AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement"), dated as of
January 23, 1997 by and among BUREAU OF ELECTRONIC PUBLISHING, INC., a Delaware
corporation having its principal place of business at 000 Xxxxxxxxx Xxxx,
Xxxxxxxxx, Xxx Xxxxxx 00000 ("BEPI"), PACIFIC CHEMICAL GROUP LIMITED, a British
Virgin Islands corporation having an office c/o X.X. Xxxx & Associates, 000
Xxxxx Xxxxxx, Xxx Xxxx 00000 ("PCG"), JINAN CHEMICAL FIBRE CORPORATION, a
Peoples Republic of China corporation ("JCF"), and BEPI ACQUISITION CORPORATION,
a British Virgin Islands corporation which is wholly owned by BEPI and has a
principal place of business c/o BEPI ("Subsidiary"). PCG is sometimes referred
to herein as the "Surviving Corporation." Subsidiary and PCG are each sometimes
referred to herein as a "Constituent Corporation" or collectively as the
"Constituent Corporations."
Preliminary Statement
JCF produces polyester fiber in a facility in Jinan, Peoples Republic of China
("PRC"). JCF produces purified terephthalic acid ("PTA"), which is a raw
material used in the production of polyester fiber, in Plant 1 of such facility.
Pursuant to a joint venture agreement in the form set forth in the PCG
Disclosure Schedule referred to below (the "Joint Venture Agreement"), JCF will
at the Closing hereunder transfer Plant 1 to Jinan Dayang Chemical Fibre
Company, Ltd., which is a newly formed joint venture (the "Joint Venture") of
which PCG owns 51% and JCF owns 49%. The Joint Venture will after the Closing
use Plant 1 to produce PTA for sale to JCF as well as for third parties. The
transaction in which the assets of Plant 1 are transferred and leased by JCF to
the Joint Venture pursuant to the Joint Venture Agreement is referred to herein
as the "Asset Transfer."
PCG and/or BEPI will at the Closing receive not less than U.S. $1,000,000 from
the sale of securities with an additional $1,000,000 to be received from such
sales within 60 days. Under the Joint Venture Agreement, PCG's ownership
interest in the Joint Venture will be transferred to JCF on February 9, 1999
unless PCG theretofore contributes U.S. $12,995,000 to the Joint Venture.
The Boards of Directors of BEPI and the Constituent Corporations and the
shareholders of PCG and Subsidiary have each determined that it is in the best
interest of each such corporation to consummate the Merger set forth herein.
IN CONSIDERATION of the foregoing and the mutual agreements and covenants
contained herein, the parties hereby agree as follows:
1. Definitions. For purposes of this Agreement, the following terms
shall have the following meanings:
(a) "PCG Common Stock" shall mean the common stock of PCG.
(b) "Effective Date" or "Closing Date" shall mean the effective
date of the Merger, which shall be the date and time of filing
of the certificate of merger required to be filed hereunder
which date may be simultaneous with the execution of this
Agreement.
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(c) "BEPI Common Stock" shall mean the common stock of BEPI.
(d) "Preferred" shall have the meaning set forth in Section 5(b).
(e) "Merger" shall mean the merger of Subsidiary with and into
PCG, and in consideration for which the stockholders of PCG
will receive shares of Preferred in accordance with the terms
of this Agreement.
(f) "Subsidiary's Common Stock" shall mean the common stock of
Subsidiary.
(g) "Surviving Corporation" shall mean PCG, the corporation that
survives the Merger.
2. Merger into PCG; Closing
(a) Surviving Corporation. Upon the approval and adoption of this
Agreement by the stockholders of each of the Constituent
Corporations in accordance with the laws of the British
Virgin Islands and the satisfaction or waiver of the
conditions set forth herein to the obligations of the parties
hereto, a certificate of merger shall, subject to the rights
of termination and abandonment hereinafter set forth, be
filed with the appropriate office in the British Virgin
Islands . Effective as of the close of business on the date
on which the certificate of merger is filed, Subsidiary shall
merge with and into PCG, and PCG as the Surviving Corporation
shall continue its corporate existence under the laws of the
British Virgin Islands under its current name. The date and
time of such filings is herein referred to as the "Effective
Date" or the "Closing Date."
(b) Further Documentation. From time to time as and when
requested by the Surviving Corporation or BEPI or their
successors or assigns, BEPI, PCG and Subsidiary and their
proper (or former) officers and directors, shall execute and
deliver, or cause to be executed and delivered, all deeds and
other instruments and shall take or cause to be taken all
such other and further actions as the Surviving Corporation
or BEPI may deem necessary or appropriate in order to more
fully vest in the Surviving Corporation title to and
possession of all of the rights, privileges, powers,
immunities, purposes and franchises of PCG and Subsidiary and
to carry out the intent and purposes of this Agreement.
3. Closing. Concurrently with the filing of the certificate of merger the
parties shall execute and deliver to and among themselves the Closing Documents
(as hereinafter defined) at a closing (the "Closing") to occur at the offices of
Xxxxx X. Xxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 on the Closing Date.
The term "Closing Documents" means the agreements, instruments and documents
which are contemplated by this Agreement to be executed and delivered by the
parties on the Closing Date. This Agreement may be executed simultaneously with
the Closing.
4. Certificate of Incorporation, By-laws, Directors and Officers
(a) Certificate of Incorporation. The certificate of incorporation
of PCG in effect on the Effective Date shall be the
certificate of incorporation of the Surviving Corporation
until amended as provided by law.
(b) By-Laws. The by-laws of PCG in effect on the Effective Date
shall be the by-laws of the Surviving Corporation until
amended or repealed as provided by law.
(c) Directors and Officers. The current directors and officers of
the Surviving Corporation shall hold office as provided in
the by-laws of the Surviving Corporation.
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5. Conversion and Exchange of Shares
(a) Upon consummation of the Merger, all shares of Subsidiary's
Common Stock outstanding immediately prior to the Effective
Date shall, by virtue of the Merger and without any action on
the part of the holder thereof, be converted into and
exchanged for all of the issued and outstanding shares of
capital stock of the Surviving Corporation. All such shares
shall be fully paid and non-assessable.
(b) The shares of PCG Common Stock which shall be outstanding
immediately prior to the Effective Date shall, by virtue of
the Merger and without any action on the part of the holder
thereof, be converted as of the Effective Date into the right
to receive an aggregate of 833,671.66 shares of Class A
Preferred Stock of BEPI (the "Preferred"). The Preferred
shall be created on or before the Closing pursuant to a
Certificate of Designation in the form set forth in the BEPI
Disclosure Schedule. Without limiting the generality of the
foregoing, each share of Preferred shall be automatically
converted into 100 shares of BEPI Common Stock when the
number of authorized shares of BEPI Common Stock is increased
to 300,000,000, shall have 100 votes per share and shall vote
with the holders of the common stock as one class and shall
have a $100 preference in liquidation.
(c) Each holder of record on the Effective Date of shares of PCG
Common Stock shall be entitled, upon the surrender to BEPI or
any exchange agent selected by BEPI of the certificate for his
or her shares of PCG Common Stock for cancellation, to receive
a certificate or certificates representing the number of
shares of Preferred into which the holder's shares of the PCG
Common Stock shall have been converted in the Merger.
(d) Except for the issuance of shares of Preferred upon conversion
of shares of PCG Common Stock, the Merger shall effect no
change in the shares of BEPI capital stock and none of BEPI's
shares shall be converted as a result of the Merger.
(e) After the Effective Date, there shall be no registration of
transfers on the stock transfer books of PCG of the shares
which were outstanding immediately prior to the Effective
Date.
(f) No fractional shares will be issued in the Merger, and any
fractional shares will be canceled.
(g) JCF and PCG acknowledge, on behalf of themselves and on behalf
of each shareholder of PCG, that each such shareholder:
(i) will acquire the Preferred and any shares of common
stock issuable on conversion of the Preferred
(collectively "Securities") only for his own account,
for investment, and without a view to the
distribution thereof;
(ii) has carefully reviewed the public filings of BEPI;
(iii) has been given access to all exhibits referred to in
such registration statements and reports, and he has
had the opportunity to discuss BEPI's affairs with
the BEPI's officers;
(iv) understands that he may sell or otherwise transfer
Securities only if such transaction is duly
registered under the Securities Act of 1933, as
amended (the "Act") or if he shall have received the
favorable opinion of counsel to the BEPI to the
effect that such sale or other transfer may be made
in the absence of registration under the Act;
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(v) acknowledges that the certificates representing
Securities will be legended to reflect these
restrictions, and stop transfer instructions will
apply; and
(vi) realizes that the Securities are not a liquid
investment, and that he may lose his entire
investment as a result of the Merger and his receipt
of Securities.
6. Certain Other Agreements and Conditions.
(a) Prior to the Closing, the Board of Directors of BEPI shall
elect a nominee of PCG to the Board (the "PCG Director").
Effective upon the Closing, all persons who were (other than
the PCG director) directors of BEPI immediately prior to the
Closing (other than the PCG director) shall submit their
resignations at the Closing. At the Closing, PCG, BEPI, and
such persons shall execute mutual releases which generally
release each other from all claims and liabilities and
agreements, known and unknown, except for rights to
indemnification to which such resigning directors may be
entitled under BEPI's certificate of incorporation and
by-laws.
(b) All persons who were officers of BEPI immediately prior to the
Closing shall submit their resignations at the Closing. At the
Closing, PCG, BEPI and such persons shall execute mutual
releases which generally release each other from all claims
and liabilities and agreements, known and unknown, except for
rights to indemnification to which such resigning officers may
be entitled under BEPI's certificate of incorporation and
by-laws.
(c) Concurrently with the Merger:
(i) JCF and PCG will effectuate the Asset Transfer; and
(ii) BEPI will pay a finder's fee to Brookehill Equities,
Inc. equal to 10% of the funds received in the
private placement referred to in Section 6(d) below
(d) It shall be a condition precedent to the Merger that BEPI
shall at the Closing issue an aggregate of up to 5 shares of
Series B Preferred Stock at $100,000 per share and shares of
Series C Preferred Stock convertible into 1,000,000 shares of
BEPI Common Stock at $.50 per share in a private placement to
be conducted by Brookehill Equities, Inc. The Series B and
Series C Preferred Stock shall be created on or before the
Closing pursuant to a Certificate of Designation in the form
set forth in the BEPI Disclosure Schedule. In the event that
the net assets of BEPI as shown on the Closing Balance Sheet
(as defined in Section 11(iv)) are less than $700,000, BEPI
shall issue, at PCG's option, up to an additional 15 shares
of Series B Preferred Stock in the private placement
sufficient to provide BEPI with net assets of approximately
$2,700,000 immediately following the Closing.
(e) On or before the 180th day after the Closing Date, BEPI shall
at its expense file a registration statement for the public
sale of (i) 1,468,000 shares of common stock (the "1996
Stock") and (ii) 1,868,000 shares of common stock issuable
pursuant to warrants, which , together with the 1996 Stock,
were issued by
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BEPI in a private placement in June and July 1996
(iii) for all shares of Common Stock issuable upon conversion
of the Series B and Series C Preferred Stock issued in the
private placement referred to in Section 6(d) and (iv) 127,750
shares of BEPI Common Stock issued by BEPI to settle certain
outstanding claims of BEPI.
(f) BEPI hereby agrees no later than January 9, 1998 to issue to
holders of the 1996 Stock additional shares of Common Stock
such that the total number of shares issued to such 1996
Stockholders will be the number of shares which would have
been issuable if the purchase price of such 1996 Stock had
been equal to the lowest price at which Series B Preferred
Stock was converted during 1997; provided , however, that (i)
such additional shares of Common Stock shall only be issued
if Series B Preferred Stock is actually converted during 1997
and (ii) such additional shares of Common Stock shall only be
issued to original holders of the 1996 Stock and only to the
extent that such holders still hold 1996 Stock on January 9,
1998.
(g) As soon as practicable after the Merger, BEPI shall use its
best efforts to amend its certificate of incorporation to
increase its authorized shares of common stock from 12,000,000
to 300,000,000, and to change the name of BEPI to Pacific
Chemical, Inc.
(h) For a period of five years after the Effective Date, BEPI
will file with the National Association of Securities Dealers
Automated Quotation System ("NASDAQ") all documents and
notices which are required by NASDAQ of companies whose
securities are quoted by NASDAQ, use its best efforts to
maintain the NASDAQ quotation for its Common Stock to the
extent such Common Stock is then outstanding, and maintain in
the United States of America a transfer and warrant agent
and, if necessary under the jurisdiction of its incorporation,
a registrar (which may be the same entity as the transfer
agent) for its Common Stock and its Common Stock purchase
warrants.
7. Representations and Warranties of JCF and PCG. JCF and PCG jointly and
severally represent and warrant to BEPI and Subsidiary that, except as set forth
in the PCG Disclosure Schedule which was executed and delivered by PCG to BEPI
on the date hereof (the "PCG Disclosure Schedule") with a reference to the
relevant Section of this Agreement:
(a) Organization and Capitalization. PCG is a corporation duly
organized, validly existing and in good standing under the
laws of the British Virgin Islands. All of the issued and
outstanding shares of PCG's Common Stock are duly authorized,
validly issued, fully paid and nonassessable and were issued
and sold in compliance with all applicable securities laws
and regulations; and there are no other equity securities of
any class authorized, issued, reserved for issuance or
outstanding, and there are no preemptive rights as to any
shares. There are no outstanding options, warrants,
agreements or rights to subscribe for or to purchase, or
commitments to issue, shares of PCG capital stock. Except for
its interest in the Joint Venture, PCG does not own, directly
or indirectly, any outstanding capital stock or securities
convertible into capital stock of any other corporation or
any participating interest in any partnership, joint venture
or other business enterprise. All subsidiaries and the
directors and officers of each subsidiary are listed on the
PCG Disclosure Schedule.
(b) Power and Authority. PCG has all requisite power and authority
to own, lease and operate its properties and to conduct its
businesses as presently conducted and as proposed to be
conducted. PCG is not required to be qualified or licensed as
a foreign corporation in any jurisdiction other than the
jurisdiction of its incorporation.
(c) Certificate of Incorporation and By-Laws of PCG. The copy of
the Certificate of Incorporation of PCG, certified by the
appropriate officer of the British Virgin Islands and the
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By-Laws of PCG, certified by its Secretary, heretofore
delivered to BEPI, are true, complete and correct.
(d) Authority for Agreement, Joint Venture Agreement and Asset
Transfer. The Board of Directors and the Shareholders of JCF
and PCG have approved this Agreement and the Joint Venture
Agreement, and have authorized the execution and delivery
hereof and thereof and the Asset Transfer. JCF and PCG each
has full power, authority and legal right to enter into this
Agreement and the Joint Venture Agreement, to effect the
Asset Transfer, and to consummate the transactions
contemplated hereby. Any and all governmental approvals or
consents required therefor and for the operation of the Joint
Venture after the Closing have been obtained. This Agreement
and the Joint Venture Agreement are valid and binding on JCF
and PCG, and are enforceable in accordance with their terms
(except as may be limited by bankruptcy, moratorium or other
laws affecting creditors' rights generally.).
(e) No Violation to Result. The execution and delivery of this
Agreement and the Joint Venture Agreement, and the
consummation of the Asset Transfer and the other transactions
contemplated hereby and thereby:
(i) are not in violation or breach of, do not conflict
with or constitute a default under, and will not
accelerate or permit the acceleration of the
performance required by, any of the terms of the
charter documents or by-laws of JCF or PCG or any
note, debt instrument, security agreement or
mortgage, or any other contract or agreement, written
or oral, to which JCF or PCG or its shareholders is a
party or by which JCF or PCG or any of such
shareholders or any of their respective properties or
assets are bound;
(ii) will not be an event which, after notice or lapse of
time or both, will result in any such violation,
breach, conflict, default, or acceleration;
(iii) will not result in a violation under any law,
judgment, decree, order, rule, regulation or other
legal requirement of any governmental authority,
court or arbitration tribunal whether federal, state,
provincial, municipal or local (within the PRC, the
U.S. or otherwise) at law or in equity, and
applicable to JCF or PCG or any of its shareholders;
and
(iv) will not result in the creation or imposition of any
lien, possibility of lien, encumbrance, security
agreement, equity, option, claim, charge, pledge or
restriction in favor of any third person upon any of
the properties or assets of JCF or PCG.
(f) No Existing Defaults. Neither JCF nor PCG is in default in
any respect which is material to PCG:
(i) under any of the terms of any note, debt instrument,
security agreement or mortgage or under any other
commitment, contract, agreement, license, lease or
other instrument, whether written or oral, to which
JCF or PCG is a party or by which it or any of its
properties or assets are bound;
(ii) under any law, judgment, decree, order, rule
regulation or other legal requirement or any
governmental authority, court or arbitration tribunal
whether federal, state, provincial, municipal or
local (within the U.S. or otherwise), at law or in
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equity, and applicable to JCF or PCG or to any of its
properties or assets; or
(iii) in the payment of any of monetary obligations or
debts.
(g) Financial Statements, etc.
(i) The audited financial statements of Plant 1 of JCF as
of and for the years ended December 31, 1995, 1994
and 1993 and the unaudited financial statements of
Plant 1 of JCF for its ten months ended October 30,
1996 (which financial statements, including, without
limitation, any notes thereto and reports thereon are
hereinafter collectively called the "Plant 1
Financial Statements," and which financial statements
for the year ended December 31, 1995 are hereinafter
referred to as the "Plant 1 1995 Financial
Statements"), all of which have been delivered to
BEPI, correctly and fairly present the financial
position of Plant 1 of JCF and the results of
operations as of the respective dates and for the
periods indicated thereon and have been prepared in
accordance with generally accepted accounting
principles applied on a consistent basis.
(ii) Prior to the date of this Agreement, PCG has not
engaged in any business activities other than its
organization and its entry into the Joint Venture
Agreement. It has no material assets or liabilities
other than its rights and obligations under the Joint
Venture Agreement.
(h) No Adverse Changes. To the extent material to PCG, from
December 31, 1995 to the date of this Agreement:
(i) there has been no damage, destruction or loss, by
reason of fire, explosion, earthquake, casualty,
labor trouble, requisition or taking of property by
any government or agency thereof, windstorm, embargo,
riot, act of God or the public enemy, flood, volcanic
eruption, accident, other calamity or other similar
or dissimilar event (whether or not covered by
insurance); and
(ii) there have been no adverse changes in the condition
(financial or otherwise), business, net worth,
assets, properties, liabilities or obligations
(fixed, contingent, known, unknown or otherwise) of
Plant 1 of JCF, and there has been no occurrence,
circumstance or combination thereof which might
reasonably be expected to result in any such adverse
effect before or after the Effective Date.
(i) Taxes. To the extent material to PCG, JCF has prepared (or
caused to be prepared) and timely and properly filed (or
caused to be timely and properly filed) with the appropriate
federal, state, provincial, municipal or local authorities
(within the PRC or otherwise) all tax returns, information
returns and other reports required to be filed and has paid or
accrued (or caused to be so paid or accrued) in full all
taxes, interest, penalties, assessments or deficiencies, if
any, due to, or claimed to be due by, any taxing authority.
The Plant 1 Financial Statements set forth appropriate
provisions for all taxes, interest, penalties, assessments or
deficiencies, if any, for the periods indicated thereon to the
extent not theretofore paid. To the extent material to PCG,
JCF has not executed or filed with any taxing authority any
agreement extending the period for assessment or collection of
any taxes. To the extent material to PCG, JCF is not a party
to any pending action or proceeding, nor is any such action or
proceeding threatened, by any governmental authority for the
assessment or collection of taxes, and no claim for assessment
or collection of taxes has been asserted against JCF, and
during the course of any audit currently in process or not
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completed, no issues have been suggested by any representative
of any such governmental authority that, if asserted, would
result in a proposed assessment of taxes, interest or
penalties, against JCF.
(j) Pending Transactions. The PCG Disclosure Schedule sets forth a
list of all pending transactions of Plant 1 which are out of
the ordinary course of business and would involve the
expenditure or commitment of in excess of US $500,000.
(k) Intellectual Property. JCF owns or possess, and by the Asset
Transfer will transfer to the Joint Venture, adequate licenses
or other rights to use all trademarks, certification marks,
trade names, service marks, copyrights, patents, patent
applications, trade secrets, product composition formulae,
computer programs, product development records and other
proprietary processes and information used in its business,
and the same are sufficient in all respects to conduct the
business of Plant 1 and the Joint Venture as currently
conducted and as proposed to be conducted. Except as described
in the PCG Disclosure Schedule or the Joint Venture Agreement,
the Joint Venture will not after the Asset Transfer be
required to pay any royalty, license fee or similar type of
compensation in connection with the conduct of its business as
it is now or heretofore has been conducted or as proposed to
be conducted. All patents, patent applications and rights to
inventions or discoveries (whether or not patentable) owned or
held by any officer, director, stockholder, employee,
consultant or agent of JCF and relating to the business of the
Joint Venture have been duly and effectively transferred to
JCF and will be further transferred to the Joint Venture in
the Asset Transfer: and, to the extent material to PCG and
except as described on the PCG Disclosure Schedule the
operations of JCF do not infringe, and no one has asserted
that such operations do infringe, the patents, patent
applications, trademarks, certifications marks, trade names,
service marks, trade secrets or other intellectual property
rights of anyone.
(l) Brokers. Except for Brookehill Equities, Inc., X.X. Xxxx &
Associates, Inc. and Xxxxx X. Xxxxxx, JCF and PCG has not
expressly or impliedly engaged any broker, finder, investment
banker, or agent with respect to this Agreement or any
transaction contemplated hereby, or agreed to pay any fee to
any such person or entity.
(m) Litigation. To the extent material to PCG and except as set
forth in the PCG Disclosure Schedule, there is no litigation,
suit, proceeding, action, claim or (to the knowledge of JCF or
PCG) investigation, at law or in equity, pending or (to the
knowledge of JCF or PCG) threatened against PCG or JCF or
involving any of its property or assets, before any court,
agency, authority or arbitration tribunal, including, without
limitation, any product liability, workers' compensation or
wrongful dismissal claims, or claims, actions, suits or
proceedings relating to toxic materials, hazardous substances,
pollution or the environment.
(n) Compliance with Laws. JCF and PCG have complied with all laws,
municipal by-laws, regulations, rules, orders, judgments,
decrees and other requirements and policies imposed by any
governmental authority applicable to them or their properties
and which are material to PCG.
(o) Employee Compensation and Agreements with Affiliates. The PCG
Disclosure Schedule contains a true and complete list of all
employees of Plant 1 who earn or receive more than US$60,000
annually from JCF.
(p) Survival of Representations and Warranties; Notice of Changes.
(i) The representations and warranties of PCG and JCF
made in this Agreement, are correct, true and
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complete as of the date hereof and will be correct,
true and complete as at the Effective Date with the
same force and effect as though such representations
and warranties had been made at the Effective Date,
and shall survive the Effective Date for six months.
(ii) PCG and JCF shall give to BEPI prompt written notice
of any fact or circumstance which would render
incorrect any representation or warranty by them.
8. Representations and Warranties of BEPI and Subsidiary. BEPI represents and
warrants to JCF and PCG that, except as set forth in the disclosure schedule
which was executed and delivered by BEPI and the Subsidiary to JCF and PCG on
the date hereof (the "BEPI Disclosure Schedule") with a reference to the
relevant Section of this Agreement:
(a) Organization and Capitalization of BEPI. BEPI is a corporation
duly organized, validly existing and in good standing under
the laws of the State of Delaware. All of the issued and
outstanding shares of BEPI are duly authorized, validly
issued, fully paid and nonassessable; and, except as set forth
in the BEPI Disclosure Schedule, there are no other equity
securities of any class of BEPI authorized, issued, reserved
for issuance or outstanding; and there are no preemptive
rights as to any shares. Except as set forth on the BEPI
Disclosure Schedule, there are no outstanding options,
warrants, agreements or rights to subscribe for or to
purchase, or commitments to issue, shares of BEPI Common
Stock. All subsidiaries of BEPI and the officers and directors
of each subsidiary are listed on the BEPI Disclosure Schedule
(b) Organization and Capitalization of Subsidiary. Subsidiary is a
corporation duly organized, validly existing and in good
standing under the laws of British Virgin Islands with an
authorized capital consisting solely of 1,000 shares Common
Stock ("Subsidiary's Common Stock"), of which 100 shares are
issued and outstanding; all of such 100 issued and outstanding
shares of Subsidiary's Common Stock are duly authorized,
validly issued, fully paid and nonassessable; and there are no
other equity securities of any class of BEPI Subsidiary
authorized, issued, reserved for issuance or outstanding.
There are no outstanding options, warrants, agreements or
rights to subscribe for or to purchase, or commitments to
issue, shares of Subsidiary's Common Stock.
(c) Ownership of Subsidiary. BEPI owns or prior to the Effective
Date will own 100 shares of Subsidiary's Common Stock, which
shares represent all of the issued and outstanding shares of
the Subsidiary.
(d) Power and Authority. The Board of Directors of BEPI and
Subsidiary have each approved this Agreement. Each of BEPI and
Subsidiary has all requisite power and authority to own, lease
and operate its properties and to conduct its business as
presently conducted and as proposed to be conducted and is
duly qualified or licensed as a foreign corporation in good
standing in each jurisdiction in which the character of its
properties or the nature of its business activities require
such qualification. All such jurisdictions are listed in the
BEPI Disclosure Schedule.
(e) Certificate of Incorporation and By-Laws of BEPI and
Subsidiary. The copies of the Certificate of Incorporation of
BEPI and Subsidiary, each certified by the Secretary of State
of its respective state of incorporation, and the By-Laws of
BEPI and Subsidiary, certified by their respective
Secretaries, heretofore delivered by BEPI and Subsidiary to
PCG, are true, complete and correct.
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(f) Authority for Agreement. The Board of Directors of each of
BEPI and Subsidiary, and the shareholder of Subsidiary, have
each approved this Agreement and have authorized the execution
and delivery hereof. BEPI and Subsidiary each has full power,
authority and legal right to enter into this Agreement and to
consummate the transactions contemplated hereby. This
Agreement is valid and binding on BEPI and Subsidiary, and is
enforceable in accordance with its terms (except as may be
limited by bankruptcy, insolvency, moratorium or other laws
affecting creditors' rights generally.)
(g) No Violation to Result. Except as set forth in the BEPI
Disclosure Schedule, the execution and delivery of this
Agreement and the consummation of the transactions
contemplated hereby:
(i) are not in violation or breach of, do not conflict
with or constitute a default under, and will not
accelerate or permit the acceleration of the
performance required by, any of the terms of the
charter documents or by-laws of BEPI or Subsidiary or
(after the consents referred to in the BEPI
Disclosure Schedule are obtained) any note, debt
instrument, security agreement or mortgage, or any
other contract or agreement, written or oral, to
which BEPI or Subsidiary is a party or by which BEPI
or Subsidiary or any of their properties or assets
are bound;
(ii) will not be an event which, after notice or lapse of
time or both, will result in any such violation,
breach, conflict, default, or acceleration;
(iii) will not result in violation under any law, judgment,
decree, order, rule, regulation or other legal
requirement of any governmental authority, court or
arbitration tribunal whether federal, state,
provincial, municipal or local (within the U.S. or
otherwise) at law or in equity, and applicable to
BEPI or Subsidiary; and
(iv) will not result in the creation or imposition of any
lien, possibility of lien, encumbrance, security
agreement, equity, option, claim, charge, pledge or
restriction in favor of any third person upon any of
the properties or assets of BEPI or Subsidiary.
(h) No Existing Defaults. Except as set forth in the BEPI
Disclosure Schedule, BEPI and Subsidiary are not in material
default in any material respect:
(i) under any of the terms of any note, debt instrument,
security agreement or mortgage or under any other
commitment, contract, agreement, license, lease or
other instrument, whether written or oral, to which
it is a party or by which it or any of its properties
or assets is bound;
(ii) under any law, judgment, decree, order, rule,
regulation or other legal requirement or any
governmental authority, court or arbitration tribunal
whether federal, state, provincial, municipal or
local (within the U.S. or otherwise), at law or in
equity, and applicable to it or to any of its
properties or assets; or
(iii) in the payment of any of its monetary obligations or
debts.
(i) Reports and Financial Statements.
(i) BEPI has previously furnished to PCG and JCF with
true and complete copies of its (i) Annual Report on
Form 10-KSB for the year ended December 31,1995, as
filed with the United States Securities and Exchange
Commission (the "Commission"), (ii) Quarterly Report
on Form 10-QSB filed for the fiscal quarter and nine
months ended September 30, 1996 (the "BEPI Quarterly
10
Report"), (iii) proxy statements relating to all
meetings of its stockholders (whether annual or
special) since December 31, 1995, and (iv) all other
reports, registration statements and other written
materials filed by BEPI with the Commission since
December 31, 1995. The financial statements included
in such reports were prepared in accordance with
generally accepted accounting principles,
consistently applied, and present fairly the
financial position and the results of operations of
BEPI for the periods indicated. There has been no
material adverse change in BEPI's business or
financial condition since September 30, 1996, except
that as set forth in the BEPI Disclosure Schedule.
The Closing Balance Sheet (as defined in Section
11(iv)) will be prepared in accordance with generally
accepted accounting principles, consistently applied,
and will fairly present the financial position of
BEPI as of the date of the Closing Balance Sheet.
(ii) As of their respective dates, such reports,
statements and other written materials did not
contain any untrue statement of a material fact or
omit to state a material fact required to be stated
therein or necessary to make the statements therein,
in light of the circumstances under which they were
made, not misleading.
(iii) The audited consolidated financial statements and any
unaudited interim financial statements of BEPI
included in such reports have been prepared in
accordance with generally accepted accounting
principles applied on a consistent basis and fairly
present the financial position of BEPI and its
subsidiaries as at the dates thereof and the results
of their operations and changes in financial position
for the periods then ended, except as indicated
therein or in the notes thereto.
(j) No Adverse Changes. From September 30, 1996 to the date of
this Agreement, except as disclosed in the BEPI Disclosure
Schedule and except as otherwise permitted herein:
(i) BEPI and Subsidiary have not sustained any damage,
destruction or loss, by reason of fire, explosion,
earthquake, casualty, labor trouble, requisition or
taking of property by any government or agency
thereof, windstorm, embargo, riot, act of God or the
public enemy, flood, volcanic eruption, accident,
other calamity or other similar or dissimilar event
(whether or not covered by insurance) adversely
affecting the business, properties, financial
condition or operations of BEPI; and
(ii) there have been no adverse changes in the condition
(financial or otherwise), business, net worth,
assets, properties, liabilities or obligations
(fixed, contingent, known, unknown or otherwise) of
BEPI and Subsidiary which individually or in the
aggregate have had or may have a material adverse
effect on the business, properties, financial
condition or operations of BEPI and Subsidiary, taken
as a whole, and there has been no occurrence,
circumstance or combination thereof which might
reasonably be expected to result in any such adverse
effect before or after the Effective Date.
(k) BEPI and Subsidiary Employee Plans and Agreements. Except as
otherwise set forth in the BEPI Disclosure Schedule, BEPI has
no employee benefit plans whatsoever.
11
(l) Taxes. BEPI and Subsidiary have each prepared (or caused to be
prepared) and timely and properly filed (or caused to be
timely and properly filed) with the appropriate federal,
state, provincial, municipal or local authorities (within the
U.S. or otherwise) all tax returns, information returns and
other reports required to be filed and have paid or accrued
(or caused to be so paid or accrued) in full all taxes,
interest, penalties, assessments or deficiencies, if any, due
to, or claimed to be due by, any taxing authority. The balance
sheet included in the BEPI Quarterly Report include
appropriate provisions for all such taxes, interest,
penalties, assessments or deficiencies, if any, for the
periods indicated therein to the extent not theretofore paid.
Neither BEPI nor Subsidiary has executed or filed with any
taxing authority any agreement extending the period for
assessment or collection of any taxes. Neither BEPI nor
Subsidiary is a party to any pending action or proceeding,
nor, to the knowledge of BEPI or Subsidiary, is any such
action or proceeding threatened, by any governmental authority
for the assessment or collection of taxes, and no claim for
assessment or collection of taxes has been asserted against
BEPI or Subsidiary, and during the course of any audit
currently in process or not completed, no issues have been
suggested by any representative of any such governmental
authority that, if asserted, would result in a proposed
assessment of taxes, interest or penalties, against BEPI or
Subsidiary.
(m) Pending Transactions. The BEPI Disclosure Schedule sets forth
a list of all pending transactions (whether or not PCG is
legally bound to enter therein) which are out of the ordinary
course of business and would involve the expenditure or
commitment of in excess of $20,000.
(n) Intellectual Property. The BEPI Disclosure Schedule contains a
true and complete list of all trademarks, certification marks,
trade names, service marks, copyrights, patents, patent
applications and product composition formulae owned or used by
BEPI and Subsidiary which are material to the current business
of BEPI. BEPI and Subsidiary own or possess adequate licenses
or other rights to use all trademarks, certification marks,
trade names, service marks, copyrights, patents, patent
applications, trade secrets, product composition formulae,
computer programs, product development records and other
proprietary processes and information used in its business,
and the same are sufficient in all respects to conduct the
business as now conducted or as proposed to be conducted.
Except as described in the BEPI Disclosure Schedule, neither
BEPI nor Subsidiary is required to pay any royalty, license
fee or similar type of compensation in connection with the
conduct of its business as it is now or heretofore has been
conducted. All patents, patent applications and rights to
inventions or discoveries (whether or not patentable) owned or
held by any officer, director, stockholder, employee,
consultant or agent of BEPI or Subsidiary and relating to its
business in any manner have been duly and effectively
transferred to BEPI or Subsidiary; and, except as described on
the BEPI Disclosure Schedule, the operations of BEPI and
Subsidiary do not infringe, and no one has asserted that such
operations do infringe, the patents, patent applications,
trademarks, certifications marks, trade names, service marks,
trade secrets or other intellectual property rights of anyone.
(o) Machinery and Equipment. BEPI or Subsidiary owns or has
adequate rights to all machinery and equipment (including,
without limitation, machinery and equipment under development
or construction) used or necessary for use in its trade or
business, and all such material machinery and equipment is in
substantially good operating condition.
(p) Brokers. Neither BEPI nor Subsidiary has expressly or
impliedly engaged any broker, finder, investment banker, or
agent with respect to this Agreement or any transaction
12
contemplated hereby, or agreed to pay any fee to any such
person or entity.
(q) Contracts. The BEPI Disclosure Schedule contains a true and
complete list of each contract or agreement, requiring
aggregate payments by BEPI or Subsidiary, or receipts by BEPI
or Subsidiary, in excess of $25,000, to which BEPI or
Subsidiary is a party, or by which BEPI or Subsidiary is
bound, in any respect.
(r) Litigation. Except as set forth in the BEPI Disclosure
Schedule, there is no material litigation, suit, proceeding,
action, claim or (to the knowledge of BEPI) investigation, at
law or in equity, pending or (to the knowledge of BEPI)
threatened against or affecting BEPI or Subsidiary or
involving any of their property or assets, before any court,
agency, authority or arbitration tribunal, including, without
limitation, any product liability, workers' compensation or
wrongful dismissal claims, or claims, actions, suits or
proceedings relating to toxic materials, hazardous substances,
pollution or the environment. There are no facts which, if
known to customers, governmental authorities or other persons,
might result in any such litigation, suit, proceeding, action,
claim or investigation. Except as set forth in the BEPI
Disclosure Schedule, neither BEPI nor Subsidiary is subject to
or in default with respect to any notice, order, writ,
injunction or decree of any court, agency, authority or
arbitration tribunal.
(s) Compliance with Laws. BEPI and Subsidiary have each complied
with all laws, municipal by-laws, regulations, rules, orders,
judgments, decrees and other requirements and policies imposed
by any governmental authority applicable to it, its properties
or the operation of its business.
(t) Licenses, Permits and Approvals. BEPI and Subsidiary each have
all material licenses, permits, approvals, qualifications or
the like, issued or to be issued to BEPI and Subsidiary by any
government or any governmental unit, agency, body or
instrumentality, whether federal, state, provincial, municipal
or local (within the U.S. or otherwise) necessary for the
conduct of its trade or business, and all such items are in
full force and effect, and are listed in the BEPI Disclosure
Schedule.
(u) Employee Compensation and Agreements with Affiliates. The BEPI
Disclosure Schedule contains a true and complete list of all
employees of BEPI and Subsidiary earning or receiving more
than $60,000 annually from BEPI.
(v) Bank Accounts. The BEPI Disclosure Schedule contains a true
and complete list of (i) all accounts of BEPI with any bank,
trust company or other deposit taking institution, together
with the names of the persons authorized to draw thereon, and
(ii) the names of all persons holding powers of attorney from
BEPI and a summary statement of the terms thereof.
(w) Survival of Representations and Warranties; Notice of Changes.
(i) The representations and warranties of each of BEPI
and Subsidiary made in this Agreement are correct,
true and complete as of the date hereof and will be
correct, true and complete as at the Effective Date
with the same force and effect as though such
representations and warranties had been made at the
Effective Date, and shall survive the Effective Date
for six months.
(ii) BEPI shall give to PCG prompt written notice of any
fact or circumstance which would render incorrect any
representation and warranty made by it or Subsidiary.
13
9. Conduct and Transactions Prior to Closing, and Certain Other Agreements
(a) Access to Properties and Records. Each party shall afford to the
officers, employees, attorneys, accountants and other authorized
representatives of the other, free and full access to all of its
assets, properties, books and records, in order to afford each party as
full an opportunity of review, examination and investigation as it
shall desire to make of the affairs of the other, and each shall be
permitted to make extracts from, or take copies of, such books, records
(including the stock record and minute books) or other documentation or
to obtain temporary possession of any thereof as may be reasonably
necessary; and each shall furnish or cause to be furnished to the other
such reasonable financial and operating data and other information
about its business, properties and assets which any of such party's
respective officers, employees, attorneys, accountants or other
authorized representatives may reasonably request. Each party agrees to
maintain in confidence all information thus acquired unless such
information is or becomes publicly available otherwise than through
breach of this Agreement.
(b) Interim Covenants of each Party. Unless this Agreement is executed
simultaneously with the Closing, from the date of this Agreement until
the Effective Date, except to the extent expressly permitted by this
Agreement or otherwise consented to by an instrument in writing signed
by each other party or as otherwise set forth in the BEPI Disclosure
Schedule or the PCG Disclosure Schedule, each party shall conduct its
operations only in the ordinary course, narrowly construed, and it
shall not make any change in its constituent documents, i.e.,
Certificate of Incorporation or by-laws.
(c) Information. Each party will furnish to the other parties all
information concerning the first party which is reasonably required for
inclusion in any filing with any governmental or regulatory body in
connection with the transactions contemplated by this Agreement or
otherwise required by law.
(d) Notice of Breach.
(i) BEPI and Subsidiary will immediately give notice to
PCG of the occurrence of any event or the failure of
any event to occur that results in a breach of any
representation or warranty by BEPI and Subsidiary
contained herein or a failure by BEPI and Subsidiary
to comply with any covenant, condition or agreement
contained herein.
(ii) PCG and JCF will immediately give notice to BEPI and
Subsidiary of the occurrence of any event or the
failure of any event to occur that results in a
breach of any representation or warranty by PCG and
JCF contained herein or a failure by PCG or JCF to
comply with any covenant, condition or agreement
contained herein.
(e) Representations. BEPI, Subsidiary, PCG and JCF (a) will take
all action necessary to render accurate as of the Effective
Date their respective representations and warranties contained
herein, (b) will refrain from taking any action which would
render any such representation or warranty inaccurate in any
material respect as of such time, and (c) will perform or
cause to be satisfied each covenant or condition to be
performed or satisfied by them.
(f) Negotiations with Third Parties. The parties will not, without
the prior written approval of the others, furnish any
information to, or initiate or participate in discussions or
negotiations with, third parties relating to any merger, sale
or other disposition of any substantial part of its assets or
14
stock or any other sale by stockholders of such party of any
of their shares of its Common Stock.
10. Conditions to Obligations of BEPI and Subsidiary. In addition to the
conditions set forth in Section 6, all obligations of BEPI and Subsidiary under
this Agreement are subject to the fulfillment and satisfaction, prior to or at
the time at which the Effective Date is scheduled to occur, of each of the
following conditions, any one or more of which may be waived by BEPI and
Subsidiary.
(i) Representations and Warranties True at the Effective
Date. At the Effective Date, the representations and
warranties of JCF and PCG set forth in this Agreement
will be true and correct in all material respects at
and as of such time, and unless this Agreement is
executed simultaneously with the Closing, at the
Effective Date PCG shall have delivered to BEPI and
Subsidiary a certificate to such effect signed by an
executive officer of JCF and PCG.
(ii) Performance. Each of the obligations of PCG and JCF
to be performed by it on or before the Effective Date
pursuant to the terms of this Agreement shall have
been duly performed in all material respects at the
Effective Date, and unless this Agreement is executed
simultaneously with the Closing, at the Effective
Date PCG shall have delivered to BEPI and Subsidiary
a certificate to such effect signed by an executive
officer of PCG and JCF.
(iii) Authority. All action required to be taken by, or on
the part of, PCG and JCF to authorize the execution,
delivery and performance of this Agreement by PCG and
JCF and the consummation of the transactions
contemplated hereby shall have been duly and validly
taken by the Board of Directors and stockholders of
each of PCG and JCF.
(iv) Fairness Opinion. BEPI's Board of Directors shall
have received an opinion from a financial advisor
selected by BEPI to the effect that the consideration
to be provided by BEPI to PCG in connection with the
transactions contemplated by Section 5 of this
Agreement is fair to the BEPI stockholders from a
financial point of view to BEPI and its stockholders.
(v) Legal Opinions.
(A) PCG and BEPI's Board of Directors shall have
received an opinion from Wilentz, Xxxxxxx &
Xxxxxxx, P.A., to the effect that (i) except
as otherwise set forth in this Agreement, no
approval or consent of the BEPI shareholders
is necessary in order to consummate the
transactions contemplated by this Agreement,
(ii) this Agreement has been duly
authorized, executed and delivered by BEPI
and no consent, approval, authorization,
qualification or other order of, or any
filing or registration with, any regulatory
body, administrative agency or governmental
body or other third party is legally
required for BEPI to consummate the
transactions which are contemplated to occur
prior to the Closing in accordance with the
terms of this Agreement; and (iii) neither
the execution and delivery of this Agreement
by BEPI nor the consummation of the
transactions contemplated hereby will
violate its certificate of incorporation or
by-laws or any law by which BEPI or its
property is bound,
(B) PCG and BEPI's Boards of Directors shall
have received an opinion from counsel
reasonably acceptable to PCG and BEPI to the
effect that (i) that PCG and Subsidiary are
15
each duly incorporated, validly existing and
in good standing under the laws of the
respective jurisdictions in which they are
incorporated, (ii) this Agreement has been
duly authorized, executed and delivered by
PCG and Subsidiary and is a valid and
binding agreement of each of PCG and
Subsidiary enforceable against such entities
in accordance with its terms except as the
enforcement thereof may be limited by
bankruptcy, insolvency, moratorium or other
laws effecting creditors' rights generally,
(iii) neither the execution and delivery of
this Agreement by PCG or Subsidiary nor the
consummation of the transactions
contemplated hereby will violate their
respective certificates of incorporation or
by-laws or any law by which such entities or
their property are bound, (iv) except as
otherwise set forth in this Agreement, no
approval or consent of the shareholders of
PCG or Subsidiary is necessary in order to
consummate the transactions contemplated by
this Agreement, (v) no consent, approval,
authorization, qualification or other order
of, or any filing or registration with any
regulatory body, administrative agency or
governmental body or other third party is
legally required for PCG or Subsidiary to
consummate the transactions which are
contemplated to occur in accordance with the
terms of this Agreement, and (vi) the Merger
has duly and validly been effected. PCG will
supply to BEPI any confirmatory legal
information which PCG receives relating to
PRC law.
11. Conditions to Obligations of JCF and PCG. In addition to the conditions set
forth in Section 6 and 10(v), all obligations of JCF and PCG under this
Agreement are subject to the fulfillment and satisfaction, prior to or at the
time at which the Effective Date is scheduled to occur, of each of the following
conditions, any one or more of which may be waived by PCG.
(i) Representations and Warranties True at the Effective
Date. At the Effective Date, the representations and
warranties of BEPI and Subsidiary set forth in this
Agreement will be true and correct in all material
respects at and as of such time, and, unless this
Agreement is executed simultaneously with the
Closing, at the Effective Date, BEPI and Subsidiary
shall have delivered to PCG a certificate to such
effect signed by the President and the Chief
Operating Officer of BEPI and by the President of
Subsidiary.
(ii) BEPI and Subsidiary's Performance. Each of the
obligations of BEPI and Subsidiary to be performed by
it on or before the Effective Date pursuant to the
terms of this Agreement shall have been duly
performed in all material respects at the Effective
Date, and unless this Agreement is executed
simultaneously with the Closing, at the Effective
Date BEPI and Subsidiary shall have delivered to JCF
and PCG a certificate to such effect signed by the
President and the Chief Operating Officer of BEPI and
by the President of Subsidiary.
(iii) Authority. All action required to be taken by, or on
the part of, BEPI and Subsidiary to authorize the
execution, delivery and performance of this Agreement
by BEPI and the consummation of the transactions
contemplated hereby shall have been duly and validly
taken by the Board of Directors of each of BEPI and
Subsidiary.
(iv) Interim Balance Sheet. BEPI shall have supplied to
PCG and JCF an interim balance sheet as of a date no
16
more than five business days prior to the Closing
Date (the "Closing Balance Sheet").
12. Best Efforts. Each party shall use its best efforts to cause all conditions
to the Closing to be fulfilled as soon as possible.
13. Termination. Any party who has not theretofore breached any provision of
this Agreement (including such party's obligations to use its best efforts to
satisfy conditions for the Closing) may terminate this Agreement by notice to
the other parties if all conditions to the Closing shall not have been satisfied
by the close of business on January 31, 1997. Such termination shall not limit
any other right or remedies which the terminating party may have against any
other party.
14. Indemnity
(a) The term "Representing Group" means each of (i) PCG and JCF,
and (ii) BEPI and Subsidiary.
(b) Indemnity. Each member of each Representing Group (each, an
"Indemnitor") hereby jointly and severally agrees to indemnify
each member of the other Representing Group (each, an
"Indemnitee") and hold it and them harmless against and in
respect of the following:
(A) any and all loss, liability or damage
suffered or incurred by the Indemnitee by
reason of any untrue representation, breach
of warranty or non-fulfillment of any
covenant by any Indemnitor; and
(B) any and all actions, suits, proceedings,
claims, demands, assessments, judgments,
costs, and expenses, including, without
limitation, legal fees and expenses,
incident to any of the foregoing or incurred
in investigating or attempting to avoid the
same or to oppose the imposition thereof, or
in enforcing this indemnity.
14 Miscellaneous
(a) Successors, Assigns and Third Parties. This Agreement shall
inure to the benefit of and be binding upon the parties hereto
and their respective successors and assigns; provided,
however, that, except as otherwise expressly provided herein,
none of the parties hereto may make any assignment of this
Agreement or any interest herein without the prior written
consent of the other parties hereto. Nothing herein expressed
or implied is intended or shall be construed to confer upon or
give to any person, firm or corporation, other than the
parties hereto and their respective successors and assigns,
any rights or remedies under or by reason of this Agreement.
(b) Governing Law; Jurisdiction. This Agreement shall in all
respects be interpreted, construed and governed by and in
accordance with the internal substantive laws of the State of
Delaware, disregarding principles of conflict of laws and the
like. The federal and state courts in New York or New Jersey
shall have exclusive jurisdiction over all matters relating to
this Agreement.
(c) Severability. Each section, subsection and lesser section of
this Agreement constitutes a separate and distinct
undertaking, covenant and/or provision hereof. In the event
that any provision of this Agreement shall finally be
determined to be unlawful, such provision shall be deemed
17
severed from this Agreement, but every other provision of this
Agreement shall remain in full force and effect.
(d) Notices. Except as otherwise expressly provided herein, any
notice, service of process, consent, or other communication
required or permitted to be given hereunder shall be in
writing and shall be deemed to have been given when received,
and shall be addressed as follows:
(i) If to BEPI or Subsidiary, to it at:
c/o BEPI at its address set forth above,
with a copy to:
Xxxx X. Xxxxx, Esq.
Xxxxxxx Xxxxxxx & Xxxxxxx, PA
00 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
(i) If to PCG or to JCF, to it at
c/o X.X. Xxxx & Associates,
000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Attn: J.S. Pan
with a copy to:
Xxxxx X. Xxxxxx, Esq.
Law Offices of Xxxxx X. Xxxxxx
Fifth Avenue - 24th Floor
New York, New York 10175
or at such other address or addresses as the party addressed
may from time to time designate in writing. Any communication
dispatched by telegram or telex shall be confirmed by letter.
(a) Expenses. All legal and other costs and expenses incurred in
connection herewith and the transactions contemplated hereby
shall be paid by the party incurring such expenses. Without
limiting the generality of the foregoing, any and all fees and
expenses of any attorneys of the Constituent Corporations
incurred in connection with this Agreement or the transactions
contemplated hereby shall be borne by the Constituent
Corporation incurring such expense and shall not be assumed by
any other Constituent Corporation.
(b) Headings. The headings in this Agreement are intended solely
for convenience of reference and shall be given no effect in
the construction or interpretation of this Agreement.
(c) Counterparts and Facsimiles. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an
original but all of which shall constitute the same agreement.
This Agreement may be signed by facsimile.
(d) Entire Agreement. This Agreement sets forth all understandings
of the parties. It may not be changed or terminated orally.
IN WITNESS WHEREOF, the parties hereto have caused their signatures to be
affixed to this Agreement as of the date first above written.
18
BUREAU OF ELECTRONIC PUBLISHING, INC. JINAN CHEMICAL FIBRE CORPORATION
By: /s/ Xxxxx Xxxxxx By: /s/ Li De Yuan
--------------------------------- ------------------------------
Title: Director Title: Vice Chairman
------------------------------ ---------------------------
BEPI ACQUISITION CORPORATION PACIFIC CHEMICAL GROUP LIMITED
By: /s/ Xxxxx Xxxxxx By: /s/ Li De Yuan
--------------------------------- ------------------------------
Title: Director Title: Vice Chairman
------------------------------ ---------------------------
19
