OMEGA DEVELOPMENT, INC.
EXHIBIT 10.5
AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION dated as of January 31, 2000,
by and among Omega Development Incorporated, a Nevada corporation ("Purchaser"
or "Omega"), BBJ Environmental Solutions, Inc. (hereinafter referred to as
"BBJ") and the Stockholders of BBJ listed to at the foot of this Agreement
(collectively referred to as the "Transferors").
W I T N E S S E T H:
WHEREAS, Transferors will immediately prior to the Closing (as
hereafter defined) be the owners and holders of 100% of BBJ's outstanding
capital stock consisting of 5,683,333 shares of BBJ Common Stock held by 24
persons, 100,000 shares of Series A Preferred Stock currently convertible into
160,000 shares of BBJ Common Stock held by 7 persons and 171,875 shares of
Series B Preferred Stock currently convertible into 275,000 shares of BBJ Common
Stock held by 6 persons; and
WHEREAS, the Omega Stockholders, consisting of 18 persons, are
currently the owners and holders of 14,219,630 shares of Purchaser's Common
Stock, $.001 par value, before giving effect to a one-for-three reverse stock
split and the return to treasury of 3,465,000 shares, leaving them with
1,274,877 shares of Purchaser's Common Stock immediately before Closing; and
WHEREAS, approximately 570 other Omega stockholders of record currently
own 780,370 shares of Purchaser's Common Stock, $.001 par value, before giving
effect to a one-for-three reverse stock split, resulting in approximately
260,123 shares of Purchaser's Common Stock to be owned by them immediately
before closing, which when added to the 1,274,877 shares referred to above will
total 1,535,000 outstanding Omega shares immediately before Closing; and
WHEREAS, Purchaser is a publicly held corporation that desires to
acquire control of a business which has growth potential; and
WHEREAS, Purchaser desires to acquire 100% of the issued and
outstanding shares of BBJ capital stock in exchange for 12,410,666 shares of
Common Stock (subject to adjustment pursuant to Article 1.03 herein) of
Purchaser (the "Omega Common Stock") in a tax free transaction pursuant to the
provisions of Section 368(a)(1)(B) of the Internal Revenue Code of 1986;
NOW, THEREFORE, for and in consideration of the mutual representations,
warranties, covenants and undertakings herein contained, and on the terms and
subject to the conditions set forth herein, the parties hereto agree as follows:
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ARTICLE I
PURCHASE AND SALE
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1.01 Sale and Purchase of Stock. Subject to and upon the terms and
conditions contained herein, at the Closing (as hereinafter defined), the
Transferors shall sell, assign, transfer, convey and deliver to Purchaser, free
and clear of any liens, claims, encumbrances and charges whatsoever, and
Purchaser shall purchase, accept and acquire from the Transferors 5,683,333
shares of the BBJ Common Stock (subject to adjustment as provided in Article
1.03 herein), 100,000 shares of Series A Preferred Stock and 171,875 shares of
Series B Preferred Stock owned by them, as referenced in the signature pages in
Tables I through III below. Purchaser shall purchase, accept and acquire from
the Transferors all the aforesaid securities.
1.02 Closing. The closing of the transaction contemplated hereby (the
"Closing") shall occur on or before March 1, 2000 or such later date to which
Purchaser and BBJ shall agree from time to time to adjourn same. The Closing
shall occur at 10:00 A.M. in the offices of BBJ or at such other time and place
as shall be mutually agreed to in writing by Purchaser and BBJ. In addition to
any other closing conditions referenced herein, it is a condition precedent to
the closing of this transaction that (i) Purchaser is current with all reports
required to be filed under the Securities Exchange Act of 1934, as amended, (ii)
Purchaser effects a one-for-three reverse stock split and a total of 3,465,000
post-split shares are sold back to the treasury of Purchaser at a purchase price
of $.0001 per share and subsequently retired to the status of authorized but
unissued shares of common Stock resulting in Purchaser having no more than
1,535,000 shares of Common Stock outstanding immediately prior to Closing, and
(iii) Xxxx Xxxxxxxxx, Xxxxxxx Xxxxxxx, Xxxxxx Rendfish, Xxxxxx X. Xxxxxxxxx,
Xxxx Xxxxxxx, Xxxx Xxxxxx, Xxxxxx Xxxxxxxxxx and Xxxx Xxxxxxxx CRT shall be
responsible for the stock sale back referenced in (ii) above.
1.03 Purchase Price. In consideration of the aforesaid securities of
BBJ to be exchanged by the Transferors, Purchaser at the Closing shall deliver
to Xxxxxxx X. Xxxxxx, as agent for the Transferors, certificates representing an
aggregate of up to 12,410,666 shares of Omega Common Stock, free and clear of
any liens, claims, encumbrances or charges whatsoever, registered as provided in
the signature pages in Tables I through III below. In this respect, it is
understood and agreed as follows: (i) Common Stockholders of BBJ shall receive
two shares of Omega Common Stock in exchange for each share of BBJ Common Stock;
and (ii) Series A and Series B Preferred Stockholders shall each receive 3.84
shares of Omega Common Stock in exchange for each share of BBJ Preferred Stock,
rounded up to the nearest whole number in lieu of issuing any fractional shares
of Omega Common stock. In the event that all Transferors named below do not
execute this Agreement, a pro rata number of shares of Omega Common Stock will
be delivered to the Transferors at Closing. However, it is a condition precedent
to the closing of this Transaction that at least 90% of the BBJ Common
Stockholders and 100% of the Preferred Stockholders execute this Agreement to
become Transferors. Further, in the event that any additional shares of Common
Stock are issued by BBJ prior to Closing, whether from the exercise of options
or otherwise, it is a condition of this Transaction that such stockholders
execute this Agreement to become Transferors and, in such event, the Purchaser
will increase the number of shares of Omega's Common Stock to be issued at
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Closing by an amount equal to two shares of Omega's Common Stock for each share
of BBJ Common Stock.
1.04 Instruments of Transfer; Further Assurances. In order to
consummate the transaction contemplated hereby, the following documents and
instruments shall be delivered:
(a) Documents from Transferors. At the Closing, Transferors
shall deliver to Purchaser the BBJ stock certificates owned by them
plus a duly executed stock power or other instrument of transfer for
each such security with appropriate signature guarantees.
(b) Documents from Purchaser. Pursuant to Article 1.03,
Purchaser shall deliver to Xxxxxxx X. Xxxxxx, as agent for the
Transferors, at the Closing, Omega stock certificates to which the
Transferors are entitled to be in such denominations as shall be
requested by BBJ not less than three (3) business days prior to the
date of the Closing.
(c) Further Documents. At the Closing, and at all times
thereafter as may be necessary (i) Transferors shall execute and
deliver to Purchaser such opinion of Counsel as may be reasonably
necessary and other instruments of transfer as shall be reasonably
necessary or appropriate to vest in Purchaser good and indefeasible
title to the securities of BBJ owned by them and to comply with the
purposes and intent of this Agreement, and (ii) Purchaser shall execute
and deliver to Transferors such opinion of Counsel as may be reasonably
necessary and other instruments, certificates and documents as shall be
reasonably necessary or appropriate to convey to Transferors, the
Purchase Price and to comply with the purposes and intent of this
Agreement.
ARTICLE II
PURCHASER'S REPRESENTATIONS AND WARRANTIES
------------------------------------------
Purchaser represents, warrants and covenants that, except as otherwise
stated, the following are true and correct as of this date and will be true and
correct through the date of the Closing as if made anew on and as of that date:
2.01 Organization and Good Standing. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the state of
Nevada with all requisite power and authority to carry on business, to own
properties, to execute and deliver this Agreement, to consummate the
transactions contemplated hereby and to take all of the other actions provided
for in or contemplated hereby. Purchaser is not presently qualified to transact
business in the State of Florida but, prior to Closing, will qualify to do
business in the State of Florida and will be in good standing at Closing.
Purchaser currently has no active business operations and it is not required to
be authorized to do business in any other jurisdiction. Purchaser has no
subsidiaries or material assets or properties.
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2.02 Authorization and Validity. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby have been or will be prior to Closing duly authorized by the
Board of Directors of the Purchaser (and, to the extent required by applicable
law or regulation, by the shareholders; notice to non-consenting shareholders
will be given on or immediately after Closing). This Agreement constitutes (or
will not later than the Closing constitute) the legal, valid and binding
obligation of Purchaser, enforceable against Purchaser in accordance with its
terms with the exception of applicable bankruptcy and insolvency laws.
2.03 No Violation. Neither the execution, delivery or performance of
this Agreement nor the consummation of any of the transactions contemplated
hereby now or at any time in the future (whether with the giving of notice or
passage of time or both) will (a) conflict with, or result in a violation or
breach of the terms, conditions and provisions of, or constitute a default
under, the Articles of Incorporation or By-Laws of Purchaser or any agreement,
indenture or other instrument or undertaking of any kind or nature under which
Purchaser is bound or to which the assets of Purchaser are subject, or result in
the creation or imposition of any lien, claim, charge or encumbrance upon any of
such assets or upon any of the stock of Purchaser, or (b) violate or conflict
with any judgment, decree, order, statute, rule or regulation of any court or
any public, governmental or regulatory agency or body having jurisdiction over
Purchaser or the properties or assets of Purchaser. To the best of Purchaser's
knowledge, Purchaser has complied (and will through the Closing comply) in all
material respects with all applicable laws, regulations and licensing
requirements, and has filed (and will through the date of the Closing file) with
the proper authorities all necessary statements and reports, tax returns and all
other filings of any kind or nature due at any time up through the date of the
Closing.
2.04 Capitalization. The authorized capital stock of the Purchaser
consists of 25,000,000 shares of Common Stock, $.001 par value per share, of
which amount 15,000,000 shares are currently issued and outstanding, which will
be reduced to 1,535,000 shares immediately prior to the Closing through a
one-for-three reverse stock split and Xxxx Xxxxxxxxx, Xxxxxxx Xxxxxxx, Xxxxxx
Rendfish, Xxxxxx X. Xxxxxxxxx, Xxxx Xxxxxxx, Xxxx Xxxxxx, Xxxxxx Xxxxxxxxxx and
Xxxx Xxxxxxxx CRT selling back to the Purchaser at a price of $.0001 per share a
total of 3,465,000 shares of Purchaser's Common Stock. All of Purchaser's issued
and outstanding shares have been validly issued and are fully paid and
non-assessable. There are and as of the date of the Closing will be, no
outstanding warrants, options, subscriptions or other rights of any kind or
nature by which any person or entity can acquire any additional shares of Common
Stock or other securities of any kind or nature of the Purchaser; no shareholder
of Purchaser or other person or entity is entitled to any preemptive rights,
rights of first refusal or other rights of any kind or nature arising out of or
relating to the issuance of shares of Omega Common Stock to be issued to the
Transferors under this Agreement; and there are (and as of the Closing will be)
no other commitments requiring the issuance of any additional shares of the
capital stock of the Purchaser except as described herein. All of the shares of
Common Stock to be issued to the Transferors at the Closing will be duly
authorized, fully paid and non-assessable shares and shall not be subject to any
lien, claim, charge, encumbrance or shareholder agreement of any kind or nature,
right of first refusal or preemptive rights.
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2.05 Corporate Records. The copies of the Articles of Incorporation and
all amendments thereto and the By-Laws, as amended, of Purchaser that will be
delivered to BBJ at or prior to the Closing will be true, correct and complete.
The minute book of Purchaser, copies of which will be delivered to BBJ at or
prior to the Closing upon request will contain minutes of all meetings of and
consents to all actions taken without meetings by the Board of Directors and the
shareholders of Purchaser since the formation of Purchaser, all of which will be
accurate in all material respects. The books and records, financial and others
of Purchaser are in all material respects complete and correct and have been
maintained in accordance with good business and accounting principles.
2.06 Financial Statements/SEC Filings. Purchaser will furnish BBJ a
copy of Purchaser's audited financial statements for the fiscal year ended
December 31, 1999 contained in its Form 10-KSB for that fiscal year; and will
furnish a copy of all reports filed under the Securities Exchange Act of 1934,
as amended, for the last three years. The information set forth in these filings
are true, correct and complete in all material respects, and the financial
statements contained therein fairly presents financial condition of the
Purchaser as of those dates, and the results of its operations for those periods
referred to in the financial statements, in accordance with generally accepted
accounting principles consistently applied. Purchaser did not have, as of the
date of each such balance sheet, except as to the extent reflected or reserved
against therein, any liabilities or obligations (absolute or contingent) which
should be reflected in the balance sheet or the notes thereto prepared in
accordance with generally accepted accounting principles. Purchaser is, or will
be as of the Closing, current in all SEC, income and franchise tax and other
reporting and filing obligations consistent with law and its contractual
undertakings (if any).
2.07 Absence of Certain Changes. Except for a $50,000 loan received
from BBJ, since December 31, 1999, Purchaser has not: (a) suffered any material
adverse change in its financial condition, assets, liabilities or business; (b)
contracted for or paid any capital expenditures; (c) incurred any indebtedness
or borrowed money, issued or sold any debt or equity securities or discharged or
incurred any liabilities or obligations except in the ordinary course of
business as heretofore conducted (as described in the Form 10-KSB for the year
ended December 31, 1999); (d) mortgaged, pledged or subjected to any lien,
lease, security interest or other charge or encumbrance any of their properties
or assets; (e) paid any material amount on any indebtedness prior to the due
date, forgiven or canceled any material debts or claims or released or waived
any material rights or claims; (f) suffered any damage or destruction to or loss
of any assets (whether or not covered by insurance); (g) acquired or disposed of
any assets or incurred any liabilities or obligations except in the ordinary
course of business; (h) made any payments to its affiliates or associates or
loaned any money to any person or entity; (i) formed or acquired or disposed of
any interest in any corporation, partnership, joint venture or other entity; (j)
entered into any employment, compensation, consulting or collective bargaining
agreement or any other agreement of any kind or nature with any person or group,
or modified or amended in any respect the terms of any such existing agreement;
(k) entered into any other commitment or transaction or experienced any other
event that relates to or affects in any way this Agreement or to the
transactions contemplated hereby, or that has affected, or may adversely affect
Purchaser's business, operations, assets, liabilities or financial condition; or
(l) amended its Certificate of Incorporation or By-Laws beyond those provided to
BBJ in accordance with Article 2.05 contained herein.
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2.08 Disclosure. No representation or warranty by Purchaser in this
Agreement nor any statement or certificate furnished or to be furnished by it
pursuant hereto or in connection with the transactions contemplated hereby
contains or will contain any untrue statement of a material fact or omits or
will omit to state a material fact necessary to make the statements contained
therein not misleading or necessary in order to provide BBJ and the Transferors
with complete and accurate information.
2.09 Consents. No authorization, consent, approval, permit or license
of, or filing with, any governmental or public body or authority, any lender or
lessor or any other person or entity is required to authorize, or is required in
connection with the execution, delivery and performance of this Agreement, the
agreements contemplated hereby, or the consummation of the transactions
contemplated hereby or thereby, on the part of Purchaser.
2.10 Compliance with Laws. There are no existing violations of any
applicable federal, state or local law or regulation involving the current or
prior property and/or business of Purchaser; there are no known, noticed or
threatened current or prior violations or any state of facts involving Purchaser
which would constitute such a violation; and this Agreement and the consummation
of the transactions contemplated hereby will not give rise to any such
violation.
2.11 Litigation. Purchaser has not had any legal action or
administrative proceeding or investigation instituted or, to the best of its
knowledge, threatened against it. Purchaser is not (a) subject to any continuing
court or administrative order, writ, injunction or decree applicable
specifically to Purchaser or to its business, assets, operations or employees,
or (b) in default with respect to any such order, writ, injunction or decree.
Purchaser knows of no basis for any such action, proceeding or investigation.
2.12 Tax and Franchise Returns. Purchaser has prepared and filed, or
has caused to be prepared and filed, with the appropriate United States, state
and local government agencies, and all political subdivisions thereof, all tax
and franchise returns required to be filed by, on behalf of or on account of the
operations of Purchaser; all such returns required to be filed prior to the
Closing will be so filed; and all taxes, assessments, interest and penalties
required to be paid in respect of all periods covered thereby have and will be
paid. The federal income tax returns of Purchaser have not been examined by the
Internal Revenue Service and the state income tax returns have not been examined
by state authorities. Purchaser has not executed or filed with the IRS or any
other taxing authority (whether domestic or foreign) any agreement extending the
period for assessments or collection of any income or other taxes. Purchaser is
not a party to a pending action or proceeding by any domestic or foreign
governmental authority for assessment or collection of taxes, nor has any
written claim for assessment or collection of taxes been asserted against it.
The federal and state income tax and franchise returns of Purchaser included in
the Omega Schedules are true and correct. Copies of all federal and state income
tax and franchise returns of Purchaser filed for all fiscal periods for the last
six years have been supplied to BBJ. Such returns accurately reflect the taxes
due for the periods covered thereby.
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2.13 Purchaser Schedules. Purchaser has delivered (or will deliver
prior to closing) to BBJ the following separate schedules, which are
collectively referred to as the "Omega Schedules," certified by an officer of
Omega to be complete and accurate:
(a) Schedule "A": a copy of Purchaser's filings for the last five
years under the Securities Exchange Act of 1934, as amended;
(b) Schedule "B": a copy of Purchaser's Registration Statement and
Prospectus pursuant to which Purchaser originally went public;
(c) Schedule "C": recent Nevada and Florida good standing
certificates;
(d) Schedule "D": Copies of Certificate of Incorporation and
By-Laws and all amendments thereto;
(e) Schedule "E": Copies for the last six years and the most
current federal, state and local income tax and/or franchise returns and any
applicable extensions relating thereto;
(f) Schedule "F": copies of all existing contracts and amendments
thereto;
(g) Schedule "G": Copies of all insurance plans; and
(h) Schedule "H": Copies of all prior payroll returns.
Purchaser will cause the schedules, instruments, and data delivered to
BBJ hereunder to be updated after the date hereof to the Closing.
2.14 Undisclosed Liabilities. Purchaser has at closing no liability
(whether known or unknown, whether asserted or unasserted, whether absolute or
contingent, whether accrued or unaccrued, whether liquidated or unliquidated,
and whether due or to become due), including any liability for taxes, except for
liabilities owed to BBJ in the principal amount of $50,000 plus interest.
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2.15 Contracts and Agreements. Purchaser has no contracts or agreements
with any party which is not cancelable upon giving not more than thirty (30)
days" notice without incurring any liability. Each of the contracts and
agreements of Purchaser listed on the Disclosure Schedule is valid and
subsisting in full force and effect as of the date hereof. Copies of all
agreements and contracts in the Disclosure Schedule have been provided to BBJ to
the extent that such contracts and agreements are written.
2.16 Insurance. The Disclosure Schedule contains a copy of any and all
policies of insurance in force with respect to Purchaser. Purchaser carries all
required public liability, workmen's compensation and other usual types of
insurance of reasonable amounts and Purchaser will deliver to BBJ copies of any
such policies and certificates of insurers showing such insurance to be in
effect as of the date of this Agreement. Purchaser has not received notice from
any existing insurance carrier of its intent to cancel any insurance policy
provided in the Disclosure Schedule and to Purchaser's knowledge, any and all
such policies are currently in full force and effect. All premiums due and
payable on such policies have been paid and Purchaser is not a co-insurer under
any term of any insurance policy.
2.17 Labor Disputes. Purchaser has no employees, employee benefit
plans, Collective Bargaining Agreement, union contract, profit sharing plan,
group life insurance, group health insurance and/or fringe benefit plan. The
Company is not currently required to file any payroll returns. Copies of all
prior payroll returns for the last six years have been supplied to BBJ at
Closing in accordance with the Purchaser Disclosure Schedules.
2.18 Broker's Fees. Purchaser has no liability or obligation to pay any
fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement.
2.19 Interested Transactions. Purchaser is not a party to any contract,
instrument, transaction or other arrangement with any officer or director of the
Purchaser, or any member of their family, which continues on after the date
hereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BBJ
-------------------------------------
BBJ represents, warrants and covenants that the following are true and
correct as of this date and will be true and correct through the date of the
Closing as if made anew on and as of that date and that parties will comply with
the provisions of Articles 3.14 and 3.15 after Closing:
3.01 Organization and Good Standing. BBJ is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Florida, with all requisite power and authority to carry on the business in
which it is engaged, to own the properties it owns, to execute and deliver this
Agreement, to consummate the transactions contemplated hereby and to take all of
the other actions provided for in or contemplated hereby. BBJ is not licensed to
transact business outside of the State of Florida and it is not
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required to do so by the nature and conduct of its business. BBJ has no active
subsidiaries.
3.02 Authorization and Validity. The execution, delivery and
performance of this Agreement by BBJ and the consummation of the transactions
contemplated hereby have been or will be prior to Closing duly authorized by
BBJ. This Agreement constitutes or will constitute legal, valid and binding
obligations of BBJ, enforceable against BBJ in accordance with its terms. This
Agreement will, at the time of the Closing, be authorized by the Board of
Directors (and stockholders, if required) of BBJ and will constitute the valid
and binding agreement of BBJ, enforceable in accordance with its terms, and
neither the execution or delivery of this Agreement nor the consummation by BBJ
of the transactions contemplated hereby (i) violates any statute or law or any
rule, regulation or order of any court or any governmental authority, or (ii)
violates or conflicts with, or constitutes a default under or will constitute a
default under, any contract, commitment, agreement, understanding, arrangement,
or restriction of any kind to which BBJ is a party or by which BBJ is bound.
3.03 No Violation. Neither the execution, delivery or performance of
this Agreement nor the consummation of any of the transactions contemplated
hereby now or at any time in the future (whether with the giving of notice or
passage of time or both) will (a) conflict with, or result in a violation or
breach of the terms, conditions and provisions of, or constitute a default
under, the Articles of Incorporation or By-Laws of BBJ or any agreement,
indenture or other instrument or undertaking of any kind or nature under which
BBJ is bound or to which the assets of BBJ are subject, or result in the
creation or imposition of any lien, claim, charge or encumbrance upon any of
such assets or upon any of the stock of BBJ, or (b) violate or conflict with any
judgment, decree, order, statute, rule or regulation of any court or any public,
governmental or regulatory agency or body having jurisdiction over BBJ or the
properties or assets of BBJ. BBJ has complied (and will through the Closing
comply) in all material respects with all applicable laws, regulations and
licensing requirements, and has filed (and will through the date of the Closing
file) with the proper authorities all necessary statements and reports, tax
returns and all other filings of any kind or nature due at any time up through
the date of the Closing. BBJ possesses all necessary licenses, franchises,
permits and governmental authorizations to conduct its business as now or
heretofore conducted and as this Agreement contemplates it will be conducted
after the Closing.
3.04 Capitalization. As of the date hereof, BBJ had an authorized
capitalization of 30,000,000 shares of Common Stock, $.0005 par value, of which
5,683,333 shares are issued and outstanding. BBJ has outstanding options and/or
warrants of BBJ to purchase a total of 3,306,343 shares of Common Stock. BBJ
also has 5,000,000 shares of Preferred Stock, $2.00 par value, authorized,
consisting of 100,000 shares of Series A Preferred Stock outstanding and 171,875
shares of Series B Preferred Stock outstanding. The record and beneficial
shareholders of at least 90% of the outstanding BBJ Common Stock, 100,000 shares
of Series A Preferred Stock and 171,875 shares of Series B Preferred Stock at
the time of the Closing will be the Transferors, which capital stock will be
owned free and clear by the Transferors of all liens, claims, encumbrances,
equities and proxies. Each outstanding share of capital stock at the time of
Closing will be legally and validly issued and fully paid and non-assessable.
There will be, at the time of the Closing, no
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other outstanding securities, obligations, rights, subscriptions, warrants,
options or other rights to purchase shares of capital stock of BBJ except for
options to purchase 2,806,343 shares of BBJ Common Stock and warrants to
purchase 500,000 shares of BBJ Common Stock. After Closing, BBJ intends to
utilize its best efforts to exchange BBJ options/warrants for Purchaser's
options/warrants on terms to be determined by the Board of Directors of
Purchaser. It also intends to complete the private placement referenced in
Article 7.02.
3.05 Corporate Records. The copies of the Articles of Incorporation and
all amendments thereto and the By-Laws of BBJ that will be delivered to
Purchaser at or prior to the Closing will be true, correct and complete. The
minute book of BBJ, copies of which will be delivered to Purchaser at or prior
to the Closing will contain minutes of all meetings of and consents to all
actions taken without meetings by the Board of Directors and the shareholders of
BBJ since the formation of BBJ, all of which will be accurate in all material
respects. The books and records, financial and others of BBJ are in all material
respects complete and correct and have been maintained in accordance with good
business and accounting principles.
3.06 Financial Statements. The unaudited financial statements of BBJ
for the nine months ended September 30, 1999 (the "BBJ Financial Statements")
fairly present the financial position of BBJ as of the balance sheet dates
included therein and the results of its operations and changes in cash flow for
the periods covered. The BBJ Financial Statements have been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved. Each of such balance sheets presents fairly the
financial condition of BBJ as of its date. BBJ did not have, as of the date of
each of such balance sheet, except as and to the extent reflected or reserved
against therein, any liabilities or obligations (absolute or contingent) which
should be reflected in a balance sheet or the notes thereto prepared in
accordance with generally accepted accounting principles. Such statements of
operations and stockholders' equity present fairly the results of operations and
changes in stockholders' equity of BBJ for the periods indicated. Such
statements of changes in cash flow present fairly the information which should
be presented therein in accordance with generally accepted accounting
principles.
3.07 Absence of Certain Changes. Since December 31, 1999, BBJ has not:
(a) suffered any material adverse change in its financial condition, assets,
liabilities or business; (b) acquired or disposed of any assets or incurred any
liabilities or obligations or borrowed money, issued or sold any debt or equity
securities or discharged or incurred any liabilities or obligations except in
the ordinary course of business as heretofore conducted; (c) mortgaged, pledged
or subjected to any lien, lease, security interest or other charge or
encumbrance any of their properties or assets; (d) paid any material amount on
any indebtedness prior to the due date, forgiven or canceled any material debts
or claims or released or waived any material rights or claims; (e) suffered any
damage or destruction to or loss of any assets (whether or not covered by
insurance); (f) formed or acquired or disposed of any interest in any
corporation, partnership, joint venture or other entity; (g) entered into any
other commitment or transaction or experienced any other event that relates to
or affects in any way this Agreement or to the transactions contemplated hereby,
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or that has affected, or may adversely affect BBJ's business, operations,
assets, liabilities or financial condition; or (h) amended its Certificate of
Incorporation or By-Laws.
3.08 Disclosure. No representation or warranty by BBJ in this Agreement
nor any statement or certificate furnished or to be furnished by it pursuant
hereto or in connection with the transactions contemplated hereby contains or
will contain any untrue statement of a material fact or omits or will omit to
state a material fact necessary to make the statements contained therein not
misleading or necessary in order to provide Purchaser with complete and accurate
information.
3.09 Consents. No authorization, consent, approval, permit or license
of, or filing with, any governmental or public body or authority, any lender or
lessor or any other person or entity is required to authorize, or is required in
connection with the execution, delivery and performance of this Agreement, the
agreements contemplated hereby, or the consummation of the transactions
contemplated hereby or thereby, on the part of BBJ.
3.10 Compliance with Laws. There are no existing violations of any
applicable federal, state or local law or regulation involving the property or
business of BBJ; there are no known, noticed or threatened violations or any
state of facts involving BBJ which would constitute such a violation; and this
Agreement and the consummation of the transactions contemplated hereby will not
give rise to any such violation.
3.11 Litigation. BBJ has not had any legal action or administrative
proceeding or investigation instituted or threatened against it. BBJ is not (a)
subject to any continuing court or administrative order, writ, injunction or
decree applicable specifically to BBJ, or to its business, assets, operations or
employees, or (b) in default with respect to any such order, writ, injunction or
decree. Such persons know of no basis for any such action, proceeding or
investigation.
3.12 Tax and Franchise Returns. BBJ has prepared and filed, or has
caused to be prepared and filed, with the appropriate United States, state and
local government agencies, and all political subdivisions thereof, all tax and
franchise returns required to be filed by, on behalf of or on account of the
operations of BBJ; all such returns required to be filed prior to the Closing
will be so filed; and all taxes, assessments, interest and penalties required to
be paid in respect of all periods covered thereby have and will be paid. Such
returns accurately reflect the taxes due for the periods covered thereby, except
for amounts which, in the aggregate, are immaterial. The federal income tax
returns of BBJ have not been examined by the Internal Revenue Service and the
state income tax returns have not been examined by the applicable State
Department which audits such returns.
3.13. BBJ Schedules. BBJ has made available (and will upon request
deliver prior to closing) to Purchaser the following separate schedules, which
are collectively referred to as the "BBJ Schedules," certified by an officer of
BBJ to be complete and accurate.
(a) Schedule "A": copies of the Certificate of Incorporation and
By-Laws of BBJ, including all amendments thereto, now in effect or to be in
effect;
11
(b) Schedule "B": copies of all financial statements identified in
Article 3.06;
(c) Schedule "C": copies of all material contracts , leases, and
other instruments to which BBJ is a party or is bound (other than insurance
policies).
(d) Schedule "D": a list setting forth the name and address of
each shareholder of BBJ and for each such shareholder, the number of shares of
BBJ capital stock held;
BBJ shall cause the schedules, instruments, and data delivered to
Purchaser hereunder to be updated after the date hereof to the Closing.
3.14 Information for Purchaser's Report on Form 8-K. BBJ will furnish
Purchaser with all information concerning BBJ and its affiliates required for
inclusion in the current report on Form 8-K to be filed by Purchaser pursuant to
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), to report
the consummation of this Agreement. BBJ represents and warrants to Purchaser
that all information so furnished for such report or other public release by
Purchaser shall be true and correct in all material respects without omission of
any material fact required to make the information stated not misleading.
3.15 Audited Financial Statements. On or before 75 days from the date
hereof, BBJ shall deliver to Purchaser audited financial statements for its most
recently completed fiscal year, including the notes thereto, together with the
opinion of the independent accountants of BBJ as required under Form 8-K
pursuant to the Exchange Act. All such financial statements shall be prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved and applicable provisions of Regulation S-B
promulgated by the Securities and Exchange Commission under the Securities
Exchange Act of 1934, as amended. The balance sheets shall present fairly the
financial condition of BBJ as of the dates required and shall contain all
liabilities or obligations (absolute or contingent) which should be reflected on
a balance sheet or the notes thereto prepared in accordance with generally
accepted accounting principles. Such statement of operations shall present
fairly the results of operations for the period(s) indicated. The statements of
cash flow and stockholders' equity shall present fairly the information, which
should be presented therein in accordance with generally accepted accounting
principles.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF TRANSFERORS
---------------------------------------------
The Transferors represent, warrant and covenant that the following are
true and correct as of this date and will be true and correct through the date
of the Closing as if made anew on and as of that date and the Transferees will
comply with the provisions of Article 4.08 after Closing:
12
4.01 Organization and Good Standing. Each corporate Transferor, if any,
is a corporation duly organized, validly existing and in good standing under the
laws of its state of incorporation, with all requisite power and authority to
carry on the business in which it is and/or has been engaged, to own the
properties it owns, to execute and deliver this Agreement, to consummate the
transactions contemplated hereby and to take all of the other actions provided
for in or contemplated hereby.
4.02 Authorization and Validity. The execution, delivery and
performance of this Agreement by each non-individual Transferor and the
consummation of the transactions contemplated hereby have been or will be prior
to Closing duly authorized by each non-individual transferor. This Agreement
constitutes or will constitute legal, valid and binding obligations of the
Transferors, enforceable against the Transferors in accordance with its terms.
This Agreement will, at the time of the Closing, be authorized by the Board of
Directors or governing body of each non-individual Transferor and will
constitute the valid and binding agreement of the Transferors, enforceable in
accordance with its terms, and neither the execution or delivery of this
Agreement nor the consummation by the Transferors of the transactions
contemplated hereby (I) violates any statute or law or any rule, regulation or
order of any court or any governmental authority, or (ii) violates or conflicts
with, or constitutes a default under or will constitute a default under, any
contract, commitment, agreement, understanding, arrangement, or restriction of
any kind to which the Transferors are a party or by which the Transferors are
bound.
4.03 No Liens or Encumbrances. The record and beneficial shareholders
of up to 5,683,333 shares of BBJ Common Stock (subject to adjustment as set
forth in Article 1.03 herein), 100,000 shares of Series A Preferred Stock and
171,875 shares of Series B Preferred Stock at the time of the Closing will be
the Transferors, which capital stock will be owned free and clear by the
Transferors of all liens, claims, encumbrances, equities, proxies and other
agreements and the Transferors shall have the unqualified right to transfer the
BBJ securities to the Purchaser.
4.04 Disclosure. No representation or warranty by any Transferor in
this Agreement nor any statement or certificate furnished or to be furnished by
it pursuant hereto or in connection with the transactions contemplated hereby
contains or will contain any untrue statement of a material fact or omits or
will omit to state a material fact necessary to make the statements contained
therein not misleading or necessary in order to provide Purchaser with complete
and accurate information.
4.05 Consents. No authorization, consent, approval, permit or license
of, or filing with, any governmental or public body or authority, any lender or
lessor or any other person or entity is required to authorize, or is required in
connection with the execution, delivery and performance of this Agreement, the
agreements contemplated hereby, or the consummation of the transactions
contemplated hereby or thereby, on the part of the Transferors.
4.06 Litigation. The Transferors have not had any legal action or
administrative proceeding or investigation instituted or threatened against
them. The Transferors are not (a) subject to any continuing court or
administrative order, writ, injunction or decree applicable specifically to the
BBJ securities owned by them, or (b) in default with respect to
13
any such order, writ, injunction or decree. The Transferors know of no basis for
any such action, proceeding or investigation.
4.07 Transferor Representations. Each of the Transferors will cause a
counterpart copy of this Agreement to be signed for purposes of representing and
warranting that the shares of BBJ capital stock being sold by him, her or it are
owned of record and beneficially by that Transferor, and are being sold free and
clear of any lien, claim, charge, encumbrance, equity, proxy of any kind or
other agreement.
4.08 Information for Purchaser's Report on Form 8-K. The Transferors
will furnish Purchaser with all information concerning them and their affiliates
required for inclusion in the current report on Form 8-K to be filed by
Purchaser pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), to report the consummation of this Agreement. The Transferors
represent and warrant to Purchaser that all information so furnished for such
report or other public release by Purchaser shall be true and correct in all
material respects without omission of any material fact required to make the
information stated not misleading.
4.09 Approval of Third Parties. To the extent any consent and approvals
of third parties are necessary to effect the transactions contemplated in this
agreement, the Transferors will obtain the same.
4.10 Representation Letters. The Transferors confirm their
understanding that the Omega Common Stock to be received by them is restricted
and may not be freely resold unless the shares are registered or an exemption
from registration is available. Further, the Transferors consent to an
appropriate Securities and Exchange Commission restrictive legend to be placed
on each certificate of Purchaser to be issued and delivered to them. Such legend
shall read substantially as follows:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SHARES
UNDER SAID ACT, OR AN OPINION OF COUNSEL SATISFACTORY TO THE
CORPORATION THAT REGISTRATION IS NOT THEN REQUIRED UNDER SAID
ACT."
ARTICLE V
BBJ'S ADDITIONAL UNDERTAKINGS
-----------------------------
14
Except as may be waived in writing by Purchaser, the obligations of
Purchaser hereunder are subject to the fulfillment at or prior to the Closing of
each of the following conditions:
5.01 Opinion. Counsel to BBJ shall have delivered to Purchaser its
opinion, dated the Closing Date, in form and substance reasonably satisfactory
to counsel for Purchaser, to the effect that (a) BBJ is a corporation duly
organized, validly existing and in good standing under the laws of its state of
incorporation and has duly qualified to do business and is in good standing in
the states where the nature of its business makes such qualification necessary,
(b) BBJ has full corporate power and authority to execute and perform this
Agreement, (c) this Agreement has been duly authorized by all necessary
corporate action on the part of BBJ, and has been duly executed and delivered by
BBJ and constitutes the legal, valid and binding obligation of BBJ, enforceable
in accordance with its terms, except as may be limited by bankruptcy, insolvency
or other similar laws affecting creditors' rights generally or the availability
of equitable remedies, (d) to the best of such counsel's knowledge, immediately
prior to the Closing, the authorized, issued and outstanding capital stock of
BBJ will be as set forth in Article 3.04, (e) neither the execution and
performance of this Agreement nor the consummation of the transactions
contemplated hereby by BBJ will conflict with, or result in a breach of the
terms, conditions and provisions of, or constitute a default under, the Articles
of Incorporation or By-Laws of BBJ or, to the best of such counsel's knowledge,
any agreement, indenture or other instrument of which such counsel has knowledge
under which BBJ is bound or to which any of the assets of BBJ is subject, or to
the best of such counsel's knowledge, result in the creation or imposition of
any lien, charge or encumbrance upon any such assets, and (f) to the best of
such counsel's knowledge, there are no options, warrants or other securities or
rights outstanding which are convertible into or exercisable for any shares of
capital stock of BBJ, except as described in Article 3.04.
5.02 Consents and Approvals. BBJ shall have obtained, and delivered to
Purchaser evidence thereof, all consents and approvals (if any) required to be
obtained by it in connection with the consummation of the transactions
contemplated hereby.
ARTICLE VI
ADDITIONAL UNDERTAKINGS OF PURCHASER
------------------------------------
Except as may be waived in writing by BBJ, the obligations of the
Transferors hereunder are subject to fulfillment at or prior to the Closing of
each of the following conditions in addition to those provided for in Article
1.02 hereof:
6.01 Opinion. Counsel to Purchaser shall have delivered to BBJ its
opinion, dated the Closing Date, in form and substance reasonably satisfactory
to counsel for BBJ to the effect that (a) Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the state of
Nevada and has duly qualified to do business and is in good standing in the
State of Florida which is the only state where the nature of its business makes
such qualification necessary, (b) Purchaser has full corporate power and
authority to execute and perform this Agreement, (c) this Agreement has been
duly authorized by all necessary corporate action on the part of Purchaser, and
has been duly
15
executed and delivered by Purchaser and constitutes the legal, valid and binding
obligation of Purchaser enforceable in accordance with its terms, except as may
be limited by bankruptcy, insolvency or other similar laws affecting creditors'
rights generally or the availability of equitable remedies, (d) immediately
prior to the Closing, the authorized, issued and outstanding capital stock of
Purchaser will be as set forth in Article 2.04 after completing the
one-for-three reverse stock split and stock sale back to Purchaser referenced
therein, (e) neither the execution and performance of this Agreement nor the
consummation of the transactions contemplated hereby by Purchaser will conflict
with, or result in a breach of the terms, conditions and provisions of, or
constitute a default under the Articles of Incorporation or By-Laws of Purchaser
or, to the best of such counsel's knowledge, any agreement, indenture or other
instrument of which such counsel has knowledge under which Purchaser is bound or
to which any of the assets of Purchaser is subject, or to the best of such
counsel's knowledge, result in the creation or imposition of any lien, charge or
encumbrance upon any such assets, (f) to the best of such counsel's knowledge,
there are no options, warrants or other securities or rights outstanding which
are convertible into or exercisable for any shares of capital stock of
Purchaser, and (g) to the best of such counsel's knowledge, the Purchaser is
current and has filed all reports required under the securities Exchange Act of
1934, as amended, and to the best of such counsel's knowledge, the Purchaser's
Form 10-KSB for its fiscal year ended December 31, 1999 is accurate and complete
and does not contain any untrue statement(s) of a material fact or omit to state
a material fact necessary to make the statement(s) contained therein not
misleading or necessary in order to provide readers of the Form 10-KSB with
complete and accurate information.
6.02 Consents and Approvals. Purchaser shall have obtained, and
delivered to BBJ and to Xxxxxxx X. Xxxxxx as agent for the Transferors evidence
thereof, all consents and approvals (if any) required to be obtained by it in
connection with the consummation of the transactions contemplated hereby.
6.03 Filing of SEC Forms. In addition to the previously referenced
filings, a Form 8-K shall be filed by Purchaser promptly upon the Closing to
reflect these transactions.
6.04 Board Representation. At or prior to the Closing, the current
members of the Board of Directors and executive officers of Purchaser shall
resign one by one with each vacancy created thereby to be filled by a person
designated by Xxxxxx X. Xxxxx or Xxxxx X. Xxxxxxxxx.
6.05 Delivery of Corporate Records. At or prior to the Closing,
Purchasers shall deliver to Xxxxxxx X. Xxxxxx, all the corporate and business
records of Purchasers, including, but not limited to the Minute Book, book of
accounts, all financial statements, all banking records and banking resolutions
naming new signatories covering all cash owned by Purchasers.
ARTICLE VII
ADDITIONAL UNDERTAKING BY PURCHASER AND BBJ
-------------------------------------------
7.01 Access to Corporate Records. BBJ and the Purchaser agree to allow
the other Party's professional representatives and executive officers access to
the books and
16
records of the other Party at anytime prior to the Closing, after giving the
other party at least three business days prior written notice.
7.02 Cooperation of Parties. BBJ and the Purchaser will cooperate with
each other in the preparation of a $2,000,000 (i.e. 1,000,000 post-split shares
at an estimated price of $2.00 per share) Private Placement Memorandum of
Purchaser and the Purchaser's Form S-8 Registration Statement and Purchaser's
Form SB-2 Registration Statement to be filed with the Securities and Exchange
Commission. Executive officers and directors of BBJ will become executive
officers and directors of Purchaser immediately after Closing. From the
execution of this Agreement until the Closing Date, all proceeds received under
the private placement offering will be escrowed and released to Purchaser only
after Closing of this Agreement. The Form S-8 Registration Statement will cover
an employee benefit plan. After the completion of the above referenced Private
Placement Offering, it intends to file the Form SB-2 Registration Statement to
register the resale of shares of Purchaser's Common Stock issuable upon exercise
of (i) certain options of Purchaser to be granted to GunnAllen Financial, Inc.
in exchange for its BBJ options and (ii) certain warrants of Purchaser to be
granted to Titan Gulf Partners, Ltd. in exchange for its BBJ warrants, the
resale of shares of Purchaser's Common Stock sold in the private placement
offering, the Purchaser's Common Stock issuable to the January 3, 2000 private
offering Common Stockholders and to the Series A and Series B Preferred
Stockholders who are both Transferors under this Agreement and the resale of
Purchaser's Common Stock issuable to Transferors Xxxxxx Xxxxx, Xxxxxx Xxxxx and
Xxxxxxxx Xxxxx as part of the consideration for Xxxxxx Xxxxx P.C. representing
the Purchaser after closing in connection with filing of the aforesaid
Registration Statements.
ARTICLE VIII
OTHER AGREEMENTS
----------------
8.01 BBJ Loan. BBJ intends (or has loaned) $50,000 to Omega against
delivery of a demand Promissory Note payable with interest at the rate of 6% per
annum. Omega represents that such monies have been (or will be) utilized for the
payment of legal and accounting expenses in connection with this transaction and
the purpose of bringing Omega current under the Securities Exchange Act of 1934,
as amended, and retiring all debt, accounts payable and accrued expenses through
the Closing Date so that Omega will have no liabilities (other than the $50,000
owed to BBJ) or commitments (whether accrued or not) and will be (other than the
$50,000 owed to BBJ) a clean shell as of the Closing Date.
8.02 Indemnification by Xxxxxxx Xxxxxxx and Xxxx Xxxxxxxxx. Xxxx
Xxxxxxxxx and Xxxxxxx Xxxxxxx (the "Indemnitors") shall indemnify and hold
harmless BBJ and the Purchaser at all times after the date of this Agreement
against and in respect of:
(a) Undisclosed Liabilities. At closing, the Purchaser shall
present a Closing Balance Sheet which is expected to demonstrate that Purchaser
shall have no assets or liabilities except $50,000 owed to BBJ as referenced in
Article 8.01. Such indemnification shall pertain to all liabilities of the
Purchaser of any nature, whether accrued, absolute, contingent, or otherwise,
existing at the Closing Date, to the extent not
17
reflected or reserved against in full in the Purchaser's Closing Balance Sheet,
including, without limitation, any tax liabilities to the extent not so
reflected or reserved against, accrued in respect of, or measured by the
Purchaser's income for any period prior to the Closing Date, or arising out of
transactions entered into, or any state of facts existing, prior to the Closing
Date;
(b) Misrepresentations. Any damage or deficiency resulting from
any misrepresentation, breach of warranty, or nonfulfillment of any agreement on
the part of the Purchaser under this Agreement, or from any misrepresentation in
or omission from any certificate or other instrument furnished or to be
furnished to BBJ and the Transferors hereunder; and
(c) Incidental Expenses. All actions, suits, proceedings, demands,
assessments, judgments, costs, attorney's fees, and expenses incident to any of
the foregoing.
The Indemnitors shall reimburse BBJ or, at is election,
the Purchaser (the "Indemnities"), on demand, for any payment(s) made by the
Indemnities at any time after the Closing Date, in respect of any liability,
claim and/or individual expenses to which the foregoing indemnity relates under
(a) and (c) above. In the event of an undisclosed liability or claim, the
Indemnitors shall be given notice in writing by the Purchaser of a prospective
claim for indemnification that has or may arise. The Indemnitors shall be given
a reasonable period of time not to exceed 30 days to clear up the matter at
their sole cost. If the Indemnitors are unsuccessful, then the Indemnities at
their sole discretion may settle the matter and charge the Indemnitors with
responsibility to promptly reimburse the Indemnities upon receipt of a demand
for payment. The Board of Directors of the Indemnities may, at its sole option
and discretion, accept cash, property and/or securities (including the return
for cancellation of Purchaser's Common Stock at the then fair market value) in
settlement of payment sought from the Indemnitors pursuant to the terms of this
Article 8.02.
8.03 Waiver of Jury Trial. All of the parties hereby waive trial by
jury in any action or proceeding of any kind with respect to, in connection with
or arising out of this Agreement, any instrument, document or Indemnification
Agreement delivered pursuant hereto, or the validity, protection,
interpretation, administration, collection or enforcement hereof or thereof.
ARTICLE IX
MISCELLANEOUS
-------------
9.01 Amendment. This Agreement may be amended, modified or supplemented
only by an instrument in writing executed by the party against which enforcement
of the amendment, modification or supplement is sought.
9.02 Parties in Interest. This Agreement shall be binding on and inure
to the benefit of and be enforceable by Transferors, BBJ, and the Purchaser,
their respective
18
heirs, executors, administrators, legal representatives, successors and assigns.
The representations, warranties and other provisions hereof shall survive the
Closing.
9.03 Assignment. Neither this Agreement nor any right created hereby
shall be assignable by any party hereto.
9.04 Notice. Any notice or other communication hereunder must be in
writing and given by depositing the same in the United States mail, addressed to
the party to be notified, postage prepaid and registered or certified with
return receipt requested or by delivering the same in person against receipt.
Notice shall be deemed received on the date on which it is hand-delivered or on
the third business day following the date on which it is so mailed.
For purposes of notice, the addresses of the parties shall be:
If to BBJ and the Transferors: With a copy to:
------------------------------ ---------------
c/o Xxxxxxx X. Xxxxxx Xxxxxx Xxxxx P.C.
BBJ Environmental Solutions, Inc. 000 Xxxxx Xxxx Xxxx
0000 Xxxxxxxx Xxxxxxxxx Inc. Xxxxx 000
Xxxxx 000 Great Neck, New York 11021
Xxxxx, XX 00000
If to Purchaser: With a copy to Purchaser's attorney:
---------------- ------------------------------------
Xxxx Xxxxxxxxx Del X. Xxxxxxxxx, Esq.
c/o Health Net Hall Xxxxxx Xxxxxxxx Xxxxx Golden &
000-00 Xxxxxxxx Xxxxxxx Xxxxxx, X.X.
Xxxxxxxx, XX 00000 000 X. Xxxxxx Xxx., Xxxxx 000
Xxxxx, XX 00000
And
Omega Development Incorporated
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx, XX 00000
Any party may change its address or addresses for notice by written notice given
to the other parties.
9.05 Entire Agreement. This Agreement and any exhibits hereto supersede
all prior agreements and understandings between the parties relating to the
subject matter hereof, except that the obligations of any party under any
agreement executed pursuant to this Agreement shall not be affected by this
Article.
9.06 Costs, Expenses and Legal Fees. Whether or not the transactions
contemplated hereby are consummated, each party hereto shall bear its own costs
and expenses (including attorneys' and accounting fees) except that each party
hereto agrees to pay the costs and expenses, including reasonable attorneys'
fees, incurred by the other parties in successfully (i) enforcing any of the
terms of this Agreement against a party
19
alleged to be in breach, or (ii) proving that the other parties breached any of
the terms of this Agreement in any material respect.
9.07 Severability. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws effective during
the term hereof, such provision shall be fully severable and this Agreement
shall be construed and enforced as if such illegal, invalid or unenforceable
provision never comprised a part hereof; and the remaining provisions hereof
shall remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance hear from. Furthermore,
in lieu of such illegal, invalid or unenforceable provision, there shall be
added automatically as part of this Agreement, a provision as similar in its
terms to such illegal, invalid or unenforceable provision as may be possible and
still be legal, valid and enforceable.
9.08 Governing Law. This Agreement and the rights and obligations of
the parties hereto shall be governed, construed and enforced in accordance with
the laws of the State of Florida. The parties agree that any litigation relating
directly or indirectly to this Agreement must be brought before and determined
by a court of competent jurisdiction sitting in the State of Florida and County
of Hillsborough.
9.09 Captions. The captions in this Agreement are for convenience of
reference only and shall not limit or otherwise affect any of the terms or
provisions hereof.
9.10 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
9.11 Waiver. No waiver of any term or provision hereof shall be
effective unless in writing, signed by the party to be charged.
9.12 Brokerage and Finder's Fees. Each of the parties hereto represents
and warrants to the others that neither such party nor its officers or directors
have employed any broker or finder or have made arrangements for the payment of
any brokerage commissions or finder's fees in connection with the transactions
contemplated by this Agreement and are not otherwise obligated to pay any such
fee or commission, except for warrants already granted to Titan Gulf Partners,
Ltd., as described in Article 3.04, for its finder and consulting services in
connection with this Transaction and to compensate Titan for certain future
financial consulting services to be rendered by it. In the event that any claim
is asserted by any other person claiming a commission or finder's fee with
respect to this Agreement or the transactions contemplated hereby arising from
any act, representation, or promise of such person or its representatives, such
party will indemnify the other parties against and hold them harmless from any
cost or expense with respect thereto.
9.13 Press Releases and Public Announcements. No party shall issue any
press release or make any public announcement relating to the subject matter of
this Agreement without the prior written approval of the other parties or their
attorneys, provided, however, that any party may make any public disclosure it
believes in good faith is required by applicable law or any listing or trading
agreement concerning its publicly-traded securities
20
(in which case the disclosing party will use its best efforts to advise the
other parties prior to making the disclosure).
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date first written above.
PURCHASER:
OMEGA DEVELOPMENT INCORPORATED
By: /s/ A. Xxxx Xxxxxxxxx
------------------------
A. Xxxx Xxxxxxxxx, President
BBJ ENVIRONMENTAL SOLUTIONS, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------
Xxxxx X. Xxxxxxxxx, President
21
TRANSFERORS
TABLE I
-------
Number of Shares of Omega
Development
Incorporated
Number of Shares Common Stock to be issued
of Common Stock to
of BBJ Transferors in
Environmental Exchange for all
Solutions, Inc. BBJ Common Stock owned
Name of Transferor owned immediately by them Signature
prior to closing
Xxxxxx X. Xxxxx 1,927,195 3,854,390
Xxxxxxx Xxxxx Joint Tenant Joint Tenant
-----------------------------------------------------------------------------------------------------------------
Xxxxx X. Xxxxxxxxx 1,927,195 3,854,390
Xxxx Xxxxxxxxx Joint Tenant Joint Tenant
-----------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxx 9,636 19,272
Xxxx Xxxxxx Joint Tenant Joint Tenant
-----------------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxx
Trustee for Xxxxxx X.
Xxxxxx Family Trust 192,719 385,438
-----------------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxx 505,619 1,011,238
-----------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxx 10,000 20,000
-----------------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxxxxx 18,000 36,000
-----------------------------------------------------------------------------------------------------------------
Xxxxxx XxXxxxx 9,636 19,272
-----------------------------------------------------------------------------------------------------------------
Xxxxx X. Black 25,000 50,000
-----------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxx 21,000 42,000
-----------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxx 21,000 42,000
-----------------------------------------------------------------------------------------------------------------
Xxxxxxxx Xxxxx 1,400 2,800
-----------------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxx on
behalf of Xxxxx Xxxxxx,
Minor 69,134 138,267
-----------------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxx on
behalf of Xxxxxxx
Xxxxxx, Minor 69,133 138,267
-----------------------------------------------------------------------------------------------------------------
22
-----------------------------------------------------------------------------------------------------------------
Lexus Partners Ltd. 183,333 366,666
-----------------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxxx 333,333 666,666
Xxxxxxxxx Xxxxxx Joint Tenant Joint Tenant
-----------------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxxx 24,000 48,000
-----------------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxxx 24,000 48,000
-----------------------------------------------------------------------------------------------------------------
Xxxx Xxxxxxxxx 24,000 48,000
-----------------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxx 24,000 48,000
-----------------------------------------------------------------------------------------------------------------
Xxxx X. Summer 24,000 48,000
-----------------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxxx 60,000 120,000
Xxxxxx X. Xxxxxx Joint Tenant Joint Tenant
-----------------------------------------------------------------------------------------------------------------
Xxxxx Xxxxx 60,000 120,000
-----------------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxxx 120,000 240,000
-----------------------------------------------------------------------------------------------------------------
TOTAL 5,683,333 11,366,666
========= ==========
-----------------------------------------------------------------------------------------------------------------
23
TRANSFERORS
TABLE II
--------
Number of Shares of
Common Stock of
Omega
Development
Number of Shares Incorporated
of Series A Common Stock to be
Preferred Stock issued to
of BBJ Transferors in
Environmental Exchange for all
Solutions, Inc. BBJ Common
owned Stock owned
Name of Transferor immediately by them Signature
prior to closing
Xxxxx Xxxx 18,750 72,000
-----------------------------------------------------------------------------------------------------------------
Xxxx Xxxxx 25,000 96,000
Xxxxx Xxxxx Joint Tenant Joint Tenant
-----------------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxxxx 12,500 48,000
-----------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxx 6,250 24,000
Xxxx Xxxxx Joint Tenant Joint Tenant
-----------------------------------------------------------------------------------------------------------------
Xxxx Xxxxxxx 6,250 24,000
Xxxxxxxx Xxxxxxx Joint Tenant Joint Tenant
-----------------------------------------------------------------------------------------------------------------
Energy Electric, Inc. 25,000 96,000
-----------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxx Xx.
Pension Plan 6,250 24,000
-----------------------------------------------------------------------------------------------------------------
TOTAL 100,000 384,000
========= ==========
-----------------------------------------------------------------------------------------------------------------
24
TRANSFERORS
TABLE III
---------
Number of Shares of
Common Stock of
Omega
Development
Number of Shares Incorporated
of Series B Common Stock to be
Preferred Stock issued to
of BBJ Transferors in
Environmental Exchange for all
Solutions, Inc. BBJ Common
owned Stock owned
Name of Transferor immediately by them Signature
prior to closing
Xxxxx Xxxx 62,500 240,000
Xxxxxx Xxxx Joint Tenant Joint Tenant
-----------------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxxx 12,500 48,000
-----------------------------------------------------------------------------------------------------------------
Xxxxxxx X. Means, Jr. 50,000 192,000
-----------------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxxxxxx 12,500 48,000
-----------------------------------------------------------------------------------------------------------------
Shenandoah Associates LP 25,000 96,000
-----------------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxxx 9,375 36,000
-----------------------------------------------------------------------------------------------------------------
TOTAL 171,875 660,000
======= ===========
-----------------------------------------------------------------------------------------------------------------
25
