EXHIBIT 99.1
SHARE EXCHANGE AGREEMENT
THIS SHARE EXCHANGE AGREEMENT (the "AGREEMENT") effective as of August 15,
2002, by and among ALTRIMEGA HEALTH CORPORATION, a Nevada corporation
("ALTRIMEGA"), CREATIVE HOLDINGS, INC., a South Carolina corporation (the
"COMPANY"), and the individuals listed on SCHEDULE A attached hereto
(individually, a "SHAREHOLDER" and collectively, the "SHAREHOLDERS").
RECITALS:
A. On August 15, 2002, Altrimega, Altrimega Acquisition Co., a Nevada
corporation ("ACQUISITION CO."), the Company and the shareholders entered into a
Merger Agreement (the "MERGER AGREEMENT").
B. Pursuant to the Merger Agreement, the Company was to be merged with
and into Acquisition Co. (the "MERGER"), which was to be the surviving
corporation and continue its corporate existence under the laws of the State of
Nevada as a wholly-owned subsidiary of Altrimega.
C. Altrimega, the Company and the Shareholders desire to amend the
Merger Agreement and restructure the Merger into a stock exchange transaction,
whereby the Company shall become a wholly-owned subsidiary of Altrimega.
D. The Shareholders own all of the outstanding capital stock of the
Company. The authorized capital stock of the Company consists of 20,000,000
shares of common stock, par value $0.001 per share, 3,200,000 of which are
issued and outstanding (the "COMPANY COMMON STOCK").
E. The Shareholders desire to transfer and exchange the Company Common
Stock for newly-issued shares of common stock, par value $0.001 per share, of
Altrimega (the "ALTRIMEGA COMMON STOCK") and newly-issued shares of Series A
Convertible Preferred Stock, par value $0.001 per share, of Altrimega (the
"ALTRIMEGA SERIES A CONVERTIBLE PREFERRED STOCK"), on the terms and conditions
set forth herein and Altrimega desires to consummate such transfer and exchange
pursuant to the terms and conditions set forth herein.
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual premises herein set forth
and certain other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as follows:
I. THE SHARE EXCHANGE AND RELATED TRANSACTIONS.
A. SHARE EXCHANGE. In accordance with the provisions of this Agreement,
the Nevada Revised Statutes (the "NRS") and other applicable law, on the Closing
Date (as defined below), the Shareholders shall exchange with, and deliver to,
Altrimega, the Company Common Stock, and in exchange therefore, Altrimega shall
issue, and deliver, to the Shareholders in the denominations set forth opposite
each Shareholder's name on SCHEDULE A attached hereto, newly-issued shares of
Altrimega Common Stock and Altrimega Series A Convertible Preferred Stock (the
exchange transaction is referred to herein as the "SHARE EXCHANGE"). The total
number of shares of Altrimega Common Stock to be issued to the Shareholders
shall be equal to twenty million (20,000,000) shares and the total number of
shares of Altrimega Series A Convertible Preferred Stock to be issued to the
Shareholders shall be equal to one million (1,000,000) shares. The shares of
Altrimega Common Stock and the shares of Altrimega Series A Preferred Stock to
be issued as part of the Share Exchange are referred to herein as the "ALTRIMEGA
SHARES," also sometimes referred to hereinafter as the "EXCHANGE CONSIDERATION."
Each share of Altrimega Series A Preferred Stock shall be convertible into three
hundred (300) shares of Altrimega Common Stock.
EXHIBIT 99.1-1
B. CLOSING. The parties to this Agreement shall file Articles of
Exchange (as defined below) pursuant to the NRS, cause the Share Exchange to
become effective and consummate the other transactions contemplated by this
Agreement (the "CLOSING") no later than October 15, 2002; provided, in no event
shall the Closing occur prior to the satisfaction of the conditions precedent
set forth in Sections 6, 7 and 8 hereof. The date of the Closing is referred to
herein as the "CLOSING DATE." The Closing shall take place at the offices of
counsel to Altrimega, or at such other place as may be mutually agreed upon by
Altrimega and the Shareholders. At the Closing, (i) the Shareholders shall
deliver to Altrimega the original stock certificates representing the Company
Common Stock, together with stock powers duly executed in blank; and (ii) the
Altrimega shall deliver to the Shareholders stock certificates representing the
Altrimega Shares.
C. PLAN OF EXCHANGE; ARTICLES OF SHARE EXCHANGE. The parties to this
Agreement shall cause Altrimega and the Company to enter into a plan of exchange
on the date hereof, a copy of which is attached hereto as EXHIBIT "B" (the "PLAN
OF EXCHANGE"), and, at the Closing, to execute the Articles of Exchange in the
form attached hereof as EXHIBIT "C" (the "ARTICLES OF EXCHANGE"). The Articles
of Exchange shall be filed with the Secretary of State of Nevada on the Closing
Date in accordance with the NRS.
D. APPROVAL OF SHARE EXCHANGE. By his execution of this Agreement, each
Shareholder hereby ratifies, approves and adopts the Share Exchange and the Plan
of Exchange for all purposes under the NRS. On or before the execution of this
Agreement, the respective Boards of Directors of Altrimega and the Company shall
have approved this Agreement, the Plan of Exchange and the transactions
contemplated hereby and thereby.
II. ADDITIONAL AGREEMENTS.
A. ACCESS AND INSPECTION, ETC. The Company and the Shareholders have
allowed and shall allow Altrimega and its authorized representatives full access
during normal business hours from and after the date hereof and prior to the
Closing Date to all of the properties, books, contracts, commitments and records
of the Company for the purpose of making such investigations as Altrimega may
reasonably request in connection with the transactions contemplated hereby, and
shall cause the Company to furnish Altrimega such information concerning its
affairs as Altrimega may reasonably request. The Company and the Shareholders
have caused and shall cause the personnel of the Company to assist Altrimega in
making such investigation and shall use their best efforts to cause the counsel,
accountants, and other non-employee representatives of the Company to be
reasonably available to Altrimega for such purposes. The Shareholders shall
cause the Company to comply with all obligations of the Company under this
Agreement.
B. CONFIDENTIAL TREATMENT OF INFORMATION. From and after the date
hereof, the parties hereto shall and shall cause their representatives to hold
in confidence this Agreement (including the Exhibits and Schedules hereto), all
matters relating hereto and all data and information obtained with respect to
the other parties or their business, except such data or information as is
published or is a matter of public record, or as compelled by legal process. In
the event this Agreement is terminated pursuant to Section 10 hereof, each party
shall promptly return to the other(s) any statements, documents, schedules,
exhibits or other written information obtained from them in connection with this
Agreement, and shall not retain any copies thereof.
C. PUBLIC ANNOUNCEMENTS. After the date hereof and prior to the
Closing, none of the parties hereto shall make any press release, statement to
employees or other disclosure of this Agreement or the transactions contemplated
hereby without the prior written consent of the other parties, except as may be
required by law. Neither the Company nor the Shareholders shall make any such
disclosure unless Altrimega shall have received prior notice of the contemplated
disclosure and has had adequate time and opportunity to comment on such
disclosure, which shall be satisfactory in form and content to Altrimega and its
counsel.
D. SECURITIES LAW COMPLIANCE. The issuance of the Altrimega Shares to
the Shareholders hereunder shall not be registered under the Securities Act of
1933, as amended, by reason of the exemption provided by Section 4(2) thereof,
and such shares may not be further transferred unless such transfer is
registered under applicable securities laws or, in the opinion of Altrimega's
counsel, such transfer complies with an exemption from such registration. All
certificates evidencing the Altrimega Shares to be issued to the Shareholders
shall be legended to reflect the foregoing restriction.
EXHIBIT 99.1-2
E. REGISTRATION. Altrimega shall prepare and file with the United
States Securities and Exchange Commission (the "SEC") a registration statement
on Form S-1, SB-2 or on such other form as available, registering a portion of
the Altrimega Shares, which shall be equivalent to 32,750,000 shares of
Altrimega Common Stock. Altrimega shall use its best efforts to cause such
registration statement to be declared effective by the SEC as soon as
practicable.
F. BEST EFFORTS. Subject to the terms and conditions provided in this
Agreement, each of the parties shall use its best efforts in good faith to take
or cause to be taken as promptly as practicable all reasonable actions that are
within its power to cause to be fulfilled those conditions precedent to its
obligations or the obligations of the other parties to consummate the
transactions contemplated by this Agreement that are dependent upon its actions.
G. FURTHER ASSURANCES. The parties shall deliver any and all other
instruments or documents required to be delivered pursuant to, or necessary or
proper in order to give effect to, the provisions of this Agreement, including,
without limitation, all necessary stock powers and such other instruments of
transfer as may be necessary or desirable to transfer ownership of the Company
Common Stock and to consummate the transactions contemplated by this Agreement.
H. NONCOMPETITION.
1. NON-INTERFERENCE. From and after the date hereof, no
Shareholder shall induce or solicit any employee of Altrimega or any person
doing business with Altrimega or to terminate his or her employment or business
relationship with Altrimega or otherwise interfere with any such relationship.
2. CONFIDENTIALITY. The Shareholders agree and acknowledge that,
by reason of the nature of the Shareholders' ownership interest in Altrimega,
each Shareholder will have or may have access to and become informed of
confidential and secret information which is a competitive asset of Altrimega
("CONFIDENTIAL INFORMATION"), including, without limitation, technology, any
lists of customers, financial statistics, research data or any other statistics
and plans contained in profit plans, capital plans, critical issue plans,
strategic plans or marketing or operation plans or other trade secrets of
Altrimega and any of the foregoing which belong to any person or company but to
which the Shareholders have had access by reason of their relationship with
Altrimega. The Shareholders agree faithfully to keep in strict confidence, and
not, either directly or indirectly, to make known, divulge, reveal, furnish,
make available or use any such Confidential Information. The Shareholders
acknowledge that all manuals, instruction books, price lists, information and
records and other information and aids relating to Altrimega's business, and any
and all other documents containing Confidential Information furnished to the
Shareholders by Altrimega or otherwise acquired or developed by the
Shareholders, shall at all times be the property of Altrimega. Upon the
termination of this Agreement, each Shareholder shall return to Altrimega any
such property or documents which are in their possession, custody or control,
but the Shareholders' obligation of confidentiality shall survive such
termination and unless any such Confidential Information shall have become,
through no fault of the Shareholder, generally known to the trade. The
obligations of the Shareholder under this subsection are in addition to, and not
in limitation or preemption of, all other obligations of confidentiality which
the Shareholder may have to Altrimega under general legal or equitable
principles. Notwithstanding the above, however, Altrimega acknowledges that each
Shareholder may have extensive experience in the general industry in which
Altrimega operates, and these restrictions are not intended to prevent a
Shareholder from using his knowledge of the industry. These restrictions only
apply to confidential information which is owned by Altrimega, or was learned by
a Shareholder as a shareholder of Altrimega.
3. REMEDIES. It is expressly agreed by the Shareholders and
Altrimega that the provisions in this Section 2 are reasonable for purposes of
preserving for Altrimega its business, goodwill and Confidential Information. It
is also agreed that if any provision is found by a court having jurisdiction to
be unreasonable because of scope, area or time, then that provision shall be
amended to correspond in scope, area and time to that considered reasonable by a
court and as amended shall be enforced and the remaining provisions shall remain
effective. In the event any breach of these provisions by any Shareholder, the
parties recognize and acknowledge that a remedy at law will be inadequate and
Altrimega may suffer irreparable injury. The Shareholders consent to injunctive
and other appropriate equitable relief without the posting of a bond upon the
institution of proceedings therefor by Altrimega in order to protect Altrimega's
rights. Such relief shall be in addition to any other relief to which Altrimega
may be entitled at law, in equity, or under any other agreement between each
EXHIBIT 99.1-3
Shareholder and Altrimega. The provisions of this Section 2.8 (including the
subsections) shall survive the termination of this Agreement.
I. CERTAIN TAX MATTERS.
i. SECTION 338(H)(10) ELECTION. The Company and the
Shareholders will join with Altrimega in making an election under CODE
ss.338(h)(10) of the Internal Revenue Code of 1986, as amended (the "Code") (and
any corresponding election under state, local, and foreign tax law) with respect
to the Share Exchange (a "SECTION 338(H)(10) ELECTION").
ii. ALLOCATION OF SHARE EXCHANGE CONSIDERATION. Altrimega
and the Shareholders agree that the Exchange Consideration and the liabilities
of the Company (plus other relevant items) will be allocated to the assets of
the Company for all purposes (including tax and financial accounting) in a
manner consistent with the fair market values set forth on Schedule 2.9 hereto.
Altrimega, the Company and the Shareholders shall file all tax returns
(including amended returns and claims for refund) and information reports in a
manner consistent with such values.)
iii. TAX PERIODS ENDING ON OR BEFORE THE CLOSING DATE.
Altrimega shall prepare or cause to be prepared and filed or cause to be filed
all tax returns for the Company for all periods ending on or prior to the
Closing Date which are filed after the Closing Date. To the extent permitted by
applicable law, the Shareholders shall include any income, gain, loss, deduction
or other tax items for such periods on their tax returns in a manner consistent
with the Schedule K-1s furnished by the Company to the Shareholders for such
periods. The Shareholders shall reimburse Altrimega for any taxes of the Company
with respect to such period within fifteen (15) days after payment by Altrimega
or the Company.
iv. COOPERATION ON TAX MATTERS.
(1) Altrimega, the Company and the Shareholders
shall cooperate fully, as and to the extent reasonably requested by the other
party, in connection with the filing of tax returns pursuant to this Section 2.9
and any audit, litigation or other proceeding with respect to taxes. Such
cooperation shall include the retention and (upon the other party's request) the
provision of records and information which are reasonably relevant to any such
audit, litigation or other proceeding and making employees available on a
mutually convenient basis to provide additional information and explanation of
any material provided hereunder. The Company and the Shareholders agree (A) to
retain all books and records with respect to tax matters pertinent to the
Company relating to any taxable period beginning before the Closing Date until
the expiration of the statute of limitations (and, to the extent notified by
Altrimega or any Shareholder, any extensions thereof) of the respective taxable
periods, and to abide by all record retention agreements entered into with any
taxing authority, and (B) to give the other party reasonable written notice
prior to transferring, destroying or discarding any such books and records and,
if the other party so requests, the Company or any Shareholder, as the case may
be, shall allow the other party to take possession of such books and records.
(2) Altrimega and the Shareholders further agree,
upon request, to use their best efforts to obtain any certificate or other
document from any governmental authority or any other person as may be necessary
to mitigate, reduce or eliminate any tax that could be imposed (including, but
not limited to, with respect to the transactions contemplated hereby).
J. RELEASE OF CLAIMS BY EACH SHAREHOLDER. Effective as of the Closing
Date, and except for any obligations arising out of this Agreement, each
Shareholder, and his successors, predecessors, assigns, agents, advisors, legal
representatives, partners and all persons acting by, through or under him,
hereby release the Company and each of its successors, predecessors, assigns,
agents, advisors, officers, directors, employees, legal representatives,
partners and all persons acting by, through or under each of them, from any and
all claims, obligations, causes of action, actions, suits, contracts,
controversies, agreements, promises, damages, demands, costs, attorneys' fees
and liabilities of any nature whatsoever from the beginning of time up to and
including the Closing Date, in law or at equity, whether known now or on the
Closing Date, anticipated or unanticipated, suspected or claimed, fixed or
contingent, liquidated or unliquidated, arising out of, in connection with or
relating to any matter, cause or thing whatsoever.
EXHIBIT 99.1-4
K. NO-SHOP. From the date hereof until the termination of this
Agreement, neither the Company nor any Shareholder shall, directly or
indirectly, make, solicit, initiate or encourage submission of proposals or
offers from any persons (including any of their employees or officers) relating
to an ACQUISITION PROPOSAL. As used herein, "Acquisition Proposal" means any
proposal or offer involving a liquidation, dissolution, recapitalization, Share
Exchange, consolidation or acquisition or purchase of all or substantially all
of the assets of, or equity interest in, the Company or other similar
transaction or business combination involving the Company. Each of the Company
and each Shareholder shall immediately cease and cause to be terminated all
discussions or negotiations with third parties with respect to any Acquisition
Proposal, if any, exiting on the date hereof.
III. REPRESENTATIONS, COVENANTS AND WARRANTIES OF THE SHAREHOLDERS.
To induce Altrimega and Share Exchange Sub to enter into this Agreement
and to consummate the transactions contemplated hereby, the Company and the
Shareholders jointly and severally represent and warrant to and covenant with
Altrimega and Share Exchange Sub as follows:
A. ORGANIZATION; COMPLIANCE. The Company is a corporation duly
organized, validly existing and in good standing under the laws of South
Carolina. The Company is: (a) entitled to own or lease its properties and to
carry on its business as and in the places where such business is now conducted,
and (b) duly licensed and qualified in all jurisdictions where the character of
the property owned by it or the nature of the business transacted by it makes
such license or qualification necessary, except where the failure to do so would
not result in a material adverse effect on the Company. Schedule 3.1 lists all
locations where the Company has an office or place of business and the nature of
the ownership interest in such property (fee, lease, or other).
B. CAPITALIZATION AND RELATED MATTERS.
i. The Company has an authorized capital consisting of
20,000,000 shares of common stock, $.001 par value per share, 3,200,000 of which
are issued and outstanding at the date hereof. All shares of Company Common
Stock are duly and validly issued, fully paid and nonassessable. No shares of
Company Common Stock (i) were issued in violation of the preemptive rights of
any shareholder, or (ii) are held as treasury stock.
ii. There are not outstanding any securities convertible
into capital stock of the Company nor any rights to subscribe for or to
purchase, or any options for the purchase of, or any agreements providing for
the issuance (contingent or otherwise) of, or any calls, commitments or claims
of any character relating to, such capital stock or securities convertible into
such capital stock. The Company: (i) is not subject to any obligation
(contingent or otherwise) to repurchase or otherwise acquire or retire any of
its capital stock; or (ii) has no liability for dividends or other distributions
declared or accrued, but unpaid, with respect to any capital stock.
iii. The Shareholders are, and will be at Closing, the
record and beneficial owner of three million two hundred thousand (3,200,000)
shares of Company Common Stock, free and clear of all claims, liens, options,
agreements, restrictions, and encumbrances whatsoever and no Shareholder is a
not party to any agreement, understanding or arrangement, direct or indirect,
relating to the Company Common Stock, including, without limitation, agreements,
understandings or arrangements regarding voting or sale of such stock.
C. SUBSIDIARIES. The Company owns (a) no shares of capital stock of any
other corporation, including any joint stock company, and (b) no other
proprietary interest in any company, partnership, trust or other entity,
including any limited liability company.
D. EXECUTION; NO INCONSISTENT AGREEMENTS; ETC.
i. This Agreement is a valid and binding agreement of
the Company and the Shareholders, enforceable in accordance with its terms,
except as such enforcement may be limited by bankruptcy or similar laws
affecting the enforcement of creditors' rights generally, and the availability
EXHIBIT 99.1-5
of equitable remedies. The Company and the Shareholders have the absolute and
unrestricted right, power, authority, and capacity to execute and deliver this
Agreement and the documents to be delivered by them in connection with the
Closing and to perform their obligations under this Agreement.
ii. Except as set forth in Schedule 3.4, the execution
and delivery of this Agreement by the Company and the Shareholders does not, and
the consummation of the transactions contemplated hereby will not, constitute a
breach or violation of the charter or bylaws of the Company, or a default under
any of the terms, conditions or provisions of (or an act or omission that would
give rise to any right of termination, cancellation or acceleration under) any
note, bond, mortgage, lease, indenture, agreement or obligation to which the
Company or any Shareholder is a party, pursuant to which the Company or any
Shareholder otherwise receives benefits, or to which any of the properties of
the Company or any Shareholder is subject, or violate any judgment, order,
decree, statute or regulation applicable to the Company or any Shareholder or by
which any of them may be subject.
E. CORPORATE RECORDS. The statutory records, including the stock
register and minute books of the Company, fully reflect all issuances, transfers
and redemptions of its capital stock, currently show and will correctly show the
total number of shares of its capital stock issued and outstanding on the date
hereof and on the Closing Date, the charter or other organizational documents
and all amendments thereto, the bylaws as amended and currently in force. To the
knowledge of the Shareholders, the books of account, minute books, stock record,
books, and other records of the Company, all of which have been made available
to Altrimega, are complete and correct and have been maintained in accordance
with sound business practices. The minute books of the Company contain accurate
and complete records of all meetings held of, and corporate action taken by, the
Shareholders, the Board of Directors, and committees of the Boards of Directors
of the Company, and no meeting of any such Shareholders, Board of Directors, or
committee has been held for which minutes have not been prepared and are not
contained in such minute books. At the Closing, all of those books and records
will be in the possession of the Company.
F. FINANCIAL STATEMENTS.
i. The Company and the Shareholders have delivered to
Altrimega the unaudited balance sheet of the Company as of July 31, 2002, (the
"BALANCE SHEET") and the related statements of income, shareholders' equity and
cash flows of the Company for the period ended July 31, 2002. All the foregoing
financial statements, and any financial statements delivered pursuant to Section
3.6(c) below, are referred to herein collectively as the "COMPANY FINANCIAL
STATEMENTS."
ii. The Company Financial Statements have been and will
be prepared in accordance with GAAP throughout the periods involved, subject, in
the case of interim financial statements, to normal recurring year-end
adjustments (the effect of which will not, individually or in the aggregate, be
materially adverse) and the absence of notes (that, if presented, would not
differ materially from those included in the Balance Sheet), applied on a
consistent basis, and fairly reflect and will reflect in all material respects
the financial condition of the Company as at the dates thereof and the results
of the operations of the Company for the periods then ended, and are true and
complete and are consistent with the books and records of the Company.
iii. Until Closing, the Company will furnish to Altrimega
unaudited interim financial statements of the Company for each month subsequent
to July 31, 2002 as soon as practicable but in any event within thirty (30) days
after the close of any such month.
G. LIABILITIES. The Company has no debt, liability or obligation of any
kind, whether accrued, absolute, contingent or otherwise, except: (a) those
reflected on the Balance Sheet, including the notes thereto, and (b) liabilities
incurred in the ordinary course of business since incorporating in June, 2002,
none of which have had or will have a material adverse effect on the financial
condition of the Company.
H. ABSENCE OF CHANGES. Except as described in Schedule 3.8, from July
31, 2002 to the date of this Agreement:
i. there has not been any adverse change in the
business, assets, liabilities, results of operations or financial condition of
EXHIBIT 99.1-6
the Company or in its relationships with suppliers, customers, employees,
lessors or others, other than changes in the ordinary course of business, none
of which, singularly or in the aggregate, have had or will have a material
adverse effect on the business, properties or financial condition of the
Company;
ii. there has not been any: (i) change in the Company's
authorized or issued capital stock, retirement, or other acquisition by the
Company of any shares of any such capital stock; (ii) a declaration or payment
of any dividend or other distribution or payment in respect of shares of capital
stock, except as set forth on Schedule 3.28; (iii) amendment to the Articles of
Incorporation or Bylaws of the Company; (iv) increase by the Company of any
bonuses, salaries, or other compensation to any shareholder, director, officer,
or (except in the ordinary course of business) employee or entry into any
employment, severance, or similar agreement with any director, officer, or
employee; (v) adoption of, or increase in the payments to or benefits under, any
profit sharing, bonus, deferred compensation, savings, insurance, pension,
retirement, or other employee benefit plan for or with any employees of the
Company; (vi) sale (other than sales of inventory in the ordinary course of
business), lease, or other disposition of any asset or property of the Company
or mortgage, pledge, or imposition of any lien or other encumbrance on any
material asset or property of the Company; (vii) cancellation or waiver of any
claims or rights with a value to the Company in excess of $10,000; (viii)
material change in the accounting methods used by the Company; or (ix)
agreement, whether oral or written, by the Company to do any of the foregoing;
and
iii. the Company has complied with the covenants and
restrictions set forth in Section 5 to the same extent as if this Agreement had
been executed on, and had been in effect since, July 31, 2002.
I. TITLE TO PROPERTIES. The Company has good and marketable title to
all of its properties and assets, real and personal, including, but not limited
to, those reflected in the Balance Sheet (except as since sold or otherwise
disposed of in the ordinary course of business, or as expressly provided for in
this Agreement), free and clear of all encumbrances, liens or charges of any
kind or character except: (a) those securing liabilities of the Company incurred
in the ordinary course (with respect to which no default exists); (b) liens of
2002 real estate and personal property taxes; and (c) imperfections of title and
encumbrances, if any, which, in the aggregate (i) are not substantial in amount;
(ii) do not detract from the value of the property subject thereto or impair the
operations of the Company; and (iii) do not have a material adverse effect on
the business, properties or assets of the Company.
J. COMPLIANCE WITH LAW. The business and activities of the Company has
at all times been conducted in accordance with its Articles of Incorporation and
Bylaws and any applicable law, regulation, ordinance, order, License (as defined
below), permit, rule, injunction or other restriction or ruling of any court or
administrative or governmental agency, ministry, or body, except where the
failure to do so would not result in a material adverse effect on the Company.
K. TAXES. The Company has duly filed all federal, state, and material
local and foreign tax returns and reports, and all returns and reports of all
other governmental units having jurisdiction with respect to taxes imposed on it
or on its income, properties, sales, franchises, operations or employee benefit
plans or trusts, all such returns were complete and accurate when filed, and all
taxes and assessments payable by the Company have been paid to the extent that
such taxes have become due. The Company has withheld proper and accurate amounts
from its employees for all periods in full compliance with the tax withholding
provisions of applicable foreign, federal, state and local tax laws. There are
no waivers or agreements by the Company for the extension of time for the
assessment of any taxes. There are not now any examinations of the income tax
returns of the Company pending, or any proposed deficiencies or assessments
against the Company of additional taxes of any kind.
L. REAL PROPERTIES. Except as listed in Schedule 3.12, the Company's
interest in the Barefoot Properties (located in Myrtle Beach, South Carolina) is
free and clear of all encumbrances.
M. LEASES OF REAL PROPERTY. All leases pursuant to which the Company is
a lessee of any real property (the "LEASES") are listed in Schedule 3.13 and are
valid and enforceable in accordance with their terms. There is not under any of
such Leases any material default or any claimed material default by the Company
or any event of default or event which with notice or lapse of time, or both,
would constitute a material default by the Company and in respect to which the
Company has not taken adequate steps to prevent a default on its part from
occurring. The copies of the Leases heretofore furnished to Altrimega are true,
correct and complete, and such Leases have not been modified in any respect
since the date they were so furnished, and are in full force and effect in
EXHIBIT 99.1-7
accordance with their terms. The Company is lawfully in possession of all real
properties of which they are a lessee (the "LEASED PROPERTIES").
N. CONTINGENCIES. Except as disclosed on Schedule 3.14, there are no
actions, suits, claims or proceedings pending, or to the knowledge of the
Shareholders threatened against, by or affecting, the Company in any court or
before any arbitrator or governmental agency that may have a material adverse
effect on the Company or which could materially and adversely affect the right
or ability of any Shareholder to consummate the transactions contemplated
hereby. To the knowledge of the Shareholders, there is no valid basis upon which
any such action, suit, claim, or proceeding may be commenced or asserted against
the Company. There are no unsatisfied judgments against the Company and no
consent decrees or similar agreements to which the Company is subject and which
could have a material adverse effect on the Company.
O. INTELLECTUAL PROPERTY RIGHTS. The Company has: (a) the exclusive
right to use the name Creative Holdings, Inc., and the use of such name does not
conflict with or infringe upon the rights of any other person, and (b) made all
material filings and publications required to register and perfect such
exclusive right. The Company is not, and will not be, subject to any liability,
direct or indirect, for infringement damages, royalties, or otherwise, by reason
of (a) the use of the name "Creative Holdings" in or outside the United States
or (b) the business operations of the Company, at any time prior to the Closing
Date. The Company has not registered the name "Creative Holdings" for trademark
or use rights with any state or federal agency for exclusive use. The state of
South Carolina granted incorporation under the name Creative Holdings, Inc.
P. MATERIAL CONTRACTS. Schedule 3.16 contains a complete list of all
contracts of the Company, which involve consideration in excess of the
equivalent of $10,000 or have a term of one year or more (the "MATERIAL
CONTRACTS"). The Company has delivered to Altrimega a true, correct and complete
copy of each of the written contracts, and a summary of each oral contract,
listed on Schedule 3.16. Except as disclosed in Schedule 3.16: (a) the Company
has performed all material obligations to be performed by it under all such
contracts, and is not in material default thereof, and (b) no condition exists
or has occurred which with the giving of notice or the lapse of time, or both,
would constitute a material default by the Company or accelerate the maturity
of, or otherwise modify, any such contract, and (c) all such contracts are in
full force and effect. No material default by any other party to any of such
contracts is known or claimed by the Company or any Shareholder to exist.
Q. INSURANCE. Schedule 3.17 contains a complete list of all policies of
insurance presently maintained by the Company all of which are, and will be
maintained through the Closing Date, in full force and effect; and all premiums
due thereon have been paid and the Company has not received any notice of
cancellation with respect thereto. The Company has heretofore delivered to
Altrimega or its representatives a true, correct and complete copy of each such
insurance policy.
R. EMPLOYMENT AND LABOR MATTERS. Schedule 3.18 sets forth the name,
position, employment date, and 2001 compensation (base and bonus) of each
employee of the Company who earned $25,000 or more in 2001 or is anticipated to
earn $25,000 or more in 2002. The Company is not a party to any collective
bargaining agreement (whether industry wide or on a company level) or agreement
of any kind with any union or labor organization. There has not been any attempt
by any union or other labor organization to organize the employees of the
Company at any time in the past five (5) years. Except as disclosed in Schedule
3.18, the Company is not a party to or bound by any employment contract,
consulting agreement, deferred compensation agreement, bonus plan, incentive
plan, profit sharing plan, retirement agreement, or other employee compensation
agreement. The Company is not aware that any officer or key employee, or that
any group of key employees, intends to terminate their employment with the
Company, nor does the Company have a present intention to terminate the
employment of any of the foregoing.
S. EMPLOYEE BENEFIT MATTERS.
i. Except as disclosed in Schedule 3.19, the Company
does not provide, nor is it obligated to provide, directly or indirectly, any
benefits for employees other than salaries, sales commissions and bonuses,
including, but not limited to, any pension, profit sharing, stock option,
retirement, bonus, hospitalization, insurance, severance, vacation or other
employee benefits (including any housing or social fund contributions) under any
practice, agreement or understanding.
EXHIBIT 99.1-8
ii. Each employee benefit plan maintained by or on behalf
of the Company or any other party (including any terminated pension plans) which
covers or covered any employees or former employees of the Company
(collectively, the "EMPLOYEE BENEFIT PLAN") is listed in Schedule 3.19. The
Company has delivered to Altrimega true and complete copies of all such plans
and any related documents. With respect to each such plan: (i) no litigation,
administrative or other proceeding or claim is pending, or to the knowledge of
the Shareholders, threatened or anticipated involving such plan; (ii) there are
no outstanding requests for information by participants or beneficiaries of such
plan; and (iii) such plan has been administered in compliance in all material
respects with all applicable laws and regulations.
iii. The Company has timely made payment in full of all
contributions to all of the Employee Benefit Plans which the Company was
obligated to make prior to the date hereof; and there are no contributions
declared or payable by the Company to any Employee Benefit Plan which, as of the
date hereof, has not been paid in full. The Company has no employees at the time
of Share Exchange, nor has it ever had any employees.
T. POSSESSION OF FRANCHISES, LICENSES, ETC. The Company: (a) possess
all material franchises, certificates, licenses, permits and other
authorizations (collectively, the "LICENSES") from governmental authorities,
political subdivisions or regulatory authorities that are necessary for the
ownership, maintenance and operation of its business in the manner presently
conducted; (b) are not in violation of any provisions thereof; and (c) have
maintained and amended, as necessary, all Licenses and duly completed all
filings and notifications in connection therewith.
U. ENVIRONMENTAL MATTERS. Except as disclosed in Schedule 3.21: (i) the
Company is not in violation, in any material respect, of any Environmental Law
(as defined below); (ii) the Company has received all permits and approvals with
respect to emissions into the environment and the proper collection, storage,
transport, distribution or disposal of Wastes (as defined below) and other
materials required for the operation of its business at present operating
levels; and (iii) the Company is not liable or responsible for any material
clean up, fines, liability or expense arising under any Environmental Law, as a
result of the disposal of Wastes or other materials in or on the property of the
Company (whether owned or leased), or in or on any other property, including
property no longer owned, leased or used by the Company. As used herein, (a)
"ENVIRONMENTAL LAWS" means, collectively, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, the Superfund
Amendments and Reauthorization Act of 1986, the Resource Conservation and
Recovery Act, the Toxic Substances Control Act, as amended, the Clean Air Act,
as amended, the Clean Water Act, as amended, any other "Superfund" or
"Superlien" law or any other federal, or applicable state or local statute, law,
ordinance, code, rule, regulation, order or decree (foreign or domestic)
regulating, relating to, or imposing liability or standards of conduct
concerning, Wastes, or the environment; and (b) "Wastes" means and includes any
hazardous, toxic or dangerous waste, liquid, substance or material (including
petroleum products and derivatives), the generation, handling, storage,
disposal, treatment or emission of which is subject to any Environmental Law.
V. INVENTORIES. At Closing, the Company and the Shareholders will
deliver to Altrimega a complete and accurate list, as of a date not more than
five (5) business days prior to the Closing Date, of the products, materials and
supplies and spare parts (the "INVENTORY") then owned by the Company. Except as
otherwise provided on Schedule 3.22, the Inventory, as of the Closing Date: (a)
will represent items of a quality and quantity usable and saleable in the
ordinary course of business at the book value reflected as of the Closing Date,
(b) will be free from defects, (c) will not be obsolete, (d) will conform in all
material respects to customary trade standards for such inventory in the
Company's current markets and (e) will be sold, subject to any applicable
reserves for inventory obsolescence shown on the Company's books and records
(which reserves are adequate and calculated consistent with past practice),
within two hundred forty (240) days of the Closing Date for an amount at least
equal to its book value. There are no express or implied warranty obligations of
the Company which, singularly or in the aggregate, will have a material adverse
effect on the business, properties or financial condition of the Company. As of
closing, the Company has no inventory items.
W. ACCOUNTS RECEIVABLE. On the Closing Date, the Company and the
Shareholders will deliver to Altrimega a complete and accurate list, as of a
date not more than five (5) business days prior to the Closing Date, of the
accounts and notes receivable due to the Company (including, without limitation,
receivables from advances to employees and the Shareholders), which includes an
aging of all accounts and notes receivable showing amounts due in thirty (30)
EXHIBIT 99.1-9
day aging categories (collectively, the "ACCOUNTS RECEIVABLES"). As of the
Closing Date, the Accounts Receivables: (a) will represent valid obligations
arising from sales actually made or services actually performed in the ordinary
course of business; (b) will be current and collectible net of any applicable
reserves shown on the Company's books and records (which reserves are adequate
and calculated consistently with past practice); (c) subject to such reserves,
will be collected in full, without any set-off, within one hundred fifty (150)
days after the Closing Date; and (d) are not and will not be subject to any
contest, claim, defense or right of set-off, other than rebates and returns in
the ordinary course of business. As of closing, the Company has no accounts
receivable.
X. AGREEMENTS AND TRANSACTIONS WITH RELATED PARTIES. Except as disclosed
on Schedule 3.24, and except as disclosed in the Company Financial Statements,
the Company is not a party to any contract, agreement, lease or transaction
with, or any other commitment to, (a) any Shareholder, (b) any person related by
blood, adoption or marriage to any Shareholder, (c) any director or officer of
the Company, (d) any corporation or other entity in which any of the foregoing
parties has, directly or indirectly, at least five percent (5.0%) beneficial
interest in the capital stock or other type of equity interest in such
corporation or other entity, or (e) any partnership in which any such party is a
general partner or a limited partner having a five percent (5%) or more interest
therein (any or all of the foregoing being herein referred to as a "RELATED
PARTY" and, collectively, as the "RELATED PARTIES"). Without limiting the
generality of the foregoing, except as set forth in Schedule 3.24, and except as
disclosed in the Company Financial Statements no Related Party, directly or
indirectly, owns or controls any assets or properties which are used in the
business of the Company.
Y. BUSINESS PRACTICES. Except as disclosed on Schedule 3.25, the Company
has not, at any time, directly or indirectly, made any contributions or payment,
or provided any compensation or benefit of any kind, to any municipal, county,
state, federal or foreign governmental officer or official, or any other person
charged with similar public or quasi-public duties, or any candidate for
political office. The Company's books, accounts and records (including, without
limitation, customer files, product packaging and invoices) accurately describe
and reflect, in all material respects, the nature and amount of the Company's
products, purchases, sales and other transactions. Without limiting the
generality of the foregoing, the Company has not engaged, directly or
indirectly, in: (a) the practice known as "double-invoicing;" or (b) the
incorrect or misleading labeling, marketing or sale of refurbished goods as new
goods or the sale of rebuilt goods as original manufactured equipment.
Z. CONDITION AND SUFFICIENCY OF ASSETS. The buildings and equipment leased
or owned by the Company are generally in good operating condition and repair,
and are adequate for the uses to which they are being put. The buildings and
equipment of the Company are sufficient for the continued conduct of the
Company's business after the Closing in substantially the same manner as
conducted prior to the Closing.
AA. NOT USED.
BB. DIVIDENDS AND OTHER DISTRIBUTIONS. Schedule 3.28 sets forth the dates
and amounts of all dividends and other distributions declared, paid or payable
by the Company to the Shareholders between January 1, 1999 and the date hereof,
which Schedule 3.28 shall be updated as of the Closing Date to set forth all
dividends and other distributions through the Closing Date.
CC. LITIGATION. There is no suit, action or proceeding pending, and no
person has overtly-threatened in a writing delivered to the Company or the
Shareholders to commence any suit, action or proceeding, against or affecting
the Company that would, individually or in the aggregate, have a material
adverse effect on the Company, nor is there any judgment, decree, injunction, or
order of any governmental entity or arbitrator outstanding against, or, to the
knowledge of the Company, pending investigation by any governmental entity
involving, the Company or any Shareholders that individually or in the aggregate
would have a material adverse effect on the Company.
DD. FULL DISCLOSURE. No representation or warranty of the Shareholders
contained in this Agreement, and none of the statements or information
concerning the Company contained in this Agreement and the Schedules, contains
or will contain as of the date hereof and as of the Closing Date any untrue
statement of a material fact nor will such representations, warranties,
covenants or statements taken as a whole omit a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
EXHIBIT 99.1-10
IV. REPRESENTATIONS AND WARRANTIES OF ALTRIMEGA.
To induce the Shareholders to enter into this Agreement and to consummate
the transactions contemplated hereby, Altrimega represents and warrants to and
covenants with the Shareholders as follows:
A. ORGANIZATION. Altrimega is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada. Altrimega
is entitled to own or lease its properties and to carry on its business as and
in the places where such business is now conducted, and Altrimega is duly
licensed and qualified in all jurisdictions where the character of the property
owned by it or the nature of the business transacted by it makes such license or
qualification necessary, except where such failure would not result in a
material adverse effect on Altrimega.
B. CAPITALIZATION AND RELATED MATTERS.
i. Altrimega has authorized capital stock consisting of 50,000,000
shares of common stock, par value $0.001 per share, of which 22,020,000 shares
were issued and outstanding as of the date hereof, and 10,000,000 shares of
preferred stock, none of which are issued. The Altrimega Shares will be, when
issued, duly and validly authorized and fully paid and non-assessable, and will
be issued to the Shareholder free of all encumbrances, claims and liens
whatsoever.
ii. Except as set forth in Schedule 4.2, and except for employee
stock options to purchase shares of the Altrimega's Common Stock, Altrimega does
not have outstanding any securities convertible into capital stock, nor any
rights to subscribe for or to purchase, or any options for the purchase of, or
any agreements providing for the issuance (contingent or otherwise) of, or any
calls, commitments or claims of any character relating to, its capital stock or
securities convertible into its capital stock.
C. EXECUTION; NO INCONSISTENT AGREEMENTS; ETC.
i. Subject to Altrimega's Board of Directors approval contemplated
by Section 7.6 hereof, the execution and delivery of this Agreement and the
performance of the transactions contemplated hereby have been duly and validly
authorized and approved by Altrimega and this Agreement is a valid and binding
agreement of Altrimega, enforceable against Altrimega in accordance with its
terms, except as such enforcement may be limited by bankruptcy or similar laws
affecting the enforcement of creditors' rights generally, and the availability
of equitable remedies.
ii. The execution and delivery of this Agreement by Altrimega does
not, and the consummation of the transactions contemplated hereby will not,
constitute a breach or violation of the charter or bylaws of Altrimega, or a
default under any of the terms, conditions or provisions of (or an act or
omission that would give rise to any right of termination, cancellation or
acceleration under) any material note, bond, mortgage, lease, indenture,
agreement or obligation to which Altrimega or any of its subsidiaries is a
party, pursuant to which any of them otherwise receive benefits, or by which any
of their properties may be bound.
D. FINANCIAL STATEMENTS. Altrimega has delivered to the Company the
consolidated audited balance sheets of Altrimega as of December 31, 2001, the
consolidated unaudited balance sheet as of December 31, 2001, the consolidated
audited statement of income for the two fiscal years ended December 31, 2001,
and the unaudited statement of income for the six (6) months ended June 30, 2002
(collectively, the "ALTRIMEGA FINANCIAL Statements"). The Altrimega Financial
Statements have been prepared in accordance with GAAP, applied on a consistent
basis (except that the unaudited statements do not contain all the disclosures
required by GAAP), and fairly reflect in all material respects the consolidated
financial condition of Altrimega and its subsidiaries as at the dates thereof
and the consolidated results of Altrimega's operations for the periods then
ended. Since June 30, 2002, there has been no material adverse change in the
assets or liabilities, in the business or condition, financial or otherwise, of
Altrimega, or in its results of operations.
E. LIABILITIES. Neither Altrimega nor any of its subsidiaries has any
material debt, liability or obligation of any kind, whether accrued, absolute,
contingent or otherwise, except (a) those reflected on the Altrimega Financial
EXHIBIT 99.1-11
Statements, including the notes thereto, and (b) liabilities incurred in the
ordinary course of business since December 31, 2001, none of which have had or
will have a material adverse affect on the financial condition of Altrimega and
its subsidiaries taken as a whole.
F. CONTINGENCIES. There are no actions, suits, claims or proceedings
pending or, to the knowledge of Altrimega's management, threatened against, by
or affecting Altrimega or any of its subsidiaries in any court or before any
arbitrator or governmental agency which could have a material adverse effect on
Altrimega or its subsidiaries or which could materially and adversely affect the
right or ability of Altrimega to consummate the transactions contemplated
hereby. To the knowledge of Altrimega, there is no valid basis upon which any
such action, suit, claim or proceeding may be commenced or asserted against
Altrimega or its subsidiaries. There are no unsatisfied judgments against
Altrimega and no consent decrees or similar agreements to which Altrimega or its
subsidiaries is subject and which could have a material adverse effect on
Altrimega or its subsidiaries or which could materially and adversely affect the
right or ability of Altrimega to consummate the transactions contemplated
hereby.
G. FULL DISCLOSURE. No representation or warranty of Altrimega contained
in this Agreement, and none of the statements or information concerning
Altrimega contained in this Agreement and the Schedules, contains or will
contain as of the date hereof and as of the Closing Date any untrue statement of
a material fact nor will such representations, warranties, covenants or
statements taken as a whole omit a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
V. CONDUCT OF BUSINESS OF THE COMPANY PENDING CLOSING.
The Company and the Shareholders covenant and agree that between the date
hereof and the Closing Date:
A. BUSINESS IN THE ORDINARY COURSE. Except as set forth in Schedule 5.1,
the business of the Company shall be conducted only in the ordinary course, and
consistent with past practice. Without limiting the generality of the foregoing,
and except as set forth in Schedule 5.1 or as otherwise approved in writing by
Altrimega:
i. the Company shall not enter into any contract, agreement or other
arrangement which would constitute a Material Contract, except for contracts to
sell or supply goods or services to customers in the ordinary course of business
at prices and on terms substantially consistent with the prior operating
practices of the Company;
ii. except for sales of personal property in the ordinary course of
its business, the Company shall not sell, assign, transfer, mortgage, convey,
encumber or otherwise dispose of, or cause the sale, assignment, transfer,
mortgage, conveyance, encumbrance or other disposition of any of the assets or
properties of the Company or any interest therein;
iii. the Company shall not acquire any material assets, except
expenditures made in the ordinary course of business as reasonably necessary to
enable the Company to conduct its normal business operations and to maintain its
normal inventory of goods and materials, at prices and on terms substantially
consistent with current market conditions and prior operating practices;
iv. the Company shall maintain in full force and effect all
insurance policies referred to in Section 3.17 hereof or other insurance
equivalent thereto;
v. the books, records and accounts of the Company shall be
maintained in the usual, regular and ordinary course of business on a basis
consistent with prior practices and in accordance with GAAP;
vi. the Company shall use its best efforts to preserve its business
organization, to preserve the good will of its suppliers, customers and others
having business relations with the Company, and to retain the services of key
EXHIBIT 99.1-12
employees and agents of the Company after the Closing Date on terms acceptable
to Altrimega;
vii. except as they may terminate in accordance with the terms of
this Agreement, the Company shall keep in full force and effect, and not cause a
default of any of its obligations under, each of its contracts and commitments;
viii. the Company shall duly comply in all material respects with
all laws applicable to it and to the conduct of its business;
ix. the Company shall not create, incur or assume any liability or
indebtedness, except in the ordinary course of business consistent with past
practices;
x. the Company shall not make or commit to make any capital
expenditures in excess of ten thousand dollars ($10,000) in the aggregate;
xi. other than as contemplated in this Agreement, the Company shall
not apply any of its assets to the direct or indirect payment, discharge,
satisfaction or reduction of any amount payable directly or indirectly to or for
the benefit of the Shareholder or any Related Party; and
xii. neither the Company nor the Shareholders shall take or omit to
take any action which would render any of the Shareholders' representations or
warranties untrue or misleading, or which would be a breach of any of the
Shareholders' covenants.
B. NO MATERIAL CHANGES. The Company shall not, without the prior written
consent of Altrimega which consent shall not be unreasonably withheld,
materially alter its organization, capitalization, or financial structure,
practices or operations. Without limiting the generality of the foregoing:
i. no change shall be made in the Articles of Incorporation or
Bylaws of the Company;
ii. no change shall be made in the authorized or issued capital
stock of the Company;
iii. the Company shall not issue or grant any right or option to
purchase or otherwise acquire any of its capital stock or other securities;
iv. no dividend or other distribution or payment shall be declared
or made with respect to any of the capital stock of the Company; and
v. no change shall be made affecting the banking arrangements of the
Company.
C. COMPENSATION. No increase shall be made in the compensation or employee
benefits payable or to become payable to any director, officer, employee or
agent of the Company, and no bonus or profit-sharing payment or other
arrangement (whether current or deferred) shall be made to or with any such
director, officer, employee or agent, except in the ordinary course of business
and consistent with prior practices.
D. NOTIFICATION. Each party to this Agreement shall promptly notify the
other parties in writing of the occurrence, or threatened occurrence, of any
event that would constitute a breach or violation of this Agreement by any party
or that would cause any representation or warranty made by the notifying party
in this Agreement to be false or misleading in any respect. The Shareholders
will promptly notify Altrimega of any event of which the Shareholders obtain
knowledge which could have a material adverse effect on the business, assets,
financial condition or prospects of the Company. The Shareholders shall have the
right to update the Schedules to this Agreement immediately prior to Closing;
provided, if such update discloses any breach of a representation, warranty,
EXHIBIT 99.1-13
covenant or obligation of the Shareholders and/or the Company, Altrimega shall
have the right to then exercise its available rights and remedies hereunder.
VI. CONDITIONS TO OBLIGATIONS OF ALL PARTIES.
The obligation of the Shareholders and Altrimega to consummate the
transactions contemplated by this Agreement are subject to the satisfaction, on
or before the Closing, of each of the following conditions; any or all of which
may be waived in whole or in part by the joint agreement of Altrimega Company
and the Shareholders:
A. ABSENCE OF ACTIONS. No action or proceeding shall have been brought or
threatened before any court or administrative agency to prevent the consummation
or to seek damages in a material amount by reason of the transactions
contemplated hereby, and no governmental authority shall have asserted that the
within transactions (or any other pending transaction involving Altrimega, any
of its subsidiaries, the Shareholders or the Company when considered in light of
the effect of the within transactions) shall constitute a violation of law or
give rise to material liability on the part of the Shareholders, the Company or
Altrimega or its subsidiaries.
B. CONSENTS. The parties shall have received from any suppliers, lessors,
lenders, lien holders or governmental authorities, bodies or agencies having
jurisdiction over the transactions contemplated by this Agreement, or any part
hereof, such consents, authorizations and approvals as are necessary for the
consummation hereof, including, without limitation, the consents listed on
Schedule 6.2.
VII. CONDITIONS TO OBLIGATIONS OF ALTRIMEGA.
All obligations of Altrimega to consummate the transactions contemplated
by this Agreement are subject to the fulfillment and satisfaction of each and
every of the following conditions on or prior to the Closing, any or all of
which may be waived in whole or in part by Altrimega:
A. REPRESENTATIONS AND WARRANTIES. The representations and warranties
contained in Section 3 of this Agreement and in any certificate, instrument,
schedule, agreement or other writing delivered by or on behalf of the
Shareholders in connection with the transactions contemplated by this Agreement
shall be true, correct and complete in all material respects (except for
representations and warranties which are by their terms qualified by
materiality, which shall be true, correct and complete in all respects) as of
the date when made and shall be deemed to be made again at and as of the Closing
Date and shall be true, correct and complete at and as of such time in all
material respects (except for representations and warranties which are by their
terms qualified by materiality, which shall be true, correct and complete in all
respects).
B. COMPLIANCE WITH AGREEMENTS AND CONDITIONS. The Shareholders and the
Company shall have performed and complied with all material agreements and
conditions required by this Agreement to be performed or complied with by him
and/or by the Company prior to or on the Closing Date.
C. ABSENCE OF MATERIAL ADVERSE CHANGES. No material adverse change in the
business, assets, financial condition, or prospects of the Company shall have
occurred, no substantial part of the assets of the Company not substantially
covered by insurance shall have been destroyed due to fire or other casualty,
and no event shall have occurred which has had or will have a material adverse
effect on the business, assets, financial condition or prospects of the Company.
D. CERTIFICATE OF THE SHAREHOLDERS. The Shareholders shall have executed
and delivered, or caused to be executed and delivered, to Altrimega one or more
certificates, dated the Closing Date, certifying in such detail as Altrimega may
reasonably request to the fulfillment and satisfaction of the conditions
specified in Sections 7.1 through 7.3 above.
E. BOARD APPROVAL. This Agreement and the transactions contemplated hereby
shall have been approved by the unanimous approval of the Altrimega's Board of
Directors.
EXHIBIT 99.1-14
F. SATISFACTORY RESULTS OF INSPECTION. The results of the inspection
referred to in Section 2.1 hereof shall be satisfactory to the Altrimega in its
sole discretion.
VIII. CONDITIONS TO OBLIGATIONS OF THE SHAREHOLDERS.
All of the obligations of the Shareholders to consummate the transactions
contemplated by this Agreement are subject to the fulfillment and satisfaction
of each and every of the following conditions on or prior to the Closing, any or
all of which may be waived in whole or in part by the Shareholders:
A. Intentionally omitted.
B. REPRESENTATIONS AND WARRANTIES. The representations and warranties
contained in Section 4 of this Agreement and in any certificate, instrument,
schedule, agreement or other writing delivered by or on behalf of Altrimega in
connection with the transactions contemplated by this Agreement shall be true
and correct in all material respects (except for representations and warranties
which are by their terms qualified by materiality, which shall be true, correct
and complete in all respects) when made and shall be deemed to be made again at
and as of the Closing Date and shall be true at and as of such time in all
material respects (except for representations and warranties which are by their
terms qualified by materiality, which shall be true, correct and complete in all
respects).
C. COMPLIANCE WITH AGREEMENTS AND CONDITIONS. Altrimega shall have
performed and complied with all material agreements and conditions required by
this Agreement to be performed or complied with by Altrimega prior to or on the
Closing Date.
D. ABSENCE OF MATERIAL ADVERSE CHANGES. No material adverse change in the
business, assets, financial condition, or prospects of Altrimega and its
subsidiaries, taken as a whole, shall have occurred, no substantial part of the
assets of Altrimega and its subsidiaries, taken as a whole, shall have been
destroyed due to fire or other casualty, and no event shall have occurred which
has had, or will have a material adverse effect on the business, assets,
financial condition or prospects of Altrimega and its subsidiaries, taken as a
whole.
E. CERTIFICATE OF ALTRIMEGA. Altrimega shall have delivered to the
Shareholders a certificate, executed by an executive officer and dated the
Closing Date, certifying to the fulfillment and satisfaction of the conditions
specified in Sections 8.1 through 8.3 above.
IX. INDEMNITY.
A. INDEMNIFICATION BY SHAREHOLDERS. Subject to Section 9.5, the
Shareholders (hereinafter, collectively, called the "SHAREHOLDER Indemnitors")
shall jointly and severally defend, indemnify and hold harmless Altrimega and
its direct and indirect Altrimega corporations, subsidiaries (including the
Company after Closing) and affiliates, their officers, directors, employees and
agents (hereinafter, collectively, called "ALTRIMEGA INDEMNITEES") against and
in respect of any and all loss, damage, liability, fine, penalty, cost and
expense, including reasonable attorneys' fees and amounts paid in settlement
(collectively, "ALTRIMEGA LOSSES"), suffered or incurred by any Altrimega
Indemnitee by reason of, or arising out of:
i. any misrepresentation, breach of warranty or breach or
non-fulfillment of any agreement of the Shareholders contained in this Agreement
or in any certificate, schedule, instrument or document delivered to Altrimega
by or on behalf of the Shareholders or the Company pursuant to the provisions of
this Agreement (without regard to materiality thresholds contained therein); and
ii. any liabilities of the Company of any nature whatsoever
(including tax liability, penalties and interest), whether accrued, absolute,
contingent or otherwise, (i) existing as of the date of the Balance Sheet, and
required to be shown therein in accordance with GAAP, to the extent not
reflected or reserved against in full in the Balance Sheet; or (ii) arising or
occurring between July 1, 2002 and the Closing Date, except for liabilities
arising in the ordinary course of business, none of which shall have a material
adverse effect on the Company.
EXHIBIT 99.1-15
B. INDEMNIFICATION BY ALTRIMEGA. Subject to Section 9.5, Altrimega
(hereinafter called the "ALTRIMEGA INDEMNITOR") shall defend, indemnify and hold
harmless the Shareholders (hereinafter called "SHAREHOLDER Indemnitees") against
and in respect of any and all loss, damage, liability, cost and expense,
including reasonable attorneys' fees and amounts paid in settlement
(collectively, "SHAREHOLDER LOSSES"), suffered or incurred by Shareholder
Indemnitees by reason of or arising out of:
i. any misrepresentation, breach of warranty or breach or
non-fulfillment of any material agreement of Altrimega contained in this
Agreement or in any other certificate, schedule, instrument or document
delivered to the Shareholders by or on behalf of Altrimega pursuant to the
provisions of this Agreement (without regard to materiality thresholds contained
therein); and
ii. any liabilities of the Company of any nature whatsoever
(including tax liability, penalties and interest), whether accrued, absolute,
contingent or otherwise, arising from Altrimega's ownership or operation of the
Company after Closing, but only so long as such liability is not the result of
an act or omission of the Company or any Shareholder occurring prior to the
Closing. Altrimega Losses and Shareholder Losses are sometimes collectively
referred to as "INDEMNIFIABLE LOSSES."
C. DEFENSE OF CLAIMS.
i. Each party seeking indemnification hereunder (an "INDEMNITEE"):
(i) shall provide the other party or parties (the "INDEMNITOR") written notice
of any claim or action by a third party arising after the Closing Date for which
an Indemnitor may be liable under the terms of this Agreement, within ten (10)
days after such claim or action arises and is known to Indemnitee, and (ii)
shall give the Indemnitor a reasonable opportunity to participate in any
proceedings and to settle or defend any such claim or action. The expenses of
all proceedings, contests or lawsuits with respect to such claims or actions
shall be borne by the Indemnitor. If the Indemnitor wishes to assume the defense
of such claim or action, the Indemnitor shall give written notice to the
Indemnitee within ten (10) days after notice from the Indemnitee of such claim
or action, and the Indemnitor shall thereafter assume the defense of any such
claim or liability, through counsel reasonably satisfactory to the Indemnitee,
provided that Indemnitee may participate in such defense at their own expense,
and the Indemnitor shall, in any event, have the right to control the defense of
the claim or action.
ii. If the Indemnitor shall not assume the defense of, or if after
so assuming it shall fail to defend, any such claim or action, the Indemnitee
may defend against any such claim or action in such manner as they may deem
appropriate and the Indemnitees may settle such claim or litigation on such
terms as they may deem appropriate but subject to the Indemnitor's approval,
such approval not to be unreasonably withheld; provided, however, that any such
settlement shall be deemed approved by the Indemnitor if the Indemnitor fails to
object thereto, by written notice to the Indemnitee, within fifteen (15) days
after the Indemnitor's receipt of a written summary of such settlement. The
Indemnitor shall promptly reimburse the Indemnitee for the amount of all
expenses, legal and otherwise, incurred by the Indemnitee in connection with the
defense and settlement of such claim or action.
iii. If a non-appealable judgment is rendered against any Indemnitee
in any action covered by the indemnification hereunder, or any lien attaches to
any of the assets of any of the Indemnitee, the Indemnitor shall immediately
upon such entry or attachment pay such judgment in full or discharge such lien
unless, at the expense and direction of the Indemnitor, an appeal is taken under
which the execution of the judgment or satisfaction of the lien is stayed. If
and when a final judgment is rendered in any such action, the Indemnitor shall
forthwith pay such judgment or discharge such lien before any Indemnitee is
compelled to do so.
D. WAIVER. The failure of any Indemnitee to give any notice or to take any
action hereunder shall not be deemed a waiver of any of the rights of such
Indemnitee hereunder, except to the extent that Indemnitor is actually
prejudiced by such failure.
E. LIMITATIONS ON INDEMNIFICATION. Notwithstanding anything to the
contrary contained in this Agreement:
EXHIBIT 99.1-16
1. TIME LIMITATION. No party shall be responsible hereunder for any
Indemnifiable Loss unless the Indemnitee shall have provided such party with
written notice containing a reasonable description of the claim, action or
circumstances giving rise to such Indemnifiable Loss within three (3) years
after the Closing Date (the "INDEMNITY NOTICE PERIOD"); provided, however, that:
i. with respect to any Indemnifiable Loss resulting or arising
from any breach of a representation or warranty of the Shareholders relating to
taxes, or any tax liability of the Company arising or relating to periods prior
to the Closing Date, the Indemnity Notice Period shall extend for the full
duration of the statute of limitations; and ii. there shall be no limit on the
Indemnity Notice Period for indemnity claims: (i) against the Shareholders for
Indemnifiable Losses arising or resulting from a breach of a representation or
warranty relating to Environmental Laws, or any liability which relates to the
handling or disposal of Wastes or the failure to comply with any Environmental
Law; and
(ii) against any party based on fraud or intentional breach or
misrepresentation.
2. CAPS ON LOSSES. The aggregate liability of the Shareholders after
the Closing for Altrimega Losses shall not exceed an amount equal to the Share
Exchange Consideration paid to the Shareholders. The aggregate liability of
Altrimega after the Closing for Seller Losses shall not exceed the Exchange
Consideration paid to the Shareholders.
3. BASKET. No party shall have any liability hereunder for
Indemnifiable Losses after the Closing, with respect to a breach of the
representations and warranties contained herein, until the aggregate of all
Indemnifiable Losses for which the Shareholders or Altrimega, as applicable, are
responsible under this Agreement exceeds Twenty-Five Thousand ($25,000) Dollars
(the "BASKET"); provided that once such Basket is exceeded for the Shareholders
or Altrimega, as applicable, the responsible party or parties shall be
responsible for all Indemnifiable Losses, from the first dollar as if such
Basket never existed; and further provided that this Section 9.5.3 shall not
limit in any respect indemnity claims: (a) based upon fraud or intentional
breach or intentional misrepresentation; (b) arising from a breach by the
Altrimega Indemnitor of any covenant contained in this Agreement; (c) arising
from a breach by the Shareholders of any representation or warranty contained in
Section 3.2 hereof; or (d) related to any tax or tax liability of the Company
for periods prior to the Closing Date.
X. TERMINATION.
A. TERMINATION. This Agreement may be terminated at any time on or prior
to the Closing:
i. By mutual consent of Altrimega and the Shareholders; or
ii. At the election of Altrimega if: (i) the Shareholders have
breached or failed to perform or comply with any of their representations,
warranties, covenants or obligations under this Agreement; or (ii) any of the
conditions precedent set forth in Section 6 or 7 is not satisfied as and when
required by this Agreement; or (iii) the Closing has not been consummated by
August 31, 2002; or
iii. At the election of the Shareholders if: (i) Altrimega has
breached or failed to perform or comply with any of its representations,
warranties, covenants or obligations under this Agreement; or (ii) any of the
conditions precedent set forth in Section 6 or 8 is not satisfied as and when
required by this Agreement; or (iii) if the Closing has not been consummated by
August 31, 2002.
B. MANNER AND EFFECT OF TERMINATION. Written notice of any termination
("TERMINATION NOTICE") pursuant to this Section 10 shall be given by the party
electing termination of this Agreement ("TERMINATING PARTY") to the other party
or parties (collectively, the "TERMINATED PARTY"), and such notice shall state
the reason for termination. The party or parties receiving Termination Notice
shall have a period of ten (10) days after receipt of Termination Notice to cure
the matters giving rise to such termination to the reasonable satisfaction of
the Terminating Party. If the matters giving rise to termination are not cured
as required hereby, this Agreement shall be terminated effective as of the close
of business on the tenth (10th) day following the Terminated Party's receipt of
EXHIBIT 99.1-17
Termination Notice. Upon termination of this Agreement prior to the consummation
of the Closing and in accordance with the terms hereof, this Agreement shall
become void and of no effect, and none of the parties shall have any liability
to the others, except that nothing contained herein shall relieve any party
from: (a) its obligations under Sections 2.2 and 2.3; or (b) liability for its
intentional breach of any representation, warranty or covenant contained herein,
or its intentional failure to comply with the terms and conditions of this
Agreement or to perform its obligations hereunder.
XI. MISCELLANEOUS.
A. NOTICES.
i. All notices, requests, demands, or other communications required
or permitted hereunder shall be in writing and shall be deemed to have been duly
given upon receipt if delivered in person, or upon the expiration of four (4)
days after the date sent, if sent by federal express (or similar overnight
courier service) to the parties at the following addresses:
(i) If to Altrimega: Altrimega Health Corporation
4702 Oleander Drive, Suite 200
Myrtle Beach, South Carolina 29577
Attn: John W. Gandy
with a copy to: Clayton E. Parker, Esq.
Kirkpatrick & Lockhart LLP
201 South Biscayne Blvd.
Suite 2000, Miami Center
Miami, Florida 33131
(ii) If to a The name and address as listed on the SCHEDULE
Shareholder: A attached hereto.
ii. Notices may also be given in any other manner permitted by law,
effective upon actual receipt. Any party may change the address to which
notices, requests, demands or other communications to such party shall be
delivered or mailed by giving notice thereof to the other parties hereto in the
manner provided herein.
B. SURVIVAL. Except as provided in the next sentence, the representations,
warranties, agreements and indemnifications of the parties contained in this
Agreement or in any writing delivered pursuant to the provisions of this
Agreement shall survive any investigation heretofore or hereafter made by the
parties and the consummation of the transactions contemplated herein and shall
continue in full force and effect after the Closing, subject to the limitations
of Section 9.5. The representations, warranties and agreements of the Company
contained in this Agreement shall not survive the Closing.
C. COUNTERPARTS; INTERPRETATION. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, and all of
which shall constitute one and the same instrument. This Agreement supersedes
all prior discussions and agreements between the parties with respect to the
subject matter hereof, and this Agreement contains the sole and entire agreement
among the parties with respect to the matters covered hereby. All Schedules
hereto shall be deemed a part of this Agreement. This Agreement shall not be
altered or amended except by an instrument in writing signed by or on behalf of
all of the parties hereto. No ambiguity in any provision hereof shall be
construed against a party by reason of the fact it was drafted by such party or
its counsel. For purposes of this Agreement: "herein", "hereby", "hereunder",
"herewith", "hereafter" and "hereinafter" refer to this Agreement in its
entirety, and not to any particular section or paragraph. References to
"INCLUDING" means including without limiting the generality of any description
preceding such term. Nothing expressed or implied in this Agreement is intended,
or shall be construed, to confer upon or give any person other than the parties
hereto any rights or remedies under or by reason of this Agreement.
EXHIBIT 99.1-18
D. GOVERNING LAW. The validity and effect of this Agreement shall be
governed by and construed and enforced in accordance with the laws of the State
of Nevada, without regard to principles of conflicts of laws thereof. Any
dispute, controversy or question of interpretation arising under, out of, in
connection with or in relation to this Agreement or any amendments hereof, or
any breach or default hereunder, shall be litigated in the state or federal
courts in Horry County, South Carolina, U.S.A. Each of the parties hereby
irrevocably submits to the jurisdiction of any state or federal court sitting in
Horry County, South Carolina. Each party hereby irrevocably waives, to the
fullest extent it may effectively do so, the defense of an inconvenient forum to
the maintenance of any such action in Horry County, South Carolina.
E. SUCCESSORS AND ASSIGNS; ASSIGNMENT. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
heirs, executors, legal representatives, and successors; provided, however, that
no Shareholder may assign this Agreement or any rights hereunder, in whole or in
part.
F. PARTIAL INVALIDITY AND SEVERABILITY. All rights and restrictions
contained herein may be exercised and shall be applicable and binding only to
the extent that they do not violate any applicable laws and are intended to be
limited to the extent necessary to render this Agreement legal, valid and
enforceable. If any terms of this Agreement not essential to the commercial
purpose of this Agreement shall be held to be illegal, invalid or unenforceable
by a court of competent jurisdiction, it is the intention of the parties that
the remaining terms hereof shall constitute their agreement with respect to the
subject matter hereof and all such remaining terms shall remain in full force
and effect. To the extent legally permissible, any illegal, invalid or
unenforceable provision of this Agreement shall be replaced by a valid provision
which will implement the commercial purpose of the illegal, invalid or
unenforceable provision.
G. WAIVER. Any term or condition of this Agreement may be waived at any
time by the party which is entitled to the benefit thereof, but only if such
waiver is evidenced by a writing signed by such party. No failure on the part of
a party hereto to exercise, and no delay in exercising, any right, power or
remedy created hereunder, shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, power or remedy by any such party
preclude any other future exercise thereof or the exercise of any other right,
power or remedy. No waiver by any party hereto to any breach of or default in
any term or condition of this Agreement shall constitute a waiver of or assent
to any succeeding breach of or default in the same or any other term or
condition hereof.
H. HEADINGS. The headings as to contents of particular paragraphs of this
Agreement are inserted for convenience only and shall not be construed as a part
of this Agreement or as a limitation on the scope of any terms or provisions of
this Agreement.
I. EXPENSES. Except as otherwise expressly provided herein, all legal and
other costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by Altrimega or the Shareholder
as each party incurs such expenses, and none of such expenses shall be charged
to or paid by the Company.
J. FINDER'S FEES. Altrimega represents to the Shareholders that no broker,
agent, finder or other party has been retained by it in connection with the
transactions contemplated hereby and that no other fee or commission has been
agreed by the Altrimega to be paid for or on account of the transactions
contemplated hereby. The Shareholders represent to Altrimega that no broker,
agent, finder or other party has been retained by Shareholders or the Company in
connection with the transactions contemplated hereby and that no other fee or
commission has been agreed by the Shareholders or the Company to be paid for or
on account of the transactions contemplated hereby.
K. GENDER. Where the context requires, the use of the singular form herein
shall include the plural, the use of the plural shall include the singular, and
the use of any gender shall include any and all genders.
L. ACCEPTANCE BY FAX. This Agreement shall be accepted, effective and
binding, for all purposes, when the parties shall have signed and transmitted to
each other, by telecopier or otherwise, copies of the signature pages hereto.
EXHIBIT 99.1-19
M. ATTORNEYS FEES. In the event of any litigation arising under the terms
of this Agreement, the prevailing party or parties shall be entitled to recover
its or their reasonable attorneys fees and court costs from the other party or
parties.
N. OPPORTUNITY TO HIRE COUNSEL; ROLE OF KIRKPATRICK & LOCKHART LLP. The
Shareholders acknowledges that they have been advised and have been given an
opportunity to hire counsel with respect to this Agreement and the transactions
contemplated hereby. The Shareholders further acknowledges that the law firm of
Kirkpatrick & Lockhart LLP has solely represented the Altrimega in connection
with this Agreement and the transactions contemplated hereby and no other
person.
O. TIME IS OF THE ESSENCE. It is understood and agreed among the parties
hereto that time is of the essence in this Agreement and this applies to all
terms and conditions contained herein.
P. NO JURY TRIAL. THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION BASED HEREON OR ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT AND ANY DOCUMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION
HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE PARTIES' ACCEPTANCE OF THIS AGREEMENT.
[REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK]
EXHIBIT 99.1-20
IN WITNESS WHEREOF, the parties have executed this Agreement to be duly
executed by their duly authorized officers as of the day and year first above
written.
ALTRIMEGA HEALTH CORPORATION
By:
-----------------------------------
Name:
----------------------------------
Title:
---------------------------------
CREATIVE HOLDINGS, INC.
By:
-----------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT 99.1-21
CHICORA BEACH HOLIDAY
By:
--------------------------------- ---------------------------------------
Name: John F. Smith, III
-------------------------------
Title:
------------------------------
SEA CHILDREN'S TRUST 1, LLC INTERNATIONAL RESORT & GOLF RESOURCES
By: By:
--------------------------------- ------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
DGI, LLC DPI, LLC
By: By:
--------------------------------- ------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
HENDRIX & GANDY
By:
--------------------------------- ---------------------------------------
Name: Candy Horner
-------------------------------
Title:
------------------------------
- ------------------------------------ ---------------------------------------
Tom Horner David L. Gilbert
WOFFORD CAPITAL
By:
--------------------------------- ---------------------------------------
Name: Mary Jane Gandy
-------------------------------
Title:
------------------------------
- ------------------------------------ ---------------------------------------
Elizabeth Gandy Wilson Gandy
- ------------------------------------ CHICORA BEACH HOLIDAY
Lynn S. Carr
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
- ------------------------------------
John F. Smith, III
EXHIBIT 99.1-22
SEA CHILDREN'S TRUST 1, LLC DPI, LLC
By: By:
--------------------------------- ------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
- ------------------------------------ ---------------------------------------
David Gilbert Sam Puglia
ROGER VAN WIE FOR SEACOAST CHILD, TRUST
---------------------------------------
By: Forrest Truitt
---------------------------------
Name:
-------------------------------
Title:
------------------------------
- ------------------------------------
Townes Walker
QUICKSTEP, LLC BEST CAPITAL, LLC
By: By:
--------------------------------- ------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
- ------------------------------------ GANDY ASSOCIATES, LLC
John W. Gandy
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
GANDY FAMILY INVESTMENTS, LLC CAPITAL PROPERTIES CONSULTANTS, LLC
By: By:
--------------------------------- ------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
- ------------------------------------ RESERVED FOR INVESTMENT BANKERS
Sleepy Hollow Partners
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT 99.1-23
SCHEDULE A
SHAREHOLDERS OF CREATIVE HOLDINGS, INC.
NUMBER OF SHARES OF NUMBER OF
ALTRIMEGA SERIES A SHARES OF
CONVERTIBLE PREFERRED ALTRIMEGA
NAME STOCK COMMON STOCK
- ---- ----- ------------------
Chicora Beach Holiday 21,094 421,800
John F. Smith, III 10,547 210,900
Sea Children's Trust 4,219 84,300
International Resort & Golf Resources 1,688 33,600
DGI, LLC 1,898 38,100
DPI, LLC 422 8,400
Hendrix & Gandy 1,055 21,000
Candy & Tom Horner 1,688 33,600
David L. Gilbert 844 16,800
Wofford Capital 10,125 202,500
Mary Jane Gandy 422 8,400
Elizabeth Gandy 2,109 42,300
Wilson Gandy 2,109 42,300
Lynn S. Carr 1,055 21,000
Chicora Beach Holiday 6,875 137,500
John F. Smith, III 6,875 137,500
Sea Children's Trust 2,750 55,000
DPI, LLC 688 13,600
David Gilbert 1,375 27,500
Sam Puglia 6,875 137,500
Roger Van Wie For Seacoast Child.
Trust 2,750 55,000
Forrest Truitt 2,750 55,000
Townes Walker 688 13,600
Quickstep, LLC 250,230 5,004,750
Great West LLC 250,230 5,004,750
John W. Gandy 62,730 1,254,750
Gandy Associates, LLC 62,500 1,250,000
Gandy Family Investments, LLC 125,000 2,500,000
Capital Properties Consultants, LLC 83,410 1,668,250
Sleepy Hollow Partners 12,500 250,000
SCHEDULE 3.24-1
SCHEDULE 3.24
An agreement to establish a web-site for the Company was made with and
completed by a related party to a shareholder. The total amount of the
transaction was $700.00, which was approved by the majority shareholder of the
Altrimega.
EXHIBIT 99.1-2