STOCK PURCHASE AGREEMENT AND SHARE EXCHANGE
by and among
BAXTER CAPITAL COMPANY, INC.
a Florida Corporation
and
CROSSATLANTIC PROPERTIES LTD.
An Isle of Man Corporation
effective as of March 12, 2003
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STOCK PURCHASE AGREEMENT AND SHARE EXCHANGE
THIS STOCK PURCHASE AGREEMENT AND SHARE EXCHANGE, made and entered into
this 12th day of March, 2003, by and among Baxter Capital Company, Inc., a
Florida corporation with its principal place of business located at 22154
Martella Avenue, Boca Raton, Florida 33433 ("Baxter Capital"); Peter Goldstein,
an individual located at 22154 Martella Avenue, Boca Raton, Florida 33433;
Crossatlantic Properties Ltd., an Isle of Man with its principal place of
business at Talbot House, 16 Athol Street, Douglas, Isle of Man 1M1 1JA
("Crossatlantic") and the shareholders of Crossatlantic ("Shareholders") as set
forth on Exhibit A attached hereto (collectively Crossatlantic and the
shareholders of Crossatlantic shall be known as the "Crossatlantic Group").
PREMISES
A. This Agreement provides for the acquisition of Crossatlantic whereby
Crossatlantic shall become a wholly owned subsidiary of Baxter Capital and in
connection therewith, the issuance of a total of 9,500,000 shares of Baxter
Capital to the Crossatlantic shareholders; the cancellation of 500,000 Baxter
Capital shares held by Goldstein and the payment of $150,000 by Crossatlantic to
Goldstein.
B. The and boards of directors of Crossatlantic and Baxter Capital have
determined, subject to the terms and conditions set forth in this Agreement,
that the transaction contemplated hereby is desirable and in the best interests
of their stockholders, respectively. This Agreement is being entered into for
the purpose of setting forth the terms and conditions of the proposed
acquisition.
AGREEMENT
NOW, THEREFORE, on the stated premises and for and in consideration of
the mutual covenants and agreements hereinafter set forth and the mutual
benefits to the parties to be derived here from, it is hereby agreed as follows:
ARTICLE I
REPRESENTATIONS, COVENANTS AND WARRANTIES OF
BAXTER CAPITAL COMPANY, INC.
As an inducement to and to obtain the reliance of Crossatlantic, Baxter
Capital represents and warrants as follows:
SECTION 1.1 ORGANIZATION. Baxter Capital is a corporation duly
organized, validly existing, and in good standing under the laws of Florida and
has the corporate power and is duly authorized, qualified, franchised and
licensed under all applicable laws, regulations, ordinances and orders of public
authorities to own all of its properties and assets and to carry on its business
in all material respects as it is now being conducted, including qualification
to do business as a foreign corporation in the jurisdiction in which the
character and location of the assets owned by it or the nature of the business
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transacted by it requires qualification. Included in the Schedules attached
hereto (hereinafter defined) are complete and correct copies of the articles of
incorporation, bylaws and amendments thereto as in effect on the date hereof.
The execution and delivery of this Agreement does not and the consummation of
the transactions contemplated by this Agreement in accordance with the terms
hereof will not violate any provision of Baxter Capital's articles of
incorporation or bylaws. Baxter Capital has full power, authority and legal
right and has taken all action required by law, its articles of incorporation,
its bylaws or otherwise to authorize the execution and delivery of this
Agreement.
SECTION 1.2 CAPITALIZATION. The authorized capitalization of Baxter
Capital consists of 100,000,000 Common Shares, $0.001 par value per share, and
1,000,000 Preferred Shares, $0.001 par value per share. As of the date hereof,
Baxter Capital has 1,000,000 common shares issued and outstanding. Baxter
Capital is presently a 1934 Exchange Act reporting company and has filed all
necessary reports, quarterly, annual and special with the Securities and
Exchange Commission of the United States on a timely basis.
All issued and outstanding shares are legally issued, fully paid and
nonassessable and are not issued in violation of the preemptive or other rights
of any person. Baxter Capital has no securities, warrants or options authorized
or issued.
SECTION 1.3 SUBSIDIARIES. Baxter Capital has no subsidiaries.
SECTION 1.4 TAX MATTERS: BOOKS AND RECORDS.
(a) The books and records, financial and others, of Baxter Capital are
in all material respects complete and correct and have been maintained
in accordance with good business accounting practices; and
(b) Baxter Capital has no liabilities with respect to the payment of
any country, federal, state, county, or local taxes (including any
deficiencies, interest or penalties).
SECTION 1.5 LITIGATION AND PROCEEDINGS. There are no actions, suits,
proceedings or investigations pending or threatened by or against or affecting
Baxter Capital or its properties, at law or in equity, before any court or other
governmental agency or instrumentality, domestic or foreign or before any
arbitrator of any kind that would have a material adverse affect on the
business, operations, financial condition or income of Baxter Capital. Baxter
Capital is not in default with respect to any judgment, order, writ, injunction,
decree, award, rule or regulation of any court, arbitrator or governmental
agency or instrumentality or of any circumstances which, after reasonable
investigation, would result in the discovery of such a default.
SECTION 1.6 MATERIAL CONTRACT DEFAULTS. Baxter Capital is not in
default in any material respect under the terms of any outstanding contract,
agreement, lease or other commitment which is material to the business,
operations, properties, assets or condition of Baxter Capital, and there is no
event of default in any material respect under any such contract, agreement,
lease or other commitment in respect of which Baxter Capital has not taken
adequate steps to prevent such a default from occurring.
SECTION 1.7 INFORMATION. The information concerning Baxter Capital
as set forth in this Agreement and in the attached Schedules is complete and
accurate in all material respects and does not contain any untrue statement of a
material fact or omit to state a material fact required to make the statements
made in light of the circumstances under which they were made, not misleading.
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Baxter Capital's filings with the SEC are complete and accurate in all material
respects and do not contain any untrue statement of a material fact or omit to
state a material fact required to make the statements made in light of the
circumstances under which they were made, not misleading.
SECTION 1.8 TITLE AND RELATED MATTERS. Baxter Capital has good and
marketable title to and is the sole and exclusive owner of all of its
properties, inventory, interest in properties and assets, real and personal
(collectively, the "Assets") free and clear of all liens, pledges, charges or
encumbrances. Baxter Capital owns free and clear of any liens, claims,
encumbrances, royalty interests or other restrictions or limitations of any
nature whatsoever and all procedures, techniques, marketing plans, business
plans, methods of management or other information utilized in connection with
Baxter Capital's business. No third party has any right to, and Baxter Capital
has not received any notice of infringement of or conflict with asserted rights
of other with respect to any product, technology, data, trade secrets, know-how,
proprietary techniques, trademarks, service marks, trade names or copyrights
which, singly on in the aggregate, if the subject of an unfavorable decision
ruling or finding, would have a materially adverse affect on the business,
operations, financial conditions or income of Baxter Capital or any material
portion of its properties, assets or rights.
SECTION 1.9 CONTRACTS On the closing date:
(a) There are no material contracts, agreements franchises, license
agreements, or other commitments to which Baxter Capital is a party or
by which it or any of its properties are bound:
(b) Baxter Capital is not a party to any contract, agreement,
commitment or instrument or subject to any charter or other corporate
restriction or any judgment, order, writ, injunction, decree or award
materially and adversely affects, or in the future may (as far as
Baxter Capital can now foresee) materially and adversely affect , the
business, operations, properties, assets or conditions of Baxter
Capital; and
(c) Baxter Capital is not a party to any material oral or written: (I)
contract for the employment of any officer or employee; (ii) profit
sharing, bonus, deferred compensation, stock option, severance pay,
pension benefit or retirement plan, agreement or arrangement covered by
Title IV of the Employee Retirement Income Security Act, as amended;
(iii) agreement, contract or indenture relating to the borrowing of
money; (iv) guaranty of any obligation for the borrowing of money or
otherwise, excluding endorsements made for collection and other
guaranties, of obligations, which, in the aggregate exceeds $1,000; (v)
consulting or other contract with an unexpired term of more than one
year or providing for payments in excess of $10,000 in the aggregate;
(vi) collective bargaining agreement; (vii) contract, agreement or
other commitment involving payments by it for more than $10,000 in the
aggregate.
SECTION 1.10 COMPLIANCE WITH LAWS AND REGULATIONS. To the best of
Baxter Capital's knowledge and belief, Baxter Capital has complied with all
applicable statutes and regulations of any federal, state or other governmental
entity or agency thereof, except to the extent that noncompliance would not
materially and adversely affect the business, operations, properties, assets or
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condition of Baxter Capital or would not result in Baxter Capital incurring
material liability.
SECTION 1.11 INSURANCE. All of the insurable properties of Baxter
Capital are insured for Baxter Capital `s benefit under valid and enforceable
policy or policies containing substantially equivalent coverage and will be
outstanding and in full force at the Closing Date.
SECTION 1.12 APPROVAL OF AGREEMENT. The directors of Baxter
Capital have authorized the execution and delivery of the Agreement by and have
approved the transactions contemplated hereby.
SECTION 1.13 MATERIAL TRANSACTIONS OR AFFILIATIONS. There are no
material contracts or agreements of arrangement between Baxter Capital and any
person, who was at the time of such contract, agreement or arrangement an
officer, director or person owning of record, or known to beneficially own ten
percent (10%) or more of the issued and outstanding Common Shares of Baxter
Capital and which is to be performed in whole or in part after the date hereof.
Baxter Capital has no commitment, whether written or oral, to lend any funds to,
borrow any money from or enter into material transactions with any such
affiliated person.
SECTION 1.14 NO CONFLICT WITH OTHER INSTRUMENTS. The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, or
constitute an event of default under, any material indenture, mortgage, deed of
trust or other material contract, agreement or instrument to which Baxter
Capital is a party or to which any of its properties or operations are subject.
SECTION 1.15 GOVERNMENTAL AUTHORIZATIONS. Baxter Capital has all
licenses, franchises, permits or other governmental authorizations legally
required to enable it to conduct its business in all material respects as
conducted on the date hereof. Except for compliance with federal and state
securities and corporation laws, as hereinafter provided, no authorization,
approval, consent or order of, or registration, declaration or filing with, any
court or other governmental body is required in connection with the execution
and delivery by Baxter Capital of this Agreement and the consummation of the
transactions contemplated hereby.
ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES
OF CROSSATLANTIC PROPERTIES LTD.
As an inducement to, and to obtain the reliance of Baxter Capital,
Crossatlantic represents and warrants as follows:
SECTION 2.1 ORGANIZATION. Crossatlantic is a corporation duly
organized, validly existing and in good standing under the laws of the Isle of
Man and has the corporate power and is duly authorized, qualified, franchised
and licensed under all applicable laws, regulations, ordinances and orders of
public authorities to own all of its properties and assets and to carry on its
business in all material respects as it is now being conducted, including
qualification to do business as a foreign entity in the country or states in
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which the character and location of the assets owned by it or the nature of the
business transacted by it requires qualification. Included in the Attached
Schedules (as hereinafter defined) are complete and correct copies of the
articles of incorporation, bylaws and amendments thereto as in effect on the
date hereof. The execution and delivery of this Agreement does not and the
consummation of the transactions contemplated by this Agreement in accordance
with the terms hereof will not, violate any provision of Crossatlantic's
certificate of incorporation or bylaws. Crossatlantic has full power, authority
and legal right and has taken all action required by law, its articles of
incorporation, bylaws or otherwise to authorize the execution and delivery of
this Agreement.
SECTION 2.2 CAPITALIZATION. The authorized capitalization of
Crossatlantic consists of 50,001 shares, (pound)1.00 par value. As of the date
hereof, there are 50,001 shares issued and outstanding.
All issued and outstanding common shares have been legally issued,
fully paid, are nonassessable and not issued in violation of the preemptive
rights of any other person. Crossatlantic has no other securities, warrants or
options authorized or issued.
SECTION 2.3 SUBSIDIARIES. Crossatlantic has one wholly-owned
subsidiary, Frametoken Ltd., a United Kingdom corporation. Frametoken Ltd has
two subsidiaries, Cornhill 1 Limited, a United Kingdom corporation and Cornhill
2 Limited, a United Kingdom Limited corporation.
SECTION 2.4 TAX MATTERS; BOOKS & RECORDS
(a) The books and records, financial and others, of Crossatlantic are
in all material respects complete and correct and have been maintained
in accordance with good business accounting practices; and
(b) Crossatlantic has no liabilities with respect to the payment of any
country, federal, state, county, local or other taxes (including any
deficiencies, interest or penalties).
SECTION 2.5 INFORMATION. The information concerning Crossatlantic as
set forth in this Agreement and in the attached Schedules is complete and
accurate in all material respects and does not contain any untrue statement of a
material fact or omit to state a material fact required to make the statements
made, in light of the circumstances under which they were made, not misleading.
SECTION 2.6 TITLE AND RELATED MATTERS. Crossatlantic has good and
marketable title to and is the sole and exclusive owner of all of its
properties, inventory, interests in properties and assets, real and personal
(collectively, the "Assets") free and clear of all liens, pledges, charges or
encumbrances. Except as set forth in the Schedules attached hereto,
Crossatlantic owns free and clear of any liens, claims, encumbrances, royalty
interests or other restrictions or limitations of any nature whatsoever and all
procedures, techniques, marketing plans, business plans, methods of management
or other information utilized in connection with Crossatlantic's business.
Except as set forth in the attached Schedules, no third party has any right to,
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and Crossatlantic has not received any notice of infringement of or conflict
with asserted rights of others with respect to any product, technology, data,
trade secrets, know-how, proprietary techniques, trademarks, service marks,
trade names or copyrights which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would have a materially adverse
affect on the business, operations, financial conditions or income of
Crossatlantic or any material portion of its properties, assets or rights.
SECTION 2.7 LITIGATION AND PROCEEDINGS. There are no actions, suits or
proceedings pending or threatened by or against or affecting Crossatlantic, at
law or in equity, before any court or other governmental agency or
instrumentality, domestic or foreign or before any arbitrator of any kind that
would have a material adverse effect on the business, operations, financial
condition, income or business prospects of Crossatlantic. Crossatlantic does not
have any knowledge of any default on its part with respect to any judgement,
order, writ, injunction, decree, award, rule or regulation of any court,
arbitrator or governmental agency or instrumentality.
SECTION 2.8 CONTRACTS. On the Closing Date:
(a) There are no material contracts, agreements, franchises,
license agreements, or other commitments to which
Crossatlantic is a party or by which it or any of its
properties are bound;
(b) Crossatlantic is not a party to any contract,
agreement, commitment or instrument or subject to any charter
or other corporate restriction or any judgment, order, writ,
injunction, decree or award which materially and adversely
affects, or in the future may (as far as Crossatlantic can now
foresee) materially and adversely affect, the business,
operations, properties, assets or conditions of Crossatlantic;
and
(c) Crossatlantic is not a party to any material oral or
written: (i) contract for the employment of any officer or
employee; (ii) profit sharing, bonus, deferred compensation,
stock option, severance pay, pension, benefit or retirement
plan, agreement or arrangement covered by Title IV of the
Employee Retirement Income Security Act, as amended; (iii)
agreement, contract or indenture relating to the borrowing of
money; (iv) guaranty of any obligation for the borrowing of
money or otherwise, excluding endorsements made for collection
and other guaranties of obligations, which, in the aggregate
exceeds $1,000; (v) consulting or other contract with an
unexpired term of more than one year or providing for payments
in excess of $10,000 in the aggregate except for the debt owed
by its subsidiary Frametoken Ltd.; (vi) collective bargaining
agreement; (vii) contract, agreement, or other commitment
involving payments by it for more than $10,000 in the
aggregate.
SECTION 2.9 NO CONFLICT WITH OTHER INSTRUMENTS.The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, or
constitute an event of default under, any material indenture, mortgage, deed of
trust or other material contract, agreement or instrument to which Crossatlantic
is a party or to which any of its properties or operations are subject.
SECTION 2.10 MATERIAL CONTRACT DEFAULTS. To the best of Crossatlantic's
knowledge and belief, it is not in default in any material respect under the
terms of any outstanding contract, agreement, lease or other commitment which is
material to the business, operations, properties, assets or condition of
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Crossatlantic, and there is no event of default in any material respect under
any such contract, agreement, lease or other commitment in respect of which
Crossatlantic has not taken adequate steps to prevent such a default from
occurring.
SECTION 2.11 GOVERNMENTAL AUTHORIZATIONS. To the best of
Crossatlantic's knowledge, Crossatlantic has all licenses, franchises, permits
and other governmental authorizations that are legally required to enable it to
conduct its business operations in all material respects as conducted on the
date hereof. Except for compliance with federal and state securities or
corporation laws, no authorization, approval, consent or order of, or
registration, declaration or filing with, any court or other governmental body
is required in connection with the execution and delivery by Crossatlantic of
the transactions contemplated hereby.
SECTION 2.12 COMPLIANCE WITH LAWS AND REGULATIONS. To the best of
Crossatlantic's knowledge and belief, Crossatlantic has complied with all
applicable statutes and regulations of any federal, state or other governmental
entity or agency thereof, except to the extent that noncompliance would not
materially and adversely affect the business, operations, properties, assets or
condition of Crossatlantic or would not result in Crossatlantic 's incurring any
material liability.
SECTION 2.13 INSURANCE. All of the insurable properties of
Crossatlantic are insured for Crossatlantic`s benefit under valid and
enforceable policy or policies containing substantially equivalent coverage and
will be outstanding and in full force at the Closing Date.
SECTION 2.14 APPROVAL OF AGREEMENT. The directors of Crossatlantic have
authorized the execution and delivery of the Agreement and have approved the
transactions contemplated hereby.
SECTION 2.15 MATERIAL TRANSACTIONS OR AFFILIATIONS. As of the Closing
Date, there will exist no material contract, agreement or arrangement between
Crossatlantic and any person who was at the time of such contract, agreement or
arrangement an officer, director or person owning of record, or known by
Crossatlantic to own beneficially, ten percent (10%) or more of the issued and
outstanding Common Shares of Crossatlantic and which is to be performed in whole
or in part after the date hereof except with regard to an agreement with the
Crossatlantic shareholders providing for the distribution of cash to provide for
payment of federal and state taxes on Subchapter S income. Crossatlantic has no
commitment, whether written or oral, to lend any funds to, borrow any money from
or enter into any other material transactions with, any such affiliated person.
SECTION 2.16 FILINGS. Crossatlantic covenants that it will assist
Baxter Capital in the preparation of all filings required by the Securities
Exchange Act in a timely manner, including but not limited to, the filing of a
Form 8K within fifteen (15) days after the execution of this Agreement and the
delivery of the audited financial statements for Crossatlantic in sufficient
time to allow for the filing of an amended 8K with the audited financial
statements within sixty (60) days thereafter.
ARTICLE III
EXCHANGE PROCEDURE AND OTHER CONSIDERATION
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SECTION 3.1 SHARE EXCHANGE/DELIVERY OF CROSSATLANTIC SECURITIES. On the
Closing Date, the holders of all of the Crossatlantic Common Shares shall
deliver to Baxter Capital (i) certificates or other documents evidencing all of
the issued and outstanding Crossatlantic Common Shares, duly endorsed in blank
or with executed power attached thereto in transferrable form. On the Closing
Date, all previously issued and outstanding Common Shares of Crossatlantic shall
be transferred to Baxter Capital, so that Crossatlantic shall become a wholly
owned subsidiary of Baxter Capital.
SECTION 3.2 ISSUANCE OF BAXTER CAPITAL COMMON SHARES. In exchange for
all of the Crossatlantic Common Shares tendered pursuant to Section 3.1, Baxter
Capital shall issue to the Crossatlantic shareholders a total of 9,500,000
Baxter Capital common shares which are restricted in accordance with Rule 144 of
the 1933 Securities Act. 2,325,000 of such shares shall be held in escrow by
Anslow & Jaclin, LLP as escrow agent, until the receipt by Goldstein of the
additional $25,000 after the closing as set forth in Section 3.3. The 9,500,000
common shares shall be transferred to the Crossatlantic shareholders in the
following manner:
SECTION 3.3 ADDITIONAL CONSIDERATION. On the Closing Date, Goldstein
agrees to cancel 500,000 of his issued and outstanding shares in Baxter Capital.
In addition, upon execution of this Agreement, Crossatlantic agrees to pay
$75,000 to Goldstein as a deposit towards the balance of $150,000. The balance
of $75,000 is payable in the following manner: $50,000 to be paid at closing and
$25,000 to be paid within thirty (30) days of the closing. If the payment of
$25,000 is not made within thirty days of the closing date, Crossatlantic agrees
to pay an additional $5,000 per week or the pro rata amount daily. Upon receipt
by Goldstein of the additional $25,000, the 2,325,000 shares held in escrow
pursuant to Section 3.2 will be released to the Crossatlantic shareholders. The
initial deposit of $75,000 shall be non-refundable unless such closing does not
occur due to the fault of Goldstein or Baxter Capital. Baxter Capital and
Crossatlantic shall enter into a Registration Rights Agreements pursuant to
Exhibit B for the registration of all of the issued and outstanding Baxter
Capital shares prior to the Share Exchange.
SECTION 3.4 EVENTS PRIOR TO CLOSING. Upon execution hereof or as soon
thereafter as practical, management of Baxter Capital and Crossatlantic shall
execute, acknowledge and deliver (or shall cause to be executed, acknowledged
and delivered) any and all certificates, opinions, financial statements,
schedules, agreements, resolutions rulings or other instruments required by this
Agreement to be so delivered, together with such other items as may be
reasonably requested by the parties hereto and their respective legal counsel in
order to effectuate or evidence the transactions contemplated hereby, subject
only to the conditions to Closing referenced herein below.
SECTION 3.5 CLOSING. The closing ("Closing") of the transactions
contemplated by this Agreement shall be on March 11, 2002, time is of the
essence.("Closing Date").
SECTION 3.6 TERMINATION.
(a) This Agreement may be terminated by the board of directors or
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majority interest of Shareholders of either Baxter Capital or
Crossatlantic, respectively, at any time prior to the Closing Date if:
(i) there shall be any action or proceeding before any court
or any governmental body which shall seek to restrain,
prohibit or invalidate the transactions contemplated by this
Agreement and which, in the judgement of such board of
directors, made in good faith and based on the advice of its
legal counsel, makes it inadvisable to proceed with the
exchange contemplated by this Agreement; or
(ii) any of the transactions contemplated hereby are
disapproved by any regulatory authority whose approval is
required to consummate such transactions.
In the event of termination pursuant to this paragraph (a) of this
Section 3.5, no obligation, right, or liability shall arise hereunder and each
party shall bear all of the expenses incurred by it in connection with the
negotiation, drafting and execution of this Agreement and the transactions
herein contemplated.
(b) This Agreement may be terminated at any time prior to the Closing
Date by action of the board of directors of Baxter Capital if
Crossatlantic shall fail to comply in any material respect with any of
its covenants or agreements contained in this Agreement or if any of
the representations or warranties of Crossatlantic contained herein
shall be inaccurate in any material respect, which noncompliance or
inaccuracy is not cured after 20 days written notice thereof is given
to Crossatlantic. If this Agreement is terminated pursuant to this
paragraph (b) of this Section 3.5, this Agreement shall be of no
further force or effect and no obligation, right or liability shall
arise hereunder.
(c) This Agreement may be terminated at any time prior to the Closing
Date by action of the board of directors of Crossatlantic if Baxter
Capital shall fail to comply in any material respect with any of its
covenants or agreements contained in this Agreement or if any of the
representations or warranties of Baxter Capital contained herein shall
be inaccurate in any material respect, which noncompliance or
inaccuracy is not cured after 20 days written notice thereof is given
to Baxter Capital. If this Agreement is terminated pursuant to this
paragraph (d) of this Section 3.5, this Agreement shall be of no
further force or effect and no obligation, right or liability shall
arise hereunder.
In the event of termination pursuant to paragraph (b) and (c) of this
Section 3.5, the breaching party shall bear all of the expenses incurred by the
other party in connection with the negotiation, drafting and execution of this
Agreement and the transactions herein contemplated.
SECTION 3.7 DIRECTORS OF BAXTER CAPITAL AFTER ACQUISITION. After the
Closing Date, Carl Johan Algot Robb, Charles M. Lee, Charles Moray, Gareth Jones
Thomas shall become the directors of Baxter Capital and Peter Goldstein will
resign as Director of Baxter Capital. Each director shall hold office until his
successor shall have been duly elected and shall have qualified or until his
earlier death, resignation or removal.
SECTION 3.8 OFFICERS OF BAXTER CAPITAL . Upon the closing, the
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following persons shall be elected as officers of Baxter Capital in accordance
with procedures set forth in the Baxter Capital bylaws:
NAME OFFICE
Carl Johan Algot Robb Chief Executive
Officer, Chief Financial Officer and Secretary
ARTICLE IV
SPECIAL COVENANTS
SECTION 4.1 ACCESS TO PROPERTIES AND RECORDS. Prior to closing, Baxter
Capital and Crossatlantic will each afford to the officers and authorized
representatives of the other full access to the properties, books and records of
each other, in order that each may have full opportunity to make such reasonable
investigation as it shall desire to make of the affairs of the other and each
will furnish the other with such additional financial and operating data and
other information as to the business and properties of each other, as the other
shall from time to time reasonably request.
SECTION 4.2 AVAILABILITY OF RULE 144. Baxter Capital and Crossatlantic
shareholders holding "restricted securities, " as that term is defined in Rule
144 promulgated pursuant to the Securities Act will remain as "restricted
securities". Baxter Capital is under no obligation to register such shares under
the Securities Act, or otherwise. The stockholders of Baxter Capital and
Crossatlantic holding restricted securities of Baxter Capital and Crossatlantic
as of the date of this Agreement and their respective heirs, administrators,
personal representatives, successors and assigns, are intended third party
beneficiaries of the provisions set forth herein. The covenants set forth in
this Section 4.2 shall survive the Closing and the consummation of the
transactions herein contemplated.
SECTION 4.3 SPECIAL COVENANTS AND REPRESENTATIONS REGARDING THE BAXTER
CAPITAL COMMON SHARES TO BE ISSUED IN THE EXCHANGE. The consummation of this
Agreement, including the issuance of the Baxter Capital Common Shares to the
Shareholders of Crossatlantic as contemplated hereby, constitutes the offer and
sale of securities under the Securities Act, and applicable state statutes. Such
transaction shall be consummated in reliance on exemptions from the registration
and prospectus delivery requirements of such statutes which depend, inter alia,
upon the circumstances under which the Crossatlantic Shareholders acquire such
securities.
SECTION 4.4 THIRD PARTY CONSENTS. Baxter Capital and Crossatlantic
agree to cooperate with each other in order to obtain any required third party
consents to this Agreement and the transactions herein contemplated.
SECTION 4.5 ACTIONS PRIOR AND SUBSEQUENT TO CLOSING.
(a) From and after the date of this Agreement until the Closing Date,
except as permitted or contemplated by this Agreement, Baxter Capital and
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Crossatlantic will each use its best efforts to:
(i) maintain and keep its properties in states of
good repair and condition as at present, except for
depreciation due to ordinary wear and tear and damage due to
casualty;
(ii) maintain in full force and effect insurance
comparable in amount and in scope of coverage to that now
maintained by it;
(iii) perform in all material respects all of its
obligations under material contracts, leases and instruments
relating to or affecting its assets, properties and business;
(b) From and after the date of this Agreement until the Closing Date,
Baxter Capital will not, without the prior consent of Crossatlantic:
(i) except as otherwise specifically set forth
herein, make any change in its articles of incorporation or
bylaws;
(ii) declare or pay any dividend on its outstanding
Common Shares, except as may otherwise be required by law, or
effect any stock split or otherwise change its capitalization,
except as provided herein;
(iii) enter into or amend any employment, severance
or agreements or arrangements with any directors or officers;
(iv) grant, confer or award any options, warrants,
conversion rights or other rights not existing on the date
hereof to acquire any Common Shares; or (v) purchase or redeem
any Common Shares.
(vi) enter into any contracts or assume any
additional liability
SECTION 4.6 INDEMNIFICATION.
(a) Baxter Capital hereby agrees to indemnify Crossatlantic, each of
the officers, agents and directors and current shareholders of
Crossatlantic as of the Closing Date against any loss, liability,
claim, damage or expense (including, but not limited to, any and all
expense whatsoever reasonably incurred in investigating, preparing or
defending against any litigation, commenced or threatened or any claim
whatsoever), to which it or they may become subject to or rising out of
or based on any inaccuracy appearing in or misrepresentation made in
this Agreement. The indemnification provided for in this paragraph
shall survive the Closing and consummation of the transactions
contemplated hereby and termination of this Agreement; and
(b) Crossatlantic hereby agrees to indemnify Baxter Capital, each of
the officers, agents, directors and current shareholders of Baxter
Capital as of the Closing Date against any loss, liability, claim,
damage or expense (including, but not limited to, any and all expense
whatsoever reasonably incurred in investigating, preparing or defending
against any litigation, commenced or threatened or any claim
whatsoever), to which it or they may become subject arising out of or
based on any inaccuracy appearing in or misrepresentation made in this
Agreement. The indemnification provided for in this paragraph shall
survive the Closing and consummation of the transactions contemplated
hereby and termination of this Agreement.
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ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF BAXTER CAPITAL
The obligations of Baxter Capital under this Agreement are subject to
the satisfaction, at or before the Closing Date, of the following conditions:
SECTION 5.1 ACCURACY OF REPRESENTATIONS. The representations and
warranties made by Baxter Capital in this Agreement were true when made and
shall be true at the Closing Date with the same force and effect as if such
representations and warranties were made at the Closing Date (except for changes
therein permitted by this Agreement), and Baxter Capital shall have performed or
compiled with all covenants and conditions required by this Agreement to be
performed or complied with by Baxter Capital prior to or at the Closing.
Crossatlantic shall be furnished with a certificate, signed by a duly authorized
officer of Baxter Capital and dated the Closing Date, to the foregoing effect.
SECTION 5.2 DIRECTOR APPROVAL. The Board of Directors of Baxter Capital
shall have approved this Agreement and the transactions contemplated herein.
SECTION 5.3 OFFICER'S CERTIFICATE. Crossatlantic shall have been
furnished with a certificate dated the Closing Date and signed by a duly
authorized officer of Baxter Capital to the effect that: (a) the representations
and warranties of Baxter Capital set forth in the Agreement and in all Exhibits,
Schedules and other documents furnished in connection herewith are in all
material respects true and correct as if made on the Effective Date; (b) Baxter
Capital has performed all covenants, satisfied all conditions, and complied with
all other terms and provisions of this Agreement to be performed, satisfied or
complied with by it as of the Effective Date; (c) since such date and other than
as previously disclosed to Crossatlantic, Baxter Capital has not entered into
any material transaction other than transactions which are usual and in the
ordinary course if its business; and (d) no litigation, proceeding,
investigation or inquiry is pending or, to the best knowledge of Baxter Capital,
threatened, which might result in an action to enjoin or prevent the
consummation of the transactions contemplated by this Agreement or, to the
extent not disclosed in the Baxter Capital Schedules, by or against Baxter
Capital which might result in any material adverse change in any of the assets,
properties, business or operations of Baxter Capital.
SECTION 5.4 NO MATERIAL ADVERSE CHANGE. Prior to the Closing Date,
there shall not have occurred any material adverse change in the financial
condition, business or operations of nor shall any event have occurred which,
with the lapse of time or the giving of notice, may cause or create any material
adverse change in the financial condition, business or operations of Baxter
Capital.
SECTION 5.5 OTHER ITEMS. Crossatlantic shall have received such further
documents, certificates or instruments relating to the transactions contemplated
hereby as Crossatlantic may reasonably request.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF CROSSATLANTIC
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The obligations of Crossatlantic under this Agreement are subject to
the satisfaction, at or before the Closing date (unless otherwise indicated
herein), of the following conditions:
SECTION 6.1 ACCURACY OF REPRESENTATIONS. The representations and
warranties made by Crossatlantic in this Agreement were true when made and shall
be true as of the Closing Date (except for changes therein permitted by this
Agreement) with the same force and effect as if such representations and
warranties were made at and as of the Closing Date, and Crossatlantic shall have
performed and complied with all covenants and conditions required by this
Agreement to be performed or complied with by Crossatlantic prior to or at the
Closing. Baxter Capital shall have been furnished with a certificate, signed by
a duly authorized executive officer of Crossatlantic and dated the Closing Date,
to the foregoing effect.
SECTION 6.2 DIRECTOR APPROVAL. The Board of Directors of Crossatlantic
shall have approved this Agreement and the transactions contemplated herein.
SECTION 6.3 OFFICER'S CERTIFICATE. Baxter Capital shall be furnished
with a certificate dated the Closing date and signed by a duly authorized
officer of Crossatlantic to the effect that: (a) the representations and
warranties of Crossatlantic set forth in the Agreement and in all Exhibits,
Schedules and other documents furnished in connection herewith are in all
material respects true and correct as if made on the Effective Date; and (b)
Crossatlantic had performed all covenants, satisfied all conditions, and
complied with all other terms and provisions of the Agreement to be performed,
satisfied or complied with by it as of the Effective Date.
SECTION 6.4 NO MATERIAL ADVERSE CHANGE. Prior to the Closing Date,
there shall not have occurred any material adverse change in the financial
condition, business or operations of nor shall any event have occurred which,
with the lapse of time or the giving of notice, may cause or create any material
adverse change in the financial condition, business or operations of
Crossatlantic.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 BROKERS AND FINDERS. Each party hereto hereby represents
and warrants that it is under no obligation, express or implied, to pay certain
finders in connection with the bringing of the parties together in the
negotiation, execution, or consummation of this Agreement. The parties each
agree to indemnify the other against any claim by any third person for any
commission, brokerage or finder's fee or other payment with respect to this
Agreement or the transactions contemplated hereby based on any alleged agreement
or understanding between the indemnifying party and such third person, whether
express or implied from the actions of the indemnifying party.
SECTION 7.2 LAW, FORUM AND JURISDICTION. This Agreement shall be
construed and interpreted in accordance with the laws of the State of Florida,
United States of America.
SECTION 7.3 NOTICES. Any notices or other communications required or
permitted hereunder shall be sufficiently given if personally delivered to it or
sent by registered mail or certified mail, postage prepaid, or by prepaid
telegram addressed as follows:
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If to Baxter Capital : Anslow & Jaclin, LLP
4400 Route 9, 2nd Floor
Freehold, New Jersey 07728
If to Crossatlantic: Oakfield Corporate Service
Talbot House
16 Athol Street
Douglas, Isle of Man 1M1 1 JA
cc: 38 Chelsea Square
London SW3 6LH
or such other addresses as shall be furnished in writing by any party in the
manner for giving notices hereunder, and any such notice or communication shall
be deemed to have been given as of the date so delivered, mailed or telegraphed.
SECTION 7.4 ATTORNEYS' FEES. In the event that any party institutes any
action or suit to enforce this Agreement or to secure relief from any default
hereunder or breach hereof, the breaching party or parties shall reimburse the
non-breaching party or parties for all costs, including reasonable attorneys'
fees, incurred in connection therewith and in enforcing or collecting any
judgment rendered therein.
SECTION 7.5 CONFIDENTIALITY. Each party hereto agrees with the other
party that, unless and until the transactions contemplated by this Agreement
have been consummated, they and their representatives will hold in strict
confidence all data and information obtained with respect to another party or
any subsidiary thereof from any representative, officer, director or employee,
or from any books or records or from personal inspection, of such other party,
and shall not use such data or information or disclose the same to others,
except: (i) to the extent such data is a matter of public knowledge or is
required by law to be published; and (ii) to the extent that such data or
information must be used or disclosed in order to consummate the transactions
contemplated by this Agreement.
SECTION 7.6 SCHEDULES; KNOWLEDGE. Each party is presumed to have full
knowledge of all information set forth in the other party's schedules delivered
pursuant to this Agreement.
SECTION 7.7 THIRD PARTY BENEFICIARIES.This contract is solely between
Baxter Capital and Crossatlantic and except as specifically provided, no
director, officer, stockholder, employee, agent, independent contractor or any
other person or entity shall be deemed to be a third party beneficiary of this
Agreement.
SECTION 7.8 ENTIRE AGREEMENT.This Agreement represents the entire
agreement between the parties relating to the subject matter hereof. This
Agreement alone fully and completely expresses the agreement of the parties
relating to the subject matter hereof. There are no other courses of dealing,
understanding, agreements, representations or warranties, written or oral,
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except as set forth herein. This Agreement may not be amended or modified,
except by a written agreement signed by all parties hereto.
SECTION 7.9 SURVIVAL; TERMINATION. The representations, warranties and
covenants of the respective parties shall survive the Closing Date and the
consummation of the transactions herein contemplated for 18 months.
SECTION 7.10 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which taken
together shall be but a single instrument.
SECTION 7.11 AMENDMENT OR WAIVER. Every right and remedy provided
herein shall be cumulative with every other right and remedy, whether conferred
herein, at law, or in equity, and may be enforced concurrently herewith, and no
waiver by any party of the performance of any obligation by the other shall be
construed as a waiver of the same or any other default then, theretofore, or
thereafter occurring or existing. At any time prior to the Closing Date, this
Agreement may be amended by a writing signed by all parties hereto, with respect
to any of the terms contained herein, and any term or condition of this
Agreement may be waived or the time for performance hereof may be extended by a
writing signed by the party or parties for whose benefit the provision is
intended.
SECTION 7.12 EXPENSES. Each party herein shall bear all of their
respective cost s and expenses incurred in connection with the negotiation of
this Agreement and in the consummation of the transactions provided for herein
and the preparation thereof.
SECTION 7.13 HEADINGS; CONTEXT. The headings of the sections and
paragraphs contained in this Agreement are for convenience of reference only and
do not form a part hereof and in no way modify, interpret or construe the
meaning of this Agreement.
SECTION 7.14 BENEFIT. This Agreement shall be binding upon and shall
inure only to the benefit of the parties hereto, and their permitted assigns
hereunder. This Agreement shall not be assigned by any party without the prior
written consent of the other party.
SECTION 7.15 PUBLIC ANNOUNCEMENTS. Except as may be required by law,
neither party shall make any public announcement or filing with respect to the
transactions provided for herein without the prior consent of the other party
hereto.
SECTION 7.16 SEVERABILITY. In the event that any particular provision
or provisions of this Agreement or the other agreements contained herein shall
for any reason hereafter be determined to be unenforceable, or in violation of
any law, governmental order or regulation, such unenforceability or violation
shall not affect the remaining provisions of such agreements, which shall
continue in full force and effect and be binding upon the respective parties
hereto.
SECTION 7.17 FAILURE OF CONDITIONS; TERMINATION.In the event of any of
the conditions specified in this Agreement shall not be fulfilled on or before
the Closing Date, either of the parties have the right either to proceed or,
upon prompt written notice to the other, to terminate and rescind this
Agreement. In such event, the party that has failed to fulfill the conditions
specified in this Agreement will liable for the other parties legal fees. The
election to proceed shall not affect the right of such electing party reasonably
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to require the other party to continue to use its efforts to fulfill the unmet
conditions.
SECTION 7.18 NO STRICT CONSTRUCTION. The language of this Agreement
shall be construed as a whole, according to its fair meaning and intendment, and
not strictly for or against either party hereto, regardless of who drafted or
was principally responsible for drafting the Agreement or terms or conditions
hereof.
SECTION 7.19 EXECUTION KNOWING AND VOLUNTARY. In executing this
Agreement, the parties severally acknowledge and represent that each: (a) has
fully and carefully read and considered this Agreement; (b) has been or has had
the opportunity to be fully apprized by its attorneys of the legal effect and
meaning of this document and all terms and conditions hereof; (c) is executing
this Agreement voluntarily, free from any influence, coercion or duress of any
kind.
SECTION 7.20 AMENDMENT. At any time after the Closing Date, this
Agreement may be amended by a writing signed by both parties, with respect to
any of the terms contained herein, and any term or condition of this Agreement
may be waived or the time for performance hereof may be extended by a writing
signed by the party or parties for whose benefit the provision is intended.
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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.
ATTEST: BAXTER CAPITAL COMPANY, INC.
______________________________ By: /s/ Peter Goldstein
-------------------------------
Peter Goldstein
ATTEST: CROSSATLANTIC PROPERTIES LTD
_________________________ By: /s/ Carl Johan Algot Robb
--------------------------------
Carl Johan Algot Robb
CROSSATLANTIC PROPERTIES
LTD SHAREHOLDERS
___________________________ /s/ Carl Johan Algot Robb
----------------------------------
Carlo Johan Algot Robb
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