EXHIBIT 10.1
EXCHANGE AGREEMENT
This Exchange Agreement (this "Agreement") is entered into as of this
30th day of July, 2002 (the "Effective Date"), by and among Concorde Gaming
Corporation, a Colorado corporation (the "Company") with an address at 0000 Xxxx
Xxxxxx, Xxxxx Xxxx, Xxxxx Xxxxxx 00000, and BHL Capital Corporation, a South
Dakota corporation ("Holder") with an address at 0000 Xxxx Xxxxxx, Xxxxx Xxxx,
Xxxxx Xxxxxx 00000 and, solely with respect to Section 1.03, Xxxxxxxx X. Xxxx,
an individual ("Lien").
RECITALS
WHEREAS, Holder is owed Ten Million One Hundred Eighteen Thousand One
Hundred Twenty Seven and 68/100 Dollars ($10,118,127.68) by the Company, as
evidenced by a promissory note dated as of February 15, 2002 made by the Company
for the benefit of Holder (the "Existing Note"); and
WHEREAS, the Holder desires to cancel the Existing Note in
consideration of the issuance to the Holder of a promissory note in the
principal amount of Six Million Six Hundred Eighteen Thousand One Hundred Twenty
Seven and 68/100 Dollars ($6,618,127.68) in the form attached hereto as Exhibit
A (the "New Note"), Three Million Five Hundred Thousand (3,500,000) shares of
the Company's Series A Preferred Stock (the "Series A Preferred Stock") and a
warrant to purchase Two Million (2,000,000) shares of the Company's common stock
par value $.01 per share in the form attached hereto as Exhibit B (the
"Warrant") and the Company desires to cancel the Existing Notes and issue such
securities.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises herein contained the parties agree as follows:
ARTICLE I
EXCHANGE OF SECURITIES
Section 1.01. EXCHANGE. Holder agrees to surrender for cancellation the
Existing Note on the Effective Date in exchange for the issuance to the Holder
of the New Note, the Series A Preferred Stock and the Warrant (the "Exchange").
Section 1.02. ISSUANCE. As soon as practicable following the Effective
Date and receipt by the Company of the Existing Note, the Company shall issue
the New Note, the Series A Preferred Stock and the Warrant to the Holder as
consideration for the receipt and cancellation of the Existing Note.
Section 1.03. CANCELLATION OF WARRANTS. In consideration of the
benefits to be received by Lien as the majority shareholder of the Company and
Holder due to the Exchange, on the Effective Date Lien will surrender to the
Company for cancellation warrants to purchase Two Million (2,000,000) shares of
the Company's common stock par value $.01 per share currently held by Lien.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE HOLDER
Holder hereby represents and warrants to the Company that as of the
Effective Date:
Section 2.01. OWNERSHIP OF EXISTING NOTE. Holder has good and valid
title to the Existing Note, free and clear of any liens, claims, mortgages,
encumbrances, pledges, security interests, equities and charges of any kind.
Section 2.02. AUTHORITY; NON-CONTRAVENTION. Holder has all corporate
power and authority to execute, deliver and perform its obligations under this
Agreement and each of the certificates, instruments and documents executed or
delivered by it pursuant to the terms of this Agreement. All corporate action on
the part of the Holder and its officers and directors necessary for the
authorization, execution, delivery and performance of this Agreement and the
performance by the Holder of all its obligations under this Agreement has been
taken. This Agreement has been duly executed and delivered by Holder and,
assuming the due authorization, execution and delivery by the other parties to
this Agreement, constitutes the valid and binding obligation of Holder
enforceable against the Holder in accordance with its terms. Neither the
execution and delivery of the Agreement, nor the consummation or performance of
any of the transactions contemplated by this Agreement, will directly or
indirectly (with or without notice or lapse of time) contravene, conflict with
or result in a violation of (a) any of the provisions of the charter, bylaws or
other governing instrument of the Holder, or (b) any resolution adopted by the
shareholders, board of directors or any committee of the board of directors of
the Holder.
Section 2.03. CONSENTS AND APPROVALS; NON-CONTRAVENTION. Neither the
execution, delivery or performance of this Agreement, nor the consummation by
the Holder of the transactions contemplated by this Agreement will (a) require
any consent, approval or authorization under any contract, lease or other
agreement entered into by the Holder, (b) violate any order, writ, injunction,
decree, statute, rule or regulation applicable to the Holder, or (c) result in a
violation or breach of, or constitute (with or without notice or lapse of time
or both) a default (or give rise to any right of termination, amendment,
cancellation or acceleration or any loss of a material benefit) under any note,
bond, mortgage, indenture, lease, license, contract, agreement or other
instrument or obligation to which Holder is a party or by which the Holder or
any of its properties or assets may be bound.
Section 2.04. RESTRICTED SECURITIES.
(a) Holder is an "accredited investor" as defined in Rule
501(a) promulgated under the Securities Act of 1933, as amended (the "Act"), and
has such knowledge and experience in financial and business matters that it is
capable of evaluating the merits and risks of the transactions contemplated
under this Agreement.
(b) Holder's financial condition is such that it is able to
bear all economic risks of investment in the Series A Preferred Stock and the
Warrant, including a complete loss of its investment therein.
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(c) The Company has provided Holder with access to financial
and other information concerning the Company as requested by Holder and Holder
has had the opportunity to ask questions of and receive answers from the Company
concerning the transactions contemplated by this Agreement and to obtain
therefrom any additional information necessary to make an informed decision
regarding an investment in the Company.
(d) Holder is acquiring the Series A Preferred Stock and the
Warrant solely for investment purposes, with no present intention of
distributing or reselling any of the Series A Preferred Stock or the Warrant or
any interest therein.
(e) Holder understands that: (i) the issuance of the Series A
Preferred Stock and the Warrant and the securities issuable upon exercise of the
Warrant have not been, and shall not be, registered under the Act or qualified
under state securities laws, and such issuance is made or shall be made in
reliance upon exemptions from the registration and qualification provisions of
the Act and state securities laws, (ii) the Series A Preferred Stock and Warrant
and the securities issuable upon exercise of the Warrant acquired by Holder must
be held by it indefinitely unless the sale or transfer thereof is subsequently
registered under the Act, or an exemption from such registration is available,
and any certificates representing the Series A Preferred Stock and/or the
Warrant and the securities issuable upon exercise of the Warrant may bear a
legend to the effect that such securities have not been registered under the
Securities Act or any state securities or blue sky laws, and may not be sold,
offered for sale, pledged or hypothecated in the absence of an effective
registration statement under the Act and compliance with such state laws or an
applicable exemption therefrom and, in each case, an opinion of counsel
reasonably satisfactory to the Company that such registration is not required,
and (iii) the Company will rely upon the representations and warranties made by
the Holder in this Agreement in order to establish such exemption from the
registration provisions of the Act and the qualification requirements of state
securities laws.
(f) Holder understands that no federal or state agency or any
other government or governmental agency has passed upon or made any
recommendation or endorsement of the Series A Preferred Stock or the Warrant or
the securities issuable upon exercise of the Warrant.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Section 3.01. AUTHORITY; NON-CONTRAVENTION. The Company has all
corporate power and authority to execute, deliver and perform its obligations
under this Agreement and each of the certificates, instruments and documents
executed or delivered by it pursuant to the terms of this Agreement. All
corporate action on the part of the Company and its board of directors necessary
for the authorization, execution, delivery and performance of this Agreement,
the issuance of the Series A Preferred Stock and the Warrant and the performance
by the Company of all its obligations under this Agreement has been taken. This
Agreement has been duly executed and delivered by the Company and, assuming the
due authorization, execution and delivery by the other parties to this
Agreement, constitutes a valid and binding obligation of the Company enforceable
against the Company in accordance with its terms. Neither the execution and
delivery of the Agreement, nor the consummation or performance of any of the
transactions
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contemplated by this Agreement, will directly or indirectly (with or without
notice or lapse of time) contravene, conflict with or result in a violation of
(a) any of the provisions of the charter, bylaws or other governing instrument
of the Company, or (b) any resolution adopted by the shareholders or board of
directors of the Company.
Section 3.02. CONSENTS AND APPROVALS; NON-CONTRAVENTION. Neither the
execution, delivery or performance of this Agreement, nor the consummation by
the Company of the transactions contemplated by this Agreement will (a) require
any consent, approval or authorization under any contract, lease or other
agreement entered into by the Company, (b) violate any order, writ, injunction,
decree, statute, rule or regulation applicable to the Company, or (c) result in
a violation or breach of, or constitute (with or without notice or lapse of time
or both) a default (or give rise to any right of termination, amendment,
cancellation or acceleration or any loss of a material benefit) under, any note,
bond, mortgage, indenture, lease, license, contract, agreement or other
instrument or obligation to which Company is a party or by which the Company or
any of its properties or assets may be bound.
Section 3.03. SERIES A PREFERRED STOCK. When issued the Series A
Preferred Stock will have the rights and preferences set forth in Exhibit C.
Assuming Holder has met its obligations set forth in Section 1.01, the Series A
Preferred Stock when issued will be validly issued, fully paid and
nonassessable.
Section 3.04. PRIVATE SALE. Based in part on the representations of
Holder set forth in Article II, the issuance of the Series A Preferred Stock,
the Warrant and the securities issuable upon exercise of the Warrant are exempt
from registration under the Act.
ARTICLE IV
MISCELLANEOUS
Section 4.01. EXPENSES. The Company and Holder each will bear their own
expenses, including legal fees, in connection with this Agreement.
Section 4.02. REMEDIES CUMULATIVE. Except as herein provided, the
remedies provided herein shall be cumulative and shall not preclude assertion by
any party hereto of any other rights or the seeking of any other remedies
against the other party hereto.
Section 4.03. BROKERAGE. Each party hereto will indemnify and hold
harmless the other against and in respect of any claim for brokerage or other
commission relative to this Agreement or to the transaction contemplated hereby,
based in any way on agreements, arrangements or understandings made or claimed
to have been made by such party with any third party.
Section 4.04. SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be prohibited
by or invalid under applicable law, such provisions shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
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Section 4.05. NOTICES. Notices required under this Agreement shall be
deemed to have been adequately given if delivered personally or by commercial
messenger or courier service, or mailed by registered or certified mail (return
receipt requested) or sent via facsimile (with acknowledgement of complete
transmission), to the Holder or to the Company at the address set forth in the
first paragraph of this Agreement or such other address as such party may from
time to time designate in writing.
Section 4.06. NO WAIVER. No failure to exercise and no delay in
exercising any right, power or privilege granted under this Agreement shall
operate as a waiver of such right, power or privilege. No single or partial
exercise of any right, power or privilege granted under this Agreement shall
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies provided in this Agreement
are cumulative and are not exclusive of any rights or remedies provided by law.
Section 4.07. AMENDMENTS. Except as herein provided, this Agreement may
be modified or amended only by a writing signed by the Company and the Holder.
Section 4.08. SURVIVAL OF AGREEMENTS. All agreements, representations
and warranties contained in this Agreement or made in writing by or on behalf of
the Company or the Holder in connection with the transactions contemplated by
this Agreement shall survive the execution and delivery of this Agreement and
the consummation of the Exchange.
Section 4.09. CONSTRUCTION. This Agreement shall be governed by and
construed in accordance with the procedural and substantive laws of the State of
Colorado without regard for its conflicts-of-laws rules.
Section 4.10. ENTIRE UNDERSTANDING. This Agreement expresses the entire
understanding of the parties and supersedes all prior and contemporaneous
agreements and undertakings of the parties with respect to the subject matter of
this Agreement.
Section 4.11. COUNTERPARTS; FACSIMILE. This Agreement may be executed
in one or more counterparts, each of which shall be deemed to be an original but
all of which taken together shall constitute one agreement. This Agreement may
be executed and transmitted by facsimile and such transmission shall be deemed
to be an original.
Section 4.12. ASSIGNMENT. This Agreement and the rights hereunder shall
not be assignable or transferable by the Holder or the Company, except in the
case of the Company in connection with the sale of all or substantially all of
the assets of the Company, or by operation of law in connection with a merger,
consolidation or similar transaction of the Company, without the prior written
consent of the other party hereto. Subject to the preceding sentence, this
Agreement, and all the covenants and agreements of the parties herein contained,
shall be binding upon, inure to the benefit of and be enforceable by the parties
hereto and their respective legal representatives, successors and assigns.
Section 4.13. THIRD PARTY BENEFICIARIES. This Agreement is for the sole
benefit of the parties hereto and their permitted assigns and nothing herein
expressed or implied shall give or be construed to give to any person or entity,
other than the parties hereto and such assigns, any legal or equitable rights
hereunder.
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IN WITNESS WHEREOF, the parties hereto have duly executed or caused
this Agreement to be duly executed by their duly authorized representatives as
of the Effective Date.
CONCORDE GAMING CORPORATION
By: /s/ Xxxxx X. Xxxx
--------------------------------
Xxxxx X. Xxxx, President and
Chief Executive Officer
BHL CAPITAL CORPORATION
By: /s/ Xxxxxxxx X. Xxxx
--------------------------------
Xxxxxxxx X. Xxxx, Chairman
Solely with respect to Section 1.03
/s/ Xxxxxxxx X. Xxxx
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Xxxxxxxx Xxxx
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EXHIBIT A
FORM OF NEW NOTE
See Attached
A-1
EXHIBIT B
FORM OF WARRANT
See Attached
B-1
EXHIBIT C
TERMS AND PROVISIONS OF SERIES A PREFERRED STOCK
See Attached
C-1
