Exhibit 10.5
PLAN AND AGREEMENT OF REORGANIZATION
This Plan and Agreement of Reorganization (the "Agreement") effective June 4,
2002, is by and between Bio-American Capital Corp., Inc., a Nevada corporation
("Bio-American Capital Corp."), having its principal offices 2121 East Pacific
Highway, Corona del Mar, California 92625; Bright Star Resources, Inc. ( "Bright
Star"), and the majority shareholders of Bright Star Resources, Inc., an
Arkansas corporation having its offices at 1501 Azure Hills Drive, Van Buren AR
72956 ("Majority Holders"), who are included on the list attached as Exhibit A
to this Agreement. This Agreement specifies a reorganization within the meaning
of Section 368(a)(1)(B) of the Internal Revenue Code of 1986, as amended.
RECITALS:
A. Bio-American Capital Corp. desires to acquire all of the issued and
outstanding shares or shareholdings of Bright Star to gain access to Bright
Star's valuable oil and gas lease holdings and all of the shareholders of Bright
Star desire to exchange all of their shares of Bright Star solely for shares of
Bio-American Capital Corp. authorized but unissued common voting stock as
hereinafter provided to gain access to Bio-American Capital Corp.'s access to
secondary public markets for working capital. Upon consummation of the Plan,
Bright Star will become a wholly owned subsidiary of Bio-American Capital Corp.
B. It is the intention of the parties hereto that: (i) Bio-American Capital
Corp. shall acquire all of the issued and outstanding shares of Bright Star in
exchange solely for 14.9 million pro forma voting Common shares of Bio-American
Capital Corp.'s authorized but un-issued shares of common stock, par value $.001
("Common Stock"), set forth below (the "Exchange"); and (ii) the Exchange shall
qualify as a transaction in securities exempt from registration or qualification
under the Securities Act of 1933, as amended, and under the applicable
securities laws of each state or jurisdiction where all of the share holders of
Bright Star (the "Shareholders") reside, with Bright Star becoming a
wholly-owned subsidiary of Bio-American Capital Corp..
C. The board of directors of Bio-American Capital Corp. deems it to be in the
best interest of Bio-American Capital Corp. and its shareholders to acquire all
of the issued and outstanding interests of Bright Star.
D. The directors and Majority holders of Bright Star deem it to be in the best
interest of the Bright Star shareholders to exchange all of the capital
interests of Bright Star for shares of Bio-American Capital Corp., as
hereinafter provided.
E. Bright Star owns, or will own at closing, 100% of KW Methane Developers, LLC;
WestStar Resources LLC; and Stratus Energy LLC.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained in this Agreement, the parties hereto
agree as follows:
SECTION 1. EXCHANGE OF SHARES
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1.1 Exchange of Shares. Bio-American Capital Corp. and the Shareholders hereby
agree that the share holders shall, on the Closing Date (as hereinafter
defined), exchange all of the issued and outstanding shares of Bright Star (at a
ratio of 12,000 Bright Star shares for 14,900,000 shares of Bio-American Capital
Corp. (the "Bio-American Capital Corp. Shares"). The Bio-American Capital Corp.
Shares will be restricted against resale pursuant to the provisions of Federal
and state securities laws. The Bright Star shares to be tendered to Bio-American
Capital Corp. will represent all of the issued and outstanding capital stock of
Bright Star. The Bright Star Shares owned by each share holder and the number of
Bio-American Capital Corp. Shares which each will receive in the Exchange are
set forth in Exhibit A hereto. Such an exchange rate shall be pro forma based
upon a 1:1.495 reverse split of Bio-American Capital Corp.'s 3,930,250 issued
and outstanding common shares prior to the exchange at the sole election of
Bright Star. In the event that Bright Star deems the reverse split unnecessary
or unwanted, then the exchange rate in Exhibit A may be adjusted to achieve the
desired 85% of the outstanding shares owned by Bright Star shareholders post
exchange. This agreement will go forward so long as at least 100% Bright Star
shares are tendered for exchange.
1.2 Delivery of Shares. On the Closing Date, the Shareholders will deliver to
Bio-American Capital Corp. the certificates representing the Bright Star Shares,
duly endorsed (or with executed stock powers) so as to make Bio-American Capital
Corp. the sole owner thereof. Upon delivery of the Bright Star Shares,
Bio-American Capital Corp. will deliver certificates representing the
Bio-American Capital Corp. Shares to the exchanging Shareholders, making the
exchanging shareholders the majority shareholders of Bio-American Capital Corp..
1.3 Restricted Securities. The Bio-American Capital Corp. Shares have not been
registered under the Securities Act of 1933, as amended (the "Securities Act"),
and may not be resold unless the resale thereof is registered under the
Securities Act or an exemption from such registration is available. Each
certificate representing the Bio-American Capital Corp. Shares will have a
legend thereon in substantially the following form:
The Shares represented by the certificate have not been registered under the
Securities Act of 1933, as amended (the "Act"). The shares have been acquired
for investment and may not be sold or transferred in the absence of an effective
Registration Statement for the resale of the shares under the Act unless in the
opinion of counsel satisfactory to the Company, registration is not required
under the Act.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF BRIGHT STAR RESOURCES, INC.
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The Majority Shareholder of Bright Star (The First Walker Family Trust, Sally
Rogers, Trustee) hereby represents and warrant as follows:
2.1 Organization and Good Standing. Bright Star is a corporation duly organized,
validly existing and in good standing under the laws of the State of Arkansas.
Bright Star has the corporate power and authority to carry on its business as
presently conducted. Bright Star is qualified to do business in all
jurisdictions where the failure to be so qualified would have a material adverse
effect on its business.
2.2 Corporate Authority. Bright Star has the power to operate as a corporation
and to perform any corporate obligations hereunder. The execution and delivery
of this Agreement by each of the exchanging shareholders, and the consummation
of the transaction contemplated hereby, are not in violation of any corporate
restrictions governing shareholder transactions. The execution and performance
of this Agreement, ultimately effecting a change in control of the company, will
not constitute a material breach of any agreement, indenture, mortgage, license
or other instrument or document to which Bright Star is a party and will not
violate any judgment, decree, order, writ, rule, statute, or regulation
applicable to Bright Star or its properties. The execution and performance of
this Agreement will not violate or conflict with any provision of the Articles
of Incorporation or the Bylaws of Bright Star.
2.3 Ownership of Shares. The Shareholders described on Exhibit A are the owners
of record and beneficially of all of the issued and outstanding shares of Bright
Star. Except as set forth on Schedule 2.3, each shareholder represents and
warrants that he, she or it owns such shares free and clear of all rights,
claims, liens and encumbrances, and the shares have not been sold, pledged,
assigned or otherwise transferred except pursuant to this Agreement.
2.4 Receipt of Corporate Information; Independent Investigation; Access. All
requested publicly-available documents, records and books pertaining to
Bio-American Capital Corp. and the Bio-American Capital Corp. Shares will be
delivered to each Majority Shareholder or that shareholder's advisors, and any
of the other shareholders as requested. All of the Shareholders= questions and
requests for information will be answered to the Shareholders= satisfaction.
Each Majority Shareholder acknowledges that they, in making the decision to
exchange the Bright Star Shares for Bio-American Capital Corp. Shares, will rely
upon independent investigations made by them or their representatives, if any,
and they will have, prior to the Closing Date, been given access to and the
opportunity to examine all material contracts and documents relating to this
offering and an opportunity to ask questions of, and to receive information
from, Bio-American Capital Corp. or any person acting on its behalf concerning
the terms and conditions of this Agreement. Each Bright Star shareholder and its
advisors, if any, will have been furnished with access to all publicly available
materials relating to the business, finances and operation of Bio-American
Capital Corp. and materials relating to the offer and sale of the Bio-American
Capital Corp. Shares which have been requested. Each shareholder and its
advisors, if any, will have received complete and satisfactory answers to any
such inquiries.
2.5 Risks. Each shareholder executing this agreement acknowledges and
understands that the exchange for the Bio-American Capital Corp. Shares involves
a high degree of risk and is suitable only for persons of adequate financial
means who have no need for liquidity in this investment in that (i) the
Shareholder may not be able to liquidate the investment in the event of an
emergency; (ii) transferability is extremely limited; and (iii) in the event of
a disposition, the Shareholder could sustain a complete loss of its entire
investment. The Shareholder is sufficiently experienced in financial and
business matters to be capable of evaluating the merits and risks of an
investment in Bio-American Capital Corp.; has evaluated such merits and risks,
including risks particular to the Shareholder's situation; and the Shareholder
has determined that this investment is suitable for the Shareholder. The
Shareholder has adequate financial resources and can bear a complete loss of the
Shareholder's investment.
2.6 Investment Intent. Each Majority Shareholder hereby represents that the
Bio-American Capital Corp. Shares are being acquired for the Shareholder's own
account with no intention of distributing such securities to others. The
Shareholder has no contract, undertaking, agreement or arrangement with any
person to sell, transfer or otherwise distribute to any person or to have any
person sell, transfer or otherwise distribute the Shares for the Shareholder.
The Shareholder is presently not engaged, nor does the Shareholder plan to
engage within the presently foreseeable future, in any discussion with any
person regarding such a sale, transfer or other distribution of the Shares or
any interest therein.
2.7 Compliance with Federal and State Securities Laws. The Shareholder
understands that the Bio-American Capital Corp. Shares have not been registered
under the Securities Act. The Shareholder understands that the Bio-American
Capital Corp. Shares must be held indefinitely unless the sale or other transfer
thereof is subsequently registered under the Securities Act or an exemption from
such registration is available. Moreover, the Shareholder understands that its
right to transfer the Bio-American Capital Corp. Shares will be subject to
certain restrictions, which include restrictions against transfer under the
Securities Act and applicable state securities laws. In addition to such
restrictions, the Shareholder realizes that it may not be able to sell or
dispose of the Bio-American Capital Corp. Shares, as there may be no public or
other market for them. The Shareholder understands that certificates evidencing
the Shares shall bear a legend substantially as follows:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY APPLICABLE
STATE LAW. THEY MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR PLEDGED UNLESS
REGISTERED UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE LAW OR PURSUANT TO
AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS 2.8 Approvals. No approval,
authorization, consent, order or other action of, or filing with, any person,
firm or corporation or any court, administrative agency or other governmental
authority is required in connection with the execution and delivery of this
Agreement by Bright Star and the Majority Shareholder for the consummation of
the transactions described herein, other than as set forth on Schedule 2.3. 2.9
No General Solicitation. No Shareholder is purchasing (or exchanging for) the
Bio-American Capital Corp. Shares because of or following any advertisement,
article, notice or other communication published in any newspaper, magazine or
similar media or broadcast over television or radio, or presented at any seminar
or meeting, or any solicitation or a subscription by a person other than a
representative of Bio-American Capital Corp.
2.10 Financial Statements, Books and Records. Attached as Exhibit 2.10 are the
unaudited financial statements (balance sheet, income statement, notes) of
Bright Star as of March 31, 2002. (the "Financial Statements"). The books of
account and other financial records of Bright Star are in all respects complete
and correct in all material respects and are maintained in accordance with good
business and accounting practices. The Directors and Majority Shareholders
acknowledge that a minimum of two (2) years of audited financial information
will be required to be filed with the Securities and Exchange commission within
60 days of the Closing date of this Agreement.
2.11 No Material Adverse Changes. Since March 30,2002 there has not been:
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(i) any material adverse change in the financial position of Bright Star except
changes arising in the ordinary course of business, which changes will in no
event materially and adversely affect the financial position of Bright Star;
(ii) any damage, destruction or loss materially affecting the assets,
prospective business, operations or condition (financial or otherwise) of Bright
Star whether or not covered by insurance;
(iii) any declaration, setting aside or payment of any dividend or distribution
with respect to any redemption or repurchase of Bright Star capital interests;
(iv) any sale of an asset (other than in the ordinary course of business) or any
mortgage or pledge by Bright Star of any properties or assets; or
(v) adoption of any pension, profit sharing, retirement, stock bonus, stock
option or similar plan or arrangement.
2.12 Taxes. Bright Star has filed all material tax, governmental and/or related
forms and reports (or extensions thereof) due or required to be filed and has
paid or made adequate provisions for all taxes or assessments which had become
due as of the Closing Date, and there are no deficiency notices outstanding. No
extensions of time for the assessment of deficiencies for any year are in
effect. No deficiency notice is proposed or, to the knowledge of the Major
Shareholders after reasonable inquiry, threatened against Bright Star. The tax
returns of Bright Star have never been audited.
2.13 Compliance with Laws. Bright Star has complied with all federal, state,
county and local laws, ordinances, regulations, inspections, orders, judgments,
injunctions, awards or decrees applicable to it or its business which, if not
complied with, would materially and adversely affect the business of Bright
Star.
2.14 No Breach. The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby will not:
(i) violate any provision of the Articles of Incorporation or the Bylaws of
Bright Star;
(ii) Violate, conflict with or result in the breach of any of the terms of,
result in a material modification of, otherwise give any other contracting party
the right to terminate, or constitute (or with notice or lapse of time, or both
constitute) a default under any contract or other agreement to which Bright Star
is a party or by or to which it or any of its assets or properties may be bound
or subject;
(iii) violate any order, judgment, injunction, award or decree of any court,
arbitrator or governmental or regulatory body against, or binding upon, Bright
Star or upon the properties or business of Bright Star; or
(iv) violate any statute, law or regulation of any jurisdiction applicable to
the transactions contemplated herein which could have a material, adverse effect
on the business or operations of Bright Star.
2.15 Actions and Proceedings. The execution and performance of this Agreement,
ultimately effecting a change in control of the company, will not constitute a
material breach of any agreement, indenture, mortgage, license or other
instrument or document to which BRIGHT STAR is a party and will not violate any
judgment, decree, order, writ, rule, statute, or regulation applicable to BRIGHT
STAR or its properties. The execution and performance of this Agreement will not
violate or conflict with any provision of the Articles of Incorporation or the
Bylaws of BRIGHT STAR.
2.16 Agreements. Schedule 2.16 sets forth any material contract or arrangement
to which Bright Star is a party or by or to which it or its assets, properties
or business are bound or subject, whether written or oral.
2.17 Brokers or Finders. No broker's or finder's fee will be payable by Bright
Star in connection with the transactions contemplated by this Agreement, nor
will any such fee be incurred as a result of any actions by Bright Star or any
of its Shareholders.
2.18 Real Estate. Except as set forth on Schedule 2.18, Bright Star owns no real
property nor is a party to any leasehold agreement. All uses of the real
property by Bright Star or its subsidiaries conform in all material respects to
all applicable building and zoning ordinances, laws and regulations.
2.19 OSHA and Environmental Compliance. To the knowledge of the Majority
Shareholder, Bright Star has duly complied with, and its offices, real property,
business, assets, leaseholds and equipment are in compliance in all material
respects with, the provisions of the Federal Occupational Safety and Health Act,
the Environmental Protection Act, and all other environmental laws. There have
been no outstanding citations, notices or orders of non-compliance issued to
Bright Star or relating to its business, assets, property, leaseholders or
equipment under such laws, rules or regulations.
Bright Star has been issued all required federal, state and local licenses,
certificates or permits relating to all applicable environmental laws. There are
no visible signs of releases, spills, discharges, leaks or disposal
(collectively, referred to as "Releases") of hazardous substances at, upon,
under or within the real property owned by Bright Star. There are no underground
storage tanks or polychlorinated biphenyls on the real property. To the best of
the Majority Shareholders= knowledge, after reasonable inquiry, the real
property has never been used as a treatment, storage or disposal facility of
hazardous waste. To the best of the Majority Shareholders= knowledge, after
reasonable inquiry, no hazardous substances are present on the real property or
any premises leased by Bright Star excepting such quantities as are handled in
accordance with all applicable manufacturer's instructions and governmental
regulations and in the proper storage containers and as are necessary for the
operation of the commercial business of Bright Star.
2.20 Tangible Assets. To the knowledge of the Majority Shareholder, Bright Star
has full title and interest in all machinery, equipment, furniture, leasehold
improvements, fixtures, projects, owned or leased by Bright Star, any related
capitalized items or other tangible property material to the business of Bright
Star (the "Tangible Assets"). Other than as set forth in Schedule 2.20, Bright
Star holds all rights, title and interest in all the Tangible Assets owned by it
on the Balance Sheet or acquired by it after the date on the Balance Sheet free
and clear of all liens, pledges, mortgages, security interests, conditional
sales contracts or any other encumbrances. All of the Tangible Assets are in
good operating condition and repair and are usable in the ordinary course of
business of Bright Star and conform to all applicable laws, ordinances and
government orders, rules and regulations relating to their construction and
operation, except as set forth on Schedule 2.20 hereto. Bright Star has clear
title to all of its fictional business names, trading names, registered and
unregistered trademarks, service marks and applications (collectively, the
"Marks") and Marks are included as Tangible Assets.
2.21 Liabilities. Bright Star did not have any material direct or indirect
indebtedness, liability, claim, loss, damage, deficiency, obligation or
responsibility, known or unknown, fixed or unfixed, liquidated or unliquidated,
secured or unsecured, accrued or absolute, contingent or otherwise, including,
without limitation, any liability on account of taxes, any governmental charge
or lawsuit (all of the foregoing collectively defined to as "Liabilities"),
which are not fully, fairly and adequately reflected on the Financial Statements
(annual and interim), except for a specific Liabilities set forth on Schedule
2.21 attached hereto and made a part hereof. As of the date of Closing, Bright
Star will not have any Liabilities, other than Liabilities fully and adequately
reflected on the Financial Statements except for Liabilities incurred in the
ordinary course of business and as set forth in Schedule 2.21. To the best
knowledge of the Shareholders, there is no circumstance, condition, event or
arrangement, which may hereafter give rise to any Liabilities not in the
ordinary course of business.
2.22 Access to Records. The corporate financial records, minute books and other
documents and records of Bright Star have been made available to Bio-American
Capital Corp. prior to the Closing hereof.
2.23 Operations of
Bright Star. From the date of the Financial Statements through the date of
Closing, Bright Star has not and will not, outside of the ordinary course of
business, have:
(i) incurred any indebtedness or borrowed money;
(ii) declared or paid any dividend or declared or made any distribution of any
kind to any Shareholder, or made any direct or indirect redemption, retirement,
purchase or other acquisition of any interests in its capital structure;
(iii) made any loan or advance to any Shareholder, officer, director, employee,
consultant, agent or other representative or made any other loan or advance;
(iv) disposed of any assets of Bright Star;
(v) materially increased the annual level of compensation of any executive
employee of Bright Star; (vi) increased, terminated, amended or otherwise
modified any plan for the benefit of employees of Bright Star;
(vii) issued any equity securities or rights to acquire such equity securities;
or
(viii) entered into or modified any contract, agreement or transaction.
2.24 Capitalization. The authorized capital of Bright Star consists of 14,900 in
shares of stock and warrants and no preferred, of which 12,000 shares of common,
and no shares of preferred, are issued and outstanding. Bright Star is current
with respect to all dividend obligations. Bright Star has not granted, issued or
agreed to grant, issue or make any warrants, options, subscription rights or any
other commitments of any character relating to the issued or unissued shares of
capital stock of Bright Star except as set forth on Schedule2.24 attached hereto
and made a part hereof. Bright Star has no subsidiaries.
2.25 Full Disclosure. No representation or warranty by Bright Star or the
Majority Shareholder in this Agreement or in any document or schedule to be
delivered by them pursuant hereto, and no written statement, certificate or
instrument furnished or to be furnished by Bright Star pursuant hereto or in
connection with the negotiation, execution or performance of this Agreement
contains or will contain any untrue statement of a material fact or omits or
will omit to state any fact necessary to make any statement herein or therein
not materially misleading or necessary to a complete and correct presentation of
all material aspects of the business of Bright Star, and/or the status of the
Bright Star Shares.
SECTION 3. INVESTMENT REPRESENTATIONS AND WARRANTIES OF Bio-American
Capital Corp. Bio-American Capital Corp. hereby represents and warrants as
follows:
3.1 Organizations and Good Standing. Bio-American Capital Corp. is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Nevada. It has the corporate power to own its own property and
to carry on its business as now being conducted and is duly qualified to do
business in any jurisdiction where so required except where the failure to so
qualify would have no material adverse effect on its business.
3.2 Corporate Authority. Bio-American Capital Corp. has the corporate power to
enter into this Agreement and to perform its obligations hereunder. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby has been, or will be prior to the Closing Date,
duly authorized by the Board of Directors of Bio-American Capital Corp. and a
majority of the Shareholders as required Nevada law. The execution and
performance of this Agreement will not constitute a material breach of any
agreement, indenture, mortgage, license or other instrument or document to which
Bio-American Capital Corp. is a party and will not violate any judgment, decree,
order, writ, rule, statute, or regulation applicable to Bio-American Capital
Corp. or its properties. The execution and performance of this Agreement will
not violate or conflict with any provision of the Articles of Incorporation or
by-laws of Bio-American Capital Corp.
3.3 The Bio-American Capital Corp. Shares. At the Closing, the Bio-American
Capital Corp. Shares to be issued and delivered to the Shareholders hereunder
will when so issued and delivered, constitute valid and legally issued shares of
Bio-American Capital Corp. Common Stock, fully paid and nonassessable.
3.4 Financial Statement: Books and Records. Attached as Exhibit 3.4 are the
audited financial statements (balance sheet, income statement and Notes) of
Bio-American Capital Corp. for the fiscal year ended December 31, 2001 and
unaudited financial statements for the quarter ended at March 30,
2002(collectively the "Financial Statements"), all of which are on file with the
U.S. Securities and Exchange Commission's EDGAR system. . The Financial
Statements were prepared in accordance with generally accepted accounting
principles applied on a consistent basis with prior periods except as otherwise
stated therein. The books of account and other financial records of Bio-American
Capital Corp. are in all respects complete and correct in all material respects
and are maintained in accordance with good business and accounting practices.
3.5 No Material Adverse Changes.
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Except as described on Schedule 3.5, since March 31,2002, there has not been:
(i) any material adverse changes in the financial position of Bio-American
Capital Corp. except changes arising in the ordinary course of business, which
changes will in no event materially and adversely affect the financial position
of Bio-American Capital Corp.
(ii) any damage, destruction or loss materially affecting the assets,
prospective business, operations or condition (financial or otherwise) of
Bio-American Capital Corp. whether or not covered by insurance;
(iii) any declaration setting aside or payment of any dividend or distribution
with respect to any redemption or repurchase of Bio-American Capital Corp.
capital stock, other than as agreed upon among the parties;
(iv) any sale of an asset (other than as described in (iii) above, or in the
ordinary course of business) or any mortgage pledge by Bio-American Capital
Corp. of any properties or assets; or
(v) adoption or modification of any pension, profit sharing, retirement, stock
bonus, stock option or similar plan or arrangement.
(vi) except in the ordinary course of business, incurred or assumed any
indebtedness or liability, whether or not currently due and payable;
(vii) any loan or advance to any Shareholder, officer, director, employee,
consultant, agent or other representative or made any other loan or advance
otherwise than in the ordinary course of business;
(viii) any material increase in the annual level of compensation of any
executive employee of Bio-American Capital Corp.;
(ix) except in the ordinary course of business, entered into or modified any
contract, agreement or transaction;
(x) issued any equity securities or rights to acquire equity securities, other
than as set forth in Schedule 3.5.
3.6 Taxes. Bio-American Capital Corp., formed on May 5, 1992, has filed all tax,
governmental and/or related forms and reports (or extensions thereof) due or
required to be filed.
3.7 Compliance with Laws. Except as described on Schedule 3.7, Bio-American
Capital Corp. has complied with all federal, state, county and local laws,
ordinances, regulations, inspections, orders, judgments, injunctions, awards or
decrees applicable to it or its business, which, if not complied with, would
materially and adversely affect the business of Bio-American Capital Corp.
3.8 Actions and Proceedings. Bio-American Capital Corp. is not a party to any
material pending litigation or, to its knowledge, any governmental proceedings
are threatened against Bio-American Capital Corp.
3.9 Periodic Reports. Bio-American Capital Corp. is a Section
12(g) reporting company and therefore must file periodic reports to be filed
pursuant to the Securities Exchange Act of 1934, as amended, for purposes of
trading on the OTC Bulletin Board.
3.10 Capitalization. As of the Closing Date, there are approximately ________
shareholders of record that are the owners of 3,930,250 shares of Bio-American
Capital Corp. Common Stock (subject to the right of Bright Star to elect to have
a reverse split of such shares prior to Closing), none of which owns in excess
of 5% of the issued and outstanding shares, except as may be set forth on
Schedule 3.10 attached, a shareholder list. Bio-American Capital Corp. has
100,000,000 shares of common stock, par value $0.001 per share authorized, of
which _________ are issued, There are no outstanding warrants, stock options,
stock rights or other commitments of any character relating to the issued or
unissued shares of Common Stock of Bio-American Capital Corp.
3.11 Access to Records. The corporate financial records, minute books, and other
documents and records of Bio-American Capital Corp. have been made available to
Bright Star prior to the Closing hereof.
3.12 No Breach. The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby will not:
(i) violate any provision of the Articles of Incorporation or By-Laws of
Bio-American Capital Corp.;
(ii) violate, conflict with or result in the breach of any of the material terms
of, result in a material modification of, otherwise give any other contracting
party the right to terminate, or constitute (or with notice or lapse of time or
both constitute) a default under, any contract or other agreement to which
Bio-American Capital Corp. is a party or by or to which it or any of its assets
or properties may be bound or subject;
(iii) violate any order, judgment, injunction, award or decree of any court,
arbitrator or governmental or regulatory body against, or binding upon,
Bio-American Capital Corp. or upon the securities, properties or business to
Bio-American Capital Corp.; or
(iv) violate any statute, law or regulation of any jurisdiction applicable to
the transactions contemplated herein, which violation could have a material
adverse effect on the business or operations of Bio-American Capital Corp.
3.13 Brokers or Finders. No broker's or finder's fee will be payable by
Bio-American Capital Corp. in connection with the transactions contemplated by
this Agreement, nor will any such fee be incurred as a result of any actions of
Bio-American Capital Corp.
3.14 Corporate Authority. Bio-American Capital Corp. has the corporate power to
enter into this Agreement and to perform its respective obligations hereunder.
The Board of Directors and a majority of the Shareholders of Bio-American
Capital Corp have duly authorized the execution and delivery of this Agreement
and the consummation of the transaction contemplated hereby. The execution and
performance of this Agreement will not constitute a material breach of any
agreement, indenture, mortgage, license or other instrument or document to which
Bio-American Capital Corp. is a party and will not violate any judgment, decree,
order, writ, rule, statute, or regulation applicable to Bio-American Capital
Corp. or its properties. The execution and performance of this Agreement will
not violate or conflict with any provision of the Certificate of Incorporation
or by-laws of Bio-American Capital Corp.
3.15 Full Disclosure. No representation or warranty by Bio-American Capital
Corp. in this Agreement or in any document or schedule to be delivered by them
pursuant hereto, and no written statement, certificate or instrument furnished
or to be furnished by Bio-American Capital Corp. pursuant hereto or in
connection with the negotiation, execution or performance of this Agreement
contains or will contain any untrue statement of a material fact or omits or
will omit to state any fact necessary to make any statement herein or therein
not materially misleading or necessary to complete and correct presentation of
all material aspects of the business of Bio-American Capital Corp.
3.16 No Claims Outstanding. Bio-American Capital Corp. represents that it is not
subject to any claims, litigation, or other charges against its assets, has no
real estate or real estate holdings, has no employees, one officer and two
directors, serving without pay, and therefore there can be no OSHA or other
personnel claims outstanding or potentially assert able against the company.
Furthermore, there have been no material changes in the Company's position, and
the company has conducted no other business, since January 1, 2000, other than
as set forth on Schedule 3.16, indicating a description of activities since
inception of the corporation.
3.17 Securities Issuances. Bio-American Capital Corp. represents that all of the
existing and outstanding shares were lawfully issued and are dutifully accounted
for in the financial statements and with the Company's transfer agent.
3.18 Receipt of Corporate Information; Independent Investigation; Access. All
requested publicly available documents, records and books pertaining to Bright
Star shall be received by the board of directors concurrent with the closing of
the merger and all of the Directors= questions and requests for information will
be answered to the Directors= satisfaction. The board of directors acknowledges
that they, in making the decision to enter into this agreement, will rely upon
independent investigations made by them or their representatives, if any, and
they will have, prior to the Closing Date, been given access to and the
opportunity to examine all material contracts and documents relating to this
offering and an opportunity to ask questions of, and to receive information
from, Bright Star or any person acting on its behalf concerning the terms and
conditions of this Agreement.
3.19 No General Solicitation. The directors are not purchasing (or exchanging
for) the Bright Star Shares because of or following any advertisement, article,
notice or other communication published in any newspaper, magazine or similar
media or broadcast over television or radio, or presented at any seminar or
meeting, or any solicitation or a subscription by a person other than a
representative of Bright Star.
3.20 Investment Intent. Bio-American Capital Corp. represents that the shares
are being acquired for the Company's account, as a subsidiary, with no intention
of distributing such securities to others, and it has no contract, undertaking,
agreement or arrangement with any person to sell, transfer or otherwise
distribute to any person or to have any person sell, transfer or otherwise
distribute the shares. Bio-American Capital Corp. is presently not engaged, nor
does it plan to engage within the presently foreseeable future, in any
discussion with any person regarding such a sale, transfer or other distribution
of the shares or any interest therein.
3.21 Compliance with Federal and State Securities Laws. Bio-American Capital
Corp. understands that the Bright Star Shares have not been registered under the
Securities Act; the Bright Star Shares must be held indefinitely unless the sale
or other transfer thereof is subsequently registered under the Securities Act or
an exemption from such registration is
available; and that its right to transfer the Bright Star Shares will be
subject to certain restrictions, which include restrictions against transfer
under the Securities Act and applicable state securities laws. In addition to
such restrictions, the Shareholder realizes that it may not be able to sell or
dispose of the Bright Star Shares, as there may be no public or other market for
them.
SECTION 4. CONDITIONS PRECEDENT
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4.1 Conditions Precedent to the Obligation of Bright Star Shareholders. All
obligations of the shareholders under this Agreement are subject to the
fulfillment, prior to or as of the Closing Date, as indicated below, of each of
the following conditions:
(a) The representations and warranties by or on behalf of Bio-American Capital
Corp. contained in this Agreement or in any certificate or document delivered
pursuant to the provisions hereof shall be true in all material respects at and
as of Closing Date as though such representations and warranties were made at
and as of such time.
(b) Bio-American Capital Corp. shall have performed and complied in all material
respects, with all covenants, agreements, and conditions set forth in, and shall
have executed and delivered all documents required by this Agreement to be
performed or complied with or executed and delivered by them prior to or at the
Closing.
(c) On or before the Closing, the Board of Directors and a majority of the
shareholders of Bio-American Capital Corp. shall have approved, in accordance
with Nevada law, the execution, delivery and performance of this Agreement and
the consummation of the transaction contemplated herein and authorized all of
the necessary and proper action to enable Bio-American Capital Corp. to comply
with the terms of the Agreement.
(d) Bio-American Capital Corp. shall have sufficient shares of Bio-American
Capital Corp. Common Stock authorized but unissued to complete the Exchange and
the contemplated common share offering of up to 6 million shares. (e) All
instruments and documents delivered to Bright Star and the Shareholders pursuant
to provisions hereof shall be reasonably satisfactory to legal counsel for
Bright Star.
(f) Bio-American Capital Corp. shall, if elected by Bright Star, approve a
1:1.495 reverse split of its common stock, and reduce authorized common shares
to 40,000,000.
4.2 Conditions Precedent to the Obligations of Bio-American Capital Corp. and
Bio-American Capital Corp. Shareholders. All obligations of Bio-American Capital
Corp. under this Agreement are subject to the fulfillment, prior to or at
Closing, of each of the following conditions:
(a) The representations and warranties by Bright Star through its Majority
Shareholders, contained in this Agreement or in any certificate or document
delivered pursuant to the provisions hereof shall be true in all material
respects at and as of the Closing as though such representations and warranties
were made at and as of such time;
(2) Bright Star and its Shareholders shall have performed and complied with, in
all material respects, with all covenants, agreements, and conditions set forth
in, and shall have executed and delivered all documents required by this
Agreement to be
(3) performed or complied or executed and delivered by them prior to or at the
Closing;
(4) Bio-American Capital Corp. shall at closing have extinguished in a matter
mutually agreeable to both debtor and creditor, all short and long term
liabilities of the company, including, but not limited to all such liabilities
represented on the Company's last Form 10Q, any accrued liabilities since the
date of the 3/31/02 Form 10Q and any and all contingent liabilities which may in
the actual knowledge of the Company's directors and/or officers have been
incurred.
SECTION 5. COVENANTS
- --------------------
5.1 Corporate Examinations and Investigations. Prior to the Closing Date, the
parties acknowledge that they have been entitled, through their employees and
representatives, to make such investigation of the assets, properties, business
and operations, books, records and financial condition of the other as they each
may reasonably require. No investigations, by a party hereto shall, however,
diminish or waive any of the representations, warranties, covenants or
agreements of the party under this Agreement.
5.2 Further Assurances. The parties shall execute such documents and other
papers and take such further actions, as may be reasonably required or desirable
to carry out the provisions hereof and the transactions contemplated hereby.
Each such party shall use its best efforts to fulfill or obtain the fulfillment
of the conditions to the Closing, including, without limitation, the execution
and delivery of any documents or other papers, the execution and delivery of
which are necessary or appropriate to the Closing.
5.3 Confidentiality. In the event the transactions contemplated by this
Agreement are not consummated, Bio-American Capital Corp., Bright Star and the
Shareholders agree to keep confidential any information disclosed to each other
in connection therewith for a period of one
(i) year from the date hereof; provided, however, such obligation shall not
apply to information which: (i) at the time of the disclosure was public
knowledge;
(ii) after the time of disclosure becomes public knowledge (except due to the
action of the receiving party); or
(iii) the receiving party had within its possession at the time of disclosure;
or
(iv) is ordered disclosed by a Court of proper jurisdiction.
SECTION 6. SURVIVAL OF REPRESENTATIONS AND WARRANTIES Notwithstanding any right
of either party to investigate the affairs of the other party and its
Shareholders, each party has the right to rely fully upon representations,
warranties, covenants and agreements of the other party and its Shareholders
contained in this Agreement or in any document delivered to one by the other or
any of their representatives, in connection with the transactions contemplated
by this Agreement. All such representations, warranties, covenants and
agreements shall survive the execution and delivery hereof and the closing
hereunder for one year following the Closing.
SECTION 7. INDEMNIFICATION For a period of one (1) year from the Closing, the
Majority Shareholders of Bright Star agree to indemnify and hold harmless
Bio-American Capital Corp., its officers, directors and principal shareholders,
and Bio-American Capital Corp., its officers, directors and principal
shareholders jointly and severally agree to indemnify and hold harmless the
Bright Star Shareholders, at all times up to one (1) year after the date of this
Agreement against and in respect of any liability, damage, or deficiency, all
actions, suits, proceedings, demands, assessments, judgments, costs and
expenses, including attorneys' fees, incident to any of the foregoing, resulting
from any material misrepresentation made by any indemnifying party to an
indemnified party, an indemnifying party's breach of a covenant or warranty or
an indemnifying party's nonfulfillment of any agreement hereunder, or from any
material misrepresentation or omission from any certificate, financial statement
or tax return furnished or to be furnished hereunder for any period up to and
including 120 days after execution of this Agreement. This provision shall not
be construed to be a waiver of any lawful indemnification provision contained in
the charter or By-Laws, as permitted by Federal or State law.
If the indemnified party receives written notice of the commencement of any
legal action, suit or proceeding with respect to which the indemnifying party is
or may be obligated to provide indemnification pursuant to this Section, the
indemnified party shall, within 30 days of the receipt of such written notice,
give the indemnifying party written notice thereof (a "Claim Notice"). Failure
to give such Claim Notice within such 30 day period shall not constitute a
waiver by the indemnified party or its rights to indemnity hereunder with
respect to such action, suit or proceeding unless the defense thereof is
prejudiced thereby. Upon receipt by the indemnifying party of a Claim Notice
from the indemnified party with respect to any claim for indemnification which
is based upon a claim made by a third party ("Third Party Claim"), the
indemnifying party may assume the defense of the Third Party Claim with counsel
of its own choosing, as described below. The indemnified party shall cooperate
in the defense of the Third Party Claim and shall furnish such records,
information and testimony and attend all such conferences, discovery
proceedings, hearings, trials and appeals as may be reasonably required in
connection therewith. The indemnified party shall have the right to employ its
own counsel in any such action, but the fees and expenses of such counsel shall
be at the expense of the indemnified party unless the indemnifying party shall
not have with reasonable promptness employed counsel to assume the defense of
the Third Party Claim, in which event such fees and expenses shall be borne
solely by the indemnifying party. The indemnifying party shall not satisfy or
settle any Third Party Claim for which indemnification has been sought and is
available hereunder, without the prior written consent of the indemnified party,
which consent shall not be delayed or which shall not be required if the
indemnified party is granted a release in connection therewith. If the
indemnifying party shall fail with reasonable promptness to defend such Third
Party Claim, the indemnified party may defend, satisfy or settle the Third Party
Claim at the expense of the indemnifying party and the indemnifying party shall
pay to the indemnified party the amount of such Loss within ten days after
written demand thereof. The indemnification provisions hereof shall survive the
termination of this Agreement.
Cap and Basket. No party will be liable for indemnity or otherwise until such
time as the aggregate claims against such party reach $10,000 and the maximum
aggregate liability of any party for indemnification, breach, etc. will not
exceed $1,000,000.
SECTION 8. DOCUMENTS AT CLOSING AND THE CLOSING
8.1 Documents at Closing. At the Closing, the following transactions shall
occur, all of such transactions being deemed to occur simultaneously:
(a) Bright Star will deliver, or will cause to be delivered, to Bio-American
Capital Corp. the following:
(i) a certificate executed by the President and Secretary of Bright Star to the
effect that all representations and warranties made by Bright Star under this
Agreement are true and correct as of the Closing, the same as though originally
given to Bio-American Capital Corp. on said date;
(ii) a certificate from the State of Nevada dated at or about the Closing to the
effect that Bright Star is in good standing under the laws of said State;
(iii) Bright Star and its Shareholders shall deliver an opinion of its legal
counsel, limited as to any portion of the opinion as to an aspect of the
agreement governed by the application of Nevada law, to Bio-American Capital
Corp. to the effect that:
(a) Bright Star is a corporation validly existing and in good standing under the
laws of the State of Arkansas and is duly qualified to do business in any
jurisdiction where so required except where the failure to so qualify would have
no material adverse impact on the company;
(b) Bright Star has the corporate power to carry on its business as now being
conducted; and
(c) This Agreement has been duly authorized, executed and delivered by the
Majority Shareholders of Bright Star.
(v) Certificates representing those shares of Bright Star to be exchanged for
Bio-American Capital Corp. Shares will be delivered, along with duly executed
powers transferring such certificates to Bio-American Capital Corp.
(vi) all other items, the delivery of which is a condition precedent to the
obligations of Bio-American Capital Corp., as set forth in Section 4.
(b) Bio-American Capital Corp. will deliver or cause to be delivered to Bright
Star and the Bright Star Shareholders:
(i) a certificate from Bio-American Capital Corp. executed by the President or
Secretary of Bio-American Capital Corp., to the effect that all representations
and warranties of Bio-American Capital Corp. made under this Agreement are true
and correct as of the Closing, the same as though originally given to Bright
Star on said date;
(ii) certified copies of resolutions by Bio-American Capital Corp. Board of
Directors authorizing this transaction; and an opinion of Bio-American Capital
Corp. counsel as described in Section 4 above;
(iii) certificates from the Nevada
Secretary of State dated at or about the Closing Date that Bio-American Capital
Corp. is in good standing under the laws of said State;
(iv) an opinion of counsel, limited as to any portion of the opinion that
applies to an aspect governed by the application of Nevada law, dated as of the
Closing to the effect that:
(1) Bio-American Capital Corp. is a corporation validly existing and in good
standing under the laws of the State of Nevada;
(2) This Agreement has been duly authorized executed and delivered by
Bio-American Capital Corp. and is a valid and binding obligation of Bio-American
Capital Corp. enforceable in accordance with its terms;
(3) Bio-American Capital Corp., through its Board of Directors and its
shareholders, has taken all corporate action necessary for performance under
this Agreement;
(4) The documents executed and delivered to Bright Star and the Bright Star
Shareholders hereunder are valid and binding in accordance with their terms;
(5) The shares of Bio-American Capital Corp. Shares to be issued pursuant to
Section 1.1 hereof, when issued, will be duly and validly issued, fully paid and
non-assessable; and
(6) Bio-American Capital Corp. has the corporate power to execute the Agreement,
deliver the Shares and perform under this Agreement.
(vi) resignation of all officers and all but one of the directors;
vii) all other items, the delivery of which is a condition precedent to the
obligations of Bright Star, as set forth in Section 4 hereof.
8.2 The Closing. The Closing shall take place at the time or place as may be
agreed upon by the parties hereto. As time is of the essence a goal of all
parties to this Agreement shall be a definitive closing within ten business days
from the date of execution of this Agreement. At the Closing, the parties shall
provide each other with such documents as may be necessary.
SECTION 9. MISCELLANEOUS
9.1 Waivers. The waiver of a breach of this Agreement or the failure of any
party hereto to exercise any right under this Agreement shall in no way
constitute waiver as to future breach whether similar or dissimilar in nature or
as to the exercise of any further right under this Agreement.
9.2 Amendment. This Agreement may be amended or modified only by an instrument
of equal formality signed by the parties or the duly authorized representatives
of the respective parties.
9.3 Assignment. This Agreement is not assignable except by operation of law.
9.4 Notice. Until otherwise specified in writing, the mailing addresses and fax
numbers of the parties of this Agreement shall be as follows:
To: Bio-American Capital Corp.:
2121 East Pacific Highway
Suite 226
Corona del Mar
California 92625
949-717-4800
To: Bright Star:
First Walker Family Trust
Sally Rogers, Trustee
1501 Azure Hills Drive
Van Buren, Arkansas 72956
Fax: 501.474.7900
Any notice or statement given under this Agreement shall be deemed to have been
given if sent by registered mail addressed to the other party at the address
indicated above or at such other address, which shall have been furnished in
writing to the addressor.
9.5 Governing Law. This Agreement shall be construed, and the legal relations
between the parties determined, in accordance with the laws of the State of
Nevada, thereby precluding any choice of law rules, which may direct the
application of the laws of any other jurisdiction.
9.6 Publicity. No publicity release or announcement concerning this Agreement or
the transactions contemplated hereby shall be issued by either party hereto at
any time from the signing hereof without advance approval in writing of the form
and substance by the other party.
9.7 Entire Agreement. This Agreement (including the Exhibits and Schedules to be
attached hereto) and the collateral agreements executed in connection with the
consummation of the transactions contemplated herein contain the entire
agreement among the parties with respect to the exchange and issuance of the
Shares and the Bio-American Capital Corp. Shares and related transactions, and
supersede all prior agreements, written or oral, with respect thereto.
9.8 Headings. The headings in this Agreement are for reference purposes only and
shall not in any way affect the meaning or interpretation of this Agreement.
9.9 Severability of Provisions. The invalidity or unenforceability of any term,
phrase, clause, paragraph, restriction, covenant, agreement or provision of this
Agreement shall in no way affect the validity or enforcement of any other
provision or any part thereof.
9.10 Counterparts. This Agreement may be executed in any number of counterparts,
each of which when so executed, shall constitute an original copy hereof, but
all of which together shall consider but one and the same document.
9.11 Binding Effect. This Agreement shall be binding upon the parties hereto and
inure to the benefit of the parties, their respective heirs, administrators,
executors, successors and assigns.
9.12 Tax Treatment. Bio-American Capital Corp., Bright Star and the Majority
Shareholder acknowledge that they each have been represented by their own tax
advisors in connection with this transaction; that none of them has made a
representation or warranty to any of the other parties with respect to the tax
treatment accorded this transaction, or the effect individually or corporately
on any party under the applicable tax laws, regulations, or interpretations; and
that no opinion of counsel or private revenue ruling has been obtained with
respect to the effects of this transaction under the Code.
9.13 Press Releases. The parties will mutually agree as to the wording and
timing of any informational releases concerning this transaction prior to and
through Closing.
9.14 Addendum: The Addendum to this Agreement is incorporated by reference
herein and attached hereto. IN WITNESS THEREOF, the parties have executed this
Agreement on the date first above written.
Bio-American Capital Corp., Inc.
a Nevada corporation
By:_____________________________
Pat Di Carlo
Its:___________________
Bright Star Resources, Inc.
an Arkansas corporation
By: __________________________
Donald L. Walker,
Its President
SHAREHOLDER SIGNATURES ON NEXT PAGE
"Bright Star Resources, Inc. Shareholders:"
-----------------------------------
First Walker Family Trust, Sally Rogers Trustee (10,875,000 shares)
EXHIBIT "A"
LIST OF Bright Star SHAREHOLDERS
Name of Shareholder of Approximate Number of Number of Shares of
Bright Star Percentage of Shares of Bio-American Capital
Holding Bright Star Corp. Common Stock
Held to be Issued
EXHIBITS
A. List of Bright Star Shareholders (See table above)
SCHEDULES
Bright Star Schedules
2.3 Exceptions to free and clear ownership of Shares: NONE
2.9 Bright Star Consents.
2.10 Bright Star Financial Statements.
2.15 Claims, Litigation, Government actions pending: See List
attached: NONE
2.16 Bright Star Significant contracts: NONE
2.18 Bright Star List of Real Estate Owned (NONE) and List of Leases
2.20 Bright Star List of exceptions to the Tangible Assets on balance
sheets:
2.22 Bright Star List of undisclosed Liabilities: NONE
2.24 Bright Star Warrants, Options and preferred interests currently
in existence.
Bio-American Capital Corp. Schedules
3.4 Bio-American Capital Corp. Financial Statements
3.5 List of material adverse changes
3.10 List of shareholders from Transfer Agent
3.16 Activities of Bio-American Capital Corp. in previous 3 years
ADDENDUM TO THE
AGREEMENT AND PLAN OF REORGANIZATION
DATED ____________, 2002
This Addendum (the "Addendum") to the Agreement and Plan of
Reorganization (the "Agreement") is entered into by and between Patrick N. Di
Carlo ("PND"), an individual; Amerivet Securities Inc., RIA (RIA), a Delaware
corporation and Bio-American Corporation (BIAN), a Nevada corporation
(collectively referred to as "Sellers") on the one side; and Bright Star
Resources, Inc. ("Bright Star"), a Arkansas corporation and the majority
shareholders of Bright Star ("Majority Holders") (collectively referred to as
"Buyers") on the other side.
RECITALS:
In that the parties to the Agreement, which is incorporated by
reference herein and attached hereto, desire to expedite the consummation of the
Agreement and that Seller's have not had adequate time to have their counsel
review the Agreement; the parties hereto hereby agree to terms and conditions of
this Addendum.
TERMS AND CONDITIONS.
The parties hereto agree as follows:
In that the Buyers= counsel has produced the Agreement and all
attendant documentation and Seller's counsel has not had adequate
time to review same, Buyer hereby represents and warrants that:
The sales price for BIAN is US$150,000 and fifteen percent
(15%) of all issued and outstanding common stock of BIAN (post
Agreement and Plan of Reorganization) (the "Shares").
The Shares shall contain >piggy back= rights and demand registration rights.
Buyers will tender US$10,000 upon execution of the Agreement and Addendum.
The balance of US$140,000 shall be paid as follows:
$15,000 payable on the 15th of July and August, 2002
$110,000 payable on or before the 30th September, 2002
The Agreement is in compliance with all regulatory bodies
including, but not limited to, the Securities and Exchange
Commission (SEC), National Association of Securities Dealers
(NASD) and all state and federal statutes appertaining to the
subject matter therein.
Buyers will hold harmless and indemnify PND, RIA and BIAN,
jointly and severally, as a result of any claims, litigation
and or liens the Agreement may cause.
Buyers are aware that the free trading shares held by BIAN's
majority shareholder will not be considered free trading until
90 days from the date said majority shareholder is considered
by the SEC and NASD to be a non-affiliate. Buyers also are
aware that said 90 days does not begin to run until the day
the majority shareholder declares his >non-affiliation= status
through resignation as the director and president of BIAN.
All due diligence of BIAN is the sole responsibility of Buyers.
Buyers are purchasing BIAN "as is" and, notwithstanding
financial statements and other public filings, Sellers HAVE
OFFERED NO REPRESENTATIONS AND WARRANTIES REGARDING BIAN.
Sellers hereby represent and warrant that:
1. By affixing their signatures below, Sellers acknowledge receipt of payment of
US$10,000 ("Good Faith Deposit")
2. a review of the Agreement will be conducted by Seller's counsel within the
time frame of the 'hold period' of Seller's Good Faith Deposit check of $10,000.
The 'hold period' will begin once the Agreement and Addendum are executed.
3. PND and RIA represent and warrant that they have been give authority to bind
BIAN to both the Agreement and the Addendum by its director, president and
majority shareholder.
4. Upon execution of this Agreement and Addendum, PND shall cause the remittance
of BIAN stock certificate number 0466 (185,925 free trading shares), with
attendant irrevocable stock powers, to Buyers.
[SIGNATURES BEGIN ON NEXT PAGE]
ADDENDUM SIGNATURE PAGE
This Addendum is executed this 13th day of June, 2002, in Corona Del
Mar, California by the parties below.
SELLERS
- ------------------------------- -------------------------------
PATRICK N. DI CARLO, AN INDIVIDUAL BRIGHT STAR RESOURCES, INC.
BY: DON WALKER
ITS:
- ------------------------------- -------------------------------
AMERIVET SECURITIES INC., RIA FIRST WALKER FAMILY TRUST
BY: PATRICK N. DI CARLO (MAJORITY SHARHOLDERS OF
ITS: CHAIRMAN BRIGHT STAR RESOURCES, INC.)
BY: SALLY ROGERS, TRUSTEE
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BIO-AMERICAN CAPITAL CORP.
BY: PATRICK N. DI CARLO
ITS: AUTHORIZED SIGNATORY