AGREEMENT FOR SHARE EXCHANGE AND ACQUISITION.
AGREEMENT
FOR SHARE EXCHANGE AND ACQUISITION.
THIS
AGREEMENT FOR SHARE EXCHANGE (this "Agreement") is dated as of February 15,
2009, by and among OMEGA COMMERCIAL FINANCE CORP., a Wyoming corporation
("OMEGA"), BBB DEVELOPMENTS MEXICO Developments Mexico S de RL de CV ("BBB
DEVELOPMENTS MEXICO") a Mexican limited liability company and , the managing
members and shareholder of BBB DEVELOPMENTS MEXICO (the "MAJORITY SHAREHOLDER").
RECITALS:
Whereas:
OMEGA and
the MAJORITY SHAREHOLDER desire to complete a share exchange transaction
pursuant to which OMEGA shall acquire all of the issued and outstanding common
stock of BBB DEVELOPMENTS MEXICO in exchange for the issuance of shares of OMEGA
to the MAJORITY SHAREHOLDER and the raising of additional capital to BBB
DEVELOPMENTS MEXICO.
Whereas:
OMEGA
within 90 days of the Closing Date will raise capital in the amount of 10
million and 00/100 dollars ($10,000,000) and no later than May 17th 2009 an
additionally raise of capital totaling the amount of Forty million ($40
,000,000) over 36 months period to BBB DEVELOPMENTS MEXICO for designated
take-out, construction and improvements to the Development currently known as
the "Los ▇▇▇▇▇▇▇ ( referred herein as the "Asset") and for the operation of BBB
DEVELOPMENTS MEXICO's business
Whereas:
The Board
of Directors of OMEGA and the Board of Directors of BBB DEVELOPMENTS MEXICO have
each approved the proposed transaction, contingent upon the satisfaction prior
to closing of all of the terms and conditions of this Agreement.
Whereas:
The
MAJORITY SHAREHOLDER is the owner of all of the issued and outstanding common
stock of BBB DEVELOPMENTS MEXICO, consisting of membership units;
Whereas:
BBB
DEVELOPMENTS MEXICO possesses title and full ownership of the "Los ▇▇▇▇▇▇▇
Development . The Asset was recently purchased by BBB DEVELOPMENTS MEXICO for a
total value for merger of 10 Million Dollars ($10,000,000) with appraised value
of Eighteen Million Dollars ($18,000,000) for the Asset as is.
Whereas:
THE
PARTIES in consideration of the terms and conditions of the Agreement, the
parties make certain representations, warranties and agreements in connection
with the completion of the proposed share exchange transaction.
NOW,
THEREFORE, in consideration of the foregoing recitals, which shall be considered
an integral part of this Agreement, and the covenants, conditions,
representations and warranties hereinafter set forth, the parties hereby agree
as follows:
ARTICLE
I
THE
EXCHANGE
1.1 The
Exchange. On the Closing Date(as hereinafter defined), OMEGA shall acquire all
of the issued and outstanding common stock of BBB DEVELOPMENTS MEXICO from the
MAJORITY SHAREHOLDER or their assignee. Consideration to be issued by OMEGA
shall consist of a stock component. The stock component issued by OMEGA shall be
a total of 1,500,000 shares of its common stock (the "Exchange Shares") in
exchange for the shares of issued and outstanding BBB DEVELOPMENTS MEXICO stock,
representing 100% of the currently issued and outstanding common stock of BBB
DEVELOPMENTS MEXICO.
1.2
Wholly Owned Subsidiary. At the Closing, the MAJORITY SHAREHOLDER shall acquire
shares of OMEGA and BBB DEVELOPMENTS MEXICO shall become wholly owned by Omega.
Immediately following the completion of the share exchange transaction through
the issuance of the Exchange Shares and completion of the additional
transactions described in Section 4.4 hereof, OMEGA shall have a total of
approximately 28,810,900 shares of its common stock issued and outstanding and
MAJORITY SHAREHOLDER shall own 1,000,000 shares of common stock in OMEGA, free
and clear of all liens and encumbrances. For Federal income tax purposes, it is
intended that the share transfer and Exchange shall constitute a tax-free
reorganization within the meaning of Section 368(a)(1)(B) of the Internal
Revenue Code of 1986, as amended (the "Code").
1.3
Closing and Closing Time. Subject to the provisions of this Agreement, the
parties shall hold a closing (the "Closing") to be held on the soonest of (i)
five (5) days after the parties have executed this Agreement or (ii) the first
business day on which the last of the conditions set forth in Article V have
been fulfilled or waived, or (iii) such other date as the parties hereto may
agree (the "Closing Date"), at such time and place as the parties hereto may
agree. If Closing does not take place before , 2009, the MAJORITY SHAREHOLDER
may declare this agreement null and void.
Officers
▇▇▇▇▇
▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ the majority shareholder of BBB DEVELOPMENTS MEXICO
immediately prior to the Closing Date shall be the Chief Executive Officer and
President of BBB DEVELOPMENTS MEXICO following the Closing Date and he shall
serve in such offices for the terms provided by law or in the Bylaws. The
MAJORITY SHAREHOLDER shall be given the responsibility of operating and managing
the business of BBB DEVELOPMENTS MEXICO.
1.5 BBB
DEVELOPMENTS MEXICO Developments Advisory Board Member: ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇
▇▇▇▇▇ the Majority Shareholders of BBB DEVELOPMENTS MEXICO immediately prior to
the Closing Date shall become Co-Chairman’s of the Advisory Board Committee that
will oversee and report to Omega's Board of Directors pursuant to the operations
and improvement with the use of the capital provided, and no encumbrances,
liens, or disposition (sale) of Los ▇▇▇▇▇▇▇ shall occur without the written
consent and MAJORITY SHAREHOLDER.
1.6
Protective Covenant for Omega and MAJORITY SHAREHOLDER. If the following
events occur, then ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have the right to
purchase the Asset from BBB DEVELOPMENTS MEXICO for the of 1,000,000 shares of
Omega they received in the exchange , to-wit (i.) the termination of the
Majority Shareholder as President or Chief Executive Officer of BBB DEVELOPMENTS
MEXICO(ii) Omega fails to provide the capital required by this Agreement (iii)
Omega breaches this Agreement or any agreement with BBB DEVELOPMENTS MEXICO (iv)
the responsibilities assigned to the Majority Shareholder are materially changed
or he is no longer operating or managing the "Asset". Omega agrees to authorize
the transfer and the execution of the documents necessary to transfer the Asset
in the event any event does or does not take place as required under this
Agreement. The documents necessary to transfer the Asset shall be executed in
blank form and ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall hold the title documents in
trust and the Asset shall only be transferred to an entity of his choice. No
lien shall be filed against the Asset without the express written consent of the
Majority Shareholder.
1.7 Net
Income Disbursements from Operations of Los ▇▇▇▇▇▇▇ Development: Omega and the
Majority Shareholder will execute a formal Agreement that will govern the
operations of the Asset and the distribution of income. The BBB DEVELOPMENTS
MEXICO Operating Agreement will designated the distribution of Net Income (after
operational expenses) to be determined by the monthly audited Income Statement,
and paid as follows, pro rata Fifty-One percent (51%) to ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇
▇▇▇▇▇ or their designee and Forty-Nine (49%) to Omega. All of the operating
expenses shall be paid from the gross revenues of BBB DEVELOPMENTS MEXICO and
the capital provided in this Agreement by Omega. Omega and BBB DEVELOPMENTS
MEXICO agree that all funds advanced by Omega shall be disbursed by wire
transfer in United States dollars to the law firm of Reference: (Include
attorney's name, client number and or invoice number).
1.8 The
Ongoing Operations. OMEGA shall continue to operate its business following the
Closing of the Share Exchange Agreement, and BBB DEVELOPMENTS MEXICO shall
continue to operate as a wholly-owned subsidiary of OMEGA with the Majority
Shareholder serving as its advisory board members and as its
President/CEO.
1.9
Financial Contributions. OMEGA within Ninety (90) days of the Closing Date will
disburse capital from a capital raise to BBB DEVELOPMENTS MEXICO, totaling 10
million and 00/100 dollars ($10,000,000) to BBB DEVELOPMENTS MEXICO and no later
than the March 17th , 2009
an additional raise for the amount of Forty million and 00/100 dollars
($40,000,000) will be raised to be dispersed over 36 months to BBB DEVELOPMENTS
MEXICO for its capital and for the operation of its business..
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES
2.1
Representations and Warranties of OMEGA. OMEGA represents and warrants to the
MAJORITY SHAREHOLDER as follows:
(a)
Organization, Standing and Power. OMEGA is a corporation duly organized, validly
existing and in good standing under the laws of the state of Wyoming, is a
listed company on the OTC Bulletin Board of United States of America, has all
requisite power and authority to own, lease and operate its properties and to
carry on its business as now being conducted, and is duly qualified and in good
standing to do business in each jurisdiction in which the nature of its business
or the ownership or leasing of its
properties
makes such qualification necessary
(b)
Capital Structure. As of the date of execution of this Agreement, the authorized
capital stock of OMEGA consists of 100,000,000 shares of Common Stock with a par
value of $0.01 per share, of which 28,810,900 shares are currently issued and
outstanding, and 10,000,000 authorized shares of Preferred Stock with a par
value of $5.00 per share, of which no shares are currently issued and
outstanding. The Exchange Shares to be issued pursuant to this Agreement shall
be, when issued pursuant to the terms of the resolution of the Board of
Directors of OMEGA approving such issuance, validly issued, fully paid and
nonassessable, and not subject to preemptive rights. Except as otherwise
specified herein, as of the date of the execution of this Agreement, there are
no other options, warrants, calls, agreements or other rights to purchase or
otherwise acquire from OMEGA at any time, or upon the happening of any stated
event, any shares of the capital stock of OMEGA whether or not presently issued
or outstanding.
(c)
Certificate of Incorporation, Bylaws, and Minute Books. The copies of the
Articles of Incorporation and of the Bylaws of OMEGA will be delivered to BBB
DEVELOPMENTS MEXICO and will be certified as true, correct and complete copies
thereof. The minute book of OMEGA, which will be made available for inspection,
contains accurate minutes of all meetings and accurate consents in lieu of
meetings of the Board of Directors (and any committee thereof) and of the
shareholders of OMEGA since the date of incorporation and accurately reflects
all transactions referred to in such minutes and consents in lieu of
meetings.
(d)
Authority. OMEGA has all requisite power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by the Board of Directors of
OMEGA. No other corporate or shareholder proceedings on the part of OMEGA are
necessary to authorize the Exchange, or the other transactions contemplated
hereby.
(e)
Conflict with Other Agreements; Approvals. The execution and delivery of this
Agreement does not, and the consummation of the transactions contemplated hereby
will not result in any violation of, or default (with or without notice or lapse
of time, or both) under, or give rise to a right of termination, cancellation or
acceleration of any obligation or the loss of a material benefit under, or the
creation of a lien, pledge, security interest or other encumbrance on assets
(any such conflict, violation, default, right of termination, cancellation or
acceleration, loss or creation, a "violation") pursuant to any provision of the
Articles of Incorporation or Bylaws or any organizational document of OMEGA or,
result in any violation of any loan or credit agreement, note, mortgage,
indenture, lease, benefit plan or other agreement, obligation, instrument,
permit, concession, franchise, license, judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to OMEGA which violation would have a
material adverse effect on OMEGA taken as a whole. No consent, approval, order
or authorization of, or registration, declaration or filing with, any court,
administrative agency or commission or other governmental authority or
instrumentality, domestic or foreign (a "Governmental Entity") is required by or
with respect to OMEGA in connection with the execution and delivery of this
Agreement by OMEGA or the consummation by OMEGA of the transactions contemplated
hereby.
(f) Books
and Records. OMEGA will make available for inspection by MAJORITY SHAREHOLDER
upon reasonable request all the books of OMEGA relating to the business of
OMEGA. Such books of OMEGA have been maintained in the ordinary course of
business. All documents furnished or caused to be furnished to MAJORITY
SHAREHOLDER by OMEGA are true and correct copies, and there are no amendments or
modifications thereto except as set forth in such documents.
(g)
Compliance with Laws. OMEGA is and has been in compliance in all material
respects with all laws, regulations, rules, orders, judgments, decrees and other
requirements and policies imposed by any governmental entity applicable to it,
its properties or the operation of its businesses.
(h) SEC
Filings. Omega's predecessor company filed a registration statement with the SEC
under the Securities Act of 1934. Thereafter, Omega's predecessor company or
OMEGA has filed all periodic reports required to be filed with the Securities
Exchange Commission and, as of the date hereof, is current in its filing
obligations.
(i)
Financial Statements and Tax Returns. Copies of Omega's audited financial
statements for the fiscal year ended December 31, 2007, its financial statements
for the periods ending March 31, and June 30, 2008 can be obtained by BBB
DEVELOPMENTS MEXICO on the SEC website.
(j)
Litigation. There is no suit, action or proceeding pending, or, to the knowledge
of OMEGA, threatened against or affecting OMEGA which is reasonably likely to
have a material adverse effect on OMEGA, nor is there any judgment, decree,
injunction, rule or order of any governmental entity or arbitrator outstanding
against OMEGA having, or which, insofar as reasonably can be foreseen, in the
future could have, any such effect.
(k) Tax
Returns. OMEGA has duly filed any tax reports and returns required to be filed
by it and has fully paid all taxes and other charges claimed to be due from it
by any federal, state or local taxing authorities. There are not now any pending
questions relating to or claims asserted for, taxes or assessments asserted upon
OMEGA.
2.2
Representations and Warranties of BBB DEVELOPMENTS MEXICO. BBB DEVELOPMENTS
MEXICO represents and warrants to OMEGA as follows:
(a)
Organization, Standing and Power. BBB DEVELOPMENTS MEXICO is a corporation duly
organized, validly existing and in good standing under the laws of Mexico has
all requisite power and authority to own, lease and operate its properties and
to carry on its business as now being conducted, and is duly qualified and in
good standing to do business in each jurisdiction in which the nature of its
business or the ownership or leasing of its properties makes such qualification
necessary.
(b)
Capital Structure. The authorized capital stock of BBB DEVELOPMENTS MEXICO
consists of membership units, all of which are held by the Majority Shareholder.
All of the issued and outstanding membership units of BBB DEVELOPMENTS MEXICO
were issued in compliance with all applicable securities laws. Except as
otherwise specified herein, there are no options, warrants, calls, agreements or
other rights to purchase or otherwise acquire from BBB DEVELOPMENTS MEXICO at
any time, or upon the happening of any stated event, any membership interests in
the capital stock of BBB DEVELOPMENTS MEXICO.
(c)
Certificate of Incorporation, Bylaws and Minute Books. The copies of the
formation documents, including the Articles of Incorporation or equivalent and
the other corporate documents of BBB DEVELOPMENTS MEXICO which have been
delivered to OMEGA are true, correct and complete copies thereof. The minute
books or equivalent of BBB DEVELOPMENTS MEXICO which have been made available
for inspection contain accurate minutes of all meetings and accurate consents in
lieu of meetings of the Board of Directors (and any committee thereof) and of
the Shareholder of BBB DEVELOPMENTS MEXICO since the date of incorporation and
accurately reflect all transactions referred to in such minutes and consents in
lieu of meetings.
(d)
Authority. MAJORITY SHAREHOLDER has all requisite power to enter into this
Agreement and, subject to approval of the proposed transaction by the holders of
100% of its issued and outstanding shares which are entitled to vote to approve
the proposed transaction, has the requisite power and authority to consummate
the transactions contemplated hereby. Except as specified herein, no other
corporate or shareholder proceedings on the part of MAJORITY SHAREHOLDER are
necessary to authorize the Exchange and the other transactions contemplated
hereby.
(e)
Conflict with Agreements; Approvals. Except as disclosed by BBB DEVELOPMENTS
MEXICO, the execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated hereby will not, conflict with, or
result in any violation of any provision of the Certificate of Incorporation or
Bylaws of BBB DEVELOPMENTS MEXICO or of any loan or credit agreement, note,
mortgage, indenture, lease, benefit plan or other agreement, obligation,
instrument, permit, concession, franchise, license, judgment, order, decree,
statute, law, ordinance, rule or regulation applicable to BBB DEVELOPMENTS
MEXICO or its properties or assets except for consent necessary for an
accounting and navigating system. No consent, approval, order or authorization
of, or registration, declaration or filing with, any Governmental Entity is
required by or with respect to BBB DEVELOPMENTS MEXICO in connection with the
execution and delivery of this Agreement by MAJORITY SHAREHOLDER, or the
consummation by MAJORITY SHAREHOLDER of the transactions contemplated
hereby.
(f)
Financial Statements. A copy of financial statements of BBB DEVELOPMENTS MEXICO
for the year ended December 31, 2007 and December 31, 2006 will be delivered to
OMEGA before the Closing. Omega confirms that it has received the financial
statements.
(g) Books
and Records. BBB DEVELOPMENTS MEXICO has made and will make available for
inspection by OMEGA upon reasonable request all the books of account, relating
to the business of BBB DEVELOPMENTS MEXICO. Such books of account of BBB
DEVELOPMENTS MEXICO have been maintained in the ordinary course of business. All
documents furnished or caused to be furnished to OMEGA by BBB DEVELOPMENTS
MEXICO are true and correct copies, and there are no amendments or modifications
thereto except as set forth in such documents.
(h)
Compliance with Laws. BBB DEVELOPMENTS MEXICO is and has been in compliance in
all material respects with all laws, regulations, rules, orders, judgments,
decrees and other requirements and policies imposed by any governmental entity
applicable to it, its properties or the operation of its
businesses.
(i)
Liabilities and Obligations. BBB DEVELOPMENTS MEXICO has no material liabilities
or obligations absolute, accrued, contingent or otherwise) except (i)
liabilities that are reflected and reserved against on the BBB DEVELOPMENTS
MEXICO's financial statements that have not been paid or discharged since the
date thereof and (ii) liabilities incurred since the date of such financial
statements in the ordinary course of business consistent with past practice and
in accordance with this Agreement.
(j)
Litigation. There is no suit, action or proceeding pending, or, to the knowledge
of BBB DEVELOPMENTS MEXICO threatened against or affecting BBB DEVELOPMENTS
MEXICO, which is reasonably likely to have a material adverse effect on BBB
DEVELOPMENTS MEXICO, nor is there any judgment, decree, injunction, rule or
order of any Governmental Entity or arbitrator outstanding against BBB
DEVELOPMENTS MEXICO having, or which, insofar as reasonably can be foreseen, in
the future could have, any such effect.
(k)
Taxes. BBB DEVELOPMENTS MEXICO has filed or will file within the time prescribed
by law (including extension of time approved by the appropriate taxing
authority) all tax returns and reports required to be filed with all other
jurisdictions where such filing is required by law; and BBB DEVELOPMENTS MEXICO
has paid, or made adequate provision for the payment of all taxes, interest,
penalties, assessments or deficiencies due and payable on, and with respect to
such periods. BBB DEVELOPMENTS MEXICO knows of (i) no other tax returns or
reports which are required to be filed which have not been so filed and (ii) no
unpaid assessment for additional taxes for any fiscal period or any basis
therefore.
(l)
Licenses, Permits; Intellectual Property. BBB DEVELOPMENTS MEXICO owns or
possesses in the operation of its business all material authorizations which are
necessary for it to conduct its business as now conducted. Neither the execution
nor delivery of this Agreement nor the consummation of the transactions
contemplated hereby will require any notice or consent under or have any
material adverse effect upon any such authorizations.
2.3
Representations and Warranties of the Shareholder. By execution of this
Agreement, each of the MAJORITY SHAREHOLDER represents and warrants to OMEGA as
follows:
(a)
Shares Free and Clear. The membership units of BBB DEVELOPMENTS MEXICO which he
owns are free and clear of any liens, claims, options, charges or encumbrances
of any nature.
(b)
Unqualified Right to Transfer Shares. He has the unqualified right to sell,
assign, and deliver the membership units of BBB DEVELOPMENTS MEXICO specified
herein and, upon consummation of the transactions contemplated by this
Agreement, OMEGA will acquire good and valid title to such membership units,
free and clear of all liens, claims, options, charges, and encumbrances of
whatsoever nature.
(c)
Agreement and Transaction Duly Authorized. He or she is authorized to execute
and deliver this Agreement and to consummate the share exchange transaction
described herein. Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will constitute a violation
or default under any term or provision of any contract, commitment, indenture,
other agreement or restriction of any kind or character to which such MAJORITY
SHAREHOLDER is a party or by which such MAJORITY SHAREHOLDER is
bound.
ARTICLE
III
COVENANTS
RELATING TO CONDUCT OF BUSINESS
3.1
Covenants of BBB DEVELOPMENTS MEXICO and OMEGA. During the period from the date
of this Agreement and continuing until the Closing Date, BBB DEVELOPMENTS MEXICO
and OMEGA each agree as to themselves (except as expressly contemplated or
permitted by this Agreement, or to the extent that the other party shall
otherwise consent in writing):
(a)
Ordinary Course. Each party shall carry on its respective businesses in the
usual, regular and ordinary course in substantially the same manner as
heretofore conducted.
(b)
Dividends; Changes in Stock. No party shall (i) declare or pay any dividends on
or make other distributions in respect of any of its capital stock, or (ii)
repurchase or otherwise acquire, or permit any subsidiary to purchase or
otherwise acquire, any shares of its capital stock.
(c)
Issuance of Securities. No party shall issue, deliver or sell, or authorize or
propose the issuance, delivery or sale of, any shares of its capital stock of
any class, any voting debt or any securities convertible into, or any rights,
warrants or options to acquire, any such shares, voting debt or convertible
securities.
(d)
Governing Documents. No party shall amend or propose to amend its Articles of
Incorporation or Bylaws.
(e) No
Dispositions. Except for the transfer of assets in the ordinary course of
business consistent with prior practice, no party shall sell, lease, encumber or
otherwise dispose of, or agree to sell, lease, encumber or otherwise dispose of,
any of its assets, which are material, individually or in the aggregate, to such
party.
(f)
Indebtedness. No party shall incur any indebtedness for borrowed money or
guarantee any such indebtedness or issue or sell any debt securities or warrants
or rights to acquire any debt securities of such party or guarantee any debt
securities of others other than in each case in the ordinary course of business
consistent with prior practice unless authorized by this Agreement or written
consent of the parties..
3.2 Other
Actions. No party shall take any action that would or is reasonably likely to
result in any of its representations and warranties set forth in this Agreement
being untrue as of the date made (to the extent so limited), or in any of the
conditions to the Exchange set forth in Article V not being
satisfied.
ARTICLE
IV
ADDITIONAL
AGREEMENTS AND RELATED TRANSACTIONS
4.1
Restricted OMEGA Shares. The Exchange Shares will not be registered under the
Securities Act, but will be issued pursuant to applicable exemptions from such
registration requirements for transactions not involving a public offering
and/or for transactions which constitute "offshore transactions" as defined in
Regulation S under the Securities Act of 1933. Accordingly, the Exchange Shares
will constitute "restricted securities" for purposes of the Securities Act and
the holders of Exchange Shares will not be able to transfer such shares except
upon compliance with the registration requirements of the Securities Act or in
reliance upon an available exemption there from. The certificates evidencing the
Exchange Shares shall contain a legend to the foregoing effect and the holders
of such shares shall deliver at Closing an Investment Letter acknowledging the
fact that the Exchange Shares are restricted securities and agreeing to the
foregoing transfer restrictions.
4.2
Access to Information. Upon reasonable notice, OMEGA and BBB DEVELOPMENTS MEXICO
shall each afford to the officers, employees, accountants, counsel and other
representatives of the other company, access to all their respective properties,
books, contracts, commitments and records and, during such period, each of OMEGA
and BBB DEVELOPMENTS MEXICO shall furnish promptly to the other (a) a copy of
each report, schedule, registration statement and other document filed or
received by it during such period pursuant to the requirements of Federal or
state securities laws and (b) all other information concerning its business,
properties and personnel as such other party may reasonably request. Unless
otherwise required by law, the parties will hold any such information which is
nonpublic in confidence until such time as such information otherwise becomes
publicly available through no wrongful act of either party, and in the event of
termination of this Agreement for any reason each party shall promptly return
all nonpublic documents obtained from any other party, and any copies made of
such documents, to such other party.
4.3 Legal
Conditions to Exchange. Each of OMEGA and BBB DEVELOPMENTS MEXICO shall take all
reasonable actions necessary to comply promptly with all legal requirements
which may be imposed on itself with respect to the Exchange and will promptly
cooperate with and furnish information to each other in connection with any such
requirements imposed upon any of them or upon any of their related entities or
subsidiaries in connection with the Exchange. Each party shall take all
reasonable actions necessary to obtain (and will cooperate with each other in
obtaining) any consent, authorization, order or approval of, or any exemption
by, any Governmental Entity or other public or private third party, required to
be obtained or made by OMEGA or any of their related entities or subsidiaries in
connection with the Exchange or the taking of any action contemplated thereby or
by this Agreement.
4.4
Current Business of OMEGA. OMEGA shall continue to operate its business
following the Closing of the Share Exchange Agreement, and BBB DEVELOPMENTS
MEXICO shall continue to operate as a wholly-owned subsidiary of OMEGA. Such
matters include, inter alia, all business and business contracts, tenancy
agreements, employment contracts, rights and obligations (other than those
specifically described in this Agreement) and/or other liabilities of whatsoever
kind.
ARTICLE
V
CONDITIONS
PRECEDENT
5.1
Conditions to Each Party's Obligation to Effect the Exchange. The respective
obligations of each party to affect the Exchange shall be conditional upon the
filing, occurring or obtainment of all authorizations, consents, orders or
approvals of, or declarations or filings with, or expirations of waiting periods
imposed by any governmental entity or by any applicable law, rule, or regulation
governing the transactions contemplated hereby.
5.2
Conditions to Obligations of OMEGA. The obligation of OMEGA to effect the
Exchange is subject to the satisfaction of the following conditions on or before
the Closing Date unless waived by OMEGA:
(a)
Representations and Warranties. The representations and warranties of BBB
DEVELOPMENTS MEXICO and of the MAJORITY SHAREHOLDER set forth in this Agreement
shall be true and correct in all material respects as of the date of this
Agreement and (except to the extent such representations and warranties speak as
of an earlier date) as of the Closing Date as though made on and as of the
Closing Date, except as otherwise contemplated by this Agreement, and OMEGA
shall have received a certificate signed on behalf of BBB DEVELOPMENTS MEXICO by
the President of BBB DEVELOPMENTS MEXICO and a certificate signed by the
MAJORITY SHAREHOLDER to such effect.
(b)
Performance of Obligations of BBB DEVELOPMENTS MEXICO. BBB DEVELOPMENTS MEXICO
shall have performed in all material respects all obligations required to be
performed by it under this Agreement at or prior to the Closing Date, and OMEGA
shall have received a certificate signed on behalf of BBB DEVELOPMENTS MEXICO by
its President to such effect.
(c)
Closing Documents. OMEGA shall have received such certificates and other closing
documents as counsel for OMEGA shall reasonably request.
(d) No
Dissenting Shares. MAJORITY SHAREHOLDER, holding 100% of the issued and
outstanding common stock of number of shares of common stock of BBB DEVELOPMENTS
MEXICO shall have executed this Agreement and consented to completion of the
share exchange transaction described herein.
(e)
Consents. BBB DEVELOPMENTS MEXICO shall have obtained the consent or approval of
each person whose consent or approval shall be required in connection with the
transactions contemplated hereby under any loan or credit agreement, note,
mortgage, indenture, lease or other agreement or instrument, except those for
which failure to obtain such consents and approvals would not, in the reasonable
opinion of OMEGA, individually or in the aggregate, have a material adverse
effect on BBB DEVELOPMENTS MEXICO and its subsidiaries and related entities
taken as a whole upon the consummation of the transactions contemplated hereby.
BBB DEVELOPMENTS MEXICO shall also have received the approval of its
Shareholders in accordance with applicable law.
(f)
Pending Litigation. There shall not be any litigation or other proceeding
pending or threatened to restrain or invalidate the transactions contemplated by
this Agreement, which, in the sole reasonable judgment of OMEGA, made in good
faith, would make the consummation of the Exchange imprudent. In addition, there
shall not be any other litigation or other proceeding pending or threatened
against BBB DEVELOPMENTS MEXICO, the consequences of which, in the judgment of
OMEGA, could be materially adverse to BBB DEVELOPMENTS MEXICO.
5.3
Conditions to Obligations of BBB DEVELOPMENTS MEXICOS. The obligation of BBB
DEVELOPMENTS MEXICO to effect the Exchange is subject to the satisfaction of the
following conditions unless waived by BBS.
(a)
Representations and Warranties. The representations and warranties of OMEGA set
forth in this Agreement shall be true and correct in all material respects as of
the date of this Agreement and (except to the extent such representations speak
as of an earlier date) as of the Closing Date as though made on and as of the
Closing Date, except as otherwise contemplated by this Agreement, BBB
DEVELOPMENTS MEXICO shall have received a certificate signed on behalf of OMEGA
by its President to such effect.
(b)
Performance of Obligations of OMEGA. OMEGA shall have performed in all material
respects all obligations required to be performed by it under this Agreement at
or prior to the Closing Date, and BBB DEVELOPMENTS MEXICO shall have received a
certificate signed on behalf of OMEGA by the President to such
effect.
(c)
Closing Documents. BBB DEVELOPMENTS MEXICO shall have received such certificates
and other closing documents as counsel for BBB DEVELOPMENTS MEXICO shall
reasonably request.
(d)
Consents. OMEGA shall have obtained the consent or approval of each person whose
consent or approval shall be required in connection with the transactions
contemplated hereby.
(e)
Pending Litigation. There shall not be any litigation or other proceeding
pending or threatened to restrain or invalidate the transactions contemplated by
this Agreement, which, in the sole reasonable judgment of BBB DEVELOPMENTS
MEXICO, made in good faith, would make the consummation of the Exchange
imprudent. In addition, there shall not be any other litigation or other
proceeding pending or threatened against OMEGA the consequences of which, in the
judgment of BBB DEVELOPMENTS MEXICO, could be materially adverse to
OMEGA.
ARTICLE
VI
TERMINATION
AND AMENDMENT
6.1
Termination. This Agreement may be terminated at any time prior to the
closing
(a) by
mutual consent of OMEGA, BBB DEVELOPMENTS MEXICO and the MAJORITY
SHAREHOLDER;
(b) by
either OMEGA, BBB DEVELOPMENTS MEXICO or the MAJORITY SHAREHOLDER if there has
been a material breach of any representation, warranty, covenant or agreement on
the part of the other set forth in this Agreement which breach has not been
cured within five (5) business days following receipt by the breaching party of
notice of such breach, or if any permanent injunction or other order of a court
or other competent authority preventing the consummation of the Exchange shall
have become final and non-appealable; or
(c) by
either OMEGA, BBB DEVELOPMENTS MEXICO or the MAJORITY SHAREHOLDER if the
Exchange shall not have been consummated before July 8, 2009.
6.2
Effect of Termination. In the event of termination of this Agreement by any of
the parties hereto as provided in Section 6.1, this Agreement shall forthwith
become void and there shall be no liability or obligation on the part of any
party hereto. In such event, all costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall be paid by the
party incurring such expenses.
6.3
Amendment. This Agreement may be amended by mutual agreement of the parties
hereto, provided that in the case of OMEGA and BBB DEVELOPMENTS MEXICO, any such
amendment must authorized by their respective Boards of Directors, and to the
extent required by law, approved by their respective Shareholder. Any such
amendment must be by an instrument in writing signed on behalf of each of the
parties hereto.
6.4
Extension; Waiver. At any time prior to the Closing Date, the parties hereto, by
action taken or authorized by their respective Board of Directors, may, to the
extent legally allowed, (a) extend the time for the performance of any of the
obligations or other acts of the other parties hereto, (b) waive any
inaccuracies in the representations and warranties contained herein or in any
document delivered pursuant hereto and (c) waive compliance with any of the
agreements or conditions contained herein. Any agreement on the part of a party
hereto to any such extension or waiver shall be valid only if set forth in a
written instrument signed on behalf of such party.
ARTICLE
VII
GENERAL
PROVISIONS
7.1
Survival of Representations, Warranties and Agreements. All of the
representations, warranties and agreements in this Agreement or in any
instrument delivered pursuant to this Agreement shall survive the Closing for a
period of three years from the date of this Agreement.
7.2
Notices. All notices and other communications hereunder shall be in writing and
shall be deemed given if delivered personally, telecopied (which is confirmed)
or mailed by registered or certified mail (return receipt requested) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
(a) If to
OMEGA ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇
▇▇▇▇▇
(b) If to
BBB DEVELOPMENTS MEXICO
and
cc:
(c) If to
the MAJORITY SHAREHOLDER
7.3
Interpretation. When a reference is made in this Agreement to Sections, such
reference shall be to a Section of this Agreement unless otherwise indicated.
The headings contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this Agreement.
Whenever the words "include", "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without
limitation". The phrase "made available" in this Agreement shall mean that the
information referred to has been made available if requested by the party to
whom such information is to be made available.
7.4
Counterparts. This Agreement may be executed in two or more counterparts, all of
which shall be considered one and the same agreement and shall become binding
and effective when two or more counterparts have been signed by each of the
parties and delivered to the other parties, it being understood that all parties
need not sign the same counterpart.
7.5
Entire Agreement; No Third Party Beneficiaries; Rights of Ownership. This
Agreement (including the documents and the instruments referred to herein)
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof, and is not intended to confer upon any person other than
the parties hereto any rights or remedies hereunder.
7.6
Governing Law. This Agreement shall be governed and construed in accordance with
the laws of State of Florida without regard to principles of conflicts of law.
Each party hereby irrevocably submits to the jurisdiction of any Florida State
or any federal court in the State of Florida in respect of any suit, action or
proceeding arising out of or relating to this Agreement, and irrevocably accept
for themselves and in respect of their property, generally and unconditionally,
the jurisdiction of the aforesaid courts.
7.7 No
Remedy in Certain Circumstances. Each party agrees that, should any court or
other competent authority hold any provision of this Agreement or part hereof or
thereof to be null, void or unenforceable, or order any party to take any action
inconsistent herewith or not to take any action required herein, the other party
shall not be entitled to specific performance of such provision or part hereof
or thereof or to any other remedy, including but not limited to money damages,
for breach hereof or thereof or of any other provision of this Agreement or part
hereof or thereof as a result of such holding or order.
7.8
Publicity. Except as otherwise required by law or the rules of the SEC, so long
as this Agreement is in effect, no party shall issue or cause the publication of
any press release or other public announcement with respect to the transactions
contemplated by this Agreement without the written consent of the other party,
which consent shall not be unreasonably withheld.
7.9
Assignment. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto (whether by
operation of law or otherwise) without the prior written consent of the other
parties. Subject to the preceding sentence, this Agreement will be binding upon,
inure to the benefit of and be enforceable by the parties and their respective
successors and assigns.
IN
WITNESS WHEREOF
, this
Agreement for Share Exchange has been signed by the parties set forth below as
of the date set forth above. (Please refer to the signed page)
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
IV_______________________________
▇▇▇ ▇.
▇▇▇▇▇▇▇▇ ▇▇, President
▇▇▇ ▇.
▇▇▇▇▇▇▇▇ ▇▇
BBB
DEVELOPMENTS MEXICO
▇▇▇▇▇
▇▇▇▇▇ Managing Member
▇▇▇▇▇▇▇
▇▇▇▇▇ Managing Member
MAJORITY
SHAREHOLDERS