Exhibit 2.1
AGREEMENT FOR SHARE EXCHANGE
THIS AGREEMENT FOR SHARE EXCHANGE (this "Agreement") is dated as of June
30, 2008, by and among OMEGA COMMERCIAL FINANCE CORP., a Florida corporation
("OMEGA"), 21 MIAMI OCEANS INTERNATIONAL LIMITED ("21 OCEANS") a Belize
corporation and Steven Yamashiro, the sole managing member and shareholder of 21
OCEANS (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 21 OCEANS in exchange for the issuance of shares of
voting stock of OMEGA to the MAJORITY SHAREHOLDER and the contribution of
additional capital to 21 OCEAN.
Whereas: OMEGA within 30 days of the Closing Date will provide 21 Ocean with
additional working capital in the amount of six million and 00/100 dollars
($6,000,000) and no later than the January 1st, 2009 an additional infusion of
working capital in the amount of four million ($4,000,000) to 21 OCEAN for
designated improvements to the vessel currently known as the "Ocean Jewel"
(referred herein as the "Asset") and for the operation of 21 Ocean's business
Whereas: The Board of Directors of OMEGA and the Board of Directors of 21 OCEANS
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 21 OCEANS, consisting of 5,000 membership units;
Whereas: 21 OCEANS possesses title and full ownership of the "Ocean Jewel," a
cruise ship constructed in 1982 with approximately 40,000 sq. ft. of gaming
space and 60,000 sq ft of retail, office, common area, and commercial space. The
Asset was recently purchased by 21 Oceans for a total book value for merger
evaluation only of Nine Million Seven Hundred and Fifty Thousand Dollars
($9,750,000) (Six Million Seven Hundred and Fifty Thousand Dollars ($6,750,000)
for the Asset plus casino equipment totaling three million and 00/100 dollars
($3,000,000)
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 21 OCEANS 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 1,000,000 shares of its common stock (the "Exchange Shares") in
exchange for the 5,000 shares of issued and outstanding 21 OCEANS stock,
representing 100% of the currently issued and outstanding common stock of 21
OCEANS.
1.2 Wholly Owned Subsidiary. At the Closing, the MAJORITY SHAREHOLDER shall
acquire 4.4% of the issued and outstanding shares of OMEGA and 21 Oceans 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 23,810,900 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 July 25, 2008, the MAJORITY
SHAREHOLDER may declare this agreement null and void.
1.4 Board of Directors and Officers. Steven Yamashiro the majority shareholder
of 21 OCEAN immediately prior to the Closing Date shall be the sole member of
the Board of Directors, the Chief Executive Officer and President of 21 OCEANS
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 21 Ocean.
1.5 OCEAN JEWEL Advisory Board Member: Steven Yamashiro the Majority
Shareholder of 21 OCEAN immediately prior to the Closing Date shall become
Chairman of the OCEAN JEWEL 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 the OCEAN JEWEL shall occur without the written consent and MAJORITY
SHAREHOLDER.
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1.6 Protective Covenant for 21 OCEAN and MAJORITY SHAREHOLDER. If the following
events occur, then Steven Yamashiro shall have the right to purchase the Asset
from 21 Oceans for the cost of $1.00, to-wit (i.) the termination of the
Majority Shareholder from the Board of Directors, President or Chief Executive
Officer of 21 Oceans (ii) Omega fails to provide the working capital required by
this Agreement (iii) Omega breaches this Agreement or any agreement with 21
OCEAN (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 Steven Yamashiro 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 OCEAN JEWEL: Omega and the
Majority Shareholder will execute a formal Agreement that will govern the
operations of the Asset and the distribution of income. The Ocean Jewel
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 eight five percent (85%) to Steve Yamahiro or his
designee and fifteen (15%) to Omega. All of the operating expenses shall be paid
from the gross revenues of 21 OCEANS and the working capital provided in this
Agreement by Omega. Omega and 21 Ocean agree that all funds advanced by Omega
shall be disbursed by wire transfer in United States dollars to the law firm of
McGuireWoods, LLP, Bank of America, ABA: 051000017 (Domestic Wires), Credit:
McGuireWoods Operating Account, Account Number: 000003664964, 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 21 OCEANS shall
continue to operate as a wholly-owned subsidiary of OMEGA with the Majority
Shareholder serving as its sole board member and as its President/CEO.
1.9 Financial Contributions. OMEGA within thirty (30) days of the Closing Date
will make disburse additional capital to 21 Oceans totaling six million and
00/100 dollars ($6,000,000) to 21 OCEANS and no later than the January 1, 2009
an additional four million and 00/100 dollars ($4,000,000) to 21 OCEAN for its
working capital and for the operation of its business..
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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 Florida, 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 22,810,900 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 21 OCEANS 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.
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(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 21 OCEANS 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.
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(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 21 OCEANS. 21 OCEANS represents and
warrants to OMEGA as follows:
(a) Organization, Standing and Power. 21 OCEANS is a corporation duly
organized, validly existing and in good standing under the laws of Belize,
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 21 OCEANS consists
of 5000 membership units, all of which are held by the Majority
Shareholder. All of the issued and outstanding membership units of 21
OCEANS 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 21
OCEANS at any time, or upon the happening of any stated event, any
membership interests in the capital stock of 21 OCEANS.
(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 21 OCEANS which have been
delivered to OMEGA are true, correct and complete copies thereof. The
minute books or equivalent of 21 OCEANS 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 21 OCEANS 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.
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(e) Conflict with Agreements; Approvals. Except as disclosed by 21 Ocean,
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 21 OCEANS 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 21 OCEANS 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 21 OCEANS 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 21 OCEANS's 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. 21 OCEANS has made and will make available for
inspection by OMEGA upon reasonable request all the books of account,
relating to the business of 21 OCEANS. Such books of account of 21 OCEANS
have been maintained in the ordinary course of business. All documents
furnished or caused to be furnished to OMEGA by 21 OCEANS are true and
correct copies, and there are no amendments or modifications thereto except
as set forth in such documents.
(h) Compliance with Laws. 21 OCEANS 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. 21 OCEANS has no material liabilities or
obligations absolute, accrued, contingent or otherwise) except (i)
liabilities that are reflected and reserved against on the 21 OCEANS'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 21 OCEANS threatened against or affecting 21 OCEANS, which is
reasonably likely to have a material adverse effect on 21 OCEANS, nor is
there any judgment, decree, injunction, rule or order of any Governmental
Entity or arbitrator outstanding against 21 OCEANS having, or which,
insofar as reasonably can be foreseen, in the future could have, any such
effect.
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(k) Taxes. 21 OCEANS 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 21 OCEANS 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. 21 OCEANS 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. 21 OCEANS 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 21 OCEANS 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 21 OCEANS 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.
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ARTICLE III
COVENANTS RELATING TO CONDUCT OF BUSINESS
3.1 Covenants of 21 OCEANS and OMEGA. During the period from the date of this
Agreement and continuing until the Closing Date, 21 OCEANS 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.
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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 therefrom. 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 21 OCEANS 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 21 OCEANS 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 21 OCEANS 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 21 OCEANS 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.
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ARTICLE V
CONDITIONS PRECEDENT
5.1 Conditions to Each Party's Obligation to Effect the Exchange. The
respective obligations of each party to effect 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
21 OCEANS 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 21 OCEANS
by the President of 21 OCEANS and a certificate signed by the MAJORITY
SHAREHOLDER to such effect.
(b) Performance of Obligations of 21 OCEANS. 21 OCEANS 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 21 OCEANS 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 21
OCEANS shall have executed this Agreement and consented to completion of
the share exchange transaction described herein.
(e) Consents. 21 OCEANS 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 21 OCEANS and its subsidiaries and related
entities taken as a whole upon the consummation of the transactions
contemplated hereby. 21 OCEANS shall also have received the approval of its
Shareholders in accordance with applicable law.
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(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 21 OCEANS, the consequences of
which, in the judgment of OMEGA, could be materially adverse to 21 OCEANS.
5.3 Conditions to Obligations of 21 OCEANS. The obligation of 21 OCEANS to
effect the Exchange is subject to the satisfaction of the following conditions
unless waived by 21 OCEANS.
(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, 21 OCEANS 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 21 OCEANS shall have
received a certificate signed on behalf of OMEGA by the President to such
effect.
(c) Closing Documents. 21 OCEANS shall have received such certificates and
other closing documents as counsel for 21 OCEANS 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
21 OCEANS, 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 21 OCEANS, could be materially adverse to OMEGA.
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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, 21 OCEANS and the MAJORITY SHAREHOLDER;
(b) by either OMEGA, 21 OCEANS 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, 21 OCEANS or the MAJORITY SHAREHOLDER if the Exchange
shall not have been consummated before July 8, 2008.
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 21 OCEANS, 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.
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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 200 S. BISCAYNE BLVD SUITE 4450 MIAMI FL 33131
(b) If to 21 OCEANS 1911 OAKMONT AVE #2 TARPON SPRINGS, FL 34689
and
cc: John D. Padgett
McGuireWoods LLP
9000 World Trade Center
101 West Main Street
Norfolk, VA 23510
Telephone: (757) 640-3779
Facsimile: (757) 640-3968
(c) If to the MAJORITY SHAREHOLDER
1911 OAKMONT AVE #2
TARPON SPRINGS, FL 34689
and
cc: John D. Padgett
McGuireWoods LLP
9000 World Trade Center
101 West Main Street
Norfolk, VA 23510
Telephone: (757) 640-3779
Facsimile: (757) 640-3968
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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.
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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)
OMEGA COMMERCIAL FINANCE CORP.
-------------------------------
Jon Cummings, President
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21 MIAMI OCEANS INTERNATIONAL LTD
-------------------------------
Steven Yamashiro, Managing Member
MAJORITY SHAREHOLDER
-------------------------------
Steven Yamashiro
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