Exhibit 10.1
Merger of
BPZ ENERGY INC.
Into
NAVIDEC MERGER CORP.
A wholly owned subsidiary of
NAVIDEC, INC.
Dated July 8, 2004
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MERGER AGREEMENT
MERGER AGREEMENT
(this "Agreement"), dated as of July 8, 2004, by and among
Navidec, Inc., a Colorado corporation
("Navidec"), Navidec Merger Corp., a
Colorado transitory corporation ("Merger
Corp."), and BPZ Energy, Inc., a Texas
corporation ("BPZ"). Each of Navidec,
Merger Corp. and BPZ is sometimes referred
to herein as a "Party" and together, as the
"Parties."
W I T N E S S E T H :
WHEREAS, the
shareholders of BPZ, listed on Schedule A ("BPZ
Shareholders"), hold all of the issued and
outstanding shares of BPZ common
stock, no par value per share (the "BPZ
Common Stock"); and
WHEREAS, Navidec
is subject to the reporting requirements of Sections 13(a)
and 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange
Act"), and shares of Navidec common stock,
no par value per share (the "Navidec
Common Stock"), are listed on the NASD OTC
Electronic Bulletin Board; and
WHEREAS,
pursuant to this Agreement, Merger Corp. will merge with and
into
BPZ on the terms and subject to the
conditions set forth herein (the "Merger")
and, in connection therewith, and subject
to the satisfaction of certain
conditions, up to 27,000,000 shares of
Navidec Common Stock shall be issued to
BPZ in accordance with Schedule A and in
the manner set forth in Article II
hereof and upon the terms and conditions
otherwise set forth in this Agreement
in order that BPZ shall be the surviving
entity and shall be a wholly-owned
subsidiary of Navidec, and BPZ shall own
71% of the issued and outstanding
shares of Navidec Common Stock and the name
of the Company shall be changed to
BPZ Energy, Inc. and,
WHEREAS, the
respective Boards of Directors of the Parties have adopted
resolutions approving this Agreement and
declaring its advisability;
WHEREAS, for
federal income tax purposes, the Merger is intended to qualify
as a tax-free reorganization in accordance
with the provisions of Section
368(a)(2)(E) of the Internal Revenue Code
of 1986, as amended (the "Code").
NOW, THEREFORE,
in consideration of the premises and the mutual covenants
and agreements herein contained, the
Parties do hereby agree, subject to the
terms and conditions hereinafter set forth,
as follows:
Article I
THE MERGER
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1.1 Consummation
of the Merger. Unless this Agreement has been terminated
and the transactions contemplated have been
abandoned pursuant to Section 9.1,
and subject to the satisfaction or waiver
of the conditions set forth in Article
V, the consummation of the Merger (the
"Closing") shall take place in accordance
with the applicable provisions of the
Colorado Business Corporations Act (the
"CBCA") at 10:00 a.m. on the second
business day after satisfaction or waiver of
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the conditions set forth in Article V
(other than those to be satisfied at or as
of the date of the Closing) at the Denver
offices of Ballard Spahr Andrews &
Ingersoll, LLP, unless another date, time
or place is agreed to by the Parties
(the "Closing Date") at which time Merger
Corp. will merge with and into BPZ,
and BPZ shall be the surviving entity and
become a wholly-owned subsidiary of
Navidec. BPZ shall file a Certificate of
Merger in the State of Texas and the
State of Colorado, and BPZ shall be the
surviving corporation (the "Surviving
Corporation").
1.2 Subsequent
Actions. If, at any time after the Closing Date, the
Surviving Corporation shall consider or be
advised that any deeds, bills of
sale, assignments, assurances or any other
actions or things are necessary or
desirable to vest, perfect or confirm the
Surviving Corporation's right, title
or interest in, to or under any of the
rights, properties, privileges,
franchises or assets of either of its
constituent corporations acquired or to be
acquired by the Surviving Corporation as a
result of, or in connection with, the
Merger, or otherwise to carry out the
intent of this Agreement, the officers and
directors of the Surviving Corporation
shall be authorized to execute and
deliver, in the name and on behalf of the
Parties, all such deeds, bills of
sale, assignments and assurances and to
take and do, in the name and on behalf
of each such corporation, all such other
actions and things as may be necessary
or desirable to vest, perfect or confirm
any and all right, title and interest
in, to and under such rights, properties,
privileges, franchises or assets in
the Surviving Corporation or otherwise to
carry out the intent of this
Agreement.
1.3 Surviving
Corporation: Certificate of Incorporation; By-laws; Officers
and Directors. Unless otherwise agreed to
by the Parties prior to the Closing,
on the Closing Date:
(a) the certificate of incorporation of Surviving Corporation as
in
effect immediately prior to the Closing (a
true and correct copy of which is
attached hereto as Schedule 1.3(a)) shall
be, at and after the Closing Date, the
certificate of incorporation of Surviving
Corporation (the "Certificate of
Incorporation") until further altered,
amended or repealed in accordance with
the this Agreement or applicable law;
(b) the by-laws of Surviving Corporation as in effect
immediately
prior to the Closing (a true and correct
copy of which is attached hereto as
Schedule 1.3(b)) shall be, at and after the
Closing Date, the by-laws of
Surviving Corporation until further
altered, amended or repealed in accordance
with this Agreement, such by-laws or
applicable law; and
(c) the officers and directors of Surviving Corporation and
Navidec
from and after the Closing shall be the
Persons set forth on Schedule 1.3(c),
until their successors are elected or
appointed and qualified or until their
earlier resignation or removal.
Article II
CAPITAL STOCK
-------------
2.1 Treatment of
Capital Stock. The manner and basis of converting shares
of BPZ Common Stock for shares of common
stock, no par value per share, of
Navidec by virtue of the Merger and without
any action on the part of the
Parties or any holder thereof, shall be as
set forth in this Article II. At or
before Closing, all shares of BPZ Preferred
Stock shall convert to BPZ Common
Stock.
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2.2 Conversion
of BPZ Common Stock. At the Closing, the BPZ Common Stock,
shall be converted into 9,000,000 shares of
validly issued, fully paid and
nonassessable shares of Navidec Common
Stock (the "BPZ Converted Shares") in
exchange for all of the BPZ Common Stock
issued and outstanding. Immediately
subsequent to the Closing Date, Navidec
shall file a proxy statement with the
Securities and Exchange Commission to seek
shareholder approval to amend the
Navidec Articles of Incorporation to change
the name of Navidec to BPZ Energy,
Inc. and to increase the number of shares
of Navidec Common Stock authorized for
issuance to 100,000,000 shares. To provide
capital to satisfy the requirements
of Section 2.5. Except as otherwise
provided herein, commencing immediately
after the Closing, each certificate (a "BPZ
Certificate") which, immediately
prior to the Closing, represents all or a
portion of the BPZ Common Stock shall
evidence the right to receive a
proportionate share of the BPZ Converted Shares
on the basis set forth in this Section 2.2
and dividends or distributions, if
any, pursuant to Section 2.4 hereof.
2.3 Conversion
of Merger Corp. Common Stock. At the Closing, each share of
Merger Corp. Common Stock issued and
outstanding immediately prior to the
Closing, and all rights in respect thereof,
shall forthwith cease to exist and
shall be converted into one validly issued,
fully paid and nonassessable share
of common stock of BPZ.
2.4 Exchange
Procedures. On the Closing Date, BPZ shall surrender to
Navidec one or more BPZ Certificates
representing the BPZ Common Stock, together
with a duly executed and completed letter
of transmittal and all other documents
and materials reasonably required by
Navidec to be delivered in connection
therewith, and shall be entitled to receive
a certificate or certificates
representing the BPZ Converted Shares into
which the shares of BPZ Common Stock
which immediately prior to the Closing were
represented by such surrendered BPZ
Certificate or Certificates shall have been
converted pursuant to the provisions
of Section 2.2. Unless and until a BPZ
Certificate is so surrendered, no
dividend or other distribution, if any,
payable to the holders of record of
shares of Navidec Common Stock as of any
date subsequent to the Closing Date
shall be paid to the holder of such BPZ
Certificate in respect thereof or in
respect of the Navidec Common Stock into
which such BPZ Certificate is
exchangeable. Except as otherwise provided
herein, upon the surrender of a BPZ
Certificate, the record holder of the
certificate or certificates representing
shares of Navidec Common Stock issued in
exchange therefor shall be entitled to
receive (i) at the time of surrender, the
amount of any dividends or other
distributions (net of any applicable tax
withholdings) having a record date
after the Closing Date and a payment date
prior to the surrender date, and (ii)
at the appropriate payment date, the amount
of dividends or other distributions
(net of any applicable tax withholdings)
having a record date after the Closing
Date and a payment date subsequent to the
surrender date, in each case, payable
in respect of such shares of Navidec Common
Stock. No interest shall be payable
in respect of the payment of dividends or
distributions pursuant to the
immediately preceding sentence.
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2.5 Earn-Out
Provisions.
(a) Notwithstanding anything in this Agreement to the contrary,
promptly following the date (which date
shall be no later than 24 months from
the Closing Date) that the Surviving
Corporation (or any successor thereto)
receives confirmation from a licensed
petroleum engineer that it owns proven
reserves totaling greater than fifty
billion cubic feet (bcfe) of natural gas or
its equivalent in crude oil or any
combination thereof as barrels of oil
equivalent (boe), such date being referred
to herein as an "Earn-Out Achievement
Date", the BPZ Shareholders shall be
entitled to and shall receive an additional
9,000,000 shares of validly issued, fully
paid and non-assessable Navidec Common
Stock (the "First BPZ Earn-Out Shares"), as
set forth on Schedule A, and the BPZ
Shareholders shall in addition be entitled
to receive, with respect to the First
BPZ Earn-Out Shares, the amount of any
dividends or other distributions (net of
any applicable tax withholdings) having a
record date after the Earn-Out
Achievement Date, payable in respect of
such shares of Navidec Common Stock.
Notwithstanding anything in this Agreement
to the contrary, if at any Earn-Out
Achievement Date the Articles of
Incorporation of Navidec have not been amended
to accommodate the delivery of the BPZ
Earn-Out Shares, the BPZ Earn-Out Shares
shall be deemed issued and shall be
delivered as soon as necessary corporate
action has been taken to amend such
Articles of Incorporation to increase the
authorized capital as required by Section
8.5 of this Agreement.
(b) Notwithstanding anything in this Agreement to the contrary,
promptly following the date (which date
shall be no later than 36 months from
the first Earn Out Achievement Date as set
forth in (a) above) that the
Surviving Corporation (or any successor
thereto) is entitled to receive as its
proportionate share from gross production
from any oil and gas wells owned or
operated by BPZ not less than 2,000 barrels
of oil per day or the energy
equivalent thereof should said production
be a mixture of both oil and natural
gas ("BOEPD") (the "Second Earn-Out
Achievement Date"), the BPZ Shareholders
shall be entitled to and shall receive
9,000,000 additional shares of validly
issued, fully paid and non-assessable
Navidec Common Stock (the "Second BPZ
Earn-Out Shares," and collectively or
independently with the First BPZ Earn-Out
Shares, the "BPZ Earn-Out Shares"). In
addition to the Second BPZ Earn-Out
Shares, the BPZ Shareholders shall be
entitled to receive with respect to the
Second BPZ Earn-Out Shares, the amount of
any dividends or other distributions
(net of any applicable tax withholdings)
having a record date after the Second
Earn-Out Achievement Date, payable in
respect of such shares of Navidec Common
Stock.
2.6 Federal
Income Tax Treatment. It is the intent of the Parties that the
Merger contemplated hereby be treated for
federal income tax purposes as a
tax-free merger pursuant to Section
368(a)(2)(E) of the Internal Revenue Code of
1986, as amended (the "IRC"). The Parties
shall report the transactions under
this Agreement consistent with such
treatment, shall keep such records and file
such information with respect thereto as is
required by Treasury Regulation
1.368-3 and shall take no position that is
contrary thereto except pursuant to
an administrative finding upon the appeal
of a 30-day letter or unless required
to do so pursuant to a determination as
defined in IRC Section 1313(a).
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Article III
REPRESENTATIONS AND WARRANTIES
------------------------------
3.1
Representations and Warranties of Navidec and Merger Corp. Except
as
set forth in the Navidec disclosure
schedule delivered by Navidec to BPZ prior
to the execution of this Agreement (the
"Navidec Disclosure Schedule") (each
section of which qualifies the
correspondingly numbered representation and
warranty or covenant and any other
representation of warranty, if the disclosure
set forth in the Navidec Disclosure
Schedule is reasonably apparent to such
other representation or warranty), Navidec
and Merger Corp. represent and
warrant to BPZ, as follows:
(a) Power and Authority. Navidec and Merger Corp. have the
corporate
power and authority to enter into this
Agreement and to carry out its and their
obligations hereunder. The execution and
delivery of this Agreement and the
consummation of the transactions
contemplated hereby have been duly authorized
by the Boards of Directors of Navidec and
Merger Corp., and no other corporate
proceedings on the part of Navidec or
Merger Corp. is necessary or advisable to
authorize this Agreement and the
transactions contemplated hereby.
(b) No Material Adverse Effect. Since March 31, 2004, there has
not
been any material adverse change in the
business, operations, properties,
assets, condition, financial or otherwise,
of Navidec.
(c) Due Organization; Power; Qualification; Subsidiaries and
Affiliates, Etc.
(i) Navidec is a corporation duly organized, validly existing,
and in good standing under the laws of the state of its
incorporation
and has the corporate power to own its property and to carry on
its
business as now conducted. Navidec is not qualified to do business
as
a foreign corporation in any jurisdiction.
(ii) Navidec has three subsidiaries namely Merger Corp.,
Navidec
Financial Services, Inc. ("Navidec Financial") and Northsight
Mortgage
Corporation ("Northsight"). Navidec has no other subsidiaries
or
affiliates, as that term is used in the regulations promulgated
under
the Securities Act of 1933, as amended (the "Securities Act").
Prior
to the closing date, Northsight will become a subsidiary of
Navidec
Financial.
(d) Capitalization.
(i) As of the date of this Agreement, the total authorized
capital stock of Navidec consists of 20,000,000 shares of
Navidec
Common Stock. As of the Closing Date except as described in
Section
3.1(d)(ii) below, 5,000,000 shares will be outstanding and/or
reserved
for to permit the exercise of any vested and unexpired options
which
may be outstanding at closing and as set forth on Schedule
3.1(d)(I).
If subsequent to closing any options are exercised in accordance
with
their terms as set forth on Schedule 3.1(d)(c) any funds received
as
proceeds of such exercises shall be payable by Navidec to
Navidec
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Financial. Between the date of this Agreement and the Closing Date
the
management of Navidec may take whatever actions it deems
appropriate
to grant or amend stock or stock option grants to its management
and
employees so long as the combined fully diluted number of shares
that
are issued and outstanding or reserved for does not exceed
5,000,000
shares at the Closing Date.
(ii) Immediately upon execution of this Agreement, Navidec with
the assistance of BPZ shall commence a private placement of
Navidec
Common Shares to raise up to $6 million on a best efforts all or
none
$3 million minimum; best efforts $6 million maximum basis. No
more
than 6,000,000 Navidec Common Shares will be issued in this
offering
and to the extent that the minimum has been reached and Closing
has
occurred, the balance of the shares reserved for the private
placement
may continue to be offered until the maximum has been achieved.
(iii) Other than 564,500 "A" Stock Purchase Warrants
exercisable
into shares of Navidec Common Stock at an exercise price of $2.00
per
share, expiring on August 31, 2005, and 564,500 "B" Stock
Purchase
Warrants exercisable into shares of Navidec Common Stock at an
exercise price of $4.00 per share, expiring on August 31, 2005
(collectively, the "Warrants"), there are no present and on the
Closing Date there will be no outstanding subscriptions,
options,
warrants, contracts, calls, puts, agreements, demands or other
commitments or rights of any type to purchase or acquire any
securities of Navidec (other than the Warrants), nor are there
outstanding securities or debt instruments of Navidec which are
convertible into or exchangeable for any shares of capital stock
of
Navidec, and, other than may be required in connection with
this
agreement, Navidec presently has and as of the Closing Date will
have
no obligations of any kind to issue any additional securities.
(iv) As contemplated, the Parties agree that prior to Closing,
Navidec shall establish a record date to spin out the shares of
Navidec Financial owned by Navidec to all shareholders of record
of
Navidec at the record date. The Parties believe that this
transaction
may require registration. Furthermore, the Parties agree that at
or
before Closing, in addition to assigning the Navidec ownership
of
Northsight to Navidec Financial, all other assets and liabilities
of
Navidec shall be assigned to Navidec Financial. It is contemplated
by
the parties to this Agreement that at the effective date of the
completion of all transactions contemplated by this Agreement
including the finalization of the spin-off of Navidec
Financial,
effectively Navidec, as of the Closing Date, would have no assets,
no
liabilities and no effective business other than the businesses
of
BPZ.
(e) Securities Filings; Financial Information; No Material
Adverse
Change.
(i) The common stock of Navidec is listed on the NASD OTC
Electronic Bulletin Board. Navidec has filed its annual report on
Form
10-K for the year ended December 31, 2003 and its quarterly report
on
Form 10-QSB for the period ended March 31, 2004 (the "Navidec
Periodic
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Reports") with the SEC. The Navidec Periodic Reports were true,
correct and accurate as of the date of filing and do not contain
any
untrue statement of material fact or omit to state a material
fact
required to be stated therein in order to make the statements
therein,
in light of the circumstances under which they were made, not
misleading.
(ii) The Navidec Periodic Reports include Navidec's audited
balance sheets and income statements for the fiscal years ended
December 31, 2002 and December 31, 2003, and unaudited
financial
information for March 31, 2003 and 2004 (collectively, the
"Financial
Statements"). The Financial Statements have been prepared in
accordance with generally accepted accounting principles, do
not
contain any untrue statement of a material fact or omit to state
a
material fact
required to be stated therein in order to make the
statements therein, in light of the circumstances under which
they
were made, not misleading, and fairly present in all material
respects, the financial condition of Navidec as at the
respective
dates thereof, and the results of operation of Navidec for the
periods
then ended.
(iii) At March 31, 2004, there were no liabilities, absolute or
contingent of Navidec that were not shown or reserved against on
the
balance sheets included in the Financial Statements, except
obligations under the contracts shown on or as otherwise disclosed
in
Schedule 3.1(e) of the Navidec Disclosure Schedule. As of the
Closing
Date, Navidec shall have no assets or liabilities of any kind,
whether
known or unknown, accrued, absolute, contingent or otherwise.
(iv) Since March 31, 2004, Navidec has not sold or otherwise
disposed of or encumbered any of the properties or assets reflected
on
the Financial Statements, or other assets owned or leased by
it,
except in the ordinary course of business, or as otherwise
disclosed
on Schedule 3.1(e) of the Navidec Disclosure Schedule.
(f) Tax Matters.
(i) Navidec has filed or caused to be filed with the
appropriate
federal, state, county, local and foreign governmental agencies
or
instrumentalities all material tax returns and reports required to
be
filed, and all taxes, assessments, fees and other governmental
charges
have been fully paid when due (subject to any extensions filed on
a
timely basis).
(ii) There is not pending nor, to the knowledge of Navidec, is
there any threatened federal, state or local tax audit of
Navidec.
There is no agreement with any federal, state or local taxing
authority by Navidec that may affect the subsequent tax liabilities
of
Navidec.
(iii) Without limiting the foregoing: (A) the Financial
Statements include adequate provisions for all taxes,
assessments,
fees, penalties and governmental charges which have been or in
the
future may be assessed against Navidec with respect to the period
then
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ended and all periods prior thereto; and (B) on the date
hereof,
Navidec is not liable for any taxes, assessments, fees or
governmental
charges.
(g) No Conflict or Default; Enforceability; Corporate Records;
Compliance with Law. Neither the execution
and delivery of this Agreement, nor
compliance with the terms and provisions
hereof, including without limitation
the consummation of the transactions
contemplated hereby, will violate any
statute, regulation or ordinance of any
governmental authority, or conflict with
or result in the material breach of any
term, condition or provision of the
articles of incorporation, by-laws or other
charter documents of Navidec or
Merger Corp., nor of any agreement, deed,
contract, mortgage, indenture, writ,
order, decree, legal obligation or
instrument to which Navidec or Merger Corp.
is a party or by which Navidec, Merger
Corp. or any of its or their assets or
properties is or may be bound; or
constitute a material default (or an event
which, with the lapse of time or the giving
of notice, or both, would constitute
a material default) thereunder, nor result
in the creation or imposition or any
lien, charge or encumbrance, or restriction
of any nature whatsoever with
respect to any properties or assets of
Navidec or Merger Corp., nor give to
others any interest or rights, including
rights of termination, acceleration or
cancellation in or with respect to any of
the properties, assets, contracts or
business of Navidec or Merger Corp. This
Agreement and all other agreements and
documents delivered by Navidec and Merger
Corp. in connection herewith have been
duly executed and delivered by Navidec and
Merger Corp. and constitute the
binding obligations of Navidec and Merger
Corp. enforceable in accordance with
their respective terms. Navidec and Merger
Corp. have permitted, or will permit,
BPZ to examine their respective corporate
minute and stock records books. The
corporate minute books contain the articles
of incorporation, by-laws and other
charter documents of Navidec and Merger
Corp. as in effect on the date hereof
and a true and complete record of all
actions by and meetings of the directors
(and committees thereof) and stockholders
of Navidec and Merger Corp. and
accurately reflect all transactions
referred to therein. To their knowledge,
neither Navidec nor Merger Corp. are in
violation of any outstanding arbitration
award, judgment, order or decree; or to
their knowledge, in violation of any
material statute, regulation or ordinance
("Law"), including, but not limited
to, any antidiscrimination, hazardous and
toxic substances, wage, hour, working
condition, payroll withholding, pension,
building, zoning and tax Law. To their
knowledge, there have been no allegations
of or inquiries concerning any
material violations of Law by Navidec or
Merger Corp. within the past three
years.
(h) Litigation. Except as disclosed in the Navidec Periodic
Reports,
or in Schedule 3.1(h) there are no actions,
suits, investigations, or
proceedings pending, nor, to the knowledge
of Navidec, threatened against
Navidec or Merger Corp., the performance of
the terms and conditions hereof, or
the consummation of the transactions
contemplated hereby, in any court or by or
before any governmental body or agency,
including without limitation any claim,
proceeding or litigation for the purpose of
challenging, enjoining or preventing
the execution, delivery or consummation of
this Agreement. Neither Navidec nor
Merger Corp. is subject to any order,
judgment, decree, stipulation or consent
or any agreement with any governmental body
or agency. As of the Closing Date,
neither Navidec nor Merger Corp. shall be
party to any action, suit or
proceeding of any kind.
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(i) Governmental and Other Approval. Navidec and Merger Corp each
have
all material permits, licenses, orders and
approvals of all federal, state,
local or foreign governmental or regulatory
bodies required for Navidec and
Merger Corp. to conduct its or their
business as presently conducted. All such
permits, licenses, orders and approvals are
in full force and effect and no
suspension or cancellation of any of them
is threatened, except as would not
reasonably be expected to have a material
adverse effect on Navidec or Merger
Corp., and none of such permits, licenses,
orders or approvals will be affected
by the consummation of the transactions
contemplated by this Agreement. No
approval or authorization of or filing with
any governmental authority or any
other person or entity on the part of
Navidec or Merger Corp. is required as a
condition to the execution and delivery of
this Agreement or the consummation of
the transactions contemplated hereby other
than the filing of any documents
contemplated by this Agreement.
(j) Salaries. Schedule 3.1(j) of the Navidec Disclosure Schedule
sets
forth a complete list of all of the persons
who are employed by Navidec and
Merger Corp. as of the date of this
Agreement, together with their compensation
(including bonuses) for the calendar year
ended December 31, 2003, and the rate
of compensation (including bonus
arrangements) currently being paid to each such
employee. As of the Closing Date, all
employees, agents and officers of Navidec
and Merger Corp. shall have resigned and
provided Navidec and Merger Corp. with
general releases in form and substance
satisfactory to BPZ.
(k) Accrued Compensation. Neither Navidec nor Merger Corp. has,
nor
shall it on Closing, have any outstanding
liability for payment of wages,
vacation pay (whether accrued or
otherwise), salaries, bonuses, pensions or
contributions under any labor or employment
contract, whether oral or written,
or by reason of any past practices with
respect to such employees based upon or
accruing with respect to services of
present or former employees of Navidec or
Merger Corp.
(l) Employee Benefit Plans. Neither Navidec nor Merger Corp.
has,
maintains or contributes to and never has
had, maintained or contributed to, any
pension plan, profit sharing plan or
employee's savings plan, and neither is
otherwise subject to any applicable
provisions of the Employee Retirement Income
Security Act of 1974 ("ERISA").
(m) Material Contracts, Etc. Schedule 3.1(m) of the Navidec
Disclosure
Schedule contains an accurate list of all
material contracts, commitments,
leases, instruments, agreements, licenses
or permits, written or oral, to which
Navidec or Merger Corp. is a party or by
which it or its properties are bound
(including without limitation contracts
with customers, joint venture or
partnership agreements, contracts with any
labor organizations, employment
agreements, consulting agreements, loan
agreements, indemnity or guaranty
agreements, BPZ's, mortgages, options to
purchase land, liens, pledges or other
security agreements). As of the Closing
Date, Navidec and Merger Corp. shall
have terminated and been released from any
and all contracts, commitments,
leases, instruments, agreements.
(n) The representation and warranties contained herein do not
contain
any untrue statement of a material fact or
omit to state a material fact
necessary in order to make the statements
therein, in light of the circumstances
under which they were made, not
misleading.
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3.2
Representations and Warranties of BPZ. Except as set forth in
the
disclosure schedule delivered by BPZ to
Navidec prior to the execution of this
Agreement (the "BPZ Disclosure Schedule")
(each section of which qualifies the
correspondingly numbered representation or
warranty or covenant and any other
representation or warranty, if the
disclosure set forth in the BPZ Disclosure
Schedule is readily applicable to such
other representations or warranty), BPZ
represents and warrants to Navidec as
follows:
(a) Power and Authority. BPZ has the corporate power and authority
to
enter into this Agreement and to carry out
its obligations hereunder. The
execution and delivery of this Agreement
and the consummation of the
transactions
