Exhibit 10.4
AGREEMENT
FOR THE
EXCHANGE OF STOCK AND ACQUISITION OF A BUSINESS
THIS AGREEMENT FOR THE EXCHANGE OF STOCK AND ACQUISITION OF A BUSINESS,
dated as of October 23, 2007, ("AGREEMENT"), by and between ROYAL TURF CLUB,
LTD., a corporation formed under the laws of St. Kitts and Nevis ("RTC"), and
the SHAREHOLDERS OF ROYAL TURF CLUB, LTD., (collectively the "RTC Shareholders")
and GLOBAL PARI-MUTUEL SERVICES, INC., a Nevada corporation ("GLOBAL"), all
collectively referred to as the "Parties".
WHEREAS, Global, the RTC Shareholders and RTC have each determined that the
transactions contemplated by this Agreement, on the terms and conditions of this
Agreement, would be advantageous and beneficial to their respective companies
and shareholders;
WHEREAS, the RTC Shareholders shall exchange their shares of Common Stock
of RTC (collectively, the "RTC Shares") to Global and, in consideration, Global
will exchange to the RTC Shareholders, one million shares of Common Stock owned
by Global (the "Global Shares"), thereby making Global the owner of one hundred
percent (100%) of RTC.
NOW, THEREFORE, in consideration of the premises and the representations,
warranties and agreements herein contained, the Parties hereto agree as follows:
ARTICLE I--EXCHANGE OF STOCK; ACQUISITION OF BUSINESS
SECTION 1.1 EXCHANGE. Subject to the terms and conditions of this Agreement, at
the Closing:
(a.) The RTC Shareholders agree to transfer to Global all of their shares of
stock in RTC (the "RTC Shares"), which is one hundred percent (100%) of the
shares of RTC.
(b.) Global agrees to transfer to the RTC Shareholders one million shares of
Common Stock of Global (the "Global Shares").
(c.) The RTC Shareholders are ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, and Three
Star Investments, a St. Kitts and Nevis company.
SECTION 1.2 ACQUISITION OF BUSINESS. By virtue of Global acquiring one hundred
percent (100%) of the stock of RTC, Global shall have acquired the entire
business of RTC, including but not limited, its goodwill; contracts; property,
both real and personal; technology; patents and trademarks; accounts, and
records.
SECTION 1.3 THE CLOSING.
(a) Subject to the terms and conditions of this Agreement, the closing of the
transactions contemplated by this Agreement (the "Closing") shall take place as
promptly as possible but no later than____________________, or the business day
following the day the last of the conditions set forth in Article V shall have
been fulfilled or waived (other than those that this Agreement contemplates will
be satisfied at or immediately prior to the Closing), whichever is sooner, or at
such other time as shall be mutually agreed upon by the Parties (the "Closing
Date").
(b) Subject to the conditions set forth in this Agreement, the Parties agree to
consummate the following transactions at the Closing:
(i) Copies of Global's bylaws and resolutions adopted by the board
of directors of Global authorizing the execution and delivery of, and
performance of the Shareholders' and officers' or directors' obligations under
this Agreement, certified by the Secretary or an Assistant Secretary of Global.
(ii) Copies of RTC's bylaws and resolutions adopted by the board of
directors of RTC authorizing the execution and delivery of, and performance of
the Shareholders' and officers' or directors' obligations under this Agreement,
certified by the Secretary or an Assistant Secretary of RTC.
(iii) Global shall assign and transfer to the RTC Shareholders the
Global Shares, by physically delivering to the RTC Shareholders one (1) or more
stock certificates representing the Global Shares being transferred, duly
endorsed or accompanied by duly executed stock powers (with a medallion
guaranty, if required by the RTC Shareholders' transfer agent) sufficient to
validly transfer the Global Shares to the RTC Shareholders; and
(iv) The RTC Shareholders shall assign and transfer to Global the
RTC Shares, by physically delivering to Global one (1) or more stock
certificates representing the RTC Shares being transferred, duly endorsed or
accompanied by duly executed stock powers sufficient to validly transfer the RTC
Shares to Global.
ARTICLE II--REPRESENTATIONS AND WARRANTIES OF RTC AND THE RTC SHAREHOLDERS
RTC and the RTC Shareholders represent and warrant to Global that the
statements contained in this Article II are true and correct as of the date of
this Agreement and will be true and correct as of the Closing as though made as
of the Closing, except to the extent such representations and warranties are
specifically made as of a particular date (in which case such representations
and warranties will be true and correct as of such date).
SECTION 2.1 POWER AND AUTHORITY; ENFORCIBILITY. RTC is a corporation duly
organized, validly existing and in good standing under the laws of St. Kitts and
Nevis. RTC and the RTC Shareholders have all requisite capacity, power and
authority to execute, deliver and perform this Agreement. No other corporate
action on the part of RTC is necessary to authorize the execution and delivery
by RTC of this Agreement or the consummation by it of the Contemplated
Transactions (as defined below). This Agreement has been duly executed and
delivered and, upon execution by Global, will constitute a valid and legally
binding obligation of RTC and the RTC Shareholders, enforceable against them in
accordance with its terms, except (a) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of general application
affecting enforcement of creditors' rights generally and (b) as limited by laws
relating to the availability of specific performance, injunctive relief, or
other equitable remedies.
SECTION 2.2 OWNERSHIP; TRANSFERABILITY. The RTC Shareholders are the legal and
beneficial owners of the RTC Shares, free and clear of any Encumbrance or
restriction on transfer, other than (i) restrictions under the Act, and (ii) any
restrictions reflected in a legend on the certificates representing the RTC
Shares.
SECTION 2.3 CONSENTS AND APPROVALS. Neither the execution, delivery and
performance of this Agreement by RTC and the RTC Shareholders, nor the
consummation by RTC and the RTC Shareholders of any transaction related hereto,
including the transfer, sale and delivery of the RTC Shares will require any
further consent, approval, license, order or authorization of, filing,
registration, declaration or taking of any other action with, or notice to, any
person, other than such consents, approvals, filings or actions as may be
required under the Federal securities laws which have or will be made.
SECTION 2.4 NO CONFLICTS. The execution and delivery by RTC and the RTC
Shareholders of this Agreement and the Transaction Documents to which it is or
will become a party do not, and the consummation of the transactions
contemplated by this Agreement and the Transaction Documents to which it is or
will become a party (the "Contemplated Transactions") shall not, assuming the
consents, approvals, filings or actions described in Section 2.3 are made or
obtained, as the case may be, (a) contravene, conflict with, or result in any
violation or breach of any provision of the certificate of incorporation or
by-laws of RTC, (b) result in any violation or breach of, or constitute (with or
without notice or lapse of time, or both) a default (or give rise to a right of
termination, cancellation or acceleration of any obligation or loss of any
benefit) under any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, lease, contract or other agreement, instrument or
obligation to which RTC or the RTC Shareholders are a party or by which it or
any of its properties or assets may be bound, or (c) conflict or violate any
permit, concession, franchise, license, judgment, order, decree, statute, law,
ordinance, rule or regulation of any government, governmental instrumentality or
court, domestic or foreign, applicable to RTC or the RTC Shareholders or any of
its properties or assets, except in the case of (b) and (c) for any such
conflicts, violations, defaults, terminations, cancellations or accelerations
which would not, individually or in the aggregate, materially and adversely
affect the RTC Shares being conveyed by RTC and the RTC Shareholders to Global.
SECTION 2.5 PURCHASE ENTIRELY FOR OWN ACCOUNT.
(a) The Global Shares to be received by the RTC Shareholders will be acquired
for investment for their own account, and not with a view to the resale or
distribution of any part thereof.
(b) The RTC Shareholders have no present intention of selling, granting any
participation in, or otherwise distributing the Global Shares, except, in the
case of (a) and (b)of this Section 2.5, as permitted by the Act.
(c) The RTC Shareholders are "accredited investors" under Rule 501(a)
promulgated under the Act.
SECTION 2.6 RESTRICTED SHARES. The RTC Shareholders understand that the Global
Shares are characterized as "restricted securities" under the Federal securities
laws and that under such laws and applicable regulations such securities may be
resold without registration under the Act only in certain limited circumstances.
SECTION 2.7 LEGENDS. It is understood that the certificate(s) evidencing the
Global Shares shall bear a legend substantially in the form below:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 OR WITH ANY STATE SECURITIES COMMISSION, AND MAY NOT
BE TRANSFERRED OR DISPOSED OF BY THE HOLDER IN THE ABSENCE OF A REGISTRATION
STATEMENT WHICH IS EFFECTIVE UNDER THE SECURITIES ACT OF 1933 AND APPLICABLE
STATE LAWS AND RULES OR UNLESS SUCH TRANSFER MAY BE EFFECTED WITHOUT VIOLATION
OF THE SECURITIES ACT OF 1933 AND OTHER APPLICABLE STATE LAWS AND RULES.
SECTION 2.8 BROKER'S FEES: RTC and the RTC Shareholders are not obligated to pay
any fee or commission to any broker, finder or other similar person in
connection with the transactions contemplated by this Agreement.
ARTICLE III--REPRESENTATIONS AND WARRANTIES OF GLOBAL
Global represents and warrants to RTC and RTC Shareholders that the
statements contained in this Article III are true and correct as of the date of
this Agreement and will be true and correct as of the Closing as though made as
of the Closing, except to the extent such representations and warranties are
specifically made as of a particular date (in which case such representations
and warranties will be true and correct as of such date).
SECTION 3.1 POWER AND AUTHORITY; ENFORCIBILITY. Global is a corporation duly
organized, validly existing and in good standing under the laws of the state of
Nevada. Global has all requisite capacity, power and authority to execute,
deliver and perform this Agreement. No other corporate action on the part of
Global is necessary to authorize the execution and delivery by Global of this
Agreement or the consummation by it of the Contemplated Transactions. This
Agreement has been duly executed and delivered and, upon execution by RTC and
the RTC Shareholders, will constitute a valid and legally binding obligation of
Global, enforceable against Global in accordance with its terms, except (a) as
limited by applicable bankruptcy, insolvency, reorganization, moratorium, and
other laws of general application affecting enforcement of creditors' rights
generally and (b) as limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies.
SECTION 3.2 OWNERSHIP; TRANFERABILITY. Global is the legal and beneficial owner
of the Global Shares, free and clear of any Encumbrance or restriction on
transfer, other than (i) restrictions under the Act and (ii) restrictions
reflected in a legend on the certificates representing the Global Shares.
SECTION 3.3 CONSENTS AND APPROVALS. Neither the execution, delivery and
performance of this Agreement by Global, nor the consummation by Global of any
transaction related hereto, including the transfer, sale and delivery of the
Global Shares, will require any consent, approval, license, order or
authorization of, filing, registration, declaration or taking of any other
action with, or notice to, any person, other than such consents, approvals,
filings or actions as may be required (a) under the Federal securities laws
which have or will be made.
SECTION 3.4 NO CONFLICTS. The execution and delivery by Global of this Agreement
and the Transaction Documents to which it is or will become a party do not, and
the consummation of the Contemplated Transactions shall not, assuming the
consents, approvals, filings or actions described in Section 3.3 are made or
obtained, as the case may be, (a) contravene, conflict with, or result in any
violation or breach of any provision of the certificate of incorporation or
by-laws of Global, (b) result in any violation or breach of, or constitute (with
or without notice or lapse of time, or both) a default (or give rise to a right
of termination, cancellation or acceleration of any obligation or loss of any
benefit) under any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, lease, contract or other agreement, instrument or
obligation to which Global is a party or by which it or any of its properties or
assets may be bound, or (c) conflict or violate any permit, concession,
franchise, license, judgment, Order, decree, statute, law, ordinance, rule or
regulation of any government, governmental instrumentality or court, domestic or
foreign, applicable to Global or any of its properties or assets, except in the
case of (b) and (c) for any such conflicts, violations, defaults, terminations,
cancellations or accelerations which would not, individually or in the
aggregate, materially and adversely affect the Global Shares being conveyed by
Global to the RTC Shareholders.
SECTION 3.5 BROKER'S FEES. Global 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.
ARTICLE IV--CONDITIONS PRECEDENT; RELATED COVENANTS
SECTION 4.1 CLOSING EFFORTS: Each of the Parties hereto shall use its
commercially reasonable efforts ("Reasonable Efforts") to take all actions and
to do all things necessary, proper or advisable to consummate the transactions
contemplated by this Agreement, including using its Reasonable Efforts to ensure
that (i) its representations and warranties remain true and correct in all
material respects through the Closing Date, and (ii) the conditions to the
obligations of the other parties to consummate the transaction are satisfied.
SECTION 4.2 CONDITIONS PRECEDENT TO OBLIGATIONS OF GLOBAL: The obligations of
Global to exchange the Global Shares for the RTC Shares at the Closing are
subject to the fulfillment of the condition that, at the Closing, the
representations and warranties of RTC and the RTC Shareholders set forth in this
Agreement that are qualified as to materiality shall be true and correct in all
respects, and all other representations and warranties of RTC and the RTC
Shareholders set forth in this Agreement shall be true and correct in all
material respects, in each case as of the date of this Agreement and as of the
Closing as though made as of the Closing, except to the extent such
representations and warranties are specifically made as of a particular date (in
which case such representations and warranties shall be true and correct as of
such date).
SECTION 4.3 CONDITIONS PRECEDENT TO OBLIGATIONS OF RTC and the RTC Shareholders:
The obligations of the RTC Shareholders to exchange the RTC Shares for the
Global shares at the Closing are subject to the fulfillment of the condition
that, at the Closing, the representations and warranties of Global set forth in
this Agreement that are qualified as to materiality shall be true and correct in
all respects, and all other representations and warranties of Global set forth
in this Agreement shall be true and correct in all material respects, in each
case as of the date of this Agreement and as of the Closing as though made as of
the Closing, except to the extent such representations and warranties are
specifically made as of a particular date (in which case such representations
and warranties shall be true and correct as of such date).
ARTICLE 5--SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION
SECTION 5.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations,
warranties, covenants, and obligations of RTC, the RTC Shareholders, and Global
set forth in this Agreement and in any certificate, agreement, or instrument
delivered in connection with the transactions contemplated hereby, shall survive
the Closing for a period of three years.
SECTION 5.2 INDEMNIFICATION. RTC, the RTC Shareholders and Global (individually
as, "Company") shall, defend, indemnify, and hold harmless the other and its
affiliates and its respective officers, directors, shareholders, agents and
employees (individually, a "Company Indemnitee" and collectively the "Company
Indemnitees"), from and against any and all claims, losses, deficiencies,
liabilities, obligations, damages, penalties, punitive damages, costs, and
expenses (including, without limitation, reasonable legal, accounting and
consulting fees), whether or not resulting from third party claims
(collectively, "Losses"), suffered by a Company Indemnitee, which arise out of
or result from:
(a) any inaccuracy or misrepresentation in or breach of any of the
representations, warranties, covenants or agreements made by either Company in
this Agreement or in any document, certificate or affidavit delivered by the
Company pursuant to the provisions of this Agreement;
(b) any obligation, liability, debt or commitment of the Company which is not
disclosed herein, whether or not paid by the Company; and
(c) any other matter, including, but not limited to, all acts, omissions and
conditions existing or occurring prior to the Closing for which any of the
Company Indemnitees is alleged to be liable pursuant to any successor or similar
theory of liability.
ARTICLE VI--GENERAL PROVISIONS; OTHER AGREEMENTS
SECTION 6.1 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Nevada without regard to the conflicts
of laws provisions thereof.
SECTION 6.2 HEADINGS. Article and Section headings used in this Agreement are
for convenience only and shall not affect the meaning or construction of this
Agreement.
SECTION 6.3 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto and supersedes all prior agreements and
understandings, both written and oral, with respect to the subject matter
hereof.
SECTION 6.4 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. Signatures on this
Agreement may be communicated by facsimile transmission and shall be binding
upon the parties hereto so transmitting their signatures. Counterparts with
original signatures shall be provided to the other parties hereto following the
applicable facsimile transmission; provided that the failure to provide the
original counterpart shall have no effect on the validity or the binding nature
of this Agreement.
SECTION 6.5 AMENDMENT. Any term of this Agreement may be modified or amended
only by an instrument in writing signed by each of the parties hereto.
SECTION 6.6 SEVERABILITY. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforced in accordance with its terms.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
duly executed and delivered as of the date set forth above.
ROYAL TURF CLUB, LTD. RTC SHAREHOLDERS
By: ____________________________ By: _______________________
Name and Title Name
By: _______________________
GLOBAL PARI-MUTUAL SERVICES, INC. Name
By: _______________________
By: ___________________________ Name
Name and Title By: _______________________
Name