ACQUISITION AGREEMENT
AGREEMENT dated the _____ day of September, 2001
(the "Agreement"), by, between and among BUSINESS PLAN EXCHANGE,
INC., a company incorporated under the laws of the State of
Delaware (hereinafter "BPX"), the persons listed on Exhibit "A"
attached hereto and made a part hereof, being all of the
shareholders and executive officers of BPX (hereinafter
referred to as "MANAGEMENT"); JAVIEN INC., a company
incorporated under the laws of the Bahamas, having its
registered office in Nassau, the Bahamas (hereinafter
referred to as "JAVIEN"); and the persons listed on Exhibit
"A" attached hereto and made a part hereof (hereinafter
referred to as the "SELLERS").
WHEREAS, the SELLERS own a total of 27,140,000 shares of
common stock, $1.00 par value, of JAVIEN, said shares
representing over ninety-five (95%) percent of the issued and
outstanding common stock of JAVIEN.
AND WHEREAS, the SELLERS desire to sell and BPX desires to
purchase all of the outstanding shares of common stock of JAVIEN
held by the SELLERS;
AND WHEREAS, BPX desires to acquire all the remaining issued
and outstanding shares of JAVIEN common stock not held by the
Sellers, as well as certain other securities issued by JAVIEN and
currently outstanding;
NOW, THEREFORE, in consideration of the mutual covenants,
agreements, representations and warranties herein contained, the
parties hereby agree as follows:
1. Purchase and Sale - The SELLERS hereby agree to sell,
transfer, assign and convey to BPX and BPX hereby agrees to
purchase and acquire from the SELLERS, a total of 27,140,000
shares of common stock of JAVIEN, which equates to over ninety-
five percent (95%) percent of all of JAVIEN's currently issued
and outstanding common stock (the "JAVIEN Principal's Common
Shares"), in a tax-free stock-for-stock acquisition.
2. Purchase Price - The aggregate purchase price to be paid by
BPX for the JAVIEN Principal's Common Shares shall be 11,431,200
newly issued shares of BPX $0.001 par value voting common stock
as adjusted for a 1 for 3 reverse stock split (following such
reverse split "Adjusted Shares") to be effected by BPX prior to
the closing of the transactions contemplated hereby. The
Adjusted Shares will be issued to the individual SELLERS in
accordance with Exhibit "A-1" attached hereto. As a result of
the issuance of the Adjusted Shares, the Sellers shall own
approximately ninety-one and four tenths (91.4%) percent of the
Adjusted Shares of BPX, resulting is a total issued amount of BPX
common stock following the 1 for 3 reverse stock split and
issuance of Adjusted Shares to the Sellers of 12,502,733 Adjusted
Shares.
3. Remaining JAVIEN Shares - As soon as reasonably possible
following the execution of this Agreement, BPX shall make a
formal offer (the "Minority Offer") to acquire the remaining
1,350,000 shares of common stock of JAVIEN not held by the
SELLERS, with appropriate documentation evidencing such offer to
be filed in the Province of Alberta, Canada, the jurisdiction of
residence of most minority JAVIEN stockholders, and any other
jurisdiction deemed appropriate by JAVIEN. BPX shall offer a
total of 568,800 Adjusted Shares for all such remaining shares of
JAVIEN common stock, or 0.4213 of an Adjusted Share for each
share of JAVIEN common stock outstanding.
4. Other JAVIEN Securities - JAVIEN currently has certain
outstanding share acquisition rights, both options and warrants
to acquire shares of JAVIEN common stock, which BPX also desires
to acquire. As such, BPX shall take steps to adopt a stock
option plan (an "Option Plan") similar to the Option Plan
currently used by JAVIEN and shall grant options thereunder to
current holders of stock options granted under JAVIEN's Option
Plan, in exchange for the surrender and cancellation of such
existing stock options. Similarly, BPX shall offer warrants to
acquire Adjusted Shares to current holders of valid warrants to
acquire shares of JAVIEN common stock. JAVIEN has also issued a
convertible debenture in the original principal amount of
CDN$97,000.00 which is convertible into JAVIEN common stock and
BPX shall offer a replacement debenture to of identical terms (as
adjusted for the BPX Adjusted Share to JAVIEN common share
exchange ratio provided in paragraph 3, above) should this
instrument remain outstanding at the closing of the principal
transaction contemplated hereby involving BPX and the SELLERS.
Any such transactions involving other securities of JAVIEN shall
be undertaken by BPX at the discretion and on the direction of
JAVIEN and, if undertaken, shall replace such JAVIEN common stock
acquisition rights with the rights to acquire Adjusted Shares on
a pro-rata basis to the exchange ratio for Adjusted shares
issuable for shares of JAVIEN common stock provided in paragraphs
2 and 3 of this Agreement.
5. Warranties Representations and Covenants of JAVIEN and
SELLERS - In order to induce BPX to enter into this Agreement and
to complete the transaction contemplated hereby, JAVIEN and the
SELLERS jointly and severally warrant and represent to BPX that:
(a) Organization and Standing. JAVIEN is a corporation
duly organized, validly existing and in a good standing under the
laws of the Bahamas, is qualified to do business as a foreign
corporation in every other state or jurisdiction in which it
operates to the extent required by the laws of such states and
jurisdictions, and has full power and authority to carry on its
business as now conducted and to own and operate its assets,
properties and business. Attached hereto as Exhibit "B" are true
and correct copies of JAVIEN's Certificate of Incorporation,
amendments thereto and all current by-laws of JAVIEN. No changes
thereto will be made in any of the Exhibit "B" documents before
the closing. JAVIEN has no subsidiaries except as listed or any
investments or ownership interests in any corporation,
partnership, joint venture or other business enterprise which is
material to its business.
(b) Capitalization. JAVIEN's entire authorized equity capital
consists of 100,000,000 common shares of $1.00 par value, of
which 28,490,000 shares of Common Stock are currently issued and
outstanding. As of the Closing Date, there will be no other
voting or equity securities authorized or issued, nor any
authorized or issued securities convertible into voting stock,
and no outstanding subscriptions, warrants, calls, options,
rights, commitments or agreements by which JAVIEN or the SELLERS
are bound, calling for the issuance of any additional shares of
common stock or any other voting or equity security, except as
set forth in Exhibit "JAVIEN's", attached hereto. The 27,140,000
issued and outstanding JAVIEN common stock to be transferred by
SELLERS constitute over ninety-five (95%) percent of the
currently issued and outstanding shares of common stock of JAVIEN
which includes inter-claim, that same percentage of JAVIEN,
voting power, right to receive dividends, when, as and if
declared and paid, and the right to receive the proceeds of
liquidation attributable to common stock, if any.
(c) Ownership of JAVIEN Shares. Each SELLER warrants and
represents, severally, that as of the date hereof, such SELLER is
the sole owner of the shares of JAVIEN common stock listed by
his, her or its name on Exhibit "A", free and clear of all liens,
encumbrances, and restrictions whatsoever, except that the shares
of JAVIEN common stock so listed have not been registered under
the Securities Act of 1933, as amended (the "33 Act"), or any
applicable securities laws. By SELLERS' transfer of the JAVIEN
Common Shares to BPX pursuant to this Agreement. BPX will thereby
acquire over 95% of the outstanding capital stock of JAVIEN, free
and clear of all liens, encumbrances and restrictions of any
nature whatsoever, except by reason of the fact that the shares
of JAVIEN common stock so acquired will not have been registered
under the 33 Act, or any applicable State securities laws.
(d) Taxes. JAVIEN has filed all federal, provincial and local
income or other tax returns and reports that it is required to
file with all governmental agencies, wherever situate, and has
paid or accrued for payment all taxes as shown on such returns,
such that a failure to file, pay or accrue will not have a
material adverse effect on JAVIEN. JAVIEN's income tax returns
have never been audited by any authority empowered to do so.
(e) Pending Actions. There are no known material legal
actions, lawsuits, proceedings or investigations, either
administrative or judicial, pending or threatened, against or
affecting JAVIEN, or against the SELLERS that arrive out of their
operation or ownership of JAVIEN, except as described in Exhibit
"C" attached hereto. JAVIEN is not knowingly in material
violation of any law, material ordinance or regulation of any
kind whatever, including, but not Inc to laws, rules and
regulations governing the sale of its services, the 33 Act, the
Securities Exchange Act of 1934, as amended (the "34 Act"), the
Rules and Regulations of the U.S. Securities and Exchange
Commission ("SEC"), or the Securities Laws and Regulations of any
state or nation.
(f) Government and Regulation. JAVIEN holds the licenses and
registrations set forth on Exhibit "D" hereto from the
jurisdictions set forth therein, which licenses and registrations
are all of the licenses and registrations necessary to permit
JAVIEN to conduct its current business. All of such licenses and
registrations are in full force and effect, and there are no
proceedings, hearings or other actions pending that may affect
the validity or continuation of any of them. No approval of any
other trade or professional association or agency of government
other than as set forth on Exhibit "D" is required for any of the
transactions effected by this Agreement, and the completion of
the transactions contemplated by this Agreement will not, in and
of themselves, affect or jeopardize the validity or continuation
of any of them.
(g) Ownership of Assets Except as set forth in Exhibit "E"
attached hereto, JAVIEN has good, marketable title, without any
liens or encumbrances of any nature whatever, to all of the
following, if any; assets, properties and rights of every type
and description, including, without limitation, all cash on hand
and in banks, certificates of deposit, stocks, bonds, and other
securities, good will, customer lists, its corporate name and all
variants thereof, trademarks and trade names, copyrights and
interests thereunder, licenses and registrations, pending
licenses and permits and applications therefor, inventions,
processes, know-how, trade secrets, real estate and interests
therein and improvements thereto, machinery, equipment, vehicles,
notes and accounts receivable, fixtures, rights under agreements
and leases, franchises, all rights and claims under insurance
policies and other contracts of whatever nature, rights in funds
of whatever nature, books and records and all other property and
rights of every kind and nature owned or held by JAVIEN as of
this date, and will continue to hold such title on and after the
completion of the transactions contemplated by this Agreement;
nor, except in the ordinary course of its business, has JAVIEN
disposed of any such asset since the date of the most recent
balance sheet described in Section 3(0) of this Agreement.
(h) No Interest in Suppliers, Customers, Landlords or
Competitors. Neither the SELLLERS nor any member of their
families or their affiliates, as applicable, have any material
interest of any nature whatever in any supplier, customer,
landlord or competitor of JAVIEN .
(i) No Debt Owed by JAVIEN to SELLERS. Except as set forth in
Exhibit "F" attached hereto, JAVIEN does not owe any money,
securities, or property to any of the SELLERS or any member of
their families or to any company controlled by such a person,
directly or indirectly. To the extent that the SELLERS may have
any undisclosed liability to pay any sum or property to any such
person or equity or any member of their families such liability
is hereby forever irrevocably released and discharged.
(j) Complete Records. All of JAVIEN's books and records,
including, without limitation, its books of account, corporate
records, minute book, stock certificate books and other records
are up-to-date, complete and reflect accurately and fairly the
conduct of its business in all material respects since its date
of incorporation.
(k) No Misleading Statements or Omissions. Neither this
Agreement nor any financial statement, exhibit, schedule or
document attached hereto or presented to BPX in connection
herewith, contains any materially misleading statement or omits
any fact or statement necessary to make the other statements or
facts therein set forth not materially misleading.
(l) Validity of this Agreement. All corporate and other
proceedings required to be taken by the SELLERS and by JAVIEN in
order to enter into and carry out this Agreement have been duly
and properly taken. This Agreement has been duly executed by the
SELLERS and by JAVIEN, and constitutes the valid and binding
obligation of each of them, enforceable in accordance with its
terms except to the extent Inc by applicable bankruptcy,
reorganization, insolvency, moratorium or other laws relating to
or effecting generally the enforcement of creditors rights. The
execution and delivery of this Agreement and the carrying out of
its purposes will not result in the breach of any of the terms
and conditions of, or constitute a default under or violate,
JAVIEN's Certificate of Incorporation or By-Laws, or any material
agreement, lease, mortgage, bond, indenture, license or other
material document or undertaking, oral or written, to which
JAVIEN or the SELLERS is a party or is bound or may be affected,
nor will such execution, delivery and carrying out violate any
law, rule or regulation or any order, with injunction or decree,
of any court, regulatory agency or other governmental body; and
the business now conducted by JAVIEN can continue to be so
conducted after completion of the transaction contemplated
hereby, with JAVIEN as a wholly owned subsidiary of BPX.
(m) Concepts and Approvals: Compliance with Laws. Neither
JAVIEN nor the SELLERS are required to make any filing with, or
obtain the consent or approval of, any person or entity as a
condition to the consummation of the transactions contemplated by
this Agreement. The business of JAVIEN has been operated in
material compliance with all laws, rules, and regulations
applicable to its business, including, without limitation, those
related to securities matters, trade matters, environmental
matters, public health and safety, and labor and employment.
(n) Access to Books and Records. BPX will have full and free
access to JAVIEN's books during the course of this transaction
prior to Closing, during regular business hours, on reasonable
notice.
(o) JAVIEN Financial Statements. Before Closing, JAVIEN's
financial statements as of and for the period from inception to
the end of its latest fiscal year and latest fiscal quarter, will
be provided to BPX and will be annexed hereto as Exhibit "G"; the
JAVIEN financial statements will accurately describe JAVIEN's
financial position as of the dates thereof. The JAVIEN financial
statements will have been prepared in accordance with generally
accepted accounting principles in the United States ("GAAP") (or
as permitted by regulation S-X, S-B, and/or the rules promulgated
under the 33 Act and the 34 Act) and for the period from
inception to the end of its latest fiscal year audited by
independent certified public accountants with SEC experience,
with unaudited financial statements prepared in accordance with
GAAP fro any fiscal quarter(s) completed subsequent to JAVIEN's
fiscal year end and prior to the date of Closing.
(p) JAVIEN's Corporate Summary. JAVIEN's current Business Plan,
(attached hereto as Exhibit "L") accurately describes JAVIEN's
business assets, proposed operations and management as of the
date thereof; since the date of the Corporate Plan, there has
been no material adverse change in the Business Plan and no
material adverse change in JAVIEN; provided that no warranties or
representations are made as to any financial projections.
6. Warranties, representations and Covenants of BPX and
Management of BPX ("MANAGEMENT"). In order to induce the
SELLERS and JAVIEN to enter into this Agreement and to complete
the transaction contemplated hereby, BPX and MANAGEMENT jointly
and severally warrant, represent and covenant to JAVIEN and
SELLERS that:
(a) Organization and Standing. BPX is a corporation duly
organized, validly existing and in good standing under the laws
of the State of Delaware, will be qualified to do business as a
foreign corporation in every other state and jurisdiction in
which it operates to the extent required by the laws of such
states or jurisdictions, and will have full power and authority
to carry on its business as now conducted and to own and operate
its assets, properties and business. BPX has no subsidiaries or
any other investments or ownership interests in any corporation,
partnership, joint venture or other business enterprise.
(b) Capitalization. BPX's entire authorized equity capital as of
closing shall consist of 25,000,000 shares of voting common
stock, $0.001 par value. As of the Closing, will have issued and
outstanding 3,214,600 shares of voting common stock, $0.001 par
value before giving effect to the reverse stock split contemplate
hereby and no shares of preferred stock issued. Upon effecting
the 1 for 3 reverse stock split contemplated hereby, BPX shall
have outstanding 1,071,533 Adjusted Shares. Upon issuance, all
of the BPX Common Stock will be validly issued, fully paid and
non-assessable. The relative rights and preferences of BPX's
equity securities are set forth on the Certificate of
Incorporation, as amended and BPX's By-laws (Exhibit "H" hereto).
There are no other voting or equity securities authorized or
issued, not any authorized or issued securities convertible into
voting stock, and no outstanding subscriptions, warrants, calls,
options, rights, commitments or agreements by which BPX is bound,
calling for the issuance of any additional shares of common stock
or any other voting or equity security. The By-laws of BPX
provide that a simple majority of the shares voting at a stock
holder's meeting at which a quorum is present may elect all of
the directors of BPX. Cumulative voting is not provided for by
the By-Laws or Certificate of Incorporation of BPX.
(c) Ownership of Shares. By BPX's issuance of Adjusted Shares to
the SELLERS pursuant to this Agreement, the SELLERS will thereby
acquire good, absolute marketable title thereto, free and clear
of all liens, encumbrances and restrictions of any nature
whatsoever, except by reason of the fact that such Adjusted
Shares will not have been registered under the 33 Act, or any
applicable state securities laws.
(d) Significant Agreements. BPX is not and will not at Closing
be bound by any of the following:
i) Employment, advisory or consulting contract (except as
described in Section 12 herein).
ii) Plan providing for employee benefits of any nature.
iii) Lease with respect to any property or equipment.
iv) Contract of commitments for any current expansion.
v) Contract or commitment pursuant to which it has
assumed, guaranteed, endorsed or otherwise become liable for any
obligation of any other person, firm or organization.
vi) Contract, agreement, understanding, commitment or
arrangement either than in the normal course of business, not set
forth in the Agreement or an Exhibit hereto.
vii) Agreement with any person relating to the dividend,
purchase or sale of securities, that has not been settled by the
delivery of payment of securities when due, and which remains
unsettled upon the date of this Agreement.
(e) Taxes. BPX has filed all federal, state and local income or
other tax returns and reports that it is required to file with
all governmental agencies, wherever situate, and has paid all
taxes as shown on such returns. All of such returns are true and
complete. BPX's income tax returns have never been audited by say
authority empowered to do so.
(f) Absence of Liabilities. As of the Closing Date BPX will have
no liabilities of any kind or nature, fixed or contingent, except
for the costs, including legal and accounting fees and other
expenses, in connection with this transaction, for which BPX
agrees to be responsible and to pay in full at or before the
Closing.
(g) No Pending Actions. To the best of MANAGEMENT's knowledge,
there are no legal actions, lawsuits, proceedings or
investigations, either administrative or judicial, pending or
threatened against or affecting BPX, or against any of the BPX
MANAGEMENT and arising out of their operation of BPX. BPX has
been in compliance with, and has not received notice of violation
of any law, ordinance of any kind whatever, including, but not
Inc to, the 33 Act, the Rules and Regulations of the SEC, or the
Securities Laws and Regulations of any sale. BPX is not an
investment company as defined in, or otherwise subject to
regulation under, the Investment Company Act of 1940. BPX is not
required to file reports pursuant to either Section 13 or Section
15 (d) of the 34 Act.
(h) Corporate Records. All of BPX's books and records,
including, without limitation, its books of account, corporate
records, minute book, stock certificate books and other records
are up-to-date complete and reflect accurately and fairly the
conduct of its business in all respects since its date of
incorporation; all of said books and records will be made
available for inspection by JAVIEN's authorized representatives
prior to the Closing as provided by Section 4(I) herein, and will
be delivered to BPX's new management at the Closing.
(i) No Misleading Statements or Omissions. Neither this
agreement nor any financial statement, exhibit, schedule or
document attached hereto or presented to JAVIEN in connection
herewith contains any materially misleading statement, or omits
any fact or statement necessary to make the other statements or
facts therein set forth not materially misleading.
(j) Validity of this Agreement. All corporate and other
proceedings required to be taken by BPX in order to enter into
and to carry out this Agreement will have been duly and properly
taken at or before the Closing. This Agreement has been duly
executed by BPX, constitutes a valid and binding obligation of
BPX enforceable in accordance with its terms. The execution and
delivery of this Agreement and the carrying out of its purposes
will not result in the breach of any of the terms or conditions
of, or constitute a default under or violate, BPX's Certificate
of Incorporation- or By-Laws, or any agreement, lease, mortgage,
bond, indenture, license or other document or undertaking, oral
or written, to which BPX is a party or is bound or may be
affected nor will such execution, delivery and carrying out
violate any law, rule or regulation or any order, writ,
injunction or decree of any court, regulatory agency or other
governmental body.
(k) Consents and Approvals, Compliance with Laws. Except for
the notices to be filed as described in Section 7(a) herein,
neither BPX nor MANAGEMENT is required to make any filing with,
or obtain the consent or approval of, any person or entity as a
condition to the consummation of the transactions contemplated by
this Agreement. The business of BPX has been operated in
compliance with all laws, rules and regulations applicable to its
business, including, without limitation, those related to
securities matters, trade matters, environmental matters, public
health and safety, and labor and employment.
(l) Access to Books and Records. JAVIEN and SELLERS will have
full and free access to BPX's books and records during the course
of this transaction prior to and at the Closing on reasonable
notice.
(m) BPX Information. BPX is a company currently reporting with
the SEC and hereby warrants that all filings required to be made
with the SEC under the 33 Act and the 34 Act and the regulations
thereunder shall be current as at the Closing. JAVIEN and the
SELLERS acknowledge their opportunity to review the relevant
filings with the SEC which accurately reflect the information
relating to BPX and the financial condition of BPX. There will
have been no material change in the business, assets or condition
(financial or otherwise) of BPX since the date of BPX's most
recent filing with the SEC to the Closing.
(n) BPX Financial Condition. As of the Closing, BPX will have no
assets or liabilities, except as disclosed in its most recent
filing with the SEC, being the Annual Report on Form 10-KSB for
the fiscal year of BPX ended June 30, 2001 to be filed prior to
Closing.
(o) Directors and Shareholders Approval. As of the Closing,
BPX's Board of Directors and Shareholders, by meeting or consent
shall have properly authorized the matters described in section
7(a)(iv)herein.
(p) The BPX Shares. All of the BPX Common Shares issued to
SELLERS shall be validly issued, fully-paid non-assessable shares
of BPX Common Stock, with full voting rights, dividend rights,
and right to receive the proceeds of liquidation , if any, as set
forth in BPX's Certificate of Incorporation.
7. Term: Indemnification.
(a) Representations and Warranties. All representations,
warranties, covenants and agreements made herein and in the
exhibits attached hereto shall survive the execution and delivery
of this Agreement and payment pursuant thereto. BPX and each
member of MANAGEMENT of BPX hereby agrees, jointly and severally,
to indemnify, defend, and hold harmless JAVIEN from and against
any damage, loss, liability, or expense (including without
limitation, reasonable expenses of investigation and reasonable
attorney's fees) arising out of any wilful material
misrepresentation of any fact, warranty, covenant, or agreement
made by BPX in this Agreement. JAVIEN and each of the SELLERS
hereby agrees, jointly and severally, to indemnify, defend, and
hold harmless BPX from and against any damage, loss, liability,
or expense (including without limitation, reasonable expenses of
investigation and reasonable attorney's fees) arising out of any
wilful material misrepresentation of any fact, warranty,
covenant, or agreement made by JAVIEN in this Agreement.
(b) Issuances of Other Securities. JAVIEN and each of the
SELLERS hereby agree, jointly and severally, to indemnify,
defend, and hold harmless the directors and officers of BPX from
and against any damage, loss, liability, or expense (including
without limitation, reasonable expenses of investigation and
reasonable attorney's fees) arising out of their approval or any
actions as they relate to the implementation or issuance of
securities under the Option Plan and/or the convertible debenture
referred to herein.
8. Restricted Shares: Legend. The total amount of the BPX
Common Shares issued to SELLERS hereunder will be "restricted
securities" as defined in Rule 144 under the 33 Act and each
stock certificate issued to SELLERS hereunder, will bear the
usual restrictive legend to such effect. Appropriate Stop
Transfer instructions will be given to BPX'S stock transfer
agent.
9. Conditions Precedent to Closing (a) The obligations of
JAVIEN and the SELLERS under this Agreement shall be and are
subject to fulfillment, prior to or at the Closing, of each of
the following conditions:
i) That BPX's and MANAGEMENT's representations and warranties
contained herein shall be true and correct at the time of Closing
as if such representations and warranties were made at such time,
and MANAGEMENT will deliver an executed certification confirming
the foregoing;
ii) That BPX and MANAGEMENT shall have performed or complied
with all agreements, terms and conditions required by this
Agreement to be performed or complied with by them prior to or at
the time of the Closing;
iii) That BPX's directors and shareholders, by proper and
sufficient vote taken either by consent or at a meeting duly and
properly called and held, shall have properly approved all of the
matters required to be approved by BPX's directors and
shareholders, respectively;
iv) That BPX's Board of Directors, by proper and sufficient
vote, shall have approved this Agreement and the transactions
contemplated hereby; approved the change of BPX's corporate name
to JAVIEN; approved the resignation of all of BPX's current
directors and the election of up to three designees of JAVIEN to
serve as directors in place of BPX's current directors; and will
have approved such other changes as are consistent with this
Agreement and approved by JAVIEN and BPX; and
(a) The obligations of BPX and MANAGEMENT under this Agreement
shall be and are subject to fulfillment, prior to or at the
Closing of each of the following conditions:
i) That JAVIEN's and SELLERS' representations and warranties
contained herein shall be true and correct at the time of Closing
as if such representations and warranties were made at such time
and JAVIEN and the SELLERS shall deliver an executed
certification confirming the foregoing;
ii) That JAVIEN and SELLERS shall have performed or complied
with all agreements, terms and conditions required by this
Agreement to be performed or complied with by them prior to or at
the time of Closing;
iii) That JAVIEN's directors, by proper and sufficient vote taken
either by consent or at a meeting duly and properly called and
held, shall have properly approved all of the matters required to
be approved by JAVIEN's board of directors hereby; and
iv) That the SELLERS shall have each consented to the terms of
this Agreement, by instrument in writing, which instrument shall
also confirm the intent to sell their shares of JAVIEN common
stock to BPX; and
v) That JAVIEN's board of directors, by proper and sufficient
vote, shall have approved this Agreement and the transactions
contemplated hereby and will have approved such other changes as
are consistent with this Agreement and approved by JAVIEN and
BPX.
10. Further Conditions and Representations. Notwithstanding the
representations made herein, in order to induce BPX to enter into
the instant Agreement, JAVIEN and SELLERS make the following
representations and undertake to perform the following which
shall survive closing of this transaction.
(a) That within thirty (30) days of the closing of this
Agreement, the newly appointed Board of Directors and Management
of BPX shall take all steps necessary to file a Form 15(c)2-11
with the NASD and obtain a trading symbol for the company and
insure that the company common stock becomes listed on the OTC-
Bulletin Board;
(b) That the newly appointed Board of Directors and Management
of BPX shall continue to retain Xxxxx Xxxxx Xxxxxx, P.C., as the
law firm to represent BPX up to a point when the company's common
stock becomes listed on the OTC-Bulletin Board and shall issue to
Xxxxx Xxxxx Xxxxxx a sum of 100,000 Adjusted Shares which shall
be entitled to S-8 registration.
11. Termination. This Agreement may be terminated at any time
before or at Closing, by;
(a) The mutual agreement of the parties;
(b) Any party if:
i) Any legal proceeding shall have been instituted or shall be
imminently threatening to delay, restrain or prevent the
consummation of this Agreement.
Upon termination of this Agreement for any reason, in
accordance with the terms and conditions set forth in this
paragraph, each said party shall bear all costs and expenses as
each party has incurred and no party shall be liable to the
other.
12. Exhibits. All Exhibits attached hereto are incorporated
herein by this reference as if they were set forth in their
entirety.
13. Miscellaneous Provisions. This Agreement is the entire
agreement between the parties in respect of the subject matter
hereof, and there are no other agreements, written or oral, nor
may this Agreement be modified except in writing and executed by
all of the parties hereto. The failure to insist upon strict
compliance with any of the terms, covenants or conditions of this
Agreement shall not be deemed a waiver or relinquishment of such
rights or power at any other time or times.
14. Closing. The Closing of the transactions contemplated by
this Agreement ("Closing") shall take place at the offices of
Xxxxx Xxxxx Xxxxxx, P.C., attorneys for BPX, at 1:00 p.m. on
September 5, 2001 or on the first business day after the letter
of the approval of SELLERS owning at least 80% of JAVIEN's Common
Stock or the shareholders of BPX approving this Agreement and the
matters referred to in section 7(a) herein, or such other date as
the parties hereto shall mutually agree upon. At the Closing,
all of the documents and items referred to herein shall be
exchanged.
15. Prohibited Actions. Between the date hereof and the
effective date of the merger, neither Purchaser nor Seller will,
except with the prior written consent of the other:
(a) issue or sell any stock, bonds, or other corporate
securities;
(b) incur any obligation or liability (absolute or contingent),
except current liabilities incurred, and obligations under
contracts entered into, other than in the ordinary course of
business;
(c) discharge or satisfy any lien or encumbrance or pay any
obligation or liability (absolute or contingent) other than in
the ordinary course of business;
(d) make any dividend or other payment or distribution to its
shareholders or Purchase or redeem any shares of its capital
stock other than in the ordinary course of business;
(e) mortgage, pledge, create a security interest in, or subject
to lien or other encumbrance any of its assets, tangible or
intangible other than in the ordinary course of business;
(f) sell or transfer any of its tangible assets or cancel any
debts or claims except in each case in the ordinary course of
business other than in the ordinary course of business;
(g) sell, assign, or transfer any trademark, trade name, patent,
or other intangible asset;
(h) waive any right of any substantial value other than in the
ordinary course of business; or
(i) enter into any other transaction other than in the ordinary
course of business.
16. Further Instruments. From time to time, as and when
requested by the either of the parties or by its successors or
assigns, the other party will execute and deliver, or cause to be
delivered, all such deeds and other instruments; and will take or
cause to be taken such further or other action as the parties may
deem necessary or desirable in order to vest in and confirm to
the purchaser title to and possession of all its property,
rights, privileges, possessions, and franchises and otherwise to
carry out the intent and purposes of this agreement.
17. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the United States and
any applicable state laws.
18. Counterparts. This Agreement may be executed in duplicate
facsimile counterparts, each of which shall be deemed an original
and together shall constitute one and the same binding Agreement,
with one counterpart being delivered to each party hereto.
IN WITNESS WHEREOF, the parties hereto have set their hands
and seals as of the date and year above first written.
JAVIEN INC.
By: /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx, Chairman
BUSINESS PLAN EXCHANGE, INC.
By: /s/ Xxxxx Xxxxx Xxxxxx
Xxxxx Henty Xxxxxx, President
LIST OF EXHIBITS
Exhibit "A" List of Sellers
Exhibit "B" True and correct copies of JAVIEN's
Certificate of Incorporation, amendments
thereto and all current By-laws.
Exhibit "C" Any material legal actions, lawsuits,
proceedings of investigations, either
administrative or judicial, pending or
threatened, against or affecting JAVIEN, or
against the Sellers that arise out of their
operation of JAVIEN.
Exhibit "D" Evidence of JAVIEN's licenses and
registrations necessary to permit JAVIEN to
conduct its current business.
Exhibit "E" Any impediments to JAVIEN's good, marketable
title including liens or encumbrances of any
nature whatever.
Exhibit "F" Any money, securities, or property owed by
JAVIEN to either the Principals of JAVIEN or
any member of their families or to any
company controlled by such a person, directly
or indirectly.
Exhibit "G" JAVIEN's audited financial statements as of
and for the year ended March 31, 2001 and
unaudited financial statements for the
quarterly period ended June 30, 2001.
Exhibit "H" True and correct copies of BPX's Certificate
of Incorporation amendments thereto and all
current By-laws.
Exhibit "I" BPX's audited financial statements for year
ended June 30, 2001.
Exhibit "J" JAVIEN's Business Plan
Exhibit "K" Shares issuances after Closing pursuant to
acquisitions, acquisition agreements and
stock option plans
