SHARE PURCHASE AGREEMENT
This Share Purchase Agreement ("Agreement"), dated as of January 17, 2005,
between Xxxxx Xxxxxxxx and Xxxx Xx and Bayview Management LLC. (the "Buyer") and
Bayview Corporation (BV).
W I T N E S S E T H:
A. WHEREAS, Sellers are the principal shareholders of BV.
B. WHEREAS, Buyer wishes to purchase an aggregate of 1,050,000 shares of
common stock of Bayview (BV) from Sellers (the "Purchase Shares"), after all of
the conditions under this contract have been performed and Sellers desire to
sell the Purchase Shares to Buyer pursuant to this agreement.
C. WHEREAS, prior to the transaction Buyer is not an affiliate of BV.
D. Bayview Corporation is joining this Agreement to make certain
warranties and representations.
NOW, THEREFORE, it is agreed among the parties as follows:
ARTICLE I
The Consideration
1.1 Subject to the conditions set forth herein, Sellers shall sell to Buyer
and Buyer shall purchase 1,050,000 common shares of Bayview Corporation. The
aggregate purchase price for the shares to be paid by Buyer to Sellers is
$725,000 (the "Consideration") of which $725,000 is herewith paid as full
consideration for the purchase of Sellers shares if all of the terms and
conditions of this Agreement are met.
ARTICLE II
Closing and Issuance of Shares
2.1 The Sellers shares (1,050,000) shall be delivered to Buyer upon
delivery of the cash purchase consideration of $725,000 to Sellers.
2.2 Closing hereunder shall be completed upon delivery of the cash
consideration, and share certificates on or before January 15, 2005 at 5:00 p.m.
MDT ("Closing Date") subject to satisfaction of the terms and conditions set
forth herein.
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ARTICLE III
Representations, Warranties and Covenants of Sellers and Bayview Corporation
Sellers and BV hereby represent, warrant and covenant to Buyer as follows:
3.1 Bayview Corporation (BV) is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada, and has the
corporate power and authority carry on its business. The Articles of
Incorporation and Amendments and Bylaws of BV, which will be delivered to Buyer
at closing, are complete and accurate, and the minute books of BV, copies of
which have also been delivered to Buyer, contain a record, which is complete and
accurate in all material respects, of all meetings, and all corporate actions of
the shareholders and Board of Directors of BV.
3.2 The authorized capital stock of BV consists of 100,000,000 shares of
common stock and 10,000,000 shares of Preferred Stock. There are 3,272,500
shares of Common Stock of BV issued and outstanding as of date hereof. No shares
of Preferred Stock are outstanding. All such shares of capital stock of BV are
validly issued, fully paid, non-assessable and free of preemptive rights. BV has
no outstanding warrants, or other rights to purchase, or subscribe to, or other
securities convertible into or exchangeable for any shares of capital stock of
BV, or contracts or arrangements of any kind relating to the issuance, sale or
transfer of any capital stock or other equity securities of BV.
3.3 This Agreement has been duly authorized, validly executed and delivered
on behalf of BV and Sellers and is a valid and binding agreement and obligation
of BV and Sellers enforceable against the parties in accordance with its terms,
subject to limitations on enforcement by general principles of equity and by
bankruptcy or other laws affecting the enforcement of creditors' rights
generally, BV and Sellers have complete and unrestricted power to enter into and
to consummate the transactions contemplated by this Agreement.
3.4 Neither the making of nor the compliance with the terms and provisions
of this Agreement and consummation of the transactions contemplated herein by
Sellers and BV will conflict with or result in a breach or violation of the
Articles of Incorporation or Bylaws of BV, or of any material provisions of any
indenture, mortgage, deed of trust or other material agreement or instrument to
which Sellers or BV is a party, or of any material provision of any law,
statute, rule, regulation, or any existing applicable decree, judgment or order
by any court, federal or state regulatory body, administrative agency, or other
governmental body having jurisdiction over BV or Sellers, or any of its material
properties or assets, or will result in the creation or imposition of any
material lien, charge or encumbrance upon any material property or assets of BV
pursuant to the terms of any agreement or instrument to which BV is a party or
by which BV may be bound or to which any of BV property is subject and no event
has occurred with which lapse of time or action by a third party could result in
a material breach or violation of or default by Sellers or BV.
3.5 There is no claim, legal action, arbitration, governmental
investigation or other legal or administrative proceeding, nor any order, decree
or judgment in progress, pending or in effect, or to the best knowledge of BV or
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Sellers threatened against or relating to BV or affecting any of its assets,
properties, business or capital stock. There is no continuing order, injunction
or decree of any court, arbitrator or governmental authority to which BV is a
party or by which BV or its assets, properties, business or capital stock are
bound.
3.6 BV has accurately prepared and filed all federal, state and other tax
returns required by law, domestic and foreign, to be filed by it through its
fiscal 2003 year and has paid or made provisions for the payment of all taxes
shown to be due and all additional assessments, and adequate provisions have
been and are reflected in the financial statements of BV for all current taxes
and other charges to which BV is subject and which are not currently due and
payable. None of the Federal income tax returns of BV have been audited by the
Internal Revenue Service or other foreign governmental tax agency. Sellers has
no knowledge of any additional assessments, adjustments or contingent tax
liability (whether federal or state) pending or threatened against BV for any
period, nor of any basis for any such assessment, adjustment or contingency.
3.7 BV has delivered to Buyer unaudited financial statements for the period
ended September 30, 2004. All such statements, herein sometimes called "BV
Financial Statements" are complete and correct in all material respects and,
together with the notes to these financial statements, present fairly the
financial position and results of operations of BV for the periods indicated
within the knowledge of BV. All financial statements of BV have been prepared in
accordance with generally accepted accounting principles.
3.8 As of the date hereof, BV and Sellers, represent and warrant that all
outstanding indebtedness of BV is as shown on the financial statements attached
hereto (the updated statements) as of September 30, 2004. Any and all accruals
to officers and directors shall be waived and released by each officer or
director, in writing at closing.
3.9 Since the dates of the updated BV Financial Statements, there have not
been any material adverse changes in the business or condition, financial or
otherwise, of BV within the knowledge of BV or Sellers. BV does not have any
liabilities, commitments or obligations, secured or unsecured except as shown on
updated financials (whether accrued, absolute, contingent or otherwise), and
except for accruals, for legal fees, consulting fees and costs of this
transaction.
3.10 BV is not a party to any contract performable in the future.
3.11 The representations and warranties of Sellers and BV shall be true and
correct as of the date hereof and closing date.
3.12 Sellers and BV will deliver to Buyer, all of BV corporate books and
records, and will turn over all original corporate records at closing.
3.13 BV has no employee benefit plan in effect at this time.
3.14 No representation or warranty by the Sellers or BV in this Agreement,
or any certificate delivered pursuant hereto contains any untrue statement of a
material fact or omits to state any material fact necessary to make such
representation or warranty not misleading.
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3.15 Buyer has received copies of Form SB-2 as filed with the
Securities and Exchange Commission ("SEC") which included audits for the year
ended December 31, 2003 and each of its other reports to shareholders filed with
the SEC through the period of September 30, 2004. BV is a registered company
under the Securities Exchange Act of 1934, as amended and is current in its
filings, or, is a reporting company under Section 15D of the Securities Exchange
Act.
3.16 Sellers and BV have not made to Buyer any general solicitation or
general advertising regarding the shares of common stock.
3.17 BV has incurred no liabilities except as shown on the financial
statements or referenced in 3.8 hereof and fees in conjunction with this
transaction, which fees incurred in conjunction with this transaction shall be
paid at closing from Sellers proceeds.
ARTICLE IV
Procedure for Closing
4.1 At the Closing Date, the purchase and sale shall be consummated after
satisfaction of all conditions precedent set forth in Article V and VIII, by
Sellers's stock certificates for the Purchase Shares being delivered, duly
signed by Sellers and medallion guaranteed for 1,050,000 shares of common stock,
to Buyer, upon receipt of the Consideration for the share purchase, together
with issuance or delivery of all other items, agreements, warranties, and
representations set forth in this Agreement.
ARTICLE V
Conditions Precedent to the
Consummation of the Purchase
The following are conditions precedent to the consummation of the Agreement
on or before the Closing Date:
5.1 Sellers and BV shall have performed and complied with all of its
respective obligations hereunder which are to be complied with or performed on
or before the Closing Date.
5.2 No action, suit or proceeding shall have been instituted or shall have
been threatened before any court or other governmental body or by any public
authority to restrain, enjoin or prohibit the transactions contemplated herein,
or which might subject any of the parties or BV hereto or their directors or
officers to any material liability, fine, forfeiture or penalty on the grounds
that the transactions contemplated hereby, the parties hereto or their directors
or officers, have violated any applicable law or regulation or have otherwise
acted improperly in connection with the transactions contemplated hereby, and
the parties hereto have been advised by counsel that, in the opinion of such
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counsel, such action, suit or proceeding raises substantial questions of law or
fact which could reasonably be decided adversely to any party hereto or its
directors or officers.
5.3 The representations and warranties made by Sellers and BV in this
Agreement shall be true as though such representations and warranties had been
made or given on and as of the Closing Date, except to the extent that such
representations and warranties may be untrue on and as of the Closing Date
because of changes caused by transactions suggested or approved in writing by
the Buyer.
ARTICLE VI
Termination and Abandonment
6.1 Anything contained in this Agreement to the contrary
notwithstanding, the Agreement may be terminated and abandoned at any time prior
to or on the Closing Date:
(a) By mutual consent of parties;
(b) By either party, if any condition set forth in Article V or any
other Article relating to the other party has not been met or has
not been waived;
(c) By Buyer, if any suit, action, or other proceeding shall be
pending or threatened by the federal or a state government before
any court or governmental agency, in which it is sought to
restrain, prohibit, or otherwise affect the consummation of the
transactions contemplated hereby;
(d) By Buyer, if there is discovered any material error, misstatement
or omission in the representations and warranties of another
party;
(e) By Sellers, if the Closing does not occur, through no failure to
act by Sellers, on closing date, or if Buyer fails to deliver the
consideration required herein;
(f) If all of the outstanding liabilities cannot be settled at
closing;
6.2 Any of the terms or conditions of this Agreement may be waived at
any time by the party which is entitled to the benefit thereof.
ARTICLE VII
Continuing Representations and
Warranties and Covenants
7.1 The respective representations, warranties, and covenants of the
parties hereto and agreements of the parties hereto shall survive after the
closing under this Agreement for a period of two years hereafter in accordance
with the terms thereof.
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ARTICLE VIII
Miscellaneous
8.1 This Agreement embodies the entire agreement between the parties, and
there have been and are no agreements, representations or warranties among the
parties other than those set forth herein or those provided for herein.
8.2 To facilitate the execution of this Agreement, any number of
counterparts hereof may be executed, and each such counterpart shall be deemed
to be an original instrument, but all such counterparts together shall
constitute but one instrument.
8.3 All parties to this Agreement agree that if it becomes necessary or
desirable to execute further instruments or to make such other assurances as are
deemed necessary, the party requested to do so will use its best efforts to
provide such executed instruments or do all things necessary or proper to carry
out the purpose of this Agreement.
8.4 This Agreement may not be amended except by written consent of both
parties.
8.5 Any notices, requests, or other communications required or permitted
hereunder shall be delivered personally or sent by overnight courier service,
prepaid, addressed as follows:
To Sellers: Xxxxx Xxxxxxxx
Xxxx Xx
To Buyer: Bayview Investments, LLC
0000 X. Xxxxxxx Xx., Xxx 000
Xxxxxxxxx Xxxxxxx, XX 00000
or such other addresses as shall be furnished in writing by any party, and any
such notice or communication shall be deemed to have been given as of the date
received.
8.6 No press release or public statement will be issued relating to the
transactions contemplated by this Agreement without prior approval of the Buyer
and Sellers. However, BV may issue at any time any press release or other public
statement it believes on the advice of its counsel it is obligated to issue to
avoid liability under the law relating to disclosures, but the party issuing
such press release or public statement shall make a reasonable effort to give
the other party prior notice of and opportunity to participate in such release
or statement.
8.7 This Agreement shall be governed by and construed in accordance with
and enforced under the laws of the state of Colorado applicable to all
agreements made hereunder. Venue and jurisdiction for any legal actions
hereunder shall be District Court in and for Jefferson County, Colorado.
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8.8 In the event of a breach or default of this Agreement or any of the
continuing covenants hereunder which results in a party or any effected
shareholder who is a beneficiary of a surviving or continuing covenant,
commencing legal action, the prevailing party in such legal action shall be
entitled to an award of all legal fees and costs of the action, against the
non-prevailing party.
8.9 Buyers shall designate a person to be appointed at closing as CEO/CFO,
effective at closing.
8.12 Concurrent with the consummation hereof, Sellers shall cause the Board
of BV to appoint two new directors, of Buyer's choice, and Xxxxx Xxxxxxxx and
Xxxx Xx shall resign effective 10 days after mailing of Notice to Shareholders
on Form 14f pursuant to the Securities & Exchange Act of 1934.
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IN WITNESS WHEREOF, the parties have executed this Agreement this 17th day
of January, 2005.
BAYVIEW CORPORATION XXXXX XXXXXXXX
By: /s/ Xxxx Xxxxx By: /s/ Xxxx Xxxxx
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Xxxx Xxxxx as agent for Xxxx Xxxxx as agent for
Xxxxx Xxxxxxxx, director Xxxxx Xxxxxxxx
BUYER: XXXX XX
BAYVIEW MANAGEMENT LLC
By: /s/ Xxxxx Xxxxxxxx /s/ Xxxx Xxxxx
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Xxxx Xxxxx as agent for
Xxxx Xx
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