AGREEMENT AND PLAN OF MERGER
This
Agreement and Plan of Merger (“Agreement”) is made and
entered into as of March 17, 2009, by and among Global Management Services,
Inc., a Nevada corporation, with its principal office at 0000 X. Xxxxxx Xxx.,
Xxxxx 00, Xxx Xxxxx, Xxxxxx 00000 (“Global”), The Saint Xxxxx
Company, a North Carolina corporation, with its principal office
at Broadway Plaza, 000 Xxxxxxxx, Xxxxx 000, Xxxxx Xxxxxx, Xxxxxxxxxx
00000 (“St. Xxxxx”), and
The Saint Xxxxx New Zealand Wine Company, a newly-formed wholly-owned subsidiary
of St. Xxxxx (“Acquisition
Sub”, and collectively, the “Parties”).
A. St.
Xxxxx and Global intend to effect a reverse triangular merger (the “Merger”), pursuant to which
Acquisition Sub will merge with and into Global and Global will
survive.
B. Prior
to the Merger, Global shall have acquired Waimea Estates, Gravitas Wines and
Xxxxxx Dry Hills Wines (collectively, the “Acquisitions”).
C. For
federal income tax purposes, the parties intend that the Merger qualify as a
tax-free reorganization within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended, and the rules and regulations
promulgated thereunder (the “Tax Code”).
In
consideration of the foregoing and the representations, warranties and mutual
covenants herein made, the parties hereby agree to the foregoing and as
follows:
Section
1. Definitions. Capitalized
terms not otherwise defined herein have the meanings set forth in the attached
Schedule
1.
Section
2. Merger.
(a) Effecting the
Merger. Upon the terms and subject to the conditions contained
in this Agreement, at the Effective Time, Acquisition Sub shall be merged with
and into Global, and the separate corporate existence of Acquisition Sub shall
thereupon cease.
(b) Conversion of
Shares.
(i) All of
the shares of common stock of Global issued and outstanding on the Closing Date
(“Global Shares”) shall,
by virtue of the Merger and without any action on the part of Global, St. Xxxxx,
Acquisition Sub or the holders of the Global Shares, be converted into and
become validly issued, fully paid and non-assessable shares of common stock of
St. Xxxxx (“St. Xxxxx
Shares”). Each Global Share shall be converted into the amount
of St. Xxxxx Shares reflective of the fair value of the Global Shares (“Share Ratio”), such that the fair
value of Global (immediately upon the consummation of the Acquisitions) shall be
equivalent to the aggregate value of the St. Xxxxx Shares (to be calculated
using the Bloomberg Volume Weighted Average Price for the five trading days
immediately preceding the Closing). No fractional shares will be
issued, and any right to receive a fractional share will be rounded-up to the
nearest whole share. Not less than 45 trading days preceding the
Closing, the Parties shall agree upon a third party (the “Mutual Valuation Party”) to be
engaged by them for the purpose of determining (the “Determination”) the fair value
of the Global Shares and of Global. If the Parties have failed to
reach such agreement by such deadline, then, not less than 40 trading days
preceding the Closing, each Party shall identify its own third party (each, an
“Individual Valuation
Party”) and provide the other Party with the name and full contact
information thereof. Upon such identification and not less than 30
trading days preceding the Closing, such two Individual Valuation Parties shall
mutually designate a third party (the “Designated Valuation Party”),
which designation shall be binding on the Parties and which Designated Valuation
Party shall solely render the Determination. If a Party shall not
have fully complied with its contingent identification and notice obligations,
as set forth above, then the non-breaching Party’s Individual Valuation Party
shall solely render the Determination. Each Valuation Party (whether
by agreement, identification, or designation) shall be skilled and experienced
in the field of business, combined businesses, and real property
valuations. The Mutual Valuation Party or the Designated Valuation
Party, as applicable, shall provide the Determination to the Parties not less
than five trading days immediately preceding the Closing. The Parties
shall bear their own costs in their respective attempts to agree upon the Mutual
Valuation Party, in respect of their identification of an Individual Valuation
Party, and in their respective Individual Valuation Party’s designation of the
Designated Valuation Party. The Parties shall equally bear the costs
incurred by the Mutual Valuation Party or the Designated Valuation Party, as
applicable, in its rendering the Determination. The Parties shall
have neither the right to challenge the appointment of the Designated Valuation
Party nor to supplement the Determination.
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(ii) At the
Effective Time, the Global Shares will be deemed canceled and retired and will
cease to exist, and each holder of a certificate for Global Shares will cease to
have any rights with respect thereto; provided, however, that,
following the Closing Date, upon surrender of an original stock certificate
representing Global Shares, St. Xxxxx will deliver a stock certificate for
shares of common stock of St. Xxxxx to which such person is entitled pursuant to
the Share Ratio, bearing any necessary or appropriate restrictive
legend.
(iii) If any
certificate evidencing Global Shares shall have been lost, stolen or destroyed,
upon the making of an affidavit of that fact by the person claiming the
certificate to be lost, stolen or destroyed and, if required by St. Xxxxx, the
posting of an indemnity bond, in such reasonable amount as St. Xxxxx or the
transfer agent may direct, as collateral security against any claim that may be
made with respect to the certificate, St. Xxxxx will issue in exchange for the
lost, stolen or destroyed certificate the applicable number of shares of St.
Xxxxx common stock.
Section
3. Closing Date. On
the terms and subject to the conditions of this Agreement, the closing of the
Merger (the “Closing”)
shall take place at the offices of Xxxxx & Xxxxxxxxx, LLP, 000 Xxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxx Xxxx, Xxxxxxxxxx, 00000, immediately upon the
consummation of the Acquisitions or such other time, date or place as St. Xxxxx
and Global may otherwise agree (the “Closing Date”).
Section
4. Termination. This
Agreement may be terminated:
(i) By St.
Xxxxx at any time prior to the consummation of the Acquisitions, by five (5)
days’ prior written notice to each of the other Parties; or
(ii) at any
time prior to Closing, by mutual written consent of Global, St. Xxxxx and
Acquisition Sub.
Section
5. Global’s Representations and
Warranties. Global represents and warrants to St. Xxxxx that
the statements contained in this Section will be true and correct as of the
Closing Date, and will not contain any facts, or omit any facts, that render the
statements herein to be misleading, except (i) where any variation would not be
reasonably likely to have an Adverse Effect, and (ii) as set forth herein and in
the disclosure schedule delivered by Global to St. Xxxxx (the “Global Schedule”), arranged in
sections corresponding to the paragraphs in this Section; the disclosure in any
section or paragraph will qualify other paragraphs in this Section to the extent
that it is reasonably apparent from a reading of the disclosure that it also
qualifies or applies to such other paragraphs.
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(a) Organization. Global
is a corporation validly existing and in good standing under the laws of the
State of Nevada and has all requisite power and authority and possesses all
necessary governmental approvals necessary to own, lease and operate its
properties, to carry on its business as now being conducted, to execute and
deliver this Agreement and the agreements contemplated herein, and to consummate
the transactions contemplated hereby and thereby. Global is duly
qualified to do business and is in good standing in all jurisdictions in which
its ownership of property or the character of its business requires such
qualification, except where the failure to be so qualified would not reasonably
be expected to have an Adverse Effect. Certified copies of the
Articles of Incorporation of Global, as amended to
date, have been made available to St. Xxxxx, are complete and correct, and no
amendments have been made thereto or have been authorized since the date
thereof. Global is not in violation of any of the provisions of its
Articles of Incorporation or Bylaws.
(b) Capitalization.
(i) Global’s
authorized capital stock consists solely of [____________] shares of
common stock, par value $[_____].
(ii) There are
[__________] shares of
common stock issued and outstanding and no shares held in the treasury of
Global. All of the issued and outstanding shares of Global common
stock were duly and validly issued and fully paid, are non-assessable and free
of preemptive rights, and were issued in compliance with all applicable state
and federal securities laws.
(iii) There are
no outstanding (A) options, warrants, or other rights to purchase from Global
any capital stock of Global; (B) debt securities or instruments convertible into
or exchangeable for shares of such stock; or (C) commitments of any kind for the
issuance of additional shares of capital stock or options, warrants or other
securities of Global.
(c) No
Subsidiaries. Global does not own any capital stock or other
equity interest in any corporation, partnership, joint venture or other
entity.
(d) Authorization. Global
has all requisite power and authority to execute and deliver this Agreement, to
perform its obligations hereunder, and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by
Global and the consummation by Global of the transactions contemplated hereby
have been duly and validly authorized by all necessary corporate and/or
stockholder action by Global and no other corporate proceedings on the part of
Global and no other stockholder vote or consent is necessary to authorize this
Agreement or to consummate the transactions contemplated hereby. This
Agreement has been duly and validly executed and delivered by
Global. This Agreement and all other agreements and obligations
entered into and undertaken in connection with the transactions contemplated
hereby to which Global is a party constitute the valid and legally binding
obligations of Global, enforceable against Global in accordance with their
respective terms, except as may be limited by principles of equity or applicable
bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or
other similar laws relating to or affecting the rights and remedies of creditors
generally. The execution, delivery and performance by Global of this
Agreement and the agreements provided for herein, and the consummation by Global
of the transactions contemplated hereby and thereby, will not, with or without
the giving of notice or the passage of time or both, violate the provisions of
the Articles of Incorporation or Bylaws of Global, or to Global’s Knowledge
(i) violate the provisions of any law, rule or regulation applicable to
Global, (ii) violate any judgment, decree, order or award of any court,
governmental body or arbitrator; or (iii) conflict with or result in the
breach or termination of any term or provision of, or constitute a default
under, or cause any acceleration under, or cause the creation of any lien,
charge or encumbrance upon the properties or assets of Global pursuant to, any
indenture, mortgage, deed of trust or other instrument or agreement to which
Global is a party or by which Global or any of its properties is or may be
bound.
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(e) No
Conflict. The execution and delivery of this Agreement by
Global does not require any consent or approval under, result in any breach of,
result in any loss of any benefit under, or constitute a change of control or
default (or an event which with notice or lapse of time or both would become a
default) under; give to others any right of termination, vesting, amendment,
acceleration or cancellation of; or result in the creation of any lien or
encumbrance on any property or asset of Global pursuant to; any material
agreement of Global or other instrument or obligation of Global.
(f) Litigation. There
is no action, suit, legal or administrative proceeding or investigation pending
or, to Global’s Knowledge, threatened against or involving Global (either as a
plaintiff or defendant) before any court or governmental agency, authority, body
or arbitrator. There is not in existence on the date hereof any
order, judgment or decree of any court, tribunal or agency to Global’s Knowledge
enjoining or requiring Global to take any action of any kind with respect to its
business, assets or properties.
(g) Insurance. The
Global Schedule sets forth a listing of all current Global insurance
policies. All current insurance policies are in full force and
effect, are in amounts of a nature that are adequate and customary for Global’s
business, and to Global’s Knowledge are sufficient for compliance with all legal
requirements and agreements to which it is a party or by which it is
bound. All premiums due on current policies or renewals have been
paid, and there is no material default under any of the policies.
(h) Personal
Property. Global has good and marketable title to all of its
tangible personal property free and clear of all liens, leases, encumbrances,
claims under bailment and storage agreements, equities, conditional sales
contracts, security interests, charges, and restrictions, except for liens, if
any, for personal property taxes not due. Such property is used by
Global in the ordinary course of its business and is sufficient for continued
conduct of Global’s business after the Closing Date in substantially the same
manner as conducted prior to the Closing Date. Such property is in
good operating condition and repair, normal wear and tear excepted, and normal
maintenance has been performed.
(i) Intangible
Property. Global is the sole and exclusive owner of all right,
title and interest in and to all material items of intangible property
(including formula and process know-how) necessary for the operation of all
material aspects of Global’s business as it is currently conducted free and
clear of all liens, security interests, charges, encumbrances, equities or other
adverse claims. Global has the right and authority to use, and to
continue to use after the Closing Date, such property in connection with the
conduct of its business in the manner presently conducted, and to its Knowledge
such use or continuing use does not and will not materially infringe upon or
violate any rights of any other person.
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(j) Tax
Matters. Within the times and in the manner prescribed by law,
Global has filed all federal, state and local tax returns and all tax returns
for other governing bodies having jurisdiction to levy taxes upon it that are
required to be filed. Global has paid all taxes, interest, penalties,
assessments and deficiencies that have become due, including without limitation
income, franchise, real estate, and sales and withholding taxes. No
examinations of the federal, state or local tax returns of Global are currently
in progress or threatened and no deficiencies have been asserted or to its
Knowledge assessed against Global as a result of any audit by the Internal
Revenue Service or any state or local taxing authority and no such deficiency
has been proposed or threatened.
(k) Books and
Records. The general ledger and books of account of Global,
all minute books of Global, all federal, state and local income, franchise,
property and other tax returns filed by Global, all of which have been made
available to St. Xxxxx, are in all material respects complete and correct and
have been maintained in accordance with good business practice and in accordance
with all applicable procedures required by laws and regulations.
(l) Contracts and
Commitments. The Global Schedule lists all material contracts
and agreements to which Global is a party, whether written or oral, other than
those between Global and St. Xxxxx. Each such contract is a valid and
binding agreement of Global, enforceable against Global in accordance with its
terms, is in full force and effect and represents the material terms of the
agreement between the respective parties. Global has materially
complied with all obligations required pursuant to such contracts to have been
performed by Global on its part and neither Global nor, to its knowledge, any
other party to such contract is in breach of or default in any material respect
under any such contract.
(m) Compliance with
Laws. Global has all requisite licenses, permits and
certificates, including environmental, health and safety permits, from federal,
state and local authorities necessary to conduct its business as currently
conducted and own and operate its assets, except where the failure to have such
permits would not reasonably be expected to have an Adverse
Effect. Global is not in violation of any federal, state or local
law, regulation or ordinance (including, without limitation, laws, regulations
or ordinances relating to building, zoning, environmental, disposal of hazardous
waste, land use or similar matters) relating to its business or its
properties.
(n) Employee Benefit
Plans. The Global Schedule lists all employee benefit plans as
defined in ERISA Section 3(3), and all bonus, stock option, stock purchase,
incentive, deferred compensation, supplemental retirement, severance and other
similar employee benefit plans, and all material unexpired severance agreements
with any current or former employee of Global. With respect to such
plans, individually and in the aggregate, no event has occurred and, to its
Knowledge, there exists no condition or set of circumstances in connection with
which Global could be subject to any liability that is reasonably likely to have
an Adverse Effect under ERISA, the Tax Code or any other applicable
law.
(o) Indebtedness to and from
Affiliates. Global is not indebted, directly or to its
Knowledge indirectly, to any officer, director or 10% stockholder of Global in
any amount other than for salaries for services rendered or reimbursable
business expenses, and no such person is indebted to Global except for advances
made to employees of Global in the ordinary course of business to meet
reimbursable business expenses.
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(p) Banking
Facilities. The Global Schedule sets forth a true, correct,
and complete list of: (i) each bank, savings and loan or similar
financial institution in which Global has an account or safety deposit box and
the numbers of the accounts or safety deposit boxes maintained by Global
thereat; and (ii) the names of all signatories authorized to draw on each such
account or to have access to any such safety deposit box facility.
(q) Regulatory
Approvals. All consents, approvals, authorizations or other
requirements prescribed by any law, rule or regulation that must be obtained or
satisfied by Global and that are necessary for the execution and delivery by
Global of this Agreement or any documents to be executed and delivered by Global
in connection therewith have been, or prior to the Closing Date will be,
obtained and satisfied.
(r) No
Brokers. No broker or finder has acted for Global in
connection with this Agreement or the transactions contemplated hereby, and no
broker or finder is entitled to any brokerage or finder’s fee or other
commissions in respect of such transactions based upon agreements, arrangements
or understandings made by or on behalf of Global.
(s) Disclosure. The
information concerning Global set forth in this Agreement, the exhibits and
schedules hereto, and any document, statement or certificate furnished or to be
furnished in connection herewith does not and will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated herein or therein or necessary to make the statements and facts contained
herein or therein, in light of the circumstances in which they are made, not
false or misleading.
(t) Tax
Treatment. Neither Global nor, to the Knowledge of Global, any
of its Affiliates has taken or agreed to take action that would prevent the
Merger Transactions from constituting a reorganization qualifying under the
provisions of Section 368 of the Tax Code.
Section
6. St. Xxxxx’ and Acquisition Sub’s
Representations and Warranties. Each of St. Xxxxx and
Acquisition Sub represents and warrants to Global and the surviving corporation
that the statements contained in this Section will be true and correct as of the
Closing Date and will not contain any facts, or omit any facts, that render the
statements herein to be misleading, except (i) where any variation would not be
reasonably likely to have an Adverse Effect, and (ii) as set forth herein and in
the disclosure schedule delivered by St. Xxxxx and Acquisition Sub to Global
(the “St. Xxxxx
Schedule”), arranged in sections corresponding to the paragraphs in this
Section; the disclosure in any section or paragraph will qualify other
paragraphs in this Section to the extent that it is reasonably apparent from a
reading of the disclosure that it also qualifies or applies to such other
paragraphs.
(a) Organization.
(i) St. Xxxxx
is a corporation validly existing and in good standing under the laws of the
State of North Carolina and has all requisite power and authority and possesses
all necessary governmental approvals necessary to own, lease and operate its
properties, to carry on its business as now being conducted, to execute and
deliver this Agreement and the agreements contemplated herein, and to consummate
the transactions contemplated hereby and thereby. St. Xxxxx is duly
qualified to do business and is in good standing in all jurisdictions in which
its ownership of property or the character of its business requires such
qualification, except where the failure to be so qualified would not reasonably
be expected to have an Adverse Effect. Certified copies of the
Articles of Incorporation and Bylaws, as amended to date, have been made
available to Global, are complete and correct, and no amendments have been made
thereto or have been authorized since the date thereof. St. Xxxxx is
not in violation of any of the provisions of its Articles of Incorporation or
Bylaws.
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(ii) Acquisition
Sub is a corporation validly existing and in good standing under the laws of the
State of Nevada and has all requisite power and authority and possesses all
necessary governmental approvals necessary to own, lease and operate its
properties, to carry on its business as now being conducted, to execute and
deliver this Agreement and the agreements contemplated herein, and to consummate
the transactions contemplated hereby and thereby. Certified copies of
the Articles of Incorporation and Bylaws, as amended to date, have been made
available to Global, are complete and correct, and no amendments have been made
thereto or have been authorized since the date thereof. Acquisition
Sub is not in violation of any of the provisions of its Articles of
Incorporation or Bylaws.
(b) Capitalization.
(i) St.
Xxxxx’ authorized capital stock consists of fifty million (50,000,000) shares of
common stock, $0.001 par value, and six hundred fifty thousand (650,000) shares
of preferred stock, $.50 par value.
(ii) There are
11,999,057 shares of common stock issued and outstanding, no shares of preferred
stock of St. Xxxxx are issued and outstanding, and no shares of common stock of
St. Xxxxx are held in the treasury of St. Xxxxx. All of the issued
and outstanding shares of common stock of St. Xxxxx were duly and validly issued
and fully paid, are non-assessable and free of preemptive rights, and were
issued in compliance with all applicable state and federal securities
laws.
(iii) Except as
set forth on the St. Xxxxx Schedule, there are no outstanding (A) options,
warrants, or other rights to purchase from St. Xxxxx any capital stock of St.
Xxxxx or Acquisition Sub; (B) debt securities or instruments convertible into or
exchangeable for shares of such stock; or (C) commitments of any kind for the
issuance of additional shares of capital stock or options, warrants or other
securities of St. Xxxxx or Acquisition Sub.
(iv) St. Xxxxx
owns all of the outstanding capital stock of Acquisition Sub, free and clear of
all liens or other encumbrances.
(c) No
Subsidiaries. Except for Acquisition Sub, St. Xxxxx does not
own any capital stock or other equity interest in any corporation, partnership,
joint venture or other entity.
(d) Authorization. Each
of St. Xxxxx and Acquisition Sub has all requisite power and authority to
execute and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. The execution and
delivery of this Agreement by St. Xxxxx and Acquisition Sub and the consummation
by St. Xxxxx and Acquisition Sub of the transactions contemplated hereby have
been duly and validly authorized by all necessary corporate action by St. Xxxxx
and Acquisition Sub, respectively, and no other corporate proceedings on the
part of St. Xxxxx or Acquisition Sub, respectively, and no stockholder vote or
consent is necessary to authorize this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly and
validly executed and delivered by St. Xxxxx and Acquisition Sub. This
Agreement and all other agreements and obligations entered into and undertaken
in connection with the transactions contemplated hereby to which St. Xxxxx or
Acquisition Sub is a party constitute the valid and legally binding obligations
of St. Xxxxx and Acquisition Sub, respectively, enforceable against St. Xxxxx
and Acquisition Sub, respectively, in accordance with its terms, except as may
be limited by principles of equity or applicable bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance or other similar laws relating to
or affecting the rights and remedies of creditors generally. The
execution, delivery and performance by St. Xxxxx and Acquisition Sub of this
Agreement and the agreements provided for herein, and the consummation by St.
Xxxxx and Acquisition Sub of the transactions contemplated hereby and thereby,
will not, with or without the giving of notice or the passage of time or both,
violate the provisions of the Articles of Incorporation or Bylaws of St. Xxxxx
or Acquisition Sub or, to St. Xxxxx’ or Acquisition Sub’s Knowledge, (i) violate
the provisions of any law, rule or regulation applicable to St. Xxxxx or
Acquisition Sub, (ii) violate any judgment, decree, order or award of any court,
governmental body or arbitrator; or (iii) conflict with or result in the breach
or termination of any term or provision of, or constitute a default under, or
cause any acceleration under, or cause the creation of any lien, charge or
encumbrance upon the properties or assets of St. Xxxxx or Acquisition Sub
pursuant to, any indenture, mortgage, deed of trust or other instrument or
agreement to which St. Xxxxx or Acquisition Sub is a party or by which St. Xxxxx
or Acquisition Sub or any of their respective properties is or may be
bound.
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(e) No
Conflict. The execution and delivery of this Agreement by St.
Xxxxx and Acquisition Sub does not require any consent or approval under, result
in any breach of, any loss of any benefit under or constitute a change of
control or default (or an event which with notice or lapse of time or both would
become a default) under, or give to others any right of termination, vesting,
amendment, acceleration or cancellation of, or result in the creation of any
lien or encumbrance on any property or asset of St. Xxxxx or Acquisition Sub
pursuant to any material agreement of St. Xxxxx or Acquisition Sub or other
instrument or obligation of St. Xxxxx or Acquisition Sub.
(f) Absence of
Liabilities. Except as set forth on its balance sheet as of
March 31, 2008, as set forth in its Quarterly Report on Form 10-Q for the period
ended September 30, 2008, as filed with the Securities and Exchange Commission,
St. Xxxxx does not have any liability or obligation, secured or unsecured,
whether accrued, absolute, contingent, unasserted or otherwise, which exceeds
$1,000, not including legal and accounting expenses incurred pursuant to the
Merger. Acquisition Sub has no liabilities or
obligations.
(g) Litigation. There
is no action, suit, legal or administrative proceeding or investigation pending
or, to St. Xxxxx’ Knowledge, threatened against or involving St. Xxxxx or
Acquisition Sub (either as a plaintiff or defendant) before any court or
governmental agency, authority, body or arbitrator. There is not in
existence on the date hereof any order, judgment or decree of any court,
tribunal or agency to St. Xxxxx’ Knowledge enjoining or requiring St. Xxxxx or
Acquisition Sub to take any action of any kind with respect to its business,
assets or properties.
(h) Tax
Matters. Within the times and in the manner prescribed by law,
St. Xxxxx has filed all federal, state and local tax returns and all tax returns
for other governing bodies having jurisdiction to levy taxes upon it which are
required to be filed. St. Xxxxx has paid all taxes, interest,
penalties, assessments and deficiencies which have become due, including without
limitation income, franchise, real estate, and sales and withholding
taxes. No examinations of the federal, state or local tax returns of
St. Xxxxx are currently in progress nor threatened and no deficiencies have been
asserted or to its Knowledge assessed against St. Xxxxx as a result of any audit
by the Internal Revenue Service or any state or local taxing authority and no
such deficiency has been proposed or threatened.
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(i) Books and
Records. The general ledger and books of account of St. Xxxxx,
all minute books of St. Xxxxx, all federal, state and local income, franchise,
property and other tax returns filed by St. Xxxxx, all reports and filings with
the SEC by St. Xxxxx, all of which have been made available to Global, are in
all material respects complete and correct and have been maintained in
accordance with good business practice and in accordance with all applicable
procedures required by laws and regulations.
(j) Contracts and
Commitments. There are no material contracts to which St.
Xxxxx is a party other than those specified in its filings with the
SEC. Acquisition Sub is not a party to any material
contract.
(k) Compliance with
Laws. St. Xxxxx has all requisite licenses, permits and
certificates, including environmental, health and safety permits, from federal,
state and local authorities necessary to conduct its business as currently
conducted and own and operate its assets, except where the failure to have such
permits would not reasonably be expected to have an Adverse
Effect. St. Xxxxx is not in violation of any federal, state or local
law, regulation or ordinance (including, without limitation, laws, regulations
or ordinances relating to building, zoning, environmental, disposal of hazardous
waste, land use or similar matters) relating to its business or its
properties.
(l) Employee Benefit
Plans. Except as disclosed in its filings with the SEC, St.
Xxxxx has no (A) employee benefit plans as defined in ERISA Section 3(3), (B)
bonus, stock option, stock purchase, incentive, deferred compensation,
supplemental retirement, severance or other similar employee benefit plans, or
(C) material unexpired severance agreements with any current or former employee
of St. Xxxxx. With respect to such plans, individually and in the
aggregate, no event has occurred and, to its Knowledge, there exists no
condition or set of circumstances in connection with which St. Xxxxx could be
subject to any liability that is reasonably likely to have an Adverse Effect
under ERISA, the Tax Code or any other applicable law.
(m) Indebtedness to and from
Affiliates. St. Xxxxx is not indebted, directly or to its
Knowledge indirectly, to any officer, director or 10% stockholder of St. Xxxxx
in any amount other than for salaries for services rendered or reimbursable
business expenses, and no such person is indebted to St. Xxxxx except for
advances made to employees of St. Xxxxx in the ordinary course of business to
meet reimbursable business expenses.
(n) Banking
Facilities. St. Xxxxx has no account or safety deposit box at
any bank, savings and loan or similar financial institution or other similar
facility.
(o) Regulatory
Approvals. All consents, approvals, authorizations or other
requirements prescribed by any law, rule or regulation that must be obtained or
satisfied by St. Xxxxx and Acquisition Sub and that are necessary for
the execution and delivery by St. Xxxxx and Acquisition Sub of this Agreement or
any documents to be executed and delivered by St. Xxxxx and Acquisition Sub in
connection therewith have been obtained and satisfied.
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(p) No
Brokers. No broker or finder has acted for St. Xxxxx or
Acquisition Sub in connection with this Agreement or the transactions
contemplated hereby, and no broker or finder is entitled to any brokerage or
finder’s fee or other commissions in respect of such transactions based upon
agreements, arrangements or understandings made by or on behalf of St. Xxxxx or
Acquisition Sub.
(q) Disclosure. The
information concerning each of St. Xxxxx and Acquisition Sub set forth in its
reports and filings with the SEC, this Agreement, the exhibits and schedules
hereto, and any document, statement or certificate furnished or to be furnished
in connection herewith (as applicable) does not and will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated herein or therein or necessary to make the statements and facts contained
herein or therein, in light of the circumstances in which they are made, not
false or misleading.
(r) SEC and State Securities Law
Filings.
(i) St. Xxxxx
has timely and properly filed all forms, reports and documents required to be
filed with the SEC since formation of St. Xxxxx. At the time filed
or, with respect to registration statements filed with the SEC under the
Securities Act, as of the effective date thereof, all such filings (A) complied
in all material respects with the applicable requirements of the Securities Act
and the Exchange Act, as the case may be, and (B) did not at the time they were
filed (or if amended or superseded by a filing prior to the date of this
Agreement, then on the date of such filing) contain any untrue statement of a
material fact or omit to state a material fact required to be stated in such
filings or necessary in order to make the statements in such filings, in the
light of the circumstances under which they were made, not
misleading.
(ii) Each of
the financial statements (including, in each case, any related notes) contained
in St. Xxxxx’ SEC filings complied as to form in all material respects with the
applicable rules and regulations with respect thereto, was prepared in
accordance with GAAP applied on a consistent basis throughout the periods
involved (except as may be indicated in the notes to such financial statements
or, in the case of unaudited statements, as permitted by Form 10-Q of the
SEC) and fairly presented the financial position of St. Xxxxx as of the dates
and the results of its operations and cash flows for the periods indicated,
except that the unaudited interim financial statements were or are subject to
normal and recurring year-end adjustments which were not or are not expected to
be material in amount.
(s) Tax
Treatment. Neither St. Xxxxx nor, to the Knowledge of St.
Xxxxx, any of its Affiliates has taken or agreed to take action that would
prevent the Merger Transactions from constituting a reorganization qualifying
under the provisions of Section 368 of the Tax Code.
Section
7. Conditions to the
Merger. The respective obligation of each party to effect the
Merger and the other transactions contemplated herein shall be subject to the
fulfillment at or prior to the Closing Date of the following conditions, any or
all of which may be waived, in whole or in part by the parties hereto, to the
extent permitted by applicable law:
(a) The
Acquisitions shall have been consummated.
(b) No party
shall have exercised any termination right.
10
(c) Any
governmental or third party approvals required to effect the Merger Transactions
shall have been obtained.
Section
8. Global’s Conditions to the
Merger. The obligation of Global to effect the Merger shall be
subject to the fulfillment at or prior to the Closing Date of the following
conditions, unless waived by Global:
(a) Each of
the representations and warranties of St. Xxxxx and Acquisition Sub contained in
this Agreement shall be true and correct as of the date of this Agreement,
except to the extent that any changes, circumstances or events making such
representations and warranties not true or correct would not, individually or in
the aggregate, constitute an Adverse Effect.
(b) St. Xxxxx
and Acquisition Sub shall have performed or complied in all material respects
with all agreements and covenants required by this Agreement to be performed or
complied with by it.
(c) From the
date of this Agreement through the Effective Time, there shall not have occurred
any change, circumstance or event concerning St. Xxxxx or Acquisition Sub that
has had or could be reasonably likely to have an Adverse Effect.
Section
9. St. Xxxxx and Acquisition Sub’s
Conditions. The obligations of St. Xxxxx and Acquisition Sub
to effect the Merger shall be subject to the fulfillment at or prior to the
Closing Date of the following conditions, unless waived by St.
Xxxxx:
(a) Each of
the representations and warranties of Global contained in this Agreement shall
be true and correct as of the date of this Agreement, except to the extent that
any changes, circumstances or events making such representations and warranties
not true or correct would not, individually or in the aggregate, constitute an
Adverse Effect.
(b) Global
shall have performed or complied in all material respects with all agreements
and covenants required by this Agreement to be performed or complied with by it
on or prior to the Effective Time.
(c) From the
date of this Agreement through the Effective Time, there shall not have occurred
any change, circumstance or event concerning Global and each of the parties
subject to the Acquisitions by Global that has had or could be reasonably likely
to have an Adverse Effect.
(d) Global
shall have obtained such financing as is required for it to consummate the
Acquisitions and St. Xxxxx shall have acquired sufficient financing, in its sole
and absolute discretion, to operate the acquired businesses in accordance with
its business plan.
(e) Global
shall have obtained, and thereupon shall have delivered to St. Xxxxx, financial
statements in respect of each of the Acquisitions in form and substance
sufficient then and there for inclusion by St. Xxxxx in a Current Report on Form
8-K to be filed with the Securities and Exchange Commission within four business
days of Closing.
(f) St. Xxxxx
shall have conducted such financial and business due diligence in reap sect of
the Acquisitions and shall have been satisfied, in its sole and absolute
discretion, therewith.
(g) St. Xxxxx
shall not have disagreed with the Determination.
11
(h) Each of
the Acquisitions shall have been consummated.
(i) St. Xxxxx
shall have received from each holder of shares of Global capital stock (1) an
investor suitability questionnaire in form and substance satisfactory to St.
Xxxxx, containing customary investment representations and certifying that such
holder is an “accredited investor” as defined in Regulation D of the Securities
Act or (2) confirmation of receipt of the appropriate disclosures required
pursuant to Rule 506 under Regulation D of the Securities Act.
Section
10. Indemnification. All
rights to indemnification by Global and St. Xxxxx existing in favor of each
individual who is an officer or director of Global or St. Xxxxx of the date of
this Agreement (each such individual, an “Indemnified Person”) for his acts and
omissions as a director or officer of Global or St. Xxxxx occurring prior to the
Effective Time, as provided in Global or St. Xxxxx' Articles of Incorporation or
Bylaws (as in effect as of the date of this Agreement) shall survive the Merger
Transactions and shall continue in full force and effect (to the fullest extent
such rights to indemnification are available under and are consistent with
applicable law) for a period of six years from the Closing Date.
Section
11. Confidentiality. Each
party shall ensure that any nonpublic information provided to it by any other
party in confidence shall be treated as strictly confidential and that all such
confidential information that each party or any of its respective officers,
directors, employees, attorneys, agents, investment bankers, or accountants may
now possess or may hereinafter create or obtain relating to the financial
condition, results of operations, businesses, properties, assets, liabilities,
or future prospects of the other such parties, any affiliate thereof, or any
customer or supplier thereof shall not be published, disclosed, or made
accessible by any of them to any other person at any time or used by any of
them, in each case without the prior written consent of the other party; provided, however, that the
restrictions of this Section shall not apply (a) as may otherwise be required by
law, (b) as may be necessary or appropriate in connection with the enforcement
of this Agreement, or (c) to the extent such information was in the public
domain when received or thereafter enters the public domain other than because
of disclosures by the receiving party. Each such party shall, and
shall cause all of such other persons who received confidential information,
from time to time to deliver to the disclosing party all tangible evidence of
such confidential information to which the restrictions of this Section apply
upon written request.
Section
12. Miscellaneous.
(a) Survival. The
representations and warranties of the parties will terminate at the Effective
Time and only those covenants that by their terms survive the Effective Time
shall survive the Effective Time. This Section 12 shall survive the
Effective Time.
(b) Press Releases and Public
Announcements. No party will issue any press release or make
any public announcement relating to the subject matter of this Agreement without
the prior written approval of the other party; provided, however, that any
party may make any public disclosure it believes in good faith is required by
applicable law or any listing requirement or trading agreement.
(c) No Third-Party
Beneficiaries. This Agreement will not confer any rights or
remedies upon any person other than the parties and their respective successors
and permitted assigns.
12
(d) Notices. All
notices required or permitted under this Agreement will be in writing and will
be given by certified or regular mail or by any other reasonable means
(including personal delivery, facsimile, or reputable express courier) to the
party to receive notice at the following addresses or at such other address as
any party may, by notice, direct:
|
|
To
St. Xxxxx or
|
The
Saint Xxxxx Company
|
|
Acquisition Sub:
|
The
Saint Xxxxx New Zealand Wine
Company
|
|
|
Broadway
Plaza
|
|
|
000
Xxxxxxxx, Xxxxx 000
|
Xxxxx
Xxxxxx, XX 00000
Fax
number: 310-___-____
|
|
To
Global:
|
Global
Management Services, Inc.
|
0000 X.
Xxxxxx Xxx., Xxxxx 00
Xxx
Xxxxx, Xxxxxx 00000
Fax
number: 702-___-____
All
notices given by certified mail will be deemed as given on the delivery date
shown on the return mail receipt, and all notices given in any other manner will
be deemed as given when received.
(e) Waiver. The
rights and remedies of the parties to this Agreement are cumulative and not
alternative. Neither the failure nor any delay by any party in
exercising any right, power, or privilege under this Agreement or the documents
referred to in this Agreement will operate as a waiver of such right, power, or
privilege, and no single or partial exercise of any right, power, or privilege
will preclude any other or further exercise of such right, power, or privilege
or the exercise of any other right, power, or privilege. To the
maximum extent permitted by applicable law, (a) no claim or right arising from
this Agreement or the documents referred to in this Agreement can be discharged
by one party, in whole or in part, by a waiver or renunciation of the claim or
right unless in writing signed by the waiving party, (b) no waiver that may be
given by a party will be applicable except in the specific instance for which it
is given, and (c) no notice to or demand on one party will be deemed to be
a waiver of any obligation of such party or of the right of the party giving
such notice or demand to take further action without notice or demand as
provided in this Agreement or the documents referred to in this
Agreement.
(f) Further
Assurances. The parties agree (a) to furnish upon request to
each other such further information, (b) to execute and deliver to each other
such other documents, and (c) to do such other acts and things, all as the
other party may reasonably request for the purpose of carrying out the intent of
this Agreement and of the documents referred to in this Agreement.
(g) Successors and
Assigns. This Agreement will be binding upon and inure to the
benefit of the parties and their respective successors and permitted
assigns. No party may assign either this Agreement or any of its
rights, interests, or obligations hereunder without the prior written approval
of the other party, which may be granted or withheld at the sole discretion of
such other party. Any unauthorized assignment is void.
(h) Severability. Any
provision of this Agreement that is invalid, illegal or unenforceable in any
jurisdiction will, as to that jurisdiction, be ineffective to the extent of such
invalidity, illegality or unenforceability, without affecting in any way the
remaining provisions hereof in such jurisdiction or rendering that or any other
provision of this Agreement invalid, illegal or unenforceable in any other
jurisdiction.
13
(i) Expenses. Each
party will pay all fees and expenses (including, without limitation, legal and
accounting fees and expenses) incurred by such party in connection with the
transactions contemplated by this Agreement.
(j) Governing
Law. This Agreement will be governed by and construed in
accordance with the laws of the State of California, without giving effect to
principles of conflicts of laws.
(k) Counterparts;
Signatures. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original, but all of which
will be one and the same document. Facsimiles and electronic copies
in portable document format (“PDF”) containing original signatures shall be
deemed for all purposes to be originally signed copies of the documents that are
the subject of such facsimiles or PDF versions.
(l) Entire
Agreement. This Agreement, the schedules and exhibits hereto,
and the agreements and instruments to be delivered by the parties on Closing
represent the entire understanding and agreement between the parties and
supersede all prior oral and written and all contemporaneous oral negotiations,
commitments and understandings.
[Signatures
on Following Page]
14
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement and Plan of
Merger as of the date first above written.
| THE SAINT XXXXX COMPANY | |||
|
By:
|
|||
| Name: Xxxxx Xxxxxxxxx | |||
| Title: Chief Executive Officer | |||
| THE SAINT XXXXX NEW ZEALAND WINE COMPANY | |||
|
By:
|
|||
| Name: Xxxxx Xxxxxxxxx | |||
| Title: Chief Executive Officer | |||
| GLOBAL MANAGEMENT SERVICES, INC. | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
15
Schedule
1
Definitions
“Adverse Effect” means, with
respect to each party, any effect or change that would have a material adverse
effect on the results of operations, financial condition, assets, properties or
business of the party, taken as a whole, or on the ability of the party to
consummate timely the transactions contemplated hereby.
“Affiliate” has the meaning set
forth in Exchange Act Rule 12b-2.
“ERISA” means the Employee
Retirement Income Security Act of 1974, as amended, and the regulations
promulgated thereunder.
“Effective Time” means the time
of acceptance for record of the Articles of Merger by the Secretary of State of
the State of Nevada in accordance with the Nevada Revised Statute (but not
earlier than the Closing Date) or at such later time that the parties hereto
shall have agreed upon and designated in such filing in accordance with
applicable law as the effective time of the Merger.
“Exchange Act” means the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
“Knowledge” means the actual
knowledge of the executive officers of a party, without independent
investigation.
“Securities Act” means the
Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder.
009900, 000080,
102733251
