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SHARE EXCHANGE AGREEMENT
DATED AS OF AUGUST 4, 2006
between
FOREST RESOURCES MANAGEMENT CORP.
and
OPUS ASSET MANAGEMENT GROUP, INC.
This Share Exchange Agreement (the "Agreement") dated as of August 4,
2006, between FOREST RESOURCES MANAGEMENT CORP., a corporation organized under
the laws of State of Delaware ("FRM" or "the Corporation"), and OPUS ASSET
MANAGEMENT GROUP, INC., a corporation organized under the laws of the Country of
Belize ("Opus" or "the Company").
W I T N E S S E T H:
WHEREAS, FRM and Opus desire to enter into a tax-free transaction under
Section 368(a) of the Internal Revenue Code of 1986, as amended, pursuant to
which the FRM transfers to Opus, upon the terms and conditions set forth herein,
20,000,000 shares of its reverse split common stock, $0.001 par value (the
"Shares") in exchange for all of the outstanding shares of common stock of the
Company;
NOW THEREFORE, for the consideration herein stated and in further
consideration of the premises and the mutual agreements, covenants and
provisions herein contained, the parties hereto agree as follows:
1. The Transaction
(a) Reverse Split and Change of Name. FRM acknowledges
that a condition precedent to a closing of this agreement is a reverse split of
the shares of FRM on a one share for one hundred share basis to take effect
prior to the Closing Date.and the change of its name to Forest Resources
Management Corp.
(b) Transfer of Shares. Subject to the terms and
conditions herein contained, FRM agrees to transfer to Opus, and Opus agrees to
acquire from FRM on the Closing Date (as defined below), the Shares, free and
clear of any lien, encumbrance, equity or adverse claim, all of which upon the
issuance thereof in accordance herewith, shall be fully paid and non-assessable.
(c) FRM Transactions. On or prior to the Closing Date,
FRM shall enter into one or more transactions (collectively, "FRM Transactions")
pursuant to which its existing obligations will either be terminated or assigned
to third parties, including the assignment of certain obligations and rights.
2. The Closing.
(a) Time and Place of Closings. The consummation of the
transfer of the Shares shall occur at a closing (the "Closing") to be held at
the offices of Xxxxxx X. Xxxxx & Associates, P.A., 0 Xxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxx Xxxxxx, or such other place, time, and date as may be mutually
agreed upon by FRM and Opus. Such date is herein sometimes referred to as the
"Closing Date".
(b) Action to Be Taken. Upon satisfaction of the
conditions of closing set forth in this Agreement, FRM shall execute and deliver
to Opus a duly executed stock certificate, duly registered in the name of Opus
and dated as of the Closing Date.
3. Representations and Warranties of FRM. FRM represents and
warrants to Opus as follows:
(a) Organization. FRM is a corporation duly organized,
validly existing and in good standing under the laws of Delaware and is duly
qualified to do business and in good standing in each jurisdiction where such
qualification is required. FRM has all requisite corporate power and authority
to conduct its business as presently being conducted and as proposed to be
conducted and to own properties. The Company has all requisite corporate power
and authority to execute, deliver and perform all of its obligations under this
Agreement.
(b) Authority. The execution and delivery by FRM of this
Agreement, the performance of its obligations hereunder and the consummation by
the Corporation of the transactions contemplated or referenced hereby:
(i) have been duly authorized by all necessary
corporate action, do not contravene any provision of FRM's charter or
by-laws, and do not require FRM to obtain any consents, approvals or
authorizations which have not been obtained;
(ii) do not violate any provision of any law,
rule or regulation;
(iii) do not and will not result in a breach or
constitute a default under any material agreement to which FRM is a
party or by which any of its properties are bound, including, without
limitation, any indenture, loan or credit agreement, lease, debt
instrument or mortgage; and
(iv) do not result in or require the creation or
imposition of any mortgage, deed of trust, pledge, lien, security
interest or other charge or encumbrance of any nature upon or with
respect to any of the properties owned by FRM.
This Agreement has been duly executed and delivered by FRM and
constitutes the legal, valid and binding obligation of the Corporation
enforceable in accordance with its terms, subject to the effects of bankruptcy,
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insolvency, reorganization, receivership, moratorium and other similar laws now
or hereafter in effect relating to or affecting creditors' rights or remedies
generally.
(c) No Default. FRM (i) is not in default under any law,
rule or regulation, order, writ, judgment, injunction, decree, determination,
award, indenture, loan or credit agreement, lease, debt instrument or mortgage
or any other agreement of the Corporation, (ii) is not aware of any fact,
circumstance, condition or other state of affairs that, with the giving of
notice or the lapse of time, will constitute such default, and (iii) will not be
in any such default by virtue of the transactions contemplated hereby.
(d) The Shares.
(i) The Shares will have been duly and validly
authorized by all necessary action on the part of FRM as of the Closing
Date.
(ii) When issued and delivered pursuant to this
Agreement, the Shares will be duly and validly issued, fully paid and
non-assessable.
(iii) The issuance, sale and delivery of the
Shares are not subject to any preemptive right of stockholders of FRM
arising under law or the Certificate of Incorporation or By-laws or any
contractual right of first refusal or other right in favor of any
person.
(e) Authorized Capital. The authorized capital stock of
FRM consists of 150,000,000 shares of Common Stock. There are no existing
options, warrants, contracts, calls, commitments, demands or other agreements of
any character to which FRM is a party relating to the authorized and issued or
un-issued capital stock of FRM. All of the Shares which are issued and
outstanding are fully paid and non-assessable. At no time has FRM issued any
capital stock not duly authorized on the date of issuance thereof. All
outstanding shares of the Corporation's common stock have been issued in
compliance with all applicable federal and state securities laws.
(f) Subsidiaries, Affiliates and Joint Ventures. On the
Closing Date FRM shall not own or control, directly or indirectly, any interest
in, or any commitment to acquire any such interest in, any corporation, firm,
partnership or organization and shall not be a party to any joint venture or
similar affiliation.
(g) Consents and Approvals. The execution and delivery by
the Corporation of this Agreement, the performance by FRM of its obligations
hereunder and the consummation by FRM of the transactions contemplated hereby do
not require the Corporation to obtain any consent, approval or action of, or
make any filing with or give any notice to, any corporation, person or firm or
any public, governmental or judicial authority.
(h) Litigation. There is no action, suit, claim,
proceeding or investigation pending or to the best of the knowledge of the
officers of FRM, threatened against the Corporation that could either
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individually or in the aggregate have a material adverse effect on assets of
FRM, or result in any change in the current equity ownership of the Corporation.
There is no action, suit, proceeding or investigation of FRM currently pending
or that the Corporation intends to initiate.
(i) Intellectual Property. FRM does not own any licenses,
patents (and applications therefor), patent disclosures, trademarks, service
marks, trade names, copyrights (and applications therefor), inventions,
discoveries, processes, know-how, scientific, technical, engineering and
marketing data, formulae and techniques (collectively, the "Intellectual
Property"). FRM is not currently obligated or under any existing liability to
make royalty or other payments to any owner of, licensor of, or other claimant
to, any patent, trademark, service names, trade names, copyrights, or other
intangible asset, with respect to the use thereof or in connection with the
conduct of its business as conducted prior to the Closing, or otherwise. FRM has
not received any claim or any written communications alleging that FRM has
violated or would violate any of the Intellectual Property of any other person
or entity.
(j) Agreements. FRM is not a party to, or in any way
obligated under, nor is any property or asset of the Corporation subject to, any
contract, lease or other obligation, absolute or contingent.
(k) Properties. FRM does not own or lease any properties
or assets.
(l) Licenses. FRM does not have any licenses and permits
(federal, state, foreign and local). Prior to the Closing, no violations have
been communicated to the Corporation in respect of any licenses or permits and
no proceeding is pending or, to the knowledge of the officers of FRM, threatened
toward the revocation of any such licenses or permits.
(m) Financial Statements. FRM will deliver to Opus its
balance sheet as of December 31, 2005 and the related statements of operations,
stockholders' equity (deficiency) and cash flows for the years ended December
31, 2004 and 2005 and the related unaudited statements of operations and cash
flows for the quarter ended June 30, 2006 (hereinafter collectively referred to
as the "Financial Statements"). The Financial Statements present fairly the
consolidated financial position of FRM and subsidiaries, if any, as at the
respective dates thereof and the related statements of operations, stockholders'
equity (deficiency) and cash flows for the years ended on such dates fairly
present the results of operations, stockholders' equity and accumulated deficit,
and cash flows for the respective periods covered thereby. The Financial
Statements, including the schedules and notes thereto, were prepared in
accordance with generally accepted accounting principles ("GAAP") consistently
applied throughout the periods indicated.
When delivered, the books and records of FRM will fairly
reflect its assets, liabilities and operations.
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Except as contemplated in this Agreement, since the respective
dates of the Financial Statements, there has been no material adverse change in
the financial condition or operations of FRM nor has there been any event which
has occurred on or prior to the date hereof which in any way has or which will
have such a material adverse effect.
(n) Guarantees. FRM is not a guarantor or indemnitor of
any indebtedness of any other person, firm or corporation.
(o) Accounting. FRM maintains and will continue to
maintain a standard system of accounting established and administered in
accordance with GAAP.
(p) Undisclosed Liabilities. Except as and to the extent
reflected or reserved against in the Financial Statements, FRM did not have, as
of the respective dates of the Financial Statements, any debts, liabilities or
obligations of any nature, whether accrued, absolute, contingent or otherwise,
and whether due or to become due, including, without limitation, liabilities or
obligations on account of taxes or other governmental charges or penalties,
interest or fines thereon or in respect thereof. Since the respective dates of
the Financial Statements, FRM has not incurred any liabilities or obligations
outside the ordinary course of business. The Corporation does not know of any
basis for the assertion against it of any debt, liability or obligation not
fully reflected or reserved against in the Financial Statements.
(q) Intercompany and Affiliate Transactions; Insider
Interests. There are no transactions, intercompany agreements or arrangements of
any kind, direct or indirect, between FRM and any director, officer, employee,
stockholder or relative or affiliate thereof, including, without limitation,
loans, guarantees or pledges to, by or for FRM from, to, by or for any of such
persons, that will be in effect on the Closing Date.
(r) Taxes. FRM has:
(i) filed or will file all tax returns required
to be filed by any jurisdiction to which it is or has been subject,
(ii) paid or will pay in full all taxes due and
all taxes claimed to be due by each such jurisdiction, and any interest
and penalties with respect thereto, subject to audit by the taxing
authority of such jurisdiction,
(iii) accrued or will accrue on its books all
taxes for any period which are not yet due, and
(iv) will make payments of the taxes required to
be deducted and withheld from the wages paid to its employees.
All federal, state, county and local tax returns, schedules,
declarations and other tax related documents filed by FRM correctly
reflect income, expense, deductions, credits and loss carryovers of
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FRM. The Corporation has not received any notice of deficiency or
assessment or proposed deficiency or assessment from any federal,
state, local or foreign taxing authority which has not been paid. There
are no agreements, consents or waivers by FRM for the extension of the
time for the assessment of any taxes or deficiencies against or with
respect to its operations or assets, and no power of attorney granted
by FRM with respect to any matter relating to taxes is currently in
force. The Corporation is not a party to any agreement pursuant to the
Internal Revenue Code of 1986, as amended, to be treated as a
Subchapter S Corporation.
(s) Insurance. FRM has no contracts of insurance in force
on the Closing Date.
(t) Employee Benefit Plans. The Company does not maintain
or contribute to, and has not heretofore maintained or contributed to, any
"employee benefit plan", including, but not limited to, any option, bonus,
percentage compensation, profit sharing, deferred compensation, retirement,
pension or union plan, or any other agreement, policy or practice providing
pension or welfare benefits to its current or former employees.
(u) Environmental Matters. Notwithstanding anything to
the contrary contained in this Agreement and in addition to the other
representations and warranties contained herein:
(i) FRM and its respective operations are in
compliance with all applicable laws, regulations and other requirements
of governmental or regulatory authorities or duties under the common
law relating to toxic or hazardous substances, wastes, pollution or to
the protection of health, safety or the environment (collectively,
"Environmental Laws") and has obtained and maintained in effect all
licenses, permits and other authorizations or registrations
(collectively "Environmental Permits") required under all Environmental
Laws and are in compliance with all such Environmental Permits.
(ii) FRM has not performed or suffered any act
which could give rise to, or has otherwise incurred, liability to any
person (governmental or not) under the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. ss. 9601 et seq.
("CERCLA"), or any other Environmental Laws, nor has the Corporation
received notice of any such liability or any claim therefor or
submitted notice pursuant to Section 103 of CERCLA to any governmental
agency with respect to any of its assets.
(iii) To the best knowledge of the officers of
FRM, no hazardous substance, hazardous waste, contaminant, pollutant or
toxic substance (as such terms are defined in any applicable
Environmental Law and collectively referred to herein as "Hazardous
Materials") has been released, placed, dumped or otherwise come to be
located on, at, beneath or near any of the assets or properties owned
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or leased by FRM or any surface waters or groundwaters thereon or
thereunder in violation of any Environmental Laws or that could subject
the Corporation to liability under any Environmental Laws.
(iv) FRM does not own, lease or operate, and has
never owned, leased or operated, aboveground or underground storage
tanks.
(v) To the best of the knowledge of its officers
of FRM, no condition exists on any of the real properties owned or
leased by the Corporation that upon the failure to act, the passage of
time or the giving of notice would give rise to liability under any
Environmental Law.
(vi) To the best of the knowledge of the officers
of FRM, there are no ongoing investigations or negotiations, pending or
threatened administrative, judicial or regulatory proceedings, or
consent decrees or other agreements in effect that relate to
environmental conditions in, on, under, about or related to the
Corporation, its operations or the real properties owned or leased by
the Corporation.
(v) Labor Relations. FRM is not bound by or subject to
any written or oral contract, commitment or arrangement with any labor union,
and no labor union has requested or, to the knowledge of the Corporation, has
sought to represent any of its employees.
(w) Compliance with Applicable Laws. The operations of
FRM have been conducted in accordance with all applicable laws, regulations,
orders and other requirements of all courts and other governmental or regulatory
authorities having jurisdiction over the Corporation, and its assets, properties
and operations. FRM has not received notice of any violation of any such law,
regulation, order or other legal requirements, or is in default with respect to
any order, writ, judgment, award, injunction or decree of any federal, state or
local court or governmental or regulatory authority or arbitrator, domestic or
foreign, applicable to the Corporation or any of its assets, properties or
operations.
(x) No Material Adverse Change. Except as contemplated by
this Agreement, since June 30, 2006, there has been no change in the business,
properties, assets, condition (financial or otherwise), prospects, liabilities
or operations of FRM, which, individually or in the aggregate has had, or is
reasonably likely to have, a material adverse effect on the business or
financial condition of the Corporation. FRM is not aware of any fact or facts,
which, individually or in the aggregate, is or are reasonably likely to have a
material adverse effect on its business or financial condition.
(y) Accuracy of Information. None of the representations,
warranties or statements of FRM contained in this Agreement, or in the schedules
or exhibits hereto, contains any untrue statement of a material fact or omits to
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state any material fact necessary in order to make any of such representations,
warranties or statements not misleading. All information relating to FRM which
is known or would on reasonable inquiry be known to the Corporation or to the
Corporation's directors or officers and which may be material to a purchaser for
value of the Shares has been disclosed in writing to Opus and any such
information arising on or before the Closing Date will forthwith be disclosed in
writing to Opus.
(z) Securities Laws; Restricted Securities. None of the
Shares have been registered under the Securities Act of 1933, as amended (the
"Act") or applicable state securities laws. The Shares have not been registered
under the Act and are characterized as "restricted securities" under the Act.
Therefore, they cannot be sold or transferred unless subsequently registered
under the Act or an exemption from such registration is available. In this
connection, FRM represents that it is familiar with Rule 144 of the SEC, as
presently in effect, and understands the resale limitations imposed thereby and
by the Act.
4. Representations and Warranties of Opus. Opus represents and
warrants that:
(a) Necessary Authorization and Approval. Opus has full
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. All acts and other proceedings
required to be taken by or on the part of Opus to authorize it to carry out this
Agreement and the transactions contemplated hereby have been duly and properly
taken. This Agreement has been duly executed and delivered by Opus and
constitutes the legal, valid and binding obligation of the Company in accordance
with its terms, subject to the effects of bankruptcy, insolvency,
reorganization, receivership, moratorium and other similar laws now or hereafter
in effect relating to or affecting creditors' rights or remedies generally.
Neither the execution, delivery or performance of this Agreement nor the
consummation of the transactions contemplated hereby is prohibited by, or
requires Opus to obtain any consent, authorization, approval or registration
under, any law, rule or regulation, other than as contemplated hereby, or any
judgment, order, writ, injunction or decree, which is binding on Opus or the
terms of any contract to which the Company is a party.
(b) Merger Agreement With Valor Holdings, Inc. On or
about April 10, 2006, the Company completed the acquisition of Valcor Holdings,
Inc. S.A., a Panamanian corporation, which operates a forest management company
known as Valcor Nicaragua S.A. with and into the Company (the "Merger") and all
documents incident thereto, have been made available for examination. The
Merger, and all actions relating thereto, was duly authorized by all necessary
corporate and shareholder action, did not contravene any provision of the
charter or bylaws of the Company, did not violate any provision of any law, rule
or regulation and did not and will not result in a breach or constitute a
default under any agreement to the Company was a party or by which any of their
properties were bound. The Company received all necessary consents, approvals
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and authorizations, including board and shareholder approvals, for the
consummation of the Merger.
(c) Acquisition Entirely for Own Account. The Shares will
be acquired by Opus for investment not as a nominee or agent, and not with a
view to reselling, granting any participation in or otherwise distributing any
of the Shares in a manner contrary to the Act or any applicable federal or state
securities law, and Opus has no contract, undertaking, agreement or arrangement
with any person to sell, transfer or grant participations to such person or to
any third person with respect to the Shares.
(d) Stock Legend. Opus understands that the certificates
evidencing the Shares will bear a legend substantially as follows: "THE SHARES
REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED. THE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY
NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SHARES UNDER THE SECURITIES ACT OF 1933 OR AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED."
(e) Access to Information. Opus has been given access to
information regarding FRM, including, in particular, the current financial
condition of the Corporation, and the risks associated therewith, and has
utilized such access to its satisfaction for the purpose of obtaining
information about FRM.
(f) Sophistication. Opus is a sophisticated investor, is
able to fend for itself in the transactions contemplated by this Agreement, and
has such knowledge and experience in financial and business matters that it is
capable of evaluating the merits and risks of the prospective investment in the
Shares.
5. Delivery of Documentation by FRM to Opus.
FRM has delivered or made available to Opus the following documents
relating to Opus copies of (a) its Certificate of Incorporation, as amended to
date, certified by the Secretary of State for the State of Delaware and (b) the
By-laws of the Corporation, certified as true, correct and complete by an
appropriate officer of the Corporation.
a) Salaries and Employment Agreements. As of the Closing
Date, FRM will have no liabilities (i) to any current or former directors,
officers, employees or agents of, or any consultant to, the Corporation or (ii)
under any defined benefit and defined contribution pension or retirement plan,
stock ownership plan, employment or consulting agreement, executive compensation
plan, bonus plan, incentive compensation plan or arrangement, deferred
compensation agreement or arrangement, agreement with respect to temporary
employees or leased employees, vacation pay, sickness, disability or death
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benefit plan (whether provided through insurance, on a funded or unfunded basis
or otherwise), employee stock option or stock purchase plan, severance pay plan,
arrangement or practice, change in control agreement, retention plan or
agreement, retiree medical or life insurance benefits plan, each other employee
benefit plan, program or arrangement ("Benefit Plans");
b) Insurance. As of the Closing Date, FRM will have no
insurance policies pertaining to the operations or business of the Company
currently in effect.
c) Other Assets. A list of all items of machinery,
equipment, furniture, fixtures and leasehold improvements having a cost per item
in excess of $100 as recorded in the books of account and records of the
Corporation reflected in the Financial Statements, and all additions made
thereafter having a cost per item in excess of $100.
d) Contracts. A list, together with copies thereof if
written or a description if oral of each written or oral contract or agreement
other than those described in one of the other schedules delivered pursuant
hereto
e) Bank Accounts and Powers of Attorney, etc. A list of
the name and address of each bank, together with the name and number of each
account, in which the Corporation has an account or safe-deposit box, the names
of all persons authorized to draw thereon or to have access thereto, and the
names of any persons holding powers of attorney with respect to the business of
the Corporation and a summary of the terms thereof.
f) Loan Agreements; Liens. A list together with copies
of agreements, notes, instruments or other documents relating to indebtedness of
or to FRM (other than open accounts payable), or money borrowed, or money
loaned, or issued by or to the Corporation including all mortgages, loan,
credit, surety, guarantee, and lease-purchase arrangements or other financing
agreements to which the Company is a party; and (B) all conditional sales
contracts, chattel mortgages and other security agreements or arrangements with
respect to personal property used or owned by the Company.
g) Customers. A list of all customers of the Company
which purchased goods or services involving revenue (before returns and
allowances) to the Company to date during the current fiscal year.
h) Product Complaints. A list of all written product
complaints (except routine service complaints) or letters from dissatisfied
customers or users received by the Corporation, including, without limitation,
any notice of loss of quality control approvals and the current status of such
notices, together with copies of all such written non-routine service
complaints.
i) Trademarks, Patents, etc. A list of all trademarks,
service marks, trademark registrations and applications for registration
thereof, trade names, copyrights, copyright registrations and applications for
registration thereof, inventions, trade secrets, patents, patent rights, patent
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applications and patent licenses owned or used by, or licensed to, the
Corporation. There shall be included the date of expiration of any such patents
or trademark registrations of the Corporation, the name of the licensor of, and
the date of expiration of any license under, any thereof, any known information
relating to possible infringement with respect to any of the foregoing and a
list of all licenses of the Corporation with respect to any of the foregoing.
j) Litigation and Certain Other Matters. A list together
with a summary of all litigation, arbitration or administrative proceedings and
governmental investigations pending or, to the knowledge of FRM, threatened
against the Corporation or as to which the Corporation is a party.
k) Certain Transactions. A list and description,
together with a copy of any agreement, of all transactions or any presently
proposed transactions to which FRM or any of its directors, officers or
shareholders (or any relative or spouse of any director, officer or shareholder
of the Corporation was or is to be a party.
l) Indemnification Agreements. A list and copies of any
indemnification agreements and insurance policies relating thereto to which
officers and/or directors of the Corporation in their capacities as such, are
parties.
m) Tax Returns. Complete and correct copies of all
federal, state and local income, franchise and other tax returns related to the
operations of the Corporation for each fiscal year since December 31, 2004,
together with complete and correct copies of all reports of tax authorities
relating to examinations of such returns.
n) Licenses, Permits, etc. A list together with copies
of all licenses, permits, certificates, approvals, authorizations and/or orders
acquired by the Corporation, including, without limitation, all licenses,
permits, certificates approvals, authorizations and orders, required to be
obtained from any federal, state or local government or governmental agency or
authority having jurisdiction over the disposal of waste, the discharge of
pollutants into the air or water or other environmental matters, relating to the
business of the Corporation or the Subsidiary.
o) Return of Documents. In the event that the Closing
shall not take place hereunder, Opus agrees that it will return promptly to FRM
or cause to be destroyed all documents (including copies thereof) which shall
have been furnished to Opus, or any of its advisors or counsel in connection
with the transactions contemplated by this Agreement and will hold in strict
confidence and will not use or disclose to any third party any confidential
information concerning the Corporation obtained from such documents or otherwise
in connection with the transactions contemplated hereby (except as may be
required by law or regulations or unless and until such time as the Corporation
shall have advised FRM that such information is not confidential). In the event
that Opus elects to destroy such documents, it shall furnish certificates from
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appropriate authorized representatives of the Company, its advisors or counsel
to the effect that all such copies have been so destroyed.
6. Conditions of Closing.
(a) Conditions Precedent to the Closing Date; Obligations
of the Company Hereunder. All obligations of Opus under this Agreement with
respect to the exchange of the Shares on the Closing Date are subject to the
fulfillment, prior to or at the Closing, of each of the following conditions,
except to the extent that FRM may waive any one or more thereof:
(i) The representations and warranties of the
Company contained in this Agreement (including the information
contained in the schedules delivered pursuant to this Agreement,
collectively referred to as the "Representations and Warranties") shall
be true on and as of the Closing Date, with the same effect as if said
representations and warranties had been made on and as of the Closing
Date; the Company shall have performed and complied with all agreements
and conditions required by this Agreement to be performed or complied
with by it prior to or at the Closing; except as disclosed in the
Schedules hereto, since the respective dates of the Financial
Statements, there shall have been no material adverse change in the
business, operations, results of operations or condition (financial or
otherwise) of the Company; and FRM shall have been furnished with a
certificate of the Company, dated the Closing Date, certifying (A) in
such detail as FRM may request, to the fulfillment of the foregoing
conditions and (B) that to the best of its knowledge no fact or
condition exists or is contemplated or threatened which might result in
the future in a material adverse change in the business, operations,
results of operations or condition (financial or otherwise) or
prospects of the Company.
(ii) Except as may otherwise have been approved
by FRM in writing or as otherwise disclosed to the Corporation, since
the respective dates of the Financial Statements, the business of the
Company shall have been conducted only in the ordinary course, and FRM
shall have been furnished with a certificate of the Company, dated as
of the Closing Date, certifying, in such detail as FRM may request, to
the fulfillment of the foregoing conditions. In this regard, the
Company shall deliver schedules supplementary to the schedules
described in this Agreement, which supplementary schedules shall be
dated as of the Closing Date, and shall show the changes, if any, to
the schedules delivered on or prior to the date of execution of this
Agreement, and indicate the authority for each such change.
(iii) The Company shall have obtained and
delivered to FRM all necessary consents to the transactions
contemplated by this Agreement, which consents shall be in form and
substance satisfactory to counsel for the Corporation.
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(iv) On the Closing Date, (A) there shall be no
injunction, restraining order or order of any nature issued by any
court of competent jurisdiction which directs that this Agreement or
any material transaction contemplated hereby shall not be consummated
as herein provided or compels or would compel Opus to dispose of or
discontinue the business or a portion of the business of the Company as
a result of the consummation of any of the transactions contemplated
hereby; and (B) there shall be no suit, action or other proceeding by
any person pending before any court or governmental agency, or
threatened to be filed or initiated, which, in the opinion of Opus, is
likely to result in the restraint or prohibition of the consummation of
any transaction contemplated hereby or the obtaining of an amount in
payment of damages from or other relief against any of the parties
hereto or against any director or officer of Opus or any of its
affiliates, in connection with the consummation of any transaction
contemplated hereby.
(v) FRM shall have received a favorable opinion,
dated as of the Closing Date, and addressed to counsel for the
Corporation, to the effect that:
(a) The Company is a corporation duly
incorporated and organized, validly existing and in
good standing under the laws of the Country of
Belize. The Company has all requisite power and
authority to conduct its business as presently
conducted and to own properties. The Company has all
requisite corporate power and authority to execute,
deliver and perform all of its obligations under this
Agreement. The Merger with Valcor Holdings, Inc.
S.A., a corporation duly incorporated under the laws
of the Country of Panama, and each document or
agreement executed in connection therewith was duly
authorized, executed and delivered by the Company.
(b) This Agreement and each other
agreement executed in connection herewith has been
duly authorized, executed and delivered by the
Company and constitutes the legal, valid and binding
obligation of the Company, enforceable in accordance
with their respective terms, subject to the effects
of bankruptcy, insolvency, reorganization,
receivership, moratorium and other similar laws now
or hereafter in effect relating to or affecting
creditors' rights or remedies generally.
(c) The Company is not subject to or
bound by any provision of (a) any law, statute, rule,
regulation or judicial or administrative decision,
(b) to the best knowledge of such counsel, any
mortgage, deed of trust, lease, note, shareholders'
agreement, bond, indenture, other instrument or
agreement, license, permit, trust, custodianship,
other restriction, or (c) to the best knowledge of
such counsel any judgment, order, writ, injunction or
decree of any court, governmental body,
13
administrative agency or arbitrator, that would
prevent or be violated by or that would result in the
creation of any lien or encumbrance as a result of,
or under which there would be a default or right of
termination as a result of, the execution, delivery
and performance by the Company of the Agreement and
the consummation of the transactions contemplated
thereby. No consent, approval or authorization of or
declaration or filing with any person is required for
the valid execution, delivery and performance by the
Company of the Agreement and the consummation of the
transactions contemplated thereby. The consummation
of the transactions contemplated hereby do not
conflict with any provision of the Company's
certificate of incorporation or by-laws.
(vi) All proceedings, corporate or otherwise, to
be taken by the Company in connection with the transactions
contemplated by this Agreement, and all documents incident thereto,
shall be satisfactory in form and substance to FRM and the Company
shall have made available to counsel for FRM all records and documents
relating to the business and affairs of the Company which such counsel
may reasonably request in connection with its review as aforesaid.
(vii) The Company shall have delivered to FRM (a)
a copy of the Company's articles of incorporation, including all
amendments thereto certified by an appropriate official of the Country
of Belize as of the Closing Date, (b) a certificate from the Secretary
of State of the Country of Belize to the effect that the Company is in
existence in such jurisdiction and listing all charter documents of
such Company on file as of the Closing Date, (c) a certificate from an
appropriate official from the Country of Belize or other jurisdiction
in which the Company is qualified to do business to the effect that the
Company is in good standing in such jurisdiction as of the Closing
Date, and (d) a certificate as to the tax status of the Company from
the appropriate officials in Belize and each jurisdiction in which such
Company is qualified to do business, each as of the Closing Date.
(viii) The Board of Directors of the Company shall
have approved the consummation of the transactions contemplated by this
Agreement.
(ix) The Company shall deliver to FRM copies of
all of the Company's minute books, files, documents, papers,
agreements, books of account and records pertaining to the business
conducted by the Company prior to the Closing Date.
(xii) Condition Precedent to the Obligations of
the Company. All obligations of the Company under this Agreement are
subject to the representations and warranties of FRMC contained in this
Agreement being true on and as of the Closing Date with the same effect
as if said representations and warranties had been made on and as of
the Closing Date.
14
7. Survival of Company's Representations and Warranties and
Covenants; Indemnification.
(a) Representations and Warranties. The Representations
and Warranties contained herein and in any certificate, instrument or schedule
delivered on the Closing Date, or prior thereto shall be deemed to have been
relied upon notwithstanding any investigation heretofore or hereafter made or
omitted by FRM and shall continue in full force and effect for one (1) years
following the Closing Date.
(b) Survival of Covenants. All covenants made in this
Agreement which by their terms are to be performed after the Closing shall
survive the Closing, until they are performed.
(c) Indemnification by the Company. The Company shall
indemnify and hold harmless FRM and its affiliates, and all of its officers,
directors, employees, agents, members and shareholders (each an "Indemnitee") to
the full extent permitted in law and equity from and against any and all losses,
claims actions, costs, damages (including without limitation consequential
damages) or expenses (including without limitation reasonable attorneys' fees
and expenses) (collectively, "Losses") resulting from, related to or in
connection with (i) any misrepresentations, or any non-fulfillment of any
representation, warranty, covenant, obligations or agreement by the Company
contained in or made pursuant to this Agreement or in any other agreement,
officer's certificate or other certificate delivered to FRM in connection with
this Agreement, (ii) any litigation, action, claim, proceeding or investigation
by any third party relating to or arising out of (x) the business or operations
of the Company (or any affiliate controlled by the Company) prior to the Closing
Date or (y) the transactions contemplated hereby, and (iii) the enforcement by
FRM of its rights pursuant to this Section 7, or any litigation, proceeding or
investigation relating to any of the foregoing. In addition, the Company shall
advance or reimburse to each Indemnitee, on demand and prior to a final
determination, any and all expenses reasonably incurred by such Indemnitee in
investigating, preparing for, defending or taking any other action in respect of
any such Loss or any proceeding related thereto, whether or not such Indemnitee
is a party to such proceeding.
8. Notice and Opportunity to Defend.
(a) Notice of Asserted Liability. Promptly after receipt
by any Indemnitee of notice of any demand, claim or circumstances which, with
the lapse of time, would give rise to a claim or the commencement (or threatened
commencement) of any action, proceeding or investigation (an "Asserted
Liability") that may result in a Loss, the Indemnitee shall give notice thereof
(the "Claims Notice") (which shall also be given as to any claims resulting from
the inaccuracy of any of the Representations or Warranties or the
15
non-fulfillment of a covenant) to any other party (or parties) obligated to
provide indemnification pursuant to Section 7 (the "Indemnifying Party"). The
Claims Notice shall describe the Asserted Liability in reasonable detail, and
shall indicate the amount (estimated, if necessary) of the Loss that has been or
may be suffered by the Indemnitee.
(b) Opportunity to Defend. The Indemnifying Party may
elect to compromise or defend, at its own expense and by its own counsel, any
Asserted Liability. If the Indemnifying Party elects to compromise or defend
such Asserted Liability, it shall within 30 days (or sooner, if the nature of
the Asserted Liability so requires) notify the Indemnitee of its intent to do
so, and the Indemnitee shall cooperate with all reasonable requests, in the
compromise of, or defense against, such Asserted Liability. If the Indemnifying
Party elects not to compromise or defend the Asserted Liability, fails to notify
the Indemnitee of its election as herein provided or contests its obligation to
indemnify under this Agreement, the Indemnitee may pay, compromise or defend
such Asserted Liability. If the Indemnifying Party chooses to defend any claim,
the Indemnitee shall make available to the Indemnifying Party any books,
records, other documents or personnel within its control that are necessary or
appropriate for such defense.
9. Waiver or Modification of Agreement. No provision of this
Agreement may be amended, waived or otherwise modified except by an instrument
in writing signed by FRM and Opus; provided, however, that any party hereto
which is entitled to the benefits of this Agreement may, and has the right to,
waive or modify in writing any term or condition hereof for his or its benefit
at any time on or prior to the Closing Date.
10. Governing Law. This Agreement shall be governed by and
construed in accordance with the law of the State of Delaware.
11. Finders, etc. Opus represents and warrants that neither no
person acting on its behalf of the Company has made any commitment or done any
other act which would create any liability of any other party to this Agreement
or Opus for any brokerage, finder's or similar fee or commission in connection
with the transactions contemplated by this Agreement. FRM represents and
warrants that, neither it nor anyone acting on its behalf has made any
commitment or done any other act which would create any liability for any
brokerage, finder's or similar fee or commission in connection with the
transactions contemplated by this Agreement.
12. Press Releases, etc. Except as required by law, neither FRM
nor Opus shall issue any press release or other information to the press
relating to this Agreement, without the prior written consent of the other
party.
13. Notices, etc. All notices, requests, demands and other
communications hereunder shall be given in writing (which includes telex,
telecopier, facsimile and other wire transmission):
16
(a) if to FRM, to:
--------------
Forest Resources Management Corp.
0000 XX 00xx Xxxxxx
Xxxx Xxxxx, XX 00000
with a copy to:
---------------
Xxxxxxx X. Xxxxxx, Esq.
000 Xxxxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
(b) if to the Company, to
---------------------
Opus Asset Management Group
X.X. Xxx 000
Xxx Xxxxxx, Xxxxxxxxxx
Xx. Kitts, West Indies
with a copy to:
---------------
Xxxxxx X. Xxxxx, Esq.
Xxxxxx X. Xxxxx & Associates, P.A.
0 Xxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
(or to such other address as such person shall specify by notice hereunder), and
shall be deemed to be effective when given in such manner, provided, that any
notice given other than in writing by registered or certified mail shall be
confirmed in writing by registered or certified mail.
14. Section and Paragraph Headings. The section and paragraph
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
15. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
16. Expenses of Parties. Each of the parties hereto shall bear all
expenses incurred by such party in connection with this Agreement including,
without limitation, the charges of their respective counsel, financial advisors,
accountants and finders, if any.
17. Successors and Assigns. The respective rights and obligations
of the parties hereto shall not be assignable without the prior written consent
of the other party. This Agreement shall be binding upon and inure to the
benefit of the heirs, distributees, successors and permitted assigns of the
parties hereto.
17
18. Entire and Sole Agreement. This Agreement, including the
schedules referred to herein, constitutes the entire agreement between the
parties hereto and supersedes all prior agreements, representations, warranties,
statements, promises, information, arrangements and understandings, whether oral
or written, express or implied, with respect to the subject matter hereof. None
of the parties hereto shall be bound by or charged with any oral or written
agreements, representations, warranties, statements, promises, information,
arrangements or understandings not specifically set forth in this Agreement or
in the schedules, documents and instruments to be delivered on or before the
Closing Date in connection with this Agreement. The parties hereto further
acknowledge and agree that, in entering into this Agreement and in delivering
the schedules, documents and instruments to be delivered on or before the
Closing Date they have not in any way relied, and will not in any way rely, upon
any oral or written agreements, representations, warranties, statements,
promises, information, arrangements or understandings, express or implied, not
specifically set forth in this Agreement or in such schedules, documents or
instruments.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
FOREST RESOURCES MANAGEMENT CORP.
By:
--------------------------------
Name: Xxxxx Xxxxxxx
By:
--------------------------------
Name: Xxxxxxx X. Xxxxxx
OPUS ASSET MANAGEMENT GROUP, INC.
By:
--------------------------------
Name: Xxxxxxx Xxxxxxxxx
By:
--------------------------------
Name: Xxxxxx Xxxxxx
18
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