ACQUISITION AGREEMENT
This Agreement dated as of November 10, 2004, is entered into by
and between XXXX-XXXXXX, INC., a corporation organized under the
laws of the State of Nevada ("BHSR"), and DM2 TECHNOLOGY INC., a
corporation organized under the laws of the Province of Quebec
("DM2"), and the owners of the capital stock of DM2 listed on
Exhibit A of this Agreement, who execute and become a party to
this Agreement.
WHEREAS, BHSR desires to acquire up to 100% of the issued and
outstanding stock, including, but not limited to, all the current
assets, accounts receivable, customer lists and equipment of DM2
(the "Business") in consideration for cash and common stock in
BHSR; and
WHEREAS, BHSR will assume the liabilities of the Business of DM2
in an amount not to exceed US$120,000; and
WHEREAS, the DM2 Shareholders wish to exchange their respective
stock ownership interest for cash and the common stock of BHSR.
NOW, THEREFORE, in consideration on the foregoing and the mutual
representations, warrants, covenants and agreements hereinafter
set forth and the mutual benefits to the parties to be derived
herefrom, the parties agree as follows:
1. The Acquisition
1.1 Tender and Exchange.
a. Subject to the terms and conditions of this
Agreement, at the Closing to be held as provided
in Section 2, BHSR shall tender the cash and BHSR
Shares (defined below) to DM2 on behalf of the DM2
Shareholders.
b. DM2 shall receive the BHSR Shares from BHSR on
behalf of its respective Shareholders, free and
clear of all encumbrances other than restrictions
imposed by United States federal and state
securities laws.
1.2 Transaction. At the Closing, BHSR will tender cash in
the amount of US$1,000,000, which may be delivered in
the form of a promissory note, if mutually agreed upon
between the Parties, and 10,000,000 shares of its
common stock (the "BHSR Shares"), valued at US$_____
per share, which together are equal to the valuation of
the Business of DM2, in exchange for all of the
outstanding shares of capital stock of DM2, consisting
of 100 shares of common stock (the "DM2 Shares"). The
BHSR Shares shall be issued and delivered as set forth
in Exhibit A hereto.
2. The Closing.
2.1 Place and Time. The closing of the instant transaction
(the "Closing") shall take place at the offices of DM2
Technologies, Inc., 0000 Xxxxxxxxxxxxx Xxx., Xxxxx 000,
no later than the close of business (Eastern Time) on
December 1, 2004 or at such other place, date and time
as the parties may agree in writing. However, in no
event shall the Closing occur prior to the filing of
BHSR's Amended and Restated Articles of Incorporation
with the Nevada Secretary of State. It is anticipated
that such filing will occur on or about November 14,
2004.
2.2 Deliveries by DM2. At the Closing, DM2 and the DM2
Shareholders shall deliver the following to BHSR:
a. Certificates representing the DM2 Shares
registered in the name of BHSR (without any legend
or other reference to any Encumbrance) other than
those required by United States federal and/or
state securities law.
b. The documents contemplated by Section 3.
c. All other documents, instruments and writings
required by this Agreement to be delivered by DM2
at the Closing and any other documents or records
relating to DM2's business reasonably requested by
BHSR in connection with this Agreement.
2.3 Deliveries by BHSR. At the Closing, BHSR shall deliver
the following to DM2:
a. The BHSR Shares as contemplated by Section 1, in
the form specified in Exhibit A.
b. Cash in the amount of US$1,000,000, which may be
delivered in the form of a promissory note, if
agreed to by DM2 and BHSR.
c. The documents contemplated by Section 4.
d. All other documents, instruments and writings
required by this Agreement to be delivered by BHSR
at the Closing and any other documents or records
relating to BHSR's business reasonably requested
by DM2 in connection with this Agreement.
3. Conditions to BHSR's Obligations.
The obligations of BHSR to effect the Closing shall be
subject to the satisfaction at or prior to the Closing of
the following conditions, any one or more of which may be
waived by BHSR:
3.1 No Injunction. There shall not be in effect any
injunction, order or decree of a court of competent
jurisdiction that prevents the consummation of the
transactions contemplated by this Agreement, that
prohibits BHSR's acquisition of the DM2 Shares or
BHSR's receipt of DM2 Shares or that will require any
divestiture as a result of BHSR's acquisition of the
DM2 Shares or that will require all or any part of the
business of DM2 to be held separate and no litigation
or proceedings seeking the issuance of such an
injunction, order or decree or seeking to impose
substantial penalties on BHSR or DM2 if this Agreement
is consummated shall be pending.
3.2 Representations, Warranties and Agreements. The
representations and warranties of DM2 set forth in this
Agreement shall be true and complete in all material
respects as of the Closing Date as though made at such
time, (b) DM2 shall have performed, and complied in all
material respects with the agreements contained in this
Agreement required to be performed and complied with by
it at or prior to the Closing and (c) DM2 shall have
received a certificate to that effect signed by an
authorized representative of DM2.
3.3 Regulatory Approvals. All licenses, authorizations,
consents, orders and regulatory approvals of
Governmental Bodies necessary for the consummation of
BHSR's acquisition of the DM2 Shares shall have been
obtained and shall be in full force and effect.
3.4 Shareholder Approval. Shareholders holding 100% of the
common stock of DM2 shall have approved of and signed
this Agreement.
4. Conditions to DM2 and the DM2 Shareholders' Obligations.
The obligations of DM2 and the DM2 Shareholders to effect
the Closing shall be subject to the satisfaction at or prior
to the Closing of the following conditions, any one or more
of which may be waived by DM2:
4.1 No Injunction. There shall not be in effect any
injunction, order or decree of a court of competent
jurisdiction that prevents the consummation of the
transactions contemplated by this Agreement, that
prohibits BHSR's acquisition of the DM2 Shares or DM2's
receipt of the BHSR Shares or that will require any
divestiture as a result of BHSR's acquisition of the
Shares or DM2's acquisition of the BHSR Shares or that
will require all or any part of the business of BHSR or
DM2 to be held separate and no litigation or
proceedings seeking the issuance of such an injunction,
order or decree or seeking to impose substantial
penalties on BHSR or DM2 if this Agreement is
consummated shall be pending.
4.2 Representations, Warranties and Agreements. The
representations and warranties of BHSR set forth in
this Agreement shall be true and complete in all
material respects as of the Closing Date as though made
at such time, (b) BHSR shall have performed and
complied in all material respects with the agreements
contained in this Agreement required to be performed
and complied with by it at or prior to the Closing and
(c) DM2 shall have received a certificate to that
effect signed by an authorized representative of BHSR.
4.3 Regulatory Approvals. All licenses, authorizations,
consents, orders and regulatory approvals of
Governmental Bodies necessary for the consummation of
BHSR's acquisition of the DM2 Shares and DM2's
acquisition of the BHSR Shares shall have been obtained
and shall be in full force and effect.
5. Xxxxxxxxxxxxxxx xxx Xxxxxxxxxx xx XX0
XX0 (xxx, with respect to Section 5.4, each of the DM2
Shareholders with respect to that shareholder's shares only)
represents and warrants to BHSR that, to the knowledge of
DM2 (which limitation shall not apply to Section 5.3) and
except as otherwise disclosed by DM2:
5.1 Organization of DM2; Authorization. DM2 is a
corporation duly organized, validly existing and in
good standing under the laws of the Province of Quebec
with full corporate power and authority to execute and
deliver this Agreement and to perform its obligations
hereunder. The execution, delivery and performance of
this Agreement have been duly authorized by all
necessary corporate action of DM2 and this Agreement
constitutes a valid and binding obligation of DM2;
enforceable against it in accordance with its terms.
5.2 Capitalization. The authorized capital stock of DM2
consists of 100 shares. As of the date hereof 100 of
such shares of DM2 were issued and outstanding. As of
the Closing Date, all of the issued and outstanding
shares of common stock of DM2 are validly issued, fully
paid and nonassessable.
5.3 No Conflict as to DM2. Neither the execution and
delivery of this Agreement nor the consummation of the
sale of the DM2 Shares to BHSR will (a) violate any
provision of the certificate of incorporation or by-
laws of DM2 or (b) violate, be in conflict with, or
constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default)
under any agreement to which DM2 is a party or (c)
violate any statute or law or any judgment, decree,
order, regulation or rule of any court or other
Governmental Body applicable to DM2.
5.4 Ownership of DM2 Shares. The delivery of certificates
to BHSR provided in Section 2.2 and the delivery of
certificates to DM2 as provided in Section 2.3 will
result in BHSR's immediate acquisition of record and
beneficial ownership of 100 DM2 Shares, free and clear
of all Encumbrances subject to applicable State and
Federal securities laws.
5.5 No Conflict as to DM2. Neither the execution and
delivery of this Agreement nor the consummation of the
acquisition of the DM2 Shares to BHSR will (a) violate
any provision of the certificate of incorporation or by-
laws (or other governing instrument) of DM2 or (b)
violate, or be in conflict with, or constitute a
default (or an event which, with notice or lapse of
time or both, would constitute a default) under, or
result in the termination, of, or accelerate the
performance required by, or excuse performance by any
Person of its obligations under, or cause the
acceleration of the maturity of any debt or obligation
pursuant to, or result in the creation or imposition of
any Encumbrance upon any property or assets of DM2
under, any material agreement or commitment to which
DM2 is a party or by which any of its property or
assets is bound, or to which any of the property or
assets of DM2 is subject, or (c) violate any statute or
law or any judgment, decree, order, regulation or rule
of any court or other Governmental Body applicable to
DM2 except, in the case of violations, conflicts,
defaults, terminations, accelerations or Encumbrances
described in clause (b) of this Section 5.5, for such
matters which are not likely to have a material adverse
effect on the business or financial condition of DM2.
5.6 Consent and Approvals of Governmental Authorities.
Except with respect to applicable United States federal
and state securities laws, no consent, approval or
authorization of, or declaration, filing or
registration with, any Governmental Body is required to
be made or obtained by DM2 or BHSR in connection with
the execution, delivery and performance of this
Agreement by DM2 or the consummation of the acquisition
of the DM2 Shares by BHSR.
5.7 Other Consents. No consent of any Person is required to
be obtained by DM2 or BHSR prior to the execution,
delivery and performance of this Agreement or the
consummation of the acquisition of the DM2 Shares to
BHSR, including, but not limited to, consents from
parties to leases or other agreements or commitments,
except for any consent which the failure to obtain
would not be likely to have a material adverse effect
on the business and financial condition of DM2 or BHSR.
5.8 Financial Statements. DM2 has delivered to BHSR balance
sheets of DM2 as at the recent and practicable period
ended, and statements of income and changes in
financial position for the period then ended. Such DM2
Financial Statements and notes fairly present the
financial condition and results of operations of DM2 as
at the respective dates thereof and for the periods
therein.
5.9 Title to Properties. DM2 owns all the material
properties and assets that they purport to own (real,
personal and mixed, tangible and intangible),
including, without limitation, all the material
properties and assets reflected in the DM2 Financial
Statements (except for property sold since the date of
the DM2 Financial Statements in the ordinary course of
business or leased under capitalized leases), and all
the material properties and assets purchased or
otherwise acquired by DM2 since the date of the DM2
Financial Statements. All properties and assets
reflected in the DM2 Financial Statements are free and
clear of all material Encumbrances and are not, in the
case of real property, subject to any material rights
of way, building use restrictions, exceptions,
variances, reservations or limitations of any nature
whatsoever except, with respect to all such properties
and assets, (a) mortgages or security interests shown
on the DM2 Financial Statements as securing specified
liabilities or obligations, with respect to which no
default (or event which, with notice or lapse of time
or both, would constitute a default) exists, (b)
mortgages or security interests incurred in connection
with the purchase of property or assets after the date
of the DM2 Financial Statements (such mortgages and
security interests being limited to the property or
assets so acquired), with respect to which no default
(or event which, with notice or lapse of time or both,
would constitute a default) exists, (c) as to real
property, (i) imperfections of title, if any, none of
which materially detracts from the value or impairs the
use of the property subject thereto, or impairs the
operations of DM2 and (ii) zoning laws that do not
impair the present or anticipated use of the property
subject thereto, and (d) liens for current taxes not
yet due. The properties and assets of DM2 include all
rights, properties and other assets necessary to permit
DM2 to conduct DM2's business in all material respects
in the same manner as it is conducted on the date of
this Agreement.
5.10 Buildings, Plants and Equipment. The buildings, plants,
structures and material items of equipment and other
personal property owned or leased by DM2 are, in all
respects material to the business or financial
condition of DM2, in good operating condition and
repair (ordinary wear and tear excepted) and are
adequate in all such respects for the purposes for
which they are being used. DM2 has not received
notification that it is in violation of any applicable
building, zoning, anti-pollution, health, safety or
other law, ordinance or regulation in respect of its
buildings, plants or structures or their operations,
which violation is likely to have a material adverse
effect on the business or financial condition of DM2,
taken as a whole or which would require a payment by
DM2 or BHSR in excess of US$2,000 in the aggregate, and
which has not been cured.
5.11 No Condemnation or Expropriation. Neither the whole nor
any portion of the property or leaseholds owned or held
by DM2 is subject to any governmental decree or order
to be sold or is being condemned, expropriated or
otherwise taken by any Governmental Body or other
Person with or without payment of compensation
therefore, which action is likely to have a material
adverse effect on the business or financial condition
of BHSR, taken as a whole.
5.12 Litigation. There is no action, suit, inquiry,
proceeding or investigation by or before any court or
Governmental Body pending or threatened in writing
against or involving DM2 which is likely to have a
material adverse effect on the business or financial
condition of DM2 and BHSR, or which would require a
payment by DM2 in excess of US$2,000 in the aggregate
or which questions or challenges the validity of this
Agreement. DM2 is not subject to any judgment, order or
decree that is likely to have a material adverse effect
on the business or financial condition of DM2 or BHSR,
or which would require a payment by DM2 in excess of
US$2,000 in the aggregate.
5.13 Absence of Certain Changes. Since the date of the DM2
Financial Statements, DM2 has not;
a. suffered the damage or destruction of any of its
properties or assets (whether or not covered by
insurance) which is materially adverse to the
business or financial condition of DM2, or made
any disposition of any of its material properties
or assets other than in the ordinary course of
business;
b. made any change or amendment in its certificate of
incorporation or by-laws, or other governing
instruments;
c. issued or sold any Equity Securities or other
securities, acquired, directly or indirectly, by
redemption or otherwise, any such Equity
Securities, reclassified, split-up or otherwise
changed any such Equity Security, or granted or
entered into any options, warrants, calls or
commitments of any kind with respect thereto;
d. organized any new Subsidiary or acquired any
Equity Securities of any Person, or any equity or
ownership interest in any business;
e. borrowed any funds or incurred, or assumed or
become subject to, whether directly or by way of
guarantee or otherwise, any obligation or
liability with respect to any such indebtedness
for borrowed money;
f. paid, discharged or satisfied any material claim,
liability or obligation (absolute, accrued,
contingent or otherwise), other than in the
ordinary course of business;
g. prepaid any material obligation having a maturity
of more than 90 days from the date such obligation
was issued or incurred;
h. canceled any material debts or waived any material
claims or rights, except in the ordinary course of
business;
i. disposed of or permitted to lapse any rights to
the use of any material patent or registered
trademark or copyright or other intellectual
property owned or used by it;
j. granted any general increase in the compensation
of officers or employees (including any such
increase pursuant to any employee benefit plan);
k. purchased or entered into any contract or
commitment to purchase any material quantity of
raw materials or supplies, or sold or entered into
any contract or commitment to sell any material
quantity of property or assets, except (i) normal
contracts or commitments for the purchase of, and
normal purchases of, raw materials or supplies,
made in the ordinary course business, (11) normal
contracts or commitments for the sale of, and
normal sales of, inventory in the ordinary course
of business, and (iii) other contracts,
commitments, purchases or sales in the ordinary
course of business;
l. made any capital expenditures or additions to
property, plant or equipment or acquired any other
property or assets (other than raw materials and
supplies) at a cost in excess of US$25,000 in the
aggregate;
m. written off or been required to write off any
notes or accounts receivable in an aggregate
amount in excess of US$2,000;
n. written down or been required to write down any
inventory in an aggregate amount in excess of
US$2,000;
o. entered into any collective bargaining or union
contract or agreement; or
p. other than the ordinary course of business,
incurred any liability required by generally
accepted accounting principles to be reflected on
a balance sheet and material to the business or
financial condition of DM2.
5.14 No Material Adverse Change. Since the date of the DM2
Financial Statements, there has not been any material
adverse change in the business or financial condition
of DM2.
5.15 Contracts and Commitments. DM2 is not a party to any:
a. Contract or agreement (other than purchase or
sales orders entered into in the ordinary course
of business) involving any liability on the part
of DM2 of more than US$25,000 and not cancelable
by DM2 (without liability to DM2) within 60 days;
b. Except with respect to the lease on its business
location, lease of personal property involving
annual rental payments in excess of US$25,000 and
not cancelable by DM2 (without liability to DM2)
within 90 days;
c. Except with respect to the options referenced
above, employee bonus, stock option or stock
purchase, performance unit, profit sharing,
pension, savings, retirement, health, deferred or
incentive compensation, insurance or other
material employee benefit plan or program for any
of the employees, former employees or retired
employees of DM2;
d. Commitment, contract or agreement that is
currently expected by the management of DM2 to
result in any material loss upon completion or
performance thereof;
e. Contract, agreement or commitment that is material
to the business of DM2, with any officer,
employee, agent, consultant, advisor, salesman,
sales representative, value added reseller,
distributor or dealer; or
f. Employment agreement or other similar agreement
that contains any severance or termination pay,
liabilities or obligations.
All such contracts and agreements are in full force and
effect. Neither DM2 nor any of the DM2 Shareholders is
in breach of, in violation of, or in default under, any
agreement, instrument, indenture, deed of trust,
commitment, contract or other obligation of any type to
which DM2 is a party or is or may be bound that relates
to the business of DM2 or to which any of the assets or
properties of is subject, the effect of which breach,
violation or default is likely to materially and
adversely affect the business or financial condition of
DM2. BHSR has not guaranteed or assumed and
specifically does not guarantee or assume any
obligations of DM2.
5.16 Labor Relations. DM2 is not a party to any collective
bargaining agreement. Except for any matter which is
not likely to have a material adverse effect on the
business or financial condition of DM2, (a) DM2 is in
compliance with all applicable laws respecting
employment and employment practices, terms and
conditions of employment and wages and hours, and is
not engaged in any unfair labor practice, (b) there is
no unfair labor practice complaint against DM2 pending
before the National Labor Relations Board or similar
Board, (c) there is no labor strike, dispute, slowdown
or stoppage actually pending or threatened against DM2,
(d) no representation question exists respecting the
employees of DM2, (e) DM2 has not experienced any
strike, work stoppage or other labor difficulty, and
(f) no collective bargaining agreement relating to
employees of DM2 is currently being negotiated.
5.18 Compliance with Law. The operations of DM2 have been
conducted in accordance with all applicable laws and
regulations of all Governmental Bodies having
jurisdiction over it, except for violations thereof
which are not likely to have a material adverse effect
on the business or financial condition of DM2, or which
would not require a payment by DM2 in excess of
US$2,000 in the aggregate, or which have been cured.
DM2 has not received any notification of any asserted
present or past failure by it to comply with any such
applicable laws or regulations. DM2 has all material
licenses, permits, orders or approvals from the
Governmental Bodies required for the conduct of its
business, and is not in material violation of any such
licenses, permits, orders and approvals. All such
licenses, permits, orders and approvals are in full
force and effect, and no suspension or cancellation of
any thereof has been threatened.
5.19 Tax Matters.
a. DM2 (1) has filed, or prior to the Closing Date
will have filed, all non-consolidated and non-
combined Tax Returns and all consolidated or
combined Tax Returns required to be filed through
the date hereof and have paid any Tax due through
the date hereof with respect to the time periods
covered by such Tax Returns and shall timely pay
any such Taxes required to be paid by it after the
date hereof with respect to such Tax Returns; and
(2) shall prepare and timely file all such Tax
Returns required to be filed after the date hereof
and through the Closing Date and pay all Taxes
required to be paid by it with respect to the
periods covered by such Tax Returns. All such Tax
Returns filed pursuant to clause (2) after the
date hereof shall, in each case, be prepared and
filed in a manner consistent in all material
respects (including elections and accounting
methods and conventions) with such Tax Return most
recently filed in the relevant jurisdiction prior
to the date hereof, except as otherwise required
by law or regulation. Any such Tax Return filed
or required to be filed after the date hereof
shall not reflect any new elections or the
adoption of any new accounting methods or
conventions or other similar items, except to the
extent such particular reflection or adoption is
required to comply with any law or regulation.
b. All Tax Returns required to be filed by any person
through the date hereof that are required or
permitted to include the income, or reflect the
activities, operations and transactions, of DM2
for any taxable period have been timely filed, and
the income, activities, operations and
transactions of DM2 have been properly included
and reflected thereon.
c. DM2 has not agreed, or is required, to make any
adjustment to its Tax Returns by reason of a
change in accounting method or otherwise.
d. There is no (nor has there been any request for
an) agreement, waiver or consent providing for an
extension of time with respect to the assessment
of any Taxes attributable to DM2 or its assets or
operations, and no power of attorney granted by
DM2 with respect to any Tax matter is currently in
force.
e. There is no action, suit, proceeding,
investigation, audit, claim, demand, deficiency or
additional assessment in DM2, pending or
threatened against or with respect to any Tax
attributable to DM2 or its assets or operations.
f. All amounts required to be withheld as of the
Closing Date for Taxes or otherwise have been
withheld and paid when due to the appropriate
agency or authority.
g. No property of DM2 is "tax-exempt use property"
within the meaning of its governing Tax Code, nor
property that DM2 will be required to treat as
being owned by another person.
h. There have been delivered or made available to
BHSR true and complete copies of all income Tax
Returns and any other Tax Returns requested by
BHSR as may be relevant to DM2 or its assets or
operations for any and all periods ending after
December 31, 2003, and for any Tax years which are
subject to audit or investigation by any taxing
authority or entity.
i. There is no contract, agreement, plan or
arrangement, including but not limited to the
provisions of this Agreement, covering any
employee or former employee of DM2 that,
individually or collectively, could give rise to
the payment of any amount that would not be
deductible pursuant to its governing Tax Code.
5.20 Environmental Matters.
a. At all times prior to the date hereof, DM2 has
complied in all material respects with applicable
environmental laws, orders, regulations, rules
and. ordinances relating to the Properties (as
hereinafter defined), the violation of which would
have a material adverse effect on the business or
financial condition of DM2, or which would require
a payment by DM2 in excess of US$2,000 in the
aggregate, and which have been duly adopted,
imposed or promulgated by any legislative,
executive, administrative or judicial body or
officer of any Governmental Body.
b. The environmental licenses, permits and
authorizations that are material to the operations
of DM2 are in full force and effect.
5.21 Absence of Certain Commercial Practices. DM2 has not,
directly or indirectly, paid or delivered any fee,
commission or other sum of money or item of property,
however characterized, to any finder, agent, government
official or other party, in the United States or any
other country, which is in any manner related to the
business or operations of DM2, which DM2 knows or has
reason to believe to have been illegal under any
federal, state or local laws of the United States or
any other country having jurisdiction; and DM2 has not
participated, directly or indirectly, in any boycotts
or other similar practices affecting any of its actual
or potential shareholders in violation of any
applicable law or regulation.
5.22 Borrowing and Guarantees. Except as otherwise
disclosed, DM2 (a) does not have any indebtedness for
borrowed money, (b) is not lending or committed to lend
any money (except for advances to employees in the
ordinary course of business), and (c) is not guarantors
or sureties with respect to the obligations of any
Person.
5.23 Investment Purpose. The DM2 Shareholders represent and
warrant that they are receiving the BHSR Shares for
investment purposes and not with an intent to
distribute them.
6. Representations and Warranties of BHSR
BHSR represents and warrants to DM2 that, to the knowledge
of BHSR (which limitation shall not apply to Section 6.3),
and except as otherwise disclosed by BHSR:
6.1 Organization of BHSR; Authorization. BHSR is a
corporation duly organized, validly existing and in
good standing under the laws of the State of Nevada
with full corporate power and authority to execute and
deliver this Agreement and to perform its obligations
hereunder. The execution, delivery and performance of
this Agreement have been duly authorized by all
necessary corporate action of BHSR arid this Agreement
constitutes a valid and binding obligation of BHSR,
enforceable against it in accordance with its terms.
6.2 Capitalization. At the time of Closing, the authorized
capital stock of BHSR shall consist of 300,000,000
shares of common stock, $0.001 par value, and
50,000,000 shares of preferred stock, $0.001 par value.
As of the date hereof, 35,609,392 shares of such common
stock of BHSR are issued and outstanding; and no shares
of such preferred stock of BHSR are issued and
outstanding. As of the Closing Date, all of the issued
and outstanding shares of common stock of BHSR are
validly issued, fully paid and nonassessable.
6.3 No Conflict as to BHSR. Neither the execution and
delivery of this Agreement nor the consummation of the
sale of the BHSR Shares to DM2 will (a) violate any
provision of the certificate of incorporation or by-
laws of BHSR, or (b) violate, be in conflict with, or
constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default)
under any agreement to which BHSR is a party or (c)
violate any statute or law or any judgment, decree,
order, regulation or rule of any court or other
Governmental Body applicable to BHSR.
6.4 Ownership of BHSR Shares. The delivery of certificates
to DM2 provided in Section 2.3 will result in DM2
Shareholders' immediate acquisition of record and
beneficial ownership of the BHSR Shares, free and clear
of all encumbrances other than as required by United
States federal and state securities laws. There are no
outstanding options, rights, conversion rights,
agreements or commitments of any kind relating to the
issuance, sale or transfer of any Equity Securities or
other securities of BHSR. Nothing in this Agreement
shall be deemed to be a representation or warranty as
to the tradability of any of the BHSR Shares under
United States federal or state securities laws.
6.5 No Conflict as to BHSR. Neither the execution and
delivery of this Agreement nor the consummation of the
of the instant agreement will (a) violate any provision
of the certificate of incorporation or by-laws (or
other governing instrument) of BHSR or (b) violate, or
be in conflict with, or constitute a default (or an
event which, with notice or lapse of time or both,
would constitute a default) under, or result in the
termination of, or accelerate the performance required
by, or excuse performance by any Person of any of its
obligations under, or cause the acceleration of the
maturity of any debt or obligation pursuant to, or
result in the creation or imposition of any Encumbrance
upon any property or assets of BHSR under, any material
agreement or commitment to which BHSR is a party or by
which any of its property or assets is bound, or to
which any of the property or assets of BHSR is subject,
or (c) violate any statute or law or any judgment,
decree, order, regulation or rule of any court or other
Governmental Body applicable to BHSR except, in the
case of violations, conflicts, defaults, terminations,
accelerations or Encumbrances described in clause (b)
of this Section. 6.5, for such matters which are not
likely to have a material adverse effect on the
business or financial condition of BHSR.
6.6 Consents and Approvals of Governmental Authorities. No
consent, approval or authorization of, or declaration,
filing or registration with, any Governmental Body is
required to be made or obtained by BHSR or DM2 in
connection with the execution, delivery and performance
of this Agreement by BHSR or the consummation of the
contemplated transaction.
6.7 Other Consents. No consent of any Person is required to
be obtained by DM2 or BHSR to the execution, delivery
and performance of this Agreement or the consummation
of the contemplated transaction including, but not
limited to, consents from parties to leases or other
agreements or commitments, except for any consent which
the failure to obtain would not be likely to have a
material adverse effect on the business and financial
condition of DM2 or BHSR.
6.8 Financial Statements. BHSR has delivered to DM2 balance
sheets of BHSR as at June 30, 2004, and statements of
income and changes in financial position for the period
then ended. Such BHSR Financial Statements and notes
fairly present the financial condition and results of
operations of BHSR as at the dates thereof and for the
periods therein.
6.9 Title to Properties. BHSR owns all the material
properties and assets that they purport to own (real,
personal and mixed, tangible and intangible),
including, without limitation, all the material
properties and assets reflected in the BHSR Financial
Statements and all the material properties and assets
purchased or otherwise acquired by BHSR since the date
of the BHSR Financial Statements. All properties and
assets reflected in the BHSR Financial Statements are
free and clear of all material Encumbrances and are
not, in the case of real property, subject to any
material rights of way, building use restrictions,
exceptions, variances, reservations or limitations of
any nature whatsoever except, with respect to all such
properties and assets, (a) mortgages or security
interests shown on the BHSR Financial Statements as
securing specified liabilities or obligations, with
respect to which no default (or event which, with
notice or lapse of time or both, would constitute a
default) exists, (b) mortgages or security interests
incurred in connection with the purchase of property or
assets after the date of the BHSR Financial Statements
(such mortgages and security interests being limited to
the property or assets so acquired), with respect to
which no default (or event which, with notice or lapse
of time or both, would constitute a default) exists,
(c) as to real property, (i) imperfections of title, if
any, none of which materially detracts from the value
or impairs the use of the property subject thereto, or
impairs the operations of BHSR and (ii) zoning laws
that do not impair the present or anticipated use of
the property subject thereto, and (d) liens for current
taxes not yet due. The properties and assets of BHSR
include all rights, properties and other assets
necessary to permit BHSR to conduct BHSR's business in
all material respects in the same manner as it is
conducted on the date of this Agreement.
6.10 Buildings, Plants and Equipment. The buildings, plants,
structures and material items of equipment and other
personal property owned or leased by BHSR are, in all
respects material to the business or financial
condition of BHSR in good operating condition and
repair (ordinary wear and tear excepted) and are
adequate in all such respects for the purposes for
which they are being used. BHSR has not received
notification that it is in violation of any applicable
building, zoning, anti-pollution, health, safety or
other law, ordinance or regulation in respect of its
buildings, plants or structures or their operations,
which violation is likely to have a material adverse
effect on the business or financial condition of BHSR
or which would require a payment by DM2 or BHSR in
excess of US$2,000 in the aggregate, and which has not
been cured.
6.11 No Condemnation or Expropriation. Neither the whole nor
any portion of the property or leaseholds owned or held
by BHSR is subject to any governmental decree or order
to be sold or is being condemned, expropriated or
otherwise taken by any Governmental Body or other
Person with or without payment of compensation
therefore, which action is likely to have a material
adverse effect on the business or financial condition
of DM2.
6.12 Litigation. There is no action, suit, inquiry,
proceeding or investigation by or before any court or
Governmental Body pending or threatened in writing
against or involving BHSR which is likely to have a
material adverse effect on the business or financial
condition of DM2 and BHSR or which would require a
payment by BHSR in excess of US$2,000 in the aggregate
or which questions or challenges the validity of this
Agreement. BHSR is not subject to any judgment, order
or decree that is likely to have a material adverse
effect on the business or financial condition of DM2 or
BHSR or which would require a payment by BHSR in excess
of US$2,000 in the aggregate.
6.13 Absence of Certain Changes. Since the date of the BHSR
Financial Statements, BHSR has not:
a. suffered the damage or destruction of any of its
properties or assets (whether or not covered by
insurance) which is materially adverse to the
business or financial condition of BHSR or made
any disposition of any of its material properties
or assets other than in the ordinary course of
business;
b. made any change or amendment in its certificate of
incorporation or by-laws, or other governing
instruments;
c. organized any new Subsidiary or acquired any
Equity Securities of any Person, or any equity or
ownership interest in any business;
d. paid, discharged or satisfied any material claim,
liability or obligation (absolute, accrued,
contingent or otherwise), other than in the
ordinary course of business;
e. prepaid any material obligation having a maturity
of more than 90 days from the date such obligation
was issued or incurred;
f. canceled any material debts or waived any material
claims or rights, except in the ordinary course of
business;
g. disposed of or permitted to lapse any rights to
the use of any material patent or registered
trademark or copyright or other intellectual
property owned or used by it;
h. granted any general increase in the compensation
of officers or employees (including any such
increase pursuant to any employee benefit plan);
i. purchased or entered into any contract or
commitment to purchase any material quantity of
raw materials or supplies, or sold or entered into
any contract or commitment to sell any material
quantity of property or assets, except (i) normal
contracts or commitments for the purchase of, and
normal purchases of, raw materials or supplies,
made in the ordinary course business, (ii) normal
contracts or commitments for the sale of, and
normal sales of, inventory in the ordinary course
of business, and (iii) other contracts,
commitments, purchases or sales in the ordinary
course of business;
j. made any capital expenditures or additions to
property, plant or equipment or acquired any other
property or assets (other than raw materials and
supplies) at a cost in excess of US$2,000 in the
aggregate;
k. written off or been required to write off any
notes or accounts receivable in an aggregate
amount in excess of US$2,000;
l. written down or been required to write down any
inventory in an aggregate amount in excess of
US$2,000;
m. entered into any collective bargaining or union
contract or agreement; or
n. other than the ordinary course of business,
incurred any liability required by generally
accepted accounting principles to be reflected on
a balance sheet and material to the business or
financial condition of BHSR.
6.14 No Material Adverse Change. Since the date of the BHSR
Financial Statements, there has not been any material
adverse change in the business or financial condition
of BHSR.
6.15 Contracts and Commitments. Except as otherwise
disclosed by BHSR, BHSR is not a party to any:
a. Contract or agreement (other than purchase on
sales orders entered into in the ordinary course
of business) involving any liability on the part
of BHSR of more than US$2,000 and not cancelable
by BHSR (without liability to BHSR) within 60
days;
b. Lease of personal property involving annual rental
payments in excess of US$2,000 and not cancelable
by BHSR (without liability to BHSR) within 90
days;
c. Employee bonus, stock option or stock purchase,
performance unit, profit-sharing, pension,
savings, retirement, health, deferred or incentive
compensation, insurance or other material employee
benefit plan as defined in Section 2(3) of ERISA)
or program for any of the employees, former
employees or retired employees of BHSR;
d. Commitment, contract or agreement that is
currently expected by the management of BHSR to
result in any material loss upon completion or
performance thereof;
e. Contract, agreement or commitment that is material
to the business of BHSR, with any officer,
employee, agent, consultant, advisor, salesman,
sales representative, value added reseller,
distributor or dealer; or
f. Employment agreement or other similar agreement
that contains any severance or termination pay,
liabilities or obligations.
All such contracts and agreements are in full force and
effect. BHSR is not in breach of, in violation of or in
default under, any agreement, instrument, indenture,
deed of trust, commitment, contract or other obligation
of any type to which BHSR is a party or is or may be
bound as it relates to the business of BHSR or to which
any of the assets or properties of BHSR is subject, the
effect of which breach, violation or default is likely
to materially and adversity affect the business or
financial condition of BHSR.
6.16 Labor Relations. BHSR is not a party to any collective
bargaining agreement. Except for any matter which is
not likely to have a material adverse effect on the
business or financial condition of BHSR, (a) BHSR is in
compliance with all applicable laws respecting
employment and employment practices, terms and
conditions of employment and wages and hours, and is
not engaged in any unfair labor practice, (b) there is
no unfair labor practice complaint against BHSR pending
before the National Labor Relations Board, (c) there is
no labor strike, dispute, slowdown or stoppage actually
pending or threatened against BHSR, (d) no
representation question exists respecting the employees
of BHSR or any of its Subsidiaries, (e) BHSR has not
experienced any strike, work stoppage or other labor
difficulty, and (f) no collective bargaining agreement
relating to employees of BHSR is currently being
negotiated.
6.17 Employee Benefit Plans. BHSR has no plan that is (1) a
multi-employer plan as defined in Section 3(37) of
ERISA, or (2) a defined benefit plan as defined in
Section 3(35) of ERISA, any listed individual account
pension plan is duly qualified as tax exempt under the
applicable sections of the Code, each listed benefit
plan and related funding arrangement, if any, has been
maintained in all material respects in compliance with
its terms and the provisions of ERISA and the Code, and
the there are no material management incentive plans
nor any material employment contracts or severance
arrangements pertaining to one or more specific
employees.
6.18 Compliance with Law. The operations of BHSR have been
conducted in accordance with all applicable laws and
regulations of all Governmental Bodies having
jurisdiction over them, except for violations thereof
which are not likely to have a material adverse effect
on the business or financial condition of BHSR, or
which would not require a payment by BHSR in excess of
US$2,000 in the aggregate, or which have been cured.
BHSR has not received any notification of any asserted
present or past failure by it to comply with any such
applicable laws or regulations. BHSR has all material
licenses, permits, orders or approvals from the
Governmental Bodies required for the conduct of its
business, and is not in material violation of any such
licenses, permits, orders and approvals. All such
licenses, permits, orders and approvals are in full
force and effect, and no suspension or cancellation of
any thereof has been threatened.
6.19 Tax Matters.
a. BHSR (1) has filed, or prior to the Closing Date
will have filed, all non-consolidated and non-
combined Tax Returns and all consolidated or
combined Tax Returns required to be filed through
the date hereof and have paid any Tax due through
the date hereof with respect to the time periods
covered by such Tax Returns and shall timely pay
any such Taxes required to be paid by it after the
date hereof with respect to such Tax Returns; and
(2) shall prepare and timely file all such Tax
Returns required to be filed after the date hereof
and through the Closing Date and pay all Taxes
required to be paid by it with respect to the
periods covered by such Tax Returns. All such Tax
Returns filed pursuant to clause (2) after the
date hereof shall, in each case, be prepared and
filed in a manner consistent in all material
respects (including elections and accounting
methods and conventions) with such Tax Return most
recently filed in the relevant jurisdiction prior
to the date hereof, except as otherwise required
by law or regulation. Any such Tax Return filed
or required to be filed after the date hereof
shall not reflect any new elections or the
adoption of any new accounting methods or
conventions or other similar items, except to the
extent such particular reflection or adoption is
required to comply with any law or regulation.
b. All Tax Returns required to be filed by any person
through the date hereof that are required or
permitted to include the income, or reflect the
activities, operations and transactions, of BHSR
for any taxable period have been timely filed, and
the income, activities, operations and
transactions of BHSR have been properly included
and reflected thereon.
c. BHSR has not agreed, or is required, to make any
adjustment (x) under Section 481(a) of the Code by
reason of a change in accounting method or
otherwise, or (y) pursuant to any provision of the
Tax Reform Act of 1986, the Revenue Act of 1987 or
the Technical and Miscellaneous Revenue Act of
1988.
d. Neither BHSR or any predecessor or Affiliate of
BHSR has, at any time, filed a consent under
Section 341(f)(1) of the Code, or agreed under
Section 341(f)(3) of the Code, to have the
provisions of Section 341(f)(2) of the Code apply
to any sale of its stock.
e. There is no (nor has there been any request for
an) agreement, waiver or consent providing for an
extension of time with respect to the assessment
of any Taxes attributable to BHSR or its assets or
operations, and no power of attorney granted by
BHSR with respect to any Tax matter is currently
in force.
f. There is no action, suit, proceeding,
investigation, audit, claim, demand, deficiency or
additional assessment in BHSR, pending or
threatened against or with respect to any Tax
attributable to BHSR or its assets or operations.
g. All amounts required to be withheld as of the
Closing Date for Taxes or otherwise have been
withheld and paid when due to the appropriate
agency or authority.
h. No property of BHSR is "tax-exempt use property"
within the meaning of Section 168(h) of the Code,
nor property that BHSR will be required to treat
as being owned by another person pursuant to
Section 168(f)(8) of the Internal Revenue Code of
1954, as amended and in effect immediately prior
to the enactment of the Tax Reform Act of 1986.
i. There have been delivered or made available to DM2
true and complete copies of all income Tax Returns
and any other Tax Returns requested by DM2 as may
be relevant to BHSR or its assets or operations
for any and all periods ending after December 31,
2001, and for any Tax years which are subject to
audit or investigation by any taxing authority or
entity.
j. There is no contract, agreement, plan or arrangement,
including but not limited to the provisions of this Agreement,
covering any employee or former employee of BHSR that,
individually or collectively, could give rise to the payment of
any amount that would not be deductible pursuant to Section 280G
or 162 of the Code.
6.20 Environmental Matters.
a. At all times prior to the date hereof, BHSR has
complied in all material respects with applicable
environmental laws, orders, regulations, rules and
ordinances relating to the Properties (as
hereinafter defined), the violation of which would
have a material adverse effect on the business or
financial condition of BHSR or which would require
a payment by BHSR in excess of US$2,000 in the
aggregate, and which have been duly adopted,
imposed or promulgated by any legislative,
executive, administrative or judicial body or
officer of any Governmental Body.
b. The environmental licenses, permits and
authorizations that are material to the operations
of BHSR are in full force and effect.
c. BHSR has not released or caused to be released on
or about the properties currently owned or leased
by BHSR (the "Properties") any (i) pollutants,
(ii) contaminants, (iii) "Hazardous Substances,"
as that term is defined in Section 101(14) of the
Comprehensive Environmental Response Act, as
amended or (iv) "Regulated Substances," as that
term in defined in Section 9001 of the Resource
Conservation and Recovery Act, 42 U.S.C. Section
6901, et seq., as amended, which would be required
to be remediated by any governmental agency with
jurisdiction over the Properties under the
authority of laws, regulations and ordinances as
in effect and currently interpreted on the date
hereof, which remediation would have a material
adverse effect on the business or financial
condition of BHSR.
6.21 Absence of Certain Commercial Practices. BHSR has not,
directly or indirectly, paid or delivered any fee,
commission or other sum of money or item of property,
however characterized, to any finder, agent, government
official or other party, in the United States or any
other country, which is in any manner related to the
business or operations of BHSR, which BHSR knows or has
reason to believe to have been illegal under any
federal, state or local laws of the United States or
any other country having jurisdiction; and BHSR has not
participated, directly or indirectly, in any boycotts
or other similar practices affecting any of its actual
or potential shareholders in violation of any
applicable law or regulation.
6.22 Borrowing and Guarantees. Except as otherwise
disclosed by BHSR, BHSR (a) does not have any
indebtedness for borrowed money, (b) is not lending or
committed to lend any money (except for advances to
employees in the ordinary course of business), and (c)
is not a guarantor or Surety with respect to the
obligations of any Person.
6.24 Purchase for Investment. BHSR is obtaining the DM2
Shares solely for its own account for the purpose of
investment and not with a view to, or for sale in
connection with, any distribution of any portion
thereof in violation of any applicable securities law.
6.25 Indemnification. BHSR hereby agrees to indemnify,
defend and hold harmless DM2, its officers, directors,
shareholders, agents, and employees, and their
successors and assigns, against all liabilities,
damages, claims, costs, expenses and losses (including
reasonable attorneys' fees and costs) incurred as a
result of any breach of or failure of BHSR to fulfill
any representation, warranty, covenant or agreement
made by it under this Agreement.
7. Access and Reporting; Filings With Governmental Authorities;
Other Covenants.
7.1 Access between the date of this Agreement and the
Closing Date. Each of DM2 and BHSR shall (a) give to
the other and its authorized representatives reasonable
access to all plants, offices, warehouse and other
facilities and properties of DM2 or BHSR, as the case
may be, and to its books and records, (b) permit the
other to make inspections thereof, and (c) cause its
officers and its advisors to furnish the other with
such financial and operating data and other information
with respect to the business and properties of such
party and to discuss with such and its authorized
representatives its affairs, all as the other may from
time to time reasonably request.
7.2 Exclusivity. From the date hereof until the earlier of
the Closing or the termination of this Agreement, BHSR
shall not solicit or negotiate or enter into any
agreement with any other Person with respect to or in
furtherance of any proposal for a merger or business
combination involving, or acquisition of any interest
in, or (except in the ordinary course of business) sale
of assets by, BHSR, except for the exchange of the BHSR
Shares for the DM2 Shares from the DM2 Shareholders.
7.3 Regulatory Matters. DM2 and BHSR shall (a) file with
applicable regulatory authorities any applications and
related documents required to be filed by them in order
to consummate the contemplated transaction and (b)
cooperate with each other as they may reasonably
request in connection with the foregoing.
7.5 Confidentiality. Prior to the Closing Date (or at any
time if the Closing does not occur) each of DM2 and
BHSR shall keep confidential and not disclose to any
Person (other than its employees, attorneys,
accountants and advisors) or use (except in connection
with the transactions contemplated hereby) all non-
public information obtained pursuant to Section 7.1.
Following the Closing, each of DM2 and BHSR shall keep
confidential and not disclose to any Person (other than
its employees, attorneys, accountants and advisors) or
use (except in connection. with preparing Tax Returns
and conducting proceeds relating to Taxes) any
nonpublic information relating to the other. This
Section 7.5 shall not be violated by disclosure
pursuant to court order or as otherwise required by
law, on condition that notice of the requirement for
such disclosure is given the other party prior to
making any disclosure and the party subject to such
requirement cooperates as the other may reasonably
request in resisting it. If the Closing does not occur,
each of DM2 and BHSR shall return to the other, or
destroy, all information it shall have received from
the other in connection with this Agreement and the
transactions contemplated hereby, together with any
copies or summaries thereof or extracts therefrom. Each
of DM2 and BHSR shall use their best efforts to cause
their respective representatives, employees, attorneys,
accountants and advisors to whom information is
disclosed pursuant to Section 7.1 to comply with the
provisions of this Section 7.5.
8. Conduct of BHSR's Business Prior to the Closing.
8.1 Operation in Ordinary Course. Between the date of this
Agreement and the Closing Date, BHSR shall conduct its
business in all material respects in the ordinary
course.
8.2 Business Organization. Between the date of this
Agreement and the Closing Date, BHSR shall (a) preserve
substantially intact the business organization of BHSR;
and (b) preserve in all material respects the present
business relationships and good will of BHSR.
8.3 Corporate Organization. Between the date of this
Agreement and the Closing Date, BHSR shall not:
a. be party to any merger, consolidation or other
business combination;
b. sell, lease, license or otherwise dispose of any
of its properties or assets (including, but not
limited to rights with respect to patents and
registered trademarks and copyrights or other
proprietary rights), in an amount which is
material to the business or financial condition of
BHSR and its Subsidiaries, taken as a whole,
except in the ordinary course of business; or
c. organize any new Subsidiary or acquire any Equity
Securities of any Person or any equity or
ownership interest in any business.
9. Conduct of DM2's Business Prior to the Closing.
9.1 Operation in Ordinary Course. Between the date of this
Agreement and the Closing Date, DM2 shall conduct its
business in all material respects in the ordinary
course.
9.2 Business Organization. Between the date of this
Agreement and the Closing Date, DM2 shall (a) preserve
substantially intact the business organization of DM2;
and (b) preserve in all material respects the present
business relationships and good will of DM2.
9.3 Corporate Organization. Between the date of this
Agreement and the Closing Date, DM2 shall not cause or
permit any amendment of its certificate of
incorporation or by-laws (or other governing
instrument) and shall not:
a. issue, sell or otherwise dispose of any of its
Equity Securities, or create, sell or otherwise
dispose of any options, rights, conversion rights
or other agreements or commitments of any kind
relating to the issuance, sale or disposition of
any of its Equity Securities;
b. create or cause to be created any Encumbrance
thereon, or create, sell or otherwise dispose of
any options, rights, conversion rights or other
agreements or commitments of any kind relating to
the sale or disposition of any Equity Securities;
c. reclassify, split up or otherwise change any of
its Equity Securities;
d. be party to any merger, consolidation or other
business combination;
e. sell, lease, license or otherwise dispose of any
of its properties or assets (including, but not
limited to rights with respect to patents and
registered trademarks and copyrights or other
proprietary rights), in an amount which is
material to the business or financial condition of
DM2 and its Subsidiaries, taken as a whole, except
in the ordinary course of business; or
f. organize any new Subsidiary or acquire any Equity
Securities of any Person or any equity or
ownership interest in any business.
10. Definitions.
As used in this Agreement, the following terms have the
meanings specified or referred to in this Section 10.
10.1 "Business Day" - Any day that is not a Saturday or
Sunday or a day on which banks located in the Province
of Quebec are authorized or required to be closed.
10.2 "Code" - The Internal Revenue Code of 1986, as amended.
10.3 "Encumbrances" - any security interest, mortgage, lien,
charge, adverse claim or restriction of any kind,
including, but not limited to, any restriction on the
use, voting, transfer, receipt of income or other
exercise of any attributes of ownership, other than a
restriction on transfer arising under Federal or state
securities laws.
10.4 "Equity Securities" See Rule 3a-11-l under the United
States Securities Exchange Act of 1934.
10.5 "ERISA"- The Employee Retirement Income Security Act of
1974, as amended.
10.6 "Governmental Body" - Any domestic or foreign national,
state or municipal or other local government or multi-
national body (including, but not limited to, the
European Economic Community), any subdivision, agency,
commissioner authority thereof.
10.7 "Knowledge" - Actual knowledge, after reasonable
investigation.
10.8 "Person" - Any individual, corporation, partnership,
joint venture, trust, association, unincorporated
organization, other entity, or Governmental Body.
11. Termination. This Agreement may be terminated before the
Closing occurs only as follows:
a. By written agreement of DM2 and BHSR at any time.
b. By BHSR, by notice to DM2 at any time, if one or
more of the conditions specified in Section 4 is
not satisfied at the time at which the Closing (as
it may be deferred pursuant to Section 2.1) would
otherwise occur or if satisfaction of such a
condition is or becomes impossible.
c. By DM2, by notice to BHSR at any time, if one or
more of the conditions specified in Section 3 is
not satisfied at the time at which the Closing (as
it may be deferred pursuant to Section 2.1), would
otherwise occur or if satisfaction of such a
condition is or becomes impossible.
12. Previous Agreements. By entering into this Agreement, BHSR
and DM2 (and, where applicable, the DM2 Shareholders)
specifically acknowledge that any and all representations,
warranties, or provisions in prior agreements between the
parties, whether written or oral, are superceded by the
terms and conditions of this Agreement.
13. Notices. All notices, consents, assignments and other
communications under this Agreement shall be in writing and
shall be deemed to have been duly given when (a) delivered
by hand, (b) sent by telex or facsimile (with receipt
confirmed), provided that a copy is mailed by registered
mail, return receipt requested, or (c) received by the
delivery service (receipt requested), in each case to the
appropriate addresses, telex numbers and facsimile numbers
set forth below (or to such other addresses, telex numbers
and facsimile numbers as a party may designate as to itself
by notice to the other parties),
a. If to BHSR:
Xxxx-Xxxxxx, Inc.
0000 Xxxxxxx 0
Xxxxxx, Xxxxxxx X0X 0X0
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, President
b. If to DM2:
DM2 Technology Inc.
0000 Xxxxxxxxxxxx Xxx., Xxxxx 000
Xxxxxxxx, Xxxxxx X0X 0X0
Facsimile:
Attention: Xxxxxx Xxxxxxx, President
14. Miscellaneous.
14.2 Expenses. Each party shall bear its own expenses
incident to the preparation, negotiation, execution and
delivery of this Agreement and the performance of its
obligations hereunder.
14.3 Captions. The captions in this Agreement are for
convenience of reference only and shall not be given
any effect in the interpretation of this agreement,
14.4 No Waiver. The failure of a party to insist upon strict
adherence to any term of this Agreement on any occasion
shall not be considered a waiver or deprive that party
of the right thereafter to insist upon strict adherence
to that term or any other term of this Agreement. Any
waiver must be in writing.
14.5 Exclusive Agreement; Amendment. This Agreement
supersedes all prior agreements among the parties with
respect to its subject matter with respect thereto and
cannot be changed or terminated orally.
14.6 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be considered an
original, but all of which together shall constitute
the same instrument.
14.7 Governing Law. This Agreement and (unless otherwise
provided) all amendments hereof and waivers and
consents hereunder shall be governed by the internal
law of the State of Nevada, without regard to the
conflicts of law principles thereof.
14.8 Binding Effect. This Agreement shall inure to the
benefit of and be binding upon the parties hereto.
IN WITNESS WHEREOF, the corporate parties hereto have caused this
Agreement to be executed by their respective officers, hereunto
duly authorized, and entered into as of the date first above
written.
XXXX-XXXXXX, INC. DM2 TECHNOLOGY INC.
By:/s/ Xxxxx Xxxxxxx By:/s/ Xxxxxx Xxxxxxx
Xxxxx Xxxxxxx, President Xxxxxx Xxxxxxx, President
EXHIBIT A
SHARE ISSUANCE
The BHSR Shares shall be issued and delivered in such names and
denominations as follows. Each shareholder listed below shall
sign, in the space next to his/her/its name, to indicate
his/her/its assent to the Agreement. In the case in which the
shareholder is not a natural person, the person signing on behalf
of the shareholders represents and warrants that he/she is duly
authorize to execute this Agreement and, by his/her signature, to
bind the shareholding entity. By signing this and assenting to
this Agreement, the undersigned shareholder acknowledges that
this Agreement shall serve as written consent and approval of the
proposal by the Boards of Directors of DM2 Technology Inc. and
Xxxx-Xxxxxx, Inc. of their respective acquisitions.
Number Number of
of DM2 BHSR
Shares Shares to
Shareholder Tendered be Issued Signature
Xxxxxx Xxxxxxx 100 10,000,000 /s/ Xxxxxx Xxxxxxx
