SEPARATION, TRANSFER AND DISTRIBUTION AGREEMENT
This Separation, Transfer and Distribution Agreement (this "Agreement") is
made and entered into effective as of June 11, 2004 ("Effective Date") among
BioFarm, Inc., a Nevada corporation ("BIOF"), Ocwen Corp., a Nevada corporation
("Ocwen") and Xxxxxxx XxXxxxxx, Xxxxx X. Xxxxx and Xxxxx Esrine (collectively,
the "Trustees") with reference to the material facts set forth in the Recitals
below.
RECITALS
A. The Boards of Directors of each of BIOF and Ocwen have determined that
it is appropriate and desirable for BIOF to contribute and transfer to Ocwen,
and for Ocwen to receive and assume, directly or indirectly, substantially all
of the assets and liabilities of BIOF (the "Separation");
B. BIOF has previously caused Ocwen to be incorporated and BIOF currently
owns all of the issued and outstanding capital stock of Ocwen;
C. The Board of Directors of BIOF has determined that it is appropriate
and desirable on the terms and conditions contemplated hereby to transfer to the
Trustees all of the shares of Ocwen Common Stock (the "Ocwen Shares") held by
BIOF (the "Transfer") to hold for the benefit of the holders of BIOF Common
Stock pursuant to the Trust Agreement attached hereto as EXHIBIT A (the "Trust
Agreement");
D. The Board of Directors of BIOF intends that the Ocwen Shares shall be
distributed by the Trustees to the stockholders of BIOF as a dividend;
E. The Trustees have agreed to hold the Ocwen Shares pursuant to the terms
of the Trust Agreement and distribute the Ocwen Shares to the shareholders of
BIOF (the "Distribution") or otherwise dispose of the same.
F. BIOF and Ocwen intend that the Separation, Transfer and Distribution
will qualify as a tax-free reorganization under Sections 368(a)(1)(D) and 355 of
the Internal Revenue Code of 1986, as amended (the "Code"), and that this
Agreement is intended to be, and is hereby adopted as, a plan of reorganization
under Section 368 of the Code; and
G. The parties intend in this Agreement, including the exhibits hereto, to
set forth the principal arrangements between them regarding the Separation.
NOW, THEREFORE, for and in consideration of the foregoing, the premises
and the mutual covenants contained herein, and for other good and valuable
consideration, the receipt, adequacy and legal sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
ARTICLE I.
SEPARATION
1.1. Separation Date. The effective time and date of each transfer of
property, assumption of liability, license, undertaking, or agreement in
connection with the Separation shall be June 11, 2004 or such other date as may
be fixed by the Board of Directors of BIOF (the "Separation Date").
1.2. Closing of Transactions. The closing of the Separation shall occur by
the lodging of each of the executed instruments of transfer, assumptions of
liability, undertakings, agreements, instruments or other documents described in
Article II hereof at the offices of BIOF. Provided that all such documents are
delivered on or before the Separation Date, the Separation and the related
transactions shall deemed to have occurred on the Separation Date.
ARTICLE II.
DOCUMENTS AND ITEMS TO BE DELIVERED ON OR BEFORE
THE SEPARATION DATE
2.1 Documents to be Delivered by BIOF. On or before the Separation Date,
BIOF will deliver to Ocwen all of the following items and agreements:
(a) A duly executed General Assignment and Assumption Agreement (the
"Assignment Agreement") substantially in the form attached hereto as EXHIBIT B;
(b) Stock certificates representing all of the outstanding shares of
Underwater Technics, Inc., and any other subsidiary of BIOF (whether or not
active) and all shares of Artwork and Beyond, Inc. owned by BIOF duly endorsed
to transfer the shares represented by such certificate(s) to Ocwen;
(c) $149,000 principal amount of subscription receivables (the
proceeds of which shall be used to pay the liabilities assumed by Ocwen); and,
(c) Such other agreements, documents or instruments as the parties
may agree are necessary or desirable in order to achieve the purposes hereof.
2.2 Documents To Be Delivered By Ocwen. As of the Separation Date, Ocwen
will deliver to BIOF all of the following:
(a) A duly executed Assignment Agreement; and,
(b) Such other agreements, documents or instruments as the parties
may agree are necessary or desirable in order to achieve the purposes hereof.
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ARTICLE III.
THE TRANSFER AND DISTRIBUTION
3.1 The Transfer. As soon as practicable after the Separation Date and
subject to Section 3.2 hereof, the parties shall effect the Transfer by taking
the following actions:
(a) BIOF, Ocwen and each of the Trustees will deliver to each other
duly executed Trust Agreements; and,
(b) BIOF will deliver to the Trustees a stock certificate or
certificate(s) representing all of the outstanding shares of capital stock of
Ocwen owned by BIOF duly endorsed to the Trustees to hold pursuant to the terms
of the Trust Agreement.
3.2 Conditions to Transfer. The obligations of the parties to consummate
the Transfer shall be conditioned on the satisfaction of the following
conditions:
(a) Government Approvals. Any governmental approvals and consents
necessary to consummate the Transfer shall have been obtained and be in full
force and effect;
(b) No Legal Restraints. No order, injunction or decree issued by
any court or agency of competent jurisdiction or other legal restraint or
prohibition preventing the consummation of the Transfer or any of the other
transactions contemplated by this Agreement shall be in effect;
(c) Compliance with Laws. The Transfer shall not violate any
applicable law, regulation or statute, including, without limitation, the
securities laws of any jurisdiction;
(d) Separation. The Separation shall have become effective as
described in Articles I and II hereof;
(e) Other Actions. Such other actions as the parties hereto may,
based upon the advice of counsel, reasonably request to be taken prior to the
Transfer in order to assure the successful completion of the Transfer shall have
been taken; and,
(f) No Termination. This Agreement shall not have been terminated.
3.3 Actions in Connection with the Distribution. Consistent with the
provisions of the 1933 Act, BIOF and Ocwen will take all necessary and
appropriate actions to prepare for the Distribution including, without
limitation:
(a) BIOF shall declare a dividend with respect to its issued and
outstanding shares of Common Stock entitling the holders of record of such
shares to receive a pro-rata distribution (based on their ownership of BIOF's
outstanding Common Stock) of the Ocwen Shares held by the Trustees subject to
the terms of the Trust Agreement;
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(b) BIOF shall ensure that such declaration shall be made in
accordance with all applicable corporate and securities laws, and shall make all
required or appropriate filings with and notifications to the United States
Securities and Exchange Commission and any exchange or bulletin board on which
shares of BIOF's Common Stock is traded; and,
(c) BIOF and Ocwen shall take all reasonable steps necessary and
appropriate to cause the conditions set forth in Section 3.2 to be satisfied.
ARTICLE IV.
COVENANTS AND OTHER MATTERS
4.1 Other Agreements. In addition to the specific agreements, documents
and instruments that are Exhibits to this Agreement, BIOF and Ocwen agree to
execute or cause to be executed by the appropriate parties and deliver, as
appropriate, such other agreements, instruments and other documents as may be
necessary or desirable in order to effect the purposes of this Agreement and the
agreements included as exhibits hereto.
4.2 Further Instruments.
(a) At the request of Ocwen and without further consideration, BIOF
will execute and deliver, to Ocwen such other instruments of transfer,
conveyance, assignment, substitution and confirmation and take such action as
Ocwen may reasonably deem necessary or desirable in order to more effectively
transfer, convey and assign to Ocwen and to confirm Ocwen's title to all of the
assets, rights and other things of value contemplated to be transferred to Ocwen
pursuant to this Agreement and the agreements attached as exhibits hereto, to
put Ocwen in actual possession and operating control thereof, and to permit
Ocwen to exercise all rights with respect thereto (including, without
limitation, rights under contracts and other arrangements as to which the
consent of any third party to the transfer thereof shall not have previously
been obtained).
(b) At the request of BIOF and without further consideration, Ocwen
will execute and deliver, to BIOF all instruments, assumptions, novations,
undertakings, substitutions or other documents and take such other action as
BIOF may reasonably deem necessary or desirable in order to have Ocwen fully and
unconditionally assume and discharge the liabilities contemplated to be assumed
by Ocwen under this Agreement or the exhibits hereto, and to relieve BIOF and
its affiliates, directors, officers, agents, employees and representatives of
any liability or obligation with respect thereto and evidence the same to third
parties.
(c) Each party, at the request of another party hereto, shall
execute and deliver such other instruments and do and perform such other acts
and things as may be necessary or desirable for effecting completely the
consummation of the transactions contemplated hereby.
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(d) Neither BIOF nor Ocwen shall be obligated, in connection with
their respective obligations, to deliver further documents or, to expend money
other than reasonable out-of-pocket expenses, attorneys' fees and recording or
similar fees.
4.3 Agreement for Exchange of Information. Each of BIOF and Ocwen agrees
to provide, or cause to be provided, to each other, at any time before or after
the Separation Date, as soon as reasonably practicable after written request
therefor, any information in the possession or under the control of such party
that the requesting party reasonably needs (i) to comply with reporting,
disclosure, filing or other requirements imposed on the requesting party
(including under applicable securities laws) by a governmental authority having
jurisdiction over the requesting party, (ii) for use in any other judicial,
regulatory, administrative or other proceeding or in order to satisfy audit,
accounting, claims, regulatory, litigation or other similar requirements, (iii)
to comply with its obligations under this Agreement or any agreement attached as
an exhibit hereto or (iv) in connection with the ongoing businesses of BIOF or
Ocwen, as the case may be; provided, however, that in the event that any party
determines that any such provision of information could be commercially
detrimental, violate any law or agreement, or waive any attorney-client
privilege, the parties shall take all reasonable measures to permit the
compliance with such obligations in a manner that avoids any such harm or
consequence.
4.4 Production Of Witnesses; Records; Cooperation. After the Separation
Date, except in the case of a legal or other proceeding by one party against
another party, each party hereto shall use its reasonable commercial efforts to
make available to each other party, upon written request, any books, records or
other documents within its control or which it otherwise has the ability to make
available, to the extent that such documents may reasonably be required in
connection with any legal, administrative or other proceeding in which the
requesting party may from time to time be involved, regardless of whether such
legal, administrative or other proceeding is a matter with respect to which
indemnification may be sought hereunder. The requesting party shall bear all
costs and expenses in connection therewith.
4.5 Payment of Express. All costs and expenses of the parties hereto in
connection with the Separation, Transfer and Distribution shall be paid by
Ocwen.
4.6 Dispute Resolution. Resolution of any and all disputes, claims and
causes of action of any nature whatsoever (collectively, "Disputes"), arising
from or in connection with this Agreement, shall be exclusively governed by and
settled in accordance with the provisions of this Section 4.6.
(a) Negotiation. The parties shall make a good faith attempt to
resolve any Dispute arising out of or relating to this Agreement through
informal negotiation between senior representatives from each of BIOF and Ocwen.
During the course of negotiations under this Section 4.6(a), all reasonable
requests made by one party to the other for information, including requests for
copies of relevant documents, will be honored. The specific format for such
negotiations will be left to the discretion of the designated representatives
but may include the preparation of agreed upon statements of fact or written
statements of position furnished to the other party. In the event that any
Dispute arising out of or related to this Agreement is not settled by the
parties within thirty (30) days after the first meeting of the negotiating
representatives, either party may commence litigation with respect to the
Dispute;
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(b) Proceedings. Any Dispute regarding the following is not required
to be negotiated prior to seeking relief from a court of competent jurisdiction:
breach of any obligation of confidentiality; infringement, misappropriation, or
misuse of any intellectual property right; or any other claim where interim
relief from the court is sought to prevent serious and irreparable injury to a
party. However, the parties shall make a good faith effort to negotiate such
Dispute, according to Section 4.6(a), while such court action is pending; and,
(c) Continuity Of Service and Performance. Unless otherwise agreed
in writing, the parties will continue to provide services and honor all other
commitments under this Agreement and any agreements attached as exhibits hereto
during the course of Dispute resolution pursuant to the provisions of this
Section 4.6 with respect to all matters not subject to such Dispute, controversy
or claim.
4.7 BIOF Representations and Warranties. BIOF hereby represents and
warrants to each of the other parties as follows:
(a) Organization, Good Standing and Qualification. BIOF is a
corporation duly organized, validly existing and in good standing under the laws
of the state of Nevada and has all requisite corporate power and authority to
carry on its business as currently conducted. BIOF, is duly qualified to
transact business and is in good standing in each jurisdiction in which the
failure to so qualify would have a material adverse effect on its business;
(b) Corporate Power. BIOF has all requisite legal and corporate
power to (i) execute and deliver this Agreement and the agreements attached as
exhibits hereto; and (ii) perform its obligations hereunder and thereunder; and
(c) Enforceability. This Agreement and the other agreements to which
it is a party are legal, valid and binding obligations, enforceable against it
in accordance with their terms subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally and general equity principles;
(d) No Other Representations or Warranties. BIOF does not, in this
Agreement or any other agreement, instrument or document contemplated by this
Agreement, make any representation as to, warranty of, or covenant with respect
to:
(i) the value of any asset or thing of value to be transferred
to Ocwen;
(ii) the freedom from encumbrance of any asset or thing of
value to be transferred to Ocwen;
(iii) the absence of defenses or freedom from counterclaims
with respect to any claim to be transferred to Ocwen; or
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(iv) the legal sufficiency of any assignment, document or
instrument delivered hereunder to convey title to any asset or thing of value
upon its execution, delivery and filing.
4.8 Ocwen Representations and Warranties. Ocwen hereby represents and
warrants to each of the other parties as follows:
(a) Organization, Good Standing and Qualification. Ocwen is a
corporation duly organized, validly existing and in good standing under the laws
of the state of Nevada and has all requisite corporate power and authority to
carry on its business as currently conducted. Ocwen, is duly qualified to
transact business and in good standing in each jurisdiction in which the failure
to so qualify would have a material adverse effect on its business;
(b) Corporate Power. Ocwen has all requisite legal and corporate
power to (i) execute and deliver this Agreement and the agreements attached as
exhibits hereto; and (ii) perform its obligations hereunder and thereunder;
(c) Enforceability. This Agreement and the other agreements to which
it is a party are legal, valid and binding obligations, enforceable against it
in accordance with their terms subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally and general equity principles; and
(d) Performance of Obligations. Ocwen will perform all obligations,
duties and covenants, and discharge all liabilities assumed by Ocwen as part of
the Assumed Liabilities (as defined in the Assignment Agreement) as such
obligations, duties, covenants, and liabilities become due and in accordance
with their respective terms.
4.9 Trustee Representations and Warranties. Each of the Trustees hereby
represents and warrants to the other parties that (a) it has the requisite power
and authority to execute, deliver and perform this Agreement, (b) it has duly
and validly executed and delivered this Agreement, and (c) this Agreement and
any other agreement to which it is a party in conjunction with the Separation
and the Transfer are legal, valid and binding obligations, enforceable against
it in accordance with its terms subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally and general equity principles.
4.10 Risk Associated with Transferred Assets. All assets to be transferred
to Ocwen shall be transferred "AS IS, WHERE IS" and Ocwen shall bear the
economic and legal risk that any conveyance shall prove to be insufficient to
vest in Ocwen good and marketable title, free and clear of any lien, claim,
equity or other encumbrance.
ARTICLE V
MISCELLANEOUS
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5.1 Entire Agreement. This Agreement and the Assignment Agreement and the
Trust Agreement attached hereto constitute the entirety of such agreements
between the parties with respect to the subject matter hereof and thereof and
shall supersede all prior written and oral and all contemporaneous oral
agreements and understandings with respect to the subject matter hereof;
provided, however, that the indemnification provisions contained in that certain
Indemnification Agreement between Ocwen, the Trustees and the shareholders of
Friendlway, Inc. are not affected by the foregoing.
5.2 Governing Law. This Agreement shall be construed in accordance with
and all Disputes hereunder shall be governed by the laws of the State of Nevada,
excluding its conflict of law rules. A Nevada court of competent jurisdiction
shall have jurisdiction and venue over all Disputes between the parties that are
permitted to be brought in a court of law pursuant to Section 4.6 above.
5.3 Notices. Any notice, demand, offer, request or other communication
required or permitted to be given by either party pursuant to the terms of this
Agreement shall be in writing and shall be deemed effectively given the earlier
of (i) when received, (ii) when delivered personally, (iii) one (1) Business Day
after being delivered by facsimile (with receipt of appropriate confirmation),
(iv) one (1) Business Day after being deposited with a nationally recognized
overnight courier service or (v) four (4) days after being deposited in the U.S.
mail, First Class with postage prepaid, and addressed to the attention of:
If to BioFarm, Inc.:
BIOF, Inc.: 0000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
If to Ocwen, Inc.: 000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
If to a Trustee: Xxxxx X. Xxxxx
000 Xx. Xxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Xxxxx Esrine
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxx X. XxXxxxxx
000 Xxxx Xxxx
Xxxxx, XX 00000-0000
5.4 Counterparts. This Agreement, including the Schedules and Exhibits
hereto and the other documents referred to herein, may be executed via facsimile
or otherwise in counterparts, each of which shall be deemed to be an original
but all of which shall constitute one and the same agreement.
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5.5 Binding Effect, Assignment. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective legal
representatives and successors, and nothing in this Agreement, express or
implied, is intended to confer upon any other Person any rights or remedies of
any nature whatsoever under or by reason of this Agreement. Except as herein
specifically provided to the contrary, neither party may assign this Agreement
or any rights or obligations hereunder, without the prior written consent of the
other party, and any such assignment shall be void; provided, however, either
party (or its permitted successive assignees or transferees hereunder) may
assign or transfer this Agreement as a whole without consent to an entity that
succeeds to all or substantially all of the business or assets of such party to
which this Agreement relates.
5.6 Severability. The parties hereto have negotiated and prepared the
terms of this Agreement in good faith with the intent that each and every one of
the terms, covenants and conditions herein be binding upon and inure to the
benefit of the respective parties. Accordingly, if any one or more of the terms,
provisions, promises, covenants or conditions of this Agreement or the
application thereof to any person or circumstance shall be adjudged to any
extent invalid, unenforceable, void or voidable for any reason whatsoever by a
court of competent jurisdiction, such provision shall be as narrowly construed
as possible, and each and all of the remaining terms, provisions, promises,
covenants and conditions of this Agreement or their application to other persons
or circumstances shall not be affected thereby and shall be valid and
enforceable to the fullest extent permitted by law. To the extent this Agreement
is in violation of applicable law, then the parties agree to negotiate in good
faith to amend the Agreement, to the extent possible consistent with its
purposes, to conform to law.
t 6 0 5.7 Waiver of Breach. The waiver by either party hereto of a breach
or violation of any provision of this Agreement shall not operate as, or be
construed to constitute, a waiver of any subsequent breach of the same or
another provision hereof.
5.8 Amendment and Execution. This Agreement and amendments hereto shall be
in writing and executed in multiple copies via facsimile or otherwise on behalf
of BIOF and Ocwen by their respective duly authorized officers and
representatives. Each multiple copy shall be deemed an original, but all
multiple copies together shall constitute one and the same instrument.
5.9 Descriptive Headings. The headings contained in this Agreement, in any
Exhibit or Schedule hereto are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement. Any capitalized term
used in any Schedule or Exhibit but not otherwise defined therein, shall have
the meaning assigned to such term in this Agreement. When a reference is made in
this Agreement to an Article or a Section, Exhibit or Schedule, such reference
shall be to an Article or Section of, or an Exhibit or Schedule to, this
Agreement unless otherwise indicated.
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5.10 Gender and Number. Whenever the context of this Agreement requires,
the gender of all words herein shall include the masculine, feminine and neuter,
and the number of all words herein shall include the singular and plural.
5.11 Additional Assurances. Except as may be specifically provided herein
to the contrary, the provisions of this Agreement shall be self-operative and
shall not require further agreement by the parties; provided, however, at the
request of either party, the other party shall execute such additional
instruments and take such additional acts as are reasonable, and as the
requesting party may reasonably deem necessary, to effectuate this Agreement.
5.12 Force Majeure. Neither party shall be liable or deemed to be in
default for any delay or failure in performance under this Agreement or other
interruption of service deemed to result, directly or indirectly, from acts of
God, civil or military authority, acts of public enemy, war, accidents,
explosions, earthquakes, floods, failure of transportation, strikes or other
work interruptions by either party's employees, or any other similar cause
beyond the reasonable control of either party unless such delay or failure in
performance is expressly addressed elsewhere in this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREFOF, the parties have signed this Separation and Transfer
Agreement effective as of the date first set forth above.
BIOFARM, INC.
By: _________________________________
Xxxxx X. Xxxxx, President
OCWEN CORP.
By: _________________________________
Xxxxx X. Xxxxx, President
TRUSTEES:
---------------------------------
Xxxxxxx X. XxXxxxxx
---------------------------------
Xxxxx X. Xxxxx
---------------------------------
Xxxxx Esrine
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EXHIBIT A
TRUST AGREEMENT
[SEE ATTACHED)
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EXHIBIT B
ASSIGNMENT AGREEMENT
[SEE ATTACHED]
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