Exhibit 10
Share Exchange Agreement
This share exchange agreement is made this 1st day of March, 2005, among Omni
Medical Holdings, Inc., a Utah corporation; DataFuzion, Inc. a Colorado
corporation; and the shareholders of DataFuzion, Inc., all of whom shall
receive a copy of this agreement.
Whereas, the respective Board of Directors of Omni and DataFuzion have adopted
resolutions pursuant to which Omni shall offer to acquire 100% of the
outstanding stock of DataFuzion through a stock exchange, and
Whereas the sole consideration for 100% of the outstanding common stock of
DataFuzion shall be the exchange of shares of the common stock of Omni (which
shares shall all be restricted securities as defined in Rule 144 of the
Securities and exchange Commission), and
Whereas, it is intended that the DataFuzion shareholders shall acquire in
exchange such restricted securities in an exchange within the meaning of
Section 368 (a)(1)(B) of the Internal Revenue Code of 1986, as amended, as
applicable;
Now, therefore, in consideration of the mutual covenants and promises
contained herein, it is agreed:
1.1 Transfer and Number of Shares. Omni will offer a shareholder exchange to
the DataFuzion shareholders in which they may transfer to Omni at the
closing 100% of the outstanding common stock of DataFuzion all as listed
in Exhibit A, in exchange for 23,019,215 shares of common stock of Omni.
The exchange will constitute a 50% ownership of Omni for the
shareholders of DataFuzion in the event all shareholders of DataFuzion
agree to exchange their respective common shares. In the event Omni has
more than 23,019,215 shares at closing, Omni will issue one additional
share of common stock to the DataFuzion shareholder in excess of that
amount and these additional shares will be applied to the DataFuzion
shareholders on a pro-rata basis.
1.2 Exchange of Certificates. The transfer of DataFuzion shares shall be
effected by the delivery to Omni at the closing of stock certificates
representing the transferred shares duly endorsed in blank or
accompanied by stock powers executed in blank with all signatures
witnessed or guaranteed to the satisfaction of Omni and with all
necessary transfer taxes and other revenue stamps affixed and acquired
at the DataFuzion shareholders' expense.
1.3 Further Assurances. At the closing and from time to time thereafter, the
DataFuzion shareholders shall execute such additional instruments and
take such other action as Omni may request in order to exchange and
transfer clear title and ownership of the DataFuzion shares to Omni.
1.4 Directors and Executive Officers. On the closing, both companies will
have the right to nominate and appoint two directors each and will
mutually agree upon the nomination of one additional director. Xxxxxx
Xxxxx will remain as CEO of Omni Medical Holdings, Inc. and Xxxxxxx
Xxxxx will remain as CEO of DataFuzion, and be appointed as President of
Omni.
1.5 Closing. This agreement will be deemed to be completed on the execution
and delivery of the agreement by the DataFuzion shareholders
collectively owning not less than 50.01% of the outstanding DataFuzion
shares; and the remainder of the DataFuzion shares shall be acquired
under and pursuant to the terms and provisions of this agreement as soon
as practicable, but in no instance longer than 60 days from the date of
this agreement; provided, however, DataFuzion and its shareholders
understand that the acquisition of less than 80% of the outstanding
DataFuzion shares may have an adverse effect on the tax free nature of
the exchange of securities contemplated hereunder.
2.0 Closing. The closing shall be held in the office of Omni at 0000 Xx.
Xxxxxxxx Xx., Xxx. 0, Xxxxx Xxxx, XX 00000, unless another time and place is
agreed upon in writing by the parties. The closing may be accomplished by
wire, express mail, or other courier service, conference call or as otherwise
agreed by the respective parties or their duly authorized representatives.
3.0 Corporate Status. Omni is a corporation duly organized, validly existing
and in good standing under the laws of the State of Utah. Omni is a publicly
held company, with its common stock quoted on the OTC Bulletin Board under the
symbol "ONMH". Omni is a reporting issuer under the Securities and
Exchange Act of 1934, as amended, has presently filed all reports that have
been required during the past 12 months and is not in violation of any
applicable federal or state securities laws, rules or regulations.
3.1 Capitalization. The current authorized capital stock of Omni is
50,000,000 shares of which approximately 22,519,215 is issued and
outstanding and another 500,000 shares is in the form of outstanding
options.
3.2 Financial Statements. The financial statements for Omni as filed
with the Securities and Exchange Commission are correct and fairly
present the financial condition of Omni. Such statements do not contain
any untrue statements or omissions of material facts.
3.3 Corporate Authority. Omni has the full corporate power and authority
to enter into this agreement and to carry out its obligations hereunder.
4.0 Corporate Status. DataFuzion is a corporation duly organized, validly
existing and in good standing under the laws of the State of Colorado..
4.1 Capitalization. The current authorized capital stock of DataFuzion
is 100,000,000 shares of which approximately 36,000,000 common shares
and 875,000 options are issued and outstanding. Omni will offer the
DataFuzion common shareholders an exchange of the issued and outstanding
DataFuzion shares, for 50% of Omni Medical Holdings Inc. Omni will also
offer the DataFuzion option holders an exchange of the issued and
outstanding DataFuzion options, for Options in Omni Medical Holdings
Inc. It is acknowledged by the parties that DataFuzion also has
approximately $2,679,000 of convertible debentures and accrued
consulting fees that can be converted to Omni Medical Holdings Inc.
common shares after the closing of the Exchange Agreement.
4.2 Financial Statements. The financial statements for DataFuzion as
attached for the most recent period are correct and fairly present the
financial condition of Omni. Such statements do not contain any untrue
statements or omissions of material facts. DataFuzion also warrants and
represents that it will be able to complete an SEC qualified audit with
60 days of closing date and that audit will contain an opinion that is
without qualification.
4.3 Undisclosed Liabilities. DataFuzion has material liabilities of any
nature except to the extent reflected or reserved against in its balance
sheets, whether accrued, absolute, contingent or otherwise, including,
without limitation , tax liabilities and interest due or to become due.
4.4 Corporate Authority. Omni has the full corporate power and authority
to enter into this agreement and to carry out its obligations hereunder.
4.5 Officers and Directors. Xxxxxx Xxxxx will remain CEO and Chairman
of Omni, and Xxxx Xxxxx will remain CEO and Director of DataFuzion. The
board of directors will be a total of five, 2 elected by Omni, 2 elected
by DataFuzion, and 1 to be mutually agreed upon by Omni and DataFuzion.
Termination
5.0 Prior to the Closing, this Agreement may be terminated (i) by mutual
consent in writing; (ii) by either the directors of Omni or DataFuzion, if
there has been a material misrepresentation or material breach of any warranty
or covenant by the other party; or (iii) by either the directors of Omni or
DataFuzion and the DataFuzion Stockholders, if the Closing shall not have
taken place, unless adjourned to a later date by mutual consent in writing, by
the date fixed in Section 2.
General Provisions
6.0 Further Assurances. At any time, and from time to time, after the
closing, each party will execute such additional instruments and take such
action as may be reasonably requested by the other party to confirm a perfect
title to any property transferred hereunder or otherwise to carry out the
intent and purposes of this Agreement.
6.1 Waiver. Any failure on the part of any party hereto comply with
any its or their obligations, agreements or conditions hereunder may be
waived in writing by the party to whom such compliance is owed.
6.2 Brokers. Each party represents to the other parties that no
broker or finder has acted for each or any of them in connection with
this Agreement, with the exception of Xxxxx Xxxxxxxx Red Room LLC, and
Xxxx Xxxxx, Westpark Capital. Each party agrees to indemnify and hold
harmless the other party against any fee, loss or expense arising out of
claims by brokers or finders employed or alleged to have been employed
by each or any of them.
6.3 Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been given if delivered in person
or sent by prepaid first-class registered or certified mail, return
receipt requested, as follows:
If to Omni: 0000 Xx Xxxxxxxx Xx, Xxx 0
Xxxxx Xxxx, XX 00000
If to DataFuzion: 0000 Xxxx Xxxxxxxxx Xxxx. Xxxxx 000
Xxxxxxxxx, XX 00000
If to the DataFuzion
Stockholders: To the addresses of record
6.4 Entire Agreement. This Agreement constitutes the entire
agreement between the parties and supercedes and cancels any other
agreement, representation or communication, whether oral or written,
between the parties hereto relating to the transactions contemplated
herein or the subject matter hereof.
6.5 Headings. The section and subsection headings in this
Agreement are inserted for convenience only and shall not affect in any
way the meaning or interpretation of this Agreement.
6.6 Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with laws of the State of Utah, except to
the extent pre-empted by feral law, in which event (and to that extent
only), federal law shall govern. Any actions permitted hereunder shall
be brought in the State of Utah in the county in which the principal
executive offices of Omni are situated only.
6.7 Assignment. This Agreement shall inure to the benefit of, and
be binding upon, the parties hereto and their successors and assigns.
6.8 Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, or by facsimile, each of which shall be deemed
an original, but all of which together shall constitute one and the same
instrument.
6.9 Default. In the event of any default hereunder, the prevailing
party in any action to enforce the terms and provisions hereof shall be
entitled to recover reasonable attorney's fees and related costs.
IN WITNESS WHEREOF, the parties have executed this Agreement and Plan of
Reorganization effective the latest date hereof.
OMNI MEDICAL HOLDINGS, INC.
Date: 3/1/2005
By: /s/Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx - CEO
DATAFUZION
Date: 3/1/2005
By /s/Xxxx Xxxxx
Xxxx Xxxxx - CEO
