PLAN AND AGREEMENT OF SHARE EXCHANGE
OF
OAK BROOK CAPITAL IV, INC.
and
PVAXX CORPORATION
DATED HEREOF AS MAY 19, 2000
This PLAN AND AGREEMENT OF SHARE EXCHANGE, dated hereof as May 19, 2000, by
and among Oak Brook Capital IV, Inc., a Colorado corporation ("OAK BROOK")
and PVAXX Corporation, a Florida corporation ("PVAXX"), and Gerard Werner
and Mark Thatcher (hereinafter collectively referred to as "Majority
Shareholders"), who join in the execution of this Agreement for the limited
purpose of making certain covenants regarding the transaction contemplated
herein. OAK BROOK and PVAXX are hereinafter collectively referred to as
the "PVAXX Combining Corporations."
WITNESSETH:
WHEREAS, OAK BROOK is a corporation duly organized and validly existing
under the laws of the state of Colorado, with its registered office at 17
West Cheyenne Mountain Boulevard, Colorado Springs, Colorado 80906 and its
principal executive office at 1250 Turks Head Building, Providence, Rhode
Island 02903; and
WHEREAS, PVAXX is a corporation duly organized and validly existing under
the laws of the state of Florida, with its registered office located in the
city of Ft. Myers, State of Florida, and its principal executive office at
12730 New Brittany Boulevard, Ft. Myers, Florida 33907; and
WHEREAS, the respective boards of directors of OAK BROOK and PVAXX deem it
desirable and in the best interests of their respective corporations, for
OAK BROOK to acquire the outstanding capital stock of PVAXX by exchanging
20,000,000 shares of OAK BROOK Common Stock and 10,000,000 shares of OAK
BROOK Preferred Stock for all of the issued and outstanding capital stock
of PVAXX (together with other consideration provided for herein) and have
proposed, declared advisable and approved such share exchange (the "PVAXX
Share Exchange") pursuant to this Agreement, which Agreement has been duly
approved by resolutions of the respective boards of directors of OAK BROOK
and PVAXX;
WHEREAS the respective boards of directors of OAK BROOK and PVAXX have
approved and adopted this agreement as a plan of reorganization within the
provisions of Section 368(a)(1)(A) and 368(a)(2)(E) of the Internal Revenue
Code of 1954, as amended;
WHEREAS, this Agreement shall require majority shareholders' approval by
OAK BROOK for the purposes of approving the PVAXX Share Exchange prior to
closing. Upon execution of this Agreement, OAK BROOK shall file a PRE14C,
Information Statement and accompanying shareholder's notice of meeting (the
"14C"), with the Office of Small Business Policy, Securities and Exchange
Commission ("SEC"). Said OAK BROOK Shareholder's Meeting (the "Meeting")
will take place twenty (20) calendar days following the filing of the 14C ,
10:00 A.M. EST at the offices of its counsel, Nadeau & Simmons, P.C., 1250
Turks Head Building, Providence, Rhode Island 02903; and
WHEREAS, this Agreement shall require a majority approval by shareholders
of OAK BROOK and PVAXX for the purposes of approving the PVAXX Share
Exchange prior to closing.
Upon the majority shareholder approval, and the filing of a Articles of
Share Exchange with the Colorado Secretary of State, the PVAXX Share
Exchange shall be considered closed (the "Closing Date")
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, and to prescribe the terms and
conditions of the PVAXX Share Exchange, the mode of carrying the same into
effect, the manner and basis of converting the PVAXX Shares into shares of
common stock of OAK BROOK (together with other consideration provided for
herein) and such other details and provisions as are deemed necessary or
proper, the parties hereto also hereby agree as follows:
ARTICLE 1
PVAXX SHARE EXCHANGE
1:1 PVAXX SHARE EXCHANGE.
1:1:1 STOCKHOLDER APPROVAL.
This Agreement will be submitted for approval by the stockholders of OAK
BROOK at the Meeting, and by written majority consent of the stockholders
of PVAXX in accordance with the applicable laws of the State of Colorado
and Florida, respectively.
1:1:2 EFFECTIVE DATE AND CLOSING DATE.
The PVAXX Share Exchange shall become effective on the "Effective Date",
such date being the later upon which (i) Articles of Share Exchange,
attached hereto as Appendix A, are filed with the Secretary of State of
Colorado and (ii) a Certificate of Share Exchange is filed with the
Secretary of State of Florida.
The "Closing Date" will be on or within one (1) business day of the date
this Agreement is approved by the stockholders of OAK BROOK and PVAXX.
1:2 EFFECT OF PVAXX SHARE EXCHANGE.
OAK BROOK and PVAXX will cause Certificate of Share Exchange in
substantially the form of Exhibit A attached hereto (the "Certificate of
Share Exchange") to be signed, verified and delivered to the Secretary of
State, State of Colorado, as provided in Article 111 of the Colorado
Business Corporation Act on the first business day (no Saturday, Sunday or
legal holiday in Colorado being deemed to be a business day) following the
day on which the Agreement is executed by both parties, or such earlier or
later date as may be mutually agreed to by OAK BROOK and PVAXX. The time of
the delivery to the Secretary of State referred to in the preceding
sentence is herein referred to as the Time of Filing. The effective time of
the Share Exchange shall be the close of business on the day the
Certificate of Share Exchange shall have been filed by the Secretary of
State of the State of Colorado. At the effective time of the Share
Exchange, PVAXX will become a wholly owned subsidiary of OAK BROOK, and
PVAXX will be hereinafter sometimes referred to as the "PVAXX Subsidiary
Corporation". OAK BROOK, the party to the Share Exchange surviving as the
parent, will change its name to PVAXX Corporation and will hereinafter
sometimes be referred to as the "Parent Corporation".
In all other respects, the identity, existence, purposes, powers, objects,
franchises, rights, and immunities of OAK BROOK shall continue unaffected
and unimpaired by the PVAXX Share Exchange, and the corporate identity,
existence, purposes, powers, objects, franchises, rights, and immunities of
PVAXX shall be wholly merged with and into PVAXX Combining Corporations,
and OAK BROOK and the PVAXX Subsidiary Corporation shall be fully vested
therewith. Accordingly, on the Effective Date, the separate existence of
PVAXX, except in so far as continued by statute, shall cease, and OAK BROOK
will file an amendment to its articles of incorporation to change its name
from Oak Brook Capital IV, Inc. to PVAXX Corporation.
1:3 GOVERNING LAW AND ARTICLES OF INCORPORATION.
1:3:1 COLORADO LAW GOVERNS; OAK BROOK'S ARTICLES OF INCORPORATIONS,
AMENDED AND RESTATED, SURVIVE.
The laws of Colorado shall continue to govern OAK BROOK. On and after the
Effective Date, the articles of incorporation of OAK BROOK shall be the
articles of incorporation of the Parent Corporation and the articles of
incorporation of PVAXX shall be the articles of incorporation of the PVAXX
Subsidiary Corporation until further amended in the manner provided by law
and in such articles of incorporation (the "Articles").
1:4 BYLAWS.
1:4:1 BYLAWS, AS AMENDED AND RESTATED, SURVIVE.
On the Effective Date, the bylaws of OAK BROOK and PVAXX shall be the
bylaws of OAK BROOK and the PVAXX Subsidiary Corporation (the "Restated
Bylaws"), respectively, until altered, amended, or repealed, or until new
bylaws shall be adopted in accordance with the provisions of law, the
Articles, and the Restated Bylaws.
1:5 DIRECTORS AND OFFICERS OF OAK BROOK AND PVAXX.
1:5:1 DIRECTORS OF OAK BROOK.
The names and addresses of the persons who, upon the Effective Date, shall
constitute the board of directors of OAK BROOK, and who shall hold office
until the first annual meeting of stockholders of OAK BROOK following the
Effective Date, are as follows:
NAME ADDRESS
Henry Stevens 12730 New Brittany Blvd.
Ft. Myers, FL 33907
Bryan Wade 12730 New Brittany Blvd.
Ft. Myers, FL 33907
1:5:2 OFFICERS OF OAK BROOK.
The names and addresses of the persons who, upon the Effective Date, shall
constitute the officers of OAK BROOK, and who shall hold office, subject to
the Restated Articles of Incorporation until the first meeting of directors
following the next annual meeting of stockholders thereof, are as follows:
NAME ADDRESS
Henry Stevens 12730 New Brittany Blvd.
Ft. Myers, FL 33907
Bryan Wade 12730 New Brittany Blvd.
Ft. Myers, FL 33907
1:5:3 DIRECTORS OF PVAXX.
The names and addresses of the persons who, upon the Effective Date, shall
constitute the board of directors of PVAXX, and who shall hold office until
the first annual meeting of stockholders of OAK BROOK following the
Effective Date, are as follows:
NAME ADDRESS
Henry Stevens 12730 New Brittany Blvd.
Ft. Myers, FL 33907
Bryan Wade 12730 New Brittany Blvd.
Ft. Myers, FL 33907
1:5:4 OFFICERS OF PVAXX.
The names and addresses of the persons who, upon the Effective Date, shall
constitute the officers of PVAXX, and who shall hold office, subject to the
Restated Bylaws, until the first meeting of directors following the next
annual meeting of stockholders thereof, are as follows:
NAME ADDRESS
Henry Stevens 12730 New Brittany Blvd.
Ft. Myers, FL 33907
Bryan Wade 12730 New Brittany Blvd.
Ft. Myers, FL 33907
1:5:5 VACANCIES.
On or after the Effective Date, if a vacancy shall for any reason exist in
the board of directors or in any of the offices of OAK BROOK or PVAXX, such
vacancy shall be filled in the manner provided in the Articles and/or
Restated Bylaws.
1:6 CAPITAL STOCK OF COMBINING CORPORATIONS.
1:6:1 CAPITAL STOCK AS IN OAK BROOK AND PVAXX'S ARTICLES OF
INCORPORATION.
The authorized number of shares of capital stock of OAK BROOK and PVAXX,
and the par value, designations, preferences, rights, and limitations
thereof, and the express terms thereof, shall be as set forth in the OAK
BROOK and PVAXX Articles.
1:7 CONVERSION OF SECURITIES AND ADDITIONAL CONSIDERATION.
1:7:1 GENERAL.
The manner and basis of converting the PVAXX Shares into shares of the
capital stock of OAK BROOK or the other consideration herein provided for
shall be as hereinafter set forth in this Section 1:7 as follows.
1:7:2 EXCHANGE OF STOCK.
PVAXX shareholders will surrender one hundred percent (100%) of their
issued and outstanding common and preferred shares to OAK BROOK on the date
of execution of this Agreement. In exchange for receipt of one hundred
percent (100%) of PVAXX shares, OAK BROOK, on the terms and subject to the
conditions herein set forth, shall issue and deliver to PVAXX shareholders:
(i) On the Closing Date, 20,000,000 Common Shares, $0.001 par value
("OAK BROOK Common Stock"), of OAK BROOK, on a share-for-share
basis, registered in the name of the PVAXX shareholder or its
nominee; and
(ii) On the Closing Date, 10,000,000 Preferred Shares, $20.00
par value ("OAK BROOK Preferred Stock"), of OAK BROOK, on a
share-for-share basis, registered in the name of the PVAXX
shareholder or its nominee.
(iii) OAK BROOK COMMON STOCK. None of the currently issued and outstanding
shares of OAK BROOK Common Stock, no par value, issued and
outstanding at the effective time of the PVAXX Share Exchange
shall be converted as a result of the PVAXX Share Exchange;
(iv) FRACTIONAL INTERESTS. No fractional shares of preferred or common
stock of OAK BROOK or certificate or scrip representing the same
shall be issued. In lieu thereof each holder of PVAXX Shares
having a fractional interest arising upon such conversion will be
rounded up into one full additional share of common stock of OAK
BROOK;
(v) STATUS OF COMMON STOCK. All Shares of common stock of OAK BROOK into
which PVAXX Shares are converted as herein provided shall be
fully paid and non-assessable and shall be issued in full
satisfaction of all rights pertaining to such OAK BROOK Common
Stock;
(vi) STATUS OF PREFERRED STOCK. All Shares of preferred stock of OAK BROOK
into which PVAXX Shares are converted as herein provided shall be
fully paid and non-assessable and shall be issued in full
satisfaction of all rights pertaining to such OAK BROOK Preferred
Stock;
(vii) INDEPENDENT APPRAISAL, RIGHT TO DISSENT AND OBTAIN PAYMENT FOR
SHARES; PROCEDURES FOR PROTECTION OF DISSENTER'S RIGHTS. In
order to establish a "fair value" for the PVAXX Shares which are
paid in cash in lieu of conversion into the Shares of OAK BROOK,
as provided in this Article VI, the Board of Directors of PVAXX
shall establish the value of PVAXX Shares prior to the PVAXX
Share Exchange, and shall afford to such shareholders of PVAXX
all of the rights, and implement the procedures for protection of
dissenters' rights, pursuant to the provisions of the Florida
General Corporation Law, Section 10.22 ET SEQ., as amended, the
terms and provisions of which are hereby incorporated by
reference and made a part hereof.
1:7:3 SURRENDER OF PVAXX CERTIFICATES.
On the Effective Date, all holders of PVAXX Shares (the "PVAXX
Shareholders") will surrender each outstanding certificate or certificates
theretofore representing PVAXX Shares to OAK BROOK and receive in exchange
therefor certificates representing the number of whole shares of OAK BROOK
Common Stock or OAK BROOK Preferred Stock, as the case may be, into which
the PVAXX Shares therefor represented by the certificate so surrendered
shall have been converted as aforesaid.
1:7:4 ADDITIONAL CONSIDERATION.
On the Closing Date, PVAXX will pay to the Majority Shareholders (Werner
and Thatcher) two hundred thousand dollars (USD 200,000) to cover advisory,
consulting, legal and accounting service fees, as well as transactional
costs, including, but not limited to, filing fees, recording fees,
communication fees and post-closing costs.
1:8 CLOSING OF PVAXX TRANSFER BOOKS.
At the Closing Date, holders of certificates representing PVAXX Shares that
were outstanding immediately prior to the Closing Date shall cease to have
any rights as stockholders of PVAXX, and the stock transfer books of PVAXX
shall be closed with respect to all shares of such common stock outstanding
immediately prior to the Closing Date. As of the date of execution of this
Agreement, no further transfer of any such PVAXX Shares shall be made on
such stock transfer books after the Closing Date. If, after the Closing
Date, a valid certificate previously representing any PVAXX Shares (a
"PVAXX Stock Certificate") is presented to OAK BROOK, such PVAXX Stock
Certificate shall be canceled and shall be exchanged as provided in Section
1:7:3.
1:9 EXCHANGE OF CERTIFICATES.
(A) Upon surrender of a PVAXX Stock Certificate to the Transfer Agent for
exchange, together with such other documents as may be reasonably required
by OAK BROOK, the holder of such PVAXX Stock Certificate shall be entitled
to receive in exchange therefor a certificate representing the number of
whole OAK BROOK Shares that such holder has the right to receive pursuant
to the provisions of Section 1:7, and PVAXX Stock Certificate so
surrendered shall be canceled. Until surrendered as contemplated by this
Section 1:10, each PVAXX Stock Certificate shall be deemed, from and after
the Closing Date, to represent only the right to receive upon such
surrender a certificate representing shares of OAK BROOK Common Stock or
OAK BROOK Preferred Stock, as the case may be, as contemplated by Section
1:7. If any PVAXX Stock Certificate shall have been lost, stolen or
destroyed, OAK BROOK may, in its discretion and as a condition precedent to
the issuance of any certificate representing OAK BROOK Common Stock or OAK
BROOK Preferred Stock, as the case may be, require the owner of such lost,
stolen or destroyed PVAXX Stock Certificate to provide an appropriate
affidavit and to deliver a bond (in such sum as OAK BROOK may reasonably
direct) as indemnity against any claim that may be made against OAK BROOK
with respect to such PVAXX Stock Certificate.
(B) No dividends or other distributions declared or made with respect to
OAK BROOK Common Shares or OAK BROOK Preferred Shares, as the case may be,
with a record date after the Closing Date shall be paid to the holder of
any un-surrendered PVAXX Stock Certificate with respect to the shares of
OAK BROOK represented thereby until such holder surrenders such PVAXX Stock
Certificate in accordance with this Section 1:7:3 (at which time such
holder shall be entitled to receive all such dividends and distributions).
(C) OAK BROOK shall not be liable to any holder or former holder of
preferred or common stock of PVAXX for any shares of OAK BROOK Common Stock
or OAK BROOK Preferred Stock, as the case may be, (or dividends or
distributions with respect thereto), or for any cash amounts, delivered to
any public official pursuant to any applicable abandoned property, escheat
or similar law.
1:10 PVAXX SHAREHOLDER APPROVAL; DISSENTING SHARES.
Based upon their approval of the PVAXX Share Exchange, each of the
shareholders of PVAXX (the "PVAXX Shareholders") hereby agrees and
acknowledges the following:
(A) that the terms of the PVAXX Share Exchange, this Agreement, and all
other agreements contemplated herein are hereby approved, ratified and
confirmed and the officers of PVAXX are, and each of them hereby is,
authorized and directed, in the name and on behalf of PVAXX, to consummate
the transactions contemplated by this Agreement, on the terms set forth in
such documents and such other agreements, and any amendments thereto, as
the officers executing such agreements may in their discretion deem
reasonable and appropriate; and
(B) that he or she hereby agrees to waive any "appraisal rights" within
the meaning of Section 10.22 ET SEQ. of the Florida General Corporation Law
with respect to the PVAXX Share Exchange.
1:11 ACCOUNTING AND TAX TREATMENT.
1:11:1 GAAP TREATMENT.
The assets and liabilities of PVAXX shall be taken up on the books of the
Share Exchange Surviving Corporation in accordance with generally accepted
accounting principles, and the capital surplus and retained earnings
accounts of the Share Exchange Surviving Corporation shall be determined,
in accordance with generally accepted accounting principles, by the board
of directors of the Share Exchange Surviving Corporation. Nothing herein
shall prevent the board of directors of the Share Exchange Surviving
Corporation from making any future changes in its accounts in accordance
with law.
1:11:2 FEDERAL INCOME TAX TREATMENT OF PVAXX SHARE EXCHANGE.
The PVAXX Share Exchange is intended to qualify as a tax-free
reorganization Share Exchange transaction described in <section> 368 of the
Internal Revenue Code of 1986, as amended (the "Code").
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF PVAXX
2:1 REPRESENTATIONS AND WARRANTIES OF PVAXX.
Representations and warranties shall be made by PVAXX and shall survive the
Effective Date of the PVAXX Share Exchange for one (1) year, subject to
mutually satisfactory exceptions, claims and caveats:
2:1:1 DISCLOSURE SCHEDULE.
Except as set forth in the schedule of disclosure attached hereto as
Appendix IV (the "Disclosure Schedule"), PVAXX hereby represents and
warrants as follows:
2:1:2 ORGANIZATION, STANDING AND QUALIFICATION.
PVAXX and all of its subsidiaries are corporations duly organized, validly
existing and in good standing under the laws of the respective
jurisdictions where they have been organized, and have all requisite
corporate powers and authority to own, to lease or to operate their
properties and to carry on their business as it is now being conducted.
2:1:3 AUTHORITY.
The execution and delivery of this Agreement has been authorized by the
Board of Directors of PVAXX, and the completion of these transactions have
been duly and validly authorized by all necessary corporate and shareholder
action on the part of PVAXX. This Agreement has been duly executed and
delivered by PVAXX and, assuming the due and valid execution and delivery
of this Agreement by the other parties hereto, constitutes the legal, valid
and binding obligation of PVAXX, to the extent applicable, enforceable in
accordance with its terms, all as may be subject to or affected by any
bankruptcy, reorganization, insolvency, moratorium or similar laws of
general application from time to time in effect and relating to or
affecting the rights or remedies of creditors generally.
2:1:4 NO CONFLICT, BREACH, DEFAULT OR VIOLATION.
Except as set forth in Section 2:1:4 of the Disclosure Schedule, the
execution and delivery of this Agreement does not, and the completion of
transactions contemplated by this Agreement will not conflict with, result
in a breach of or the acceleration of any obligation under, or constitute a
default or event of default (or event which with notice or lapse of time or
both would constitute a default) under, any provision of any charter,
bylaw, indenture, mortgage, lien, lease, license, agreement, contract,
permit, order, judgment, or, to the best of the PVAXX's knowledge, any
judicial or administrative decree, ordinance or regulation, or any
restriction to which any property of PVAXX is subject or by which PVAXX is
bound, the result of which would have a material adverse effect on the
business of PVAXX.
2:1:5 APPROVALS.
No consent, approval, order or authorization of, or registration,
declaration or filing with, any court, administrative agency or commission
or other governmental agency or instrumentality, domestic or foreign (a
"Governmental Entity"), or third party is required by or with respect to
PVAXX or any PVAXX Shareholder in connection with the execution and
delivery by PVAXX or any PVAXX Shareholder of this Agreement, or the
completion of the transactions contemplated hereby, the absence of which
would have a material adverse effect on PVAXX.
2:1:6 CAPITALIZATION OF PVAXX AND SUBSIDIARIES.
(a) The authorized capital stock of PVAXX consists of forty million
(40,000,000) shares of PVAXX common stock, $0.01 par value per share,
of which twenty million (20,000,000) are issued and outstanding, and
ten million (10,000,000) shares of PVAXX preferred stock, $20.00 par
value per share, of which ten million (10,000,000) are issued and
outstanding (collectively the "PVAXX Shares"). The PVAXX Shares are
validly issued, fully paid and non-assessable and not subject to
preemptive rights. Section 2:1:6 of the Disclosure Schedule sets
forth a true, complete and correct list of the holders of record of
the issued and outstanding PVAXX Shares, and all claims, commitments
or agreements to which PVAXX is a party or by which it is bound,
obligating PVAXX to issue, deliver or sell, or to cause to be issued,
delivered or sold, additional shares of capital stock of PVAXX or
obligating PVAXX to grant, extend or enter into any such option,
warrant, call, right or agreement with respect to its capital stock.
There are no agreements obligating PVAXX to redeem, repurchase or
otherwise acquire the capital stock of PVAXX, or any other securities
issued by it, or to register the sale of the capital stock of PVAXX
under applicable securities laws. There are no agreements or
arrangements prohibiting or otherwise restricting the payment of
dividends or distributions to the PVAXX Shareholders by PVAXX.
2:1:7 INFORMATION SUPPLIED.
To the best knowledge of PVAXX or any of its subsidiaries, no written
statement, certificate, schedule, list or other written information
furnished by or on behalf of PVAXX or any of its subsidiaries on or prior
to the date hereof in connection herewith contains (after giving effect to
any correction thereof furnished to PVAXX or any of its subsidiaries in
writing prior to the date hereof) any untrue statement of a material fact
or omits or will omit to state a material fact required to be stated herein
or therein or necessary to make the statements herein or therein, in light
of the circumstances under which they were made, not misleading.
2:1:8 FINANCIAL STATEMENTS.
PVAXX has furnished to OAK BROOK true, complete and correct copies of the
audited balance sheet at March 31, 2000 and the related audited income
statement, and statements of operations, cash flows and changes in
stockholders equity for the same year ended (all of these financial
statements being collectively referred to herein as the "PVAXX
Financials"). The PVAXX Financials are consistent in all material respects
with the books and records of PVAXX, have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis
during the periods involved (except as may be indicated in the notes
thereto) and fairly present the financial position of PVAXX as at the
date thereof.
2:1:8 LIABILITIES.
To the best of PVAXX's knowledge, PVAXX has no liabilities or obligations,
either accrued, absolute, contingent, or otherwise, required to be but not
reflected or reserved against in the PVAXX Financials in accordance with
generally accepted accounting principles, except those incurred in the
ordinary course of business, or those that are not material, and PVAXX
knows of no potential liability that would result in material adverse
effect on the business of PVAXX, other than those (a) reflected or reserved
against in the PVAXX Financials, (b)incurred in the ordinary course of
business since March 31, 2000 or (c) set forth in Section 2:1:8 of the
Disclosure Schedule.
2:1:9 ADDITIONAL INFORMATION.
Section 2:1:9 of the Disclosure Schedule sets forth a true, complete and
correct list, or references the attachment as an appendix thereto, of the
following items:
2:1:9:1 REAL PROPERTY.
Section 2:1:9:1 of the Disclosure Schedule sets forth a true, complete and
correct list of all real property and structures thereon, presently (i)
owned by, or subject to a contract of purchase and sale or option
agreement involving PVAXX (collectively, the "Real Property"), (ii) leased
by, or subject to a lease commitment involving, PVAXX (collectively, the
"Leased Property"), with a description of: (x) the general use to which
such real property is or was put; (y) the general nature and amount of any
Encumbrances thereon; and (z) if leased the name of the lessor and a true,
complete and correct copy of any written agreement pursuant to which such
real property is leased.
2:1:9:2 MACHINERY AND EQUIPMENT.
Section 2:1:9:1 of the Disclosure Schedule sets forth a true, complete and
correct list of all machinery, work product, tools, equipment, furnishings,
and fixtures (excluding such items that had a cost basis of $20,000 or
less at the date hereof) owned, leased or subject to a contract of purchase
and sale or lease commitment, by PVAXX with, to the extent practical, a
description with respect to each such of: (i) the serial number of such
item; (ii) the general location at which such item is kept; (ii) whether
such item is owned or leased; (iv) if owned, a general description of the
nature and amount of any Encumbrances thereon; and (v) if leased, the name
of the lessor and a true, complete and correct copy of any written
agreement pursuant to which such item is leased.
2:1:9:3 RECEIVABLES.
Section 2:1:9:3 of the Disclosure Schedule sets forth a true, complete and
correct list of all accounts and notes receivable presently owned by PVAXX,
together with an appropriate aging schedule, as of March 31, 2000, which
list separately all amounts receivable from the PVAXX Shareholders,
director, officer, employee, or agent of PVAXX, from or from any of their
respective affiliates. All accounts and notes receivable of PVAXX
represent bona fide claims against debtors for services performed or other
charges arising in the ordinary course of business and are subject to no
material defenses, counterclaims or rights of set-off.
2:1:9:4 PAYABLES.
Section 2:1:9:1 of the Disclosure Schedule sets forth a true, complete and
correct list of all accounts and notes payable owed by PVAXX, together with
an appropriate aging schedule, as of March 31, 2000, which list separately
all such amounts payable to any PVAXX Shareholder, director, officer,
employee, or agent of PVAXX, to PVAXX Shareholders or to any of the
irrespective affiliates. To the best of PVAXX's knowledge, all accounts
and notes payable of PVAXX represent bona fide claims against PVAXX for
services performed or other charges arising in the ordinary course of
business.
2:1:9:5 CONTRACTS.
Section 2:1:9:5 of the Disclosure Schedule sets forth a true, complete and
correct list of all contracts, agreements and commitments of PVAXX, whether
or not made in the ordinary course of business, including leases under
which PVAXX is lessor or lessee, which are to be performed in whole or in
part after the Effective Date, and which (i)involve or may involve
aggregate payments by or to PVAXX of $20,000 or more after the Effective
Date, (ii) are not terminable by PVAXX without premium or penalty on 60
(or fewer) days' notice, (iii)purport to prohibit or restrict the ability
of PVAXX to participate or compete in any material line of business or
with any person, (iv) purport to prohibit or restrict another person's
ability to be in the line of business of PVAXX or to compete with PVAXX or
(v) are otherwise material to the business or properties of PVAXX. To the
best of PVAXX' knowledge, except as set forth on Schedule 2:1:9:5 of the
Disclosure Schedule, PVAXX has complied in all material respects with all
commitments, contracts, agreements and obligations pertaining to it listed
on Section 2:1:9:5 of the Disclosure Schedule and is not in material
default under any such contracts and agreements and no notice of material
default has been received, in each case which would have a material adverse
effect on the business of PVAXX.
2:1:9:6 LICENSES; PERMITS.
All approvals, authorizations, consents, licenses, orders, franchises,
rights, registrations and permits of any type held by PVAXX, which
together constitute all material approvals, authorizations, consents,
licenses, orders, franchises, rights, registrations and permits (the
"Permits") required to operate its business as presently conducted. To the
best of PVAXX' knowledge, all such Permits are currently in full force and
effect and PVAXX is in compliance therewith, except to the extent
noncompliance would not have a material adverse effect on the business of
PVAXX. The execution and delivery of this Agreement and the completion of
the transactions contemplated hereby will not result in any revocation,
cancellation, suspension or modification of any such approval,
authorization, consent, license, order, franchise, right, registration or
permit, which revocation, cancellation, suspension or modification would
have a material adverse effect on the business of PVAXX.
2:1:9:7 EMPLOYMENT AGREEMENTS.
Except for the Employment Agreements substantially in the form attached
hereto as Appendix V (the "Employment Agreements"), there are no oral or
written employment or consulting agreements to which PVAXX is a party or by
which PVAXX is bound, including, without limitation, all oral or written
employment or consulting agreements or any other arrangements with any
person which provide for the payment of any consideration by PVAXX to such
person as a result of the termination of such person's employment with
PVAXX, or on the completion of the transactions contemplated hereby.
2:1:9:8 INSURANCE POLICIES.
Section 2:1:9:8 of the Disclosure Schedule sets forth a true, complete and
correct list of all (i) policies of property, fire and casualty, product
liability, worker's compensation, professional liability and title
insurance and other forms of insurance, under which PVAXX is insured, and
(ii) bonds issued or posted by any person which respect to any operation or
other activities of PVAXX.
2:1:9:9 TRANSACTIONS WITH MANAGEMENT.
Section 2:1:9:1 of the Disclosure Schedule sets forth a true, complete and
correct list of all material contracts, leases and commitments by and
between PVAXX and any of its officers, directors, stockholders, employees,
or agents, or any affiliate of any such person. Except as identified in
Section 2:1:9:1 of the Disclosure Schedule, none of the officers,
directors, stockholders, or employees of PVAXX owns, leases or licenses any
interest in any asset used by PVAXX in its business, other than solely by
and through ownership of the capital stock of PVAXX.
2:1:9:10 ASSUMED NAMES.
All assumed or fictitious names under which PVAXX engages in or conducts
any business.
2:1:9:11 PERSONNEL.
With respect to PVAXX, section 2:1:9:11 of the Disclosure Schedule sets
forth a true, complete and correct list of: (i) the name, current salary
or wage rate of each employee; (ii) the current bonus arrangements
applicable to each employee; (iii) any other material compensation
arrangements (excluding employee insurance or benefit plans) with each
employee; and (iv) a description of any licenses or permits held by an
employee that are material and germane to the business of PVAXX.
2:1:9:12 BANK ACCOUNTS AND POWERS OF ATTORNEY.
Section 2:1:9:12 of the Disclosure Schedule sets forth the name and address
of each bank or other financial institution in which PVAXX has an account
or safe deposit box, the account number, the account name and type of
account, the names of all persons authorized to draw thereon and have
access thereto, and the name of all persons, if any, holding powers of
attorney to act for PVAXX, and the name and address of al persons, other
than officers and full-time employees, authorized to bind PVAXX
contractually, including, without limitation, independent marketing agents
or independent contractors.
2:1:10 LITIGATION.
Except as set forth in Section 2:1:10 of the Disclosure Schedule, there is
no each suit, action, proceeding or investigation pending or, to the best
knowledge of PVAXX, threatened against or affecting PVAXX (or any of its
officers or directors in connection with the business of PVAXX), nor is
there any outstanding judgment, order, writ, injunction or decree against
PVAXX.
2:1:11 ABSENCE OF CERTAIN CHANGES.
To the best of PVAXX's knowledge, since the year end period of March 31,
2000, there has not been: (i) any material adverse change in the financial
condition, assets, liabilities (contingent or otherwise), income or
business of PVAXX; (ii) any damage, destruction or loss (whether or not
covered by insurance) materially and adversely affecting the properties or
business of PVAXX; (iii) any declaration or payment of any dividend or
distribution in respect of the capital stock or any direct or indirect
redemption, purchase or other acquisition of any of the capital stock of
PVAXX; (iv) any increase in the compensation, bonus, sales commissions or
fee arrangement payable or to become payable by PVAXX to any of its
officers, directors, employees, consultants or agents other than raises or
increases in compensation consistent with prior policy that are not in
excess of five percent of the individual's annual compensation or hourly
rate; (v) the creation of any material Encumbrance on any of the assets of
PVAXX, or the amendment, modification or extension of any existing material
Encumbrance on any such asset other than any such creation, amendment,
modification or extension effected (A) in the ordinary course of business,
(B) as required in connection with the PVAXX Share Exchange, or (C) for
current taxes or assessments which are not yet due, or being contemplated
in good faith by appropriate proceedings; (vi) any sale, assignment,
transfer, conveyance, lease, hypothecation, abandonment or other
disposition of or agreement to sell, assign, transfer, convey, lease,
hypothecate, abandon or otherwise dispose of, any of the material assets of
PVAXX, other that (A) assets sold in the ordinary course of business, or;
(B) any assets which are scrapped as obsolete in conformance with customary
procedure.
2:1:12 TITLE TO ASSETS; ENCUMBRANCES.
2:1:12:1 Except as set forth in Section 2:1:12 of the Disclosure
Schedule, to the best
of PVAXX's knowledge, PVAXX owns its material assets, whether real,
personal or intangible, free and clear of all Encumbrances, except for
(i) liens for current taxes and assessments not yet due, or being contested
in good faith by appropriate proceedings, (ii) mechanic's liens arising
under the operation of law or for actions contested in good faith or for
which payment arrangements have been made, (iii) liens granted or incurred
by PVAXX in the ordinary course of its business or in connection with the
financing of office space, furniture and equipment in the ordinary course
of its business, (iv) easements, covenants, restrictions and other
exception to title of record (which do not materially and adversely affect
the operation of PVAXX), (v) Encumbrances reflected on the balance sheet at
March 31, 2000 of PVAXX;
2:1:12:2 To the best of PVAXX's knowledge, there are no parties
in possession of any of the material assets of PVAXX other than PVAXX,
other than personal property held by third parties in the reasonable and
ordinary course of business. Subject to the Encumbrances set forth in
Section 2:1:12 of the Disclosure Schedule or described in Section 2:1:12:1,
PVAXX enjoys full, free and exclusive use and quiet enjoyment of its
material assets and its rights pertaining thereto. To the best of PVAXX's
knowledge, PVAXX enjoys peaceful and undisturbed possession under all
leases under which it is lessee.
2:1:13 CONDITION OF ASSETS.
2:1:13:1 To the best of PVAXX's knowledge, each of the buildings,
structures,
equipment or other items of tangible personal property of PVAXX with a
cost basis of at least $20,000 is in working order and repair, ordinary
wear and tear excepted.
2:1:14 TAXES AND RETURNS.
2:1:14:1 To the best of PVAXX's knowledge, PVAXX has (i) filed
all tax returns and reports required to be filed by it and (ii) paid all
taxes, assessments and governmental charges and penalties which it has
incurred and which have become due and payable, except such as are being or
may be contested in good faith by appropriate proceedings or relate to the
fiscal year ended December 31, 1999. To the best of PVAXX's knowledge,
PVAXX is not delinquent in the payment of any material tax, assessment or
governmental charge, and no deficiencies for any taxes have been proposed,
asserted, or formally assessed against PVAXX, and no requests for waivers
of the time to assess any such tax are pending. The PVAXX Financials
reflect an adequate accrual, based on the facts and circumstances existing
as of the date hereof, for all material taxes payable by PVAXX (whether or
not shown in any return) through the date thereof.
2:1:15 EMPLOYMENT PRACTICES.
To the best of PVAXX's knowledge, PVAXX has complied with the Occupational
Safety and Health Act and all other laws relating to equal employment of
labor including, without limitation, laws relating to equal employment
opportunity and employment discriminations, employment of illegal aliens,
wages, hours and collective bargaining, the violation or failure to comply
with which would have a material adverse effect on the business of PVAXX.
Notwithstanding anything here into the contrary, PVAXX has complied with
all laws relating to the collection and payment of social security and
withholding taxes, or both, and similar taxes except where the failure to
comply with such laws would not have a material adverse effect on the
business of PVAXX. To the best of PVAXX's knowledge, PVAXX is not liable
for any arrearage of wages or any taxes or penalties for failure to comply
with any of the foregoing, which would have a material adverse effect on
the business of PVAXX. To the best knowledge of PVAXX, there are no
organizational efforts presently being made or threatened by or on behalf
of any labor union with respect to any employees of PVAXX, which would have
a material adverse effect on the business of PVAXX.
2:1:16 COMPLIANCE WITH LAW.
To the best knowledge of PVAXX, PVAXX is in compliance with and is not in
violation of or in default with respect to, or in alleged violation of or
alleged default with respect to: (a) any applicable law, rule, regulation
or statute applicable to the operations of PVAXX, or (b) any order,
permit, certificate, writ, judgment, injunction, decree, determination,
award or other decision of any court or any Government Entity to which
PVAXX is a party or by which PVAXX is bound, which violation or default or
alleged violation or default would materially and adversely affect the
business, operations, properties, assets, profits or condition of PVAXX.
2:1:17 ENVIRONMENTAL REQUIREMENTS AND HEALTH AND SAFETY REQUIREMENTS.
To the best of PVAXX's knowledge, there are no material claims and
complaints, or reports or other documents related to such material claims
or complaints, in the files of PVAXX made by or against PVAXX during the
past three years pursuant to Environmental Requirements or Health or Safety
Requirements (other than those documents which PVAXX has determined, in
good faith and after consultation with counsel, should remain protected by
the attorney-client privilege). At present, to the best of PVAXX's
knowledge, none of the operations of PVAXX is subject to any judicial or
administrative proceeding, order, judgment, decree or settlement alleging
or addressing a material violation of or a material liability under any
Environmental Requirement or any Health and Safety Requirement.
2:1:18 BOOKS AND RECORDS.
To the best of PVAXX's knowledge, all the records and stock minute books of
PVAXX have been delivered to or made available upon request for inspection
by OAK BROOK. To the best of PVAXX's knowledge, such books and stock
minute books are true and correct in all material respects.
2:1:19 COMPLIANCE WITH ERISA.
Except as set forth in Section 2:1:19 PVAXX has no other benefit plans (the
"Benefit Plans") within the meaning of the applicable provisions of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), the
Code and other applicable laws to the best of PVAXX's knowledge.
2:1:19:1 PROHIBITED TRANSACTIONS.
To the knowledge of PVAXX and all its subsidiaries, PVAXX or any of its
subsidiaries have not engaged in a transaction in connection with which it
could be subject (either directly or indirectly) to a material liability
for either a civil penalty assessed pursuant to Section 502(i) of ERISA or
a tax imposed by Section 4975 of the Code.
2:1:19:2 PLAN TERMINATION; MATERIAL LIABILITIES.
To the best of PVAXX's knowledge, there has been no termination of an
"employee pension benefit plan" as defined in ERISA which is subject to
Title IV of ERISA (a "Statutory Plan") or trust created under any Statutory
Plan that would give rise to a material liability to the Pension Benefit
Guaranty Corporation ("PBGC") on the part of PVAXX or any of its
subsidiaries. To the best knowledge of PVAXX and all of its subsidiaries,
all statutory Plans intended to be tax-qualified under Section 401(a) or
403(a) of the Code have complied in the past, both in form and operation,
with every provision of the Code, regulation promulgated pursuant thereto,
and every ruling, notice or announcement issued by the Internal Revenue
Service necessary to maintain the qualified status of such Statutory
Plans, except where non compliance would not have a material adverse effect
on PVAXX or any of its subsidiaries. No material liability to the PBGC has
been or is expected to be incurred with respect to any Statutory Plan. The
PBGC has not instituted proceedings to terminate any Statutory Plan. To the
best knowledge of PVAXX and all of its subsidiaries, there exists no
condition or set of circumstances which presents a material risk of
termination or partial termination of any Statutory Plan by the PBGC.
2:1:19:3 ACCUMULATED FUNDING DEFICIENCY.
To the best of PVAXX's knowledge, full payment has been made of all
amounts, if any, which are required under the terms of each statutory plan,
ERISA or other applicable laws to have been paid as contributions to such
Statutory Plan, and no accumulated funding deficiency (as defined in
Section 302 of ERISA and Section 412 of the Code), whether or not waived,
exists with respect to any Statutory Plan.
2:1:19:4 RELATIONSHIP OF BENEFITS TO PENSION PLAN ASSETS.
To the best of PVAXX's knowledge, the current value of all accrued
benefits, both vested and unvested, under all Statutory Plans does not
exceed the current value of the assets of such Statutory Plans allocable
to such accrued benefits, except as disclosed in the financial statements
described in Section 2:1:19. For purposes of the representation in this
Section 2:1:19:4, the term "current value" has the meaning specified in
Section 4062(b)(1)(A) of ERISA, the term "accrued benefit" has the meaning
specified in Section 3 of ERISA and "current value" is based upon the same
actuarial assumptions used by OAK BROOK.
2:1:19:5 EXECUTION OF AGREEMENTS.
To the best of PVAXX's knowledge, the execution and delivery of this
Agreement and the Transaction Documents, and the consummation of the
transaction contemplated hereby will not involve any transaction which is
subject to the prohibitions of Section 406 of ERISA or in connection with
which a tax could be imposed pursuant to Section 4975 of the Code.
2:1:19:6 FIDUCIARY LIABILITY.
To the best of PVAXX and its subsidiaries' knowledge, there have been no
acts, failures to act, omissions or transactions involving a Statutory Plan
or the assets thereof which could result in imposition on PVAXX or its
subsidiaries (whether direct or indirect) of material damages or liability
in actions brought under Section 502 or Sections 404 through 409 of ERISA.
2:1:19:7 PENDING CLAIMS.
To the best of PVAXX and its subsidiaries knowledge, there are no claims,
pending or overtly threatened, involving any of the Benefit Plans by any
current or former employee (or beneficiary thereof) of PVAXX which allege
any material violation of ERISA or the terms of the Benefit Plans, nor is
there any reasonable basis to anticipate any such claims involving such
Benefit Plans which would likely be successfully maintained against PVAXX
or any of it subsidiaries.
2:1:19:8 MULTIEMPLOYER PLANS.
To the best of PVAXX's knowledge, neither PVAXX nor any trade or business
(whether or not incorporated) which together with PVAXX or any its
subsidiaries would be deemed to be a "single employer" within the meaning
of Section 400(b) of ERISA or Subsections 414(b), (c), (m) or (o) of the
Code sponsors, maintains, or contributes to, or has at any time in the six
year period proceeding the date of this Agreement sponsored, maintained or
contributed to, any place (not exempt from the provisions of ERISA),
including, but not limited to, any plan which is a "multiemployer plan" as
such term is defined in Section 3(37) or 4001(a)(3) of ERISA.
2:1:19:9 NO REPORTABLE EVENT.
To the best of PVAXX or any of its subsidiaries' knowledge, there has been
no "reportable event" (within the meaning of Section 4043(b) of ERISA with
respect to a Statutory Plan) or any "prohibited transaction" (as such term
is defined in Section 406 of ERISA and Section 4975(c) of the Code) with
respect to any of the Employee Plans. All reporting and disclosure
requirements under Title I of ERISA have been met.
2:1:20 NO UNDISCLOSED DEFAULTS.
To the best knowledge of PVAXX and any of its subsidiaries, neither PVAXX
or any of its subsidiaries is not in material default with respect to any
obligation, agreement or covenant to be performed by it under any contract
or arrangement of any kind, which default would have a material adverse
effect on PVAXX or any of its subsidiaries.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF OAK BROOK
Representations and warranties shall be made by OAK BROOK and shall survive
the Effective Date of the PVAXX Share Exchange for a period of one (1)
year, subject to mutually satisfactory exceptions, claims and caveats:
3:1 REPRESENTATIONS AND WARRANTIES OF OAK BROOK.
OAK BROOK represents and warrants to PVAXX as follows:
3:1:1 ORGANIZATION AND STANDING.
OAK BROOK is a corporation duly organized, validly existing and in good
standing under the laws of the State of Colorado and is duly authorized,
qualified and in good standing under all applicable laws, regulations,
ordinances and orders of public authorities and has all requisite corporate
power and authority to own, lease and operate its properties and to carry
on its business as it is now being conducted, except where the failure to
be so authorized, qualified or licensed would not have a material adverse
effect on the business of OAK BROOK and its subsidiaries, taken as a whole.
OAK BROOK is duly licensed or qualified to do business as a foreign
corporation in each jurisdiction in which the character of its properties,
owned or leased, or the nature of its activities, makes such licensing or
qualification necessary, except for where the failure to be so licensed and
qualified would not have a material adverse effect on the business of OAK
BROOK.
True and correct copies of the Articles of Incorporation (certified by the
Secretary of State of the States of Colorado) and the Bylaws, as amended,
of OAK BROOK (certified by the Secretary of the respective corporations)
are attached hereto as Section 3:1:1 of the Disclosure Schedule.
3:1:2 AUTHORITY.
OAK BROOK has the necessary corporate power and authority to enter into
this Agreement, as well as the Transaction Documents more fully defined in
Section 6:4, and to consummate the transactions contemplated hereby and
thereby. The execution and delivery of this Agreement and the Transaction
Documents, and the completion of the transactions contemplated hereby and
thereby have been duly authorized by corporate action of the part of the
Board of Directors of OAK BROOK, and subject to the majority affirmative
vote of the shareholders pursuant to Article 7-111-101-109 of the Colorado
Business Corporation Act in order to approve this Agreement and the
Transaction Documents, no further corporate proceedings on the part of OAK
BROOK will be necessary. When issued pursuant to this Agreement, the
Shares of OAK BROOK Common Stock and OAK BROOK Preferred Stock to be issued
to PVAXX Shareholders on the Effective Date will be duly authorized,
validly issued, fully paid and non-assessable, and the OAK BROOK Shares to
be issued to PVAXX Shareholders on the Effective Date shall be legally
equivalent in all respects to the OAK BROOK Common Stock issued and
outstanding as of the date hereof. This Agreement has been executed and
delivered by OAK BROOK and constitutes the legal, valid and binding
obligation of OAK BROOK, enforceable in accordance with its terms. As of
the Effective Date, each of the Transaction Documents will constitute a
legal, valid and binding obligation of OAK BROOK, each enforceable in
accordance with its terms.
3:1:3 NO CONFLICT, DEFAULT, BREACH OR VIOLATION.
The execution and delivery of this Agreement does not, and the completion
of the transactions contemplated hereby and thereby will not, conflict with
or result in a breach of or the acceleration of any obligation under, or
constitute a default or event of default (or event which with notice or
lapse of time or both would constitute a default) under, any provision of
any charter, bylaw, indenture, mortgage, lien, lease, agreement, contract,
order, judgment, or, to the best knowledge of OAK BROOK, any judicial or
administrative decree, ordinance or regulation, permit, license, franchise
or any restriction to which any property of OAK BROOK or any of its
subsidiaries is subject or by which OAK BROOK or any of its subsidiaries is
bound, the effect of which would be materially adverse to OAK BROOK and its
subsidiaries taken as a whole. Neither OAK BROOK nor any of its
subsidiaries is alleged to be in violation or default or under any
applicable law, statute, order, rule or regulation promulgated or judgment
entered by any Governmental Entity, relating to or affecting the
operation, conduct or ownership of the property or business of OAK BROOK or
such subsidiaries, which violation or default or alleged violation or
default would have a material, adverse effect, on OAK BROOK and its
subsidiaries taken as a whole.
3:1:4 APPROVALS.
Except for usual and customary compliance with the Securities Act, the
securities or blue sky laws of various states as set forth in Section 3:1:4
of the Disclosure Schedule, no consent, approval, order or authorization
of, or registration, declaration or filing with, any court, administrative
agency or commission or other governmental agency or instrumentality,
domestic or foreign (a "Governmental Entity"), or third party is required
by or with respect to OAK BROOK in connection with the execution and
delivery by OAK BROOK of this Agreement, or the completion of the
transactions contemplated hereby, the absence of which would have a
material adverse effect on OAK BROOK.
3:1:5 SEC DOCUMENTS; FILINGS; FINANCIAL STATEMENTS.
(A) OAK BROOK has delivered to PVAXX accurate and complete copies
(excluding copies of exhibits) of each report, registration
statement (on a form other than Form S-8) and definitive proxy
statement filed by OAK BROOK with the SEC between May 1, 1998 and
the date of this Agreement (the "OAK BROOK SEC Documents"). As
of the time it was filed with the SEC (or, if amended or
superseded by a filing prior to the date of this Agreement, then
on the date of such filing): (i) each of the OAK BROOK SEC
Documents complied in all material respects with the applicable
requirements of the Securities Act or the Exchange Act (as the
case may be); and (ii) none of the OAK BROOK SEC Documents
contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(B) The consolidated financial statements contained in the OAK
BROOK SEC Documents: (i) complied as to form in all material
respects with the published rules and regulations of the SEC
applicable thereto; (ii) were prepared in accordance with GAAP
applied on a consistent basis throughout the periods covered,
except as may be indicated in the notes to such financial
statements and (in the case of unaudited statements) as permitted
by Form 10-QSB of the SEC, and except that unaudited financial
statements may not contain footnotes and are subject to year-end
audit adjustments; and (iii) fairly present the consolidated
financial position of OAK BROOK and its subsidiaries as of the
respective dates thereof and the consolidated results of
operations of OAK BROOK and its subsidiaries for the periods
covered thereby.
3:1:6 CAPITALIZATION OF OAK BROOK.
The authorized capital stock of OAK BROOK consists of forty million
(40,000,000) shares of no par value OAK BROOK Common Stock, of which one
million three hundred twenty-eight thousand (1,328,000) shares are
outstanding and owned by OAK BROOK, and ten million (10,000,000) shares of
OAK BROOK Preferred Stock, no par value, of which no shares are
outstanding.
All of the issued and outstanding shares of capital stock of OAK BROOK have
been duly and validly authorized and validly issued and are fully paid and
non-assessable. As of the date hereof, except as disclosed herein, there
are no authorized or outstanding subscriptions, options, conversion
rights, warrants or other agreements, securities or commitments of any
nature whatsoever (whether oral or written and whether firm or
conditional) obligating OAK BROOK or any of its subsidiaries to issue,
deliver or sell, or cause to be issued, delivered or sold, to any person
any shares of OAK BROOK Common Stock, OAK BROOK Preferred Stock or any
other shares of the capital stock of OAK BROOK or any shares of the capital
stock of any of its subsidiaries, or any securities convertible into or
exchangeable for any such shares, or obligating any such person to grant,
extend or enter into any such agreement or commitment. Except as set
forth in Section 3:1:8 of the Disclosure Schedule, there are no agreements
obligating OAK BROOK to redeem, repurchase or otherwise acquire the capital
stock of OAK BROOK, or any other securities issued by it, or to register
the sale of the capital stock of OAK BROOK under applicable securities
laws. Except as set forth in Section 3:1:6 of the Disclosure Schedule,
there are no agreements or arrangements prohibiting or otherwise
restricting the payment of dividends or distributions to the OAK BROOK
Shareholders by OAK BROOK.
3:1:7 INFORMATION SUPPLIED.
To the best knowledge of OAK BROOK, no written statement, certificate,
schedule, list or other written information furnished by or on behalf of
OAK BROOK to PVAXX on or prior to the date hereof in connection herewith
contains (after giving effect to any correction thereof furnished to PVAXX
in writing prior to the date hereof) any untrue statement of a material
fact or omits or will omit to state a material fact required to be stated
herein or therein or necessary to make the statements herein or therein, in
light of the circumstances under which they were made, not misleading.
3:1:8 TITLE TO ASSETS; ENCUMBRANCES.
3:1:8:1 Except as set forth in Section 3:1:8 of the Disclosure
Schedule, OAK BROOK and its subsidiaries own their respective assets,
whether real, personal or intangible, free and clear of all Encumbrances,
except (i) liens for current taxes and assessments not yet due or being
contested in good faith by appropriate proceedings, (ii) mechanic's liens
arising under the operation of law or for actions contested in good faith
or for which payment arrangements have been made, (iii) liens granted or
incurred by OAK BROOK or any of its subsidiaries in the ordinary course of
its business or in connection with the financing of office space,
furniture and equipment in the ordinary course of its business, (iv)
easements, covenants, restrictions and other exceptions to title of record
which do not materially and adversely affect the operations of OAK BROOK
and its subsidiaries, (v) such Encumbrances as do not secure indebtedness
in excess of $10,000, which in the aggregate (meaning as to OAK BROOK and
all of its subsidiaries) do not secure indebtedness in excess of $10,000,
or are otherwise described in Section 3:1:8 of the Disclosure Schedule, or
(vi) Encumbrances reflected in the SEC Documents;
3:1:8:2 Except as set forth in the 10-KSB for the period ended
December 31, 1999 ("10-K") or Section 3:1:8 of the Disclosure Schedule,
there are no parties in possession of any of the assets of OAK BROOK or its
subsidiaries other than OAK BROOK or such subsidiaries, other than personal
property held by third parties in the reasonable and ordinary course of
business. Except as set forth in the 10-K or Section 3:1:8 of the
Disclosure Schedule, OAK BROOK and each of its subsidiaries enjoy full,
free and exclusive use and quiet enjoyment of their respective assets and
all rights pertaining thereto, and OAK BROOK and its subsidiaries enjoy
peaceful and undisturbed possession under all leases under which any of
them is lessee.
3:1:9 SUBSIDIARIES.
Section 3:1:9 of the Disclosure Schedule sets forth a complete and correct
list of each subsidiary of OAK BROOK, together with the jurisdiction of
incorporation or organization of such subsidiary and the percentage of each
such subsidiary's outstanding capital stock or other equity interest owned
by OAK BROOK or another subsidiary of OAK BROOK.
Except as set forth in the 10-K or Section 3:1:9 of the Disclosure
Schedule, OAK BROOK owns all of the securities of each of its operating
subsidiaries, free and clear of all Encumbrances, and all capital stock of
such subsidiaries has been duly authorized and validly issued and is fully
paid and nonassessable. None of the subsidiaries has any commitment to
issue or sell any shares of its capital stock, or any securities or
obligations convertible into or exchangeable for, or to give any person
other than OAK BROOK any right to acquire from it, any shares of its
capital stock. Each subsidiary is a corporation duly organized validly
existing and in good standing under the laws of its jurisdiction of
incorporation, has the corporate power and all necessary authorizations to
own all of its properties and assets and to carry on its business as it is
now being conducted, and, to the extent required by law, is duly qualified
to do business and is in good standing in each jurisdiction in which it
owns property or conducts business, except where the failure to have such
authorization or to be so qualified would not have a material adverse
effect on the business or operations of OAK BROOK and its subsidiaries as a
whole.
3:1:10 LITIGATION.
Except as set forth in the 10-K or Section 3:1:10 of the Disclosure
Schedule, there is no suit, action, proceeding or investigation pending or,
to the best knowledge of OAK BROOK, threatened against or affecting OAK
BROOK or any of its subsidiaries (or any of its officers or directors in
connection with the business of OAK BROOK or any of its subsidiaries), nor
is there any outstanding judgment, order, writ, injunction or decree
against OAK BROOK or any of its subsidiaries, which suit, action,
proceeding or investigation had or could reasonably be expected to have a
material adverse effect on OAK BROOK and its subsidiaries, taken as a
whole. Except as set forth in the SEC Documents or Section 3:1:10 of the
Disclosure Schedule, to the best knowledge of OAK BROOK: (i) there are no
facts upon which any action, suit or proceeding could be brought against
OAK BROOK or any of its subsidiaries that would have a material adverse
effect on OAK BROOK; and (ii) neither OAK BROOK nor any of its
subsidiaries is subject to any court order, writ, injunction, decree,
settlement agreement or judgment that contains or orders any ongoing
obligations, whether prohibitory or mandatory in nature, on the part of OAK
BROOK or its subsidiaries.
3:1:11 ENVIRONMENTAL REQUIREMENTS AND HEALTH AND SAFETY REQUIREMENTS.
To the best of OAK BROOK's knowledge, Section 3:1:11 of the Disclosure
Schedule sets forth true, correct and complete copies of all material
claims and complaints, or reports or other documents related to such
material claims or complaints, in the files of OAK BROOK made by or against
OAK BROOK during the past three years pursuant to Environmental
Requirements or Health or Safety Requirements (other than those documents
which OAK BROOK has determined, in food faith and after consultation with
counsel, should remain protected by the attorney-client privilege). At
present, to the best of OAK BROOK's knowledge, none of the operations of
OAK BROOK are subject to any judicial or administrative proceeding, order,
judgment, decree or settlement alleging or addressing a material violation
of or a material liability under any Environmental Requirement or any
Health and Safety Requirement, except as set forth in Section 3:1:11 of the
Disclosure Schedule.
3:1:12 ABSENCE OF UNDISCLOSED LIABILITIES.
To the best of OAK BROOK's knowledge, except as set forth in Section 3:1:12
of the Disclosure Schedule, OAK BROOK has no liabilities or obligations,
either accrued, absolute, contingent, or otherwise, required to be but not
reflected or reserved against in the OAK BROOK Financials in accordance
with generally accepted accounting principles, except those incurred in the
ordinary course of business, and OAK BROOK knows of no potential liability
that would result in material adverse effect on the value or business of
OAK BROOK other than those (a) reflected or reserved against in the OAK
BROOK Financials, (b)incurred in the ordinary course of business since
December 31, 1999 or (c) set forth in Section 3:1:12 of the Disclosure
Schedule.
3:1:13 FINANCIAL STATEMENTS.
OAK BROOK has furnished to PVAXX true, complete and correct copies of the
financial statements of OAK BROOK, at and for the fiscal year ended
December 31, 1999 and for the interim period ended March 31, 2000 (which
financial statements consist of at least a balance sheet, income
statement, and statements of operations, cash flows and changes in
stockholders equity, and which interim unaudited financial statements
consist of at least a balance sheet, income statement, and statement of
operations, and will deliver an interim unaudited balance sheet as of March
31, 2000 (all of these financial statements being collectively referred to
herein as the "OAK BROOK Financials"). The OAK BROOK Financials will be in
accordance with the books and records of OAK BROOK, comply as to form in
all material respects with applicable accounting requirements, have been
prepared in accordance with generally accepted accounting principles
applied on a consistent basis during the periods involved (except as may be
indicated in the notes thereto) and fairly present the financial position
of OAK BROOK as at the date thereof. Since December 31, 1999, there has
not been, occurred or arisen (a) any material adverse change in the
business or the consolidated financial condition of OAK BROOK and its
subsidiaries, considered as a whole, from that shown on the aforementioned
balance sheet as of December 31, 1999, or (b) any event, condition or state
of facts of any character which, to the best of the knowledge of OAK BROOK,
materially and adversely affects, or threatens to materially and adversely
affect, the business or results of operations or financial condition of OAK
BROOK and its subsidiaries, considered as a whole.
3:1:14 CONTRACTS.
All contracts, agreements and commitments of OAK BROOK, whether or not made
in the ordinary course of business, including leases under which OAK BROOK
is lessor or lessee, which are to be performed in whole or in part after
the Effective Date, and which (i)involve or may involve aggregate payments
by or to OAK BROOK of $10,000 or more after the Effective Date, (ii) are
not terminable by OAK BROOK without premium or penalty on 60 (or fewer)
days' notice, (iii)purport to prohibit or restrict the ability of OAK BROOK
to participate or compete in any material line of business or with any
person, (iv) purport to prohibit or restrict another person's ability to be
in the line of business of OAK BROOK or to compete with OAK BROOK or (v)
are otherwise material to the business or properties of OAK BROOK. To the
best of OAK BROOK's knowledge, except as set forth on Schedule 3:1:14 of
the Disclosure Schedule, OAK BROOK has complied with all commitments,
contracts, agreements and obligations pertaining to it listed on Section
3:1:14 of the Disclosure Schedule and is not in material default under any
such contracts and agreements and no notice of material default has be
received.
3:1:15 INSURANCE POLICIES.
All (i) policies of property, fire and casualty, product liability,
worker's compensation, professional liability and title insurance and
other forms of insurance, under which OAK BROOK is insured, and (ii) bonds
issued or posted by any person which respect to any operation or other
activities of OAK BROOK are in full force and effect on the date hereof.
3:1:16 TRANSACTIONS WITH MANAGEMENT.
All material contracts, leases and commitments by and between OAK BROOK and
any of its officers, directors, stockholders, employees, or agents, or any
affiliate of any such person are set forth in Section 3:1:16 of the
Disclosure Schedule, and none of the officers, directors, stockholders, or
employees of OAK BROOK owns, leases or licenses any interest in any asset
used by OAK BROOK in its business, other than solely by and through
ownership of the capital stock of OAK BROOK.
3:1:17 COMPLIANCE WITH ERISA.
Each benefit plan set forth in Section 3:1:17 of the Disclosure Schedule
(collectively the "Benefit Plans") substantially complies with the
applicable provisions of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), the Code and other applicable laws. Except as
provided in Section 3:1:17 of the Disclosure Schedule, all contributions
required to be made to each Benefit Plan under the terms of such Benefit
Plans, ERISA or other applicable laws have been timely made. Except as
provided in Section 3:1:17 of the Disclosure Schedule.
3:1:17:1 PROHIBITED TRANSACTIONS.
To the knowledge of OAK BROOK, OAK BROOK has not engaged in a transaction
in connection with which it could be subject (either directly or
indirectly) to a material liability for either a civil penalty assessed
pursuant to Section 502(i) of ERISA or a tax imposed by Section 4975 of
the Code.
3:1:17:2 PLAN TERMINATION; MATERIAL LIABILITIES.
There has been no termination of an "employee pension benefit plan" as
defined in ERISA which is subject to Title IV of ERISA (a "Statutory Plan")
or trust created under any Statutory Plan that would give rise to a
material liability to the Pension Benefit Guaranty Corporation ("PBGC") on
the part of OAK BROOK. To the best knowledge of OAK BROOK, all OAK BROOK
statutory Plans intended to be tax-qualified under Section 401(a) or 403(a)
of the Code have complied in the past, both in form and operation, with
every provision of the Code, regulation promulgated pursuant thereto, and
every ruling, notice or announcement issued by the Internal Revenue
Service necessary to maintain the qualified status of such Statutory
Plans, except where non-compliance would not have a material adverse effect
on OAK BROOK. No material liability to the PBGC has been or is expected to
be incurred with respect to any Statutory Plan. The PBGC has not instituted
proceedings to terminate any Statutory Plan. To the best knowledge of OAK
BROOK, there exists no condition or set of circumstances which presents a
material risk of termination or partial termination of any Statutory Plan
by the PBGC.
3:1:17:3 ACCUMULATED FUNDING DEFICIENCY.
Except as provided in Section 3:1:17:3 of the Disclosure Schedule, full
payment has been made of all amounts which are required under the terms of
each statutory plan, ERISA or other applicable laws to have been paid as
contributions to such Statutory Plan, and no accumulated funding
deficiency (as defined in Section 302 of ERISA and Section 412 of the
Code), whether or not waived, exists with respect to any Statutory Plan.
3:1:17:4 RELATIONSHIP OF BENEFITS TO PENSION PLAN ASSETS.
The current value of all accrued benefits, both vested and unvested, under
all Statutory Plans does not exceed the current value of the assets of
such Statutory Plans allocable to such accrued benefits, except as
disclosed in the financial statements described in Section 3:1:17. For
purposes of the representation in this Section 3:1:17:4, the term "current
value" has the meaning specified in Section 4062(b)(1)(A) of ERISA, the
term "accrued benefit" has the meaning specified in Section 3 of ERISA and
"current value" is based upon the same actuarial assumptions used by OAK
BROOK.
3:1:17:5 EXECUTION OF AGREEMENTS.
The execution and delivery of this Agreement and the Transaction Documents,
and the consummation of the transaction contemplated hereby will not
involve any transaction which is subject to the prohibitions of Section 406
of ERISA or in connection with which a tax could be imposed pursuant to
Section 4975 of the Code.
3:1:17:6 FIDUCIARY LIABILITY.
To the best of OAK BROOK's knowledge, there have been no acts, failures to
act, omissions or transactions involving a Statutory Plan or the assets
thereof which could result in imposition on OAK BROOK (whether direct or
indirect) of material damages or liability in actions brought under Section
502 or Sections 404 through 409 of ERISA.
3:1:17:7 PENDING CLAIMS.
To the best of OAK BROOK's knowledge, there are no claims, pending or
overtly threatened, involving any of the Benefit Plans by any current or
former employee (or beneficiary thereof) of OAK BROOK which allege any
material violation of ERISA or the terms of the Benefit Plans, nor is there
any reasonable basis to anticipate any such claims involving such Benefit
Plans which would likely be successfully maintained against OAK BROOK.
3:1:17:8 MULTIEMPLOYER PLANS.
Except as may be set forth in Schedule 3:1:17 of the Disclosure Schedule,
neither OAK BROOK nor any trade or business (whether or not incorporated)
which together with OAK BROOK would be deemed to be a "single employer"
within the meaning of Section 400(b) of ERISA or Subsections 414(b), (c),
(m) or (o) of the Code sponsors, maintains, or contributes to, or has at
any time in the six year period proceeding the date of this Agreement
sponsored, maintained or contributed to, any place (not exempt from the
provisions of ERISA), including, but not limited to, any plan which is a
"multiemployer plan" as such term is defined in Section 3(37) or 4001(a)(3)
of ERISA.
3:1:17:9 NO REPORTABLE EVENT.
To the best of OAK BROOK's knowledge, there has been no "reportable event"
(within the meaning of Section 4043(b) of ERISA with respect to a
Statutory Plan) or any "prohibited transaction" (as such term is defined in
Section 406 of ERISA and Section 4975(c) of the Code) with respect to any
of the Employee Plans. All reporting and disclosure requirements under
Title I of ERISA have been met.
3:1:18 NO UNDISCLOSED DEFAULTS.
Except as set forth in Section 3:1:18 of the Disclosure Schedule, to the
best knowledge of OAK BROOK, OAK BROOK is not in material default with
respect to any obligation, agreement or covenant to be performed by it
under any contract or arrangement of any kind, including, without
limitation, those described in Section 3:1:18 of the Disclosure Schedule,
which default would have a material adverse effect on OAK BROOK.
3:1:19 TAXES AND RETURNS.
3:1:19:1 Except as set forth on Section 3:1:10 of the Disclosure
Schedule, OAK BROOK has (i) filed all tax returns and reports required to
be filed by it and (ii) paid all taxes, assessments and governmental
charges and penalties which it has incurred and which have become due and
payable, except such as are being or may be contested in good faith by
appropriate proceedings or relate to the fiscal year ended December 31,
1999. Except as set forth on Section 3:1:19 of the Disclosure Schedule,
OAK BROOK is not delinquent in the payment of any material tax, assessment
or governmental charge, and no deficiencies for any taxes have been
proposed, asserted, or formally assessed against OAK BROOK, and no requests
for waivers of the time to assess any such tax are pending, the OAK BROOK
Financials reflect an adequate accrual, based on the facts and
circumstances existing as of the date hereof, for all material taxes
payable by OAK BROOK (whether or not shown in any return) through the date
thereof. Except as set forth in Section 3:1:19 of the Disclosure Schedule,
all tax returns and taxes for periods after December 31, 1999 have or will
be filed and paid by OAK BROOK on a timely basis, unless said taxes are
being contested in good faith by appropriate proceedings.
3:1:20 COMPLIANCE WITH LAW.
Except as set forth in Section 3:1:20 or any other Section of the
Disclosure Schedule, to the best knowledge of OAK BROOK, OAK BROOK is in
compliance with and is not in violation of or in default with respect to,
or in alleged violation of or alleged default with respect to: (a) any
applicable law, rule, regulation or statute applicable to the operations of
OAK BROOK, or (b) any order, permit, certificate, writ, judgment,
injunction, decree, determination, award or other decision of any court or
any Government Entity to which OAK BROOK is a party or by which OAK BROOK
is bound, which violation or default or alleged violation or default would
materially and adversely affect the business, operations, affairs,
prospects, properties, assets, profits or condition of OAK BROOK. To the
best knowledge of OAK BROOK, OAK BROOK is not delinquent with respect to
(a) any report required to be filed with any Governmental Entity or (b)
the preparation and delivery of any reports required by private agreements
to which OAK BROOK is a party, which delinquency might materially and
adversely affect the business, operations, affairs, prospects, properties,
assets, profits, conditions of OAK BROOK.
3:1:21 ENVIRONMENTAL REQUIREMENTS AND HEALTH AND SAFETY REQUIREMENTS.
To the best of OAK BROOK's knowledge, Section 3:1:21 of the Disclosure
Schedule sets forth true, correct and complete copies of all material
claims and complaints, or reports or other documents related to such
material claims or complaints, in the files of OAK BROOK made by or against
OAK BROOK during the past three years pursuant to Environmental
Requirements or Health or Safety Requirements (other than those documents
which OAK BROOK has determined, in good faith and after consultation with
counsel, should remain protected by the attorney-client privilege). At
present, to the best of OAK BROOK's knowledge, none of the operations of
OAK BROOK or OAK BROOK Subsidiary is subject to any judicial or
administrative proceeding, order, judgment, decree or settlement alleging
or addressing a material violation of or a material liability under any
Environmental Requirement or any Health and Safety Requirement, except as
set forth in Section 3:1:21 of the Disclosure Schedule.
3:1:22 AGREEMENTS, CONTRACTS AND COMMITMENTS.
Except as set forth in Section 3:1:22 of the Disclosure Schedule, OAK BROOK
is not a party to (a) any collective bargaining agreement, (b) any bonus,
deferred compensation, pension, profit-sharing, or retirement plan or other
arrangement, (c) any employment or other agreement, contract, or commitment
requiring OAK BROOK to pay any employee more than $100,000 a year or any
severance pay in excess of four weeks' salary, (d) any agreement of
guarantee or indemnification which involves, singly or together with other
such agreements, a potential material liability, (e) any agreement,
contract, or commitment which, to the best of the knowledge of OAK BROOK,
might reasonably be expected to have a potential material adverse impact on
the business, financial condition or earnings of OAK BROOK, (f) any
agreement, contract, or commitment containing any covenant limiting the
freedom of OAK BROOK to engage in any line of business in any area of the
world or to compete with any person, (g) any agreement, contract, or
commitment relating to capital expenditures and involving future payments
which, together with future payments under all other agreements, contracts,
or commitments relating to the same capital project, exceed $500,000, (h)
any agreement, contract, or commitment (other than leases of real property)
relating to the acquisition of assets or capital stock of any business
enterprise, (i) any agreement, contract, or commitment which involves
$500,000 or more, or which has a remaining term (including options of
renewal or extension to the extent exercisable by a person other than OAK
BROOK) of three years or more from the date hereof, or which is not
cancelable without penalty of less than $25,000, or (j) any other agreement
or contract which OAK BROOK would be required to file with the Securities
and Exchange Commission ("SEC") as an exhibit were OAK BROOK to file with
the SEC on the date hereof a registration statement on Form SB-1 or SB-2
covering securities to be offered by OAK BROOK to the public. To the best
of the knowledge of OAK BROOK, it has not in any material respect breached,
nor are there any pending or threatened claim or any legal basis for a
claim that it has breached, any of the terms or conditions of (1) any
agreement contract or commitment set forth in any of the schedules
heretofore delivered by OAK BROOK to PVAXX pursuant to this agreement or
(2) any other agreement, contract or commitment, the breach or breaches of
which singly or in the aggregate could result in the imposition of damages
in an amount material to OAK BROOK.
3:1:23 INTELLECTUAL PROPERTY
Section 3:1:23 of the Disclosure Schedule furnished by OAK BROOK to PVAXX
correctly sets forth a list of all letters patent, patent applications,
inventions upon which patent applications have not yet been filed, trade
names, trademarks, trademark registrations and applications, copyrights,
copyright registrations and applications, both domestic and foreign,
presently owned, possessed, used or held by OAK BROOK. Unless otherwise
indicated in such schedule, OAK BROOK owns the entire right, title and
interest in and to the same. Such schedule also correctly sets forth a
list of all licenses granted/software sales to others by OAK BROOK. All
letters patent, patent applications, trade names, trademarks, trademark
registrations and applications, copyrights, copyright registrations, and
applications, and grants of licenses set forth in such schedule are subject
to no pending or, to the best of the knowledge of OAK BROOK threatened
challenge except as set forth in said schedule, and neither the execution
and delivery of this agreement or of the Articles of Share Exchange not the
consummation of this agreement will give any licensor or licensee of OAK
BROOK any right to change the terms or provisions of, or terminate or
cancel, any license to which is a party. OAK BROOK has not agreed to
indemnify any person for or against any infringement of any patent,
trademark, or copyright except as shown on Section 3:1:23 of the Disclosure
Schedule.
3:1:24 BROKERS' OR FINDERS' FEES
No agent, broker, person or firm acting on behalf of OAK BROOK or under its
authority is or will be entitled to any commission, broker, finder, or
financial advisory fees from any of the parties hereto in connection with
any of the transactions contemplated herein.
ARTICLE IV
OBLIGATIONS PENDING EFFECTIVE DATE
4:1 AGREEMENTS OF PVAXX.
PVAXX agrees that from the date hereof to and through the Effective Date,
PVAXX will:
4:1:1 CORPORATE APPROVALS.
Use its best efforts for the purpose of authorizing and obtaining the
consent of the PVAXX Shareholders to this Agreement and the Share Exchange
contemplated hereby.
4:1:2 MAINTENANCE OF PRESENT BUSINESS.
Except as contemplated by this Agreement, operate its business only in the
usual, regular, and ordinary manner so as to maintain the goodwill it now
enjoys and, to the extent consistent with such operation, use all
reasonable efforts to preserve intact its present business organization,
keep available the services of its present officers and employees, and
preserve its relationship with all material customers, suppliers, jobbers,
distributors, and others having business dealings with it. If PVAXX
proposes to secure a waiver of this covenant from OAK BROOK with respect to
a particular transaction, PVAXX shall be deemed in compliance with this
covenant if the President of OAK BROOK or his successor does not deliver to
PVAXX his objection in writing to any action described in such waiver
request within 72 hours of receiving notice of such waiver request from
PVAXX.
4:1:3 MAINTENANCE OF PROPERTIES.
At its expense, maintain all of its property and assets in customary (for
PVAXX) repair, order, and condition, reasonable wear and use and damage by
fire or unavoidable casualty excepted.
4:1:4 MAINTENANCE OF BOOKS AND RECORDS.
Maintain its books of account and records in the usual, regular, and
ordinary manner, in accordance with generally accepted accounting
principles applied on a consistent basis.
4:1:5 COMPLIANCE WITH LAW.
Continue to conduct its activities in a manner consistent with its current
understanding of the laws applicable to it, unless and until it receives
written notice from a Governmental Entity that it is not in compliance with
a particular law or laws, at which time PVAXX will modify its conduct to
comply with such law or laws.
4:1:6 INSPECTION.
Allow OAK BROOK, and their directors, officers and authorized
representatives, during normal business hours, to inspect its records and
to consult with its officers, employees, attorneys, and agents for the
purpose of determining the accuracy of the representations and warranties
made, and the compliance with covenants contained, in this Agreement. OAK
BROOK agrees that it and their officers and representatives shall hold all
data and information obtained with respect to the other parties hereto in
strict confidence, and each further agrees that it will not use such data
or information or disclose the same to others, except to the extent such
date or information either is, or becomes, published or a matter of public
knowledge.
OAK BROOK and PVAXX agree that they will not issue any press release or
other disclosure of this Agreement without the prior approval of the other,
which shall not be unreasonably withheld, unless, in the good faith opinion
of counsel, such disclosure is required by law and time does not permit the
obtaining of such consent, or such consent is withheld.
In the event of a breach or threatened breach by OAK BROOK or their
officers or representatives of the provision of this Section, PVAXX shall
be entitled, in addition to any other available remedy, to an injunction
restraining any disclosure by OAK BROOK, or their officers or
representatives of any of such confidential information.
4:1:7 PROHIBITION OF CERTAIN CONTRACTS.
Not enter into any contracts outside of the ordinary course of business
without the prior written consent of OAK BROOK, which consent will not be
unreasonably withheld. If PVAXX proposes to secure a waiver of this
covenant from OAK BROOK with respect to a particular transaction, PVAXX
shall be deemed in compliance with this covenant if the President of OAK
BROOK or his successor does not deliver to PVAXX his objection in writing
to any action described in such waiver request within 72 hours of receiving
notice of such waiver request from PVAXX.
4:1:8 PROHIBITION OF LOANS.
Not incur any borrowings, except in the usual and ordinary course of
business, without the prior written consent of OAK BROOK, which consent
will not be unreasonably withheld.
4:1:9 PROHIBITION OF CERTAIN COMMITMENTS.
Not enter into a commitment for expenditures or incur any liability
exceeding $25,000, in the aggregate, except (i) as may be necessary or
desirable for the maintenance of existing facilities, machinery and
equipment in the ordinary course of business or in connection with measures
taken to effect the Share Exchange, as described herein, (ii) as in
otherwise consented to in writing by OAK BROOK, or (iii) as may otherwise
be in the ordinary course of business.
4:1:10 DISPOSAL OF ASSETS.
The company shall not sell, dispose of, or encumber, any property or
assets, except (i) in the usual and ordinary course of business; or (ii)
as is otherwise consented to in writing by OAK BROOK or authorized
hereunder.
4:1:11 MAINTENANCE OF INSURANCE.
Keep in full force and effect present insurance policies or other
comparable coverage on all its properties.
4:1:12 NO AMENDMENT TO ARTICLES OF INCORPORATION.
Not amend its certificate of incorporation or merge or consolidate with or
into any other corporation or change in any manner the rights of its
capital stock or the character of its business.
4:1:13 NO ISSUANCE, SALE, OR PURCHASE OF SECURITIES.
Except as contemplated by this Agreement, not issue or sell, or issue
options or rights to subscribe to, or enter into any contract or commitment
to issue or sell (upon conversion or otherwise), any shares of its capital
stock, or subdivide or in any way reclassify any shares of its capital
stock, or acquire, or agree to acquire, any shares of its capital stock.
4:1:14 PROHIBITION OF DIVIDENDS.
Not declare or pay any dividend on shares of its capital stock or make any
other distribution of assets to the holders thereof.
4:1:15 NOTICE OF MATERIAL DEVELOPMENTS.
Promptly notify OAK BROOK in writing of any material adverse change in, or
any changes which in the aggregate would likely result in a material
adverse change in, the business, properties, condition (financial or
otherwise) or results of operations of PVAXX, whether or not occurring in
the usual and ordinary course of its business, but only to the extent
PVAXX has actual knowledge of any such changes.
4:2 AGREEMENTS OF OAK BROOK.
OAK BROOK agrees that from the date hereof to the Effective Date, it will:
4:2:1 CORPORATE APPROVALS.
Obtain a majority affirmative vote of its shareholders to approve the
Transaction contemplated herein.
4:2:2 MAINTENANCE OF PRESENT BUSINESS.
Except as contemplated by this Agreement, operate its business and the
businesses of its subsidiaries only in the usual, regular, and ordinary
manner so as to maintain the goodwill they now enjoy and, to the extent
consistent with such operation, use all reasonable efforts to preserve
intact their present business organization, keep available the services of
their present officers and employees, and preserve their relationships with
customers, suppliers, jobbers, distributors, and others having business
dealings with them.
4:2:3 MAINTENANCE OF BOOKS AND RECORDS.
Maintain the books of account and records of OAK BROOK and each of its
subsidiaries in the usual, regular, and ordinary manner, in accordance with
generally accepted accounting principles applied on a consistent basis.
4:2:4 COMPLIANCE WITH LAW.
Continue, and cause its subsidiaries to continue, to conduct its and their
activities in a manner consistent with OAK BROOK's current understanding of
the laws applicable to said entities, unless and until OAK BROOK receives
written notice from a Government Entity that said entities are not in
compliance with a particular law or laws, at which time OAK BROOK will
cause said entity or entities to comply with such law or laws.
4:2:5 INSPECTION.
Allow PVAXX and its directors officers and authorized representatives,
during normal business hours, to inspect its and each of its subsidiaries'
records and to consult with its and each of its subsidiaries' officers,
employees, attorneys, and agents for the purpose of determining the
accuracy of the representations and warranties made, and the compliance
with covenants contained, in this Agreement. PVAXX agrees that it and its
officers and representatives shall hold all data and information obtained
with respect to the other parties hereto in strict confidence, and each
further agrees that it will not use such data or information or disclose
the same to others, except to the extent such data or information either
is, or becomes, published or a matter of public knowledge. In the event of
a breach or threatened breach by PVAXX or its officers or representatives
of the provisions of this Section, OAK BROOK shall be entitled, in addition
to any other available remedy, to an injunction restraining any disclosure
by PVAXX or its officers or representatives of any of such confidential
information.
4:2:6 PROHIBITION OF CERTAIN CONTRACTS.
Give prompt written notice to PVAXX of any material contracts of OAK BROOK
or any of its subsidiaries, except those entered into in the ordinary
course of business. In any event, OAK BROOK shall promptly give written
notice to PVAXX and receive the express written consent for any stock or
asset acquisition by OAK BROOK or any of its subsidiaries.
4:2:7 PROHIBITION OF LOANS.
Give prompt written notice to PVAXX and receive the express written consent
for any borrowings of OAK BROOK or any of its subsidiaries, except those
made in the usual and ordinary course of business.
4:2:8 DISPOSAL OF ASSETS.
Give prompt written notice to PVAXX and receive the express written consent
for any sale, disposal of, or Encumbrance on, any property or assets of OAK
BROOK or any of its subsidiaries, except in the usual and ordinary course
of business.
4:2:9 MAINTENANCE OF INSURANCE.
Keep in full force and effect present insurance policies or other
comparable coverage on all of the assets of OAK BROOK and all of its
subsidiaries.
4:2:10 NO AMENDMENTS TO ARTICLES OF INCORPORATION.
Not amend its Articles of Incorporation, or merge into any other
corporation.
4:2:11 NOTICE OF MATERIAL DEVELOPMENTS.
Promptly notify PVAXX in writing of any material adverse change in, or any
changes which in the aggregate would likely result in a material adverse
change in, the business, properties, condition (financial or otherwise),
results of operations or prospects of OAK BROOK or any of its subsidiaries,
whether or not occurring in the usual and ordinary course of business, but
only to the extent OAK BROOK or any of such subsidiaries has actual
knowledge of any such changes.
4:2:12 PERFORMANCE OF CONTRACTS.
Perform and/or cause to be performed all material obligations of OAK BROOK
or any of its subsidiaries under agreements relating to or affecting their
respective assets, properties or rights.
ARTICLE V
ADDITIONAL COVENANTS OF THE PARTIES
5:1 FILINGS AND CONSENTS.
As promptly as practicable after the execution of this Agreement, each
party to this Agreement (a) shall make all filings (if any) and give all
notices (if any) required to be made and given by such party in connection
with the PVAXX Share Exchange and the other transactions contemplated by
this Agreement, and (b) shall use all commercially reasonable efforts to
obtain all Consents (if any) required to be obtained (pursuant to any
applicable Legal Requirement or Contract, or otherwise) by such party in
connection with the PVAXX Share Exchange and the other transactions
contemplated by this Agreement, other than those Consents identified on
Section 2.25 of the Disclosure Schedule. PVAXX shall (upon request)
promptly deliver to OAK BROOK a copy of each such filing made, each such
notice given and each such Consent obtained by PVAXX during the Pre-Closing
Period.
5:2 PUBLIC ANNOUNCEMENTS.
After the date hereof, (a) PVAXX shall not (and PVAXX shall not permit any
of its Representatives to) issue any press release or make any public
statement regarding this Agreement or the Share Exchange, or regarding any
of the other transactions contemplated by this Agreement, without OAK
BROOK's prior written consent, and (b) OAK BROOK shall not (and OAK BROOK
shall not permit any of its Representatives to) issue any press release or
make any public statement regarding this Agreement or the Share Exchange,
or regarding any of the other transactions contemplated by this Agreement,
without PVAXX's prior written consent
5:3 BEST EFFORTS.
During the Pre-Closing Period, OAK BROOK and PVAXX shall use their best
efforts to cause the conditions set forth in Section 6 to be satisfied on a
timely basis.
5:4 EMPLOYMENT AND CONSULTING AGREEMENTS.
At or prior to the Closing, Henry Stevens and Bryan Wade shall execute and
deliver employment and/or consulting agreements in the forms attached
hereto at Appendix V (the "Employment Agreements").
5:5 FIRPTA MATTERS.
At the Closing, (a) OAK BROOK shall deliver a statement (in such form as
may be reasonably requested by counsel to OAK BROOK) conforming to the
requirements of Section 1.897 - 2(h)(1)(i) of the United States Treasury
Regulations, and (b) PVAXX shall deliver to the IRS the notification
required under Section 1.897 - 2(h)(2) of the United States Treasury
Regulations.
5:6 INVESTMENT REPRESENTATION LETTER.
At the Closing, each of the PVAXX Shareholders shall execute and deliver to
PVAXX an investment representation letter in the form attached hereto at
Appendix VI (an "Investment Representation Letter").
ARTICLE VI
CONDITIONS TO THE OBLIGATIONS OF OAK BROOK AND PVAXX
The obligations of OAK BROOK and PVAXX to effect the PVAXX Share Exchange
and otherwise consummate the transactions contemplated by this Agreement
are subject to the satisfaction, at or prior to the Closing, of each of the
following conditions:
6:1 ACCURACY OF REPRESENTATIONS.
Each of the representations and warranties made by OAK BROOK and PVAXX in
this Agreement and in each of the Transaction Documents and instruments
delivered to OAK BROOK and PVAXX in connection with the transactions
contemplated by this Agreement shall have been accurate in all material
respects as of the date of this Agreement (without giving effect to any
Material Adverse Effect or other materiality qualifications, or any similar
qualifications, contained or incorporated directly or indirectly in such
representations and warranties), and shall be accurate in all material
respects as of the Closing Date as if made at the Closing Date (without
giving effect to any update to the Disclosure Schedule, and without giving
effect to any Material Adverse Effect or other materiality qualifications,
or any similar qualifications, contained or incorporated directly or
indirectly in such representations and warranties).
6:2 PERFORMANCE OF COVENANTS.
All of the covenants and obligations that OAK BROOK and PVAXX are required
to comply with or to perform at or prior to the Closing shall have been
complied with and performed in all respects.
6:3 CONSENTS.
All Consents required to be obtained in connection with the PVAXX Share
Exchange and the other transactions contemplated by this Agreement (other
than the Consents identified in Part 2.25 of the Disclosure Schedule) shall
have been obtained and shall be in full force and effect.
6:4 AGREEMENTS AND DOCUMENTS.
OAK BROOK and PVAXX shall have received the following agreements and
documents, each of which will be in full force and effect as of the
Effective Date:
(I) Articles of Share Exchange
(II) a Disclosure Schedule executed by OAK BROOK and PVAXX;
(III)Employment Agreements executed by Henry Stevens and Bryan Wade;
(IV) Investment Representation Letters executed by each of the PVAXX
Shareholders;
(V) Legal Opinions of Nadeau & Simmons, P.C., dated as of the Closing
Date, outstanding in the forms attached hereto at Appendix VIII;
(VI) a certificate executed by both parties and containing the
representation and warranty of each party that each of the
representations and warranties set forth in Section 2 and 3 is
accurate in all respects as of the Closing Date as if made on the
Closing Date and that the conditions set forth in Section 6 have
been duly satisfied (the "Closing Certificate"); and
(VII)written resignations of all officers and directors of OAK BROOK,
effective as of the Effective Date.
6:5 NAME CHANGE.
Upon the shareholder approval of this Agreement at the Meeting, such
Meeting to take place at 10:00 A.M., EST., at the offices of Nadeau &
Simmons, P.C., 1250 Turks Head Building, Providence, RI 02903, OAK BROOK
shall effect the change of its name to "PVAXX Corporation" by filing an
amendment to its articles of incorporation with the Secretary of State's
Office, State of Colorado, concurrently with the filing of the Articles and
Certificate of Share Exchange.
6:6 NO RESTRAINTS.
No temporary restraining order, preliminary or permanent injunction or
other order preventing the consummation of the PVAXX Share Exchange shall
have been issued by any court of competent jurisdiction and remain in
effect, and there shall not be any Legal Requirement enacted or deemed
applicable to the PVAXX Share Exchange that makes consummation of the PVAXX
Share Exchange illegal.
6:7 NO LEGAL PROCEEDINGS.
No Person shall have commenced or threatened to commence any Legal
Proceeding challenging or seeking the recovery of a material amount of
damages in connection with the PVAXX Share Exchange or seeking to prohibit
or limit the exercise by OAK BROOK of any material right pertaining to its
ownership of the assets of PVAXX.
6:8 EMPLOYEES.
No more than one of the individuals identified on Appendix X shall have
ceased to be employed by, or expressed an intention to terminate their
employment with, PVAXX.
ARTICLE VII
TERMINATION
7:1 TERMINATION EVENTS.
This Agreement may be terminated prior to the Closing:
(A) by OAK BROOK if OAK BROOK reasonably determines that the timely
satisfaction of any condition set forth in Section 6 has become impossible
(other than as a result of any failure on the part of OAK BROOK to comply
with or perform any covenant or obligation of OAK BROOK set forth in this
Agreement);
(B) by PVAXX if PVAXX reasonably determines that the timely satisfaction
of any condition set forth in Section 6 has become impossible (other than
as a result of any failure on the part of PVAXX to comply with or perform
any covenant or obligation set forth in this Agreement or in any other
agreement or instrument delivered to OAK BROOK);
(C) by OAK BROOK at or after the Scheduled Closing Time if any condition
set forth in Section 6 has not been satisfied by the Scheduled Closing
Time;
(D) by PVAXX at or after the Scheduled Closing Time if any condition set
forth in Section 6 has not been satisfied by the Scheduled Closing Time;
(E) by OAK BROOK if the Closing has not taken place on or before June 30,
2000 (other than as a result of any failure on the part of OAK BROOK to
comply with or perform any covenant or obligation of OAK BROOK set forth in
this Agreement);
(F) by PVAXX if the Closing has not taken place on or before June 30, 2000
(other than as a result of the failure on the part of PVAXX to comply with
or perform any covenant or obligation set forth in this Agreement or in any
other agreement or instrument delivered to OAK BROOK); or
(G) by the mutual consent of OAK BROOK and PVAXX.
7:2 TERMINATION PROCEDURES.
If OAK BROOK wishes to terminate this Agreement pursuant to Section 7:1(a),
Section 7:1(c) or Section 7:1(e), OAK BROOK shall deliver to PVAXX a
written notice stating that OAK BROOK is terminating this Agreement and
setting forth a brief description of the basis on which OAK BROOK is
terminating this Agreement. If PVAXX wishes to terminate this Agreement
pursuant to Section 7:1(b), Section 7:1(d) or Section 7:1(f), PVAXX shall
deliver to OAK BROOK a written notice stating that PVAXX is terminating
this Agreement and setting forth a brief description of the basis on which
PVAXX is terminating this Agreement.
7:3 EFFECT OF TERMINATION.
If this Agreement is terminated pursuant to Section 7:1, all further
obligations of the parties under this Agreement shall terminate; PROVIDED,
HOWEVER, that: (a) neither PVAXX nor OAK BROOK shall be relieved of any
obligation or liability arising from any prior breach by such party of any
provision of this Agreement; (b) the parties shall, in all events, remain
bound by and continue to be subject to the provisions set forth in
Section 9; and (c) OAK BROOK and PVAXX shall, in all events, remain bound
by and continue to be subject to Section 5:2.
ARTICLE VIII
INDEMNIFICATION, ETC.
8:1 SURVIVAL OF REPRESENTATIONS, ETC.
(A) The representations and warranties made by OAK BROOK and PVAXX
(including the representations and warranties set forth in Sections 2 and
3, shall survive the Effective Date for a period of one (1) year, PROVIDED,
HOWEVER, that if, at any time prior to the first anniversary of the Closing
Date, any Indemnitee (acting in good faith) delivers to either party a
written notice alleging the existence of an inaccuracy in or a breach of
any of the representations and warranties made by either party (and setting
forth in reasonable detail the basis for such Indemnitee's belief that such
an inaccuracy or breach may exist) and asserting a claim for recovery under
Section 8.2 based on such alleged inaccuracy or breach, then the claim
asserted in such notice shall survive the first anniversary of the Closing
until such time as such claim is fully and finally resolved.
Notwithstanding the foregoing, the representations and warranties set forth
in Section 2.14 shall survive until the expiration of the applicable
statutes of limitations, including extensions thereof.
(B) The representations, warranties, covenants and obligations of OAK
BROOK and PVAXX, and the rights and remedies that may be exercised by
either party, shall not be limited or otherwise affected by or as a result
of any information furnished to, or any investigation made by or knowledge
of either party or any of their Representatives.
(C) For purposes of this Agreement, each statement or other item of
information set forth in the Disclosure Schedule or in any update to the
Disclosure Schedule shall be deemed to be a representation and warranty
made by OAK BROOK or PVAXX in this Agreement.
8:2 CROSS INDEMNIFICATION.
From and after the Effective Time (but subject to Section 8.1(a)), OAK
BROOK and PVAXX shall hold harmless and indemnify each other from and
against, and shall compensate and reimburse the other party for, any
Damages which are directly or indirectly suffered or incurred by either
party or to which either party may otherwise become subject (regardless of
whether or not such Damages relate to any third-party claim) and which
arise from or as a result of, or are directly or indirectly connected with:
(i) any inaccuracy in or breach of any representation or warranty set
forth in Sections 2 or 3 (without giving effect to any Material Adverse
Effect or other materiality qualification or any similar qualification
contained or incorporated directly or indirectly in such representation or
warranty, but giving effect to any update to the Disclosure Schedule
delivered by OAK BROOK and PVAXX prior to the Closing); (ii) any breach of
any covenant or obligation of OAK BROOK or PVAXX (including the covenants
set forth in Sections 4 and 5); or (iii) any Legal Proceeding relating to
any inaccuracy or breach of the type referred to in clause "(i)" or "(ii)"
above (including any Legal Proceeding commenced by any Indemnitee for the
purpose of enforcing any of its rights under this Section 8).
8:3 THRESHOLD; CEILING.
(A) OAK BROOK or PVAXX shall not be required to make any indemnification
payment pursuant to Section 8.2(a) for any inaccuracy in or breach of any
of their representations and warranties set forth in Sections 2 and 3 until
such time as the total amount of all Damages (including the Damages arising
from such inaccuracy or breach and all other Damages arising from any other
inaccuracies in or breaches of any representations or warranties) that have
been directly or indirectly suffered or incurred by the other party,
exceeds $100,000 in the aggregate. (If the total amount of such Damages
exceeds $100,000, then the Indemnitee shall be entitled to be indemnified
against and compensated and reimbursed for all of such Damages, including
claims for Damages included in the initial $100,000.
8:4 SATISFACTION OF INDEMNIFICATION CLAIM.
In the event either party had any liability (for indemnification or
otherwise) to the other party under this Section 8, the indemnifying party
shall satisfy such liability first, by delivering to such Indemnitee the
number of shares of OAK BROOK determined by dividing (a) the aggregate
dollar amount of such liability by (b) the average closing price of OAK
BROOK as reported for the ten trading days preceding the date such
liability is satisfied, and second, to the extent shares of OAK BROOK are
not available to satisfy in full such liability, then such difference in
cash.
8:5 NO CONTRIBUTION.
OAK BROOK and PVAXX waive, acknowledge and agree that they shall not have
and shall not exercise or assert (or attempt to exercise or assert), any
right of contribution, right of indemnity or other right or remedy against
each other in connection with any third party indemnification obligation or
any other liability to which either party may become subject under or in
connection with this Agreement.
8:6 INTEREST.
Any party who is required to hold harmless, indemnify, compensate or
reimburse any Indemnitee pursuant to this Section 8 with respect to any
Damages shall also be liable to such Indemnitee for interest on the amount
of such Damages (for the period commencing as of the date on which
indemnifying party first received notice of a claim for recovery by such
Indemnitee and ending on the date on which the liability of such
indemnifying party to such Indemnitee is fully satisfied by such
indemnifying party) at a floating rate equal to the rate of interest
publicly announced by Bank of America, N.T. & S.A. from time to time as its
prime, base or reference rate.
8:7 DEFENSE OF THIRD PARTY CLAIMS.
In the event of the assertion or commencement by any Person of any claim or
Legal Proceeding (whether against OAK BROOK or PVAXX) with respect to which
either party may become obligated to hold harmless, indemnify, compensate
or reimburse any third party Indemnitee pursuant to this Section 8, such
party shall have the right, at its election, to proceed with the defense of
such claim or Legal Proceeding on its own.
ARTICLE IX
MISCELLANEOUS PROVISIONS
9:1 FURTHER ASSURANCES.
Each party hereto shall execute and cause to be delivered to each other
party hereto such instruments and other documents, and shall take such
other actions, as such other party may reasonably request (prior to, at or
after the Closing) for the purpose of carrying out or evidencing any of the
transactions contemplated by this Agreement.
9:2 FEES AND EXPENSES.
If the PVAXX Share Exchange is not consummated for any reason whatsoever,
each party to this Agreement shall bear and pay one-half ( 1/2 ) of and pay
all fees, costs and expenses (including legal fees and accounting fees)
("Fees and Expenses") that have been incurred or that are incurred by such
party in connection with the transactions contemplated by this Agreement.
If the PVAXX Share Exchange is consummated, PVAXX shall pay two hundred
thousand dollars (USD 200,000) to the Majority Shareholders (Werner and
Thatcher) of OAK BROOK.
9:3 ATTORNEYS' FEES.
If any action or proceeding relating to this Agreement or the enforcement
of any provision of this Agreement is brought against any party hereto, the
prevailing party shall be entitled to recover reasonable attorneys' fees,
costs and disbursements (in addition to any other relief to which the
prevailing party may be entitled).
9:4 NOTICES.
All notices and other communications required or permitted under this
Agreement and the transactions contemplated hereby shall be in writing and
shall be deemed to have been duly given, made and received on the date when
delivered by hand delivery with receipt acknowledged, or upon the next
Business Day following receipt of facsimile transmission, or upon the fifth
day after deposit in the United States mail, registered or certified with
postage prepaid, return receipt requested, addressed as set forth below:
(A) If to OAK BROOK:
1250 Turks Head Building
Providence, RI 02903
Attention: Mark T. Thatcher, Esq.
Telephone: 401-272-5800
Facsimile: 401-272-5858
with a copy (not constituting notice) to:
Nadeau & Simmons, P.C.
1250 Turks Head Building
Providence, RI 02903
Attention: Adam Clavell, Esq.
Telephone: 401-272-5800
Facsimile: 401-272-5858
(B) If to PVAXX:
12730 New Brittany Blvd.
Ft. Myers, FL 33907
Attention: Henry Stevens
Telephone: (941) 274-9355
Cellular: (941) 872-1511
with a copy (not constituting notice) to:
PVAXX Corporation, a Florida Corporation
12730 New Brittany Blvd.
Ft. Myers, FL 33907
Attention: Bryan Wade
Telephone: (941) 274-9355
Cellular: (941) 871-1511
9:5 CONFIDENTIALITY.
Without limiting the generality of anything contained in Section 5.2, on
and at all times after the Closing Date, each party shall keep
confidential, and shall not use or disclose to any other Person, any non-
public document or other non-public information in such party's possession
that relates to the business of PVAXX or OAK BROOK.
9:6 TIME OF THE ESSENCE.
Time is of the essence of this Agreement.
9:7 HEADINGS.
The bolded headings contained in this Agreement are for convenience of
reference only, shall not be deemed to be a part of this Agreement and
shall not be referred to in connection with the construction or
interpretation of this Agreement.
9:8 COUNTERPARTS.
This Agreement may be executed in several counterparts, each of which shall
constitute an original and all of which, when taken together, shall
constitute one agreement.
9:9 GOVERNING LAW.
This Agreement shall be construed in accordance with, and governed in all
respects by, the internal laws of the State of Colorado and Florida
(without giving effect to principles of conflicts of laws).
9:10 SUCCESSORS AND ASSIGNS.
The rights and obligations of OAK BROOK or PVAXX may not be assigned
without the prior written consent of both parties. Subject to the
foregoing, the provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns.
9:11 REMEDIES CUMULATIVE; SPECIFIC PERFORMANCE.
The rights and remedies of the parties hereto shall be cumulative (and not
alternative). The parties to this Agreement agree that, in the event of
any breach or threatened breach by any party to this Agreement of any
covenant, obligation or other provision set forth in this Agreement for the
benefit of any other party to this Agreement, such other party shall be
entitled (in addition to any other remedy that may be available to it) to
(a) a decree or order of specific performance or mandamus to enforce the
observance and performance of such covenant, obligation or other provision,
and (b) an injunction restraining such breach or threatened breach.
9:12 WAIVER.
(A) No failure on the part of any Person to exercise any power, right,
privilege or remedy under this Agreement, and no delay on the part of any
Person in exercising any power, right, privilege or remedy under this
Agreement, shall operate as a waiver of such power, right, privilege or
remedy; and no single or partial exercise of any such power, right,
privilege or remedy shall preclude any other or further exercise thereof or
of any other power, right, privilege or remedy.
(B) No Person shall be deemed to have waived any claim arising out of this
Agreement, or any power, right, privilege or remedy under this Agreement,
unless the waiver of such claim, power, right, privilege or remedy is
expressly set forth in a written instrument duly executed and delivered on
behalf of such Person; and any such waiver shall not be applicable or have
any effect except in the specific instance in which it is given.
9:13 AMENDMENTS.
This Agreement may not be amended, modified, altered or supplemented other
than by means of a written instrument duly executed and delivered on behalf
of all of the parties hereto.
9:14 SEVERABILITY.
In the event that any provision of this Agreement, or the application of
any such provision to any Person or set of circumstances, shall be
determined to be invalid, unlawful, void or unenforceable to any extent,
the remainder of this Agreement, and the application of such provision to
Persons or circumstances other than those as to which it is determined to
be invalid, unlawful, void or unenforceable, shall not be impaired or
otherwise affected and shall continue to be valid and enforceable to the
fullest extent permitted by law.
9:15 ENTIRE AGREEMENT.
This Agreement and the other agreements referred to herein set forth the
entire understanding of the parties hereto relating to the subject matter
hereof and thereof and supersede all prior agreements and understandings
among or between any of the parties relating to the subject matter hereof
and thereof.
9:16 CONSTRUCTION.
(A) For purposes of this Agreement, whenever the context requires: the
singular number shall include the plural, and vice versa; the masculine
gender shall include the feminine and neuter genders; the feminine gender
shall include the masculine and neuter genders; and the neuter gender shall
include the masculine and feminine genders.
(B) The parties hereto agree that any rule of construction to the effect
that ambiguities are to be resolved against the drafting party shall not be
applied in the construction or interpretation of this Agreement.
(C) As used in this Agreement, the words "include" and "including," and
variations thereof, shall not be deemed to be terms of limitation, but
rather shall be deemed to be followed by the words "without limitation."
(D) Except as otherwise indicated, all references in this Agreement to
"Sections" and "Appendix" are intended to refer to Sections of this
Agreement and Appendices to this Agreement.
IN WITNESS WHEREOF, OAK BROOK and PVAXX have signed this Agreement as of
the date first written above.
OAK BROOK CAPITAL IV, INC.,
A COLORADO CORPORATION
/s/ Mark T. Thatcher
By: _____________________________________
Mark T. Thatcher, Chairman
May 19, 2000
Dated: ___________________________________________
PVAXX CORPORATION,
A FLORIDA CORPORATION
/s/ Henry Stevens
By: _____________________________________
Henry Stevens, President
Dated: May 19, 2000
___________________________________________
EXHIBIT A
CERTAIN DEFINITIONS
For purposes of the Agreement (including this EXHIBIT A):
"ACQUISITION TRANSACTION" means any transaction involving:
(A) the sale, license, disposition or acquisition of all or a
material portion of OAK BROOK or PVAXX's business or assets;
(B) the issuance, disposition or acquisition of (i) any capital
stock or other equity security of OAK BROOK or PVAXX, (ii)
any option, call, warrant or right (whether or not
immediately exercisable) to acquire any capital stock or
other equity security of OAK BROOK or PVAXX, or (iii) any
security, instrument or obligation that is or may become
convertible into or exchangeable for any capital stock or
other equity security of OAK BROOK or PVAXX; or
(C) any Share Exchange, consolidation, business combination,
reorganization or similar transaction involving OAK BROOK or
PVAXX.
"AFFILIATE" means, with respect to any specified Person, any other
Person in which the specified Person has a direct or indirect interest
(except through ownership of less than 5% of the outstanding shares of
any entity whose securities are listed on a national securities
exchange or traded in the national over-the-counter market).
"AGREEMENT" shall have the meaning specified in the preamble to the
Agreement.
"OAK BROOK" shall have the meaning specified in the preamble to the
Agreement.
"OAK BROOK COMMON STOCK" shall have the meaning specified in Section
1:7:2(i) of the Agreement.
"OAK BROOK SEC DOCUMENTS" shall have the meaning specified in Section
3:1:5(a) of the Agreement.
"BALANCE SHEET" shall have the meaning specified in Section 2:1:7 of
the Agreement.
"BUSINESS DAY" means a day, other than a Saturday or a Sunday, or a
federal holiday upon which offices of the federal government are not
open for business.
"CLOSING" and "CLOSING DATE" shall have the meanings specified in
Section 1:1:3 of the Agreement.
"CODE" shall have the meaning specified in the recitals to the
Agreement.
"PVAXX" shall have the meaning specified in the preamble to the
Agreement.
"PVAXX COMMON STOCK" shall have the meaning specified in the recitals
to the Agreement.
"PVAXX CONTRACT" means any Contract: (a) to which PVAXX is a party;
(b) by which PVAXX or any of its assets is or may become bound or
under which PVAXX has, or may become subject to, any obligation; or
(c) under which PVAXX has or may acquire any right or interest.
"PVAXX FINANCIALS" shall have the meaning specified in Section 2:1:7
of the Agreement.
"PVAXX PROPRIETARY ASSET" means any Proprietary Asset owned by or
licensed to PVAXX or otherwise used by PVAXX.
"PVAXX RETURNS" shall have the meaning specified in Section 2:1:7 of
the Agreement.
"PVAXX STOCK CERTIFICATE" shall have the meaning specified in Section
1:8 of the Agreement.
"CONSENT" means any approval, consent, ratification, permission,
waiver or authorization (including any Governmental Authorization).
"CONTRACT" means any written, oral or other agreement, contract,
subcontract, lease, understanding, instrument, note, warranty,
insurance policy, benefit plan or legally binding commitment or
undertaking of any nature.
"DAMAGES" shall include any loss, damage, injury, decline in value,
lost opportunity, liability, claim, demand, settlement, judgment,
award, fine, penalty, Tax, fee (including reasonable attorneys' fees),
charge, cost (including costs of investigation) or expense of any
nature.
"DISCLOSURE SCHEDULE" means the schedule (dated as of the date of the
Agreement) delivered to OAK BROOK on behalf of PVAXX and the
Stockholders.
"EFFECTIVE DATE" shall have the meaning specified in Section 1:1:3 of
the Agreement.
"EMPLOYMENT AGREEMENTS" shall have the meaning specified in Section
2:1:9:7 of the Agreement.
"ENCUMBRANCE" means any lien, pledge, hypothecation, charge, mortgage,
security interest, encumbrance, claim, infringement, interference,
option, right of first refusal, preemptive right, community property
interest or restriction of any nature (including any restriction on
the voting of any security, any restriction on the transfer of any
security or other asset, any restriction on the receipt of any income
derived from any asset, any restriction on the use of any asset and
any restriction on the possession, exercise or transfer of any other
attribute of ownership of any asset).
"ENTITY" means any corporation (including any non-profit corporation),
general partnership, limited partnership, limited liability
partnership, joint venture, estate, trust, PVAXX (including any
limited liability PVAXX or joint stock PVAXX), firm or other
enterprise, association, organization or entity.
"ENVIRONMENTAL LAW" means any federal, state, local or foreign Legal
Requirement relating to pollution or protection of human health or the
environment (including ambient air, surface water, ground water, land
surface or subsurface strata), including any law or regulation
relating to emissions, discharges, releases or threatened releases of
Materials of Environmental Concern, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Materials of Environmental Concern.
"ERISA" shall have the meaning specified in Section 2:1:19 of the
Agreement.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"FEES AND EXPENSES" shall have the meaning specified in Section 9:2 of
the Agreement.
"FIRST ANNIVERSARY" shall have the meaning specified in Section 8:1 of
the Agreement.
"GAAP" means generally accepted accounting principles.
"GOVERNMENTAL AUTHORIZATION" means any: (a) permit, license, certificate,
franchise, permission, clearance, registration, qualification or
authorization issued, granted, given or otherwise made available by or
under the authority of any Governmental Body or pursuant to any Legal
Requirement; or (b) right under any Contract with any Governmental
Body.
"GOVERNMENTAL BODY" means any: (a) nation, state, commonwealth,
province, territory, county, municipality, district or other
jurisdiction of any nature; (b) federal, state, local, municipal,
foreign or other government; or (c) governmental or quasi-governmental
authority of any nature (including any governmental division,
department, agency, commission, instrumentality, official,
organization, unit, body or Entity and any court or other tribunal).
"INDEMNITEES" means the following Persons: (a) OAK BROOK or PVAXX;
(b) OAK BROOK or PVAXX's current and future affiliates; (c) the
respective Representatives of the Persons referred to in clauses "(a)"
and "(b)" above; and (d) the respective successors and assigns of the
Persons referred to in clauses "(a)", "(b)" and "(c)" above; PROVIDED,
HOWEVER, that the Stockholders shall not be deemed to be
"Indemnitees."
"INVESTMENT REPRESENTATION LETTER" shall have the meaning specified in
Section 5.6 of the Agreement.
"IRS" means the Internal Revenue Service.
"LEGAL PROCEEDING" means any action, suit, litigation, arbitration,
proceeding (including any civil, criminal, administrative,
investigative or appellate proceeding), hearing, inquiry, audit,
examination or investigation commenced, brought, conducted or heard by
or before, or otherwise involving, any court or other Governmental
Body or any arbitrator or arbitration panel.
"LEGAL REQUIREMENT" means any federal, state, local, municipal,
foreign or other law, statute, constitution, principle of common law,
resolution, ordinance, code, edict, decree, rule, regulation, ruling
or requirement issued, enacted, adopted, promulgated, implemented or
otherwise put into effect by or under the authority of any
Governmental Body.
"MATERIAL ADVERSE EFFECT" means a violation or other matter will be
deemed to have a "Material Adverse Effect" on PVAXX if such violation
or other matter (considered together with all other matters that would
constitute exceptions to the representations and warranties set forth
in the Agreement but for the presence of "Material Adverse Effect" or
other materiality qualifications, or any similar qualifications, in
such representations and warranties) would have a material adverse
effect on PVAXX's business, condition, assets, liabilities,
operations, financial performance or prospects.
"MATERIAL CONTRACTS" shall have the meaning specified in Section
2:1:9:9 of the Agreement.
"MATERIALS OF ENVIRONMENTAL CONCERN" means chemicals, pollutants,
contaminants, wastes, toxic substances, petroleum and petroleum
products and any other substance that is now or hereafter regulated by
any Environmental Law or that is otherwise a danger to health,
reproduction or the environment.
"SHARE EXCHANGE" shall have the meaning specified in the recitals to
the Agreement.
"PERSON" means any individual, Entity or Governmental Body.
"PRE-CLOSING PERIOD" shall have the meaning specified in Section 5:1
of the Agreement.
"PROPRIETARY ASSET" means any: (a) patent, patent application,
trademark (whether registered or unregistered), trademark application,
trade name, fictitious business name, service mark (whether registered
or unregistered), service mark application, copyright (whether
registered or unregistered), copyright application, maskwork, maskwork
application, trade secret, know-how, client list, franchise, system,
computer software, computer program, invention, design, blueprint,
engineering drawing, proprietary product, technology, proprietary
right or other intellectual property right or intangible asset; or (b)
right to use or exploit any of the foregoing.
"REGISTRATION STATEMENT" shall have the meaning specified in Section
3:1:5 of the Agreement.
"RELATED PARTY" means: (i) the Stockholders; (ii) each individual
who is, or who has at any time since October 15, 1997 been, an officer
of PVAXX; (iii) each member of the immediate family of each of the
individuals referred to in clauses "(i)" and "(ii)" above; and (iv)
any trust or other entity (other than PVAXX) in which any one of the
individuals referred to in clauses "(i)", "(ii)" and "(iii)" above
holds (or in which more than one of such individuals collectively
hold), beneficially or otherwise, a material voting, proprietary or
equity interest).
"REPRESENTATIVES" means officers, directors, employees, agents,
attorneys, accountants, advisors and representatives.
"SCHEDULED CLOSING TIME" shall have the meaning specified in Section 7:1(c)
of the Agreement.
"SEC" means the United States Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SHARES" shall have the meaning specified in Section 1:6:1 of the
Agreement.
"STOCKHOLDERS" shall have the meaning specified in the preamble to the
Agreement.
"TAX" means any tax (including any income tax, franchise tax, capital
gains tax, gross receipts tax, value-added tax, surtax, excise tax, ad
valorem tax, transfer tax, stamp tax, sales tax, use tax, property
tax, business tax, withholding tax or payroll tax), levy, assessment,
tariff, duty (including any customs duty), deficiency or fee, and any
related charge or amount (including any fine, penalty or interest),
imposed, assessed or collected by or under the authority of any
Governmental Body.
"TAX RETURN" means any return (including any information return),
report, statement, declaration, estimate, schedule, notice,
notification, form, election, certificate or other document or
information filed with or submitted to, or required to be filed with
or submitted to, any Governmental Body in connection with the
determination, assessment, collection or payment of any Tax or in
connection with the administration, implementation or enforcement of
or compliance with any Legal Requirement relating to any Tax.
<PAGE>
AGREEMENT AND PLAN OF SHARE EXCHANGE
AND REORGANIZATION
among:
OAK BROOK CAPITAL IV, INC.,
a Colorado corporation;
PVAXX CORPORATION,
a Florida corporation;
___________________________
Dated as of _________________, 2000
___________________________
EXHIBITS
EXHIBIT DOCUMENT
(I) Articles of Share Exchange
(II) a Disclosure Schedule to be executed by OAK BROOK and PVAXX;
at closing
(III) Employment Agreements to be executed by Henry Stevens and
Bryan Wade at closing
(IV) Investment Representation Letters to be executed by each of
the PVAXX Shareholders; at closing
(V) Legal Opinions of Nadeau & Simmons, P.C. dated as of the
Closing Date, substantially in the forms attached hereto at
Exhibit I;
<PAGE>
TABLE OF CONTENTS
SECTION 1. Description of Transaction 1
1.1 Share Exchange of PVAXX into OAK BROOK 1
1.2 Effect of the Share Exchange 1
1.3 Closing; Effective Time 1
1.4 Conversion of Shares 2
1.5 Piggy Back Registration Rights 4
1.6 Closing of PVAXX's Transfer Books 5
1.7 Exchange of Certificates 6
1.8 Stockholder Approval; Dissenting Shares 7
1.10 Tax Consequences 7
1.11 Accounting Treatment 7
1.12 Further Action 7
SECTION 2. Representations and Warranties of PVAXX 7
2.1 Due Organization; Good Standing; No Subsidiaries 7
2.2 Certificate of Incorporation and Bylaws; Records 8
2.3 Capitalization; Title to Shares 8
2.4 Financial Statements 8
2.5 Absence of Changes 9
2.6 Title to Assets 10
2.7 Bank Accounts; Receivables 11
2.8 Equipment; Leasehold 11
2.9 Proprietary Assets 11
2.10 Contracts 13
2.11 Liabilities 15
2.12 Compliance with Legal Requirements 15
2.13 Governmental Authorizations 15
2.14 Tax Matters 15
2.15 Employee and Labor Matters; Benefit Plans 16
2.16 Environmental Matters 18
2.17 Insurance 18
2.18 Related Party Transactions 19
2.19 Legal Proceedings; Orders 19
2.20 Clients 19
2.21 Material Relationships 20
2.22 Sales Policies; Warranties 20
2.23 Brokers and Finders 20
2.24 Authority; Binding Nature of Agreement 20
2.25 Non-Contravention; Consents 20
2.26 Database Backup 21
2.27 Full Disclosure 21
SECTION 3. Representations and Warranties of OAK BROOK 21
3.1 SEC Filings; Financial Statements 21
3.2 Authority; Binding Nature of Agreement 22
3.3 Valid Issuance 22
SECTION 4. Certain Covenants of PVAXX and the Stockholders 22
4.1 Access and Investigation 22
4.2 Operation of PVAXX's Business 22
4.3 Notification; Updates to Disclosure Schedule 24
4.4 No Negotiation 25
SECTION 5. Additional Covenants of the Parties 25
5.1 Filings and Consents 25
5.2 Public Announcements 25
5.3 Best Efforts 26
5.4 Employment and Noncompetition Agreements 26
5.5 FIRPTA Matters 26
5.6 Release 26
5.7 Investment Representation Letter 26
5.8 Proprietary Information Agreement 26
SECTION 6. Conditions Precedent to Obligations of
OAK BROOK 27
6.1 Accuracy of Representations 27
6.2 Performance of Covenants 27
6.3 Consents 27
6.4 Agreements and Documents 27
6.5 FIRPTA Compliance 28
6.6 No Restraints 28
6.7 No Legal Proceedings 28
6.8 Employees 28
6.9 Stockholder Approval 28
SECTION 7. Termination 29
7.1 Termination Events 29
7.2 Termination Procedures 30
7.3 Effect of Termination 30
7.4 Termination Fee 30
SECTION 8. Indemnification, Etc. 30
8.1 Survival of Representations, Etc. 30
8.2 Indemnification by Principal Stockholders 31
8.3 Threshold; Ceiling 31
8.4 Satisfaction of Indemnification Claim 32
8.5 No Contribution 32
8.6 Interest 32
8.7 Defense of Third Party Claims 32
8.8 Exercise of Remedies by Indemnitees
Other Than OAK BROOK 33
SECTION 9. Miscellaneous Provisions 33
9.1 Stockholders' Agent 33
9.2 Further Assurances 33
9.3 Fees and Expenses 33
9.4 Attorneys' Fees 33
9.5 Notices 34
9.6 Confidentiality 35
9.7 Time of the Essence 35
9.8 Headings 35
9.9 Counterparts 35
9.10 Governing Law 35
9.11 Successors and Assigns 35
9.12 Remedies Cumulative; Specific Performance 35
9.13 Waiver 36
9.14 Amendments 36
9.15 Severability 36
9.16 Entire Agreement 36
9.17 Construction 36
An extra section break has been inserted above this paragraph. Do not
delete this section break if you plan to add text after the Table of
Contents/Authorities. Deleting this break will cause Table of
Contents/Authorities headers and footers to appear on any pages following
the Table of Contents/Authorities.
<PAGE>
APPENDIX I
CERTIFICATE OF SHARE EXCHANGE
of
OAK BROOK CAPITAL IV, INC.
and
PVAXX CORPORATION
Under Article 111 of the Colorado Business Corporation Act
_______
Pursuant to the provisions of Article 111 of the Colorado Business
Corporation Act, the undersigned hereby certify:
1. CORPORATE PARTIES
The names of the subsidiary corporation is PVAXX Corporation, a Florida
corporation ("PVAXX"). Oak Brook Capital IV, Inc. ("Oak Brook") is the
Parent corporation in the Share Exchange and its name as the Parent
corporation is OAK BROOK CAPITAL IV, INC. Oak Brook was formed on May 16,
1998 and is qualified to do business in the State of Colorado.
2. CAPITALIZATION OF SUBSIDIARY CORPORATIONS
The respective designations and numbers of shares of each class and series
of capital stock of the subsidiary corporations outstanding on the date of
the Plan and Agreement of Share Exchange were as follows:
NAME OF DESIGNATION OF NUMBER OF
CORPORATION SHARES SHARES OUTSTANDING
Oak Brook Common Stock 1,328,000
Oak Brook Preferred Stock -0-
PVAXX Common Stock 20,000,000
PVAXX Preferred Stock 10,000,000
Prior to the effective time of the Share Exchange the number of outstanding
shares of common stock of Oak Brook is 1,328,000. The number of outstanding
shares of capital stock of Oak Brook and PVAXX may not be changed prior to
the effective time of the Share Exchange. The holders of the outstanding
shares of common stock of PVAXX are entitled to vote upon the Share
Exchange. In order to adopt the Plan and Agreement of Share Exchange, the
affirmative vote of the holders of at least fifty-one percent (51%) of the
outstanding shares of the common stock of PVAXX will be required.
3. EFFECTIVE DATE
The Share Exchange provided for herein shall become effective at the close
of business on the date it is filed by the Secretary of State of Colorado.
4. TERMINATION OR ABANDONMENT
The Plan and Agreement of Share Exchange may be terminated and abandoned at
any time prior to the filing of this Certificate of Share Exchange by the
Secretary of State of the State of Colorado:
(a) MUTUAL CONSENT. By mutual consent of the Boards of Directors of
Oak Brook, a Colorado corporation and PVAXX, a Florida corporation.
(b) CONDITIONS OF OAK BROOK NOT MET. By the Board of Directors of
PVAXX if, by June 30, 2000, any of the conditions set forth in
Articles 4 through 6 of the Plan shall not have been met.
(c) CONDITIONS OF PVAXX NOT MET. By the Board of Directors of Oak
Brook, if by June 30, 2000, the conditions set forth in Articles 4
through 6 of the Plan shall not have been met.
5. FILING DATES
The date of the filing of the Articles of Incorporation of Oak Brook by the
Secretary of State of the State of Colorado was May 16, 1998. The date of
the filing of the Certificate of Incorporation of PVAXX by the Secretary of
State of the State of Florida was March 16, 2000.
<PAGE>
6. STOCKHOLDER RATIFICATION OF SHARE EXCHANGE
The Share Exchange was authorized:
(a) By the unanimous written consent of the Board of Directors of Oak
Brook and a majority approval of at fifty-one percent (51%) of the
outstanding shares of common stock of Oak Brook, upon notice of a
meeting to each shareholder of record, all shareholders of record
being entitled to vote thereon; and
(b) By the majority written consent of the holders of all outstanding
shares of Common Stock of PVAXX, in accordance with Section ________
of the Florida Business Corporation Law.
IN WITNESS WHEREOF this Certificate has been signed this ___ day of May,
2000.
OAK BROOK CAPITAL IV, INC.
/s/ Mark T. Thatcher
by____________________________________
MARK T. THATCHER,
Chairman
/s/ Gerard Werner
by____________________________________
[Notarization] GERARD WERNER,
Secretary
PVAXX CORPORATION
/s/ Henry Stevens
by ___________________________________ HENRY STEVENS,
President
/s/ Bryan Wade
by ___________________________________
BRYAN WADE,
Secretary
[Notarization]
<PAGE>
APPENDIX II
DISCLOSURE SCHEDULE
<PAGE>
APPENDIX III
EMPLOYMENT/CONSULTING/WARRANT AGREEMENTS
<PAGE>
APPENDIX IV
PVAXX INVESTMENT REPRESENTATION LETTER
(To be distributed to PVAXX Shareholders prior to the Closing Date)
<PAGE>
APPENDIX V
LEGAL OPINIONS
May 19, 2000
<PAGE>
APPENDIX VI
CERTIFICATE OF BOARD OF DIRECTORS
CAPITALIZATION OF PVAXX CORPORATION
CERTIFICATE
THE EXECUTIVE COMMITTEE
OF
PVAXX CORPORATION
Pursuant to the provisions of the Florida Statutes ("F.S.") and the Florida
General Corporation Law, as amended, the following individuals represent
that the following Section of the Plan and Agreement of Share Exchange
dated May 19, 2000 (the "Plan"), made by and among OAK BROOK CAPITAL IV,
INC., a Colorado corporation ("OAK BROOK"), and PVAXX CORPORATION, a
Florida corporation (the "Subsidiary Corporation"), is an accurate
representation as of the date of execution of the Plan:
2:1:6 Capitalization of PVAXX and Subsidiaries.
FORTY MILLION (40,000,000) COMMON AUTHORIZED
TWENTY MILLION (20,000,000) COMMON ISSUED
TEN MILLION (10,000,000) PREFERRED AUTHORIZED
TEN MILLION (10,000,000) PREFERRED ISSUED
RESOLVED, that a corporate seal bearing the words, "PVAXX Corporation" and
identified by the impression thereof in the margin of this page, be and
hereby is affixed by the Disappearing Corporation.
THE EXECUTIVE COMMITTEE,
PVAXX CORPORATION
/s/ Henry Stevens
______________________________________
HENRY STEVENS,
President
/s/ Bryan Wade
______________________________________
BRYAN WADE,
Vice President
DATED: May 19, 2000
