AGREEMENT AND PLAN OF REORGANIZATION
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THIS AGREEMENT AND PLAN OF REORGANIZATION dated as of July 1,
1995, made and entered into by and among BAP Acquisition Corp., a corporation
organized and existing under the laws of the State of Delaware (hereinafter
called "BAP", and those persons set forth on Exhibit "A" hereof (hereinafter
called "Sellers").
W I T N E S S E T H:
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WHEREAS, BAP and Sellers deem it advisable that a reorganization
be effected consisting of the acquisition by BAP from Sellers of all of the
issued and outstanding shares of common stock of ▇▇▇▇▇▇▇▇ Enterprises
International, Inc., a corporation organized and existing under the laws of
the State of Florida (hereinafter called "▇▇▇▇▇▇▇▇"), all in accordance with
the applicable statutes of the States of Delaware and Florida and upon the
terms and subject to the conditions set forth in this Agreement and Plan of
Reorganization (hereinafter called the "Agreement"), for the purpose of
carrying out a tax-free reorganization within the meaning of the Internal
Revenue Code of 1986, as amended.
NOW, THEREFORE, BAP and Sellers each in consideration that the
other join herein, hereby represent, warrant and agree as follows:
1. Exchange of Shares. Subject to the terms and conditions
hereof, and in reliance on the respective representations and warranties of
each party to the other hereunder, BAP agrees to issue its shares to Sellers
and Sellers agree to assign, transfer and deliver to BAP at the Closing
(as defined in paragraph 5 below) all of the issued and outstanding shares of
common stock of ▇▇▇▇▇▇▇▇. Sellers will assign, transfer and deliver the number
of shares set opposite their names on Exhibit "A".
2. Exchange Ratio. The total shares to be issued to Sellers
shall be 3,500,000 restricted shares of common stock, $.001 par value of BAP.
3. Representations. Warranties and Agreements of Sellers.
Sellers jointly and severally represent and warrant to and agree with BAP
that:
(a) ▇▇▇▇▇▇▇▇ is duly organized and existing under the
laws of the State of Florida and is in good standing, and is
authorized and qualified to own and operate its properties and
assets and conduct its business as, and in all jurisdictions
where, such properties and assets are owned and operated and
such business conducted. ▇▇▇▇▇▇▇▇ has duly filed any and all
certificates and reports required to be filed to date by the
laws of Florida and any other applicable law.
(b) ▇▇▇▇▇▇▇▇ has authorized 1000 shares of common
stock, no par value, of which 1,000 shares of common stock are
issued and outstanding. All such outstanding shares were
validly issued and are fully paid and non assessable, and free
from any restrictions, liens, encumbrances, rights, title and
interests in others. There are no other shares of stock,
convertible or other securities, or rights, warrants or
options with respect to any share of stock or securities of
▇▇▇▇▇▇▇▇ authorized, issued or out-standing.
(c) Neither ▇▇▇▇▇▇▇▇ nor any of its directors,
officers, agents or employees, is in material violation of any
applicable law, rule, regulation or requirement of any
governmental authority in any way relating to ▇▇▇▇▇▇▇▇'▇
business or operations. Consummation of the transactions
contemplated hereby,and continuation of ▇▇▇▇▇▇▇▇'▇ business
in the same manner as heretofore conducted by it will be in
material compliance with all presently applicable laws, rules,
regulations and requirements of all governmental authorities
without the necessity for any license or permit or other
action or permission in the nature thereof, or any
registration with, or consent of, any governmental authority.
(d) ▇▇▇▇▇▇▇▇ is not in default under or in violation
of any provision of its Articles of Incorporation or Bylaws
and ▇▇▇▇▇▇▇▇ is not in material default under or in violation
of any restriction, lien, encumbrance, indenture, contract,
lease, sublease, loan agreement, note or other obligation or
liability relating to ▇▇▇▇▇▇▇▇'▇ business, to which it is a
party or by which it is bound, or to which its assets are
subject. Neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated hereby
will conflict with or result in a breach of or constitute a
default under any provision of the Articles of
Incorporation or Bylaws of ▇▇▇▇▇▇▇▇ or any restriction, lien,
encumbrance, indenture, contract, lease, sublease, loan
agreement, note or other material obligation or liability to
which Sellers or it is a party or by which Sellers or it is
bound, or to which any of their or its assets are subject, or
result in the creation of any lien or encumbrance upon said
assets.
(e) ▇▇▇▇▇▇▇▇'▇ audited financial statements dated
December 31, 1994 and unaudited financial statements dated
June 30, 1995, which are attached hereto as Exhibit "B" are
correct and complete and fairly present the financial
condition of ▇▇▇▇▇▇▇▇ at the dates described therein, and have
been prepared in accordance with generally accepted accounting
principles consistently applied.
(f) Except as shown on Exhibit "B", ▇▇▇▇▇▇▇▇ has no
liabilities of any nature, whether absolute, accrued,
contingent or otherwise, including, without limitation, any
tax liabilities, other than liabilities incurred after
December 31, 1994, in the ordinary course of business as a
result of transactions or occurrences which do not and will
not either singularly or in the aggregate have a material
adverse effect on the financial or business condition of
▇▇▇▇▇▇▇▇. The properties and assets presently owned by
▇▇▇▇▇▇▇▇ include all properties and assets of every kind,
class and description, real and personal, tangible and
intangible, known and unknown, or shown on the books of or
used in the business of ▇▇▇▇▇▇▇▇ and all properties and assets
in which ▇▇▇▇▇▇▇▇ had any right, title or interest on June 30,
1995, except as changed in the ordinary course of business,
none of such changes being materially adverse.
(g) All buildings, fixtures and equipment owned or
used by ▇▇▇▇▇▇▇▇ are in reasonably good and sound condition
and are in compliance with all laws, rules, regulations and
requirements of governmental authorities.
(h) ▇▇▇▇▇▇▇▇ enjoys peaceful and undisturbed
possession under all leases to which it is a party. All such
leases are valid, freely assignable and enforceable in
accordance with their terms, and no party thereto is in
default thereunder.
(i) No one other than ▇▇▇▇▇▇▇▇ has any right, title,
interest, restriction, lien or encumbrance in, on or to the
business conducted by it.
(j) ▇▇▇▇▇▇▇▇ does not have any material obligation,
liability, contract, agreement, lease, sublease, commitment or
understanding of any kind, nature, or description, fixed or
contingent, due or to become due, existing or inchoate, other
than those reflected in Exhibit "B".
(k) Except as disclosed on Exhibit "B", there are no
suits or proceedings at law or in equity, or before any
governmental agency or arbitrator, pending, or to the
knowledge of Sellers, threatened, anticipated or contemplated,
which in any way adversely affects ▇▇▇▇▇▇▇▇ or its business
and there are no unsatisfied or outstanding judgments, orders,
decrees or stipulations affecting ▇▇▇▇▇▇▇▇ or its assets or to
which ▇▇▇▇▇▇▇▇ is or may become a party which in any way
affects ▇▇▇▇▇▇▇▇. There are no claims against Sellers or
▇▇▇▇▇▇▇▇ pending, or to the knowledge of Sellers, threatened,
anticipated or contemplated, which, if valid, would constitute
or result in a breach of any representation, warranty or
agreement set forth herein.
(1) To the best of the knowledge of the Sellers,
since the date of Incorporation of ▇▇▇▇▇▇▇▇:
(i) Neither ▇▇▇▇▇▇▇▇ nor any of its current
or former directors, officers or employees nor any
third party acting on behalf of ▇▇▇▇▇▇▇▇ have,
directly or indirectly, made any bribes, kickbacks,
or any other payments of a similar or comparable
nature, whether lawful or not, to any person or
entity, public or private, regardless of form,
whether in money, property or services, to obtain
favorable treatment in securing business or to obtain
special concessions or to pay for favorable treatment
for business already secured or for special
concessions already obtained;
(ii) No funds or property of any kind of
▇▇▇▇▇▇▇▇ was donated, loaned, or made available,
directly or indirectly, for the benefit of, or for
the purpose of opposing, any government or subdivision
thereof, political party, candidate or committee, either
domestic or foreign;
(iii) No officer, employee, contractor or agent of
▇▇▇▇▇▇▇▇ was compensated, directly or indirectly, by
▇▇▇▇▇▇▇▇ for time spent or expenses incurred in performing
services for the benefit of, or for the purpose of opposing,
any government or subdivision thereof, political party,
candidate or committee, either domestic or foreign;
(iv) ▇▇▇▇▇▇▇▇ has not made any loan, donation,
or other disbursement, directly or indirectly, to officers
or employees of ▇▇▇▇▇▇▇▇ or others for contributions made,
or to be made, directly or indirectly, for the benefit of,
or for the purpose of opposing, any government or subdivision
thereof, political party, candidate or committee, either
domestic or foreign; and
(v) ▇▇▇▇▇▇▇▇ has not, or any other entity acting on
behalf of ▇▇▇▇▇▇▇▇ maintained or maintains a bank account,
or any other account of any kind whether domestic or foreign,
which account was not reflected in the corporate books and
records, or which account was not listed, titled or identified
in the name of ▇▇▇▇▇▇▇▇.
(m) Since June 30,1995, there has not been:
(i) Any material adverse change in the properties,
assets, business, affairs or prospects of ▇▇▇▇▇▇▇▇ nor, to
the knowledge of Sellers, are any such changes threatened,
anticipated, or contemplated;
(ii) Any actual or, to the knowledge of Sellers,
threatened, anticipated, or contemplated damage, destruction,
loss, conversion, termination, cancellation, default or taking
by eminent domain or other action by governmental authority
which has affected or may hereafter affect the properties,
assets, business, affairs or prospects of ▇▇▇▇▇▇▇▇;
(iii) Any material and adverse dispute, pending or,
to the knowledge of Sellers, threatened, anticipated or
contemplated of any kind with any customer, supplier, source
of financing, employee, landlord, subtenant or licensee of
▇▇▇▇▇▇▇▇ or any pending or, to the knowledge of Sellers,
threatened, anticipated or contemplated occurrence or situation
of any kind, nature or description which is reasonably likely
to result in any reduction in the amount, or any change in the
terms or conditions, of the business with any substantial
customer, supplier or source of financing;
(iv) Any pending or,to the knowledge of Sellers, threatened,
anticipated or contemplated occurrence or situation of any kind,
nature or description peculiar to the business of ▇▇▇▇▇▇▇▇ and
materially and adversely affecting the properties, assets,
business affairs or prospects of ▇▇▇▇▇▇▇▇; or
(v) Any reduction of capital, redemption of stock or
dividend or distribution with respect to stock by ▇▇▇▇▇▇▇▇.
(n) Sellers have not taken any action which may result
in BAP having any responsibility, obligation, or liability for
any finder or broker fees, commission or other compensation
payable in connection with any of the transactions contemplated
hereby.
(o) ▇▇▇▇▇▇▇▇'▇ Board of Directors has Authorized the
execution, delivery and performance of this Agreement by
Sellers. All present and previous stockholders, directors and
officers of ▇▇▇▇▇▇▇▇ will at any time or from time to time
hereafter execute whatever minutes of meetings or other
instruments and take whatever action BAP may deem necessary or
desirable to effect, perfect or confirm of record or otherwise
in BAP, full right, title and interest in and to the business,
properties and assets of ▇▇▇▇▇▇▇▇ or to carry out the intent
and purpose of the transactions contemplated hereby.
(p) The corporate record books of ▇▇▇▇▇▇▇▇ are in
good order, complete, accurate, up to date, with all necessary
signatures, and set forth all meetings and actions taken by
the stockholders and directors, including all actions set
forth in all certificates of votes of stockholders or
directors furnished to anyone at any time. The copies of
▇▇▇▇▇▇▇▇'▇ Articles of Incorporation and Bylaws which have
been delivered to BAP are complete and correct.
(q) The stock transfer books and stock ledgers of
▇▇▇▇▇▇▇▇ are in good order, complete, accurate, and up to
date, and with all necessary signatures, and set forth all
stock and securities issued, transferred and surrendered. No
duplicate certificate has been issued at any time heretofore.
No transfer has been made without surrender of the proper
certificate duly endorsed. All certificates surrendered have
been duly canceled and are attached to the proper stubs with
all necessary stock powers attached thereto.
(r) ▇▇▇▇▇▇▇▇ owns all assets, properties, real estate,
equipment, material, inventory, raw materials, copyrights,
rights of reproduction, trademarks, trade names, trademark
applications, service marks, patent applications, patents,
and patent license rights, all whether registered or
unregistered, U.S. or foreign, inventions, franchises,
discoveries, ideas, research, engineering, methods, practices,
processes, systems, formulas, designs, drawings, products,
projects, permits, improvements, developments, know-how, and
trade secrets which are used in or necessary for the conduct
of its business, without conflict with or infringement of any,
and subject to no restriction, lien, encumbrance, right, title
or interest in others. All of the foregoing stand in the name
of ▇▇▇▇▇▇▇▇ and not in the name of any stockholder, director,
officer, agent, partner or employee or anyone else known to
Sellers, and none of the same have any right, title, interest,
restriction, lien or encumbrance therein, or thereon or thereto.
(s) Sellers are the owners, free and clear of any
claim, lien, charge or encumbrance or restriction, of all of
the issued and outstanding shares of common stock of ▇▇▇▇▇▇▇▇
and Sellers now have and will have, at the Closing, full power
and authority and the legal right to sell such shares to BAP
pursuant to this Agreement.
(t) Sellers have not made any material misstatement
of fact or omitted to state any material fact necessary or
desirable to make complete, accurate and not misleading every
representation, warranty and agreement set forth herein.
(u) Since June 30, 1995, there has not been:
(i) Any increase in the compensation,
including, but not limited to, bonus or percentage
compensation payments, payable to or to become
payable by ▇▇▇▇▇▇▇▇ to any of its officers, employees
or agents; or
(ii) Any labor strike or demands for collective
bargaining directly affecting ▇▇▇▇▇▇▇▇.
(v) The assets of ▇▇▇▇▇▇▇▇ on the Closing Date shall
include current assets, inventory, machinery and equipment,
office furniture and fixtures, good will, leases and other
assets set forth on Exhibit "B".
(w) For a minimum of three years following the Close,
Sellers will cause BAP to timely file with the Securities and
Exchange Commission pursuant to Sections 13 or 15(d) of the
Securities Exchange Act of 1934, a Form 10-K for the end of
each fiscal year and a Form 10-Q for each of the first three
quarters of each year, and during such period will not cause
BAP to file a Form 15 pursuant to either Rule 12h-3 or 15d-6
electing to suspend its duty to file. Sellers will also cause
BAP to hold an annual meeting of shareholders for the election
of directors within 180 days after the end of each fiscal year
end, and within 180 days after the end of each fiscal year
end, will provide BAP's shareholders with the audited
financial statements of BAP as of the end of the fiscal year
just completed prior thereto. Such financial statements shall
be those required by Rule 14a-3 under the Securities Exchange
Act of 1934, and shall be included in an annual report meeting
the requirements of such Rule. In addition, Sellers agree that
within 30 days of the Close, they will cause BAP to submit
information about BAP to be included in various securities
manuals, including ▇▇▇▇▇'▇ Over-the-Counter Manual and/or
Standard & Poor's Standard Corporation Records to facilitate
the secondary trading in BAP's common shares.
(x) No information furnished by Sellers to be used
in connection with any filing with the Securities and Exchange
Commission will contain when made or furnished, any untrue
statement of a material fact or omits or will omit to state
any material fact necessary to make the statements contained
therein not misleading.
(y) Each of the representations, warranties and
agreements of Sellers is true and correct in every respect as
of the date hereof. Sellers will exonerate and indemnify BAP
against all claims, suits, obligations, liabilities and
damages, including, without limitation of the foregoing,
reasonable attorney's fees, based upon, arising out of or
resulting from any breach of any of the representations,
warranties or agreements of Sellers herein or any certificate
delivered pursuant hereto, or non fulfillment of any of their
undertakings hereunder or thereunder or any actual or alleged
occurrence or situation in any way inconsistent herewith or
therewith.
(z) Every representation, warranty and agreement of
Sellers set forth in this Agreement, and any certificate
delivered pursuant hereto and every one of the rights and
remedies of BAP for any one or more breaches hereof shall
survive and not be deemed waived by the Closing for a period
of two years after the Closing, and shall be effective
regardless of any investigation that may have been made at any
time by or on behalf of BAP.
4. Representations. Warranties and Agreements of BAP.
BAP represents and warrants to and agrees with Sellers that:
(a) BAP is duly organized and validly existing under
the laws of the State of Delaware and is in good standing, and
is authorized and qualified to own and operate its properties
and assets and conduct its business as, and in all
jurisdictions where, such properties and assets are owned and
operated and such business conducted. BAP has duly filed any
and all certificates and reports required to be filed to date
by the laws of Delaware and any other applicable law.
(b) The shares of BAP's common stock to be issued and
delivered to Sellers pursuant to this Agreement will, upon
issuance and delivery pursuant hereto be duly authorized,
validly issued, fully paid and non assessable.
(c) BAP has full right, power and authority to
execute, deliver and perform the terms of this Agreement. This
Agreement has been duly authorized by BAP and, when approved
by its shareholders, will constitute the binding obligation
enforceable in accordance with its terms.
(d) BAP has authorized 20,000,000 shares of common
stock, $0.001 par value per share, of which 11,553,100 shares
of common stock are issued and outstanding. Prior to, or at
the Closing, the outstanding shares of BAP common stock shall
be reduced so that at the Closing there will be 4,655,310
shares of common stock issued and outstanding. All such
outstanding shares were validly issued and are fully paid and
non-assessable. There are no other shares of stock,
convertible or other securities, or rights, warrants or
options with respect to any shares of stock or securities of
BAP authorized, issued or outstanding. BAP has not granted any
right of first refusal or any option to any underwriter,
finder, broker or participant.
(e) BAP's audited financial statements dated
September 30, 1994 and unaudited financial statements dated
June 30, 1995, which are attached hereto as Exhibit "C" are
correct and complete and fairly present the financial
condition of BAP at the dates described therein, and have been
prepared in accordance with generally accepted accounting
principles consistently applied.
(f) BAP is not in default under or in violation of
any provision of its Certificate of Incorporation or Bylaws
and BAP is not in material default under or in violation of
any restriction, lien, encumbrance, indenture, contract,
lease, sublease, loan agreement, note or other obligation or
liability relating to BAP's business, to which it is a party
or by which it is bound, or to which its assets are subject.
Neither the execution and delivery of this Agreement nor
consummation of the transactions contemplated hereby will
conflict with or
result in a breach of or constitute a default under any
provision of BAP's Certificate of Incorporation or Bylaws or
any restriction, lien, encumbrance, indenture, contract,
lease, sublease, loan agreement, note or other material
obligation or liability to which it is a party or by which it
is bound, or to which any of its assets are subject, or result
in the creation of any lien encumbrance upon its assets.
(g) BAP has not taken any action which may result in
Sellers having any responsibility, obligation or liability for
any finder or broker fees, commission or other compensation
payable in connection with any of the transactions
contemplated hereby.
(h) Neither BAP nor any of its directors, officers,
agents or employees, is in material violation of any
applicable law, rule, regulation or requirement of any
governmental authority in any way relating to BAP's business
or operations. BAP has filed all reports with the Securities
and Exchange Commission which have been required to be filed
pursuant to either the Securities Act of 1933 or the
Securities Exchange Act of 1934. None of such reports
contained when made or furnished, any untrue statement of a
material fact or omitted to state any material fact necessary
to make the statements contained therein not misleading.
Consummation of the transactions contemplated hereby will be
in compliance with all presently applicable laws, rules,
regulations and requirements of all governmental authorities
without the necessity for any license or permit or other
action or permission in the nature thereof, or any
registration with, or consent of, any governmental authority.
(i) Except as shown on Exhibit "C," BAP has no
liabilities of any nature, whether absolute, accrued,
contingent or otherwise, including, without limitation, any
tax liabilities, other than liabilities incurred after
September 30, 1994, in the ordinary course of business as a
result of transactions or occurrences which do not and will
not either singularly or in the aggregate have a material
adverse effect on the financial or business condition of BAP.
The properties and assets presently owned by BAP include all
properties and assets of every kind, class and description,
real and personal, tangible and intangible, known and
unknown, or shown on the books of or used in the business of
BAP and all properties and assets in which BAP had any right,
title or interest on June 30, 1994, except as changed in the
ordinary course of business, none of such changes being
materially adverse.
(j) BAP does not have any material obligation,
liability, contract, agreement, lease, sublease, commitment or
understanding of any kind, nature, or description, fixed or
contingent, due or to become due, existing or inchoate, other
than those reflected in Exhibit "C".
(k) There are no suits or proceedings at law or in
equity, or before any governmental agency or arbitrator,
pending,or to the knowledge of BAP's officers, threatened,
anticipated or contemplated, which in any way adversely
affects BAP and there are no unsatisfied or outstanding
judgments, orders, decrees or stipulations affecting BAP or
its assets or to which BAP is or may become a party which in
any way affects BAP. There are no claims against BAP pending,
or to the knowledge of BAP's officers, threatened, anticipated
or contemplated, which, if valid, would constitute or result
in a breach of any representation, warranty or agreement set
forth herein.
(l) To the best of the knowledge of BAP, since the
date of Incorporation of BAP:
(i) Neither BAP nor any of its current or
former directors, officers or employees nor any third
party acting on behalf of BAP have, directly or
indirectly, made any bribes, kickbacks, or any other
payments of a similar or comparable nature, whether
lawful or not, to any person or entity, public or
private, regardless of form, whether in money,
property or services, to obtain favorable treatment
in securing business or to obtain special concessions
or to pay for favorable treatment for business
already secured or for special concessions already
obtained;
(ii) No funds or property of any kind of BAP
was donated, loaned, or made available, directly or
indirectly, for the benefit of, or for the purpose of
opposing, any government or subdivision thereof,
political party, candidate or committee, either
domestic or foreign;
(iii) No officer, employee, contractor or
agent of BAP was compensated, directly or indirectly,
by BAP for time spent or expenses incurred in
performing services for the benefit of, or for the
purpose of opposing, any government or subdivision
thereof, political party, candidate or committee,
either domestic or foreign;
(iv) BAP has not made any loan, donation, or
other disbursement, directly or indirectly, to
officers or employees of BAP or others for
contributions made, or to be made, directly or
indirectly, for the benefit of, or for the purpose of
opposing, any government or subdivision thereof,
political party, candidate or committee, either
domestic or foreign; and
(v) BAP has not, or any other entity acting
on behalf of BAP maintained or maintains a bank
account, or any other account of any kind whether
domestic or foreign, which account was not reflected
in the corporate books and records, or which account
was not listed, titled or identified in the name of
BAP.
(m) The corporate record books of BAP are in good
order, complete, accurate, up to date, with all necessary
signatures, and set forth all meetings and actions set forth
in all certificates of votes of stockholders or directors
furnished to anyone at any time. The copies of BAP's
Certificate of Incorporation and Bylaws which have been
delivered to Sellers are complete and correct.
(n) The stock transfer books and stock ledgers of BAP
are in good order, complete, accurate, and up to date, and
with all necessary signatures, and set forth all stock and
securities issued, transferred and surrendered. No duplicate
certificate has been issued at any time heretofore without an
indemnity agreement and/or bond being posted.
No transfer has been made without surrender of the proper
certificate duly endorsed. All certificates so surrendered
have been duly canceled and are attached to the proper stubs
with all necessary stock powers attached thereto.
(o) BAP has filed with the appropriate governmental
agencies all tax returns required to be filed by it and there
are no unpaid assessments nor, to the best of BAP's knowledge,
proposed assessments of Federal, state or local taxes pending
against BAP. All liability for taxes shown on Federal and
State tax returns filed have been paid or the liability there
for has been provided for in the attached financial
statements, and all Federal and state income or franchise
taxes for periods subsequent to the periods covered by said
returns likewise have been paid or adequately accrued except
for current year taxes not yet due.
(p) The Board of Directors' Meeting provided for in
paragraph 6 will be duly called, convened and conducted in
accordance with all applicable requirements of the corporation
laws of the State of Delaware and in accordance and compliance
with all applicable provisions of the Certificate of
Incorporation and Bylaws of BAP and the resolutions to be
adopted by the Board of Directors at the Board of Directors'
Meeting when adopted, will constitute the duly authorized
actions of BAP and will be in full force and effect as of the
Closing date hereof.
(q) No information furnished by BAP to be used in
connection with any filing to be made with the Securities and
Exchange Commission will contain when made or furnished, any
untrue statement of a material fact or will omit to state a
material fact necessary to make the statements contained
therein not misleading.
(r) Each of the representations, warranties and
agreements of BAP is true and correct in every respect as of
the date hereof. BAP will exonerate and indemnify Sellers
against all claims, suits, obligations, liabilities and
damages, including, without limitation of the foregoing,
reasonable attorney's fees, based upon, arising out of or
resulting from any breach of any of the representations,
warranties or agreements of BAP herein or any
certificate delivered pursuant hereto, or non fulfillment of
any of its undertakings hereunder or thereunder, or any actual
or alleged occurrence or situation in any way inconsistent
herewith or therewith.
(s) Every representation, warranty and agreement of
BAP set forth in this Agreement, and any certificate delivered
pursuant hereto and every one of the rights and remedies of
Sellers for any one or more breaches hereof shall survive and
not be deemed waived by the Closing for a period of two years
after the Closing, and shall be effective regardless of any
investigation that may have been made at any time by or on
behalf of Sellers.
5. The Closing.
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(a) The exchange of Sellers' shares in ▇▇▇▇▇▇▇▇ to
BAP shall occur at such time and place as shall be fixed by
the mutual consent of the parties. However such date shall be
no later than ten (10) days following the completion and
delivery of the audited financial statements of ▇▇▇▇▇▇▇▇. Said
date is herein sometimes called the "Closing".
(b) At the Closing:
(i) Sellers shall deliver to BAP
certificates evidencing not less than 100% of the
issued and outstanding shares of ▇▇▇▇▇▇▇▇, in each
case duly endorsed for transfer in blank or
accompanied by a blank stock power or with such other
endorsements or instruments of transfer as BAP may
reasonably request, together with other documents and
matters referred to in subparagraphs (a)(ii), and
(iii) of paragraph 7; and
(ii) BAP shall deliver certificates to
Sellers representing the shares of common stock of
BAP to be delivered pursuant to Paragraph 2 hereof,
together with other documents and matters referred to
in subparagraph (b)(ii) of paragraph 7.
6. Actions Prior to Closing.
-------------------------
(a) After the date of this Agreement and prior to the
Closing and except as may be first approved in writing by BAP
or Sellers as the case may be, or as otherwise permitted or
contemplated by this Agreement:
(i) The business of BAP and ▇▇▇▇▇▇▇▇ shall
be conducted only in the usual and ordinary course
without the creation of indebtedness for money
borrowed, except in the ordinary course of business;
(ii) No change shall be made in the Articles
of Incorporation or Bylaws of BAP or ▇▇▇▇▇▇▇▇;
(iii) No shares of stock of any class of BAP
or ▇▇▇▇▇▇▇▇ shall be authorized for issuance or
issued or delivered from treasury and no agreement
for such issuance or delivery thereof shall be
entered into;
(iv) No dividend or other distribution in of
and no redemption of any shares of stock of any class
shall be made by either BAP or ▇▇▇▇▇▇▇▇;
(v) No increases shall be made in the
compensation (including any bonus or profit-sharing
payment) payable or to become payable by either BAP
or ▇▇▇▇▇▇▇▇ to an employee;
(vi) No contract or commitment shall be
entered into by or on behalf of BAP or ▇▇▇▇▇▇▇▇
except in the ordinary course of business;
(vii) Each party will continue in effect
present insurance coverage on all its properties,
assets, business and personnel;
(viii) No general increases shall be made in
wages or benefits of any group of employees as a
result of collective bargaining or otherwise; and
(ix) Neither BAP or ▇▇▇▇▇▇▇▇ will (so far as
within its control and except in the ordinary course
of business) subject any property or assets to any
material lien, claim, charge, option or encumbrance
nor will it do or omit to do any act
which will cause a material breach in any contract,
agreement, lease, commitment or obligation to which
it is a party or by which it is bound.
( b) The parties agree that each of them will fully
cooperate each with the other and their respective counsel and
accountants in connection with any steps required to be taken
as part of their obligations under this Agreement.
(c) BAP will call a meeting of its Board of Directors
for the purpose of voting upon and authorizing this Agreement
and the transactions contemplated hereby. At such meeting the
directors shall be asked to consider and vote upon the
following actions:
(i) Approval to issue shares of common stock
to Sellers pursuant to this Agreement.
(ii) Resignation of current directors and
election of Sellers' designates as directors of BAP.
(iii) Approval of this Agreement.
(d) BAP will obtain the consent of shareholders
owning at least a majority of the outstanding common shares
(which consent shall be conditioned on the Closing) for the
following actions:
(i) Amending the Certificate of
Incorporation to change the name of the corporation
to REI, Inc.
(ii) Amending the Certificate of
Incorporation to decrease the authorized and issued
and outstanding shares of common stock by ratio of
ten (10) to on (1) and after such decrease to
increase the number of authorized shares of common
stock to 20,000,000.
(iii) Electing Sellers designates as
directors of BAP.
7. Conditions of BAP's and Sellers' Performance.
---------------------------------------------
(a) The obligation of BAP to consummate this
Agreement is subject to the satisfaction at the Closing, by
BAP in writing, of each of the following conditions:
(i) All proceedings taken in connection with
the transactions contemplated herein and all
instruments and documents required in connection
therewith or incident thereto shall be satisfactory
in form to legal counsel for BAP.
(ii) The representations and warranties of
Sellers contained in this Agreement or in any
certificate or document delivered to BAP pursuant
hereto shall be deemed to have been made again at the
Closing and shall then be true in all material
respects; Sellers shall have performed and complied
with all agreements and conditions required by this
Agreement to be performed or complied with by them
prior to or at the Closing; and BAP shall have been
furnished with certificates of appropriate officers
of ▇▇▇▇▇▇▇▇ dated at the Closing date, certifying to
the fulfillment of the foregoing conditions and
further certifying that neither ▇▇▇▇▇▇▇▇ or Sellers
are parties to any litigation or have knowledge of
any claim, brought or threatened, seeking to recover
damages or to prevent ▇▇▇▇▇▇▇▇ or Sellers from
continuing to use ▇▇▇▇▇▇▇▇'▇ assets or to conduct its
business in the manner the same were used or
conducted prior thereto, and which litigation or
claim is likely to result in any judgment, order,
decree or settlement which will materially and
adversely affect the financial condition or business
of ▇▇▇▇▇▇▇▇.
(iii) Sellers shall have executed and
delivered to BAP investment letters in the form set
forth in Exhibit "D" hereto.
(iv) Owners of not less than 100% of the
issued and outstanding shares of common stock of
▇▇▇▇▇▇▇▇ shall have executed this Agreement either
personally or pursuant to power of attorney.
(b) The obligation of Sellers to consummate this
Agreement is subject to the satisfaction at the Closing, or
waiver by Sellers in writing, of each of the following
conditions:
(i) All proceedings taken in connection with
the transactions contemplated herein and all
instruments and documents required in connection
therewith or incident thereto shall be satisfactory
in form to counsel for Sellers.
(ii) The representations and warranties of
BAP contained in this Agreement or in any certificate
or document delivered to Sellers pursuant hereto
shall be deemed to have been made again at the
Closing and shall then be true in all material
respects; BAP shall have performed and complied with
all agreements and conditions required by this
Agreement to be formed or complied with by it prior
to or at the Closing; and Sellers shall have been
furnished with certificates of appropriate officers
of BAP dated at the Closing date, certifying to the
fulfillment of the foregoing conditions and further
certifying that BAP is not a party to any litigation
or has knowledge of any claim, brought or threatened,
seeking to recover damages or to prevent BAP from
continuing to use its assets or to conduct its
business in the manner the same were used or
conducted prior thereto, and which litigation or
claim is likely to result in any judgment, order,
decree or settlement which will materially and
adversely affect the financial condition or business
of BAP.
(iii) BAP's directors shall have resigned
and appointed Seller's designates as directors.
8. Termination and Amendment.
--------------------------
(a) This Agreement may be terminated by either party
upon written notice if the Closing referred to in Section 5
hereof shall not have occurred on or prior to September 30,
1995.
(b) This Agreement may be terminated by either party
at any time prior to the time fixed for Closing in Section 5
hereof upon written notice to the other party:
(i) If the representations, warranties and
agreements or conditions of this Agreement to be
complied with or performed by Sellers (in the case of
BAP) or BAP (in the case of Sellers) on or before the
Closing shall not, in any material respect have been
complied with or performed and such material
noncompliance or nonperformance shall not have been
waived by the party giving notice of termination or
shall not have been cured by the defaulting party or
cure thereof commenced and diligently prosecuted
thereafter by such party 10 days after written notice
of such material noncompliance or nonperformance is
given by the non-defaulting party;
(ii) If any governmental action is commenced
to prevent the consummation of the transactions
contemplated hereby; or
(iii) By mutual consent of the parties.
(c) Any representation, warranty, agreement or
condition of this Agreement may be waived at any time by the
party entitled to the benefit thereof by action taken by the
Board of Directors of BAP or authorized committees or officers
thereof or by Sellers and evidenced by a written waiver
executed by any such party.
(d) In the event of termination, this Agreement shall
be of no further force or effect and no obligation, right or
liability shall arise hereunder and each party shall bear its
own costs incurred in connection with this Agreement.
9. Separability. If any term or provision of this Agreement
including the exhibits hereto or the application thereof to any person,
property or circumstances shall to any extent be invalid or unenforceable,
the remainder of this Agreement including the exhibits or the application of
such term or provision to persons, property or circumstances other than those
invalid and unenforceable shall not be affected thereby, and each term and
provision of this Agreement and the exhibits shall be valid and enforced to
the fullest extent permitted by law.
10. Notices. Any notice hereunder shall be deemed given, and
any instrument delivered, only two days after they have been mailed by
registered or certified mail, postage prepaid, or 12 hours after such notice
has been sent by straight telegram, telegraphic charges prepaid as follows:
Name Address
-------------------------------------------
To BAP: BAP Acquisition Corp.
c/o ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
To Sellers: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Una ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Except that any of the foregoing may from time to time by written notice to
the others designate another address which shall thereupon become its
effective address for the purposes of this paragraph.
11. Entire Agreement and Amendments. This Agreement,
including the exhibits referred to herein as a part hereof, contains the
entire understanding of the parties hereto with respect to the subject matter
contained herein and may be amended only by a written instrument executed by
Sellers and BAP or their respective successors or assigns. There are no
restrictions, promises, warranties, covenants, or undertakings other than
those expressly set forth herein. The section and paragraph headings contained
in this Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement.
12. Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the same
instrument.
13. Parties in Interest. This Agreement shall inure to the
benefit of and be binding upon Sellers and BAP and their respective successors
but shall not inure to the benefit of anyone other than the parties signatory
to this Agreement and their respective successors.
14. Merger of Agreements. All representations, warranties,
agreements and other inducements to this Agreement or the transactions
contemplated hereby, whether oral or written, prior to the execution and
delivery hereof, have been included herein, or in the exhibits hereto, and
shall be deemed to have been fully performed and discharged to the extent not
included herein or therein. This Agreement including the exhibits hereto sets
forth all rights, remedies, obligations and liabilities of the parties, and
no term or provision hereof or thereof, including, without limitation, the
terms and provisions contained in this sentence, shall be waived, modified or
altered as to impose any additional right or remedy, and no custom, payment,
act, knowledge, extension of time, favor or indulgence, gratuitous or
otherwise, or words or silence at any time, shall impose any additional
obligation or grant any additional right or remedy or be deemed a waiver or
release of any obligation, liability, right or remedy except as set forth in
a written instrument properly executed and delivered by the party sought to
be charged, expressly stating that it is, and to the extent to which it is,
intended to be so effective. No assent, express or implied, by either party
or waiver by either party, to or of, any breach of any term or provision of
this Agreement or of the exhibits shall be deemed to be an assent or waiver
to or of such or any succeeding breach of the same or any other such term or
provision. All representations, warranties, and agreements made herein by
anyone shall survive the Closing to the extent provided in this Agreement.
15. Applicable Law. This Agreement shall be construed and
enforced in accordance with the laws of the State of Florida.
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement on the date first above written.
BAP Acquisition Corp.
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President
▇▇▇▇▇▇▇▇ Enterprises International, Inc., Shareholders:
By:/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
By: /s/ Una ▇▇▇▇▇▇▇▇
--------------------------------
Una ▇▇▇▇▇▇▇▇
