Agreement for the Exchange of Common Stock
By and Between
BW Acquisition, Inc. and Univative Concepts, Inc.
THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE 1933 ACT), NOR REGISTERED UNDER ANY
STATE SECURITIES LAW, AND ARE RESTRICTED SECURITIES AS THAT TERM IS DEFINED IN
RULE 144 UNDER THE 1933 ACT.THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE 1933 ACT,OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933
ACT, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE SATISFACTION OF THE
COMPANY.
AGREEMENT FOR THE EXCHANGE OF COMMON STOCK
AGREEMENT made this 9th day of September, 2004, by and between BW Acquisition,
Inc., a Nevada corporation, (the ISSUER) and the individual listed in Exhibit
A attached hereto, (the SHAREHOLDER),which SHAREHOLDER owns all of the issued
and outstanding shares of Univative Concepts, Inc, a Nevada corporation
(UNIVATIVE CONCEPTS). In consideration of the mutual promises, covenants, and
representations contained herein, and other good and valuable consideration,
THE PARTIES HERETO AGREE AS FOLLOWS:
EXCHANGE OF SECURITIES. Subject to the terms and conditions of this Agreement,
the ISSUER agrees to issue to SHAREHOLDER, 1,000,000 shares of the common stock
of ISSUER,$.001 par value (the Shares),in exchange for 100% of the issued and
outstanding shares of UNIVATIVE CONCEPTS, such that UNIVATIVE CONCEPTS shall
become a wholly owned subsidiary of the iSSUER.
2. REPRESENTATIONS AND WARRANTIES ISSUER represents and warrants to SHAREHOLDER
and UNIVATIVE CONCEPTS the following:
i.Organization. ISSUER is a corporation duly organized,validly existing, and in
good standing under the laws of Nevada, and has all necessary corporate powers
to own properties and carry on a business, and is duly qualified to do business
and is in good standing in Nevada. All actions taken by the Incorporators
directors and SHAREHOLDER of ISSUER have been valid and in accordance with the
laws of the State of Nevada.
ii. Capital. The authorized capital stock of ISSUER consists of 25,000,000
shares of common stock, $.001 par value, of which 3,400,000 shares are issued
and outstanding. All outstanding shares are fully paid and nonassessable, free
of liens, encumbrances, options, restrictions and legal or equitable rights of
others not a party to this Agreement. At closing, there will be no outstanding
subscriptions, options, rights, warrants, convertible securities, or other
agreements or commitments obligating ISSUER to issue or to transfer from
treasury any additional shares of its capital stock. Immediately following the
closing there will be 4,400,000 shares of common stock issued and outstanding.
None of the outstanding shares of ISSUER are subject to any stock restriction
agreements.All of the SHAREHOLDER of ISSUER have valid title to such shares and
acquired their shares in a lawful transaction and in accordance with the laws
of Nevada.
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iii. Financial Statements. Exhibit B to this Agreement (to be subsequently
attached and filed)includes the current balance sheet of ISSUER,and the related
statements of income and retained earnings for the period then ended. The
financial statements have been prepared in accordance with generally accepted
accounting principles consistently followed by ISSUER throughout the periods
indicated, and fairly present the financial position of ISSUER as of the date
of the balance sheet and the financial statements, and the results of its
operations for the periods indicated.
iv. Absence of Changes. Since the date of the financial statements, there has
not been any change in the financial condition or operations of ISSUER, except
changes in the ordinary course of business, which changes have not in the
aggregate been materially adverse.
v. Liabilities. ISSUER does not have any debt, liability, or obligation of any
nature, whether accrued, absolute, contingent, or otherwise, and whether due or
to become due, that is not reflected on the ISSUERS' financial statement.ISSUER
is not aware of any pending, threatened or asserted claims, lawsuits or
contingencies involving ISSUER or its common stock. There is no dispute of any
kind between the ISSUER and any third party, and no such dispute will exist at
the closing of this Agreement. At closing, ISSUER will be free from any and all
liabilities, liens, claims and/or commitments.
vi. Ability to Carry Out Obligations. ISSUER has the right, power, and
authority to enter into and perform its obligations under this Agreement. The
execution and delivery of this Agreement byISSUER and the performance by ISSUER
of its obligations hereunder will not cause, constitute, or conflict with or
result in (a) any breach or violation or any of the provisions of or constitute
a default under any license, indenture, mortgage, charter, instrument, articles
of incorporation, bylaw,or other agreement or instrument to which ISSUER or its
SHAREHOLDER are a party,or by which they may be bound, nor will any consents or
authorizations of any party other than those hereto be required, (b) an event
that would cause ISSUER to be liable to any party, or (c) an event that would
result in the creation or imposition or any lien, charge or encumbrance on any
asset of ISSUER or upon the securities of ISSUER to be acquired by SHAREHOLDER.
vii. Full Disclosure. None of the representations and warranties made by the
ISSUER, or in any certificate or memorandum furnished or to be furnished by the
ISSUER, contains or will contain any untrue statement of a material fact, or
omit any material fact the omission of which would be misleading.
viii. Contract and Leases. ISSUER is not a party to any contract, agreement or
lease. No person holds a power of attorney from ISSUER.
ix. Compliance with Laws. ISSUER has complied with, and is not in violation of
any federal, state, or local statute, law, and/or regulation pertaining to
ISSUER. ISSUER has complied with all federal and state securities laws in
connection with the issuance, sale and distribution of its securities.
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x. Litigation. ISSUER is not (and has not been) a party to any suit, action,
arbitration, or legal, administrative, or other proceeding, or pending
governmental investigation. To the best knowledge of the ISSUER, there is no
basis for any such action or proceeding and no such action or proceeding is
threatened against ISSUER and ISSUER is not subject to or in default with
respect to any order, writ, injunction, or decree of any federal, state, local,
or foreign court, department, agency, or instrumentality.
xi. Conduct of Business. Prior to the closing, ISSUER shall conduct its
business in the normal course, and shall not (1) sell, pledge, or assign any
assets (2) amend its Articles of Incorporation or Bylaws,(3) declare dividends,
redeem or sell stock or other securities, (4) incur any liabilities,(5) acquire
or dispose of any assets, enter into any contract, guarantee obligations of any
third party, or (6) enter into any other transaction.
xii. Corporate Documents. Copies of each of the following documents, which are
true complete and correct in all material respects,will be attached to and made
a part of this Agreement:
(1) Articles of Incorporation;
(2) Bylaws;
(3) Minutes of SHAREHOLDER Meetings;
(4) Minutes of Directors Meetings;
(5) List of Officers and Directors;
(6) Current Balance Sheet together with other financial statements described in
Section 2(iii);
(7) Stock register and stock records of ISSUER and a current, accurate list of
ISSUER's shareholders.
xiii. Documents. All minutes, consents or other documents pertaining to ISSUER
to be delivered at closing shall be valid and in accordance with the laws of
Nevada.
xiv. Title. The Shares to be issued to SHAREHOLDER will be,at closing, free and
clear of all liens, security interests, pledges, charges, claims, encumbrances
and restrictions of any kind. None of such Shares are or will be subject to any
voting trust or xxxxxxxxx.Xx person holds or has the right to receive any proxy
or similar instrument with respect to such shares, except as provided in this
Agreement, the ISSUER is not a party to any agreement which offers or grants to
any person the right to purchase or acquire any of the securities to be issued
to SHAREHOLDER. There is no applicable local, state or federal law, rule,
regulation, or decree which would, as a result of the issuance of the Shares to
SHAREHOLDER, impair, restrict or delay SHAREHOLDER voting rights with respect
to the Shares.
3. SHAREHOLDER and UNIVATIVE CONCEPTS represent and warrant to ISSUER the
following:
i. Organization: UNIVATIVE CONCEPTS is a corporation duly organized, validly
existing, and in good standing under the laws of Nevada, has all necessary
corporate powers to own properties and carry on a business, and is duly
qualified to do business and is in good standing in Nevada.All actions taken by
the Incorporators, directors and SHAREHOLDER of UNIVATIVE CONCEPTS have been
valid and in accordance with the laws of Nevada.
ii. SHAREHOLDER and Issued Stock. Exhibit A annexed hereto sets forth the names
and share holdings of 100% of UNIVATIVE CONCEPTS's shareholders.
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4. INVESTMENT INTENT. SHAREHOLDER agrees that the shares being issued pursuant
to this Agreement may be sold, pledged, assigned, hypothecate or otherwise
transferred, with or without consideration (a Transfer), only pursuant to an
effective registration statement under the Act,or pursuant to an exemption from
registration under the Act, the availability of which is to be established to
the satisfaction of ISSUER. SHAREHOLDER agrees, prior to any Transfer, to give
written notice to ISSUER expressing his desire to effect the transfer and
describing the proposed transfer.
5. CLOSING. The closing of this transaction shall take place at a mutually
agreeable place and time.
6. DOCUMENTS TO BE DELIVERED AT CLOSING.
i. By the ISSUER
(1) Board of Directors Minutes authorizing the issuance of a certificate or
certificates for 1,000,000 Shares, registered in the name of the SHAREHOLDER
based upon their holdings in UNIVATIVE CONCEPTS as agreed to on Exhibit A.
(2) A Board of Directors resolution appointing such person as SHAREHOLDER
designates as a director(s) of UNIVATIVE CONCEPTS.
(3) Audited financial statements of the ISSUER to be filed with the SEC within
sixty (60) days, which shall include a current balance sheet and statements of
operations, stockholders equity and cash flows for the twelve month period then
ended.
(4) All of the business and corporate records of ISSUER, including but not
limited to correspondence files, bank statements, checkbooks, savings account
books, minutes of shareholder and directors meetings, financial statements,
shareholder listings, stock transfer records, agreements and contracts.
(5) Such other minutes of ISSUERs shareholders or directors as may reasonably
be required by SHAREHOLDER.
ii. By SHAREHOLDER AND UNIVATIVE CONCEPTS
(1) Delivery to the ISSUER, or to its Transfer Agent, the certificates
representing 100% of the issued and outstanding stock of UNIVATIVE CONCEPTS.
(2) Consents signed by all the SHAREHOLDERS of UNIVATIVE CONCEPTS consenting to
the terms of this Agreement.
7. REMEDIES. i. Arbitration.Any controversy or claim arising out of,or relating
to, this Agreement, or the making, performance, or interpretation thereof,shall
be settled by arbitration in Washoe County, Nevada in accordance with the Rules
of the American Arbitration Association then existing, and judgment on the
arbitration award may be entered in any court having jurisdiction over the
subject matter of the controversy.
8. MISCELLANEOUS.
i. Captions and Headings. The Article and paragraph headings throughout this
Agreement are for convenience and reference only, and shall in no way be deemed
to define, limit, or add to the meaning of any provision of this Agreement.
ii. No oral change. This Agreement and any provision hereof, may not be waived,
changed, modified, or discharged orally, but only by an agreement in writing
signed by the party against whom enforcement of any waiver,change,modification,
or discharge is sought.
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iii. Non Waiver. Except as otherwise provided herein,no waiver of any covenant,
condition, or provision of this Agreement shall be deemed to have been made
unless expressly in writing and signed by the party against whom such waiver is
charged; and (I) the failure of any party to insist in any one or more cases
upon the performance of any of the provisions, covenants, or conditions of this
Agreement or to exercise any option herein contained shall not be construed as
a waiver or relinquishment for the future of any such provisions, covenants, or
conditions, (ii) the acceptance of performance of anything required by this
Agreement to be performed with knowledge of the breachor failure of a covenant,
condition, or provision hereof shall not be deemed a waiver of such breach or
failure, and (iii) no waiver by any party of one breach by another party shall
be construed as a waiver with respect to any other or subsequent breach.
iv. Time of Essence. Time is of the essence of this Agreement and of each and
every provision hereof.
v. Entire Agreement. This Agreement contains the entire Agreement and
understanding between the parties hereto, and supersedes all prior agreements
and understandings.
vi. Counterparts. This Agreement may be executed simultaneously in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
vii. Notices. All notices, requests, demands, and other communications under
this Agreement shall be in writing and shall be deemed to have been duly 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 to the party to whom
notice is to be given, by first class mail, registered or certified, postage
prepaid, and properly addressed, and by fax, as follows:
ISSUER: BW Acquisition, Inc
0000 Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000
ATTN: Xxxxx Xxxxxx
UNIVATIVE CONCEPTS, INC.:
0000 X. Xxxxx Xxxx
Xxx Xxxxx, Xxxxxx 00000
ATTN: Xxxx Xxxxxxxxxx
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IN WITNESS WHEREOF, the undersigned has executed this Agreement this 9th day of
September 2004.
BW ACQUISITION, INC.,
A Nevada Corporation
-------------------------
(Registrant)
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Xxxxx X. Xxxxxx, President and Director
Univative Concepts, Inc.
A Nevada Corporation
-------------------------
By: /s/ Xxxxx Xxxxxxxxxx
------------------------------------------
Xxxxx Xxxxxxxxxx, President, Secretary, Treasurer
and Director
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