EXHIBIT 10.1
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (the "Agreement") is made and
entered into this 19th day of April, 2004, by and between BPK RESOURCES, INC., a
Nevada corporation (the "BPK"), and MONTEX EXPLORATION, INC., a Delaware
corporation ("Montex").
RECITALS
WHEREAS, the Board of Directors of Montex and BPK have approved, and deem
it advisable and in the best interests of their respective companies and
stockholders to consummate, the transactions contemplated hereby upon the terms
and subject to the conditions set forth in this Agreement; and
WHEREAS, Montex is the owner of a certain undivided right to mineral
claims and concessions (collectively, the "Rights"), as more fully described in
that certain Letter of Intent, executed in November 2003, between Xxxx Coast
Capital Corp. and Montex, a copy of which is attached hereto as Exhibit A (the
"Letter of Intent"); and
WHEREAS, Montex wishes to assign to BPK, and BPK wishes to accept from
Montex, the Rights and all other rights Montex has under the Letter of Intent.
NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties, covenants and agreements contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
ARTICLE I
ASSIGNMENT AND ASSUMPTION
1.1 ASSIGNMENT AND ASSUMPTION.
Upon the terms and subject to the conditions set forth in this
Agreement, on the Closing Date (as defined below), the following transactions
(the "Transactions") shall be consummated:
(a) Montex shall assign, transfer, convey and deliver to BPK one
hundred percent (100%) of the Rights owned by Montex and all other rights Montex
has under the Letter of Intent, and BPK shall accept all right, title and
interest to the Rights and such other rights;
(b) BPK shall assume and faithfully perform and fulfill all of the
liabilities and obligations of Montex under the Letter of Intent;
(c) BPK shall: (i) issue to Montex five million (5,000,000) shares
(the "Shares") of common stock, par value $.001 per share, of BPK ("BPK Common
Stock"), (ii) pay to Montex One Hundred Eighty-Four Thousand Dollars ($184,000),
and (iii) reimburse Montex for all fees and expenses (the "Fees and Expenses")
incurred by Montex in connection with the preparation, negotiation and execution
of this Agreement.
1.2 CLOSING DATE.
The closing of the Transactions (the "Closing") shall take place at
a time and on a date to be specified by the parties (the "Closing Date") at the
offices of Xxxxxxx Gadon & Xxxxx, P.C., 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000, or at such other place as may be mutually agreed upon in
writing by the parties hereto. At the Closing: (i) Montex and BPK shall execute
any and all documents, certificates, consents and agreements necessary to
effectuate the transfer of the Rights, and to transfer and assign any and all
other rights Montex has under the Letter of Intent; (ii) BPK shall issue to
Montex certificates evidencing the Shares; (iii) BPK shall pay to Montex One
Hundred Eighty-Four Thousand Dollars ($184,000) by check or wire transfer of
immediately available funds; (iv) BPK shall pay to Montex an amount equal to the
value of the Fees and Expenses by check or wire transfer of immediately
available funds; and (v) each of the parties to this Agreement shall execute any
and all additional documents and agreements, provide any and all additional
consents and approvals, and take all such other actions as are required under
this Agreement to complete the Transactions.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF MONTEX
Montex hereby makes the following representations and warranties to
BPK:
2.1 ORGANIZATION AND QUALIFICATION.
Montex is duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization, with the corporate power and
authority to own and operate its business as presently conducted, except where
the failure to be or have any of the foregoing would not have a Material Adverse
Effect. Montex is duly qualified as a foreign corporation to do business and is
in good standing in each jurisdiction where the character of its properties
owned or held under lease or the nature of its activities makes such
qualification necessary, except for such failures to be so qualified or in good
standing as would not, individually or in the aggregate, have a Material Adverse
Effect
2.2 AUTHORIZATION; VALIDITY AND EFFECT OF AGREEMENT.
Montex has the requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement and to consummate the
Transactions. The execution and delivery of this Agreement by Montex and the
performance by Montex of its obligations hereunder and the consummation of the
Transactions have been duly authorized by its board of directors and all other
necessary corporate action on the part of Montex, and no other corporate
proceedings on the part of Montex are necessary to authorize this Agreement and
the Transactions. This Agreement has been duly and validly executed and
delivered by Montex and, assuming that it has been duly authorized, executed and
delivered by the other party hereto, constitutes a legal, valid and binding
obligation of Montex, enforceable against it in accordance with its terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
2.3 NO CONFLICT; REQUIRED FILINGS AND CONSENTS.
Neither the execution and delivery of this Agreement by Montex nor
the performance by Montex of its obligations hereunder, nor the consummation of
the Transactions, will: (i) conflict with Montex's Certificate of Incorporation
or Bylaws; (ii) violate any statute, law, ordinance, rule or regulation
applicable to Montex or any of its properties or assets; or (iii) violate,
breach, be in conflict with or constitute a default (or an event that, with
notice or lapse of time or both, would constitute a default) under, or permit
the termination of any provision of, or result in the termination of, the
acceleration of the maturity of, or the acceleration of the performance of any
obligation of Montex under, or result in the creation or imposition of any Liens
upon any properties, assets or business of Montex under, any material contract
or any order, judgment or decree to which Montex is a party or by which Montex
or any of its assets or properties is bound or encumbered except, in the case of
clauses (ii) and (iii), for such violations, breaches, conflicts, defaults or
other occurrences that, individually or in the aggregate, would not have a
Material Adverse Effect.
2.4 TITLE TO THE RIGHTS.
Montex has good and marketable title to the Rights, nee and clear of
all Liens and Encumbrances. Montex has delivered to BPK or otherwise made
available, correct and complete copies of all material agreements or other
material instruments relating to the Rights. There are no pending or, to
Montex's knowledge, threatened proceedings relating to the Rights. Except for
this Agreement (i) there are no outstanding agreements, preemptive rights or
other rights to subscribe for, purchase or otherwise acquire the Rights, and
(ii) there are no outstanding obligations of any Person to repurchase, redeem or
otherwise acquire any of the Rights.
2.5 INVESTMENT INTENT.
The Shares being acquired in connection with the Transactions are
being acquired for Montex's own account for investment purposes only and not
with a view to, or with any present intention of, distributing or reselling any
of such Shares. Montex acknowledges and agrees that the Shares have not been
registered under the Securities Act or under any state securities laws, and that
the Shares may not be, directly or indirectly, sold, transferred, offered for
sale, pledged, hypothecated or otherwise disposed of without registration under
the Securities Act and applicable state securities laws, except pursuant to an
available exemption from such registration. Montex also acknowledges and agrees
that neither the SEC nor any securities commission or other Governmental
Authority has (a) approved the transfer of the Shares or passed upon or endorsed
the merits of the transfer of the Shares, this Agreement or the Transactions; or
(b) confirmed the accuracy of, determined the adequacy of, or reviewed this
Agreement. Montex has such knowledge, sophistication and experience in
financial, tax and business matters in general, and investments in securities in
particular, that it is capable of evaluating the merits and risks of this
investment in the Shares, and Montex has made such investigations in connection
herewith as it deemed necessary or desirable so as to make an informed
investment decision without relying upon BPK for legal or tax advice related to
this investment. Montex is an "accredited investor" within the meaning of Rule
501 promulgated under the Securities Act.
2.6 BROKERS AND FINDERS FEES.
Neither Montex or any of its subsidiaries, nor any of their
respective officers, directors, employees or managers, has employed any broker
or finder or incurred any liability for any investment banking fees, brokerage
fees, commissions or finders fees in connection with the Transactions for which
Montex or any of its subsidiaries has or could have any liability.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BPK
BPK hereby makes the following representations and warranties to Montex:
3.1 ORGANIZATION AND QUALIFICATION.
(a) BPK is duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization, with the corporate power and
authority to own and operate its business as presently conducted, except where
the failure to be or have any of the foregoing would not have a Material Adverse
Effect. BPK is duly qualified as a foreign corporation or other entity to do
business and is in good standing in each jurisdiction where the character of its
properties owned or held under lease or the nature of its respective activities
makes such qualification necessary. except for such failures to be so qualified
or in good standing as would not have a Material Adverse Effect.
3.2 AUTHORIZATION; VALIDITY AND EFFECT OF AGREEMENT.
BPK has the requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement and to consummate the
Transactions. The execution and delivery of this Agreement by BPK and the
performance by BPK of its obligations hereunder and the consummation of the
Transactions have been duly authorized by its Board of Directors and all other
necessary corporate action on the part of BPK, and no other corporate
proceedings on the part of BPK are necessary to authorize this Agreement and the
Transactions. This Agreement has been duly and validly executed and delivered by
BPK and, assuming that it has been duly authorized, executed and delivered by
the other parties hereto, constitutes a legal, valid and binding obligation of
BPK in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
3.3 NO CONFLICT; REQUIRED FILINGS AND CONSENTS.
Neither the execution and delivery of the Agreement by BPK, nor the
performance by BPK of its obligations hereunder or the consummation of the
Transactions, will: (i) conflict with BPK's Articles of Incorporation or Bylaws;
(ii) violate any statute, law, ordinance, rule or regulation applicable to BPK
or any of its properties or assets; or (iii) violate, breach, be in conflict
with or constitute a default (or an event which, with notice or lapse of time or
both, would constitute a default) under, or permit the termination of any
provision of, or result in the termination of, the acceleration of the maturity
of, or the acceleration of the performance of any obligations of, BPK, or result
in the creation or imposition of any Lien upon any of its properties, assets or
business under, any material contract or any order, judgment or decree to which
BPK is a party or by which it or any of its assets or properties is bound or
encumbered except, in the case of clauses (ii) and (iii), for such violations,
breaches, conflicts, defaults or other occurrences which, individually or in the
aggregate, would not have a Material Adverse Effect on its obligation to perform
its covenants under this Agreement.
3.4 ISSUANCE OF SHARES.
The Shares have been duly authorized and, when issued and paid for
in accordance with this Agreement, will be validly issued, fully paid and
non-assessable shares of BPK Common Stock, with no personal liability resulting
solely from the ownership of such shares, and will be free and clear of all
liens, charges, restrictions, claims and encumbrances imposed by or through BPK.
3.5 BROKERS AND FINDERS.
Neither BPK nor any of its officers, directors, employees or
managers, has employed any broker or finder or incurred any liability for any
investment banking fees, brokerage fees, commissions or finders' fees in
connection with the Transactions for which BPK has or could have any liability.
ARTICLE IV
CERTAIN COVENANTS
4.1 CONFIDENTIALITY.
Each party shall hold, and shall cause its respective Affiliates and
representatives to hold, all Confidential Information made available to it in
connection with the Transactions in strict confidence, shall not use such
information except for the sole purpose of evaluating the Transactions and shall
not disseminate or disclose any of such information other than to its directors,
officers, managers, employees, shareholders, interest holders, Affiliates,
agents and representatives, as applicable, who need to know such information for
the sole purpose of evaluating the Transactions (each of whom shall be informed
in writing by the disclosing party of the confidential nature of such
information and directed by such party in writing to treat such information
confidentially). The above limitations on use, dissemination and disclosure
shall not apply to Confidential Information that (i) is learned by the
disclosing party from a third party entitled to disclose it; (ii) becomes known
publicly other than through the disclosing party or any third party who received
the same from the disclosing party, provided that the disclosing party had no
knowledge that the disclosing party was subject to an obligation of
confidentiality; (iii) is required by law or court order to be disclosed by the
parties; or (iv) is disclosed with the express prior written consent thereto of
the other party. The parties shall undertake all necessary steps to ensure that
the secrecy and confidentiality of such information will be maintained in
accordance with the provisions of this Section 4.1. Notwithstanding anything
contained herein to the contrary, in the event a party is required by court
order or subpoena to disclose information that is otherwise deemed to be
confidential or subject to the confidentiality obligations hereunder, prior to
such disclosure, the disclosing party shall: (i) promptly notify the
non-disclosing party and, if having received a court order or subpoena, deliver
a copy of the same to the nondisclosing party; (ii) cooperate with the
non-disclosing party, at the expense of the non-disclosing party, in obtaining a
protective or similar order with respect to such information; and (iii) provide
only that amount of information as the disclosing party is advised by its
counsel is necessary to strictly comply with such court order or subpoena.
4.2 PUBLIC ANNOUNCEMENTS.
Montex shall consult with BPK before issuing any press release or
otherwise making any public statements with respect to the Transactions or this
Agreement, and shall not issue any other press release or make any other public
statement without the prior written consent of BPK, except as may be required by
law or by obligations imposed under the rules or regulations of the Exchange
Act, the Securities Act or any rule or regulation promulgated thereunder or any
rule or regulation of a securities exchange or the National Association of
Securities Dealers.
4.3 PROHIBITION ON TRADING IN BPK SECURITIES.
Montex acknowledges that information concerning the matters that are
the subject matter of this Agreement may constitute material non-public
information under United States federal securities laws, and that United States
federal securities laws prohibit any Person who has received material non-public
information relating to BPK from purchasing or selling securities of BPK, or
from communicating such information to any Person under circumstances in which
it is reasonably foreseeable that such Person is likely to purchase or sell
securities of BPK. Accordingly, until such time as any such non-public
information has been adequately disseminated to the public, Montex shall not
purchase or sell any securities of BPK or communicate such information to any
other Person.
4.4 FURTHER ASSURANCES.
Each of the parties hereto agrees to use its reasonable best efforts
to take or cause to be taken all action, to do or cause to be done, and to
assist and cooperate with the other party hereto in doing, all things necessary,
proper or advisable under applicable laws to consummate and make effective, in
the most expeditious manner practicable, the Transactions, including, but not
limited to: (i) the satisfaction of the conditions precedent to the obligations
of any of the parties hereto; (ii) the defending of any lawsuits or other legal
proceedings, whether judicial or administrative, challenging this Agreement or
the performance of the obligations hereunder; and (iii) the execution and
delivery of such instruments, and the taking of such other actions, as the other
party hereto may reasonably require in order to carry out the intent of this
Agreement.
4.5 NOTIFICATION OF CERTAIN MATTERS.
Each party hereto shall promptly notify the other party in writing
of any events, facts or occurrences that would result in any breach of any
representation or warranty or breach of any covenant by such party contained in
this Agreement.
ARTICLE V
MISCELLANEOUS
5.1 ENTIRE AGREEMENT.
This Agreement and the schedules and exhibits hereto contain the
entire agreement between the parties and supercede all prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof.
5.2 AMENDMENT AND MODIFICATIONS.
This Agreement may not be amended, modified or supplemented except
by an instrument or instruments in writing signed by the party against whom
enforcement of any such amendment, modification or supplement is sought.
5.3 EXTENSIONS AND WAIVERS.
At any time prior to the Closing, the parties hereto entitled to the
benefits of a term or provision may (a) extend the time for the performance of
any of the obligations or other acts of the parties hereto, (b) waive any
inaccuracies in the representations and warranties contained herein or in any
document, certificate or writing delivered pursuant hereto, or (c) waive
compliance with any obligation, covenant, agreement or condition contained
herein. Any agreement on the part of a party to any such extension or waiver
shall be valid only if set forth in an instrument or instruments in writing
signed by the party against whom enforcement of any such extension or waiver is
sought. No failure or delay on the part of any party hereto in the exercise of
any right hereunder shall impair such right or be construed to be a waiver of,
or acquiescence in, any breach of any representation, warranty, covenant or
agreement.
5.4 SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns, provided, however,
that no party hereto may assign its rights or delegate its obligations under
this Agreement without the express prior written consent of the other party
hereto. Nothing in this Agreement is intended to confer upon any person not a
party hereto (and their successors and assigns) any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
5.5 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS.
The representations and warranties contained herein shall survive
the Closing and shall thereupon terminate eighteen (18) months after the
Closing, except that the representations contained in Sections 2.1, 2.2, 2.4,
3.1, 3.2 and 3.4 shall survive indefinitely. All covenants and agreements
contained herein which by their terms contemplate actions following the Closing
shall survive the Closing and remain in full force and effect in accordance with
their terms. All other covenants and agreements contained herein shall not
survive the Closing and shall thereupon terminate.
5.6 HEADINGS; DEFINITIONS.
The Section and Article headings contained in this Agreement are
inserted for convenience of reference only and will not affect the meaning or
interpretation of this Agreement. All references to Sections or Articles
contained herein mean Sections or Articles of this Agreement unless otherwise
stated. All capitalized terms defined herein are equally applicable to both the
singular and plural forms of such terms.
5.7 SEVERABILITY.
If any provision of this Agreement or the application thereof to any
Person or circumstance is held to be invalid or unenforceable to any extent, the
remainder of this Agreement shall remain in full force and effect and shall be
reformed to render the Agreement valid and enforceable while reflecting to the
greatest extent permissible the intent of the parties.
5.8 SPECIFIC PERFORMANCE.
The parties hereto agree that in the event that Montex fails to
consummate the Transactions in accordance with the terms of this Agreement,
irreparable damage would occur, no adequate remedy at law would exist and
damages would be difficult to determine, and that BPK shall be entitled to
specific performance in such event, without the necessity of proving the
inadequacy of money damages as a remedy, in addition to any other remedy at law
or in equity.
5.9 EXPENSES.
Whether or not the Transactions are consummated, and except as
otherwise expressly set forth herein, all legal and other costs and expenses
incurred in connection with the Transactions shall be paid by the party
incurring such expenses.
5.10 NOTICES.
All notices hereunder shall be sufficiently given for all purposes
hereunder if in writing and delivered personally, sent by documented overnight
delivery service or, to the extent receipt is confirmed, telecopy, telefax or
other electronic transmission service to the appropriate address or number as
set forth below.
If to BPK: with a copy to:
BPK Resources, Inc. Xxxxxxx Xxxxx & Xxxxx, P.C.
0000 Xxxxxxxxxx Xxxxxx 0000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxx 000 Xxxxxxxxxxxx, XX 00000
Xxxxxxx, Xxxxx 00000 Attention: Xxxxxxx X. Xxxxxx,
Esquire
Attention: Chief Executive Officer
If to Montex:
Montex Exploration, Inc.
III Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxxx, XX 00000
Attention: President
5.11 GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Pennsylvania, without regard to the laws that
might otherwise govern under applicable principles of conflicts of laws thereof,
except to the extent that the laws of the State of Delaware shall apply to the
internal corporate governance of Montex.
5.12 ARBITRATION.
If a dispute arises as to the interpretation of this Agreement, it
shall be decided in an arbitration proceeding conforming to the Rules of the
American Arbitration Association applicable to commercial arbitration then in
effect at the time of the dispute. The arbitration shall take place in the
Commonwealth of Pennsylvania. The decision of the Arbitrators shall be
conclusively binding upon the parties and final, and such decision shall be
enforceable as a judgment in any court of competent jurisdiction. The parties
shall share equally the costs of the arbitration.
5.13 COUNTERPARTS.
This Agreement may be executed in two or more counterparts an
delivered by facsimile transmission, each of which shall be deemed to be an
original, but all of which together shall constitute one and the same agreement.
5.14 CERTAIN DEFINITIONS.
As used herein:
(a) "Affiliate" shall have the meanings ascribed to such term in
Rule 12b-2 of the Exchange Act;
(b) "Confidential Information" shall mean the existence and contents
of this Agreement and any Schedules and Exhibits hereto, and all proprietary
technical, economic, environmental, operational, financial and/or business
information or material of one party which, prior to or following the Closing
Date, has been disclosed by Montex, on the one hand, or BPK, on the other hand,
in written, oral (including by recording), electronic or visual form to, or
otherwise has come into the possession of, the other;
(c) "Encumbrances" shall mean any security or other property
interest or right, claim, lien, pledge, option, charge, security interest,
contingent or conditional sale, or other title claim or retention agreement,
interest or other right or claim of third parties, whether perfected or not
perfected, voluntarily incurred or arising by operation of law, and including
any agreement (other than this Agreement) to grant or submit to any of the
foregoing in the future;
(d) "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended;
(e) "Governmental Authority" shall mean any nation or government,
any state, municipality or other political subdivision thereof and any entity,
body, agency, commission or court, whether domestic, foreign or multinational,
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government and any executive official thereof;
(f) "Liens" shall mean liens, pledges, charges, claims, security
interests, purchase agreements, options, title defects, restrictions on transfer
or other encumbrances, or any agreements (other than this Agreement) to do any
of the foregoing, of any nature whatsoever, whether consensual, statutory or
otherwise;
(g) "Material Adverse Effect" shall mean any adverse effect on the
business, condition (financial or otherwise) or results of operation of (i) in
the case of Montex, Montex and its subsidiaries, if any, that is material to
Montex and its subsidiaries, if any, taken as a whole, or (ii) in the case of
BPK, BPK and its subsidiaries, if any, that is material to BPK and its
subsidiaries, if any, taken as a whole;
(h) "Person" shall mean any individual, corporation, partnership,
association, trust or other entity or organization, including a governmental or
political subdivision or any agency or institution thereof;
(i) "SEC" shall mean the Securities and Exchange Commission; and
(j) "Securities Act" shall mean the Securities Act of 1933, as
amended.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
BPK RESOURCES, INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------
Xxxxxx X. Xxxxx
Chief Executive Officer and Treasurer
MONTEX EXPLORATION, INC.
By: /s/ Xxxxx Xxxxxxxxx
----------------------------
Xxxxx Xxxxxxxxx
President
Omitted Exhibit
The following exhibit to the Assignment and Assumption has been omitted:
Exhibit Exhibit Description
A Letter of Intent
The Company agrees to furnish supplementally a copy of the foregoing
omitted exhibit to the Securities and Exchange Commission upon request.
