SHARE PURCHASE AGREEMENT
This Share Purchase Agreement ("Agreement"), dated as of April 14,
2004, between Baymark Technologies, Inc. ("BMT") a Utah Corporation, Xxx Xxxxxxx
(Xxxxxxx) and San Remo Investments LLC (the "Buyer"), a Colorado Limited
Liability Company.
W I T N E S S E T H:
A. WHEREAS, BMT is a corporation duly organized under the laws of the State
of Utah and Xxx Xxxxxxx is the principal shareholder and creditor.
B. WHEREAS, Buyer wishes to purchase an aggregate of 114,000,000 shares of
common stock, and 816,667 shares of Class A Preferred Stock (collectively, the
"Purchase Shares"), constituting 85% of the outstanding after all of the
conditions under this contract have been performed and BMT shall desire to sell
the Purchase Shares to Buyer pursuant to this agreement.
C. WHEREAS, prior to the transaction Buyer is not an affiliate of BMT.
NOW, THEREFORE, it is agreed among the parties as follows:
ARTICLE 1
The Consideration
1.1 Subject to the conditions set forth herein, BMT shall sell to Buyer and
Buyer shall purchase an aggregate of 114,000,000 shares of common stock of BMT
and 816,667 shares of Class A preferred Stock from Seller. The purchase price
for the common shares to be paid by Buyer to BMT is $25,000 (the
"Consideration") and the consideration for the Preferred Shares is $100,000 for
which $125,000 is herewith paid to BMT in escrow with Xxxxxxx X. Xxxxxxx, to be
credited as full consideration for the Share Purchase if all of the terms and
conditions of this Agreement are met. The purchase price shall be used and
disbursed as hereinafter specified on Schedule 1.1 under the terms and
conditions of this Agreement.
ARTICLE II
Closing and Issuance of Shares
2.1 The Purchase Shares shall be issued by BMT in escrow by M.A. Xxxxxxx,
Attorney at Law for delivery to Buyer upon deposit of the consideration of
$125,000 in escrow which escrow is subject to satisfaction of a) the conditions
precedent in Article VI, and b) procedures in Article V, and all other terms and
conditions of this Agreement.
2.2 Closing hereunder shall be completed by release from escrow of the
cash consideration and share certificates on or before June 30,, 2004 at 5:00
p.m. PST ("Closing Date") subject to satisfaction of the terms and conditions
set forth herein. Consideration may be delivered by Federal Express or wire
transfers, and any closing documents may be delivered by facsimile, Federal
Express or other appropriate means.
2.3 Common shares constituting 10% of the outstanding stock of BMT (14
million shares of common stock) after all conditions of this contract are
satisfied, shall be issued in conversion of $10,000 in debt to stock which stock
shares shall be issued to Xxxxxxx and Xxxxxxx'x designees at closing and Xxxxxxx
shall release all remaining debt owed by BMT to Xxxxxxx after paydown of debt
pursuant to Schedule 1.1 as attached.
ARTICLES III
Representations, Warranties and Covenants of BMT and Xxxxxxx
BMT and Xxxxxxx each hereby, represents, warrants and covenants to
Buyer as follows:
3.1 BMT is a corporation duly organized, validly existing and not in
good standing under the laws of the State of Utah, (it needs to be reinstated
after billing of tax returns in Utah and payment of fees, which shall be the
duty of Xxxxxxx) and has the corporate power and authority carry on its
business. The Articles of Incorporation and Amendments and Bylaws of BMT, which
will be delivered to Buyer at closing, are complete and accurate, and the minute
books of BMT, copies of which have also been delivered to Buyer, contain a
record, which is complete and accurate in all material respects, of all
meetings, and all corporate actions of the shareholders and Board of Directors
of BMT.
3.2 The authorized capital stock of BMT consists of 150,000,000 shares
of common stock and 100,000,000 Preferred shares as of date hereof. There are
6,606,951 - shares of Common Stock of BMT issued and outstanding and 183,333
Class A Preferred shares outstanding as of date hereof and which with the
Preferred Stock issued under this agreement will be converted to common stock
after closing on a one for six common shares basis. All such shares of capital
stock of BMT are validly issued, fully paid, non-assessable and free of
preemptive rights. BMT has no outstanding warrants, or other rights to purchase,
or subscribe to, or other securities convertible into or exchangeable for any
shares of capital stock of BMT, or contracts or arrangements of any kind
relating to the issuance, sale or transfer of any capital stock or other equity
securities of BMT. All outstanding options will be released in writing and
cancelled at the time of the closing of this transaction. A list of the options
outstanding is attached hereto as Schedule 3.2. There must be a Written
Agreement for Preferred Shares to convert to common on a negotiated basis pre
reverse split before any audits are commenced. All of the outstanding shares of
capital stock of BMT have been offered, issued, sold and delivered in compliance
with applicable federal and state securities laws and none of such securities
were, at the time of issuance, subject to preemptive rights. None of such issued
and outstanding shares is the subject of any voting trust agreement relating to
the voting thereof or restricting in any way the sale or transfer thereof.
3.3 This Agreement has been duly authorized, validly executed and
delivered on behalf of BMT and is a valid and binding agreement and obligation
of BMT enforceable against the parties in accordance with its terms, subject to
limitations on enforcement by general principles of equity and by bankruptcy or
other laws affecting the enforcement of creditors' rights generally, and BMT has
complete and unrestricted power to enter into and to consummate the transactions
contemplated by this Agreement.
3.4 Neither the making of nor the compliance with the terms and
provisions of this Agreement and consummation of the transactions contemplated
herein by BMT will conflict with or result in a breach or violation of the
Articles of Incorporation or Bylaws of BMT, or of any material provisions of any
indenture, mortgage, deed of trust or other material agreement or instrument to
which BMT is a party, or of any material provision of any law, statute, rule,
regulation, or any existing applicable decree, judgment or order by any court,
federal or state regulatory body, administrative agency, or other governmental
body having jurisdiction over BMT, or any of its material properties or assets,
or will result in the creation or imposition of any material lien, charge or
encumbrance upon any material property or assets of BMT pursuant to the terms of
any agreement or instrument to which BMT is a party or by which BMT may be bound
or to which any of BMT property is subject and no event has occurred with which
lapse of time or action by a third party could result in a material breach or
violation of or default by BMT.
3.5 There is no claim, legal action, arbitration, governmental
investigation or other legal or administrative proceeding, nor any order, decree
or judgment in progress, pending or in effect, or to the best knowledge of BMT
threatened against or relating to BMT or affecting any of its assets,
properties, business or capital stock. There is no continuing order, injunction
or decree of any court, arbitrator or governmental authority to which BMT is a
party or by which BMT or its assets, properties, business or capital stock are
bound.
3.6 BMT has accurately prepared and filed all federal, state and other
tax returns required by law, domestic and foreign, to be filed by it through
it's fiscal 2000 year and has paid or made provisions for the payment of all
taxes shown to be due and all additional assessments, and adequate provisions
have been and are reflected in the financial statements of BMT for all current
taxes and other charges to which BMT is subject and which are not currently due
and payable. None of the Federal income tax returns of BMT have been audited by
the Internal Revenue Service or other foreign governmental tax agency. BMT has
no knowledge of any additional assessments, adjustments or contingent tax
liability (whether federal or state) pending or threatened against BMT for any
period, nor of any basis for any such assessment, adjustment or contingency.
3.7 BMT has delivered to Buyer unaudited financial statements for the
period ended April 30, 2001. All such statements, herein sometimes called "BMT
Financial Statements" are complete and correct in all material respects and,
together with the notes to these financial statements, present fairly the
financial position and results of operations of BMT for the periods indicated
within the knowledge of BMT and/or Xxxxxxx. All financial statements of BMT have
been prepared in accordance with generally accepted accounting principles.
3.8 As of the date hereof, BMT, represents and warrants that all
outstanding indebtedness of BMT is as shown on the financial statements attached
hereto (the updated statements), which include debts shown and not shown in
April 30, 2001 financial statements (See Schedule 3.19 hereto). All accruals to
officers and directors (less $10,000 to be used to acquire 14,000,000 common
shares) totaling $304,903 in the aggregate shall be released and waived by each
officer or director or employee and Xxxxxxx'x wife. However, it is mutually
understood and agreed that all monies remaining after paying the company's
obligations as listed in Schedule 1.1 of this agreement shall then be paid to
Xxxxxxx as a partial repayment of the accruals to officers and directors with
the balance released and waived.
3.9 Since the dates of the updated BMT Financial Statements, there have
not been any material adverse changes in the business or condition, financial or
otherwise, of BMT within the knowledge of BMT and/or Xxxxxxx with the exception
that BMT vacated its offices, closed its bank accounts and ceased operations.
BMT does not have any liabilities, commitments or obligations, secured or
unsecured except as shown on updated financials (whether accrued, absolute,
contingent or otherwise).
3.10 BMT is not a party to any contract performable in the future except to
issue shares set forth in 3.8 hereof.
3.11 The representations and warranties of BMT and Xxxxxxx shall be true
and correct as of the date hereof. However, both BMT and Xxxxxxx state that
there are corporate debts and the agreement to pay off or satisfy those debts
pursuant to the escrow arrangement referred to in this agreement which could be
considered a contract to perform in the future.
3.12 BMT will have delivered to Buyer, all of its corporate books and
records for review.
3.13 BMT has no employee benefit plan in effect at this time.
3.14 No representation or warranty by BMT or the Sellers in this Agreement,
or any certificate delivered pursuant hereto contains any untrue statement of a
material fact or omits to state any material fact necessary to make such
representation or warranty not misleading.
3.15 Buyer has received copies of Form 10KSB as filed with the Securities
and Exchange Commission ("SEC") which included audits for the year ended July
31, 2000 and each of its other reports to shareholders filed with the SEC
through the period. BMT is a registered company under the Securities Exchange
Act of 1934, as amended but is not current in its filings.
3.16 Seller has not made to Buyer any general solicitation or general
advertising regarding the shares of Seller's common stock.
3.17 BMT has conducted no business whatsoever since December 31, 2002, has
incurred no liabilities except as shown on the financial statements and fees in
conjunction with this transaction, which fees incurred in conjunction with this
transaction shall be paid at closing
3.18 The Preferred shares must be converted to common.
3.19 Xxxxxxx and BMT have attached a complete list of all judgments,
leases, notes, advances due, contracts and accounts payable upon which any
balance remains due and outstanding as Schedule 3.19 hereto, and such is
complete and accurate within the knowledge of Xxxxxxx and BMT.
ARTICLE IV
Representations And Warranties Of Buyer
Buyer hereby represents and warrants and covenants to BMT and Xxxxxxx as
follows:
4.1 Buyer is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Colorado, and has
the corporate power and authority to own or lease its properties and to carry on
its business as it is now being conducted. The Certificate of LLC status and
Bylaws of Buyer, as amended, and the minute books of Buyer are complete and
accurate in all material respects.
4.2 This Agreement has been duly authorized, validly executed and
delivered on behalf of the Buyer and is a valid and binding agreement and
obligation of Buyer enforceable against the parties in accordance with its
terms, subject to limitations on enforcement by general principles of equity and
by bankruptcy or other laws affecting the enforcement of creditors' rights
generally, and Buyer has complete and unrestricted power to enter into and to
consummate the transactions contemplated by this Agreement.
4.3 Neither the making of nor the compliance with the terms and
provisions of this Agreement and consummation of the transactions contemplated
herein by Buyer will conflict with or result in a breach or violation of the
Certificate of LLC status or Bylaws of Buyer, or of any material provisions of
any indenture, mortgage, deed of trust or other material agreement or instrument
to which Buyer is a party, or of any material provision of any law, statute,
rule, regulation, or any existing applicable decree, judgment or order by any
court, federal or state regulatory body, administrative agency, or other
governmental body having jurisdiction over Buyer, or any of its material
properties or assets, or will result in the creation or imposition of any
material lien, charge or encumbrance upon any material property or assets of
Buyer pursuant to the terms of any agreement or instrument to which Buyer is a
party or by which Buyer may be bound or to which any of Buyer property is
subject and no event has occurred with which lapse of time or action by a third
party could result in a material breach or violation of or default by Buyer.
4.4 The Purchase Shares are being purchased for Buyer's own account,
for investment purposes only, and not for the account of any other person, and
not with a view to distribution, assignment or resale to others or to
fractionalization in whole or in part and that the offering and sale of the
Purchase Shares is intended to be exempt from registration under the Securities
Act of 1933 (the "Act") by virtue of one or more of the following provisions:
(i) Section 4(2) of the Act; (ii) the provisions of Regulation D promulgated
under the Act ("Regulation D"); and/or (iii) Section 4(6) of the Act. In
furtherance thereof, Buyer represents, warrants, and agrees as follows: (i) no
other person has or will have a direct or indirect beneficial interest in such
Purchase Shares and Buyer will not sell, hypothecate or otherwise transfer
Purchase Shares except in accordance with the Act and applicable state
securities laws or unless, in the opinion of counsel for BMT, an exemption from
the registration requirements of the Act and such laws is available; and (ii)
BMT is under no obligation to register the Purchase Shares on behalf of Buyer or
to assist Buyer in complying with any exemption from registration. Seller is not
required to make any filing or registration statement in Utah or Colorado with
regard to the shares being purchased hereby.
4.5 In evaluating the suitability of an investment in BMT, Buyer has
not relied upon any representations or other information (whether oral or
written) from BMT or any of its agents other than as set forth herein and no
oral or written representations have been made or oral or written information
furnished to Buyer or Buyer's advisors, if any, in connection with the offering
of the Purchase Shares which were in any way inconsistent with this Agreement.
4.6 BMT has made available to Buyer all documents and information that
Buyer has requested relating to an investment in BMT or its business and
financial condition. Buyer has made such investigation, including the
examination of documents, and made such inquiries, of BMT as Buyer deemed
necessary to inform Buyer of the financial condition and business prospects of
BMT.
4.7 Buyer agrees and acknowledges that an investment in the Purchase
Shares involves substantial risks, and Buyer has taken full cognizance of and
understands all of the risk factors related to such investment including, but
not limited to, the following risks:
4.7.1 BMT currently has no working capital, and there can be no
assurance that apart from any funds raised through this offering that
any working capital will be available to BMT in the future.
4.7.2 Since BMT is in essentially a "shell" corporation, its
operations are subject to all the risks inherent in the establishment
of a new business enterprise.
4.7.3 BMT will, after the sale of the Purchase Shares, have no
working capital and reserves and will require additional financing to
continue its operations and conduct any business. There can be no
assurance that such financing will be available or available on
attractive terms.
4.7.4 No assurance can be nor will be given that BMT will be
profitable or that investors will ever have returned to them all or
any portion of their initial investment.
4.7.5 There is no public market for the Purchase Shares and Buyer
may not be able to sell or in any other way liquidate its investment
in the Purchase Shares now or in the future. The Purchase Shares
should be considered illiquid.
4.8 Buyer has knowledge and experience in financial and business
matters, and is capable of evaluating the merits and risks of an investment in
the Purchase Shares of BMT and BMT's proposed activities.
4.9 Buyer has carefully considered and has, to the extent Buyer
believes such discussion was necessary, discussed with Buyer's professional
legal, tax and financial advisers the suitability of an investment in the
Purchase Shares for Buyer particular tax and financial situation and Buyer has
determined that the transaction set forth herein is a suitable investment for
Buyer.
4.10 All information which Buyer has provided to BMT concerning Buyer
and Buyer's financial position is correct and complete as of the date set forth
below, and if there should be any change in such information prior to Buyer
acceptance as a security holder of BMT, it will immediately provide such
information to BMT and will promptly send confirmation of such information to
BMT.
4.11 As this Agreement is executed and delivered on behalf of a limited
liability company, (i) Buyer has been duly authorized and is duly qualified (a)
to execute and deliver this Agreement and all other instruments executed and
delivered on behalf of such limited liability company in connection with the
purchase of the Purchase Shares, and (b) to purchase and hold Shares, and (ii)
the signature of Buyer is binding upon such limited liability company, and (iii)
such entity has not been formed for the specific purpose of acquiring Shares.
4.12 Buyer is capable of bearing the high degree of economic risk and
burdens of this venture including, but not limited to, the possibility of a
complete loss of Buyer's entire investment and the lack of a public market which
may make it impossible to readily liquidate the investment whenever desired.
4.13 Buyer warrants that the securities Buyer is acquiring in this
transaction and the issuance of these shares are exempt from registration and
filing requirements under the State of Colorado securities and corporate laws or
any other applicable laws and further that Buyer is qualified to make such
purchase and indemnifies BMT and Xxxxxxx from any action arising from warranties
made by Buyer pursuant to this clause.
4.14 By reason of business experience Buyer has knowledge and
experience in financial and business matters, and is capable of evaluating the
merits and risks of an investment in BMT. Buyer and its officers or directors
have the capacity to protect Buyer's own interest in connection with this
transaction.
4.15 The offer to sell Shares was directly communicated to Buyer by BMT
and at no time was Buyer presented with or solicited by any leaflet, public
promotional meeting, newspaper or magazine article, radio or television
advertisement or any other form of general advertising or general solicitation.
4.16 The conduct of any BMT business will require additional funds. BMT
makes no assurance that financing will be available or available on attractive
terms, or that such financing would not result in a substantial dilution of
shareholders' interests. The absence of such additional financing may have a
substantial negative impact on the ability of BMT to reach its objectives or to
continue business.
4.17 This offering involves immediate substantial dilution in the per
share net tangible book value of the Purchase Shares.
4.18 Many of BMT's operations are affected by federal, state and local
regulations, which could potentially adversely affect BMT's business objectives.
Attempted compliance with such regulations may affect BMT's operations and may
necessitate significant capital outlays.
4.19 Buyer understands that all documents, records and books pertaining
to this investment have been made available for inspection by Buyer attorney
and/or accountant and/or representative and Buyer, and that the books and
records of the issuer will be available upon reasonable notice, for inspection
by investors at reasonable hours at its principal place of business.
4.20 The foregoing representations and warranties are true and accurate
as of the date hereof, shall be true and accurate as of the date of the
acceptance hereof by BMT and shall survive thereafter. If such representations
and warranties shall not be true and accurate in any respect, Buyer will, prior
to such acceptance, give written notice of such fact to BMT specifying which
representations and warranties are not true and accurate and the reasons
therefore.
4.21 Buyer shall indemnify and hold harmless BMT and all of the
officers, employees, attorneys, accountants, representatives, directors or
control persons of each who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of or
arising from any actual or alleged misrepresentation or misstatement of facts or
omission to represent or state facts made by Buyer to BMT concerning Buyer or
Buyer's financial position in connection with the offering or sale of the
Purchase Shares which is not remedied by timely notice to BMT as provided above,
against losses, liabilities and expenses for which BMT, its respective officers,
employees, attorneys, accountants, representatives, directors or control persons
have not otherwise been reimbursed (including attorneys' fees, judgments, fines
and amounts paid in settlement) as actually and reasonably incurred by such
person or entity in connection with such action, suit or proceeding.
ARTICLE V
Procedure for Closing
5.1 At the Closing Date, the purchase and sale shall be consummated
after satisfaction of all conditions precedent set forth in Article VI, and the
conditions of Article X: 10.9, 10.10, 10.11, 10.12 and 10.13 by BMT 816,667 and
Preferred Class A stock certificates for the Purchase Shares being delivered,
duly issued, for 114,000,000 shares of common stock to Buyer and common shares
totaling 14,000,000 being issued to Xxxxxxx (or assigns), and the delivery of
the Consideration for share purchase from escrow, together with delivery of all
other items, agreements, warranties, and representations set forth in this
Agreement.
ARTICLE VI
Conditions Precedent to the
Consummation of the Purchase
The following are conditions precedent to the consummation of the
Agreement on or before the Closing Date:
6.1 BMT and Xxxxxxx shall have performed and complied with all of the
respective obligations hereunder which are to be complied with or performed on
or before the Closing Date.
6.2 No action, suit or proceeding shall have been instituted or shall
have been threatened before any court or other governmental body or by any
public authority to restrain, enjoin or prohibit the transactions contemplated
herein, or which might subject any of the parties hereto or their directors or
officers to any material liability, fine, forfeiture or penalty on the grounds
that the transactions contemplated hereby, the parties hereto or their directors
or officers, have violated any applicable law or regulation or have otherwise
acted improperly in connection with the transactions contemplated hereby, and
the parties hereto have been advised by counsel that, in the opinion of such
counsel, such action, suit or proceeding raises substantial questions of law or
fact which could reasonably be decided adversely to any party hereto or its
directors or officers.
6.3 The representations and warranties made by BMT and Xxxxxxx in this
Agreement shall be true as though such representations and warranties had been
made or given on and as of the Closing Date, except to the extent that such
representations and warranties may be untrue on and as of the Closing Date
because of changes caused by transactions suggested or approved in writing by
the Buyer.
ARTICLE VII
Indemnities
7.1 The respective representations and warranties of the parties hereto
shall survive this Agreement for two years and the covenants shall survive
hereafter.
7.2 The right to indemnification or payment of Damages (as defined in
section) or other remedy based on any representation, warranty, covenant or
obligation of a party hereunder shall not be waived by any investigation
conducted with respect to, or any knowledge acquired (or capable of being
acquired) at any time, whether before or after the execution and delivery of
this Agreement, with respect to the accuracy or inaccuracy of or compliance
with, any such representation, warranty, covenant or obligation.
7.3 The waiver of any condition to a party's obligation to consummate
the transactions contemplated hereunder, where such condition is based on the
accuracy of any representation or warranty, or on the performance of or
compliance with any covenant or obligation, will not affect the right to
indemnification, or payment of Damages, or other remedy based on such
representation, warranty, covenant or obligation.
7.4 Sellers and BMT, jointly and severally, shall indemnify and hold
harmless the Buyer (the "Buyer Indemnified Persons") for, and will pay to the
Buyer Indemnified Persons, the amount of, any loss, liability, claim, damage
(including, without limitation, incidental and consequential damages), cost,
expense (including, without limitation, interest, penalties, costs of
investigation and defense and the reasonable fees and expenses of attorneys and
other professional experts) or diminution of value, whether or not involving a
third-party claim (collectively, "Damages"), directly or indirectly arising
from, attributable to or in connection with:
(a) any representation or warranty made by Sellers or BMT in this agreement or
any closing deliveries, that is, or was at the time made, false or
inaccurate, or any breach of, or misrepresentation with respect to, any
such representation or warranty; and
(b) any breach by any of the Sellers or BMT of any covenant, agreement or
obligation of BMT or Sellers contained in this agreement.
(c) any claims or litigation relating to BMT now pending or threatened or which
may hereafter be brought against Buyer and/or BMT or Sellers based upon
events occurring prior to the date hereof and not attributable to the acts
of the Buyer.
(d) any and all actions, suits, proceedings, claims, demands, assessments,
judgments, costs, losses, liabilities and reasonable legal and other
expenses incident to any of the foregoing.
7.5 Sellers and BMT shall have no liability for indemnification with
respect to any representation or warranty, unless, on or before the second
anniversary of the date hereof, the Buyer notifies the Sellers of a claim
specifying the basis thereof in reasonable detail to the extent then known by
the Buyer. A claim with respect to any covenant, agreement or obligation
contained in this agreement, may be made at any time without any time
limitation.
7.6 Promptly after receipt by an indemnified party of written notice
(the "Notice of Claim") of the commencement of any action, suit or proceeding
against it, or written threat thereof, such indemnified party will, if a claim
is to be made against an indemnifying party under either of said sections, as
applicable, give notice to the indemnifying party of the commencement of such
action, suit or proceeding. The indemnified party shall furnish to the
indemnifying party in reasonable detail such information as the indemnified
party may have with respect to such indemnification claims (including copies of
any summons, complaint or other pleading which may have been served on it and
any written claim, demand, invoice, billing or other document evidencing or
assenting the same). Subject to the limitations set forth in this section, no
failure or delay by the indemnified party in the performance of the foregoing
shall reduce or otherwise affect the obligation of the indemnifying party to
indemnify and hold the indemnified party harmless except to the extent that such
failure or delay shall have materially and adversely affected the indemnifying
party's ability to defend against, settle or satisfy any action, suit or
proceeding the claim for which the indemnified party is entitled to
indemnification hereunder. The foregoing shall not apply to the extent
inconsistent with the provisions of section 4.8 relating to Proceedings.
7.7 If the claim or demand set forth in the Notice of Claim given by
the indemnified party is a claim or demand asserted by a third party, the
indemnifying party shall have 30 days after the Date of Notice of Claim to
notify the indemnified party in writing of its election to defend such third
party claim or demand on behalf of the indemnified party (the "Notice Period");
provided, however, that the indemnified party is authorized to file any motion,
answer or other pleading which it deems necessary or appropriate to protect its
interests during the Notice Period. If the indemnifying party elects to defend
such third party claim or demand, the indemnified party shall make available to
the indemnifying party and its agents and representatives all records and other
materials which are reasonably required in the defense of such third party claim
or demand and shall otherwise cooperate (at the sole cost and expense of the
indemnifying party) with, and assist (at the sole cost and expense of the
indemnifying party) the indemnifying party in the defense of, such third party
claim or demand, and so long as the indemnifying party is diligently defending
such third party claim in good faith, the indemnified party shall not pay,
settle or compromise such third party claim or demand. If the indemnifying party
elects to defend such third party claim or demand, the indemnified party shall
have the right to control the defense of such third party claim or demand, at
the indemnified party's own expense. If the indemnifying party does not elect to
defend such third party claim or demand or does not defend such third party
claim or demand in good faith, the indemnified party shall have the right, in
addition to any other right or remedy it may have hereunder at the indemnifying
party's expense, to defend such third party claim or demand.
7.8 The term "Date of Notice of Claim" shall mean the date the Notice of
Claim is effective pursuant to section 6.6 of this Agreement.
7.9 A claim for indemnification for any matter not involving a
third-party claim may be asserted by notice to the party from whom
indemnification is sought.
7.10 Any legal action or proceeding with respect to this Agreement or
any matters arising out of or in connection with this Agreement or the
transactions contemplated hereby or the documents executed and delivered in
connection herewith, and any action for enforcement of any judgment in respect
thereof may be brought in the courts of the State of Colorado or of the United
States of America for the District of Colorado, and, by execution and delivery
of this Agreement, the parties each hereby accepts for itself and in respect of
its property, generally and unconditionally, the jurisdiction of the aforesaid
courts and appellate courts thereof. The parties irrevocably consent to service
of process out of any of the aforementioned courts in any such action or
proceeding in accordance with the notice provisions set forth in Section 9.5.
The parties each hereby irrevocably waive any objection that it may now or
hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement or the
transactions contemplated hereby or the documents execute and delivered in
connection herewith brought in the courts referred to above and hereby further
irrevocably waive and agree, to the extent permitted by applicable law, not to
plead or claim in any such court that any such action or proceeding brought in
any such court has been brought in an inconvenient forum. Nothing herein shall
affect the right of any party hereto to serve process in any other manner
permitted by law.
ARTICLE VIII
Termination and Abandonment
8.1 Anything contained in this Agreement to the contrary
notwithstanding, the Agreement may be terminated and abandoned at any time prior
to or on the Closing Date:
(a) By mutual consent of parties;
(b) By either party, if any condition set forth in Article V or any
other Article relating to the other party has not been met or has
not been waived;
(c) By Buyer, if any suit, action, or other proceeding shall be
pending or threatened by the federal or a state government before
any court or governmental agency, in which it is sought to
restrain, prohibit, or otherwise affect the consummation of the
transactions contemplated hereby;
(d) By Buyer, if there is discovered any material error, misstatement
or omission in the representations and warranties of another
party; or
(e) By BMT, if the Closing does not occur, through no failure to act
by BMT, on closing date, or if Buyer fails to deliver the
consideration required herein.
(f) If all of the outstanding liabilities cannot be settled, and
audits to bring SEC filings current paid for within the budget
amount of $125,000.
(g) Buyer may cancel this agreement without penalty, and receive a
return of the $125,000 in escrow if the aggregate debt settlement
amounts plus the costs of audits to bring SEC filings current
exceed $125,000.
8.2 Any of the terms or conditions of this Agreement may be waived at
any time by the party which is entitled to the benefit thereof, by action taken
by its Board of Directors provided; however, that such action shall be taken
only if, in the judgment of the Board of Directors taking the action, such
waiver will not have a materially adverse effect on the benefits intended under
this Agreement to the party waiving such term or condition.
ARTICLE IX
Continuing Representations and
Warranties and Covenants
9.1 The respective representations, warranties, and covenants of the
parties hereto and agreements of the parties hereto shall survive after the
closing under this Agreement for a period of two years hereafter in accordance
with the terms thereof.
ARTICLE X
Miscellaneous
10.1 This Agreement embodies the entire agreement between the parties,
and there have been and are no agreements, representations or warranties among
the parties other than those set forth herein or those provided for herein,
except that a companion document, the Reorganization Agreement, has been
executed concurrently which contains numerous warranties and representations.
10.2 To facilitate the execution of this Agreement, any number of
counterparts hereof may be executed, and each such counterpart shall be deemed
to be an original instrument, but all such counterparts together shall
constitute but one instrument.
10.3 All parties to this Agreement agree that if it becomes necessary
or desirable to execute further instruments or to make such other assurances as
are deemed necessary, the party requested to do so will use its best efforts to
provide such executed instruments or do all things necessary or proper to carry
out the purpose of this Agreement.
10.4 This Agreement may not be amended except by written consent of
both parties.
10.5 Any notices, requests, or other communications required or
permitted hereunder shall be delivered personally or sent by overnight courier
service, prepaid, addressed as follows:
To BMT: Baymark Technologies, Inc.
X.X. Xxx 00000
Xxx Xxxxx, XX 00000
To Buyer: San Remo Investments LLC
or such other addresses as shall be furnished in writing by any party, and any
such notice or communication shall be deemed to have been given as of the date
received.
10.6 No press release or public statement will be issued relating to
the transactions contemplated by this Agreement without prior approval of the
Buyer and Sellers. However, BMT may issue at any time any press release or other
public statement it believes on the advice of its counsel it is obligated to
issue to avoid liability under the law relating to disclosures, but the party
issuing such press release or public statement shall make a reasonable effort to
give the other party prior notice of and opportunity to participate in such
release or statement.
10.7 This Agreement shall be governed by and construed in accordance
with and enforced under the laws of the state of Colorado applicable to all
agreements made hereunder. Venue and jurisdiction for any legal actions
hereunder shall be District Court in and for Jefferson County, Colorado.
a) Buyer shall obtain the legal services for preparation and
filing of all SEC filings necessary to bring the company current, and will pay
costs thereof (except audit costs covered under this agreement by funds held in
escrow) which fees and costs are to be reimbursed or paid upon any subsequent
change of control of the company.
b) BMT and Buyer agree that Buyer and BMT can and will cause
the effectuation, of a reverse split, of the common shares of BMT issued and
outstanding in a ratio of one for ____ shares following the Closing hereunder.
Fractional shares may be rounded up to nearest whole. NASD and CUSIP shall be
given 2 weeks advance notice of the effective date of the reverse split to avoid
confusion and the appropriate 8K shall be filed on Xxxxx. A new CUSIP shall be
obtained.
10.9 In the event of a breach or default of this Agreement or any of
the continuing covenants hereunder which results in a party or any effected
shareholder who is a beneficiary of a surviving or continuing covenant,
commencing legal action, the prevailing party in such legal action shall be
entitled to an award of all legal fees and costs of the action, against the
non-prevailing party.
10.10 Buyer shall designate at least three new directors to be
effective subject to compliance with Section 14f of the Securities & Exchange
Act of 1934, and Seller and Xxxxxxx agree to appoint such Directors by consent
minutes to be drawn by Buyers attorney. Xxxxxxx agrees to resign as director,
effective 10 days after mailing of the 14f Notice to Shareholders, but remains
President/CEO, at the discretion of the Board
10.11 In connection with this Agreement the parties have appointed the
escrow agent, Xxxxxxx X. Xxxxxxx which shall be authorized by this agreement to
do the following: The funds will be disbursed per written instructions to each
of the debtors and in the amount specified by Xxxxxxx with any net balance paid
to Xxxxxxx and that the escrowed stock not be released until the creditors have
been paid and releases issued.
1) Accept the deposit of $125,000 from buyers, and disburse it
in accordance with Sellers written instructions, upon
receipt of a copy of this agreement signed by Sellers and
BMT.
2) Accept the common stock certificates of BMT duly authorized
114,000,000 common shares and 816,667 Class A Preferred
shares in name of Buyer and, 14,000,000 shares in the name
of Xxx Xxxxxxx (or his designees)
3) Upon receipt of Settlement Agreements for all debts over
$5,000, audits and signed SEC filings to bring all reporting
current, to disburse the proceeds received from the escrow
in accordance with Sellers separate written instructions
4) Deliver the stock certificates to buyers and Xxxxxxx (or
assigns)as they direct.
5) In the event of default in delivery any item by a party
under this agreement, any cash or certificates received from
the other party shall be returned to the remitting party 3
business days after default.
6) Escrow Agent is specifically indemnified and held harmless
hereby for its actions or inactions in following these
instructions. In the event of a dispute involving the escrow
instructions or the consideration to be delivered in escrow,
the escrow agent is authorized to implead the consideration
received into the District Court of Jefferson County,
Colorado upon ten days written notice, and be relieved of
any further escrow duties thereupon. Any and all costs of
attorneys fees and legal actions of escrow agent for any
dispute resolution or impleader action shall be paid in
equal shares by the parties to this agreement.
10.12 Xxxxxxx agrees to sign, as CEO/CFO all filings and Sarbanes/Oxley
Certifications at closing, for all SEC filings required.
10.13 Once Xxxxxxx has settled all debts on a list provided by Xxxxxxx
(no additional debt can be incurred prior to closing of the deal) and obtain the
audits necessary to bring all SEC filings current, at a total less than the
$125,000 held in escrow, then Xxxxxxx shall be paid the difference between the
debt settlement and audit/accounting costs and $125,000, at closing as an offset
to his prior advances to the company and not as compensation. The audits are
capped at $10,000 assuming prior auditors complete all work as they have
promised, through September 2001 and turn over work papers. (Xxxxxxx Xxxxxxx &
Co. has agreed to be engaged for the fee of $10,000 and produce all work
including Tax Returns to bring SEC and taxes current. It is understood that the
new auditors will audit 2001 (7/31/01 year end) and thereafter.
10.14 Buyers attorney will prepare all 10Q's, 10K's and 8K's for
Baymark at no expense to Xxxxxxx, however Xxxxxxx agrees to sign all of such
duly and properly prepared documents.
IN WITNESS WHEREOF, the parties have executed this Agreement this 14
day of April, 2004.
BUYER:
BAYMARK TECHNOLOGIES, INC. SAN REMO INVESTMENTS LLC
By: _________________________________ By: ______________________________
Name: _______________________________ Name: ____________________________
Title: ________________________________ Tile: ______________________________
SCHEDULE 1.1
Total
1. Audit fees/Review Fees 2000-2003 to be paid upon delivery of Audited F/S
for bringing all SEC filings current., specifically those audits and
unaudited statements required for BMT's fiscal quarters and years ended
July 31, 2001, 2002 and 2003 plus the quarter ended October, 2003, if
applicable. Capped at a maximum of $10,000 to Xxxxxxx X. Xxxxxxx,)
2. IRS Taxes including FICA/Withholding.
3. State Taxes 4. Prior Auditors - Names and Address
5. Trade Creditors - Xxxxxxx to list
6. Prior Attorney - Names and Address
7. Transfer Agent - Name and Address
All funds shall be disbursed by Escrow Agent to Creditors upon receipt
of Executory Release/Settlement Agreements from all creditors over $5,000 in an
aggregate amount not to exceed $125,000 (such amount including audit and
accounting costs to bring all SEC filings current of $10,000).
