EXHIBIT 2.1
SHARE EXCHANGE AGREEMENT DATED NOVEMBER 1, 2005
SHARE EXCHANGE AGREEMENT
by and among
BRAVO RESOURCES LTD., a Nevada corporation,
WOIZE LTD., a United Kingdom company,
ST JAMES'S SQUARE NOMINEES LIMITED,
a private limited company registered in England,
XXXXXX XXXXXXX
and
XXXXXX XXXXXXXX
Dated as of November 1, 2005
EXHIBIT A - PROMISSORY NOTE
EXHIBIT B - WOIZE SHAREHOLDER SHARES
EXHIBIT C - ESCROW AGREEMENT
EXHIBIT X - XXXXX NOTEHOLDERS, PRIVATE PLACEMENT BROKER, AND ACCOUNTING AND
LEGAL SERVICE PROVIDERS TO BE PAID UPON CLOSING
EXHIBIT E - SHAREHOLDER'S AGREEMENT OR VOTING TRUST AGREEMENT
EXHIBIT F - ARTICLES OF EXCHANGE
EXHIBIT G - RESTRICTED SHARE ACKNOWLEDGEMENT
EXHIBIT H - WOIZE SHAREHOLDER CONSENT
EXHIBIT I - FORM OF OPINION-WOIZE COUNSEL
EXHIBIT J - FORM OF OPINION-BRAVO COUNSEL
EXHIBIT K - BRAVO SHAREHOLDER CONSENT WOIZE Disclosure Schedule - Exceptions to
Representations and Warranties BRAVO Disclosure Schedule - Exceptions to
Representations and Warranties
THIS SHARE EXCHANGE AGREEMENT is entered into as of November 1, 2005, by and
among BRAVO RESOURCES LTD., a Nevada corporation ("BRAVO"), WOIZE LTD., a United
Kingdom company ("WOIZE"), ST JAMES'S SQUARE NOMINEES LIMITED, a private limited
company registered in England (the "WOIZE Shareholder"), XXXXXX XXXXXXX
("HALLDIN"), and XXXXXX XXXXXXXX ("XXXXXXXX"). BRAVO, WOIZE, HALLDIN and
XXXXXXXX are referred to collectively herein as the "Parties."
RECITALS
A. The WOIZE Shareholder holds and has always held 100% of the issued and
outstanding shares of WOIZE upon trust for the benefit of HALLDIN and
XXXXXXXX.
B. The Boards of Directors of BRAVO and WOIZE, respectively, have
determined that it is in the best interests of BRAVO and WOIZE (as
applicable) and their respective shareholders that BRAVO acquire 100%
of the issued and outstanding shares of WOIZE, as held by the WOIZE
Shareholder, through a statutory share exchange under the laws of
Nevada (the "Share Exchange") and, in furtherance thereof, have
approved the Share Exchange, this Agreement and the transactions
contemplated hereby.
C. Pursuant to the Share Exchange, among other things, and subject to the
terms and conditions of this Agreement, all of the shares of WOIZE
which are issued and outstanding immediately prior to the Closing (as
defined below) shall be exchanged for shares of common stock, $0.001
par value per share, of BRAVO ("BRAVO Common Stock") on the terms and
subject to the conditions set forth herein.
D. The Parties hereto desire to make certain representations, warranties,
covenants and agreements in connection with the Share Exchange.
E. For the avoidance of doubt, it is the intention of the Parties that the
WOIZE Shareholder be party to this Agreement for the limited purposes
of effecting the Share Exchange contemplated hereinafter and receiving
the cash consideration described in Section 1.2 below only.
AGREEMENT
NOW, THEREFORE, for and in consideration of the premises and the mutual
agreements hereinafter set forth, in accordance with the provisions of
applicable law, the parties hereby agree as follows:
ARTICLE I
THE SHARE EXCHANGE
1.1 THE SHARE EXCHANGE. At the Closing and upon the terms and subject to
the conditions of this Agreement and the applicable provisions of the
Nevada Revised Statutes by virtue of the Share Exchange, the following
shall occur:
1
1.2 NUMBER OF SHARES OF BRAVO COMMON STOCK AND CASH. The WOIZE Shareholder
shall receive: (i) an aggregate of 27,000,000 shares of BRAVO Common
Stock at the Closing; (ii) US$500,000 in immediately available funds;
and (iii) a non-interest bearing promissory note made out in the amount
of US$1,500,000 in favor of the WOIZE Shareholder in the form of
EXHIBIT A attached hereto (the "Note"), (collectively the "Purchase
Price").
1.3 TRANSFER OF WOIZE SHARES. Each share of WOIZE issued and outstanding
immediately prior to the Closing will be transferred to BRAVO in
consideration of the issuance of 27,000,000 shares of BRAVO Common
Stock.
1.4 FRACTIONAL SHARES. No fraction of a share of BRAVO Common Stock will be
issued upon such exchange of shares of WOIZE Shares. Instead amounts of
shares will be rounded to the nearest whole number.
1.5 RESERVATION OF SHARES. BRAVO will reserve sufficient shares of BRAVO
Common Stock for issuance pursuant to Section 1.3.
1.6 EXCHANGE OF CERTIFICATES. BRAVO shall cause its transfer agent to issue
certificates representing the whole number of shares of BRAVO Common
Stock into which the WOIZE Shareholder's shares of WOIZE shall have
been exchanged as set forth in EXHIBIT B attached hereto.
1.7 NO FURTHER OWNERSHIP RIGHTS IN WOIZE SHARES. All shares of BRAVO Common
Stock issued upon the surrender for exchange of shares of WOIZE Shares
in accordance with the terms hereof shall be deemed to have been issued
in full satisfaction of all rights pertaining to such shares of WOIZE
Shares, and there shall be no further registration of transfers on the
records of WOIZE of shares of WOIZE Shares which were outstanding
immediately prior to the Closing. If, after the Closing, certificates
are presented to BRAVO for any reason, they shall be canceled and
exchanged as provided in this Article 1.
1.8 LOST, STOLEN OR DESTROYED CERTIFICATES. In the event any certificates
evidencing shares of WOIZE Shares shall have been lost, stolen or
destroyed, the transfer agent for BRAVO shall issue certificates
representing such shares of BRAVO Common Stock in exchange for such
lost, stolen or destroyed certificates, upon the making of an affidavit
of that fact by the holder thereof.
1.9 EXEMPTION FROM REGISTRATION. The shares of BRAVO Common Stock to be
issued pursuant to Sections 1.2 and 1.3 in connection with the Share
Exchange will be issued in a transaction exempt from registration under
the Securities Act of 1933, as amended (including the rules and
regulations promulgated thereunder, the "Securities Act").
1.10 ESCROW OF BRAVO COMMON STOCK. At Closing, share certificates evidencing
13,500,000 shares of BRAVO Common Stock (with executed stock powers),
to be issued pursuant to Section 1.2 shall be placed into and held in
escrow pursuant to the terms of the Escrow Agreement in the form
attached hereto as EXHIBIT C (the "Escrow Agreement") until the
satisfaction and/or termination of the Escrow Agreement (the "Escrow
Period").
2
1.11 PAYMENT OF BRAVO PROMISSORY NOTES, PRIVATE PLACEMENT FINDER'S FEES,
ACCOUNTING FEES AND LEGAL FEES OWING. At Closing, payment in
immediately available funds shall be made by wire transfer to the
Persons listed on the attached EXHIBIT D in the amounts owing by BRAVO
to such Persons, limited to (i) the amounts outstanding under any notes
owing by BRAVO at the time of Execution of this Agreement and (2)
private placement finder's fees, accounting fees, and legal fees owing
by BRAVO at the time of Closing incurred for services rendered in the
Ordinary Course of Business and in connection with this Agreement.
1.12 BOARD OF DIRECTORS AND OFFICERS OF BRAVO. At Closing, BRAVO, HALLDIN,
XXXXXXXX and the Shareholders holding a majority of shares of BRAVO
Common Stock, shall execute a shareholder's agreement or a voting trust
agreement, the form of which shall be agreed to by the Parties prior to
the Closing, attached hereto as EXHIBIT E (the "Shareholder's Agreement
or the Voting Trust Agreement"). In pertinent part, the Shareholder's
Agreement or Voting Trust Agreement shall provide that immediately
after the Closing and until the termination of the Escrow Period, the
BRAVO board of directors shall be expanded to three directors, and
three new directors shall be appointed, to include one appointee by
BRAVO, (such appointee shall also serve as chairman of the board) and
two appointees by HALLDIN and XXXXXXXX. The Shareholder's Agreement or
the Voting Trust Agreement shall further provide that the BRAVO
appointed chairman of the board shall retain certain limited
discretionary authority regarding BRAVO expenditures after the Closing
and until the termination of the Escrow Period.
1.13 TAKING OF NECESSARY ACTION; FURTHER ACTION. If, at any time after the
Closing, any such further action is necessary or desirable to carry out
the purposes of this Agreement, the officers and directors of BRAVO are
fully authorized to take, and will use their reasonable efforts to
take, all such lawful and necessary action.
ARTICLE II
THE CLOSING
2.1 TIME AND PLACE OF CLOSING; EFFECTIVE DATE. The closing of the Share
Exchange (the "Closing"), shall, unless otherwise agreed to in writing
by the parties, take place at such time and place, as the Parties shall
mutually agree, not later than twenty-one (21) days after execution of
this Agreement. The Share Exchange will become effective and WOIZE
shall become a wholly owned subsidiary of BRAVO upon filing of Articles
of Exchange, in the form attached hereto as EXHIBIT F, pursuant to
Section 92A.200 of the Nevada Revised Statutes.
2.2 OBLIGATIONS OF WOIZE AND THE WOIZE SHAREHOLDER AT OR PRIOR TO THE
CLOSING. At or prior to Closing and subject to the satisfaction by
BRAVO of its obligations hereunder, WOIZE and the WOIZE Shareholder
shall deliver to BRAVO the following:
(a) A copy of the Articles of Association of WOIZE and the WOIZE
Shareholder, respectively, each certified as a true copy as of
a date within ten days of the Closing by the Registrar of
Companies and certified by the respective corporate
secretaries
3
of WOIZE and the WOIZE Shareholder as to the absence of any
amendments between the date of certification by the Registrar
of Companies and the Closing;
(b) A certificate from the Registrar of Companies as to the
existence and good standing of WOIZE and the WOIZE Shareholder
as of a date within ten days of the Closing;
(c) The certificate of Woize referred to in Section 6.1(a) hereof;
(d) Such other documents as are required pursuant to this
Agreement or as may reasonably be requested from WOIZE by
BRAVO or its counsel; and
(e) The certificates evidencing the shares of WOIZE Common Stock
owned by the WOIZE Shareholder, and a duly executed stock
transfer form in favor of BRAVO.
2.3 OBLIGATIONS OF BRAVO AT OR PRIOR TO THE CLOSING. At or prior to the
Closing and subject to the satisfaction by WOIZE of its obligations
hereunder, BRAVO shall deliver to WOIZE, HALLDIN and XXXXXXXX the
following:
(a) A copy of the Articles of Incorporation of BRAVO certified as
of a date within ten days of the Closing by the Secretary of
State of the State of Nevada and certified by the corporate
secretary of BRAVO as to the absence of any amendments between
the date of certification by the Secretary of State and the
Closing;
(b) A certificate from the Secretary of State of the State of
Nevada as to the existence and good standing of BRAVO as of a
date within ten days of the Closing;
(c) A certificate of the corporate secretary of BRAVO attaching
thereto true and correct copies of the bylaws of BRAVO and the
corporate resolutions duly adopted by the board of directors
of BRAVO authorizing the consummation of the transactions
contemplated hereby;
(d) The certificates of BRAVO and BRAVO's transfer agent,
respectively, referred to in Section 6.2(a) hereof;
(e) Such other documents as are required pursuant to this
Agreement or as may reasonably be requested from BRAVO by
WOIZE, or its counsel;
(f) Certificates evidencing the BRAVO Common Stock to be issued to
the WOIZE Shareholder pursuant to Article I hereof; and
(g) A written final accounting of the amounts owing pursuant to
Section 1.11 in the form of EXHIBIT D and wire transfer
instructions from the parties to be paid under Section 1.11.
4
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF WOIZE,
HALLDIN and XXXXXXXX
3. Except as expressly set forth and specifically identified by the
section number of this Agreement in the schedule delivered by WOIZE to BRAVO
contemporaneously with the execution of this Agreement and updated, if
necessary, at least five (5) days prior to Closing (the "WOIZE Disclosure
Schedule"), WOIZE, HALLDIN and XXXXXXXX (collectively the "Warranting Parties"),
represent, warrant, and covenant to BRAVO that the statements contained in this
Article 3 are correct and complete as of the date of this Agreement and will be
correct and complete as of Closing (as though made then and as though Closing
were substituted for the date of this Agreement throughout this Article 3). The
WOIZE Disclosure Schedule will be arranged in paragraphs corresponding to the
lettered and numbered paragraphs contained in this Article 3. "Knowledge" is
herein defined to mean actual knowledge after reasonable investigation.
(a) ORGANIZATION OF WOIZE. WOIZE is a corporation duly organized,
validly existing, and in good standing under the laws of the jurisdiction of its
incorporation.
(b) AUTHORIZATION OF TRANSACTION. WOIZE and the WOIZE Shareholder have
full power and authority (including full corporate power and authority) to
execute and deliver this Agreement and to perform their obligations hereunder.
Without limiting the generality of the foregoing, the board of directors of
WOIZE and the WOIZE Shareholder have duly authorized the execution, delivery,
and performance of this Agreement by WOIZE. This Agreement constitutes the valid
and legally binding obligation of WOIZE and the WOIZE Shareholder, enforceable
in accordance with its terms and conditions, subject to the qualification that
enforcement of the rights and remedies created hereby is subject to (a)
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting the rights and remedies of creditors and (b) general
principles of equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law). Except as set forth in Section 3(b) of the
WOIZE Disclosure Schedule, WOIZE and the WOIZE Shareholder do not need to give
any notice to, make any filing with, or obtain any authorization, consent, or
approval of any governmental body or governmental agency in order for WOIZE and
the WOIZE Shareholder to consummate the transactions contemplated by this
Agreement.
(c) NONCONTRAVENTION. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(i) violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which WOIZE is subject or any provision of the
charter or bylaws of WOIZE or (ii) conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create in any party
the right to accelerate, terminate, modify, or cancel, or require any notice
under any agreement, contract, lease, license, instrument, or other arrangement
to which WOIZE is a party or by which it is bound or to which any of its assets
is subject (or result in the imposition of any Security Interest, defined herein
to mean any mortgage, pledge, lien, encumbrance, charge, or other security
interest, upon any of its assets). WOIZE has no obligation to give any notice
to, make any filing with, or obtain any authorization, consent, or approval of
any government or governmental agency in order for the Parties to consummate the
transactions contemplated by this Agreement.
5
(d) BROKERS' FEES. WOIZE has no Liability, (defined herein to mean any
liability (whether known or unknown, whether asserted or unasserted, whether
absolute or contingent, whether accrued or unaccrued, whether liquidated or
unliquidated, and whether due or to become due), including any liability for
Taxes), or obligation to pay any fees or commissions to any broker, finder, or
agent with respect to the transactions contemplated by this Agreement
(e) TITLE TO ASSETS. WOIZE has good and marketable title to, or a
valid interest in, the assets used by it or shown on the Most Recent Balance
Sheet or acquired after the date thereof, free and clear of all Security
Interests, except for assets disposed of in the Ordinary Course of Business
(defined herein to mean the ordinary course of business consistent with past
custom and practice (including with respect to quantity and frequency), since
the date of the Most Recent Balance Sheet-WOIZE.
(f) SUBSIDIARIES. WOIZE has no Subsidiaries.
(g) FINANCIAL STATEMENTS-WOIZE. Attached hereto as WOIZE Disclosure
Schedule Section 3(g) are the following financial statements for WOIZE: (i)
audited consolidated and unaudited consolidating balance sheets and statements
of income, changes in stockholders' equity, and cash flow as of and for the
fiscal years ended 30 November 2002, 30 November 2003 and 30 November 2004 (the
"MOST RECENT FISCAL YEAR END-WOIZE") for WOIZE; and (ii) unaudited consolidated
and consolidating balance sheets and statements of income, changes in
stockholders' equity, and cash flow (the "MOST RECENT FINANCIAL
STATEMENTS-WOIZE") as of and for the ten months ended 30 September 2005 (the
"MOST RECENT FISCAL MONTH END-WOIZE") for WOIZE. The Financial Statements-WOIZE
(including the notes thereto) have been prepared in accordance with
International Accounting Standards applied on a consistent basis throughout the
periods covered thereby, present fairly the financial condition of WOIZE as of
such dates and the results of operations of WOIZE for such periods, are correct
and complete, and are consistent with the books and records of WOIZE (which
books and records are correct and complete).
(h) EVENTS SUBSEQUENT TO MOST RECENT FISCAL YEAR END-WOIZE. Except as
set forth on Section 3(h) of the WOIZE Disclosure Schedule, since the Most
Recent Fiscal Year End-WOIZE, there has not been any material adverse change in
the business, financial condition, operations, results of operations, or future
prospects of WOIZE. Without limiting the generality of the foregoing, except as
set forth on Section 3(h) of the WOIZE Disclosure Schedule, since that date:
(i) WOIZE has not sold, leased, transferred, or assigned any
of its assets, tangible or intangible, other than for a fair
consideration in the Ordinary Course of Business;
(ii) WOIZE has not entered into any agreement, contract,
lease, or license (or series of related agreements, contracts, leases,
and licenses) either involving more than $1,000 or outside the Ordinary
Course of Business;
(iii) no party (including WOIZE) has accelerated, terminated,
modified, or cancelled any agreement, contract, lease, or license (or
series of related agreements, contracts, leases, and licenses)
involving more than $1,000 to which WOIZE is a party or by which any of
them is bound;
6
(iv) WOIZE has not imposed any Security Interest upon any of
its assets, tangible or intangible;
(v) WOIZE has not made any capital expenditure (or series of
related capital expenditures) either involving more than $100,000 or
outside the Ordinary Course of Business;
(vi) WOIZE has not made any capital investment in, any loan
to, or any acquisition of the securities or assets of, any other Person
(defined herein to mean an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an
unincorporated organization, or a governmental entity), or series of
related capital investments, loans, and acquisitions either involving
more than $100,000 or outside the Ordinary Course of Business;
(vii) WOIZE has not issued any note, bond, or other debt
security or created, incurred, assumed, or guaranteed any indebtedness
for borrowed money or capitalized lease obligation either involving
more than $1,000 singly or $10,000 in the aggregate;
(viii) WOIZE has not delayed or postponed the payment of
accounts payable and other Liabilities outside the Ordinary Course of
Business;
(ix) WOIZE has not cancelled, compromised, waived, or released
any right or claim (or series of related rights and claims) either
involving more than $1,000 or outside the Ordinary Course of Business;
(x) WOIZE has not granted any license or sublicense of any
rights under or with respect to any Intellectual Property (as that term
is defined in Section 3(m) below);
(xi) there has been no change made or authorized in the
charter or bylaws of WOIZE;
(xii) WOIZE has not issued, sold, or otherwise disposed of any
of its capital stock, or granted any options, warrants, or other rights
to purchase or obtain (including upon conversion, exchange, or
exercise) any of its capital stock;
(xiii) WOIZE has not declared, set aside, or paid any dividend
or made any distribution with respect to its capital stock (whether in
cash or in kind) or redeemed, purchased, or otherwise acquired any of
its capital stock;
(xiv) WOIZE has not experienced any damage, destruction, or
loss (whether or not covered by insurance) to its property;
(xv) WOIZE has not made any loan to, or entered into any other
transaction with, any of its directors or officers outside the Ordinary
Course of Business;
(xvi) WOIZE has not entered into any employment contract or
collective bargaining agreement, written or oral, or modified the terms
of any existing such contract or agreement;
7
(xvii) WOIZE has not granted any increase in the base
compensation of any of its directors, officers, and employees outside
the Ordinary Course of Business;
(xviii) WOIZE has not adopted, amended, modified, or
terminated any bonus, profit sharing, incentive, severance, or other
plan, contract, or commitment for the benefit of any of its directors,
officers, and employees;
(xix) WOIZE has not made any other change in employment terms
for any of its directors, officers, and employees outside the Ordinary
Course of Business;
(xx) WOIZE has not made or pledged to make any charitable or
other capital contribution outside the Ordinary Course of Business;
(xxi) there has not been any other material occurrence, event,
incident, action, failure to act, or transaction outside the Ordinary
Course of Business involving WOIZE; and
(xxiii) WOIZE has not committed to any of the foregoing.
(i) UNDISCLOSED LIABILITIES. WOIZE has no Liability and there is no
Basis (defined herein to mean any past or present fact, situation, circumstance,
status, condition, activity, practice, plan, occurrence, event, incident,
action, failure to act, or transaction that forms or could form the basis for
any specified consequence), to the knowledge of the Warranting Parties, (for any
present or future action, suit, proceeding, hearing, investigation, charge,
complaint, claim, or demand against any of them giving rise to any Liability),
except for (i) Liabilities set forth on the face of the Most Recent Balance
Sheet-WOIZE (rather than in any notes thereto) and (ii) Liabilities which have
arisen after the Most Recent Fiscal Month End-WOIZE in the Ordinary Course of
Business (none of which results from, arises out of, relates to, is in the
nature of, or was caused by any breach of contract, breach of warranty, tort,
infringement, or violation of law).
(j) LEGAL COMPLIANCE. WOIZE and its respective predecessors has
complied with all applicable laws (including rules, regulations, codes, plans,
injunctions, judgments, orders, decrees, rulings, and charges thereunder) of
federal, state, local, and foreign governments (and all agencies thereof), and
no action, suit, proceeding, hearing, investigation, charge, complaint, claim,
demand, or notice has been filed or commenced against any of them alleging any
failure so to comply.
(k) TAX MATTERS.
(i) WOIZE has filed all Tax Returns, (defined herein to mean
any return, declaration, report, claim for refund, or information
return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof) that it was
required to file. All such Tax Returns were correct and complete in all
respects. All Taxes (defined herein to mean any federal, state, local,
or foreign income, gross receipts, license, payroll, employment,
excise, severance, stamp, occupation, premium, windfall profits,
environmental, customs duties, capital stock, franchise, profits,
withholding, social security (or similar), unemployment, disability,
real property, personal property, sales, use, transfer, registration,
value added, alternative or add-on minimum, estimated, or other tax of
any kind whatsoever, including any interest, penalty, or addition
thereto, whether disputed or not) owed by WOIZE (whether or not shown
on any Tax Return) have been paid. WOIZE is
8
not currently the beneficiary of any extension of time within which to
file any Tax Return. No claim has ever been made by an authority in a
jurisdiction where WOIZE does not file Tax Returns that it is or may be
subject to taxation by that jurisdiction. There are no Security
Interests on any of the assets of WOIZE that arose in connection with
any failure (or alleged failure) to pay any Tax.
(ii) WOIZE has withheld and paid all Taxes required to have
been withheld and paid in connection with amounts paid or owing to any
employee, independent contractor, creditor, stockholder, or other third
party.
(iii) No Warranting Party expects any authority to assess any
additional Taxes against WOIZE, for any period for which Tax Returns
have been filed. There is no dispute or claim concerning any Tax
Liability of WOIZE either (A) claimed or raised by any authority in
writing or (B) as to which the Warranting Parties has Knowledge based
upon personal contact with any agent of such authority. Section 3(k) of
the WOIZE Disclosure Schedule lists all federal, state, local, and
foreign income Tax Returns filed with respect to WOIZE for taxable
periods ended on or after December 31, 2000, indicates those Tax
Returns that have been audited, and indicates those Tax Returns that
currently are the subject of audit. WOIZE has delivered to BRAVO
correct and complete copies of all Tax Returns, examination reports,
and statements of deficiencies assessed against or agreed to by WOIZE
since December 31, 2000.
(iv) WOIZE has not waived any statute of limitations in
respect of Taxes or agreed to any extension of time with respect to a
Tax assessment or deficiency.
(v) The unpaid Taxes of WOIZE (A) did not, as of the Most
Recent Fiscal Month End-WOIZE, exceed the reserve for Tax Liability
(rather than any reserve for deferred Taxes established to reflect
timing differences between book and Tax income) set forth on the face
of the Most Recent Balance Sheet-WOIZE (rather than in any notes
thereto) and (B) do not exceed that reserve as adjusted for the passage
of time through Closing in accordance with the past custom and practice
of WOIZE in filing its Tax Returns.
(l) REAL PROPERTY AND LEASED REAL PROPERTY. WOIZE has no leasehold
interest in real property nor does it own any real property or hold any
outstanding options, rights of first offer or rights of first refusal to lease
or purchase real property or any portion thereof or interest therein.
(m) INTELLECTUAL PROPERTY. Intellectual Property is defined herein to
mean all of the following in any jurisdiction throughout the world: (a) all
inventions (whether patentable or unpatentable and whether or not reduced to
practice), all improvements thereto, and all patents, patent applications, and
patent disclosures, together with all reissuances, continuations,
continuations-in-part, revisions, extensions, and reexaminations thereof, (b)
all trademarks, service marks, trade dress, logos, slogans, trade names,
corporate names, Internet domain names and rights in telephone numbers, together
with all translations, adaptations, derivations, and combinations thereof and
including all goodwill associated therewith, and all applications,
registrations, and renewals in connection therewith, (c) all copyrightable
works, all copyrights, and all applications, registrations, and renewals in
connection therewith, (d) all mask works and all applications, registrations,
and renewals in connection therewith, (e) all trade secrets and confidential
business
9
information (including ideas, research and development, know-how, formulas,
compositions, manufacturing and production processes and techniques, technical
data, designs, drawings, specifications, customer and supplier lists, pricing
and cost information, and business and marketing plans and proposals), (f) all
computer software (including source code, executable code, data, databases and
related documentation), (g) all advertising and promotional materials, (h) all
other proprietary rights, and (i) all copies and tangible embodiments thereof
(in whatever form or medium).
(i) WOIZE owns or possesses or has the right to use pursuant
to a valid and enforceable, written license, sublicense, agreement, or
permission all Intellectual Property necessary for the operation of the
business of WOIZE as presently conducted and as presently proposed to
be conducted. Each item of Intellectual Property owned or used by WOIZE
immediately prior to the Closing hereunder will be owned or available
for use by BRAVO or WOIZE on identical terms and conditions immediately
subsequent to the Closing hereunder. WOIZE has taken all necessary and
desirable action to maintain and protect each item of Intellectual
Property that it owns or uses.
(ii) WOIZE has not interfered with, infringed upon,
misappropriated, or otherwise come into conflict with any Intellectual
Property rights of third parties, and none of the Warranting Parties
has ever received any charge, complaint, claim, demand, or notice
alleging any such interference, infringement, misappropriation, or
violation (including any claim that WOIZE must license or refrain from
using any Intellectual Property rights of any third party). To the
Knowledge of the Warranting Parties, no third party has interfered
with, infringed upon, misappropriated, or otherwise come into conflict
with any Intellectual Property rights of WOIZE.
(iii) Section 3(m)(iii) of the WOIZE Disclosure Schedule
identifies each patent or registration which has been issued to WOIZE
with respect to any of its Intellectual Property, identifies each
pending patent application or application for registration which WOIZE
has made with respect to any of its Intellectual Property, and
identifies each license, sublicense, agreement, or other permission
which WOIZE has granted to any third party with respect to any of its
Intellectual Property (together with any exceptions). WOIZE has
delivered to BRAVO correct and complete original copies of all such
patents, registrations, applications, licenses, sublicenses,
agreements, and permissions (as amended to date) and has made available
to BRAVO correct copies of all other written documentation evidencing
ownership and prosecution (if applicable) of each such item. Section
3(m)(iii) of the WOIZE Disclosure Schedule also identifies each
unregistered trademark, service xxxx, trade name, corporate name or
Internet domain name, computer software item (other than commercially
available off-the-shelf software purchased or licensed for less than a
total cost of $1,000 in the aggregate) and each material unregistered
copyright used by WOIZE in connection with its business. With respect
to each item of Intellectual Property required to be identified in
Section 3(m)(iii) of the WOIZE Disclosure Schedule:
(A) WOIZE owns and possesses all right, title, and
interest in and to the item, free and clear of any Security
Interest, license, or other restriction or limitation regarding
use or disclosure;
10
(B) the item is not subject to any outstanding injunction,
judgment, order, decree, ruling, or charge;
(C) no action, suit, proceeding, hearing, investigation,
charge, complaint, claim, or demand is pending or to the
Knowledge of the Warranting Parties is threatened which
challenges the legality, validity, enforceability, use, or
ownership of the item, and there are no grounds for the same;
(D) WOIZE has not ever agreed to indemnify any Person for
or against any interference, infringement, misappropriation, or
other conflict with respect to the item; and
(E) no loss or expiration of the item is threatened,
pending, or reasonably foreseeable, except for patents expiring
at the end of their statutory terms (and not as a result of any
act or omission by the Warranting Parties, including without
limitation, a failure by the Warranting Parties to pay any
required maintenance fees).
(iv) Section 3(m)(iv) of the WOIZE Disclosure Schedule
identifies each item of Intellectual Property that any third party owns
and that WOIZE uses pursuant to license, sublicense, agreement, or
permission. WOIZE has delivered to BRAVO correct and complete copies of
all such licenses, sublicenses, agreements, and permissions (as amended
to date). With respect to each item of Intellectual Property required
to be identified in Section 3(m)(iv) of the WOIZE Disclosure Schedule;
(A) the license, sublicense, agreement, or permission
covering the item is legal, valid, binding, enforceable, and in
full force and effect;
(B) the license, sublicense, agreement, or permission will
continue to be legal, valid, binding, enforceable, and in full
force and effect on identical terms following the consummation of
the transactions contemplated;
(C) no party to the license, sublicense, agreement, or
permission is in breach or default, and no event has occurred
which with notice or lapse of time would constitute a breach or
default or permit termination, modification, or acceleration
thereunder;
(D) no party to the license, sublicense, agreement, or
permission has repudiated any provision thereof;
(E) with respect to each sublicense, the representations
and warranties set forth in subsections (A) through (D) above are
true and correct with respect to the underlying license;
(F) the underlying item of Intellectual Property is not
subject to any outstanding injunction, judgment, order, decree,
ruling, or charge;
(G) no action, suit, proceeding, hearing, investigation,
charge, complaint, claim, or demand is pending or, to the
Knowledge of the Warranting Parties, is threatened
11
which challenges the legality, validity, or enforceability of the
underlying item of Intellectual Property, and there are no
grounds for the same; and
(H) WOIZE has not granted any sublicense or similar right
with respect to the license, sublicense, agreement, or
permission.
(v) To the Knowledge of the Warranting Parties: (A) WOIZE has
not in the past nor will interfere with, infringe upon, misappropriate,
or otherwise come into conflict with, any Intellectual Property rights
of third parties as a result of the continued operation of its business
as presently conducted and as presently proposed to be conducted; (B)
there are no facts that indicate a likelihood of any of the foregoing;
and (C) no notices regarding any of the foregoing (including, without
limitation, any demands or offers to license any Intellectual Property
from any third party) have been received.
(vi) None of the Warranting Parties has any Knowledge of any
new products, inventions, procedures, or methods of manufacturing or
processing that any competitors or other third parties have developed
which reasonably could be expected to supersede or make obsolete any
product or process of WOIZE or to limit the business of WOIZE as
presently conducted or as presently proposed to be conducted.
(vii) WOIZE has taken all necessary and desirable action to
maintain and protect all of the Intellectual Property of WOIZE and will
continue to maintain and protect all of the Intellectual Property of
WOIZE prior to Closing so as not to materially adversely affect the
validity or enforceability thereof. The owners of any of the
Intellectual Property licensed to WOIZE have taken all necessary and
desirable action to maintain and protect the Intellectual Property
covered by such license.
(viii) WOIZE has complied in all material respects with and is
presently in compliance in all material respects with all foreign,
federal, state, local, governmental, administrative or regulatory laws,
regulations, guidelines and rules applicable to any Intellectual
Property and WOIZE shall take all steps necessary to ensure such
compliance until Closing.
(n) TANGIBLE ASSETS. WOIZE owns or leases all machinery, equipment,
and other tangible assets used for the conduct of its business as presently
conducted and as presently proposed to be conducted. To the knowledge of the
Warranting Parties, each such tangible asset is free from defects (patent and
latent), has been maintained in accordance with normal industry practice, is in
good operating condition and repair (subject to normal wear and tear), and is
suitable for the purposes for which it presently is used and presently is
proposed to be used.
(o) INTENTIONALLY OMITTED.
(p) CONTRACTS. Section 3(p) of the WOIZE Disclosure Schedule lists the
following contracts and other agreements to which WOIZE is a party:
(i) any agreement (or group of related agreements) for the
lease of personal property to or from any Person;
12
(ii) any agreement (or group of related agreements) for the
purchase or sale of raw materials, commodities, supplies, products, or
other personal property, or for the furnishing or receipt of services;
(iii) any agreement concerning a partnership or joint venture;
(iv) any agreement (or group of related agreements) under
which it has created, incurred, assumed, or guaranteed any indebtedness
for borrowed money, or any capitalized lease obligation under which it
has imposed a Security Interest on any of its assets, tangible or
intangible;
(v) any agreement concerning confidentiality or
noncompetition;
(vi) any agreement involving any of the Warranting Parties
(other than WOIZE);
(vii) any profit sharing, stock option, stock purchase, stock
appreciation, deferred compensation, severance, or other material plan
or arrangement for the benefit of its current or former directors,
officers, and employees; (viii) any collective bargaining agreement;
(ix) any agreement for the employment of any individual on a full-time,
part-time, consulting, or other basis providing annual compensation in
excess of US$25,000 or providing severance benefits; (x) any agreement
under which it has advanced or loaned any amount to any of its
directors, officers, and employees outside the Ordinary Course of
Business; (xi) any agreement under which the consequences of a default
or termination could have a material adverse effect on the business,
financial condition, operations, results of operations, or future
prospects of WOIZE; or
(xii) any other agreement (or group of related agreements) the
performance of which involves consideration in excess of US$5,000.
WOIZE has delivered to BRAVO a correct copy of each written agreement listed in
Section 3(p) of the WOIZE Disclosure Schedule (as amended to date) and a written
summary setting forth the terms and conditions of each oral agreement referred
to in Section 3(p) of the WOIZE Disclosure Schedule. With respect to each such
agreement and to the knowledge of the Warranting Parties: (A) the agreement is
legal, valid, binding, enforceable, and in full force and effect; (B) the
agreement will continue to be legal, valid, binding, enforceable, and in full
force and effect on identical terms following the consummation of the
transactions contemplated hereby; (C) no party is in breach or default, and no
event has occurred which with notice or lapse of time would constitute a breach
or default, or permit termination, modification, or acceleration, under the
agreement; and (D) no party has repudiated any provision of the agreement.
(q) NOTES AND ACCOUNTS RECEIVABLE. All notes and accounts receivable
of WOIZE are reflected properly on their books and records, are valid
receivables subject to no setoffs or counterclaims, are current and collectible,
and will be collected in accordance with their terms at their recorded amounts,
subject only to the reserve for bad debts set forth on the face of the Most
Recent Balance Sheet-WOIZE (rather than in any notes thereto) as adjusted for
the passage of time through Closing in accordance with the past custom and
practice of WOIZE.
13
(r) POWERS OF ATTORNEY. There are no outstanding powers of attorney
executed on behalf of WOIZE.
(s) INSURANCE. Section 3(s) of the WOIZE Disclosure Schedule sets
forth the following information with respect to each insurance policy (including
policies providing property, casualty, liability, and workers' compensation
coverage and bond and surety arrangements) to which WOIZE has been a party, a
named insured, or otherwise the beneficiary of coverage at any time within the
past 5 years:
(i) the name, address, and telephone number of the agent;
(ii) the name of the insurer, the name of the policyholder,
and the name of each covered insured;
(iii) the policy number and the period of coverage;
(iv) the scope (including an indication of whether the
coverage was on a claims made, occurrence, or other basis) and amount
(including a description of how deductibles and ceilings are calculated
and operate) of coverage; and
(v) a description of any retroactive premium adjustments or
other loss-sharing arrangements.
With respect to each such insurance policy: (A) the policy is legal, valid,
binding, enforceable, and in full force and effect; (B) the policy will continue
to be legal, valid, binding, enforceable, and in full force and effect on
identical terms following the consummation of the transactions contemplated
hereby; (C) neither WOIZE nor any other party to the policy is in breach or
default (including with respect to the payment of premiums or the giving of
notices), and no event has occurred which, with notice or the lapse of time,
would constitute such a breach or default, or permit termination, modification,
or acceleration, under the policy; and (D) no party to the policy has repudiated
any provision thereof. WOIZE has been covered during the past 5 years by
insurance in scope and amount customary and reasonable for the business in which
it has engaged during the aforementioned period. Section 3(s) of the WOIZE
Disclosure Schedule describes any self-insurance arrangements affecting WOIZE.
(t) LITIGATION. Section 3(t) of the WOIZE Disclosure Schedule sets
forth each instance in which WOIZE (i) is subject to any outstanding injunction,
judgment, order, decree, ruling, or charge or (ii) is a party or to the
Knowledge of any the Warranting Parties, is threatened to be made a party to any
action, suit, proceeding, hearing, or investigation of, in, or before any court
or quasi-judicial or administrative agency of any federal, state, local, or
foreign jurisdiction or before any arbitrator. None of the actions, suits,
proceedings, hearings, and investigations set forth in Section 3(t) of the WOIZE
Disclosure Schedule could result in any material adverse change in the business,
financial condition, operations, results of operations, or future prospects of
WOIZE. Neither the Shareholders nor the directors and officers (and employees
with responsibility for litigation matters) of WOIZE have any reason to believe
that any such action, suit, proceeding, hearing, or investigation may be brought
or threatened against WOIZE.
14
(u) PRODUCT WARRANTY. To the knowledge of the Warranting Parties, each
product manufactured, sold, leased, or delivered by WOIZE has been in conformity
with all applicable contractual commitments and all express and implied
warranties, and WOIZE has no Liability (and there is no Basis for any present or
future action, suit, proceeding, hearing, investigation, charge, complaint,
claim, or demand against any of them giving rise to any Liability) for
replacement or repair thereof or other damages in connection therewith, subject
only to the reserve for product warranty claims set forth on the face of the
Most Recent Balance Sheet-WOIZE (rather than in any notes thereto) as adjusted
for the passage of time through Closing in accordance with the past custom and
practice of WOIZE. No product manufactured, sold, leased, or delivered by WOIZE
is subject to any guaranty, warranty, or other indemnity beyond the applicable
standard terms and conditions of sale or lease. Section 3(u) of the WOIZE
Disclosure Schedule includes copies of the standard terms and conditions of sale
or lease for WOIZE (containing applicable guaranty, warranty, and indemnity
provisions).
(v) PRODUCT LIABILITY. To the knowledge of the Warranting Parties,
WOIZE has no Liability (and there is no Basis for any present or future action,
suit, proceeding, hearing, investigation, charge, complaint, claim, or demand
against any of them giving rise to any Liability) arising out of any injury to
individuals or property as a result of the ownership, possession, or use of any
product manufactured, sold, leased, or delivered by WOIZE.
(w) EMPLOYEES. WOIZE presently has no employees, nor has it ever had
any employees.
(x) GUARANTIES. WOIZE is not a guarantor or otherwise liable for any
Liability or obligation (including indebtedness) of any other Person.
(y) ENVIRONMENTAL, HEALTH, AND SAFETY MATTERS. To the knowledge of the
Warranting Parties, WOIZE and its predecessors have complied and are in
compliance with all Environmental, Health, and Safety Requirements, defined
herein to mean all federal, state, local and foreign statutes, regulations,
ordinances and other provisions having the force or effect of law, all judicial
and administrative orders and determinations, all contractual obligations and
all common law concerning public health and safety, worker health and safety,
and pollution or protection of the environment, including without limitation all
those relating to the presence, use, production, generation, handling,
transportation, treatment, storage, disposal, distribution, labeling, testing,
processing, discharge, release, threatened release, control, or cleanup of any
hazardous materials, substances or wastes, chemical substances or mixtures,
pesticides, pollutants, contaminants, toxic chemicals, petroleum products or
byproducts, asbestos, polychlorinated biphenyls, noise or radiation, each as
amended and as now or hereafter in effect.
(z) EURO. All of the computer software, firmware and hardware (whether
general or special purpose) or other similar or related items of automated,
computerized, or other systems that are used or relied on by WOIZE (i) are
capable of performing all appropriate functions necessary to process more than
one currency and any common currency adopted by one or more members of the
European Union (the "Euro"), (ii) comply with all legal requirements applicable
to the Euro in any jurisdiction, including the rules on conversion and rounding
set out in applicable European Community regulations, and (iii) are capable of
displaying and printing, and incorporate in all relevant screen layouts, all
symbols and codes adopted by any government or any other European Union body in
relation to the Euro.
15
(aa) CERTAIN BUSINESS RELATIONSHIPS WITH WOIZE. Except as set forth on
Section 3(aa) of the WOIZE Disclosure Schedule, none of the Warranting Parties
have been involved in any business arrangement or relationship with WOIZE within
the past 12 months, and none of the Warranting Parties own any asset, tangible
or intangible, which is used in the business of WOIZE.
(bb) DISCLOSURE. To the knowledge of the Warranting Parties, save as
disclosed in the WOIZE Disclosure Schedule, the representations and warranties
contained in this Article do not contain any untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements and
information contained in this Article 3 not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BRAVO
4. Except as expressly set forth and specifically identified by the
section number of this Agreement in the schedule delivered by BRAVO to WOIZE,
HALLDIN and XXXXXXXX contemporaneously with the execution of this Agreement and
updated, if necessary at least five (5) days prior to Closing (the "BRAVO
Disclosure Schedule"), BRAVO represents, warrants, and covenants to WOIZE,
HALLDIN and XXXXXXXX that the statements contained in this Article 4 are correct
and complete as of the date of this Agreement and will be correct and complete
as of Closing (as though made then and as though Closing were substituted for
the date of this Agreement throughout this Article 4). The BRAVO Disclosure
Schedule will be arranged in paragraphs corresponding to the lettered and
numbered paragraphs contained in this Article 4.
(a) ORGANIZATION AND QUALIFICATION. BRAVO is a corporation duly
organized, validly existing, and in good standing under the laws of the state of
Nevada. BRAVO is duly qualified or licensed to do business in each jurisdiction
in which failure to be so qualified or licensed could have an adverse effect.
(b) SUBSIDIARIES AND AFFILIATES. BRAVO does not own or hold, directly
or indirectly, any equity, debt, or other interest in any entity or business or
any option to acquire any such interest.
(c) AUTHORIZATION OF TRANSACTION. BRAVO has full power and authority
(including full corporate power and authority) subject to approval of the
shareholders of BRAVO and the terms set forth in this Agreement, to execute and
deliver this Agreement and to perform its obligations hereunder. This Agreement
has been duly and validly executed on behalf of BRAVO and is a valid and binding
obligation of BRAVO, enforceable in accordance with its terms, subject to the
qualification that enforcement of the rights and remedies created hereby is
subject to (a) bankruptcy, insolvency, reorganization, moratorium and other laws
of general application affecting the rights and remedies of creditors and (b)
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law). Except as set forth in Section
4(c) of the BRAVO Disclosure Schedule, BRAVO does not need to give any notice
to, make any filing with, or obtain any authorization, consent, or approval of
any governmental body or governmental agency in order for BRAVO to consummate
the transactions contemplated by this Agreement.
(d) NONCONTRAVENTION. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby will (i)
violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any
16
government, governmental agency, or court to which BRAVO is subject or any
provision of its Articles of Incorporation or bylaws or (ii) conflict with,
result in a breach of, constitute a default under, result in the acceleration
of, create in any party the right to accelerate, terminate, modify, or cancel,
or require any notice under any agreement, contract, lease, license, instrument,
or other arrangement to which BRAVO is a party or by which it is bound or to
which any of its assets is subject or (iii) result in the creation of any
encumbrance upon and of the properties or assets of BRAVO pursuant to any such
term or provision .
(e) BROKERS' FEES. BRAVO has no Liability or obligation to pay any
fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement for which WOIZE, HALLDIN or XXXXXXXX
could become liable or obligated.
(f) FINANCIAL STATEMENTS-BRAVO. Attached hereto as BRAVO Disclosure
Schedule Section 4(f) are the following financial statements for BRAVO: (i)
audited consolidated and unaudited consolidating balance sheets and statements
of income, changes in stockholders' equity, and cash flow as of and for the
fiscal years ended March 31, 2003, March 31, 2004 and March 31, 2005 (the "MOST
RECENT FISCAL YEAR END-BRAVO") for BRAVO; and (ii) unaudited consolidated and
consolidating balance sheets and statements of income, changes in stockholders'
equity, and cash flow (the "MOST RECENT FINANCIAL STATEMENTS-BRAVO") as of and
for the six months ended September 30, 2005 (the "MOST RECENT FISCAL MONTH
END-BRAVO") for BRAVO. The Financial Statements-BRAVO (including the notes
thereto) have been prepared in accordance with GAAP applied on a consistent
basis throughout the periods covered thereby, present fairly the financial
condition of BRAVO as of such dates and the results of operations of BRAVO for
such periods, are correct and complete, and are consistent with the books and
records of the Parent (which books and records are correct and complete).
(g) CAPITALIZATION. The issued and outstanding capital stock of BRAVO
immediately prior to the issuance of shares called for in Article 1 of this
Agreement consists of 19,088,232 shares of Common Stock, $0.001 par value per
share. Upon issuance of the shares called for in Article 1 of this Agreement,
and the issuance of the shares referenced in Section 6.2(l), issued and
outstanding capital stock of BRAVO shall consist of 47,370,280 shares of Common
Stock, $0.001 par value per share. All of the issued and outstanding shares of
capital stock of BRAVO are validly issued, fully paid, and nonassessable, and
none of such shares has been issued in violation of the preemptive rights of any
person. The Common Stock shall be validly issued, fully paid, and nonassessable.
(h) SUBSIDIARIES AND AFFILIATES. Except as set forth in Section 4(h)
of the BRAVO Disclosure Schedule, BRAVO does not own or hold, directly or
indirectly, any equity, debt, or other interest in any entity or business or any
option to acquire any such interest.
(i) OPTIONS OR OTHER RIGHTS. Except as set forth in Section 4(i) of
the BRAVO Disclosure, no options, warrants, calls, commitments or other rights
to acquire, sell or issue shares of capital stock or other equity interests of
BRAVO whether upon conversion of other securities or otherwise, are issued or
outstanding except as set forth in the BRAVO Disclosure Schedule, and there is
no agreement or understanding with respect to the voting of such capital stock
or other equity interests.
(j) INVESTMENT COMPANY. Bravo is not an investment company within the
meaning of Section 3 of the Investment Company Act.
17
(k) TRADING STATUS. BRAVO Common Stock is quoted on the OTC Bulletin
Board under the symbol "BVOL."
(l) EXEMPTION FROM REGISTRATION. The shares of BRAVO Common Stock to
be issued pursuant to Article 1 will be issued in a transaction exempt from
registration under the Securities Act of 1933, as amended (including the rules
and regulations promulgated thereunder, the "Securities Act").
(m) SEC REPORTING STATUS. BRAVO filed a registration statement under
the Securities Act of 1933, which was declared effective on February 11, 2004.
Accordingly, since that date, BRAVO has filed all reports required to be filed
pursuant to Section 15(d) of the Securities Exchange Act of 1934.
(n) VIOLATION OF LAWS, PERMITS, ETC. To the knowledge of BRAVO, (i)
BRAVO is not in violation of any term or provision of its Articles of
Incorporation or bylaws, or of any material term or provision of any judgment,
decree, order, statute, law, injunction, rule, ordinance, or governmental
regulatioin that is application to it. (ii) BRAVO has maintained in full force
and effect all certificates, licenses, and permits material to the conduct of
its business, and has not received any notification that any revocation or
limitation thereof is threatened or pending.
(o) BOOKS AND RECORDS. The books and records of BRAVO (including,
without limitation, the books of account, minute books, and stock record books)
are complete and correct in all material respects and have been maintained in
accordance with sound business practices. The minute books of BRAVO are complete
and current in all material respects and, as applicable, accurately reflect all
actions taken by the shareholders of the board of directors of BRAVO since the
date of inception of BRAVO, and all signatures contained therein are the true
signatures of the persons whose signatures they purport to be.
(p) UNDISCLOSED LIABILITIES. To the knowledge of BRAVO, BRAVO does not
have any Liability of a kind required by GAAP to be set forth on a financial
statement that is not fully and adequately reflected or reserved against on the
BRAVO Financial Statements. BRAVO does not have any Liabilities, whether or not
of a kind required by GAAP to be set forth on a financial statement, other than
(a) Liabilities incurred in the Ordinary Course of Business since the date of
the latest balance sheet included in the BRAVO Financial Statements that are
consistent with past practice and are included in the latest BRAVO Financial
Statements, (b) Liabilities that are fully reflected on or reserved against on
the latest balance sheet included in the BRAVO Financial Statements, or (c) as
specifically disclosed in the BRAVO Financial Statements.
(q) TITLE TO PROPERTY; ENCUMBRANCES. BRAVO has good and indefeasible
title to and other legal right to use all properties and assets, real, personal
and mixed, tangible and intangible, reflected as owned on the latest balance
sheet included in the BRAVO Financial Statements or acquired after the date of
such balance sheet, except for properties and assets disposed of in accordance
with customary practice in the business or disposed of for full and fair value
since the date of such balance sheet in the Ordinary Course of Business
consistent with past practice.
(r) TAXES. All Tax Returns, reports and declarations of estimated tax
or estimated tax deposit forms required to be filed by BRAVO have been duly and
timely filed; BRAVO has paid all Taxes which have become due whether pursuant to
such returns or any assessment received by it or
18
otherwise, and has paid all installments of estimated Taxes due; and all Taxes
which BRAVO is required by law to withhold or to collect have been duly withheld
and collected, and have been paid over to the proper Governmental or Regulatory
Body. There are no tax liens upon any of the assets or properties of BRAVO and
BRAVO does not have any obligation to make payments under any Settlement
Agreement, defined herein to mean any express tax settlement agreement,
arrangement, policy or guideline, formal or informal.
(s) LITIGATION. (a) There is no action, proceeding, investigation, or
inquiry pending or, to the best of BRAVO's knowledge, threatened (i) against or
affecting any of BRAVO's assets or business that, if determined adversely to
BRAVO, would result in a material effect or (ii) that questions this Agreement
or any action contemplated by this Agreement or in connection with the Share
Exchange. (b) BRAVO has no knowledge of any state or facts or of the occurrence
or nonoccurrence of any event or group of related events, that should reasonably
cause BRAVO to determine that there exists any basis for any material claim
against BRAVO for any of the matters described in paragraph (a) above.
(t) CONTRACTS AND OTHER AGREEMENTS. BRAVO has made available to WOIZE,
HALLDIN and XXXXXXXX complete and correct copies of all material written
agreements, contracts, and commitments, together with all amendments thereto,
and accurate (in all material respects) descriptions of all material oral
agreements. To the best of BRAVO's knowledge, such agreements, contracts, and
commitments are in full force and effect, and, all other parties to such
agreements, contracts, and commitments have performed all obligations required
to be performed by them to date thereunder in all material respects and are not
in default thereunder in any material aspect.
(u) COMPENSATION ARRANGEMENTS; OFFICERS AND DIRECTORS. Section 4(u) to
the BRAVO Disclosure Schedule sets forth: (a) the names of all present officers
and directors of BRAVO and current annual salary, including any promised,
expected or customary bonus or such other amount, and (b) the names and titles
of all directors and offices of BRAVO. BRAVO has not made a commitment or
agreement (verbally or in writing) to increase the compensation or to modify the
conditions or terms of employment of any person listed in Section 4(u) to the
BRAVO Disclosure Schedule. To the knowledge of BRAVO, none of such persons has
made a threat to BRAVO to terminate such person's relationship with BRAVO.
(v) ERISA. Except as set forth in 4(v) to the BRAVO Disclosure
Schedule, there are no employee benefit plans as defined in ERISA ("PLANS")
maintained for the benefit of, or covering, any employee, former employee,
independent contractor or former independent contractor of BRAVO, or their
dependents or their beneficiaries, otherwise, now or heretofore contributed to
by BRAVO, and no such Plan is or has ever been subject to ERISA.
(w) OPERATIONS. Except as expressly authorized by this Agreement, and
except as set forth in Section 4(w) to the BRAVO Disclosure Schedule, since the
date of the latest BRAVO Financial Statements, BRAVO has not: (a) amended its
Articles of Incorporation or By-Laws or merged with or into any consolidated
with any other entity, or changed or agreed to rearrange in any manner the
character of the business of BRAVO; (b) issued, sold or purchased options or
rights to subscribe to, or entered into any contracts or commitments to issue,
sell or purchase, any shares of its capital stock or other equity interests
except in the Ordinary Course of Business and consistent with past practices;
(c) issued any note, bond or other debt security, created, incurred or assumed
any
19
indebtedness for borrowed money other than in the Ordinary Course of Business in
connection with trade payables, or guaranteed any indebtedness for borrowed
money or any capitalized lease obligation; (d) declared, set aside or paid any
dividends or declared or made any other distributions of any kind to the
shareholders, or made any direct or indirect redemption, retirement, purchase or
other acquisition of any shares of its capital stock or other equity interests;
(e) knowingly waived any right of material value to the business of BRAVO.
(x) DISCLOSURE. To the knowledge of BRAVO, the representations and
warranties contained in this Article do not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements and information contained in this Article 4 not misleading.
ARTICLE V
ACTIONS PRIOR TO CLOSING
5.1 CORPORATE EXAMINATIONS AND INVESTIGATIONS. At or prior to Closing, each
of BRAVO and WOIZE shall be entitled to make such investigation of the
assets, properties, business and operations of the other and such
examination of the books, records, Tax Returns, financial condition and
operations of the other as each may wish. Any such investigation and
examination shall be conducted at reasonable times and under reasonable
circumstances and BRAVO and WOIZE shall cooperate fully therein. In
order that each of BRAVO and WOIZE may have full opportunity to make
such a business, accounting and legal review, examination or
investigation as it may wish of the business and affairs of the other,
BRAVO or WOIZE, as the case may be, shall furnish to the other during
such period all such information and copies of such documents
concerning its affairs as BRAVO or WOIZE may reasonably request and
cause its officers, employees, consultants, agents, accountants and
attorneys to cooperate fully and provide all material facts affecting
its financial condition and business operations. Until the Closing and
if the Closing shall not occur, thereafter, BRAVO, WOIZE, and its
respective affiliates shall keep confidential and shall not use in any
manner inconsistent with the transactions contemplated by this
Agreement and after termination of this Agreement, BRAVO, WOIZE, and
its respective affiliates shall not disclose, nor use for their own
benefit, any information or documents obtained from the other
concerning its assets, properties, business and operations, unless (a)
readily ascertainable from public or published information, or trade
sources, (b) received from a third party not under an obligation to
BRAVO or WOIZE, as the case may be, to keep such information
confidential or (c) required by any lawful governmental order or
regulation. If this transaction does not close for any reason, BRAVO,
WOIZE, and its respective affiliates shall return or destroy all such
confidential information and compilations thereof as is practicable,
and shall certify such destruction or return to BRAVO or WOIZE, as the
case may be.
5.2 CONDUCT AND PRESERVATION OF BUSINESS OF BRAVO. From the date hereof
through Closing, BRAVO shall cause its corporate existence to be
continued in the Ordinary Course of Business in the same manner as it
has been conducted since it inception. BRAVO covenants that, except
with the prior written consent of WOIZE, which consent shall not be
unreasonably withheld, BRAVO will not:
20
(a) Enter into any transaction other than in the Ordinary Course
of Business.
Further, BRAVO shall use commercially reasonable efforts to (i)
preserve intact its business, assets, properties and organizations,
(ii) keep available the services of its present officers, employees,
consultants and agents; and (iii) maintain its present suppliers and
customers and preserve its goodwill.
5.3 CONDUCT AND PRESERVATION OF BUSINESS OF WOIZE. From the date hereof
through Closing, WOIZE shall cause its business to be conducted in the
Ordinary Course of Business and in the same manner as it has been
conducted since its inception. WOIZE covenants that, except with the
prior written consent of BRAVO, which consent shall not be unreasonably
withheld, WOIZE will not:
(a) Enter into any transaction other than in the Ordinary Course
of Business.
Further, WOIZE shall use commercially reasonable efforts to (i)
preserve intact its business, assets, properties and organizations,
(ii) keep available the services of its present officers, employees,
consultants and agents; and (iii) maintain its present suppliers and
customers and preserve its goodwill.
5.4 ADVICE OF CHANGES. WOIZE will promptly advise BRAVO in writing from
time to time prior to the Closing with respect to any matter hereafter
arising and known to them that, if existing or occurring at the date of
this Agreement, would have been required to be set forth or described
in the WOIZE Disclosure Schedule or would have resulted in any
representation of WOIZE in this Agreement being untrue. BRAVO will
promptly advise WOIZE in writing from time to time prior to the Closing
with respect to any matter hereafter arising and known to it that, if
existing or occurring at the date of this Agreement, would have been
required to be set forth or described in the BRAVO Disclosure Schedule
or would have resulted in any representation of BRAVO in this Agreement
being untrue in any material respect.
5.5 OTC BULLETIN BOARD. BRAVO will use its best efforts to maintain the
listing on the OTC Bulletin Board of the BRAVO Common Stock. BRAVO
shall take the necessary action to notify NASD Regulation of the Share
Exchange in a timely manner.
5.6 SEC REPORTS. BRAVO shall file with the SEC all reports and other
documents that are required by the Securities Exchange Act of 1934 and
the rules and regulations promulgated thereunder to be filed in
connection with the transactions contemplated by this Agreement.
5.7 SHAREHOLDER APPROVAL. WOIZE shall, as expeditiously as possible, take
all actions necessary to obtain the approval of its shareholders of the
transactions contemplated by this Agreement as required by the laws of
the jurisdiction of its incorporation.
5.8 OTHER AGREEMENTS. WOIZE and BRAVO agree to take, or cause to be taken,
all actions and to do, or cause to be done, all things reasonably
necessary, proper or advisable to consummate and make effective as
promptly as practicable the transactions contemplated by
21
this Agreement, including, without limitation, the obtaining of all
necessary waivers, consents and approvals and the effecting of all
necessary registrations and filings, including, but not limited to,
submissions of information requested by Governmental or Regulatory
Bodies and any other persons required to be obtained by them for the
consummation of the closing and the continuance in full force and
effect of the permits, contracts and other agreements set forth on the
Schedules to this Agreement.
ARTICLE VI
CONDITIONS PRECEDENT TO CLOSING
6.1 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF BRAVO TO COMPLETE THE
CLOSING. The obligations of BRAVO to enter into and complete the
Closing are subject to the fulfillment of the following conditions, any
one or more of which may be waived by BRAVO:
(a) (i) All of the terms, covenants, and conditions of this
Agreement to be complied with or performed by WOIZE at or
before the Closing shall have been duly complied with and
performed in all material respects, (ii) the representations
and warranties of WOIZE set forth in Article III shall be true
in all material respects on and as of Closing with the same
force and effect as if such representations and warranties had
been made on and as of the Closing, and (iii) BRAVO shall have
received a certificate to such effect from WOIZE.
(b) All consents, waivers, approvals, licenses, authorizations of,
or filings or declarations with third parties or Governmental
or Regulatory Bodies required to be obtained by WOIZE in order
to permit the transactions contemplated by this Agreement to
be consummated in accordance with agreements and court orders
applicable to WOIZE and applicable governmental laws, rules,
regulations and agreements shall have been obtained and any
waiting period thereunder shall have expired or been
terminated, and BRAVO shall have received a certificate from
WOIZE to such effect.
(c) All actions, proceedings, instruments, and documents in
connection with the consummation of the transactions
contemplated by this Agreement, including the forms of all
documents, legal matters, opinions, and procedures in
connection therewith, shall have been approved in form and
substance by counsel for BRAVO, which approval shall not be
unreasonably withheld.
(d) WOIZE shall have furnished such certificates to evidence
compliance with the conditions set forth in this Article, as
may be reasonably requested by BRAVO or its counsel.
(e) WOIZE shall not have suffered any material adverse effect.
(f) No material information or data provided or made available to
BRAVO by or on behalf of WOIZE shall be incorrect in any
material respect.
22
(g) No material investigation and no material suit, action, or
proceeding before any court or any governmental or regulatory
authority shall be pending or threatened by any state or
federal governmental or regulatory authority, against WOIZE or
any of its affiliates, associates, officers, or directors
seeking to restrain, prevent, or change in any material
respect the transactions contemplated hereby or seeking
damages in connection with such transactions that are material
to WOIZE.
(h) The WOIZE Shareholder, HALLDIN and XXXXXXXX shall have
acknowledged that the shares of BRAVO Common Stock are
restricted securities under the Securities Act and represent
that it: (i) is acquiring the BRAVO Common Stock for its own
account without a view to distribution within the meaning of
the Securities Act; (ii) has received from BRAVO its filings
with the Securities and Exchange Commission and all other
information that it has deemed necessary to make an informed
investment decision with respect to an investment in BRAVO in
general and the BRAVO Common Stock in particular; (iii) is
financially able to bear the economic risks of an investment
in BRAVO; and (iv) has such knowledge and experience in
financial and business matters in general and with respect to
investments of a nature similar to the BRAVO Common Stock so
as to be capable, by reason of such knowledge and experience,
of evaluating the merits and risks of, and making an informed
business decision with regard to, the acquisition of the BRAVO
Common Stock. Such acknowledgment shall also indicate that the
WOIZE Shareholder, HALLDIN and XXXXXXXX understand and agree
that the certificates evidencing the BRAVO Common Stock shall
bear the usual restrictive legend pertaining to Rule 144 under
the Securities Act and that the BRAVO Common Stock will not be
transferable except under an effective registration statement
under the Securities Act or in accordance with available
exemptions from registration under the Securities Act. Such
acknowledgment shall be substantially in the form attached
hereto as EXHIBIT G.
(i) WOIZE and the WOIZE Shareholder shall have received the
necessary approvals from 100% of its shareholders to proceed
with the transactions contemplated herein and shall have
delivered to BRAVO written shareholder consents to the
transactions contemplated under this Agreement in the form
attached hereto as EXHIBIT H.
(j) WOIZE shall have demonstrated, to the reasonable satisfaction
of BRAVO, that it owns all of the rights to the Intellectual
Property as described in Section 3(m).
(k) WOIZE shall have executed and delivered to BRAVO the Escrow
Agreement;
(l) BRAVO shall have received from counsel to WOIZE an opinion in
the form of EXHIBIT I attached hereto, addressed to BRAVO, and
dated as of Closing.
6.2 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF WOIZE TO COMPLETE THE
CLOSING. The obligations of WOIZE to enter into and complete the
Closing are subject to the fulfillment on or prior to Closing, of the
following conditions, any one or more of which may be waived by WOIZE:
23
(a) (i) All of the terms, covenants, and conditions of this
Agreement to be complied with or performed by BRAVO at or
before the Closing shall have been duly complied with and
performed in all material respects, (ii) the representations
and warranties of BRAVO set forth in Article IV shall be true
in all material respects on and as of Closing with the same
force and effect as if such representations and warranties had
been made on and as of the Closing, and (iii) WOIZE shall have
received a certificate to such effect from BRAVO. BRAVO shall
provide a certificate from its transfer agent as to the
representations contained in Section 4(g).
(b) All consents, waivers, approvals, licenses, authorizations of,
or filings or declarations with third parties or Governmental
or Regulatory Bodies required to be obtained by BRAVO in order
to permit the transactions contemplated by this Agreement to
be consummated in accordance with agreements and court orders
applicable to BRAVO and applicable governmental laws, rules,
regulations and agreements shall have been obtained and any
waiting period thereunder shall have expired or been
terminated, and WOIZE shall have received a certificate from
BRAVO to such effect.
(c) All actions, proceedings, instruments, and documents in
connection with the consummation of the transactions
contemplated by this Agreement, including the forms of all
documents, legal matters, opinions, and procedures in
connection therewith, shall have been approved in form and
substance by counsel for WOIZE, which approval shall not be
unreasonably withheld.
(d) BRAVO shall have furnished such certificates to evidence
compliance with the conditions set forth in this Article, as
may be reasonably requested by WOIZE or its counsel.
(e) BRAVO shall not have suffered any material adverse effect.
(f) No material information or data provided or made available to
WOIZE by or on behalf of BRAVO shall be incorrect in any
material respect.
(g) No material investigation and no material suit, action, or
proceeding before any court or any governmental or regulatory
authority shall be pending or threatened by any state or
federal governmental or regulatory authority, against BRAVO or
any of its affiliates, associates, officers, or directors
seeking to restrain, prevent, or change in any material
respect the transactions contemplated hereby or seeking
damages in connection with such transactions that are material
to BRAVO.
(h) The BRAVO Common Stock shall continue to be quoted on the OTC
Bulletin Board.
(i) BRAVO shall have executed and delivered to WOIZE the Escrow
Agreement and shall have delivered the Items of Escrow
identified therein.
(j) BRAVO shall have executed and delivered to WOIZE the Note.
24
(k) WOIZE shall have received from counsel to BRAVO an opinion in
the form of EXHIBIT J attached hereto, addressed to WOIZE, and
dated as of Closing;
(l) BRAVO shall have delivered to WOIZE, HALLDIN and XXXXXXXX
evidence to their full satisfaction that upon Closing of this
Share Exchange, BRAVO shall receive from escrow
unconditionally, cash in the amount of US$2,499,993 pursuant
to a private placement of shares of BRAVO stock, save for the
payments payable under Section 1.11 upon Closing.
(m) BRAVO shall have delivered to WOIZE, HALLDIN and XXXXXXXX
written shareholder consents to the transactions contemplated
under this Agreement, executed by shareholders holding a
majority of the issued and outstanding shares of BRAVO Common
Stock, in the form attached hereto as EXHIBIT K.
ARTICLE VII
POST-CLOSING COVENANTS AND CONDITIONS
The Parties covenant to take the following actions after Closing:
7.1 FURTHER INFORMATION. Following the Closing, each party will afford to
the other party, its counsel and its accountants, during normal
business hours, reasonable access to the books, records and other data
of WOIZE or BRAVO, as the case may be, relating to the business of
WOIZE or BRAVO in their possession with respect to periods prior to the
Closing and the right to make copies and extracts therefrom, to the
extent that such access may be reasonably required by the requesting
party (a) to facilitate the investigation, litigation and final
disposition of any claims which may have been or may be made against
any party or its affiliates and (b) for any other reasonable business
purpose.
7.2 RECORD RETENTION. Each party agrees that for a period of not less than
five years following Closing, such party shall not destroy or otherwise
dispose of any of the Books and Records of WOIZE or BRAVO relating to
the business of WOIZE or BRAVO in his or its possession with respect to
periods prior to Closing. Each party shall have the right to destroy
all or part of such Books and Records after the fifth anniversary of
Closing or, at an earlier time by giving each other party hereto 30
days prior written notice of such intended disposition and by offering
to deliver to the other party or parties, at the other party's or
parties' expense, custody of such Books and Records as such party may
intend to destroy.
7.3 PRIVATE PLACEMENTS. Within five months of Closing, using its best
efforts, BRAVO will engage in one or more private placements of its
shares of Common Stock and shall pay the WOIZE Shareholder thirty
percent (30%) of the net proceeds of such private placements up to an
amount equal to US$1,500,000, less any principal payments made pursuant
to the terms of the Note. Any such payments made to the Woize
Shareholder pursuant to this section shall be set off against the sum
payable in accordance to the Note.
25
7.4 POST-CLOSING ASSISTANCE. WOIZE and BRAVO will provide each other with
such assistance as may reasonably be requested in connection with the
preparation of any Tax Return, any audit or other examination by any
taxing authority, or any judicial or administrative proceedings
relating to liability for Taxes, and each will retain and provide the
requesting party with any records or information that may be reasonably
relevant to such return, audit or examination, proceedings or
determination. The party requesting assistance shall reimburse the
other party for reasonable out-of-pocket expenses incurred in providing
such assistance. Any information obtained pursuant to this Section 7.5
or pursuant to any other Section hereof providing for the sharing of
information or the review of any Tax Return or other schedule relating
to Taxes shall be kept confidential by the parties hereto.
7.5 TRADING SYMBOL. BRAVO will use its best efforts to change its name and
trading symbol under which BRAVO Common Stock is quoted on the OTC
Bulletin Board to WOIZE.
ARTICLE VIII
SURVIVAL OF AGREEMENTS; INDEMNIFICATION
8.1 SURVIVAL OF AGREEMENTS, REPRESENTATIONS AND WARRANTIES. Notwithstanding
any investigation conducted or notice or knowledge obtained by or on
behalf of any party hereto, each agreement in this Agreement shall
survive the Closing without limitation as to time until fully performed
and each representation and warranty in this Agreement or in the
Exhibits, Schedules or certificates delivered pursuant to this
Agreement shall survive the Closing for a period of two years.
8.2 INDEMNIFICATION. Notwithstanding the Closing, and regardless of any
investigation made at any time by or on behalf of BRAVO of any
information WOIZE or the Warranting Parties may have, subject to the
limitations set forth in Article X below, the Warranting Parties and
BRAVO hereby agree to mutually indemnify each other with respect to any
damage, liability, loss, cost or deficiency (including, but not limited
to, reasonable attorney fees and other costs and expenses incident to
proceedings or investigations or the defense of any claim) arising out
of, resulting from or related to, and to pay to the other party hereto
on demand the full amount of any sum which such party becomes obligated
to pay on account of breach of any warranty of the Warranting Parties
or BRAVO as applicable expressly set forth in this Agreement.
ARTICLE IX
TERMINATION OF AGREEMENT
9.1 TERMINATION. This Agreement may be terminated at any time prior to the
Closing as follows:
(a) by mutual written consent of BRAVO and WOIZE and the WOIZE
Shareholder;
(b) by BRAVO or WOIZE and the WOIZE Shareholder by written notice
to the other party hereto on or before the 21st day following
the date of this Agreement upon the reasonable discretion of
either party.
26
(c) by BRAVO or WOIZE and the WOIZE Shareholder by written notice
to the other party hereto, if the Closing shall not have
occurred on or prior to the close of business on the 21st day
following the date of this Agreement (unless such event has
been caused by a breach of this Agreement by the party seeking
such termination);
(d) by BRAVO or by WOIZE and the WOIZE Shareholder if a
Governmental or Regulatory Body has permanently enjoined or
prohibited consummation of the Share Exchange and such court
or government action is final and nonappealable;
(e) by BRAVO or by WOIZE and the WOIZE Shareholder, if the other
party hereto has failed to comply in any material respect with
any of its covenants or agreements under this Agreement that
are required to be complied with prior to the date of such
termination.
Should WOIZE and the WOIZE Shareholder terminate this Agreement for any
reason other than as described in Section 9.1 hereof, WOIZE, HALLDIN
and XXXXXXXX shall be jointly and severally liable for any damages
caused by the failure to close. Similarly, if BRAVO should terminate
this Agreement for any reason other than as described in Section 9.1
hereof, BRAVO shall be liable for all damages caused by the failure to
close.
9.2 SURVIVAL AFTER TERMINATION. If this Agreement is terminated pursuant to
Section 9.1(a) this Agreement shall become null and void and of no
further force and effect, except for the provisions of Section 5.1
relating to the obligation to keep confidential certain information and
(b) there shall be no liability on the part of WOIZE or BRAVO or their
respective affiliates.
ARTICLE X
LIMITATIONS ON LIABILITY
10.1 No claim (a "Relevant Claim") in respect of any of the warranties set
forth in Section 3 (the "Warranties") or the indemnity set forth in
Section 8.2 may be made unless written notice detailing a specific
breach of warranty and containing details of the general nature of the
claim and approximate amount thereof shall have been given by BRAVO to
Warranting Parties within two years of Closing.
10.2 Any Relevant Claim which is validly made within the required period
under paragraph 10.1 shall (unless previously settled or withdrawn) be
deemed to have been waived or withdrawn in the event that legal
proceedings in respect thereof are not issued and served on Warranting
Parties within six months of written notice of the Relevant Claim first
being given aforesaid.
10.3 No Relevant Claim may be made and the Warranting Parties shall not be
liable under any Relevant Claim unless:
(a) the amount of the liability actually payable under the individual
claim concerned exceeds
27
$1,000; and
(b) the amount actually payable under such claim and under all other
Relevant Claims (each being in excess of $1,000) exceeds $10,000
in aggregate and, in that event, the Warranting Parties shall be
liable for the whole of that amount and not merely the excess.
10.4 The maximum aggregate liability of the Parties under all Relevant
Claims shall not exceed $100,000.
10.5 No Relevant Claim may be made if it would not have arisen but for some
voluntary act, omission, transaction or arrangement of or carried out
at the request of, by or on behalf of BRAVO or any of its affiliates
after Closing and their respective successors in title where BRAVO or
any of its affiliates knew or ought reasonably to have appreciated that
such act, omission, transaction or arrangement would give rise to the
liability or loss which, but for this Section 10.5, would have given
rise to the right to make a Relevant Claim; provided that the provision
of this Section 10.5 shall not apply where any action:
(a) is carried out pursuant to a legally binding obligation of
WOIZE incurred prior to Closing;
(b) is carried our pursuant to an obligation imposed by any law,
regulation or requirement having the force of law;
(c) takes place with the written approval of the Warranting
Parties or pursuant to this Agreement or any document executed
pursuant to this Agreement; or
(d) occurs in the Ordinary Course of Business of WOIZE as carried
on at Closing.
10.6 No Relevant Claim may be made to the extent that the claim arises or is
increased as a result of all or any of:
(a) a cessation of or any change in the nature or conduct of any
trade or business carried on by WOIZE where that cessation or
change occurs on or after Closing;
(b) the failure by the Parties to comply with their obligations
under any Transaction Document (defined herein as this
Agreement and all documents referred to herein); and
(c) to the extent that it would not have arisen but for the
passing of, or any change in, after Closing any law, rule,
regulation, interpretation of the law or administrative
practice of any government, governmental department, agency,
court or regulatory body.
10.7 If in respect of a Relevant Claim the liability of the respective party
is contingent or unquantifiable then the other party hereto shall not
be liable in respect thereof unless and until such time as the
contingent liability ceases to be contingent and becomes actual or such
28
liability is quantified; provided that in the case of such a claim duly
notified within the relevant period referred to in Section 10.2 above
the period of six months referred to in such paragraph shall commence
on the date such liability becomes actual or is quantified but shall
never extend beyond two years from the Closing.
10.8 The Parties shall not be entitled to recover damages or otherwise
obtain reimbursement or restitution more than once in respect of any
one breach of the Warranties or the subject matter thereof.
ARTICLE XI
MISCELLANEOUS
11.1 EXPENSES. Each party shall be responsible for its own legal and
accounting fees in connection with the Share Exchange, subject to the
provisions of Section 1.11.
11.2 FURTHER ASSURANCES.
(a) WOIZE, HALLDIN and XXXXXXXX will use their best efforts to
implement the provisions of this Agreement, and for such
purpose WOIZE, HALLDIN and XXXXXXXX, at the request of BRAVO,
at or after the Closing will, without further consideration,
promptly execute and deliver, or cause to be executed and
delivered, to BRAVO such other instruments in addition to
those required by this Agreement, in form and substance
satisfactory to BRAVO, and take all such other actions as
BRAVO may reasonably deem necessary or desirable to implement
any provision of this Agreement.
(b) BRAVO will use its best efforts to implement the provisions of
this Agreement, and for such purpose BRAVO, at the request of
the Warranting Parties, before, at or after the Closing will,
without further consideration, promptly execute and deliver,
or cause to be executed and delivered, to the Warranting
Parties such other instruments in addition to those required
by this Agreement, in form and substance satisfactory to the
Warranting Parties, and take all such other actions as the
Warranting Parties may reasonably deem necessary or desirable
to implement any provision of this Agreement.
(c) The Parties shall use their best efforts to fulfill or obtain
the fulfillment of the conditions to the Closing, including,
without limitation, the execution and delivery of any document
or other papers, the execution and delivery of which are
conditions precedent to the Closing.
11.3 NOTICES. All notices, requests, demands and other communications
required or permitted to be given hereunder shall be in writing and
shall be given personally, sent by facsimile transmission or sent by
prepaid air courier or certified or express mail, postage prepaid. Any
such notice shall be deemed to have been given (a) when received, if
delivered in person, sent by facsimile transmission and confirmed in
writing within three (3) business days thereafter or sent by prepaid
air courier or (b) three (3) business days following the mailing
29
thereof, if mailed by certified first class mail, postage prepaid,
return receipt requested, in any such case as follows (or to such other
address or addresses as a party may have advised the other in the
manner provided in this Section 11.3):
If to WOIZE: Xxxxxx Xxxxxxx and Xxxxxx Xxxxxxxx
c/o Kerman & Co LLP
0 Xxxxx Xxxxx
Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
with a copy to: Kerman & Co. LLP
0 Xxxxx Xxxxx
Xxxxxx
Xxxxxx
XX0X 0XX
Xxxxxx Xxxxxxx
Attention: Xxxxxx X'Xxxxxxx Esq.
If to BRAVO: Bravo Resources Ltd.
#000 0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX X0X 0X0
Attention: Xxxxxx Xxxxxx, President
With a copy to: Xxxx Xxxx Xxxx Xxxxxxxxxx & Xxxxxxxxx, P.C.
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxx X. XxXxxxxxx, Esq.
11.4 MEDIATION. The parties hereto encourage the prompt and equitable
settlement of all controversies or claims (a "Dispute") between or
among the parties and their affiliates including but not limited to
those arising out of or relating to this Agreement or the transactions
contemplated hereby. At any time, either party can give the other
written notice that it desires to settle a Dispute. Within 10 days of
delivery of such notice, the parties agree to cause their officers
having authority to resolve such differences to meet for two out of
four continuous days (the "Negotiation Period"), the parties agree to
submit their Dispute to a mediator to work with them to resolve their
differences. Such mediator shall be selected by mutual agreement of the
parties. The parties shall participate in the mediation proceeding in
good faith with the intention to settle. The mediation shall be
conducted pursuant to the rules generally used by the mediator in the
mediator's practice, which rules may be modified or amended with the
written consent of the parties. No later than three business days prior
to the mediation, each party shall deliver to the mediator all
information reasonably required for the mediator to understand the
Dispute and the issues presented. The mediation shall be determined
upon the first to occur of the following: (i) by the execution of a
settlement agreement resolving the Dispute by the parties; (ii) by a
written declaration of the mediator
30
to the effect that further efforts at mediation are no longer
worthwhile; or (iii) after the completion of two full days of mediation
effect that mediation proceedings are terminated. No party shall xxx
any other party hereto in connection with any Dispute, except for
enforcement of the negotiation and mediation process set forth herein,
and the arbitration provisions set forth in Section 11.5 hereof shall
not be applicable, in each case, prior to termination of the
Negotiation Period and of the mediation as provided above.
11.5 ARBITRATION. Any dispute, controversy, or claim arising out of,
relating to, or in connection with, this Agreement or the agreements or
transactions contemplated by this Agreement shall be finally settled by
binding arbitration. The arbitration shall be conducted and the
arbitrator chosen in accordance with the commercial arbitration rules
of the American Arbitration Association in effect at the time of the
arbitration, except as they may be modified herein or by mutual
agreement of BRAVO and WOIZE. In connection with any such arbitration,
each party shall be afforded the opportunity to conduct discovery in
accordance with the Federal Rules of Civil Procedure.
(a) The seat of the arbitration shall be in Las Vegas, Nevada.
Each of WOIZE and BRAVO hereby irrevocably submits to the
jurisdiction of the arbitrator in Las Vegas, Nevada, and
waives any defense in an arbitration based upon any claim that
such party is not subject personally to the jurisdiction of
such arbitrator, that such arbitration is brought in an
inconvenient format, or that such venue is improper.
(b) The arbitral award shall be in writing and shall be final and
binding on each of the parties to this Agreement. The award
may include an award of costs, including reasonable attorneys'
fees and disbursements. Judgment upon the award may be entered
by any court having jurisdiction thereof or having
jurisdiction over the parties or their assets. WOIZE and BRAVO
acknowledge and agree that by agreeing to these arbitration
provisions each of the parties hereto is waiving any right
that such party may have to a jury trial with respect to the
resolution of any dispute under this Agreement or the
agreements or transactions contemplated hereby.
11.6 PUBLICITY. No publicity release or announcement concerning this
Agreement or the transactions contemplated hereby shall be made without
advance approval thereof by BRAVO and WOIZE except as may be required
by applicable law or the rules and regulations of the applicable
regulatory authorities.
11.7 ENTIRE AGREEMENT. This Agreement (including the Exhibits and Schedules)
and the agreements, certificates and other documents delivered pursuant
to this Agreement contain the entire agreement among the parties with
respect to the transactions described herein, and supersede all prior
agreements, written or oral, with respect thereto.
11.8 WAIVERS AND AMENDMENTS. This Agreement may be amended, superseded,
canceled, renewed or extended, and the terms hereof may be waived, only
by a written instrument signed by the parties or, in the case of a
waiver, by the party waiving compliance. No delay on the part of any
party in exercising any right, power or privilege hereunder shall
operate as a waiver thereof
31
11.9 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Nevada without regard to
principles of conflicts of law.
11.10 BINDING EFFECT, NO ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors and
permitted assigns. This Agreement is not assignable by any party hereto
without the prior written consent of the other parties hereto except by
operation of law and any other purported assignment shall be null and
void.
11.11 COUNTERPARTS. This Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together
constitute one and the same instrument. Each counterpart may consist of
a number of copies hereof each signed by less than all, but together
signed by all of the parties hereto.
11.12 EXHIBITS AND SCHEDULES. The Exhibits and Schedules are a part of this
Agreement as if fully set forth herein. All references herein to
Sections, subsections, clauses, Exhibits and Schedules shall be deemed
references to such parts of this Agreement, unless the context shall
otherwise require.
11.13 EFFECT OF DISCLOSURE ON SCHEDULES. Any item disclosed on any Schedule
to this Agreement shall be deemed to be disclosed in relation to all
representations and warranties and such disclosures shall not be
limited in any way to any single representation or warranty
11.14 HEADINGS. The headings in this Agreement are for reference only, and
shall not affect the interpretation of this Agreement.
11.15 SEVERABILITY OF PROVISIONS. If any provision or any portion of any
provision of this Agreement or the application of such provision or any
portion thereof to any person or circumstance, shall be held invalid or
unenforceable, the remaining portion of such provision and the
remaining provisions of this Agreement, or the application of such
provision or portion of such provision as is held invalid or
unenforceable to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby.
[Signature Page to Follow]
32
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
BRAVO RESOURCES LTD.
By: /s/ XXXXXX XXXXXX
------------------------------------------------
Name: XXXXXX XXXXXX
------------------------------------------------
Title: PRESIDENT
-----------------------------------------------
WOIZE LTD.
By: /s/ XXXXXX XXXXXXX
------------------------------------------------
Name: Xxxxxx Xxxxxxx
-------------------------------------
Title: Director
---------------------------------------------
ST JAMES'S SQUARE NOMINEES LIMITED
By: /s/ XXXXXX X'XXXXXXX
--------------------------------------------------
Name: Xxxxxx X'Xxxxxxx
------------------------------------------------
Title: Director
-----------------------------------------------
/s/ XXXXXX XXXXXXX
-----------------------------------------------------
XXXXXX XXXXXXX
/s/ XXXXXX XXXXXXXX
-----------------------------------------------------
XXXXXX XXXXXXXX
33
