EXCHANGE AGREEMENT
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EXCHANGE AGREEMENT, entered into and effective this 21st day of
January, 2003, by and between Currency Charting Corp. ("CCC"), a New York
corporation, and BIOFARM, INC. ("BIOF"), a Nevada corporation.
BACKGROUND
The Common Stock (par value $.001 per share) of BIOF is publicly traded
on the NASDAQ Bulletin board as the result of a Registration Statement declared
effective under the 1933 Act by the SEC in 1992. BIOF is current in all of its
required filings under the 1934 Act, is registered as a Business Development
Company under the 1940 Act, and is entering into the currency day trading
business through its wholly owned subsidiary Ideal 4X Corporation.
Subject to all of the terms and conditions set forth in this Agreement,
below is the agreement of the parties relative to the consummation of the
following transactions:
(a) at the closing of the transactions contemplated herein
("Closing"), the issuance by BIOF of an aggregate of 2,300,000
shares of BIOF Common Stock to the shareholders of CCC and the
payment of Three Hundred Fifty Thousand Dollars ($350,000);
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(b) at Closing, the delivery to BIOF by the shareholders of CCC of
100% of the issued and outstanding shares of capital stock of CCC
of whatever class; and,
(c) the filing by BIOF with the SEC under the 1934 Act of Form 10-KSB
on or before January 29, 2003, satisfying the requirements thereof
and of Form 8-K and attaching this Agreement as an Exhibit
thereto, and (within sixty days thereafter) the filing of an Form
8-K containing in compliance with Regulation S-X the required
financial statements of CCC.
NOW, THEREFORE, in consideration of the agreements, representations,
warranties and mutual covenants hereinafter set forth, and intending to be
legally bound hereby, the parties agree as follows:
1. Representations and Warranties:
(a) Representations of BIOF. BIOF represents, warrants, covenants
and agrees as follows, all of which are true and correct in
all material respects as of the date hereof and will be true
and correct in all material respects as of the Closing Date
(as defined in Paragraph 3 hereof) with the same force and
effect as if then made:
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(1) Corporate. BIOF is a corporation duly organized and
existing under Nevada law and is in good standing in the
State of Nevada, BIOF has all requisite power and
authority to conduct its business as it is now being
conducted and to own or use the properties and assets it
purports to own or use;
(2) Authority. The execution and delivery by BIOF of this
Agreement and each other agreement or instrument
contemplated by this Agreement, the performance by
BIOF of its covenants and obligations under this
Agreement, and the consummation by BIOF of the
transactions contemplated by this Agreement, have
been authorized by all necessary corporate action.
Assuming due execution and delivery, this Agreement
constitutes the valid and legally binding obligation
of BIOF and is enforceable in accordance with its
terms.
(3) No Violation. Neither the execution and delivery of
this Agreement, nor the consummation of the
transactions contemplated by this Agreement:
(A) violates any provisions of any of BIOF's
organizational documents;
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(B) violates any statute, ordinance, law, writ,
injunction, ruling, regulation, order, judgment or
decree of any court or governmental agency or board
("Laws") by which BIOF or any of its assets or
properties is bound, which violation could reasonably
be expected to have a material, adverse effect on the
financial position, results of operations or business
of BIOF; or
(C) conflicts with, violates, or will result in any breach
of (or give rise to any right of termination,
cancellation, modification, amendment, rescission,
refusal to perform or acceleration of) any of the
terms of, or constitute a default under, or result in
the creation of any lien pursuant to the terms of, any
note, bond, lease, mortgage, deed of trust, franchise,
guaranty, certificate of occupancy, indenture,
license, permit, contract or agreement ("Contracts")
or other instrument or obligation to which BIOF is a
party or by which BIOF's assets are encumbered and
which, individually or in the aggregate, could
reasonably be expected to have a material adverse
effect on the financial position, results of
operations or business of BIOF;
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(4) Regarding Financial Statements. All of BIOF's audited
financial statements, including, but not limited to,
BIOF's audited consolidated balance sheet (including the
notes thereto), and the related audited consolidated
statement of income, changes in stockholders' equity and
cash flow for the two year fiscal period ended October 31,
2001 (the "BIOF Audited Financial Statements"), and all of
BIOF's unaudited financial statements for the fiscal
quarters ended January 31, April 30, and July 31, 2002
(the "BIOF Unaudited Financial Statements"), fairly
present, in all material respects, the financial condition
and the results of operations, changes in stockholders'
equity and cash flow of BIOF as of the respective dates
thereof and for the accounting periods referenced therein,
all in accordance with generally accepted accounting
principles and practices applied on a consistent basis,
and are collectively referred to herein as the "BIOF
Financial Statements."
(5) No Omissions. This Agreement and the information furnished
by BIOF, whether set forth in this Agreement or in any
filing made by BIOF under the 1934 Act, contains no untrue
statement of a material fact and does not omit to state a
material fact necessary to make the statements made not
misleading.
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(b) Representations of CCC. CCC represents, warrants, covenants
and agrees as follows, all of which are true and correct in
all material respects as of the date hereof and will be true
and correct in all material respects as of the Closing Date
with the same force and effect as if then made:
(1) Corporate. CCC is a corporation duly organized and
existing under New York law and is in good standing in the
State of New York. CCC has all requisite power and
authority to conduct its business as it is now being
conducted and to own or use the properties and assets it
purports to own and use, CCC is registered to do business
in all jurisdictions where the failure to obtain such
registration could reasonably be expected to result in a
material adverse effect on the financial position, results
of operations or business of CCC. CCC is in compliance
with all federal and state regulations applicable to the
business conducted by CCC;
(2) Authority. The execution and delivery by CCC of this
Agreement and each other agreement or instrument
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contemplated by this Agreement, the performance by CCC of
its covenants and obligations under this Agreement, and
the consummation by CCC of the transactions contemplated
by this Agreement, have been authorized by all necessary
corporate action. Assuming due execution and delivery, the
Agreement constitutes the valid and legally binding
obligation of CCC and is enforceable in accordance with
its terms;
(3) No Violation. Neither the execution and delivery of this
Agreement, nor the consummation of the transactions
contemplated by this Agreement:
(A) violates any provision of any of CCC's organizational
documents;
(B) violates any statute, ordinance, law, writ,
injunction, ruling, regulation, order, judgment or
decree of any court or governmental agency or board
("Laws") by which CCC or any of its assets or
properties is bound, which violation could reasonably
be expected to have a material adverse effect on the
financial position, results of operations or business
of CCC; or,
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(C) conflicts with, violates or will result in any breach
of (or give rise to any right of termination,
cancellation, modification, amendment, rescission,
refusal to perform or acceleration of) any of the
terms of, or constitute a default under, or result in
the creation of any lien pursuant to the terms of, any
note, bond, lease, mortgage, deed of trust, franchise,
guaranty, certificate of occupancy, indenture,
license, permit, contract or agreement ("Contracts")
or other instrument or obligation to which CCC is a
party or by which CCC's assets are encumbered and
which, individually or in the aggregate, could
reasonably be expected to have a material adverse
effect on the financial position, results of
operations or business of CCC;
(4) Regarding Financial Statements. All of CCC's audited
financial statements, including CCC's opening audited
balance sheet (including the notes thereto) (the "CCC
Opening Audited Financial Statements"), fairly present, in
all material respects, the financial condition of CCC as
of the date thereof, in accordance with generally accepted
accounting principles and practices, and is referred to
herein as the "CCC Opening Financial Statements."
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(5) No Omissions. This Agreement and the information furnished
by CCC, whether set forth in this Agreement or in any
document, contains no untrue statement of a material fact
and does not omit to state a material fact necessary to
make the statements made not misleading.
2. Conduct of the Business. Other than as contemplated by this
Agreement, each of CCC and BIOF covenants and agrees that, from
and after the date hereof and until Closing, neither will:
(a) Operation of its Business. Conduct its business, or introduce
any material change in its business practices or the
accounting methods in respect of its business, except in a
manner consistent with prior practices; provided, however,
that nothing contained herein shall prevent CCC from acquiring
additional businesses in any manner satisfying the business
judgment of CCC;
(b) Payment of Certain Indebtedness. Except in the ordinary course
of Business, pay, discharge or liquidate any outstanding
indebtedness or incur any obligation not relating to the
conduct of its business;
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(c) Books and Records. Fail to maintain its books and records in
accordance with sound business practices, on a basis
consistent with prior practice;
(d) No Solicitation. For a period of sixty (60) days from the date
hereof (the "Non-Solicitation Period"), neither directly nor
indirectly, (i) solicit or initiate any Acquisition Proposal
(as hereinafter defined), or (ii) engage in negotiations with,
or disclose any non-public information relating to it or
afford access to its properties, books and records to any
person or entity in connection with any Acquisition Proposal.
For purposes of this Agreement, "Acquisition Proposal" means
any offer or proposal for, or any written indication on
interest in, a merger, acquisition or other business
combination involving either CCC or BIOF, or the acquisition
of any equity interest in either CCC or BIOF, other than the
transactions contemplated by this Agreement; provided,
however, that CCC is not precluded from taking any action
which, in its business judgment, furthers the business of CCC
and is entered into on terms consistent with this Agreement;
and
(e) make any announcement or submit any filing(s) to the SEC
without having received the approval of the other party
hereto.
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3. Closing Date. Provided all conditions precedent have been
satisfied, closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the principal office
of CCC not more than sixty (60) days from the date hereof (the
"Closing Date"), or on such other date and at such other time and
place as is agreed to by the parties. Absent written confirmation
to the contrary, this Agreement shall automatically terminate in
the event that all conditions precedent have not been satisfied
prior to the Closing Date.
4. Conditions Precedent to the Obligation of CCC to Close. The
obligation of CCC and of each CCC shareholder to close and
consummate the transactions contemplated by this Agreement, is
subject to the satisfaction of the following conditions precedent,
any or all of which may be waived by CCC and by each CCC
shareholder, and BIOF agrees to use commercially reasonable
efforts to satisfy each of the following conditions precedent at
or prior to Closing;
(a) Representations and Warranties. The representations and
warranties made by BIOF shall be true and correct as of the
Closing Date with the same force and effect as if then made.
On the Closing Date, BIOF shall deliver to CCC a certificate
dated the Closing Date to such effect;
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(b) Compliance with Covenants. All of the covenants and
obligations required to be performed by BIOF or with which
BIOF is to comply at or prior to Closing, must have been duly
performed and complied with in all material respects;
(c) Other Certificates. CCC shall have received such other
certificates, instruments and other documents, in form and
substance satisfactory to CCC and its counsel, as CCC shall
have reasonably requested in connection with the consummation
of the transactions contemplated hereby; and,
(d) Biofarm Capitalization. BIOF shall have issued and outstanding
(i) no shares of its Preferred Stock and (ii) not in excess of
9,950,000 shares of its Common Stock. No shares of BIOF Common
Stock shall be reserved for issuance for any purpose
whatsoever. All options, warrants, subscriptions receivable,
intermediary shares, and other rights to acquire shares of
BIOF Common Stock shall have been exercised, issued or
cancelled. Giving effect to the 2,300,000 shares of BIOF
Common Stock to be issued to the shareholders of CCC, the
total capitalization of BIOF shall consist of no shares of
Preferred Stock and 12,250,000 shares of Common Stock of BIOF
being issued and outstanding.
5. Conditions Precedent to the Obligation of BIOF to Close. The
obligation of BIOF to close is subject to satisfaction of the
following conditions precedent, any one of which may be waived by
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BIOF in its sole discretion, and, as to each of which, CCC agrees
to use commercially reasonable efforts to satisfy at or prior to
Closing:
(a) Approval of CCC Financial Statements. Within ten (10) days of
the receipt by BIOF of the CCC Financial Statements, BIOF
shall have approved the CCC Financial Statements. BIOF shall
have also, within the same time frame, approved all other
documents or submissions delivered to BIOF by CCC pursuant to
this Agreement. Any Financial Statement, document or
submission not disapproved within such ten (10) day period by
BIOF shall be deemed to have been approved. Any basis for
disapproval shall be explicitly stated by BIOF;
(b) Approval by CCC Shareholders. This Agreement and the
obligations, representations and warranties of the CCC
shareholders described herein shall have been duly adopted or
ratified by the CCC shareholders pursuant to valid and legally
binding shareholder action; and BIOF shall be provided with a
copy of resolutions duly adopted by the CCC shareholders and
certified by the Secretary of CCC;
(c) Representations and Warranties. The representations and
warranties made by CCC herein shall be correct as of the
Closing Date with the same force and effect as if then made,
and CCC shall deliver to BIOF a certificate dated the Closing
Date to such effect; and,
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(d) Other Certificates. BIOF shall have received such other
certificates, instruments and other documents, in form and
substance satisfactory to BIOF and its counsel, as BIOF shall
have reasonably requested in connection with the consummation
of the transactions contemplated hereby.
6. Procedures at Closing. Provided all conditions precedent to
Closing have been satisfied or waived, at Closing each party shall
execute and deliver such other instruments, certificates,
authorizations, releases, resolutions and documents as may be
necessary to effect the transactions described in or as is
otherwise required by this Agreement and the following shall
occur:
(a) Issuance of BIOF Common Stock. BIOF shall issue and deliver to
the CCC shareholders an aggregate of 2,300,000 shares of
unregistered BIOF Common Stock, fully paid and non-assessable,
free and clear of all liens and encumbrances of any kind, to
be distributed among the CCC shareholders as the latter shall
determine. Such issuance shall constitute an exempt
transaction pursuant to Section 4(2) of the 1933 Act and such
exemption shall be appropriately documented. The 2,300,000
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shares shall be appropriately legended and stop transfer
instructions shall be issued to the Transfer Agent for BIOF
Common Stock.
(b) Transfer of CCC Capital Stock to BIOF. Simultaneously with the
issuance of the BIOF Common Stock described in Paragraph 7(a)
above, each CCC shareholder will assign and transfer to BIOF
all of such CCC shareholder's right, title and interest in and
to all of the capital stock of CCC owned by such shareholder.
To do so, each CCC shareholder will deliver to BIOF its stock
certificate representing all of the CCC capital stock owned by
such CCC shareholder, such certificate to be duly endorsed in
blank or accompanied by an irrevocable stock power and
assignment separate from certificate and endorsed in blank.
All signatures on stock certificates and stock powers shall
bear appropriate Medallion signature guarantees from a bank,
trust company or member of a national securities exchange.
7. Procedures after Closing. Following closing, each of CCC and BIOF
shall, from time-to-time, execute and deliver such additional
instruments, documents, conveyances or assurances and take such
other action as shall be necessary, or otherwise reasonably
requested by the other party, to confirm and assure the rights and
obligations provided for in this Agreement and render effective
the consummation of the transactions contemplated by this
Agreement.
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8. Survival of Representations; Indemnification.
(a) Survival.
(1) The representations and warranties set forth in Paragraph
1(a) and (b) of this Agreement shall survive the Closing
but shall terminate and be of no further force and effect
on the first anniversary of the Closing Date. Unless a
specific period is set forth herein (in which event such
specified period shall control), all other covenants and
agreements contained in this Agreement shall survive the
Closing and remain in effect until waived or otherwise
fulfilled,
(b) Indemnifiable Losses. The term "Indemnifiable Losses" shall
mean any and all liabilities, obligations, claims, actions,
damages, civil and criminal penalties and fines, out-of-pocket
costs and expenses (including any reasonable attorneys' and
other professional fees), relating to, resulting from or
arising out of any breach of any representation, warranty,
covenant, agreement or undertaking by the indemnifying party
and contained in this Agreement.
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(c) Indemnification by BIOF and CCC. On the terms and subject to
the limitations (if any) set forth in this Agreement, BIOF
shall indemnify, defend and hold harmless CCC and its
shareholders, and each of the past, present and future
directors, officers and employees of CCC, and CCC and its
shareholders shall indemnify, defend and hold harmless BIOF
and its shareholders, and each of its past, present and future
directors, officers and employees of BIOF, from and against
any and all Indemnifiable Losses relating to, resulting from
or arising out of any breach of any representation, warranty,
covenant, agreement or undertaking by either such party set
forth in this Agreement.
(d) Indemnification Procedure. In the case of any claim asserted
by a third party against a party entitled to indemnification
under this Agreement (the "Indemnified Party"), notice shall
be given by the Indemnified Party to the party required to
provide indemnification (the "Indemnifying Party") promptly
after such Indemnified Party has actual knowledge of any claim
as to which indemnity may be sought, and the Indemnified Party
shall permit the Indemnifying Party (at the expense of such
Indemnifying Party) to assume the defense of any claim or any
litigation resulting therefrom provided that (i) counsel for
the Indemnifying Party who shall conduct the defense of such
claim or litigation shall be reasonably satisfactory to the
Indemnified Party, (ii) the Indemnified Party may participate
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in such defense at such Indemnified Party's expense, and (iii)
the omission by any Indemnified Party to give notice as
provided herein shall not relieve the Indemnifying Party of
its indemnification obligation under this Agreement except to
the extent that such omission results in a failure of actual
notice to the Indemnifying Party and such Indemnifying Party
is materially damaged as a result of such failure to give
notice. Except with the prior written consent of the
Indemnified Party, no Indemnifying Party, in the defense of
any such claim or litigation, shall consent to entry of any
judgment or enter into any settlement that provides for
injunctive or other non-monetary relief affecting the
Indemnified Party or that does not include as an unconditional
term thereof the giving by each claimant or plaintiff to such
Indemnified Party of a release from all liability with respect
to such claim or litigation. In the event that the Indemnified
Party shall in good faith determine that the conduct of the
defense of any claim subject to indemnification hereunder or
any proposed settlement of any such claim by the Indemnifying
Party might be expected to affect adversely the Indemnified
Party or its ability to conduct its business, or that the
Indemnified Party may have available to it one or more
defenses or counterclaims that are inconsistent with one or
more of those that may be available to the Indemnifying Party
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in respect of such claim or litigation relating thereto, the
Indemnified Party shall have the right at all times to take
over and assume control over the defense, settlement
negotiations or litigation relating to any such claim at the
sole cost of the Indemnifying Party, provided that if the
Indemnified Party does so take over and assume control, the
Indemnified Party shall not settle such claim or litigation
without the written consent of the Indemnifying Party, such
consent not to be unreasonably withheld. In the event that the
Indemnifying Party does not accept the defense of any matter
as above provided, the Indemnified Party shall have the full
right to defend against any such claim or demand and shall be
entitled to settle or arrange to pay in full such claim or
demand. In any event, the Indemnifying Party and the
Indemnified Party shall cooperate in the defense of any claim
or litigation subject to this Section and the records of each
shall be available to the other with respect to such defense.
9. Legend. All shares of BIOF Common Stock to be issued to the CCC
shareholders and the Capital Raise investors, shall bear a legend
in substantially the form set forth below:
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"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"), and may not be sold, transferred, assigned, made
subject to a security interest, mortgaged, pledged,
hypothecated or otherwise disposed of unless and until
registered under the Act or an opinion of counsel for Company
is received that registration is not required under such Act."
10. Arbitration. Except in the event an equitable remedy or injunction
is sought pursuant to this Agreement, any controversy or claim
arising out of or relating to this Agreement, or the breach
thereof, shall be settled exclusively by arbitration in New York
City, New York, before three arbitrators in accordance with the
then current rules of the American Arbitration Association and
judgment upon the award rendered may be entered in the highest
court of the forum, country or state, having jurisdiction.
11. Binding Effect; No Assignment. This Agreement shall be binding
upon and shall inure to the benefit of the parties to this
Agreement and their respective successors and assigns. This
Agreement and the Exhibits attached hereto together constitute the
entire agreement of the parties with respect to the subject matter
of this Agreement and the Exhibits attached hereto and supersedes
all prior agreements and understandings relating hereto and
thereto. Notwithstanding anything to the contrary, no party may
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transfer or assign any of its rights or obligations under this
Agreement without the prior written consent of all other parties,
which they may withhold in their sole discretion.
12. Controlling Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of New York.
13. Notices. Any notice, communication, request, reply, or advice
(hereinafter severally and collectively called "notice") in this
Agreement provided or permitted to be given, made, or accepted by
either party to the other must be in writing and shall be given or
be served by telex, telecopy, facsimile, registered, certified or
other form of mail requiring a return receipt, addressed to the
party to be notified, postage prepaid, or by reputable overnight
delivery service, or by delivering the same in person to such
party and obtaining a receipt for such delivery. Notice deposited
in the mail in the manner hereinabove described shall be deemed
received on the earlier of the fifth day after day after deposit
in the mail or upon receipt, whichever is earlier. Notice sent by
reputable overnight courier shall be deemed received on the next
day after sending. Notices given by hand delivery shall be deemed
received when delivered. Notices may also be sent by facsimile
transmission with electronic confirmation, and shall be deemed
received on the date sent or the first business day thereafter, if
sent after normal business hours or on a non-business day,
provided that the sender requests and the receiver sends a return
confirmation by facsimile transmission or by mail.
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For purposes of notice, the address and facsimile
numbers of the parties shall, until notice of any
change is provided, be as follows:
To BIOF Xxxxx Xxxxx, President
0000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
To CCC (or to any
CCC shareholder) c/o Xxxxxx Xxxxxxxx, President
Currency Charting Corp.
000 Xxxxxxxx Xxxxxx, Xxxxx 0X
Xxx Xxxx, Xxx Xxxx
Facsimile: (000) 000-0000
14. Further Assurances. Each of the parties to this Agreement shall
use such party's commercially reasonable efforts to take such
actions as may be necessary or reasonably requested by the other
parties to this Agreement to carry out and consummate the
transactions contemplated by this Agreement.
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15. Expenses. Each of the parties to this Agreement shall bear such
party's own expenses and attorneys' fees in connection with the
negotiation and preparation of this Agreement and the transactions
contemplated by this Agreement. This provision shall not operate
to limit any damages due to breach by another party.
16. Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original but all of
which shall constitute one and the same instrument.
17. Headings. The headings preceding the text of the paragraphs of
this Agreement are inserted for convenience of reference only and
shall not constitute a part of this Agreement, nor shall they
affect its meaning, construction or effect.
18. Amendments, Waivers. Any changes, amendments, waivers or additions
to this Agreement, must be made in writing by the parties to this
Agreement in order to be effective. The failure of any party
hereto to enforce at any time any provision of this Agreement
shall not be construed as a waiver of such provision nor in any
way to affect the validity of this Agreement or any part hereof or
the right of any party thereafter to enforce each and every such
provision strictly in accordance with its terms. No waiver of any
breach of this Agreement shall be held to constitute a waiver of
any other or subsequent breach.
19. Invalidity. Should any provision of this Agreement be held by a
court or arbitration panel of competent jurisdiction to be
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enforceable only if modified, such holding shall not affect the
validity of the remainder of this Agreement, the balance of which
shall continue to be binding upon the parties to this Agreement
with any such modification to become a part hereof and treated as
though originally set forth in this Agreement.
20. Interpretation. No provision of this Agreement shall be construed
against a party because such party of its attorney may have been
the draftsman thereof.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement on the date first written above.
CURRENCY CHARTING CORP. BIOFARM, INC.
BY BY
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Its Its
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ATTEST ATTEST
Its Its
Each of the undersigned, being all of the shareholders of CCC and
intending to be legally bound, joins in this Agreement for the purpose of
confirming his/her/its agreement to be bound by the terms of and the
representations, warranties, indemnities, obligations, agreements or covenants
contained in this Agreement and applicable to each such shareholder.
_________________________________
_________________________________
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