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EXHIBIT 2: AGREEMENT FOR THE EXCHANGE OF COMMON STOCK
NOTICE ON NON REGISTRATION
THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE " 1933 ACT"), NOR REGISTERED UNDER ANY
STATE SECURITIES LAW, AND ARE "RESTRICTED SECURITIES" AS THAT TERM IS DEFINED IN
RULE 144 UNDER THE 1933 ACT. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE 1933 ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933
ACT, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE SATISFACTION OF THE
COMPANY.
AGREEMENT FOR THE EXCHANGE OF COMMON STOCK
AGREEMENT made this 10th day of December, 1996, by and between Central American
Equities Corp., a Florida corporation, (the "ISSUER') and Cal Tico,L.P.,
Ecolodge Partners, L.P. and MarineLodge Partners, L.P., three California Limited
Partnerships (the "PARTNERSHIPS").
In consideration of the mutual promises, covenants, and representationscontained
herein, and other good and valuable consideration,
THE PARTIES HERETO AGREE AS FOLLOWS:
1. EXCHANGE OF SECURITIES. Subject to the terms and conditions of this
Agreement, the ISSUER agrees to issue to the PARTNERSHIPS, 10,000,000 shares of
the common stock of ISSUER, $0.01 par value (the "Shares"), in exchange for 100%
of the partnership interests in the PARTNERSHIPS, such that Costa Rican
Companies (as defined below) shall become wholly owned subsidiaries of the
ISSUER.
2. REPRESENTATIONS AND WARRANTIES. ISSUER represents and warrants to
PARTNERSHIPS the following:
i. Organization. ISSUER is a corporation duly organized, validly existing, and
in good standing under the laws of Florida, and has all necessary corporate
powers to own properties and carry on a business, and is duly qualified to do
business and is in good standing in Florida. All actions taken by the
Incorporators, directors and shareholders of ISSUER have been valid and in
accordance with the laws of the State of Florida.
ii. Capital. The authorized capital stock of ISSUER consists of 20,000,000
shares of common stock, $0.001 par value, of which 500,000 are issued and
outstanding, and 1,000,000 shares of preferred stock, par value $.001, none of
which are issued. All outstanding shares are fully paid and non assessable, free
of liens, encumbrances, options, restrictions and legal or equitable rights of
others not a party to this Agreement. At closing, there will be no outstanding
subscriptions, options, rights, warrants, convertible securities, or other
agreements or commitments obligating ISSUER to issue or to transfer from
treasury any additional shares of its capital stock.
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None of the outstanding shares of ISSUER are subject to any stock restriction
agreements. All of the shareholders of ISSUER have valid title to such shares
and acquired their shares in a lawful transaction and in accordance with the
laws of Florida.
iii. Financial Statements. Exhibit B to this Agreement includes the balance
sheet of ISSUER as of December 1, 1996, and the related statements of income and
retained earnings for the period then ended. The financial statements have been
prepared in accordance with generally accepted accounting principles
consistently followed by ISSUER throughout the periods indicated, and fairly
present the financial position of ISSUER as of the date of the balance sheet in
the financial statements, and the results of its operations for the periods
indicated.
iv. Absence of Chances. Since the date of the financial statements, there has
not been any change in the financial condition or operations of ISSUER, except
changes in the ordinary course of business, which changes have not in the
aggregate been materially adverse.
V. Liabilities. ISSUER does not have any debt, liability, or obligation of any
nature, whether accrued, absolute, contingent, or otherwise, and whether due or
to become due, that is not reflected on the ISSUERS' financial statement. ISSUER
is not aware of any pending, threatened or asserted claims, lawsuits or
contingencies involving ISSUER or its common stock. There is no dispute of any
kind between ISSUER and any third party, and no such dispute will exist at the
closing of this Agreement. At closing, ISSUER will be free from any and all
liabilities, liens, claims and/or commitments.
vi. Ability to Carry Out Obligations. ISSUER has the right, power, and authority
to enter into and perform its obligations under this Agreement. The execution
and delivery of this Agreement by ISSUER and the performance by ISSUER of its
obligations hereunder will not cause, constitute, or conflict with or result in
(a) any breach or violation or any of the provisions of or constitute a default
under any license, indenture, mortgage, charter, instrument, articles of
incorporation, bylaw, or other agreement or instrument to which ISSUER or its
shareholders are a party, or by which they may be bound, nor will any consents
or authorizations of any party other than those hereto be required, (b) an event
that would cause ISSUER to be liable to any party, or (c) an event that would
result in the creation or imposition or any lien, charge or encumbrance on any
asset of ISSUER or upon the securities of ISSUER to be acquired by The
PARTNERSHIPS.
vii. Full Disclosure. None of representations and warranties made by the ISSUER,
or in any certificate or memorandum furnished or to be furnished by the ISSUER,
contains or will contain any untrue statement of a material fact, or omit any
material fact the omission of which would be misleading.
viii. Contract and Lease . ISSUER is not currently carrying on any business and
is not a party to any contract, agreement or lease. No person holds a power of
attorney from ISSUER.
ix. Compliance with Laws. ISSUER has complied with, and is not in violation of
any federal, state, or local statute, law, and/or regulation pertaining to
ISSUER - ISSUER has complied with all federal and state securities laws in
connection with the issuance, sale and distribution of its securities.
X. Litigation . ISSUER is not (and has not been) a party to any suit, action,
arbitration, or legal, administrative, or other proceeding, or pending
governmental investigation. To the best knowledge of the ISSUER, there is no
basis for any such action or proceeding and no such action or proceeding is
threatened against ISSUER and ISSUER is not subject to or in
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default with respect to any order, writ, injunction, or decree of any federal,
state, local, or foreign court, department, agency, or instrumentality.
xi. Conduct of Business. Prior to the closing, ISSUER shall conduct its business
in the normal course, and shall not (1) sell, pledge, or assign any assets (2)
amend its Articles of Incorporation or Bylaws, (3) declare dividends, redeem or
sell stock or other securities, (4) incur any liabilities, (5) acquire or
dispose of any assets, enter into any contract, guarantee obligations of any
third party, or (6) enter into any other transaction.
xii. Corporate Documents. Copies of each of the following documents, which are
true complete and correct in all material respects, will be attached to and made
a part of this Agreement:
xiii. Articles of Incorporation;
xiv. Bylaws;
(1) Minutes of Shareholders Meetings;
(2) Minutes of Directors Meetings;
(3) List of Officers and Directors;
(4) Balance Sheet as of December 1, together with other financial statements
described in Section 2(iii);
(5) Stock register and stock records of ISSUER and a current, accurate list of
Issuer's shareholders.
xv. Documents. All minutes, consents or other documents pertaining to ISSUER to
be delivered at closing shall be valid and in accordance with the laws of
Florida.
xvi. Title. The Shares to be issued to the PARTNERSHIPS will be, at closing,
free and clear of all liens, security interests, pledges, charges, claims,
encumbrances and restrictions of any kind. None of such Shares are or will be
subject to any voting trust or agreement. No person holds or has the right to
receive any proxy or similar instrument with respect to such shares, except as
provided in this Agreement, the ISSUER is not a party to any agreement which
offers or grants to any person the right to purchase or acquire any of the
securities to be issued to The PARTNERSHIPS. There is no applicable local, state
or federal law, rule, regulation, or decree which would, as a result of the
issuance of the Shares, impair, restrict or delay The PARTNERSHIPS' voting
rights with respect to the Shares.
3. The PARTNERSHIPS represent and warrant to ISSUER the following:
i. Organization. The PARTNERSHIPS are limited partnerships duly organized,
validly existing, and in good standing under the laws of California, have all
necessary corporate powers to own properties and carry on a business, and is
duly qualified to do business and is in good standing in California.
ii. Costa Rica Corporations. The PARTNERSHIPS own 100% of the -following Costa
Rica Corporations: Hotelera Cal Tico, S.A., Bandirma, S.A., Sociedad Protectora
De La Fuana Y Flora Marintima De Mal Pais, S.A., Ecoproyecto San Luis, S.A., and
Confluencia, S.A., each of which is duly organized, validly existing, and in
good standing under the laws of Costa Rica, have all necessary corporate powers
to own properties and carry on a business, and is duly qualified to do business
and is in good standing in Costa Rica.
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iii. PARTNERSHIP Action, All the limited partners of the PARTNERSHIPS have
approved the exchange of their interests in the PARTNERSHIPS, at the rate of
$1.00 of partnership interest, for one share of common stock of the ISSUER, for
a total 10,000,000 shares of the Issuer to be issued pursuant to this Agreement.
This Agreement has been duly executed and delivered by the PARTNERSHIPS and
constitutes the valid and binding obligation of the PARTNERSHIPS, and is a valid
and binding obligation of the PARTNERSHIPS, enforceable against the PARTNERSHIPS
in accordance with the terms herein.
4. INVESTMENT INTENT. The Shares being issued pursuant to this Agreement may be
sold, pledged, assigned, hypothecate or otherwise transferred, with or without
consideration ( a "Transfer"), only pursuant to an effective registration
statement under the Act, or pursuant to an exemption from registration under the
Act.
5. CLOSING ( The closing of this transaction shall take place at the law offices
of Xxxx X. Miami, Florida. Unless the closing of this transaction takes place on
or before December 31, 1996, then either party may terminate this Agreement.
6. DOCUMENTS TO BE DELIVERED AT CLOSING.
i. By the ISSUER
(1) Board of Directors Minutes authorizing the issuance of a certificate or
certificates for 10,000,000 Shares, registered in the names of the holders in
interest of the PARTNERSHIP equal to their pro-rata holdings in the
PARTNERSHIPS.
(2) The resignation of all officers of ISSUER.
(3) A Board of Directors resolution appointing such person as The PARTNERSHIPS
designate as a director(s) of ISSUER.
(4) The resignation of all the directors of ISSUER, except that of SHAREHOLDER'S
designee, dated subsequent to the resolution described in 3, above..
(5) Unaudited financial statements of ISSUER, which shall include a balance
sheet dated as of December 1, 1996 and statements of operations, stockholders
equity and cash flows for the twelve month period then ended.
(6) All of the business and corporate records of ISSUER, including but not
limited to correspondence files, bank statements, checkbooks, savings account
books, minutes of shareholder and directors meetings, financial statements,
shareholder listings, stock transfer records, agreements and contracts.
(7) Such other minutes of ISSUER's shareholders or directors as may reasonably
be required by the PARTNERSHIPS.
(8) An Opinion Letter from ISSUER's Attorney attesting to the validity and
condition of the ISSUER.
ii. By the PARTNERSHIPS:
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(1) Delivery to the ISSUER, or to its Transfer Agent, the certificates
representing 100% of the issued and outstanding stock of Costa Rican Companies.
(2) Consents signed by all PARTNERSHIPS consenting to the terms of this
Agreement.
(3) An opinion Letter from the PARTNERSHIPS' attorney setting forth the
following:
(a) The PARTNERSHIPS are organized under the laws of the State of California.
(b) The PARTNERSHIPS are duly qualified and in good standing in each state and
country in which the nature of the activities conducted by them or the character
of the properties or assets owned or leased by them makes such qualification
necessary, except where its failure to be so qualified would not have a material
adverse effect on their business, properties, business prospects, condition
(financial or otherwise) or results of operations.
(c) The PARTNERSHIPS have full power and authority to execute, deliver and
perform this Agreement, and to consummate the transactions contemplated herein.
The execution, delivery and performance of this Agreement and the consummation
by the PARTNERSHIPS of the transactions herein contemplated and the compliance
by the PARTNERSHIPS with the terms of this Agreement have been duly authorized
by all necessary partnership action, and this Agreement has been duly executed
and delivered by the PARTNERSHIPS. This Agreement is a valid and binding
obligation of the PARTNERSHIPS, enforceable in accordance with its terms,
subject to enforcement of remedies, to applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the rights of creditors
generally and the discretion of courts in granting equitable remedies.
(d) Costa Rico Corporations are corporations validly existing and in good
standing under the laws of Costa Rico.
7. REMEDIES:
i. Arbitration. Any controversy or claim arising out of, or relating to, this
Agreement, or the making, performance, or interpretation thereof, shall be
settled by arbitration in Miami, Dade County, Florida in accordance with the
Rules of the American Arbitration Association then existing, and judgment on the
arbitration award may be entered in any court having jurisdiction over the
subject matter of the controversy.
8. MISCELLANEOUS:
i. Captions and Headings. The Article and paragraph headings throughout this
Agreement are for convenience and reference only, and shall in no way be deemed
to define, limit, or add to the meaning of any provision of this Agreement.
ii. No oral Change. This Agreement and any provision hereof, may not be waived,
changed, modified, or discharged orally, but only by an agreement in writing
signed by the party against whom enforcement of any waiver, change,
modification, or discharge is sought.
iii. Non Waiver. Except as otherwise expressly provided herein, no waiver of any
covenant, condition, or provision of this Agreement shall be deemed to have been
made unless expressly in writing and signed by the party against whom such
waiver is charged; and (I) the failure of any party to insist in any one or more
cases upon the performance of any of the provisions, covenants, or conditions of
this Agreement or to exercise any option
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herein contained shall not be construed as a waiver or relinquishment for the
future of any such provisions, covenants, or conditions, ii. the acceptance of
performance of anything required by this Agreement to be performed with
knowledge of the breach or failure of a covenant, condition, or provision hereof
shall not be deemed a waiver of such breach or failure, and iii. no waiver by
any party of one breach by another party shall be construed as a waiver with
respect to any other or subsequent breach.
iv. Time of Essence. Time is of the essence of this Agreement and of each and
every provision hereof.
V. Entire Agreement. . This Agreement contains the entire Agreement and
understanding between the parties hereto, and supersedes all prior agreements
and understandings.
vi. Counterparts. This Agreement may be executed simultaneously in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
vii. Notices. All notices, requests, demands, and other communications -under
this Agreement shall be in writing and shall be deemed to have been duly given
on the date of service if served personally on the party to whom notice is to be
given, or on the third day after mailing if mailed to the party to whom notice
is to be given, by first class mail, registered or certified, postage prepaid,
and properly addressed, and by fax, as follows:
ISSUER: Xxxx X. Xxxxxxxx
P.O. Box 669
Palm Beach, FL 33480
Copy to: Xxxx X. Xxxxxxx, Esquire
0000 Xxxxxxxx Xxx, 0xx Xxxxx
Xxxxx, Xxxxxxx 00000
PARTNERSHIPS: Xx. Xxxxxxx Xxxxxx
Xxxxxx Xxxx & Co., Inc.
00000 Xxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
IN WITNESS WHEREOF, the undersigned has executed this Agreement this 10th day of
December, 1996.
Central American Equities Corp. Cal Tico, L.P.
By: Xxxx X. Xxxxxxxx By: Xxxxxxx Xxxxxx
Xxxx X. Xxxxxxxx, President Xxxxxxx Xxxxxx, General Partner
MarineLodge Partners, L.P. Ecolodge Partners, L.P.
By: Xxxxxxx Xxxxxx By: Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxx, General Partner Xxxxxxx Xxxxxx, General Partner
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