ACQUISITION AGREEMENT
AGREEMENT dated 16th November ("the Agreement"), by, between and
among BIOINCUBATION INC, a company incorporated under the laws of
the State of Delaware (herein referred to as BBN), the persons
listed on Exhibit A attached hereto and made a part hereof, being
all of the shareholders and executive officers of BBN
(hereinafter referred to as "MANAGEMENT"); and Netmedia
Developments Limited, a company incorporated under the laws of
the United Kingdom (hereinafter referred to as "NDL "); and the
persons listed on Exhibit "A" attached hereto and made a part
hereof, (hereinafter referred to as the "SELLERS").
WHEREAS, the SELLERS own a total of 1000 shares of common stock,
GBP1 par value, of NDL, said shares being 100% of the issued and
outstanding common stock of NDL.
WHEREAS, the SELLERS desire to sell and BBN desires to purchase
one hundred (100%) percent of such shares.
NOW, THEREFORE, in consideration of the mutual convenants,
agreements, representations and warranties herein contained, the
parties hereby agree as follows:
1. Purchase and Sale - The SELLERS hereby agree to sell,
transfer, assign and convey to BBN and BBN hereby agrees to
purchase and acquire from the SELLERS, a total of 1000 shares of
common stock of NDL , which equates one hundred percent (100%)
percent of all of NDL 's currently issued and outstanding stock
(the NDL Shares"), in a tax-free stock-for-stock acquisition.
2. Consideration - The Consideration price to be paid by BBN
for the NDL Common Shares shall be 13,000,000 post reverse
split shares of BBN common stock.
3. Warranties Representations and Covenants of NDL and NDL
PRINCIPALS - In order to induce BBN to enter into this Agreement
and to complete the transaction contemplated hereby, NDL and
its principal executive officers (hereinafter referred to as the
"NDL PRINCIPALS", jointly and severally warrant and represent to
BBN that:
(a) Organization and Standing NDL is a corporation duly
organized, validly existing and in a good standing under the
laws of the United Kingdom, is qualified to do business as a
foreign corporation in every other state or jurisdiction in
which it operates to the extent required by the laws of such
states and jurisdictions, and has full power and authority
to carry on its business as now conducted and to own and
operate its assets, properties and business. Attached
hereto as Exhibit "B" are true and correct copies of NDL 's
Certificate of Incorporation, amendments thereto and all
current \by-laws of NDL . No changes thereto will be made
in any of the Exhibit "B" documents before the closing. NDL
has no subsidiaries except as listed or any investments or
ownership interests in any corporation, partnership, joint
venture or other business enterprise which is material to
its business.
(b) Capitalization. As of the Closing Date of NDL's entire
authorized equity capital consists of 1000 shares of GBP 1
par value, of which 1000 shares of Stock will be outstanding
as of the Closing. As of the Closing Date, there will be no
other voting or equity securities authorized or issued, nor
any authorized or issued securities convertible into voting
stock, and no outstanding subscriptions, warrants, calls,
options, rights, commitments or agreements by which NDL or
the SELLERS are bound, NDL for the issuance of any
additional shares of common stock or any other voting or
equity security, other than any agreements that NDL has with
any of its subsidiaries. The 1000 issued and outstanding
NDL Shares to be transferred by SELLERS constitutes one
hundred (100%) percent of the currently issued and
outstanding shares of Common Stock of NDL, which includes
inter-claim, that same percentage of NDL's voting power,
right to receive dividends, when, as and if declared and
paid, and the right to receive the proceeds of liquidation
attributable to common stock, if any.
(c) Ownership of NDL Shares. Each SELLER warrants and
represents, severally, that as of the date hereof, such
SELLER is the sole owner of the NDL Shares listed by his or
her name on Exhibit "A-1", free and clear of all liens,
encumbrances, and restrictions whatsoever, except that the
NDL Common Shares so listed have not been registered under
the Securities Act of 1933, as amended (the "33 Act"), or
any applicable State Securities laws. By SELLERS' transfer
of the NDL Shares to BBN pursuant to this Agreement. BBN will
thereby acquire 100% of the outstanding capital stock of NDL,
free and clear of all liens, encumbrances and restrictions of any
nature whatsoever.
(d) Taxes. NDL has filed all federal, state and local
income or other tax returns and reports that it is required to
file with all governmental agencies, wherever situate, and has
paid or accrued for payment all taxes as shown on such returns,
such that a failure to file, pay or accrue will not have a
material adverse effect on NDL . NDL 's income tax returns have
never been audited by any authority empowered to do so.
(e) Pending Actions. There are no known material legal
actions, lawsuits, proceedings or investigations, either
administrative or judicial, pending or threatened, against or
affecting NDL, or against the NDL PRINCIPALS that arrive out of
their operation of NDL , except as described in Exhibit "C"
attached hereto. NDL is not knowingly in material violation of
any law, material ordinance or regulation of any kind whatever.
(f) Government and Regulation NDL holds the licenses and
registrations set forth on Exhibit "D" hereto from the
jurisdictions set forth therein, which licenses and registrations
are all of the licenses and registrations necessary to permit
NDL to conduct its current business. All of such licenses and
registrations are in full force and effect, and there are no
proceedings, hearings or other actions pending that may affect
the validity or continuation of any of them. No approval of any
other trade or professional association or agency of government
other than as set forth on Exhibit "D" is required for any of the
transactions effected by this Agreement, and the completion of
the transactions contemplated by this Agreement will not, in
and of themselves, affect or jeopardize the validity or
continuation of any of them.
(g) Ownership of Assets Except as set forth in Exhibit "E"
attached hereto, NDL has good, marketable title, without any
liens or encumbrances of any nature whatever, to all of the
following, if any; assets, properties and rights of every type
and description, iNDLuding, without limitation, all cash on
hand and in banks, certificates of deposit, stocks, bonds, and
other securities, good will, customer lists, its corporate
name and all variants thereof, trademarks and trade names,
copyrights and interests thereunder, licenses and
registrations, pending licenses and permits and applications
therefor, inventions, processes, know-how, trade secrets, real
estate and interests therein and improvements thereto,
machinery, equipment, vehicles, notes and accounts receivable,
fixtures, rights under agreements and leases, franchises, all
rights and claims under insurance policies and other contracts
of whatever nature, rights in funds of whatever nature, books
and records and all other property and rights of every kind
and nature owned or held by NDL as of this date, and will
continue to hold such title on and after the completion of the
transactions contemplated by this Agreement; nor, except in
the ordinary course of its business, has NDL disposed of any
such asset since the date of the most recent balance sheet
described in Section 3(0) of this Agreement.
(h) No Interest in Suppliers, Customers, Landlords or
Competitors. Neither the NDL PRINCIPALS nor any member of
their families have any material interest of any nature
whatever in any supplier, customer, landlord or competitor of
NDL.
(i) No Debt Owed by NDL to NDL PRINCIPALS. Except as set forth
in Exhibit "F" attached hereto, NDL does not owe any money,
securities, or property to either the NDL PRINCIPALS or any
member of their families or to any company controlled by such
a person, directly or indirectly. To the extent that the NDL
PRINCIPLES may have any undisclosed liability to pay any sum
or property to any such person or equity or any member of
their families such liability is hereby forever irrevocably
released and discharged.
(j) Complete Records. All of NDL's books and records,
including, without limitation, its books of account, corporate
records, minute book, stock certificate books and other records
are up-to-date, complete and reflect accurately and fairly the
conduct of its business in all material respects since its
date of incorporation.
(k) No Misleading Statements or Omissions. Neither this
Agreement nor any financial statement, exhibit, schedule or
document attached hereto or presented to BBN in connection
herewith, contains any materially misleading statement or omits
any fact or statement necessary to make the other statements or
facts therein set forth not materially misleading.
(l) Validity of this Agreement. All corporate and other
proceedings required to be taken by the SELLERS and by NDL in
order to enter into and carry out this Agreement have been duly
and properly taken. This Agreement has been duly executed by
the SELLERS and by NDL , and constitutes the valid and binding
obligation of each of them, enforceable in accordance with its
terms except to the extent Inc by applicable bankruptcy,
reorganization, insolvency, moratorium or other laws relating
to or effecting generally the enforcement of creditors rights.
The execution and delivery of this Agreement and the carrying
out of its purposes will not result in the breach of any of
the terms and conditions of, or constitute a default under or
violate, NDL 's Certificate of Incorporation or By-Laws, or
any material agreement, lease, mortgage, bond, indenture,
license or other material document or undertaking, oral or
written, to which NDL or the SELLERS is a party or is bound
or may be affected, nor will such execution, delivery and
carrying out violate any law, rule or regulation or any order,
with injunction or decree, of any court, regulatory agency or
other governmental body; and the business now conducted by NDL
can continue to be so conducted after completion of the
transaction contemplated hereby, with NDL as a wholly owned
subsidiary of BBN.
(m) Concepts and Approvals: Compliance with Laws Neither NDL
nor the SELLERS are required to make any filing with, or obtain
the consent or approval of, any person or entity as a
condition to the consummation of the transactions contemplated
by this Agreement. The business of NDL has been operated in
material compliance with all laws, rules, and regulations
applicable to its business, iNDLuding, without limitation,
those related to securities matters, trade matters,
environmental matters, public health and safety, and labor and
employment.
(n) Access to Books and Records BBN will have full and free
access to NDL 's books during the course of this transaction
prior to Closing, during regular business hours, on reasonable
notice.
4. Warranties, representations and Covenants of BBN AND
MANAGEMENT OF BBN ("MANAGEMENT"). In order to induce the SELLERS
and NDL to enter into this Agreement and to complete the
transaction contemplated hereby, BBN AND MANAGEMENT jointly and
severally warrant, represent and covenant to NDL and SELLERS
that:
(a) Organization and Standing. BBN is a corporation duly
organized, validly existing and in good standing under
the laws of the State of Delaware, will be qualified to
do business as a foreign corporation in every other state
and jurisdiction in which it operates to the extent
required by the laws of such states or jurisdictions, and
will have full power and authority to carry on its
business as now conducted and to own and operate its
assets, properties and business. BBN has no subsidiaries
or any other investments or ownership interests in any
corporation, partnership, joint venture or other business
enterprise.
(b) Capitalization. BBN's entire authorized equity capital
consists of 25,000,000 shares of voting common stock,
$0.001 par value. Of which 4,000,000 shares of voting
stock is currently outstanding. Simultaneous with the
closing BBN will carry out a three for one reverse split
leaving BBN as of the Closing, will have issued and
outstanding 1,333,333 shares of voting common stock,
$0.001 par value and no shares of preferred stock issued.
Upon issuance, all of the BBN Common Stock will be
validly issued, fully paid and non-assessable. The
relative rights and preferences of BBN's equity
securities are set forth on the Certificate of
Incorporation, as amended and CI4NET's By-laws (Exhibit
"H" hereto). There are no other voting or equity
securities authorized or issued, not any authorized or
issued securities convertible into voting stock, and no
outstanding subscriptions, warrants, calls, options,
rights, commitments or agreements by which BBN is bound,
calling for the issuance of any additional shares of
common stock or any other voting or equity security. The
By-laws of BBN provide that a simple majority of the
shares voting at a stock holders' meeting at which a
quorum is present may elect all of the directors of BBN.
Cumulative voting is not provided for by the By-Laws or
Certificate of Incorporation of BBN. Accordingly, as of
the Closing the 13,000,000 shares being issued to and
acquired by the SELLERS will constitute 90.69% of the
14,333,333 shares of BBN which will then be issued and
outstanding which iNDLudes, inter alia, that same
percentage of BBN's voting power (subject to the
provisions regarding cumulative rights), right to receive
dividends, when, as and if declared and paid, and the
right to receive the proceeds of liquidation attributable
to common stock, if any.
(c) Ownership of Shares. By BBN's issuance of the BBN
Common Shares to the SELLERS pursuant to this Agreement,
the SELLERS will thereby acquire good, absolute marketable
title thereto, free and clear of all liens, encumbrances
and restrictions of any nature whatsoever, except by
reason of the fact that such BBN shares will not have
been registered under the 33 Act, or any applicable state
securities laws.
(d) Significant Agreements. BBN is not and will not at
Closing be bound by any of the following:
i. Employment, advisory or consulting contract
(Except as described in Section 12 herein).
ii. Plan providing for employee benefits of any
nature.
iii. Lease with respect to any property or
equipment.
iv. Contract of commitments for any current
expanditure.
v. Contract or commitment pursuant to which it has
assumed, guaranteed, endorsed or otherwise become
liable for any obligation of any other person, firm
or organization.
vi. Contract, agreement, understanding, commitment or
arrangement either than in the normal course of
business, not set forth in the Agreement or an
Exhibit hereto.
vii. Agreement with any person relating to the
dividend, purchase or sale of securities, that has
not been settled by the delivery of payment of
securities when due, and which remains unsettled
upon the date of this Agreement.
(e)Taxes BBN has filed all federal, state and local income
or other tax returns and reports that it is required to
file with all governmental agencies, wherever situate,
and has paid all taxes as shown on such returns. All of
such returns are true and complete. BBN's income tax
returns have never been audited by say authority
empowered to do so.
(f)Absence of Liabilities As of the Closing Date BBN will
have no liabilities of any kind or nature, fixed or
contingent, except for the costs, including legal and
accounting fees and other expenses, in connection with
this transaction, for which BBN agrees to be responsible
and to pay in full at or before the Closing.
(g)No Pending Actions. To the best of management's
knowledge, there are no legal actions, lawsuits,
proceedings or investigations, either administrative or
judicial, pending or threatened against or affecting BBN,
or against any of the BBN MANAGEMENT and arising out of
their operation of BBN. BBN has been in compliance with,
and has not received notice of violation of any law,
ordinance of any kind whatever, including, but not Inc
to, the 33 Act, the Rules and Regulations of the SEC, or
the Securities Laws and Regulations of any sale. BBN is
not an investment company as defined in, or otherwise
subject to regulation under, the Investment Company Act
of 1940. BBN is not required to file reports pursuant to
either Section 13 or Section 15 (d) of the 34 Act.
(h)Corporate Records. All of BBN's books and records,
including, without limitation, its books of account,
corporate records, minute book, stock certificate books
and other records are up-to-date complete and reflect
accurately and fairly the conduct of its business in all
respects since its date of incorporation; all of said
books and records will be made available for inspection
by NDL's authorized representatives prior to the Closing
as provided by Section 4(I) herein, and will be delivered
to BBN's new management at the Closing.
(i)No Misleading Statements or Omissions. Neither this
agreement nor any financial statement, exhibit, schedule
or document attached hereto or presented to NDL in
connection herewith contains any materially misleading
statement, or omits any fact or statement necessary to
make the other statements or facts therein set forth not
materially misleading.
(j)Validity of this Agreement. All corporate and other
proceedings required to be taken by BBN in order to enter
into and to carry out this Agreement will have been duly
and properly taken at or before the Closing. This
Agreement has been duly executed by BBN, constitutes a
valid and binding obligation of BBN enforceable in
accordance with its terms. The execution and delivery of
this Agreement and the carrying out of its purposes will
not result in the breach of any of the terms or
conditions of, or constitute a default under or violate,
BBN's Certificate of Incorporationor By-Laws, or any
agreement, lease, mortgage, bond, indenture, license or
other document or undertaking, oral or written, to which
BBN is a party or is bound or may be affected nor will
such execution, delivery and carrying out violate any
law, rule or regulation or any order, writ, injunction or
decree of any court, regulatory agency or other
governmental body.
(k)Consents and Approvals, Compliance with Laws. Except
for the notices to be filed as described in Section
7(a)(v) herein, neither NDL nor MANAGEMENT is required to
make any filing with, or obtain the consent or approval
of, any person or entity as a condition to the
consummation of the transactions contemplated by this
Agreement. The business of BBN has been operated in
compliance with all laws, rules and regulations applicable
to its business, including, without limitation, those
related to securities matters, trade matters,
environmental matters, public health and safety, and labor
and employment.
(l) Access to Books and Records. NDL and SELLERS will have
full and free access to NDL 's books and records during
the course of this transaction prior to and at the
Closing on reasonable notice.
(m) Directors and Shareholders Approval. As of the
Closing, BBN's Board of Directors and Shareholders, by
meeting or consent shall have properly authorized the
matters described in section 7(a)(iv)herein.
(n) The BBN Shares. All of the BBN Common Shares issued to
SELLERS shall be validly issued, fully-paid non-
assessable shares of BBN Common Stock, with full voting
rights, dividend rights, and right to receive the
proceeds of liquidation, if any, as set forth in BBN's
Certificate of Incorporation.
5. Term: Indemnification. All representations, warranties,
covenants and agreements made herein and in the exhibits
attached hereto shall survive the execution and delivery of
this Agreement and payment pursuant thereto. MANAGEMENT and
NDL MANAGEMENT ("management") of both parties to the
agreement hereby agree, jointly and severally, to indemnify,
defend, and hold harmless BBN, NDL , and the SELLERS from and
against any damage, loss, liability, or expense (including
without limitation, reasonable expenses of investigation and
reasonable attorney's fees) arising out of any material breech
of any representation, warranty, covenant, or agreement made
by NDL MANAGEMENT or management in this Agreement.
6. Conditions Precedent to Closing. (a) The obligations of NDL
and the SELLERS under this Agreement shall be and are subject
to fulfillment, prior to or at the Closing, of each of the
following conditions:
i. That BBN's and MANAGEMENT's representations and
warranties contained herein shall be true and correct at
the time of Closing as if such representations and
warranties were made at such time, and MANAGEMENT will
deliver an executed certification confirming the
foregoing;
ii. That BBN and MANAGEMENT shall have performed or
complied with all agreements, terms and conditions
required by this Agreement to be performed or complied
with by them prior to or at the time of the Closing;
iii. That BBN's directors and shareholders, by proper and
sufficient vote taken either by consent or at a meeting
duly and properly NDL led and held, shall have properly
approved all of the matters required to be approved by
BBN's directors and shareholders, respectively;
iv. That BBN's Board of Directors, by proper and
sufficient vote, shall have approved this Agreement and
the transactions contemplated hereby; and
(b) The obligations of BBN and MANAGEMENT under this Agreement
shall be and are subject to fulfillment, prior to or at the
Closing of each of the following conditions:
i That NDL 's and SELLERS' representations and warranties
contained herein shall be true and correct at the time of
Closing as if such representations and warranties were
made at such time and NDL and the NDL PRINCIPALS shall
deliver an executed certification confirming the
foregoing;
ii. That NDL and NDL PRINCIPALS shall have performed or
complied with all agreements, terms and conditions
required by this Agreement to be performed or complied
with by them prior to or at the time of Closing
8. Termination This Agreement may be terminated at any time
before or at Closing, by;
(a)The mutual agreement of the parties;
(b)Any party if:
i. Any legal proceeding shall have been instituted
or shall be imminently threatening to delay, restrain
or prevent the consummation of this Agreement.
Upon termination of this Agreement for any reason, in accordance
with the terms and conditions set forth in this paragraph, each
said party shall bear all costs and expenses as each party has
incurred and no party shall be liable to the other.
9. Exhibits. All Exhibits attached hereto are incorporated
herein by this reference as if they were set forth in their
entirety.
10. Miscellaneous Provisions. This Agreement is the entire
agreement between the parties in respect of the subject matter
hereof, and there are no other agreements, written or oral,
nor may this Agreement be modified except in writing and
executed by all of the parties hereto. The failure to insist
upon strict compliance with any of the terms, covenants or
conditions of this Agreement shall not be deemed a waiver or
relinquishment of such rights or power at any other time or
times.
11. Closing. The Closing of the transactions contemplated by
this Agreement ("Closing") shall take place at the offices BBN,
at 1.00 P.M. on the first business day after the letter of the
approval of SELLERS owning at least 80% of BBN 's Common Stock
or the shareholders of BBN approving this Agreement and the
matters referred to in section 7(a)(vi) herein, or such other
date as the parties hereto shall mutually agree upon. At the
Closing, all of the documents and items referred to herein
shall be exchanged.
12. Prohibited Actions. Between the date hereof and the
effective date of the merger, neither Purchaser nor Seller
will, except with the prior written consent of the other:
(a)issue or sell any stock, bonds, or other corporate
securities;
(b)incur any obligation or liability (absolute or contingent),
except current liabilities incurred, and obligations under
contracts entered into, other than in the ordinary course of
business;
(c) discharge or satisfy any lien or encumbrance or pay any
obligation or liability (absolute or contingent) other than in
the ordinary course of business;
(d) make any dividend or other payment or distribution to its
shareholders or Purchase or redeem any shares of its capital
stock other than in the ordinary course of business;
(e)mortgage, pledge, create a security interest in, or subject
to lien or other encumbrance any of its assets, tangible or
intangible other than in the ordinary course of business;
(f)sell or transfer any of its tangible assets or cancel any
debts or claims except in each case in the ordinary course of
business other than in the ordinary course of business;
(g)sell, assign, or transfer any trademark, trade name, patent,
or other intangible asset;
(h)waive any right of any substantial value other than in the
ordinary course of business; or
(i) enter into any other transaction other than in the ordinary
course of business.
13. Further Instruments. From time to time, as and when
requested by the either of the parties or by its successors or
assigns, the other party will execute and deliver, or cause to
be delivered, all such deeds and other instruments; and will
take or cause to be taken such further or other action as the
parties may deem necessary or desirable in order to vest in
and confirm to the purchaser title to and possession of all
its property, rights, privileges, possessions, and franchises
and otherwise to carry out the intent and purposes of this
agreement.
14. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of
Delaware.
15. Counterparts. This Agreement may be executed in duplicate
facsimile counterparts, each of which shall be deemed an
original and together shall constitute one and the same binding
Agreement, with one counterpart being delivered to each party
hereto.
IN WITNESS WHEREOF, the parties hereto have set their hands and
seals as of the date and year above first written.
BIOINCUBATION INC
By: ____________________________
____________________________
Netmedia Developments Limited
By: ____________________________
LIST OF EXHIBITS
Exhibit "A"
List of Sellers
J Bentley 15
Xx0xxx.xxx Ltd 50
Sprinter Investments Ltd 35
Exhibit "B"
True and correct copies of NDL 's Certificate of Incorporation,
amendments thereto and all current By-laws.
NCL
NDL
Kids Events Ltd
Xxxxxxxx.xxx Ltd
Financial Info Ltd
Exhibit "C"
Any material legal actions, lawsuits, proceedings of
investigations, either administrative or judicial, pending or
threatened, against or affecting NDL, or against the Sellers that
arise out of their operation of NDL.
NONE
Exhibit "D"
Evidence of NDL 's licenses and registrations necessary to permit
NDL to conduct its current business.
NOT REQUIRED
Exhibit "E"
Any impediments to NDL 's good, marketable title including liens
or encumbrances of any nature whatever.
NONE
Exhibit "F"
Any money, securities, or property owed by NDL to either the
Principals of NDL or any member of their families or to any
company controlled by such a person, directly or indirectly.
NONE
Exhibit "G"
True and correct copies of BBN's Certificate of Incorporation
amendments thereto and all current By-laws.
