AGREEMENT AND PLAN OF MERGER
BY AND BETWEEN
BAYMARK TECHNOLOGIES, INC.,
BT Acquisitions, Inc.,
and
JIG JIG, LLC,
December 16, 2005
TABLE OF CONTENTS
ARTICLE I Definitions..............................................1
ARTICLE II Transactions; Terms of Merger; Manner of Converting Shares...8
2.1 Merger.......................................................8
2.2 Time and Place of Closing....................................8
2.3 Effective Time...............................................8
2.4 Certificate of Merger........................................5
2.5 Charter......................................................8
2.6 Bylaws.......................................................8
2.7 Directors and Officers.......................................8
2.8 Conversion of Shares.........................................9
2.9 Exchange of Shares...........................................9
2.10 Rights of Former JIGJIG Stockholders.........................9
2.11 Legending of Shares.........................................10
2.12 Fractional Shares...........................................10
2.13 Lost, Stolen or Destroyed Certificates......................10
ARTICLE III Representations and Warranties of BYMT AND PURCHASER....10
3.1 Organization; Standing and Power............................11
3.2 Authorization; Enforceability...............................11
3.3 No Violation or Conflict....................................11
3.4 Consents of Governmental Authorities and Others.............11
3.5 Conduct of Business.........................................11
3.6 Litigation..................................................12
3.7 Brokers.....................................................12
3.8 Compliance..................................................12
3.9 Charter, Bylaws and Corporate Records.......................13
3.10 Subsidiaries and Investments................................13
3.11 Capitalization..............................................13
3.12 Rights, Warrants, Options...................................13
3.13 Commission Filings and Financial Statements.................14
3.14 Absence of Undisclosed Liabilities..........................14
3.15 Real Property...............................................14
3.16 List of Accounts and Proxies................................14
3.17 Personnel...................................................14
3.18 Employment Agreements and Employee Benefit Plans............15
3.19 Tax Matters.................................................15
3.20 Material Agreements.........................................17
3.21 Guaranties..................................................18
3.22 Absence of Certain Business Practices.......................18
3.23 Disclosure..................................................18
ARTICLE IV Representations and Warranties of JIG...................18
4.1 Organization................................................18
4.2 Authorization; Enforceability...............................19
4.3 No Violation or Conflict....................................19
4.4 Consents of Governmental Authorities and Others.............19
4.5 Brokers.....................................................19
4.6 Charter, Bylaws and Corporate Records.......................19
4.7 Subsidiaries and Investments................................19
4.8 Capitalization..............................................20
4.9 Rights, Warrants, Options...................................20
ARTICLE V Additional Agreements...................................20
5.1 Survival of the Representations and Warranties..............20
5.2 Investigation...............................................20
5.3 Indemnification.............................................21
5.4 Indemnity Procedure.........................................21
ARTICLE VI Closing; Deliveries; Conditions Precedent...............22
6.1 Closing; Effective Date.....................................22
6.2 Deliveries..................................................22
6.3 Conditions Precedent to the Obligations of JIGJIG...........23
6.4 Conditions Precedent to the Obligations of BYMT.............25
6.5 Best Efforts................................................25
6.6 Termination.................................................25
ARTICLE VII Covenants...............................................26
7.1 General Confidentiality.....................................26
7.2 Continuing Obligations......................................27
7.3 Satisfaction of Certain Outstanding Payables................27
7.4 Tax Matters.................................................27
7.5......No Reverse Covenant ....................................28
ARTICLE VIII Miscellaneous...........................................28
8.1 Notices.....................................................28
8.2 Entire Agreement; Incorporation.............................29
8.3 Binding Effect..............................................29
8.4 Assignment..................................................29
8.5 Waiver and Amendment........................................29
8.6 No Third Party Beneficiary..................................29
8.7 Severability................................................29
8.8 Expenses....................................................30
8.9 Headings....................................................30
8.10 Other Remedies; Injunctive Relief...........................30
8.11 Counterparts................................................30
8.12 Remedies Exclusive..........................................30
8.13 Jurisdiction and Venue......................................30
8.14 Participation of Parties....................................27
8.15 Further Assurances..........................................31
8.16 Publicity...................................................31
8.17................................................................ 31
8.18 ............................................................... 31
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (the "Agreement"), dated as of November
__, 2005, by and among JIGJIG, LLC, an Ohio Limited Liability Company ("JIG,
LLC"); BAYMARK TECHNOLOGIES, INC., a Utah corporation ("BYMT"); BYMT and BT
Acquisitions, Inc., a Colorado corporation (the "Purchaser").
W I T N E S S E T H:
Preamble
The respective Boards of Directors of BYMT and Purchaser and Manager of
JIG are of the opinion that the transactions described herein are in the best
interests of the parties to this Agreement and their respective interest
holders. This Agreement provides for the acquisition of JIG by BYMT pursuant to
the merger of Purchaser with JIG. At the effective time of such merger, the
outstanding shares of the capital stock of JIG shall be converted into the right
to receive shares of the interest of BYMT. As a result, the interest holders of
JIG shall become interest holders of BYMT and JIG shall merge its business and
operations with a wholly owned subsidiary of BYMT. The transactions described in
this Agreement are subject to the satisfaction of certain other conditions
described in this Agreement. It is the intention of the parties to this
Agreement that the Merger for federal income tax purposes shall qualify as a
"reorganization" within the meaning of Section 368(a) of the Code.
NOW, THEREFORE, in consideration of the above and the mutual
warranties, representations, covenants, and agreements set forth herein, the
parties agree as follows:
ARTICLE I
Definitions
In addition to terms defined elsewhere in this Agreement, the following
terms when used in this Agreement shall have the meanings indicated below:
"Affiliate" shall mean with respect to a specified Person, any other
Person which, directly or indirectly through one or more intermediaries,
controls or is controlled by or is under common control with such Person, and
without limiting the generality of the foregoing, includes, with respect to a
Person (a) any other Person which beneficially owns or holds ten percent (10%)
or more of any Series of voting securities or other securities convertible into
voting securities of such Person or beneficially owns or holds ten percent (10%)
or more of any other equity interests in such Person, (b) any other Person with
respect to which such Person beneficially owns or holds ten percent (10%) or
more of any Series of voting securities or other securities convertible into
voting securities of such Person, or owns or holds ten percent (10%) or more of
the equity interests of the other Person, and (c) any director or senior officer
of such Person. For purposes of this definition, the term "control" (including,
with correlative meanings, the terms "controlled by" and "under common control
with"), as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities or
by contract or otherwise.
"Agreement" shall mean this Agreement and Plan of Merger together with
all exhibits and schedules referred to herein, which exhibits and schedules are
incorporated herein and made a part hereof.
"BYMT" shall mean Baymark Technologies, Inc., a Utah corporation.
"BYMT Interest" shall mean the shares of interest, no par value per
share, of BYMT, as further described in Section 3.11.
"Certificates" shall have the meaning set forth in Section 2.8.
"Closing" shall have the meaning set forth in Section 2.2.
"Closing Date" shall mean the date that the Closing takes place.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Commission" shall mean the United States Securities and Exchange
Commission.
"Consideration Shares" shall have the meaning set forth in Section
2.7(c).
"Effective Time" shall have the meaning set forth in Section 2.3.
"Employee Benefit Plans" shall have the meaning set forth in Section
3.18.
"Environmental Laws" shall have the meaning set forth in Section 3.22.
"ERISA" shall have the meaning set forth in Section 3.18.
"Financial Statements of BYMT" shall mean (i) the unaudited balance
sheet and the unaudited statements of income, cash flow and retained earnings of
BYMT for the three (3) month period ended October 31, 2005, and (ii) the audited
balance sheet and the audited statements of income, cash flow and retained
earnings of BYMT for the fiscal year ended July 31, 2005, including in each such
case any related notes, each prepared according to GAAP consistently applied
with prior periods, except as set forth on Schedule 3.13.
"GAAP" shall have the meaning set forth in Section 3.13.
"Guaranty" shall mean, as to any Person, all liabilities or obligations
of such Person, with respect to any indebtedness or other obligations of any
other Person, which have been guaranteed, directly or indirectly, in any manner
by such Person, through an agreement, contingent or otherwise, to purchase such
indebtedness or obligation, or to purchase or sell property or services,
primarily for the purpose of enabling the debtor to make payment of such
indebtedness or obligation or to guarantee the payment to the owner of such
indebtedness or obligation against loss, or to supply funds to or in any manner
invest in the debtor.
"Indemnified Party" shall have the meaning set forth in Section 5.4.
"Indemnifying Party" shall have the meaning set forth in Section 5.4.
"Intellectual Property" shall mean the rights to any patent, trademark,
copyright, service xxxx, invention, software, software code, trade secret,
technology, product, composition, formula, method or process.
"Investments" shall mean, with respect to any Person, all advances,
loans or extensions of credit to any other Person (except for extensions of
credit to customers in the ordinary course of business), all purchases or
commitments to purchase any stock, bonds, notes, debentures or other securities
of any other Person, and any other investment in any other Person, including
partnerships or joint ventures (whether by capital contribution or otherwise) or
other similar arrangement (whether written or oral) with any Person, including,
but not limited to, arrangements in which (i) the first Person shares profits
and losses of the other Person, (ii) any such other Person has the right to
obligate or bind the first Person to any third party, or (iii) the first Person
may be wholly or partially liable for the debts or obligations of such
partnership, joint venture or other entity.
"Knowledge" shall mean, in the case of any Person who is an individual,
knowledge that a reasonable individual under similar circumstances would have
after such investigation and inquiry as such reasonable individual would under
such similar circumstances make, and in the case of a Person other than an
individual, the knowledge that a senior officer or director of such Person, or
any other Person having responsibility for the particular subject matter at
issue of such Person, would have after such investigation and inquiry as such
senior officer, director or responsible Person would under such similar
circumstances make.
"Law" and "Laws" shall have the meaning set forth in Section 3.19.
"Liabilities" shall have the meaning set forth in Section 3.14.
"Litigation" shall have the meaning set forth in Section 3.6.
"Material Adverse Effect" shall mean any event or condition of any
character which has had or could reasonably be expected to have a material
adverse effect on the condition (financial or otherwise), results of operations,
assets, liabilities, properties, business or prospects of BYMT or JIG, as
applicable.
"Material BYMT Agreements" shall have the meaning set forth in Section
3.20.
"Merger" shall have the meaning set forth in Section 2.1.
"Merger Consideration" shall have the meaning set forth in Section
2.7(c).
"Outstanding BYMT Shares" shall have the meaning set forth in Section
3.11.
"Outstanding JIG Interest" shall have the meaning set forth in Section
4.8.
"Periodic Reports" shall have the meaning set forth in Section 3.13.
"Person" shall mean any natural person, corporation, unincorporated
organization, partnership, association, limited liability company, joint stock
company, joint venture, trust or government, or any agency or political
subdivision of any government or any other entity.
"Purchaser" shall mean BT Acquisitions, Inc., a Colorado corporation
"Purchaser Documents" shall have the meaning set forth in Section 3.2.
"JIG" shall mean JIGJIG, LLC, a Ohio Limited Liability Company.
"JIG Interest" shall have the meaning set forth in Section 4.8.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Subsidiary" of any Person shall mean any Person, whether or not
capitalized, in which such Person owns, directly or indirectly, an equity
interest of more than fifty percent (50%), or which may effectively be
controlled, directly or indirectly, by such Person.
"Surviving Corporation" shall mean Purchaser as the surviving
corporation resulting from the Merger with Purchaser
"Tax" and "Taxes" shall have the meaning set forth in Section 3.19.
"Tax Returns" shall have the meaning set forth in Section 3.19.
"Transaction" shall have the meaning set forth in Section 2.1.
The words "hereof", "herein" and "hereunder" and the words of similar
import shall refer to this Agreement as a whole and not to any particular
provision of this Agreement. The terms defined in the singular shall have a
comparable meaning when used in the plural and vice versa.
ARTICLE II
Transactions; Terms of Merger; Manner of Converting Shares
2.1 Merger. Subject to the terms and conditions of this Agreement, at
the Effective Time, Purchaser shall merge with JIG in accordance with the
provisions of the Laws of the States of Colorado and Ohio and with the effect
provided for therein (the "Merger"). As a result of the Merger, the separate
corporate existence of Purchaser and JIG shall cease and BT Acquisitions, Inc.
(Purchaser) shall be the Surviving Corporation resulting from the Merger and
shall and remain a wholly owned Subsidiary of BYMT and shall continue to be
governed by the laws of the State of Colorado, JIG shall be merged into
Purchaser. The Merger shall be consummated pursuant to the terms of this
Agreement, which has been approved and adopted by the respective Manager of JIG
and the Boards of Directors of Purchaser and BYMT and, by BYMT, as the sole
shareholder of Purchaser, and by the interest holders of JIG. After merger BT
(Purchaser) shall be the sole wholly owned subsidiary of BYMT.
2.2 Time and Place of Closing. The closing of the transactions
contemplated hereby (the "Closing") will take place at 10:00 A.M. on the date
that the Effective Time occurs or at such other time as the parties, acting
through their authorized officers, may mutually agree. The Closing shall be held
at the offices of Xxxxxxx X. Xxxxxxx, 0000 Xxxxxxx Xxxx, Xxxxxx, XX 00000, or at
such other location as may be mutually agreed upon by the parties. Closing will
occur through exchange of documents by Federal Express, disbursement of cash
delivery of certificates and filing of a Certificate of Merger in Ohio and
Colorado, with Secretary of State.
2.3 Merger Effective Time. The Merger contemplated by this Agreement
shall become effective on the date and at the time the Certificate of Merger
reflecting the Merger shall become effective with the Secretary of State of the
States of Colorado and Ohio (the "Effective Time"). The other transactions
contemplated herein shall be effective as soon as the consideration required
hereby has been delivered.
2.4 Certificate of Merger. The Certificate of Merger or Statement of
Merger required by Ohio and Colorado Law by and between BT and JIG
2.5 Charter. The Certificate of Incorporation of Purchaser in effect
immediately prior to the Effective Time shall be the Certificate of
Incorporation of the Surviving Corporation until duly amended or repealed.
2.6 Bylaws. The Bylaws of Purchaser in effect immediately prior to the
Effective Time shall be the Bylaws of the Surviving Corporation until duly
amended or repealed.
2.7 Directors and Officers. The managers of JIG in office immediately
prior to the Effective Time, together with such additional Persons as may
thereafter be elected, shall serve as the officers and directors of the
Surviving Corporation from and after the Effective Time in accordance with the
Bylaws of the Surviving Corporation.
2.8 Conversion Shares. Subject to the provisions of this Article II, at
the Effective Time, by virtue of the Merger and without any action on the part
of BYMT, JIG or Purchaser or Shareholder or the interest holders of any of the
foregoing, the interests and shares of the constituent entities shall be
converted or exchanged as follows:
(a) Each share of capital stock of BYMT issued and outstanding immediately
prior to the Effective Time shall remain issued and outstanding from and after
the Effective Time, however 30,000,000 new shares of common stock of BYMT shall
be issued to effectuate the transactions contemplated herein.
(b) All of JIG interests issued and outstanding immediately prior to the
Effective Time shall be converted into shares of the Surviving Corporation by
virtue of the merger with BT Acquisitions, Inc. (Purchaser).
(c) BYMT and Purchaser hereby agree that at the time of the Merger of JIG
and Purchaser, BYMT shall issue 30,000,000 shares of its common stock in
consideration of the delivery of 100% of JIG interests to Purchaser.
(d) 100% of JIG's ownership interests issued and outstanding immediately
prior to the Effective Time shall be exchanged for the right to receive
30,000,000 shares of common stock of BYMT in the aggregate, (the "Exchange
Ratio") (hereinafter such BYMT shares shall be referred to as the "Consideration
Shares" or the "Merger Consideration"). The Consideration Shares shall, be
issued and delivered at closing, ratably based upon the interest holders
proportionate ownership of JIG prior to the merger, to the interest holders of
JIG in accordance with the terms hereof, and will be fully paid, validly issued
and non-assessable, but shall not be registered securities under the Securities
Act of 1933, as amended, (the "Securities Act") pursuant to a valid exemption
thereunder.
(e) BYMT shall own, after completion of the transactions contemplated
herein, 100% of the issued and outstanding shares of surviving corporation. (BT
Acquisitions, Inc. or Purchaser).
2.9 Exchange of Shares. At the Closing, the interest holders of JIG
shall surrender each certificate or certificates which represented JIG's
interest immediately prior to the Effective Time (the "Certificates") and shall
promptly upon surrender thereof receive in exchange therefore the number of
whole Consideration Shares issuable in respect of all shares of JIG's interest
held by such JIG interest holder (rounded to the nearest share) as set forth in
2.7 (d) above. BYMT shall not be obligated to deliver the consideration to which
a JIG interest holder is entitled as a result of the Merger until such Person
surrenders its Certificate or Certificates for exchange as provided in this
Section 2.8. Any other provision of this Agreement notwithstanding, neither BYMT
nor the Surviving Corporation shall be liable to an interest holder of JIG for
any amounts paid or property delivered in good faith to a public official
pursuant to any applicable abandoned property, escheat or similar law.
2.10 Rights of Former JIG Interest Holders. At the Effective Time, the
interest transfer books of JIG shall be closed as to holders of JIG Interest
immediately prior to the Effective Time and no transfer of JIG Interest by any
such holder shall thereafter be made or recognized. Until surrendered for
exchange in accordance with the provisions of Section 2.8, each Certificate
theretofore representing shares of JIG Interest shall from and after the
Effective Time represent for all purposes only the right to receive the
consideration provided in Section 2.7 (d) in exchange therefore. Whenever a
dividend or other distribution is declared by BYMT on the BYMT stock, the record
date for which is at or after the Effective Time, the declaration shall include
dividends or other distributions on all shares of BYMT stock issuable pursuant
to this Agreement, but no dividend or other distribution payable to the holders
of record of BYMT shares as of any time subsequent to the Effective Time shall
be delivered to the holder of any Certificate until such holder surrenders such
Certificate for exchange as provided in Section 2.8. However, upon surrender of
such Certificate, both the BYMT stock certificate (together with all such
undelivered dividends or other distributions without interest) and any
undelivered dividends payable in respect thereof (without interest) shall be
delivered and paid with respect to each share represented by such Certificate.
2.11 Legending of Securities. Each certificate for BYMT shares to be
issued to the JIG interest holders as part of the Merger Consideration shall
bear substantially the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, OR ANY STATE SECURITIES LAWS. THESE SHARES
HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED. OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER SAID ACT OR LAWS, OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT, IN THE CIRCUMSTANCES,
REQUIRED UNDER SAID ACT".
2.12 Fractional Shares. Notwithstanding any other provision of this
Agreement, if the Sellers would otherwise have been entitled to receive a
fraction of a share of BYMT shares (after taking into account all certificates
delivered by the JIG interest holders), the number of shares issuable to the JIG
interest holder shall be rounded up to the next whole number.
2.13 Lost, Stolen or Destroyed Certificates. In the event that any
Certificates shall have been lost, stolen or destroyed, upon the making of an
affidavit of that fact by such JIG interest holder (setting forth the interest
JIG Interest represented by such lost, stolen or destroyed Certificates), BYMT
shall issue to such JIG interest holder the Consideration Shares to which such
JIG interest holder is entitled.
ARTICLE III
Representations and Warranties of BYMT, and Purchaser
In order to induce JIG to enter into this Agreement and to consummate
the transactions contemplated hereby, BYMT, Purchaser (as defined in Article I
above), jointly and severally, make the representations and warranties set forth
below to JIG.
3.1 Organization; Standing and Power. BYMT is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Utah. Purchaser is a corporation duly organized, validly existing and in good
standing under the laws of the State of Colorado. BYMT and Purchaser have all
requisite right, power and authority to execute, deliver and perform this
Agreement and to consummate the transactions contemplated hereby. BYMT and
Purchaser have all corporate right, power and authority to own or lease and
operate their assets, and to conduct their business as presently conducted. BYMT
and Purchaser are duly qualified to transact business as a foreign corporation
in all jurisdictions where the ownership or leasing of their properties or the
conduct of its business requires such qualification.
3.2 Authorization; Enforceability. The execution, delivery and
performance of this Agreement by BYMT and Purchaser and all other agreements to
be executed, delivered and performed by BYMT and Purchaser pursuant to this
Agreement (collectively, the "Purchaser Documents") and the consummation by
BYMT, Purchaser of the transactions contemplated hereby and thereby have been
duly authorized by all requisite corporate or individual action on the part of
BYMT and Purchaser as applicable. This Agreement and the Purchaser Documents
have been duly executed and delivered by BYMT and Purchaser and constitute the
legal, valid and binding obligation of BYMT and Purchaser enforceable in
accordance with their respective terms, except to the extent that their
enforcement is limited by bankruptcy, insolvency, reorganization or other laws
relating to or affecting the enforcement of creditors' rights generally and by
general principles of equity.
3.3 No Violation or Conflict. The execution, delivery and performance
of this Agreement and the Purchaser Documents by BYMT and Purchaser, and the
consummation by BYMT, and Purchaser of the transactions contemplated hereby and
thereby: (a) do not violate or conflict with any provision of law or regulation
(whether federal, state or local), or any writ, order or decree of any court or
governmental or regulatory authority, or any provision of BYMT or Purchaser's
Articles or Certificate of Incorporation or Bylaws; and (b) do not and will not,
with or without the passage of time or the giving of notice, result in the
breach of, or constitute a default (or an event that with notice or lapse of
time or both would become a default), cause the acceleration of performance,
give to others any right of termination, amendment, acceleration or cancellation
of or require any consent under, or result in the creation of any lien, charge
or encumbrance upon any property or assets of BYMT or Purchaser pursuant to any
instrument or agreement to which BYMT or Purchaser is a party or by which BYMT
or Purchaser or their respective properties may be bound or affected.
3.4 Consents of Governmental Authorities and Others. No consent,
approval, order or authorization of, or registration, declaration, qualification
or filing with any federal, state or local governmental or regulatory authority,
or any other Person, is required to be made by BYMT, and Purchaser in connection
with the execution, delivery or performance of this Agreement by BYMT, and
Purchaser or the consummation by BYMT, and of the transactions contemplated
hereby.
3.5 Conduct of Business. Except as disclosed on Schedule 3.5 hereto,
since July 31, 2005, BYMT has conducted no active businesses in the ordinary and
usual course consistent with past practices and there has not occurred any
adverse change in the condition (financial or otherwise), results of operations,
properties, assets, liabilities, business or prospects of BYMT, and no such
change is threatened. Without limiting the generality of the foregoing, since
July 31, 2005, except as provided in this Agreement, BYMT has not: (a) amended
its Articles of Incorporation or Bylaws except as to a reverse split of its
issued and outstanding common shares of one for 10, however shareholders have
authorized of a name change and Series A Preferred shareholders have authorized
an Amendment to the Designation of Rights and Privileges of Series A Preferred
Stock to provide a conversion privilege of 16 shares of common stock for each
one share of Series A Preferred Stock outstanding and other amendments pertinent
thereto; (b) issued, sold or authorized for issuance or sale, shares of any
Series of its securities (including, but not limited to, by way of stock split
or dividend) or any subscriptions, options, warrants, rights or convertible
securities or entered into any agreements or commitments of any character
obligating it to issue or sell any such securities; (c) redeemed, purchased or
otherwise acquired, directly or indirectly, any shares of its capital stock or
any option, warrant or other right to purchase or acquire any such capital
stock; (d) suffered any damage, destruction or loss, whether or not covered by
insurance, which has had or could reasonably be expected to have a Material
Adverse Effect on any of its properties, assets, business or prospects; (e)
granted or made any mortgage or pledge or subjected itself or any of its
properties or assets to any lien, charge or encumbrance of any kind; (f) made or
committed to make any capital expenditures in excess of $10,000; (g) become
subject to any Guaranty; (h) granted any increase in the compensation payable or
to become payable to directors, officers or employees (including, without
limitation, any such increase pursuant to any severance package, bonus, pension,
profit-sharing or other plan or commitment); (i) entered into any agreement
which would be a Material Agreement, or amended or terminated any existing
Material Agreement; (j) been named as a party in any Litigation, or become the
focus of any investigation by any government or regulatory agency or authority;
(k) declared or paid any dividend or other distribution with respect to its
capital stock; or (l) experienced any other event or condition of any character
which has had or to BYMT's could reasonably be expected to have a Material
Adverse Effect on BYMT.
3.6 Litigation. There are no actions, suits, investigations, claims or
proceedings ("Litigation") pending or, to the Knowledge of BYMT, and Purchaser
threatened before any court or by or before any governmental or regulatory
authority or arbitrator, (a) affecting BYMT or Purchaser (as plaintiff or
defendant) or (b) against BYMT, and Purchaser relating to BYMT's Interest or the
transactions contemplated by this Agreement and there exist no facts or
circumstances to the Knowledge of BYMT, and Purchaser creating any reasonable
basis for the institution of any Litigation against BYMT, and Purchaser.
3.7 Brokers. Neither BYMT or JIG, and Purchaser has employed any broker
or finder, and none of them has incurred or will incur, directly or indirectly,
any broker's, finder's, investment banking or similar fees, commissions or
expenses in connection with the transactions contemplated by this Agreement or
the Purchaser Documents.
3.8 Compliance. BYMT and Purchaser are in compliance with all federal,
state, local and foreign laws, ordinances, regulations, judgments, rulings,
orders and other requirements applicable to BYMT and Purchaser and their
respective assets and properties, including, without limitation, those relating
to (a) the registration and sale of the BYMT Interest, (b) the establishment of
a public trading market for the BYMT Interest, and (c) the public trading of the
BYMT Interest. BYMT and Purchaser are not subject to any judicial, governmental
or administrative inquiry, investigation, order, judgment or decree.
3.9 Charter, Bylaws and Corporate Records. A true, correct and complete
copy of (a) the Articles of Incorporation of BYMT and Purchaser, as amended and
in effect on the date hereof, (b) the Bylaws of BYMT and Purchaser, as amended
and in effect on the date hereof, and (c) the minute books of BYMT and Purchaser
(containing all corporate proceedings from the date of incorporation) have been
furnished to JIG. Such minute books contain accurate records of all meetings and
other corporate actions of the board of directors, committees of the board of
directors, incorporators and shareholders of BYMT and Purchaser from the date of
its incorporation to the date hereof which were memorialized in writing. No
actions have been taken since the date of BYMT or Purchaser's incorporation that
are not memorialized in writing.
3.10 Subsidiaries and Investments. BYMT has only one Subsidiaries or
Investments. BYMT owns one hundred percent (100%) of the issued and outstanding
capital stock of the Subsidiary BT Acquisitions, Inc..
3.11 Capitalization. The authorized capital stock of BYMT consists of
150,000,000 shares of stock, of which 661,572 shares are issued and outstanding
(the "Outstanding BYMT Shares") and 1,000,000 shares of Series A Preferred Stock
are authorized, issued and outstanding which are convertible to units as set
forth in the Designation of Preferences as amended. All shares of Outstanding
BYMT common and Series A stock have been duly authorized, are validly issued and
outstanding, and are fully paid and non-assessable. No securities issued by BYMT
from the date of its incorporation to the date hereof were issued in violation
of any statutory, contractual or common law preemptive rights. There are no
dividends which have accrued or been declared but are unpaid on the capital
stock of BYMT. All taxes required to be paid in connection with the issuance and
any transfers of BYMT's capital stock have been paid. All permits or
authorizations required to be obtained from or registrations required to be
effected with any Person in connection with any and all common and Series A
Preferred issuances of securities of BYMT from the date of BYMT's incorporation
to the date hereof have been obtained or effected and all securities of BYMT
have been issued and are held in accordance with the provisions of all
applicable securities or other laws. Series B Preferred Stock as carried on the
books is being cancelled since it was conditionally issued for consideration for
a casino license never approved by Nevada Gaming Commission. The Consideration
Shares shall, upon issuance and delivery to the JIG interest holders in
accordance with the terms hereof, be fully paid, validly issued and
non-assessable, but shall not be registered securities under the Securities Act
of 1933. There are no registration rights outstanding which relate to the
Outstanding BYMT shares and, to the Knowledge of BYMT, there are no voting
trusts, proxies or other agreements or understandings with respect to any equity
security of any Series of BYMT or with respect to any equity security,
partnership interest or similar ownership interest of any Series of any of its
Subsidiaries, except as provided herein or in the Amendment to the Designation
of Preferences Rights and Privileges of Series A Preferred Stock.
3.12 Rights, Warrants, Options. There are no outstanding (a) securities
or instruments convertible into or exercisable for any of the capital stock or
other equity interests of BYMT or Purchaser except that Series A Preferred Stock
is convertible to units consisting of common shares and warrants as set forth in
the Designation of Preferences of Series A. (b) options, warrants,
subscriptions, puts, calls, or other rights to acquire capital stock or other
equity interests of BYMT or Purchaser; or (c) commitments, agreements or
understandings of any kind, including employee benefit arrangements, relating to
the issuance or repurchase by BYMT or Purchaser of any capital stock or other
equity interests of BYMT or Purchaser, or any instruments convertible or
exercisable for any such securities or any options, warrants or rights to
acquire such securities.
3.13 Commission Filings and Financial Statements. All of the Periodic
Reports of BYMT required to satisfy the information requirements of Section 13
of the Exchange Act have been filed with the Commission, and have been true,
accurate and complete in all material respects and have been filed in compliance
with the requirements of the Exchange Act. The Financial Statements of BYMT: (a)
have been prepared in accordance with the books of account and records of BYMT;
(b) fairly present, and are true, correct and complete statements in all
material respects of BYMT's financial condition and the results of its
operations at the dates and for the periods specified in those statements; and
(c) have been prepared in accordance with United States generally accepted
accounting principles ("GAAP") consistently applied with prior periods.
3.14 Absence of Undisclosed Liabilities. Other than as disclosed by the
Periodic Reports, the Financial Statements of BYMT or as disclosed on Schedule
3.20, BYMT and Purchaser do not have any direct or indirect indebtedness,
liability, claim, loss, damage, deficiency, obligation or responsibility, known
or unknown, fixed or unfixed, xxxxxx or inchoate, liquidated or unliquidated,
secured or unsecured, accrued, absolute, contingent or otherwise, including,
without limitation, liabilities on account of taxes, other governmental charges
or Litigation, whether or not of a kind required by GAAP to be set forth on a
financial statement ("Liabilities BYMT and Purchaser do not have any Liabilities
other than Liabilities fully and adequately reflected in the Periodic Reports or
the Financial Statements of BYMT or as listed on Schedule 3.20 which shall all
be paid at closing. BYMT and Purchaser have no Knowledge of any circumstances,
conditions, events or arrangements which may hereafter give rise to any
Liabilities of BYMT or Purchaser, except as set forth on Schedule 3.20.
3.15 Real Property and Mineral Leases. BYMT and Purchaser do not
own any fee simple interest in real property nor any mineral leases. BYMT and
Purchaser do not lease, sublease, or have any other contractual interest in any
real property.
3.16 List of Accounts. Set forth on Schedule 3.16 is: (a) the name and
address of each bank or other institution in which BYMT or Purchaser maintains
an account (cash, securities or other) or safe deposit box; (b) the name and
phone number of BYMT or Purchaser's contact person at such bank or institution;
(c) the account number of the relevant account and a description of the type of
account; (d) the name of each person authorized by BYMT or Purchaser to effect
transactions therewith or to have access to any safe deposit box or vault;
3.17 Personnel. There is no incurred or accrued compensation of any
officers, directors, consultants and employees of BYMT or Purchaser (including
compensation paid or payable by BYMT under any employee benefit or option
plans). There are no employee policies, employee manuals or other written
statements of rules or policies as to working conditions, vacation and sick
leave.
3.18 Employment Agreements and Employee Benefit Plans. BYMT has not had
any and does not have any defined contribution plan and it is not (and was
never) part of a controlled group contributing to any defined contribution plan
and is not and was never a party to any collective bargaining agreement or other
employment contracts. BYMT has not, nor does it now contribute to any pension,
profit-sharing, option, other incentive plan, or any other type of Employee
Benefit Plan (as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")), or any health, dental, vision, long
term disability, short term disability, life insurance or other welfare benefits
plan, or have any obligation to or customary arrangement with employees for
bonuses, incentive compensation, vacations, severance pay, insurance, or other
benefits, and it is not now (and was never) a part of a controlled group with
regard to any of the foregoing.
There are no complaints, charges, claims, allegations,
grievances, or litigations pending or threatened which reflect or pertain to:
(i) any federal, state or local labor, employment, anti-discrimination, workers
compensation, disability or unemployment law, regulation or ordinance; (ii) any
claim for wrongful discharge, harassment, discrimination, breach of employment
contract or employment-related tort; or (iii) any employment agreement,
restrictive covenant, non-competition agreement or employee confidentiality
agreement, which, in any such case, if adversely determined, could reasonably be
expected to have a Material Adverse Effect on BYMT.
3.19 Taxes.
(a) BYMT has properly prepared and timely filed all Tax Returns (as
defined below) relating to any and all Taxes (as defined below) concerning or
attributable to it or its operations for any period ending on or before the
Closing Date and such Tax Returns are true, correct and complete in all material
respects and have been completed in accordance with applicable Laws (as defined
below).
(b) All Taxes (whether or not shown on any Tax Return) payable by BYMT
have been fully and timely paid. The cash reserves or accruals for Taxes
provided in the books and records of BYMT with respect to any period for which
Tax Returns have not yet been filed or for which Taxes are not yet due and owing
have been established in accordance with GAAP and are, or prior to the Closing
Date, will be, sufficient for all unpaid Taxes of BYMT through and including the
Closing Date (including, without limitation, with respect to any Taxes resulting
from the transactions contemplated by this Agreement).
(c) Neither BYMT nor any Person on behalf of or with respect to BYMT
has executed or filed any agreements or waivers extending any statute of
limitations on or extending the period for the assessment or collection of any
Tax. No power of attorney on behalf of BYMT with respect to any Tax matter is
currently in force.
(d) BYMT is not a party to any Tax-sharing agreement or similar
arrangement with any other party (whether or not written), and BYMT has not
assumed any Tax obligations of, or with respect to any transaction relating to,
any other Person or agreed to indemnify any other Person with respect to any
Tax.
(e) No Tax Return concerning or relating to BYMT or its operations has
ever been audited by a government or taxing authority, nor is any such audit in
process or pending, and BYMT has not been notified of any request for such an
audit or other examination. No claim has been made by a taxing authority in a
jurisdiction where Tax Returns concerning or relating to BYMT or its operations
have not been filed that it is or may be subject to taxation by that
jurisdiction.
(f) BYMT has never been included in any consolidated, combined, or
unitary Tax Return.
(g) BYMT has complied in all material respects with all applicable Laws
relating to the payment and withholding of Taxes and has duly and timely
withheld from employee salaries, wages and other compensation and has paid over
to the appropriate taxing authorities all amounts required to be so withheld and
paid over for all periods under all applicable laws.
(h) Neither BYMT nor any other Person on behalf of and with respect to
BYMT has (i) agreed to or is required to make any adjustments pursuant to
Section 481(a) of the Internal Revenue Code of 1986 ("Code") or any similar
provision of state, local or foreign law by reason of a change in accounting
method initiated by BYMT and Purchaser have no Knowledge that the Internal
Revenue Service ("IRS") has proposed any such adjustment or change in accounting
method, or has any application pending with any taxing authority requesting
permission for any changes in accounting methods that relate to the business or
operations of BYMT, (ii) executed or entered into a closing agreement pursuant
to Section 7121 of the Code or any predecessor provision thereof or any similar
provision of state, local or foreign law with respect to BYMT or (iii) requested
any extension of time within which to file any Tax Return concerning or relating
to BYMT or its operations, which Tax Return has since not been filed.
(i) No property owned by BYMT is (i) property required to be treated as
being owned by another Person pursuant to the provisions of Section 168(f)(8) of
the Internal Revenue Code of 1954, as amended and in effect immediately prior to
the enactment of the Tax Reform Act of 1986, (ii) constitutes "tax-exempt use
property" within the meaning of Section 168(h)(1) of the Code or (iii) is
"tax-exempt bond financed property" within the meaning of Section 168(g) of the
Code.
(j) BYMT is not subject to any private letter ruling of the IRS or
comparable rulings of other taxing authorities.
(k) BYMT does not own any interest in any entity that is treated as a
partnership for U.S. federal income Tax purposes or would be treated as a
pass-through or disregarded entity for any Tax purpose.
(l) BYMT has not constituted either a "distributing corporation" or a
"controlled corporation" within the meaning of Section 355(a)(1)(A) of the Code
in a distribution qualifying for tax-free treatment under Section 355 of the
Code (i) in the two years prior to the date of this Agreement or (ii) in a
distribution that could otherwise constitute part of a "plan" or "series of
transactions" (within the meaning of Section 355(e) of the Code) in conjunction
with this Agreement.
(m) BYMT has no elections in effect for U.S. federal income Tax
purposes under Sections 108, 168, 441, 472, 1017, 1033 or 4977 of the Code.
The term "Law" or "Laws" as used in this Agreement shall mean
any federal, state, local or foreign statue, law, ordinance, regulation, rule,
code, order or other requirement or rule of law.
The term "Tax" or "Taxes" as used in this Agreement shall mean
(i) all income, excise, gross receipts, ad valorem, sales, use, employment,
franchise, profits, gains, property, transfer, payroll, withholding, severance,
occupation, social security, unemployment compensation, alternative minimum,
value added, intangibles or other taxes, fees, stamp taxes, duties, charges,
levies or assessments of any kind whatsoever (whether payable directly or by
withholding), together with any interest and any penalties, fines, additions to
tax or additional amounts imposed by any Governmental Authority with respect
thereto, (ii) any liability for the payment of any amounts of the type described
in (i) as a result of being a member of a consolidated, combined, unitary or
aggregate group for any Taxable period, and (3) any liability for the payment of
any amounts of the type described in (i) or (ii) as a result of being a
transferee or successor to any person or as a result of any express or implied
obligation to indemnify any other Person.
The term "Tax Returns" as used in this Agreement shall mean returns,
declarations, reports, claims for refund, information returns or other documents
(including any related or supporting schedules, statements or information) filed
or required to be filed in connection with the determination, assessment or
collection of any Taxes of any party or the administration of any laws,
regulations or administrative requirements relating to any Taxes.
3.20 Material Agreements. Schedule 3.20 sets forth a list of all
material written and oral contracts or agreements relating to BYMT or Purchaser,
including without limitation any: (i) contract resulting in a commitment or
potential commitment for expenditure or other obligation or potential
obligation, or which provides for the receipt or potential receipt, involving in
excess of Ten Thousand Dollars ($10,000.00) in any instance, or series of
related contracts that in the aggregate give rise to rights or obligations
exceeding such amount; (ii) indenture, mortgage, promissory note, loan
agreement, guarantee or other agreement or commitment for the borrowing or
lending of money or encumbrance of assets involving more than Ten Thousand
Dollars ($10,000.00) in each instance; (iii) agreement which restricts BYMT or
Purchaser from engaging in any line of business or from competing with any other
Person; or (iv) any other contract, agreement, instrument, arrangement or
commitment that is material to the condition (financial or otherwise), results
of operation, assets, properties, liabilities, business or prospects of BYMT or
Purchaser (collectively, and together with the BYMT Leases, employment
agreements, Employee Benefit Plans and all other agreements required to be
disclosed on any Schedule to this Agreement, the "Material BYMT Agreements").
Neither BYMT nor Purchaser has received notice of any pending or threatened
Litigation relating to any of the Material BYMT Agreements.
3.21 Guaranties. BYMT and Purchaser are not a party to any
Guaranty, and no Person is a party to any Guaranty for the benefit of BYMT or
Purchaser.
3.22 Absence of Certain Business Practices. None of Purchaser, nor
BYMT, nor any Affiliates thereof nor, to the Knowledge of each, any other Person
acting on behalf of BYMT, has with respect to the business or activities of
BYMT: (a) received, directly or indirectly, any rebates, payments, commissions,
promotional allowances or any other economic benefits, regardless of their
nature or type, from any customer, supplier, trading company, shipping company,
governmental employee or other Person with whom BYMT has done business directly
or indirectly; or (b) directly or indirectly, given or agreed to give any gift
or similar benefit to any customer, supplier, trading company, shipping company,
governmental employee or other Person who is or may be in a position to help or
hinder the business of BYMT (or assist BYMT in connection with any actual or
proposed transaction) which (i) may subject BYMT to any material damage or any
penalty in any Litigation, (ii) if not given in the past, may have had a
Material Adverse Effect on the assets, business or operations of BYMT as
reflected in the Periodic Reports or Financial Statements of BYMT or (iii) if
not continued in the future, may materially adversely affect the assets,
business or operations of BYMT or subject BYMT to suit or penalty in any private
or governmental litigation or proceeding.
3.23 Disclosure. No representation or warranty of BYMT and Purchaser
contained in this Agreement, and no statement, report, or certificate furnished
by or on behalf of BYMT, Purchaser to JIG or its agents pursuant hereto or in
connection with the transactions contemplated hereby, contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements contained herein or therein not misleading or omits
or will omit to state a material fact necessary in order to provide JIG with
full and proper information as to the business, financial condition, assets,
liabilities, results of operation or prospects of BYMT or Purchaser and the
value of their properties or the ownership of BYMT or Purchaser.
ARTICLE IV
Representations and Warranties of JIG
In order to induce BYMT and Purchaser to enter into this Agreement and
to consummate the transactions contemplated hereby, JIG makes the
representations and warranties set forth below to BYMT and Purchaser.
4.1 Organization. JIG is a Limited Liability Company duly organized,
validly existing and in good standing under the laws of the State of Ohio. JIG
is duly qualified to transact business as a foreign corporation in all
jurisdictions where the ownership or leasing of its properties or the conduct of
its business requires such qualification, except where the failure to so qualify
would not have a Material Adverse Effect on JIG. JIG has the requisite power and
authority to (a) own or lease and operate its properties and (b) conduct its
business as presently conducted.
4.2 Authorization; Enforceability. JIG has the capacity to execute,
deliver and perform this Agreement. This Agreement and all other documents
executed and delivered by JIG pursuant to this Agreement have been duly executed
and delivered and constitute the legal, valid and binding obligations of JIG,
assuming the due authorization, execution and delivery of this Agreement by
BYMT, and Purchaser enforceable in accordance with their respective terms,
except to the extent that their enforcement is limited by bankruptcy,
insolvency, reorganization or other laws relating to or affecting the
enforcement of creditors' rights generally and by general principals of equity.
4.3 No Violation or Conflict. The execution, delivery and performance
of this Agreement and the other documents contemplated hereby by JIG, and the
consummation by JIG of the transactions contemplated hereby: (a) do not violate
or conflict with any provision of law or regulation (whether federal, state or
local), or any writ, order or decree of any court or governmental or regulatory
authority, or any provision of JIG's Certificate of Organization or Bylaws; and
(b) do not, with or without the passage of time or the giving of notice, result
in the breach of, or constitute a default, cause the acceleration of performance
or require any consent under, or result in the creation of any lien, charge or
encumbrance upon any property or assets of JIG pursuant to any instrument or
agreement to which JIG is a party or by which JIG or its properties may be bound
or affected.
4.4 Consents of Governmental Authorities and Others. No consent,
approval or authorization of, or registration, qualification or filing with any
federal, state or local governmental or regulatory authority, or any other
Person, is required to be made by JIG in connection with the execution, delivery
or performance of this Agreement by JIG or the consummation by them of the
transactions contemplated hereby, excluding the execution, delivery and
performance of this Agreement by the JIG.
4.5 Brokers. JIG has not employed any broker or finder, and has not
incurred and will not incur any broker's, finder's, investment banking or
similar fees, commissions or expenses in connection with the transactions
contemplated by this Agreement.
4.6 Charter Records. A true, correct and complete copy of (a) the
Certificate of Organization of JIG, as amended and in effect on the date hereof,
and (b) the Operating Agreement of JIG, as amended and in effect on the date
hereof, have been furnished.
4.7 Subsidiaries and Investments. JIG has no Subsidiaries or
Investments.
4.8 Capitalization. JIG will have issued and outstanding 100 units of
interest (the "Outstanding JIG Interest"). The Outstanding JIG Interest shall
constitute one hundred percent (100%) of the issued and outstanding capital of
JIG. The Outstanding JIG Interest is owned by its interest holders will be in
the amounts set forth on Schedule A. All of the Outstanding JIG Interests will
have been duly authorized, are validly issued and outstanding, and are fully
paid and non-assessable. No securities issued by JIG from the date of its
incorporation to the date hereof were issued in violation of any statutory or
common law preemptive rights. All taxes required to be paid in connection with
the issuance and any transfers of JIG's capital have been paid. All permits or
authorizations required to be obtained from or registrations required to be
effected with any Person in connection with any and all issuances of securities
of JIG from the date of its incorporation to the date hereof have been obtained
or effected and all securities of JIG have been issued and are held in
accordance with the provisions of all applicable securities or other laws.
4.9 Rights, Warrants, Options. There are no outstanding (a) securities
or instruments convertible into or exercisable for any of the capital stock or
other equity interests of JIG; (b) options, warrants, subscriptions or other
rights to acquire capital stock or other equity interests of JIG; or (c)
Commitments, agreements or understandings of any kind, including employee
benefit arrangements, relating to the issuance or repurchase by JIG of any
capital stock or other equity interests of JIG, or any instruments convertible
or exercisable for any such securities or any options, warrants or rights to
acquire such securities.
ARTICLE V
Additional Agreements
5.1 Survival of the Representations and Warranties. The representations
and warranties contained in Sections 3.1, 3.2, 3.12, 3.13 and 3.14 and the
covenants in Section 7.1 and 7.3 shall survive the Closing and remain in effect
indefinitely. The representations and warranties contained in Section 3.23
(relating to environmental matters) shall survive the Closing until the
expiration of three (3) years from the Closing Date. The representations and
warranties contained in Section 3.19 (relating to taxes) shall survive the
Closing until the later of the expiration of twenty four months from the Closing
Date or the expiration of the last day of the statute of limitations applicable
to any action against BYMT based upon the non-payment of taxes, or other
violation of the Code, which occurred prior to the Closing Date. Except as set
forth above, the representations and warranties and covenants of BYMT and
Purchaser, contained in this Agreement shall survive the Closing until the
expiration of twenty-four months from the Closing Date. No claim for indemnity
with respect to breaches of representations and warranties may be brought by any
party hereto, other than a claim for fraud or intentional misrepresentation,
after expiration of the applicable survival period therefore as set forth in
this Section 5.1
5.2 Investigation. The representations, warranties, covenants and
agreements set forth in this Agreement shall not be affected or diminished in
any way by any investigation (or failure to investigate) at any time by or on
behalf of the party for whose benefit such representations, warranties,
covenants and agreements were made. All statements contained herein or in any
schedule, certificate, exhibit, list or other document required to be delivered
pursuant hereto, shall be deemed to be representations and warranties for
purposes of this Agreement; provided, that any knowledge or materiality
qualifications contained herein shall be applicable to such other documents.
5.3 Indemnification. BYMT agrees to indemnify and hold harmless JIG,
and each of JIG's directors, officers and employees, from and against any
losses, damages, costs or expenses (including reasonable legal fees and
expenses) which are caused by or arise out of (i) any breach or default in the
performance by any of BYMT and Purchaser of any covenant or agreement made by
any of them in this Agreement; (ii) any breach of any Representation or Warranty
made by any of BYMT and Purchaser in this Agreement;
5.4 Indemnity Procedure. A party or parties hereto agreeing to be
responsible for or to indemnify against any matter pursuant to this Agreement is
referred to herein as the "Indemnifying Party" and the other party or parties
claiming indemnity is referred to as the "Indemnified Party".
(a) An Indemnified Party under this Agreement shall, with respect to claims
asserted against such party by any third party, give written notice to the
Indemnifying Party of any liability which might give rise to a claim for
indemnity under this Agreement within sixty (60) business days of the receipt of
any written claim from any such third party, but not later than twenty (20) days
prior to the date any answer or responsive pleading is due, and with respect to
other matters for which the Indemnified Party may seek indemnification, give
prompt written notice to the Indemnifying Party of any liability which might
give rise to a claim for indemnity; provided, however, that any failure to give
such notice will not waive any rights of the Indemnified Party except to the
extent the rights of the Indemnifying Party are materially prejudiced.
(b) The Indemnifying Party shall have the right, at its election, to take over
the defense or settlement of such claim by giving written notice to the
Indemnified Party at least fifteen (15) days prior to the time when an answer or
other responsive pleading or notice with respect thereto is required. If the
Indemnifying Party makes such election, it may conduct the defense of such claim
through counsel of its choosing (subject to the Indemnified Party's approval of
such counsel, which approval shall not be unreasonably withheld), shall be
solely responsible for the expenses of such defense and shall be bound by the
results of its defense or settlement of the claim. The Indemnifying Party shall
not settle any such claim without prior notice to and consultation with the
Indemnified Party, and no such settlement involving any equitable relief or
which might have an adverse effect on the Indemnified Party may be agreed to
without the written consent of the Indemnified Party (which consent shall not be
unreasonably withheld). So long as the Indemnifying Party is diligently
contesting any such claim in good faith, the Indemnified Party may pay or settle
such claim only at its own expense and the
Indemnifying Party will not be responsible for the fees of separate legal
counsel to the Indemnified Party, unless the named parties to any proceeding
include both parties and representation of both parties by the same counsel
would be inappropriate. If the Indemnifying Party does not make such election,
or having made such election does not, in the reasonable opinion of the
Indemnified Party proceed diligently to defend such claim, then the Indemnified
Party may (after written notice to the Indemnifying Party), at the expense of
the Indemnifying Party, elect to take over the defense of and proceed to handle
such claim in its discretion and the Indemnifying Party shall be bound by any
defense or settlement that the Indemnified Party may make in good faith with
respect to such claim. In connection therewith, the Indemnifying Party will
fully cooperate with the Indemnified Party should the Indemnified Party elect to
take over the defense of any such claim.
(c) The parties agree to cooperate in defending such third party claims and the
Indemnified Party shall provide such cooperation and such access to its books,
records and properties as the Indemnifying Party shall reasonably request with
respect to any matter for which indemnification is sought hereunder; and the
parties hereto agree to cooperate with each other in order to ensure the proper
and adequate defense thereof.
With regard to claims of third parties for which indemnification is
payable hereunder, such indemnification shall be paid by the Indemnifying Party
upon the earlier to occur of: (i) the entry of a judgment against the
Indemnified Party and the expiration of any applicable appeal period, or if
earlier, five (5) days prior to the date that the judgment creditor has the
right to execute the judgment; (ii) the entry of an unappealable judgment or
final appellate decision against the Indemnified Party; or (iii) a settlement of
the claim. Notwithstanding the foregoing, provided that there is no dispute as
to the applicability of indemnification, the reasonable expenses of counsel to
the Indemnified Party shall be reimbursed on a current basis by the Indemnifying
Party if such expenses are a liability of the Indemnifying Party. With regard to
other claims for which indemnification is payable hereunder, such
indemnification shall be paid promptly by the Indemnifying Party upon demand by
the Indemnified Party.
ARTICLE VI
Closing; Deliveries; Conditions Precedent
6.1 Closing; Effective Date. All proceedings taken and all documents
executed at the Closing shall be deemed to have been taken, delivered and
executed simultaneously, and no proceeding shall be deemed taken nor documents
deemed executed or delivered until all have been taken, delivered and executed.
6.2 Deliveries
(a) At Closing, BYMT shall deliver the following documents to JIG:
(1) the certificates representing the Consideration
Shares;
(2) the written resignation of all BYMT officers and
directors from all of their positions as BYMT
directors and/or officers, officers resignations to
be effective upon Closing, and directors to be
effective ten days after mailing of Notice pursuant
to Section 14f of the Securities Exchange Act of
1934.
(3) the corporate books of BYMT, including its minutes,
Stockholders List, Articles of Incorporation, Bylaws
and corporate minutes approving the terms and
conditions of this Agreement and the other documents
contemplated hereby and the transactions contemplated
hereby and thereby;
(4) certificates issued by the Secretary of State of
Utah, as of a recent date, as to the good standing of
BYMT in its jurisdiction of incorporation.
(5) certificates issued by the Secretary of State of
Colorado, as of a recent date, as to the good
standing of Purchaser in its jurisdiction of
incorporation.
(6) a certificate, dated the Closing Date, of an officer
of BYMT setting forth that authorizing resolutions
were adopted by BYMT and Purchaser's Boards of
Directors, approving the terms and conditions of this
Agreement and the other documents contemplated hereby
and the transactions contemplated hereby and thereby;
(7) the consents of any third party including, but not
limited to, parties to any of the Material Agreements
whose consent is required under the terms of any such
Material Agreement or otherwise;
(8) the certificates referred to in Section 6.3(d);
(9) such other documents and instruments as JIG may
reasonably request.
(b) At Closing, JIG shall deliver the following documents to BYMT:
(1) the Assignments of JIG Interest to be delivered to
BYMT;
(2) a Certificate of Organization the Secretary of State
of the State of Ohio, dated in 2005;
(3) a certificate, dated the Closing Date, of manager of
JIG setting forth that authorizing resolutions were
adopted by JIG's interest holder, approving the terms
and conditions of this Agreement and the other
documents contemplated hereby and the transactions
contemplated hereby and thereby;
(4) the certificates referred to in Section 6.4(d); and
(5) such other documents and instruments as BYMT may
reasonably request.
6.3 Conditions Precedent to the Obligations of JIG. Each and every
obligation of JIG to consummate the transactions described in this Agreement and
any and all liability of JIG to BYMT shall be subject to the fulfillment on or
before the Closing Date of the following conditions precedent:
(a) Representations and Warranties True. Each of the
representations and warranties of BYMT and Purchaser contained herein or in any
certificate or other document delivered pursuant to this Agreement or in
connection with the transactions contemplated hereby shall be true and correct
in all material respects as of the Closing Date with the same force and effect
as though made on and as of such date.
(b) Performance. BYMT and Purchaser shall have performed and
complied in all material respects with all of the agreements, covenants and
obligations required under this Agreement to be performed or complied with by
them on or prior to the Closing Date.
(c) No Material Adverse Change. Except as expressly permitted or
contemplated by this Agreement, no event or condition shall have occurred which
has adversely affected or may adversely affect in any respect the condition
(financial or otherwise) of BYMT or Purchaser.
(d) BYMT's Certificate. BYMT shall have delivered to JIG a
certificate dated the Closing Date, certifying that the conditions specified in
Section 6.3(a), (b) and (c) above have been fulfilled and as to such other
matters as JIG may reasonably request.
(e) No Litigation. No litigation, arbitration or other legal or
administrative proceeding shall have been commenced or be pending by or before
any court, arbitration panel or governmental authority or official, and no
statute, rule or regulation of any foreign or domestic, national or local
government or agency thereof shall have been enacted after the date of this
Agreement, and no judicial or administrative decision shall have been rendered
which enjoins or prohibits, or seeks to enjoin or prohibit, the consummation of
all or any of the transactions contemplated by this Agreement.
(f) Appointment. Messrs Xxxxxx Xxxxxxx, Xxxxxxx Xxxxxxx, Xxxxx
Xxxxx and Xxxx Valyunin shall have been appointed to the Board of Directors of
BYMT effective at the Closing. Xxx Xxxxxxx shall resign as President effective
immediately and as director effective 10 days after Notice under Section 14f of
the Securities Exchange Act of 1934. Xxxxxx Xxxxxxx and Xxxxxx Xxxxx shall
resign as Directors effective 10 days after Notice under 14f. Xxxxxx Xxxxxxx
shall be appointed as President, and Xxxxxxx Xxxxxxx shall be appointed as
Secretary.
(g) Consents. BYMT shall have obtained all authorizations,
consents, waivers and approvals as may be required to consummate the
transactions contemplated by this Agreement including, but not limited to, those
with respect to any Material BYMT Agreement.
(h) Due Diligence Review. JIG shall have completed its due
diligence investigation of BYMT and Purchaser to its satisfaction, in its sole
and absolute discretion.
(i) Opinion of Counsel. BYMT shall have obtained an opinion letter
from counsel to BYMT addressed to JIG in form and substance reasonably
acceptable to JIG, and such opinion shall not have been withdrawn.
6.4 Conditions Precedent to the Obligations of BYMT. Each and every
obligation of BYMT to consummate the transactions described in this Agreement
and any and all liability of BYMT and Purchaser to JIG shall be subject to the
fulfillment on or before the Closing Date of the following conditions precedent:
(a) Representations and Warranties True. Each of the
representations and warranties of JIG contained herein or in any certificate or
other document delivered pursuant to this Agreement or in connection with the
transactions contemplated hereby shall be true and correct in all material
respects as of the Closing Date with the same force and effect as though made on
and as of such date.
(b) Performance. JIG shall have performed and complied in all
material respects with all of the agreements, covenants and obligations required
under this Agreement to be performed or complied with by it on or prior to the
Closing Date.
(c) JIG's Certificate. JIG shall have delivered to BYMT, a
certificate addressed to BYMT, dated the Closing Date, certifying that the
conditions specified in Sections 6.4(a), and (b) above have been fulfilled.
(d) No Litigation. No litigation, arbitration or other legal or
administrative proceeding shall have been commenced or be pending by or before
any court, arbitration panel or governmental authority or official, and no
statute, rule or regulation of any foreign or domestic, national or local
government or agency thereof shall have been enacted after the date of this
Agreement, and no judicial or administrative decision shall have been rendered
which enjoins or prohibits, or seeks to enjoin or prohibit, the consummation of
all or any of the transactions contemplated by this Agreement.
(e) Consents. JIG shall have obtained all authorizations, consents,
waivers and approvals as may be required to consummate the transactions
contemplated by this Agreement, including but not limited to, those with respect
to any Material Agreement of JIG.
6.5 Best Efforts. Subject to the terms and conditions provided in this
Agreement, each of the parties shall use their respective 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 of the
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, including obtaining all necessary consents, authorizations,
orders, approvals and waivers.
6.6 Termination. This Agreement and the transactions contemplated
hereby may be terminated (i) at any time by the mutual consent of the parties
hereto; (ii) by JIG, or by BYMT, if the Closing has not occurred on or prior to
December 16, 2005 (such date of termination being referred to herein as the
"Termination Date"), provided the failure of the Closing to occur by such date
is not the result of the failure of the party seeking to terminate this
Agreement to perform or fulfill any of its obligations hereunder; (iii) by JIG
at any time at or prior to Closing in its sole discretion if (1) any of the
representations or warranties of BYMT, and Purchaser in this Agreement are not
in all material respects true, accurate and complete or if BYMT, and Purchaser
breach in any material respect any covenant contained in this Agreement,
provided that such misrepresentation or breach is not cured within ten (10)
business days after notice thereof, but in any event prior to the Termination
Date or (2) any of the conditions precedent to JIG's obligations to conduct the
Closing have not been satisfied by the date required thereof; (iv) by BYMT at
any time at or prior to Closing in its sole discretion if (1) any of the
representations or warranties of JIG in this Agreement are not in all material
respects true, accurate and complete or if JIG breaches in any material respect
any covenant contained in this Agreement, provided that such misrepresentation
or breach is not cured within ten (10) business days after notice thereof, but
in any event prior to the Termination Date or (2) any of the conditions
precedent to JIG's obligations to conduct the Closing have not been satisfied by
the date required thereof. If this Agreement is terminated pursuant to this
Section 6.6, written notice thereof shall promptly be given by the party
electing such termination to the other party and, subject to the expiration of
the cure periods provided in clauses (iii) and (iv) above, if any, this
Agreement shall terminate without further actions by the parties and no party
shall have any further obligations under this Agreement. Notwithstanding the
preceding sentence, the respective obligations of the parties under Sections 7.1
shall survive the termination of this Agreement. Notwithstanding anything to the
contrary contained herein, if the termination of this Agreement is a result of
the willful misrepresentation, willful inaccuracy or omission in a
representation, willful breach of warranty, fraud or any willful failure to
perform or comply with any covenant or agreement contained herein, the aggrieved
party shall be entitled to recover from the non-performing party all
out-of-pocket expenses which such aggrieved party has incurred and the
termination of this Agreement shall not be deemed or construed as limiting or
denying any other legal or equitable right or remedy of such party.
ARTICLE VII
Covenants
7.1 General Confidentiality. BYMT, and Purchaser acknowledge that the
Intellectual Property and all other confidential or proprietary information with
respect to the business and operations of JIG are valuable, special and unique
assets of JIG. BYMT, and Purchaser or any agent of either shall not, at any time
either before or after the Closing Date, disclose, directly or indirectly, to
any Person, or use or purport to authorize any Person to use any confidential or
proprietary information with respect to JIG, whether or not for BYMT, and
Purchaser own benefit, without the prior written consent of JIG or unless
required by law, including without limitation, (i) any of JIG's trade secrets,
designs, formulae, drawings, Intellectual Property, diagrams, techniques,
research and development, specifications, data, know-how, formats, marketing
plans, business plans, budgets, strategies, forecasts or client data; (ii)
information relating to the products developed by JIG, (iii) the names of JIG's
customers and contacts, (iv) JIG's marketing strategies, (v) the names of JIG's
vendors and suppliers, (vi) the cost of materials and labor, and the prices
obtained for products or services sold (including the methods used in price
determination, manufacturing and sales costs), (vii) the lists or other written
records used in JIG's business, including compensation paid to employees and
consultants and other terms of employment, production operation techniques or
any other confidential information of, about or pertaining to the business of
JIG, and, (viii) all tangible material that embodies any such confidential and
proprietary information as well as all records, files, memoranda, reports, price
lists, drawings, plans, sketches and other written and graphic records,
documents, equipment, and the like, relating to the business of JIG, and (ix)
any other confidential information or trade secrets relating to the business or
affairs of JIG which BYMT and Purchaser may acquire or develop in connection
with or as a result of their performance of the terms and conditions of this
Agreement, excepting only such information as is already known to the public or
which may become known to the public without any fault of BYMT and Purchaser or
in violation of any confidentiality restrictions; provided, however, that the
restrictions of this Section 7.1 shall not be applicable to BYMT and Purchaser
in connection with such Parties' enforcement of its rights under this Agreement.
BYMT and Purchaser acknowledge that JIG would not enter into this Agreement
without the assurance that all such confidential and proprietary information
will be used for the exclusive benefit of JIG.
7.2 Continuing Obligations. The restrictions set forth in Section 7.1
are considered by the parties to be reasonable for the purposes of protecting
the value of the business and goodwill of JIG. BYMT and Purchaser acknowledge
that JIG would be irreparably harmed and that monetary damages would not provide
an adequate remedy to JIG in the event the covenants contained in Section 7.1
were not complied with in accordance with their terms. Accordingly, BYMT and
Purchaser agree that any breach or threatened breach by any of them of any
provision of Section 7.1 shall entitle JIG to injunctive and other equitable
relief to secure the enforcement of these provisions, in addition to any other
remedies (including damages) which may be available to JIG. It is the desire and
intent of the parties that the provisions of Section 7.1 be enforced to the
fullest extent permissible under the laws and public policies of each
jurisdiction in which enforcement is sought. If any provision of Section 7.1 are
adjudicated to be invalid or unenforceable, the invalid or unenforceable
provisions shall be deemed amended (with respect only to the jurisdiction in
which such adjudication is made) in such manner as to render them enforceable
and to effectuate as nearly as possible the original intentions and agreement of
the parties. In addition, if any party brings an action to enforce Section 7.1
hereof or to obtain damages for a breach thereof, the prevailing party in such
action shall be entitled to recover from the non-prevailing party all reasonable
attorney's fees and expenses incurred by the prevailing party in such action.
7.3 Satisfaction of Certain Payment Debts, and Expenses of the Transaction.
Upon the closing, The Regency Group, LLC shall arrange funding to BYMT, to pay
payments due, debts and expenses of the Transaction in an aggregate amount of
$475,000 including costs, with such payments being made by cashiers check from
escrow to the entities or persons and in the amounts identified on Schedule 3.20
hereto. Such funding shall be through a Stock Subscription for additional Common
Stock to be newly issued at $1.19 per share and/or Series A Preferred Stock as
may be negotiated by an investor. All debts shall be satisfied and released at
closing.
7.4 Tax Treatment. Neither BYMT and Purchaser, nor JIG will knowingly take
any action, written or otherwise, which would result in the transactions
contemplated by this Agreement not being accounted for as a tax-free exchange
pursuant to Section 368(a)(1)(B) of the Code.
7.5 No Reverse Covenant. The parties hereto agree to the continuing
covenant surviving the closing under the Merger Agreement with JIG, which
provides that for a two year period after closing under this Agreement, no
actions will be taken by the Company or its shareholders which would reduce the
number of outstanding shares of common stock, by reverse split, consolidation,
reorganization or merger of the Company or any successor company (which shall be
known as the "No-Reverse Covenant"). In the event that the "No-Reverse Covenant"
is breached, it shall automatically constitute a grant by the Company of an
immediate mandatory dividend to each shareholder as of December 1, 2005, for
each share owned after the reverse split, consolidation, merger, or
reorganization of outstanding shares, of a number of shares inversely
proportional to the amount of the reverse split, except that shares subsequently
retired to treasury or cancelled of record shall be excluded from the dividend,
which shall be enforceable by any affected shareholder and the Company shall be
taxed the costs and legal fees of any action to enforce such covenant.
ARTICLE VIII
Miscellaneous
8.1 Notices. Any notice, demand, claim or other communication under
this Agreement shall be in writing and delivered personally or sent by certified
mail, return receipt requested, postage prepaid, or sent by facsimile or prepaid
overnight courier to the parties at the addresses as follows (or at such other
addresses as shall be specified by the parties by like notice):
If to BYMT, Purchaser or Baymark Technologies, Inc.
With a copy to: Xxxxxxx Xxxxxxx, Esq.
0000 Xxxxxxx Xxxx
Xxxxxx, XX 00000
Phone: (000) 000-0000
If to JIG:
Xxxxxx X. Xxxxxxx
00000 Xxxxxx Xx.
Xxxxx Xxxxxxx, XX 00000
With a copy to:
Xxxxxxx Xxxxxxx
00 XxXxxxxx Xxxxx
Xxxxxxxx, XX 00000
Such notice shall be deemed delivered upon receipt against
acknowledgment thereof if delivered personally, on the third business day
following mailing if sent by certified mail, upon transmission against
confirmation if sent by facsimile and on the next business day if sent by
overnight courier.
8.2 Entire Agreement; Incorporation. This Agreement and the documents
and instruments and other agreements among the parties hereto as contemplated by
or referred to herein contain every obligation and understanding between the
parties relating to the subject matter hereof and merges all prior discussions,
negotiations, agreements and understandings, both written and oral, if any,
between them, and none of the parties shall be bound by any conditions,
definitions, understandings, warranties or representations other than as
expressly provided or referred to herein. All schedules, exhibits and other
documents and agreements executed and delivered pursuant hereto are incorporated
herein as if set forth in their entirety herein.
8.3 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors,
heirs, personal representatives, legal representatives, and permitted assigns.
8.4 Assignment. This Agreement may not be assigned by any party without
the written prior consent of the other parties. Subject to the preceding
sentence, this Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and permitted assigns.
8.5 Waiver and Amendment. Any representation, warranty, covenant, term
or condition of this Agreement which may legally be waived, may be waived, or
the time of performance thereof extended, at any time by the party hereto
entitled to the benefit thereof, and any term, condition or covenant hereof
(including, without limitation, the period during which any condition is to be
satisfied or any obligation performed) may be amended by the parties thereto at
any time. Any such waiver, extension or amendment shall be evidenced by an
instrument in writing executed on behalf of the party against whom such waiver,
extension or amendment is sought to be charged. No waiver by any party hereto,
whether express or implied, of its rights under any provision of this Agreement
shall constitute a waiver of such party's rights under such provisions at any
other time or a waiver of such party's rights under any other provision of this
Agreement. No failure by any party thereof to take any action against any breach
of this Agreement or default by another party shall constitute a waiver of the
former party's right to enforce any provision of this Agreement or to take
action against such breach or default or any subsequent breach or default by
such other party.
8.6 No Third Party Beneficiary. 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 and their respective heirs, personal
representatives, legal representatives, successors and permitted assigns, any
rights or remedies under or by reason of this Agreement, except as otherwise
provided herein.
8.7 Severability. In the event that any one or more of the provisions
contained in this Agreement, or the application thereof, shall be declared
invalid, void or unenforceable by a court of competent jurisdiction, the
remainder of this Agreement shall remain in full force and effect and the
application of such provision to other Persons or circumstances will be
interpreted so as reasonably to effect the intent of the parties hereto. The
parties further agree to replace such invalid, void or unenforceable provision
with a valid and enforceable provision that will achieve, to the extent
possible, the economic, business and other purposes of such invalid, void or
unenforceable provision.
8.8 Expenses. Except as otherwise provided herein, each party agrees to
pay, without right of reimbursement from the other party, the costs incurred by
it incident to the performance of its obligations under this Agreement and the
consummation of the transactions contemplated hereby, including, without
limitation, costs incident to the preparation of this Agreement, and the fees
and disbursements of counsel, accountants and consultants employed by such party
in connection herewith.
8.9 Headings. The table of contents and the section and other headings
contained in this Agreement are for reference purposes only and shall not affect
the meaning or interpretation of any provisions of this Agreement.
8.10 Other Remedies; Injunctive Relief. Except as otherwise provided
herein, any and all remedies herein expressly conferred upon a party will be
deemed cumulative with and not exclusive of any other remedy conferred hereby,
or by law or equity upon such party, and the exercise by a party of any one
remedy will not preclude the exercise of any other remedy. The parties hereto
agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to seek an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
hereof in any court of the United States or any state having jurisdiction, this
being in addition to any other remedy to which they are entitled at law or in
equity. In any action at law or suit in equity to enforce this Agreement or the
rights of the parties hereunder, the prevailing party in any such action or suit
shall be entitled to receive a reasonable sum for its attorneys' fees and all
other reasonable costs and expenses incurred in such action or suit.
8.11 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. Facsimile signatures
shall be deemed valid and binding.
8.12 Remedies Exclusive. Except in the case of fraud or equitable
remedies expressly provided for herein, the parties acknowledge and agree that
the indemnification provisions set forth in Article V of this Agreement
constitute the parties' sole and exclusive remedy with respect to any and all
claims relating to the transactions contemplated by this Agreement. Governing
Law. This Agreement has been entered into and shall be construed and enforced in
accordance with the laws of the State of Colorado, without reference to the
choice of law principles thereof.
8.13 Jurisdiction and Venue. This Agreement shall be subject to the
exclusive jurisdiction of the courts of Jefferson County, Colorado. The parties
to this Agreement agree that any breach of any term or condition of this
Agreement shall be deemed to be a breach occurring in the State of Colorado by
virtue of a failure to perform an act required to be performed in the State of
Colorado and irrevocably and expressly agree to submit to the jurisdiction of
the courts of the State of Colorado for the purpose of resolving any disputes
among the parties relating to this Agreement or the transactions contemplated
hereby. The parties irrevocably waive, to the fullest extent permitted by law,
any objection which they may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement, or any
judgment entered by any court in respect hereof brought in Jefferson County,
Colorado, and further irrevocably waive any claim that any suit, action or
proceeding brought in Jefferson County, Colorado has been brought in an
inconvenient forum.
8.14 Participation of Parties. The parties hereby agree that they have
been represented by counsel during the negotiation and execution of this
Agreement and, therefore, waive the application of any law, regulation, holding,
or rule of construction providing that ambiguities in an agreement or other
document will be construed against the party drafting such agreement or
document.
8.15 Further Assurances. The parties hereto shall deliver any and all
other instruments or documents reasonably required to be delivered pursuant to,
or necessary or proper in order to give effect to, all of the terms and
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 JIG Stock.
8.16 Publicity. No public announcement or other publicity concerning
this Agreement or the transactions contemplated hereby shall be made without the
prior written consent of both JIG and BYMT as to form, content, timing and
manner of distribution. Nothing contained herein shall prevent any party from
making any filing required by federal or state securities laws or stock exchange
rules.
8.17 Concurrently with the closing hereunder and as condition hereof,
Xxx Xxxxxxx, holder of 300,000 common shares of BYMT, (post reverse split),
will, for the sum of $5,000, sell and surrender such 300,000 common shares, for
retirement to treasury of BYMT. Such shares shall be transmitted to Escrow Agent
in certificate form, together with a Medallion Guaranteed signed stock power for
such shares, for delivery and retirement to treasury upon payment of $5,000 to
Xxx Xxxxxxx. Such $5,000 shall be paid from proceeds as set forth in Section 7.3
hereof.
8.18 Concurrent with Closing hereunder, BYMT shall issue 5,000
restricted common shares each to Xxxxxx Xxxxxxx and Xxxxxx Xxxxx for their
services as directors of the Company.
IN WITNESS WHEREOF, the parties hereto have each executed and
delivered this Agreement as of the day and year first above written.
BAYMARK TECHNOLOGIES, INC.
By:______________________________________
Name: Xxx Xxxxxxx
Title: President
JIGJIG, LLC
By:______________________________________
Name:
Title: Manager
BT ACQUISITION, INC.
By:_______________________________________
Name: Xxxxxx Xxxxxxx
Title: President
Xxx Xxxxxx (as to Section 8.17 only)
----------------------------------------
Schedule 3.20
San Remo, LLC $225,000
(Advances Repayment
for Debit Purchase)
Xxx Xxxxxxx $100,000
(Loan Repayment)
Legal Fees $140,000
Jaspers & Hall, PC $10,000 (estimated - any balance
unused to be added to
legal fees for advances
to auditor)
Xxx Xxxxxxx $5,000
Share Repurchase
Oral or Material Contracts or Agreements
None (other than as set forth above)
---------------------------------------------------------
---------------------------------------------------------
Xxxxxx Xxxxxxx 3,521,964
Rozakis Family, LLC 3,500,000
Igor Valyunin 7,266,667
---------------------------------------------------------
26,000,000
---------------------------------------------------------
Xxxx Xxxxxx 2,000,000
---------------------------------------------------------
4,000,000
---------------------------------------------------------
---------------------------------------------------------
Total Shares 30,000,000
---------------------------------------------------------
SCHEDULE 3.5 - Conduct of Business
No other business has or will be taken by the company other than the resolutions
described in the Board Minutes authorizing this transaction and surrounding
events approved by JIG.
SCHEDULE 3.16
None
