and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
expenses.
6.07 Consent of Access Wireless' Shareholders. Access Wireless shall submit the
Agreement to their shareholders for their consideration in accordance with
provisions of applicable law, and obtain the consent of its shareholders.
Access Wireless shall notify Saratoga in writing that the consent of the
shareholders has been obtained, and shall set forth the names of any
dissenting shareholders.
6.08 Approval of Alaris' Board of Directors. Alaris shall submit the Agreement
to its Board of Directors for consideration in accordance with provisions
of applicable law and obtain approval of its Board of Directors. Alaris
shall notify Saratoga in writing that the approval of its Board of
Directors has been obtained at least one (1) day prior to the Effective
Time.
6.09 Best Efforts to Execute Agreement. The parties hereto agree to use their
best efforts to execute this Agreement by September 19, 2000.
17
<PAGE>
ARTICLE VII
CONDITIONS TO CONSUMMATION
OF THE PURCHASE AND SALE
7.01 Conditions to Each Party's Obligation to Effect the Purchase and Sale. The
respective obligations of each party to effect the Purchase and Sale are
subject to the satisfaction or waiver, where permissible, prior to the
Effective Time, of the following conditions:
a) This Agreement shall have been approved by the affirmative vote of the
shareholders of Access Wireless by the requisite vote in accordance
with applicable law, if required, and by the Boards of Directors of
Saratoga and Alaris by resolution in accordance with applicable law.
b) No statute, rule, regulation, executive order, decree, injunction or
other order (whether temporary, preliminary or permanent), shall have
been enacted, entered, promulgated or enforced by any court or
governmental authority which is in effect and has the effect of
prohibiting the consummation of the Effective Time; provided, however,
that each of the parties shall have used its best efforts to prevent
the entry of any injunction or other order and to appeal as promptly
as possible any injunction or other order that may be entered.
c) Each of the consent and resolutions set forth on Exhibit 7.01(c),
7.01(c) (1) and 7.01(c) (2) hereto shall have been obtained.
d) Access Wireless and Alaris shall deliver the legal opinion of its
counsel, substantially in the form annexed hereto as Exhibit 7.01(d)
and Exhibit 7.01(d) (1), respectively and Saratoga shall deliver the
legal opinion of its counsel, substantially in the form annexed hereto
as Exhibit 7.01(d)(2).
e) A Registration Rights Agreement between Saratoga and Alaris shall have
been executed, in accordance with Article 1.05(b) of this Agreement. A
copy of the Registration Rights Agreement is annexed to this Agreement
as Exhibit 1.05(b).
f) On or prior to the Effective Time, Saratoga shall have executed a
Share Exchange Agreement by and between Access World Telcom and
Technologies, Inc. and Mary Ventura pursuant to which Saratoga shall
acquire all of the issued and outstanding shares of common stock of
Access Wireless not acquired under this Agreement.
g) Each party shall have completed its due diligence review and notified
the other in writing of the satisfaction or removal of the due
diligence review condition in accordance with Article 6.03 of this
Agreement.
18
<PAGE>
ARTICLE VIII
TERMINATION; AMENDMENT; WAIVER
8.01 The Effective Time and Termination. Except as otherwise set forth in this
Section 8.01, this Agreement shall close by no later than 11:59 p.m.
Seattle, Washington, September , 2000, ("The Effective Time Date") provided
that either party may extend this Agreement for an additional seven (7) day
period by written notice to the other party prior to the Effective Time
Date. This Agreement shall terminate if not closed by 11:59 p.m., Seattle,
Washington, September 2000. Notwithstanding the foregoing and/or the
approval of this Agreement by the shareholders of Access Wireless and the
Boards of Directors of Saratoga and Alaris, this Agreement may be
terminated and the Effective Time contemplated hereby may be abandoned at
any time prior to the Effective Time:
a) By mutual written consent, duly authorized by their respective Boards
of Directors, by Saratoga and Alaris;
b) By either Saratoga or Alaris:
(i) if any court of competent jurisdiction or any other governmental
body shall have issued an order, decree or ruling or taken any
other action permanently enjoining, restraining or otherwise
permanently prohibiting the Effective Time and such order,
decree, ruling or other action shall have become final and
non-appealable;
(ii) if, upon a vote at a duly held meeting or upon any adjournment
thereof, the shareholders of Access Wireless and the Boards of
Directors of Saratoga and Alaris shall have failed to give any
required approvals; or
c) By Saratoga if Access Wireless or Alaris shall have breached any of
its representations and warranties or covenants contained herein and
if such breach or breaches, either individually or in the aggregate,
will have, or are reasonably likely to have, a material adverse effect
on the business, results of operations, financial condition or
prospects of Access Wireless (an "Access Wireless / Alaris Material
Adverse Effect"), unless, in the case of a breach of covenant, such
failure to perform has been caused by a breach of this Agreement by
Saratoga.
d) By Alaris if Saratoga shall have breached any of its representations
and warranties and such breach or breaches, either individually or in
the aggregate, will have, or are reasonably likely to have, a Saratoga
Material Adverse Effect, or if a Saratoga shall have breached in any
material respect any of its covenants contained herein, unless, in the
case of a breach of any covenant, such failure to perform has been
caused by a breach of this Agreement by Alaris;
8.02 Effect of Termination. In the event of the termination and abandonment of
this Agreement pursuant to Section 8.01, this Agreement, except for the
obligations of the parties pursuant to this Section 8.02 and the provisions
of Section 6.06, shall forthwith become void and have no effect, without
any liability on the part of any party or its directors, officers or
shareholders; provided that nothing in this Section 8.02 shall relieve any
party to this Agreement of liability for breach of this Agreement.
19
<PAGE>
8.03 Amendment. To the extent permitted by applicable law, this Agreement may be
amended by the parties, at any time before or after approval of this
Agreement and the share exchange by the shareholders of Access Wireless
but, after any such shareholder approval, no amendment shall be made that
by law requires further approval of such shareholders without the approval
of such shareholders. This Agreement may not be amended except by an
instrument in writing signed on behalf of all the parties.
8.04 Extension; Waiver. At any time prior to the Effective Time, the parties
hereto may (i) extend the time for the performance of any of the
obligations or other acts of the other parties hereto, (ii) waive any
inaccuracies in the representations and warranties contained herein by any
other applicable party or in any document, certificate or writing delivered
pursuant hereto by any other applicable party, or (iii) subject to the
terms hereof, waive compliance with any of the agreements or conditions of
the other parties contained herein. Any agreement on the part of any party
to any such extension or waiver shall be valid only if set forth in an
instrument in writing signed on behalf of such party. The failure of a
party to this Agreement to assert any of its rights under this Agreement
shall not constitute a waiver of those rights.
8.05 Procedure for The Effective Time, Termination, Amendment, Extension or
Waiver. A termination of this Agreement pursuant to Section 8.01, an
amendment of this Agreement pursuant to Section 8.03 or an extension or
waiver pursuant to Section 8.04 shall, in order to be effective, require
(a) in the case of Saratoga, action by its Board of Directors or the duly
authorized designee of its Board of Directors and (b) in the case of
Alaris, action by its Board of Directors.
ARTICLE IX
MISCELLANEOUS
9.01 Nonsurvival of Representations, Warranties and Agreements. All
representations, warranties and agreements in this Agreement or in any
instrument delivered pursuant to this Agreement shall be deemed to be only
conditions to the Effective Time and shall not survive the Effective Time,
provided, however, that the representations and warranties contained in
this Article IX shall survive the Effective Time.
9.02 Assignment, Binding Effect; Benefit; Entire Agreement. Neither this
Agreement nor any of the rights, interests or obligations hereunder shall
be assigned by any of the parties hereto (whether by operation of law or
otherwise) without the prior written consent of the other parties except
that Saratoga shall have the right, at its sole discretion, to assign and
transfer this Agreement to a subsidiary company wholly owned by Saratoga.
Subject to the preceding sentence, this Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors and assigns. Notwithstanding anything contained in this
20
<PAGE>
Agreement to the contrary, nothing in this Agreement, expressed or implied,
is intended to confer on any person other than the parties hereto or their
respective heirs, successors, executors, administrators and assigns, any
rights, remedies, obligations or liabilities under or by reason of this
Agreement. This Agreement and any documents delivered by the parties in
connection herewith constitute the entire agreement among the parties with
respect to the subject matter hereof and supersede all prior agreements and
understandings (oral and written) among the parties with respect thereto.
No addition to or modification of any provision of this Agreement shall be
binding upon any party hereto unless made in writing and signed by all
parties hereto.
9.03 Severability. Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of
this Agreement or otherwise affecting the validity or enforceability of any
of the terms or provisions of this Agreement in any other jurisdiction. If
any provision, clause, section or part of this Agreement is so broad as to
be unenforceable, the provision, clause, section or part shall be
interpreted to be only so broad as is enforceable, and all other
provisions, clauses, sections or parts of this Agreement which can be
effective without such unenforceable provision, clause, section or part
shall, nevertheless, remain in full force and effect.
9.04 Notices. Any notice required to be given hereunder shall be sufficient if
in writing, and sent by facsimile transmission and by courier service (with
proof of service), hand delivery or certified or registered mail (return
receipt requested and first-class postage prepaid), addressed as follows:
If to Alaris, to
Alaris Inc.
Tom Langeland, CEO
601 University Avenue
Suite 125
Sacramento, CA 95895
1-800-549-7400
FAX 916-568-0168
With a copy to:
Randolph DelFranco
Holland & Knight LLP
195 Broadway
New York, NY 10007
FAX 212-385-9010
21
<PAGE>
If to Saratoga, to
Saratoga International Holdings Corp.
8756 122nd Avenue NE
Kirkland, WA 98033
Attn: Pat Charles, President
Fax: 425-827-2216
With a copy to:
Robert C. Laskowski
Attorney At Law
S.W. Fifth Avenue, Suite 1300
Portland, OR 97204-1151
Fax: 503-226-6278
or to such other address as any party shall specify by written notice so
given, and such notice shall be deemed to have been delivered as of the
date it is telecommunicated, personally delivered or mailed.
9.05 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to its
rules of conflict of laws.
9.06 Arbitration. Any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, shall be settled under the Arbitration
Rules of the State of New York.
9.07 Descriptive Headings. The descriptive headings herein are inserted for
convenience of reference only and are not intended to be part of or to
affect the meaning or interpretation of this Agreement.
9.08 Counterparts and Facsimile Signatures. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed
and delivered shall be an original, but all such counterparts shall
together constitute one and the same instrument. Each counterpart may
consist of a number of copies of this Agreement each of which may be signed
by less than all of the parties hereto, but together all such copies shall
constitute one and the same instrument. Execution and delivery of this
Agreement by exchange of facsimile copies bearing the facsimile signature
of a party hereto shall constitute a valid and binding execution and
delivery of this Agreement by such party. Such facsimile copies shall
constitute enforceable original documents.
9.09 Certain Definitions. For purposes of this Agreement, the following terms
shall have the meanings ascribed to them below:
a) "Affiliate" of a person means a person that directly or indirectly,
through one or more intermediaries, controls, is controlled by, or is
under common control with, the first-mentioned person.
b) "Control" (including the terms "controlling", "controlled by" and
"under common control with") means the possession, direct or indirect,
of the power to direct or cause the direction of the management and
policies of a person, whether through ownership of voting securities,
by contract, or otherwise.
c) "Person" means a natural person, company, corporation, partnership,
joint venture, association, trust, unincorporated organization or
other entity.
22
<PAGE>
d) "Subsidiary" of any person means a person in which such first
referenced person owns directly or indirectly an amount of the voting
securities, other voting ownership or voting partnership interest
which is sufficient to elect at least a majority of its Board of
directors or other governing body (or, if there are no such voting
interest, owns directly or indirectly 50% or more of the equity
interest).
9.10 Waivers. Except as provided in this Agreement, no action taken pursuant to
this Agreement, including, without limitation, any investigation by or on
behalf of any party, shall be deemed to constitute a waiver by the party
taking such action of compliance with any representations, warranties,
covenants or agreements contained in the Agreement. The waiver by any party
hereto to a breach of any provision hereunder shall not operate or be
construed as a waiver of any prior or subsequent breach of the same or any
other provision hereunder.
9.11 U.S. Funds. All monetary amounts set forth herein are stated in currency of
the Untied States of America unless otherwise specifically stated.
9.12 Incorporation of Exhibits. All Exhibits and annexes attached hereto and
referred to herein are hereby incorporated herein and made a part hereof
for all purposes as if fully set forth herein.
9.13 Interpretation. In this Agreement, unless the context otherwise requires,
words describing the singular number shall include the plural and vice
versa, words denoting any gender shall include all genders and words
denoting natural persons shall include corporations and partnerships and
vice versa
23
<PAGE>
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed
on its behalf by its respective officers thereunto duly authorized, all as of
the day and year first above written.
Saratoga International Holdings Corp.
By:/s/ Patrick F. Charles
-----------------------------------------
Patrick F. Charles, President and CEO
ALARIS INC.
By:/s/ Tom Langeland
-----------------------------------------
ACCESS WORLD WIRELESS SERVICES INC.
/s/ Tom Langeland
By:-----------------------------------------
24
<PAGE>
EXHIBITS TO AGREEMENT FOR SALE AND PURCHASE OF STOCK
AND THE NOTE Between Saratoga International
Holdings Corp.and Alaris, Inc.
Exhibit 1.05 Sample Registration Rights Agreement
Exhibit 1.05 (b) Registration Rights Agreement between Saratoga and Alaris
Exhibit 3.02 Saratoga International Holdings Corp. Form 10-SB as amended
and as filed with the Securities and Exchange Commission on
June 6, 2000
Exhibit 4.06 List of Access Wireless' Liabilities
Exhibit 4.06 (a) List of Access Wireless' Assets
Exhibit 4.07 Access Wireless Material Contracts
Exhibit 7.01 (c) Consent of Access Wireless' Shareholders
Exhibit 7.01(c) (1) Resolution of the Board of Directors of Alaris, Inc.
Exhibit 7.01 (c)(2) Resolution of the Board of Directors of Saratoga
International Holdings Corp.
Exhibit 7.01 (d) Legal Opinion of Access Wireless' General Counsel
Exhibit 7.01(d)(1) Legal Opinion of Alaris' General Counsel
Exhibit 7.01 (d)(2) Legal Opinion of Saratoga's General Counsel
25
<PAGE>
