EXCHANGE AGREEMENT
Exhibit
99.1 To
Form
8-K
EXCHANGE
AGREEMENT
dated as
of June 21, 2006 by and between The Concorde Group Inc., a Delaware corporation
(“Concorde”) and Blackhawk Capital Group BDC, Inc., a Delaware corporation
(“Blackhawk”).
WHEREAS,
Concorde is the legal and beneficial owner of a Note issued on May 3, 2006
(“Note”) by Blackhawk to Concorde in the principal amount of
$68,847.00;
WHEREAS,
Blackhawk desires to engage in an exchange transaction with Concorde
("Exchange") pursuant to which it will exchange the Note for shares of common
stock, $.0001 par value per share ("Common Stock") of Blackhawk;
and
WHEREAS,
the board of directors of Blackhawk has approved the Exchange as being fair
and
in the best interests of Blackhawk;
NOW,
THEREFORE, in consideration of the foregoing and intending to be legally bound,
and for other good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, and subject to the terms and conditions set
forth
in this Agreement, the parties hereto agree as follows:
ARTICLE
I
EXCHANGE
1.1 Exchange.
On the
date hereof, (a) Concorde shall transfer and deliver the Note to Blackhawk;
and
(b) Blackhawk shall deliver to Concorde a certificate in the amount of 6,884,700
shares of Common Stock to Concorde ("Shares").
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF Concorde
Concorde
hereby represents and warrants to Blackhawk as follows:
2.1 Authorization;
Enforceability.
The
execution and delivery of this Agreement and consummation of the transactions
contemplated hereby and thereby have been duly authorized by Concorde, and
no
other proceedings on the part of Concorde are necessary to authorize this
Agreement and the transactions contemplated hereby. This Agreement constitutes
the legal, valid and binding obligation of Concorde, enforceable in accordance
with its terms, subject to applicable bankruptcy, reorganization, insolvency,
moratorium and other rights affecting creditors’ rights generally from time to
time in effect and as to enforceability, general equitable
principles.
2.2 Ownership
of Note.
Concorde is the record and beneficial owner of the Note, free and clear of
all
encumbrances, and Concorde has full legal right, power and authority to enter
into this Agreement and to exchange, sell, assign, transfer and convey the
Note
so owned by it to Blackhawk pursuant to this Agreement and the delivery to
Blackhawk of the Note owned by Concorde pursuant to the provisions of this
Agreement will transfer to Blackhawk good and valid title thereto, free and
clear of all encumbrances.
2.3 Consents
and Approvals.
Except
as expressly set forth herein, no authorization, consent or approval of or
declaration, registration or filing with, any governmental entity or other
person is necessary for the consummation by Concorde of the transactions
contemplated by this Agreement.
2.4 No
Conflict or Violation.
Neither
the execution and delivery of this Agreement nor compliance by Concorde with
their terms and provisions hereby and thereby will violate any law, statute,
regulation or agreement to which Concorde is subject, or result in a material
breach, violation or contravention of any of the terms or provisions of any
agreement.
2.5 Non-Contravention.
The
execution, delivery and performance of this Agreement by Concorde does not
and
will not result in a breach of any of the terms, conditions or provisions of,
or
constitute a default under, any indenture, mortgage, deed of trust, credit
agreement, note or other evidence of indebtedness, or any lease or other
agreement, or any license, permit, franchise or certificate, to which Concorde
is a party or by which it is bound or to which any of its properties are
subject, or require any authorization or approval under or pursuant to any
of
the foregoing, violate the organizational documents of Concorde or violate
in
any material respect any statute, regulation, law, order, writ, injunction
or
decree to which Concorde is subject, which default or violation would impair
Concorde’s ability to carry out its obligations under this Agreement.
2.6 Securities
Law Matters.
Concorde is an "accredited investor" as that term is defined under Rule 501
in
Regulation D under the Securities Act of 1933, as amended ("Securities Act").
Concorde understands that the Shares are "restricted securities" as defined
in
Rule 144 under the Securities Act, subject to transfer restrictions and that
the
certificates for the Shares will contain legends as to such restrictions.
Concorde further understands that the Exchange is taking place pursuant to
Section 3(a)(9) of the Securities Act. Upon issuance of certificates for the
Shares, and receipt by Concorde, Concorde will file a Form 4 and Schedule 13D
amendment for its filings under the Securities Exchange Act of 1934, as amended
("Exchange Act"), reporting the ownership of the Shares.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF BLACKHAWK
Blackhawk
hereby represents and warrants to Concorde as follows:
3.1 Organization
of Blackhawk.
Blackhawk is a corporation duly incorporated and in good standing under the
laws
of the State of Delaware and has the power and authority to conduct its business
as it is presently being conducted and to own and lease its property and assets.
Blackhawk is duly qualified to do business, and is in good standing, as a
foreign corporation in each jurisdiction where the failure to be so qualified
would materially delay or materially impair the ability of Blackhawk to
consummate the transactions contemplated by this Agreement.
3.2 Authorization:
Enforceability.
The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by Blackhawk, and
no
other proceedings on the part of Blackhawk are necessary to authorize this
Agreement and the transactions contemplated hereby. This Agreement constitutes
the legal, valid and binding obligation of Blackhawk, enforceable in accordance
with its terms, subject to applicable bankruptcy, reorganization, insolvency,
moratorium and other rights affecting creditors’ rights generally from time to
time in effect and as to enforceability, general equitable
principles.
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3.3 Consents
and Approvals.
No
authorization, consent or approval of, or declaration, registration or filing
with, any person not already obtained or made is necessary in connection with
the execution and delivery of this Agreement by Blackhawk and the consummation
by Blackhawk of the transactions contemplated by this Agreement, except those
that the failure to make or obtain are not, individually or in the aggregate,
reasonably likely to prevent, materially delay or materially impair the ability
of Blackhawk to consummate the transactions contemplated hereby.
3.4 No
Conflict or Violation.
Neither
the execution and delivery of this Agreement nor compliance by Blackhawk with
their terms and provisions will (i) violate any provision of the Certificate
of
Incorporation or By-Laws of Blackhawk, (ii) materially violate any law, statute
or regulation or governmental or non governmental permit or license to which
Blackhawk is subject or (iii) to Blackhawk’s knowledge, result in a material
breach of any of the terms or provisions of any contracts binding upon
Blackhawk, except for such violations or breaches that, individually or in
the
aggregate, are not reasonably likely to materially delay or materially impair
the ability of Blackhawk to consummate the transactions contemplated
hereby.
3.5 Non-Contravention.
The
execution, delivery and performance of this Agreement by Blackhawk does not
and
will not result in a breach of any of the terms, conditions or provisions of,
or
constitute a default under, any indenture, mortgage, deed of trust, credit
agreement, note or other evidence of indebtedness, or any lease or other
agreement, or any license, permit, franchise or certificate, to which Blackhawk
is a party or by which it is bound or to which any of its properties are
subject, or require any authorization or approval under or pursuant to any
of
the foregoing, violate the organizational documents of Blackhawk (if
applicable), or violate in any material respect any statute, regulation, law,
order, writ, injunction or decree to which Blackhawk is subject, which default
or violation would impair the Blackhawk’s ability to carry out its obligations
under this Agreement.
3.6 Shares;
Securities Law Matters.
Upon
issuance pursuant to this Agreement, the Shares shall be validly issued, fully
paid for and non-assessable. Blackhawk understands that the Shares are
"restricted securities" as defined in Rule 144 under the Securities Act, subject
to transfer restrictions and that the certificates for the Shares will contain
legends as to such restrictions. Blackhawk further understands that the Exchange
is taking place pursuant to Section 3(a)(9) of the Securities Act.
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ARTICLE
IV
MISCELLANEOUS
4.1 Assignment.
Neither
this Agreement nor any of the rights or obligations hereunder may be assigned
by
Concorde without the prior written consent of Blackhawk, or by Blackhawk without
the prior written consent of Concorde.
4.2 Choice
of Law.
This
Agreement shall be construed, interpreted and the rights of the parties
determined in accordance with the internal laws of the State of New York,
without regard to principles of conflicts of laws thereof which might refer
such
interpretation to the laws of a different jurisdiction.
4.3 Consent
to Jurisdiction: Service of Process.
The
parties hereto irrevocably submit to the jurisdiction of the United States
District Court for the Southern District of New York (or, if subject matter
jurisdiction in that court is not available, in any New York state court located
within New York County), over any dispute arising out of or relating to this
Agreement or any agreement or instrument contemplated hereby or entered into
in
connection herewith or any of the transactions contemplated hereby or thereby,
and each party hereby irrevocably agrees that all claims in respect of such
dispute or proceeding shall be brought, heard and determined only in such court.
The parties hereby irrevocably waive, to the fullest extent permitted by
applicable law, any objection which they may now or hereafter have to the laying
of venue of any such dispute brought in such court or any defense of
inconvenient forum.
4.4 Entire
Agreement.
This
Agreement constitutes the entire agreement among the parties pertaining to
the
subject matter hereof and supersede all prior agreements, understandings,
negotiations and discussions, whether oral or written, of the
parties.
4.5 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. This Agreement shall become effective when one or more counterparts
have been signed by each of the parties and delivered to the other
parties.
4.6 Severability.
Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction nor shall it invalidate or render unenforceable in any
jurisdiction any other provision herein.
4.7 Expenses.
Whether
or not the transactions contemplated by this Agreement are consummated, all
expenses involved in the preparation, negotiation, authorization, entering
into
and performance of this Agreement, including all fees and expenses of agents,
representatives, counsel, financial advisors and accountants in connection
therewith, shall be borne solely by the party that shall have incurred the
same,
and no other party hereto shall have any liability with respect
thereto.
4.8 Further
Assurances.
Each of
the parties hereto agrees that, at any time and from time to time after the
date
hereof, it shall, upon written request from any other party hereto, and without
further consideration, perform such other and further acts, and execute,
acknowledge and deliver, or cause to be executed, acknowledged and delivered,
such further instruments, documents and assurances as such other party or
parties reasonably may request for the purpose of carrying out this
Agreement.
4
IN
WITNESS WHEREOF, the parties may executed this Agreement on the day and year
first written above.
| THE CONCORDE GROUP, INC. | ||
| |
|
|
| By: | /s/ Xxxxx X. Xxxxxx | |
|
Name: Xxxxx X. Xxxxxx |
||
| Title: President and Chief Executive Officer | ||
| BLACKHAWK CAPITAL GROUP BDC, INC. | ||
| |
|
|
| By: | /s/ Xxxxx X. Xxxxxx | |
|
Name: Xxxxx X. Xxxxxx |
||
| Title: President and Chief Executive Officer | ||
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