AGREEMENT
THIS AGREEMENT is made this __________________________ by and among
Xxxx Neuveux & Co., hereinafter called "HANX", Productos Forestales
Bolivar C.A., a company organized under the laws of Venezuela,
hereinafter called "PFB", and Xxxxxxx Xxxxxxx Xxxxx, hereinafter
called "Xxxxx".
RECITALS:
WHEREAS, HANX desires to acquire 100% of the issued and outstanding
shares of the common stock of PFB, in exchange for 77,000,000
authorized but unissued shares of the $.001 par value common stock
of HANX, pursuant to a plan of reorganization within the meaning of
IRC (1986), Section 368(a)(1)(B), as amended, and
WHEREAS, XXXXX desires to exchange 100% of the issued and
outstanding shares of the common stock of PFB currently owned by
XXXXX, in exchange for said 77,000,000 shares of HANX.
NOW THEREFORE, in consideration of the mutual promises, covenants
and representations contained herein, and to consummate the
foregoing plan of reorganization, the parties hereby adopt said
plan of organization and agree as follows:
ARTICLE I
EXCHANGE OF SECURITIES
1.01 Issuance of HANX Shares. Subject to all of the terms and
conditions of this Agreement, HANX agrees to issue to XXXXX
77,000,000 fully paid and nonassessable unregistered shares of HANX
common stock in exchange for 100% of the outstanding PFB common
stock, 20 shares, all of which are currently owned by XXXXX.
1.02 Transfer of PFB Shares. In exchange for HANX's stock
being issued to XXXXX as above described, XXXXX shall on the
closing date and concurrent with such issuance of HANX's common
stock, delivery to HANX 100% of the outstanding commons stock of
PFB.
ARTICLE II
INDEMNIFICATION OF FINDER/NO AFFILIATE
2.01 Indemnification of Finder/Broker. Negotiations relative
to this Agreement and related transactions have been conducted with
the assistance of Xxxxxx & Xxxxxx Management, Inc. who is acting as
a broker, finder and consultant on behalf of both PFB and HANX.
PFB, HANX and XXXXX agree to hold harmless and indemnify Xxxxxx &
Xxxxxx Management, Inc. and its officers and directors from any and
all claim, demand, cause of action or suit _______ or filed in
connection with the within Agreement or any related transaction or
the operation or promotion of PFB and/or HANX or the trading of
their shares.
2.02 No Affiliate. All parties agree that after the exchange
of shares as provided above, that neither Xxxxxx and Xxxxxx
Management, Inc., nor any of its officers and directors have any
ongoing or other business relationship with any of the parties to
this Agreement, or their officers, directors and promoters, nor any
family or other relationship with such and therefore have no
ability to exercise any control or influence of the management and
conduct of HANX's business and therefore are non affiliates of
HANX.
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ARTICLE III
REPRESENTATIONS, AGREEMENTS AND WARRANTIES OF
XXXXX AND PFB
3.01 Organization. PFB is a corporation duly organized,
validly existing, and in good standing under laws of Venezuela, has
all necessary corporate powers to own its properties and to carry
on its business as now owned and operated by it, is duly qualified
to do business and is in good standing in any jurisdiction its
business requires qualification.
3.02 Capital. The authorized capital stock of PFB consists of
20 shares of common stock, of which 20 shares are currently issued
and outstanding. All of the issued and outstanding shares are
validly issued, fully paid and nonassessable.
3.03 Subsidiaries. PFB does not have any subsidiaries.
3.04 Directors and Officers. Exhibit 3.04 to this Agreement
contains the names and titles of all directors and officers of PFB
as of the date of this Agreement.
3.05 Financial Statements. Exhibit 3.05 of this Agreement
includes the audited financial statements of PFB.
3.06 Absence of Changes. Since the date of PFB's most recent
financial statements included in Exhibit 3.05 there have been no
changes in its financial condition or operations, except for
changes in the ordinary course of business.
3.07 Absence of Undisclosed Liabilities. As of the date of
PFB's most recent balance sheet included in Exhibit 3.05 it did not
have any material debt, liability or obligation of any nature,
whether accrued, absolute, contingent or otherwise, and whether due
or to become due, that is not reflected in such balance sheet.
3.08 Tax Returns. Within the times and in the manner
prescribed by law, PFB has filed all federal, state and local tax
returns required by law, has paid all taxes, assessments and
penalties due and payable and has made adequate provision on its
most recent balance sheet for any unpaid taxes. There are no
present disputes as to taxes of any nature payable by PFB.
3.09 Investigation of Financial Condition. Without in any
manner reducing or otherwise mitigating the representations
contained herein, HANX and/or its attorneys shall have the
opportunity to meet with accountants and attorneys to discuss the
financial condition of PFB. PFB shall made available to HANX
and/or its attorneys all books and records of PFB. If the
transaction contemplated hereby is not completed, all documents
received by HANX and/or its attorneys shall be returned to PFB and
all information so received shall be treated as confidential.
3.10 Patents, Trade Names and Rights. PFB owns or holds all
necessary patents, trademarks, service marks, trade names,
copyrights and other rights necessary to the conduct or proposed
conduct of its business.
3.11 Compliance with Laws. PFB has complied with, and is not
in violation of, applicable federal, state or local statutes, laws
and regulations affecting its properties or the operation of its
business.
3.12 Litigation. PFB is not a party to, nor to the best of its
knowledge is there pending or threatened, any suit, action,
arbitration or legal, administrative or other proceeding, or
governmental investigation concerning its business, assets or
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financial condition. PFB is not in default with respect to any
order, writ, injunction or decree of any federal, state, local or
foreign court or agency, nor is it engaged in any lawsuit to
recover monies due to it.
3.13 Authority. The Board of Directors of PFB authorized the
execution of this Agreement and the consummation of the
transactions contemplated herein and has full power and authority
to execute, deliver and perform this Agreement.
3.14 Ability to Carry Out Obligations. The execution and
deliver of this Agreement by PFB and the performance of its
obligations hereunder in the time and manner contemplated will not
cause, constitute or conflict with or result in (i) any breach of
the provisions of any license, indenture, mortgage, charter,
instrument, certificate of incorporation, bylaw or any other
agreement or instrument to which it is a party or by which it may
be bound, nor with any consents or authorizations of any party
other than those hereto be required, (ii) an event that would
permit any party to any agreement or instrument to terminate it or
to accelerate the maturity of any indebtedness or other obligation,
or (iii) an event that results in the creation or imposition of any
lien, charge or encumbrance on any asset.
3.15 Full Disclosure. None of the representations and
warranties made by XXXXX or PFB herein or in any exhibit,
certificate or memorandum furnished or to be furnished by XXXXX or
PFB, or on either's behalf, contains or will contain any untrue
statement of material fact, or omits any material fact, the
omission of which would be misleading.
3.16 Assets. PFB has good and marketable title to all of its
property free and clear of any and all liens, claims or
encumbrances except as may be indicated in Exhibit 3.05.
3.17 Indemnification. XXXXX and PFB agree to defend and hold
HANX and its officers and directors harmless against and in respect
of any and all claims, demands, losses, costs, expenses,
obligations, liabilities or damages, including interest, penalties
and reasonable attorney's fees, that it shall incur or suffer,
which arise out of, result from or relate to any breach of this
Agreement or failure by XXXXX or PFB to perform with respect to any
of its representations, warranties or covenants contained in this
Agreement or in any exhibit or other instrument furnished or to be
furnished under this Agreement.
3.18 Authority to Exchange. As of the date of this Agreement,
XXXXX holds 100% of the shares of PFB common stock. Such shares
are owned of record and beneficially by XXXXX and such shares are
not subject to any lien, encumbrance or pledge. XXXXX holds
authority to exchange such shares pursuant to this Agreement.
3.19 Investment Intent. XXXXX understands and acknowledges
that the shares of HANX common stock offered for exchange or sale
pursuant to this Agreement are being offered in reliance upon the
exemption from registration requirements of the Securities Act of
1993, as amended (the "Act), pursuant to Section 4(2) of the Act
and the rules and regulations promulgated thereunder, for nonpublic
offerings and makes the following representations, agreements and
warranties with the intent that the same may be relied upon in
determining the suitability of XXXXX as a purchaser of HANX common
stock:
(a) The shares of HANX common stock are being acquired solely
for the account of XXXXX for investment purposes only, and not with
a view to, or for sale in connection with, any distribution
thereof, and with no present intention of distributing or reselling
any part of the HANX common stock acquired;
(b) XXXXX agrees not to dispose of his HANX common stock or any
portion thereof unless and until counsel for HANX shall have
determined that the intended disposition is permissible and does
not violate the Act or any applicable Federal or state securities
laws, or the rules and regulations thereunder.
(c) XXXXX agrees that the certificates evidencing the HANX
commons stock acquired pursuant to this Agreement will have a
legend placed thereon stating that they have not been registered
under the Act of any state securities laws and setting forth or
referring to the restrictions on transferability and sale of the
HANX commons stock, and that stop transfer instruction shall be
placed with the transfer agent for said certificate.
(d) XXXXX acknowledges that HANX has made all records and
documentation pertaining to HANX common stock available to them and
their qualified representatives, if any, and has offered such
person or persons an opportunity to ask questions and further
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discuss the proposed acquisitions of HANX common stock, and any
available information pertaining thereto, with the officers and
directors of HANX, and that all such questions and information
requested have been answered by HANX and its officers ad directors
to XXXXX'x satisfaction.
(e) XXXXX has carefully evaluated his financial resources and
investment position and the risks associated with this transaction
and is able to bear the economic risks of this transaction; and he
has substantial knowledge and experience in financial, business and
investment matters and is qualified as a sophisticated investor,
and is capable of evaluating the merits and risks of this
transaction; and he desires to acquire the HANX common stock on the
terms and conditions set forth;
(f) XXXXX is able to bear the economic risk of an investment in
the HANX commons stock; and
(g) XXXXX understands that an investment in the HANX commons
stock is illiquid and XXXXX has no need for liquidity in this
investment.
3.20 Receipt of Relevant Information. XXXXX and PB have
received from HANX all financial and other information concerning
HANX and its promoters, officers and directors.
3.21 Public "Shell" Corporation. PFB and XXXXX are aware
that HANX has public shareholders and is a "shell" corporation
without significant assets or liabilities, further that public
companies are subject to extensive and complex state, federal and
other regulations. Among other requirements, XXXXX and PFB are
aware that a form 8-K must be filed with the United States
Securities and Exchange Commission within fifteen days after
closing which filing requires that audited financial statements be
filed within sixty days after the filing of the 8-K, and they agree
that such responsibility shall not be responsibility of Xxxxxx &
Xxxxxx Management, Inc., its officers, directors or employees nor
the existing officers of HANX, but the sole responsibility of the
new officers and directors of HANX. XXXXX and PFB are aware of the
legal requirements and obligations of public companies, understand
that regulatory efforts regarding public shell transactions similar
to the transaction contemplated herein has been and is currently
being exerted by some states, the U.S. Securities & Exchange
Commission and the National Association of Securities Dealers, Inc.
(NASD), and are fully aware of their responsibilities, following
closing, to fully comply with all securities laws and regulations,
and agree to do so.
3.22 No Assurances or Warranties. XXXXX and PFB acknowledge
that there can be no assurance regarding the tax consequences of
this transaction, nor can there be any assurance that the Internal
Revenue Code or the regulations promulgated thereunder will not be
amended in such manner as to deprive them of any tax benefit that
might otherwise be received. XXXXX and PFB are relying upon the
advice of their own tax advisors with respect to the tax aspects of
this transaction. No representations or warranties have been made
by HANX, Xxxxxx & Xxxxxx Management, Inc., or their officers,
directors, affiliates or agents, as to the benefits to be derived
by XXXXX or PFB in contemplating this transaction, nor have any of
them made any warranty or agreement, expressed or implied, as to
the tax or securities consequences of the transactions contemplated
by this Agreement or the tax or securities consequences of any
action pursuant to or growing out of this Agreement.
ARTICLE IV
REPRESENTATIONS, AGREEMENTS AND WARRANTIES OF HANX
HANX represents, agrees and warrants that:
4.01 Organization. HANX is a corporation duly organized,
validly existing, and in good standing under laws of Colorado, has
all necessary corporate powers to own its properties and to carry
on its business as now owned and operated by it, is duly qualified
to do business and is in good standing in any jurisdiction its
business requires qualification.
4.02 Capital. The authorized capital stock of HANX consists of
100,000,000 shares of $.001 par value common stock, of which
20,960,058 shares are currently issued and outstanding. All of
the issued and outstanding shares are validly issued, fully paid
and nonassessable. All currently outstanding shares of HANX Common
Stock have been issued in compliance with applicable federal and
state securities laws.
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4.03 Subsidiaries. HANX has no subsidiaries and does not own
any interest in any other enterprise.
4.04 Directors and Officers. Exhibit 4.04 to this Agreement
contains the names and titles of all directors and officers of HANX
as of the date of this Agreement.
4.05 Financial Statements. Exhibit 4.05 of this Agreement
includes HANX's audited financial statements as of December 31,
1997. The financial statements have been prepared in accordance
with generally accepted accounting principles and practices
consistently followed throughout the period indicated and fairly
present the financial position of HANX as of the dates of the
balance sheets included in the financial statements and the results
of operations for the periods indicated.
4.06 Absence of Changes. Since the date of HANX's most recent
financial statements, there has not been any change in its
financial condition or operations, except for changes in the
ordinary course of business.
4.07 Absence of Undisclosed Liabilities. As of the date of
HANX's most recent balance sheet, included in Exhibit 4.05, it did
not have any material debt, liability or obligation of any nature,
whether accrued, absolute, contingent or otherwise, and whether due
or to become due, that is not reflected in such balance sheet.
4.08 Tax Returns. Within the times and in the manner
prescribed by law, HANX has filed all federal, state and local tax
returns required by law, has paid all taxes, assessments and
penalties due and payable and has made adequate provision on its
most recent balance sheet for any unpaid taxes. There are no
present disputes as to taxes of any nature payable by HANX.
4.09 Investigation of Financial Condition. Without in any
manner reducing or otherwise mitigating the representations
contained herein, PFB and XXXXX shall have the opportunity to meet
with HANX's accountants and attorneys to discuss the financial
condition of HANX. HANX shall made available to PFB and XXXXX all
books and records of HANX.
4.10 Patents, Trade Names and Rights. HANX does not use any
patents, trade marks, service marks, trade names or copyrights in
its business.
4.11 Compliance with Laws. HANX has complied with, and is
not in violation of, applicable federal, state or local statutes,
laws and regulations affecting its properties or the operation of
its business.
4.12 Litigation. HANX is not a party to, nor to the best of
its knowledge is there pending or threatened, any suit, action,
arbitration or legal, administrative or other proceeding, or
governmental investigation concerning its business, assets or
financial condition. HANX is not in default with respect to any
order, writ, injunction or decree of any federal, state, local or
foreign court or agency, nor is it engaged in, nor does it
anticipate it will be necessary to engage in, any lawsuits to
recover money or real or personal property.
4.13 Authority. The Board of Directors of HANX authorized the
execution of this Agreement and the transactions contemplated
herein and has full power and authority to execute, deliver and
perform this Agreement.
4.14 Ability to Carry Out Obligations. The execution and
deliver of this Agreement by HANX and the performance of its
obligations hereunder in the time and manner contemplated will not
cause, constitute or conflict with or result in (i) any breach of
the provisions of any license, indenture, mortgage, charter,
instrument, certificate of incorporation, bylaw or any other
agreement or instrument to which it is a party or by which it may
be bound, nor with any consents or authorizations of any party
other than those hereto be required, (ii) an event that would
permit any party to any agreement or instrument to terminate it or
to accelerate the maturity of any indebtedness or other obligation,
or (iii) an event that results in the creation or imposition of any
lien, charge or encumbrance on any asset.
4.15 Full Disclosure. None of the representations and
warranties made by HANX herein or in any exhibit, certificate or
memorandum furnished or to be furnished by it or on its behalf,
contains or will contain any untrue statement of material fact, or
omits any material fact, the omission of which would be misleading.
4.16 Assets. HANX has good and marketable title to all of its
property free and clear of any and all liens, claims and
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encumbrances except as may be indicated in Exhibit 4.05.
4.17 Indemnification. HANX agrees to indemnify, defend and
hold harmless against and in respect of any and all claims,
demands, losses, costs, expenses, obligations, liabilities or
damages, including interest, penalties and reasonable attorney's
fees, incurred or suffered, which arise out of, result from or
relate to any breach of this Agreement or failure by HANX to
perform, any of its representations, warranties or covenants
contained in this Agreement or in any exhibit or other instrument
furnished or to be furnished under this Agreement.
4.18 Validity of HANX Shares. The shares of HANX $.001 par
value common stock to be issued pursuant to this Agreement will be
duly authorized, validly issued, fully paid and nonassessable under
Colorado law.
ARTICLE V
ACTIONS PRIOR TO CLOSING
5.01 Investigative Rights. Prior to the Closing Date each
party shall provide to the other parties, including the parties'
counsel, accountants and other authorized representatives, full
access during normal business hours (upon reasonable advance
written notice) to such parties' books and records.
5.02 Conduct of Business. Prior to the Closing Date, each
party shall conduct its business in the normal course and shall not
see, pledge or assign any assets, without the prior written
approval of other parties. No party shall amend its certificate of
incorporation of bylaws, declare dividends, redeem or sell stock or
other securities, incur additional liabilities, acquire or dispose
of fixed assets, change employment terms, enter into any material
or long-term contract, guarantee obligations of any third party,
settle or discharge any balance sheet receivable for less than its
stated amount, pay more on any liability that its stated amount or
enter into any other transaction other than in the regular course
of business.
ARTICLE VI
CLOSING
6.01 Closing. The closing (the "Closing") of this transaction
shall be held at the offices of HANX, or such other place as shall
be mutually agreed upon, on or before ______, 1998 (the "Closing
Date").
(a) HANX shall issue 77,000,000 shares of its $.001 par value
commons stock in a certificate or certificates representing such
shares;
(b) XXXXX shall deliver the certificates representing 100% of
the shares of PFB commons stock (20 shares);
(c) HANX shall deliver a signed consent or minutes of its Board
of Directors, approving this Agreement and authorizing the matters
set forth herein;
(d) PFB shall deliver a signed consent or minutes of its Board
of Directors approving this Agreement and authorizing the matters
set forth herein;
(e) HANX's existing Board of Directors will (i) elect three new
directors, as named by XXXXX to act as officers and directors of
HANX in the capacities set forth in Exhibit 6.01 and (ii) the two
current directors will resign their positions with HANX effective
the Closing Date.
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ARTICLE VII
MISCELLANEOUS
7.01 Captions and Headings. The article and paragraph headings
throughout this Agreement are for convenience and reference only
and shall not be deemed to define, limit or add to the meaning of
any provision of this Agreement.
7.02 No Oral Change. This Agreement may not be changed or
modified except in writing signed by the party against whom
enforcement of any change or modification is sought.
7.03 Non-Waiver. Except as otherwise expressly provided
herein, no waiver of a covenant, condition or provision of this
Agreement shall be deemed to have been made unless executed in
writing and signed by the party against whom such waiver is
charged. The failure of any party to insist in any one or more
cases upon the performance of any covenant, condition or provision
of this Agreement shall not be construed as a waiver or
relinquishment for the future of any covenant, condition or
provision. No waiver by any party of one breach by the other shall
be construed as a waiver with respect to a subsequent breach.
7.04 Time of Essence. Time is of the essence of this Agreement
and of each and every provision hereof.
7.05 Entire Agreement. This Agreement contains the entire
agreement and understanding between the parties and supersedes all
prior agreements and understandings.
7.06 Choice of Law/Arbitration. This Agreement and its
application, shall be governed under the laws of the State of
Colorado. Any and all disputes and controversies of every kind and
nature between the parties hereto arising out of or relating to
this Agreement relating to the existence, construction, validity,
interpretation or meaning, performance, non-performance
enforcement, operation, breach, continuance of termination thereof
shall be subject to an arbitration mutually agreeable to the
parties, or in the absence of such mutual agreement, then subject
to arbitration in accordance with the rules of the American
Arbitration Association. It is the intent of the parties hereto
and the purpose of this provision to make the submission to
arbitration of any dispute or controversy arising hereunder an
express condition precedent to any legal or equitable action or
proceeding of any nature whatsoever.
7.07 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but
all of which when taken together shall constitute one and the same
instrument.
7.08 Notices. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall
be deemed to have been given on the date of service if served
personally on the party to whom notice is to be given, or on the
third day after mailing if mailed so the party to whom notice is to
be given, by first class mail, registered or certified, postage
prepaid, and property addressed as follows:
Xxxx Neuveux & Co., S.A.
0000 - 0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX X0X 0X0
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PFB and XXXXX
Xxx.Xx Corniza Xxxxx Xxxxxxxxxxx
Xxxxxxx Xx. 0, Xxxxxx Xx. 0
Xxxxxx Xxxxx Bde Bolivar
Venezuela
7.09 Expenses. The parties will pay their own legal,
accounting and other expenses incurred in connection with this
Agreement.
7.10 Survival of Representations and Warranties. The
representations, warranties and covenants set forth in this
Agreement or in any instrument, certificate, opinion or other
writing provided for in it, shall survive the Closing Date.
7.11 Further Documents. The parties agree to execute any and
all other documents and to take such other action or corporate
proceedings has may ben necessary or desirable to carry out the
terms hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
Xxxx Neuveux and Company
/s/______________________________
President
Productos Forestales Bolivar, C.A.
/s/_____________________________ (SEAL)
President
/s/Xxxxxxx Xxxxxxx Xxxxx
Xxxxxxx Xxxxxxx Xxxxx
