EXHIBIT 4.1
EXCHANGE AGREEMENT
This Exchange Agreement (this "Agreement") is dated as of March 30, 2005,
by and among Boundless Motor Sports Racing, Inc., a Colorado corporation (the
"Company"), and the holders of shares of the Company's Series A Convertible
Preferred Stock whose signatures appear on the signature page attached hereto
(the "Holders").
RECITALS:
WHEREAS, the Holders currently hold an aggregate of 5,216.1519 shares of
Series A Convertible Preferred Stock of the Company, par value $.01 per share
and stated value $2,700 per share, convertible into shares of the Company's
common stock ("Common Stock") at a conversion price of $2.70 per share (the
"Series A Preferred Shares"), issued pursuant to that Series A Convertible
Preferred Stock Purchase Agreement dated as of July 30, 2004 by and among the
Company and the Holders (the "Series A Purchase Agreement"); and
WHEREAS, subject to the terms and conditions set forth herein, the Company
desires to cancel and retire the Series A Preferred Shares and forfeit any and
all rights under the Series A Purchase Agreement and the Certificate of
Designation of the Relative Rights and Preferences of the Series A Convertible
Preferred Stock filed with the Colorado Secretary of State on July 30, 2004 and
the Holders are willing to exchange the Series A Preferred Shares for an
aggregate of 4,790.3659 shares of Series B Convertible Preferred Stock of the
Company, par value $.01 per share and stated value $3,000 per share, convertible
into shares of Common Stock at a conversion price of $3.00 per share (the
"Series B Preferred Shares").
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby agreed and acknowledged, the parties hereby
agree as follows:
AGREEMENT:
1. SECURITIES EXCHANGE.
(a) In consideration of and in express reliance upon the
representations, warranties, covenants, terms and conditions of this Agreement,
each Holder agrees to deliver to the Company the Series A Preferred Shares in
exchange for the Series B Preferred Shares and the Company agrees to issue and
deliver the Series B Preferred Shares to the Holders in exchange for the Series
A Preferred Shares.
(b) The closing under this Agreement (the "Closing") shall take
place at the offices of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, 000 Xxxxx Xxxxxx,
Xxx Xxxx, XX 00000 upon the satisfaction of each of the conditions set forth in
Sections 4 and 5 hereof (the "Closing Date").
(c) At the Closing, the Company shall issue to the Holders an
aggregate of 4,790.3659 Series B Preferred Shares as set forth on Exhibit A
hereto and the Holders shall deliver to the Company for cancellation the Series
A Preferred Shares. The Series B Preferred Shares are sometimes referred to
herein as the "Securities".
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE HOLDERS. Each of
the Holders hereby makes the following representations and warranties to the
Company, and covenants for the benefit of the Company, with respect solely to
itself and not with respect to any other Holder:
(a) If a Holder is an entity, such Holder is a corporation,
limited liability company or partnership duly incorporated or organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or organization.
(b) This Agreement has been duly authorized, validly executed and
delivered by each Holder and is a valid and binding agreement and obligation of
each Holder enforceable against such Holder in accordance with its terms,
subject to limitations on enforcement by general principles of equity and by
bankruptcy or other laws affecting the enforcement of creditors' rights
generally, and each Holder has full power and authority to execute and deliver
the Agreement and the other agreements and documents contemplated hereby and to
perform its obligations hereunder and thereunder.
(c) Each Holder understands that the Securities are being offered
and sold to it in reliance on specific provisions of Federal and state
securities laws and that the Company is relying upon the truth and accuracy of
the representations, warranties, agreements, acknowledgments and understandings
of each Holder set forth herein for purposes of qualifying for exemptions from
registration under the Securities Act of 1933, as amended (the "Securities Act")
and applicable state securities laws.
(d) Each Holder is an "accredited investor" as defined under Rule
501 of Regulation D promulgated under the Securities Act.
(e) Each Holder is and will be acquiring the Securities for such
Holder's own account, and not with a view to any resale or distribution in whole
or in part, in violation of the Securities Act or any applicable securities
laws.
(f) The offer and sale of the Securities is intended to be exempt
from registration under the Securities Act, by virtue of Section 3(a)(9) and/or
4(2) thereof. Each Holder understands that the Securities purchased hereunder
have not been registered under the Securities Act and that none of the
Securities can be sold or transferred unless they are first registered under the
Securities Act and such state and other securities laws as may be applicable or
the Company receives an opinion of counsel reasonably acceptable to the Company
that an exemption from registration under the Securities Act is available (and
then the Securities may be sold or transferred only in compliance with such
exemption and all applicable state and other securities laws).
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. The
Company represents and warrants to each Holder, and covenants for the benefit of
each Holder, as follows:
(a) The Company has been duly incorporated and is validly existing
and in good standing under the laws of the state of Colorado, with full
corporate power and authority to own, lease and operate its properties and to
conduct its business as currently conducted, and is
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duly registered and qualified to conduct its business and is in good standing in
each jurisdiction or place where the nature of its properties or the conduct of
its business requires such registration or qualification, except where the
failure to register or qualify would not have a Material Adverse Effect. For
purposes of this Agreement, "Material Adverse Effect" shall mean any material
adverse effect on the business, operations, properties, prospects, or financial
condition of the Company and its subsidiaries and/or any condition,
circumstance, or situation that would prohibit or otherwise materially interfere
with the ability of the Company to perform any of its obligations under this
Agreement in any material respect.
(b) The Securities have been duly authorized by all necessary
corporate action and, when paid for or issued in accordance with the terms
hereof, the Securities shall be validly issued and outstanding, fully paid and
nonassessable, free and clear of all liens, encumbrances and rights of refusal
of any kind.
(c) This Agreement has been duly authorized, validly executed and
delivered on behalf of the Company and is a valid and binding agreement and
obligation of the Company enforceable against the Company in accordance with its
terms, subject to limitations on enforcement by general principles of equity and
by bankruptcy or other laws affecting the enforcement of creditors' rights
generally, and the Company has full power and authority to execute and deliver
the Agreement and the other agreements and documents contemplated hereby and to
perform its obligations hereunder and thereunder.
(d) The execution and delivery of the Agreement and the
consummation of the transactions contemplated by this Agreement by the Company,
will not (i) conflict with or result in a breach of or a default under any of
the terms or provisions of, (A) the Company's articles of incorporation or
by-laws, or (B) of any material provision of any indenture, mortgage, deed of
trust or other material agreement or instrument to which the Company is a party
or by which it or any of its material properties or assets is bound, (ii) result
in a violation of any provision of any law, statute, rule, regulation, or any
existing applicable decree, judgment or order by any court, Federal or state
regulatory body, administrative agency, or other governmental body having
jurisdiction over the Company, or any of its material properties or assets or
(iii) result in the creation or imposition of any material lien, charge or
encumbrance upon any material property or assets of the Company or any of its
subsidiaries pursuant to the terms of any agreement or instrument to which any
of them is a party or by which any of them may be bound or to which any of their
property or any of them is subject except in the case of clauses (i)(B), (ii) or
(iii) for any such conflicts, breaches, or defaults or any liens, charges, or
encumbrances which would not have a Material Adverse Effect.
(e) The delivery and issuance of the Securities in accordance with
the terms of and in reliance on the accuracy of each Holder's representations
and warranties set forth in this Agreement will be exempt from the registration
requirements of the Securities Act.
(f) No consent, approval or authorization of or designation,
declaration or filing with any governmental authority on the part of the Company
is required in connection with the valid execution and delivery of this
Agreement or the offer, sale or issuance of the Securities or the consummation
of any other transaction contemplated by this Agreement.
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(g) The Company has complied and will comply with all applicable
federal and state securities laws in connection with the offer, issuance and
delivery of the Securities hereunder. Neither the Company nor anyone acting on
its behalf, directly or indirectly, has or will sell, offer to sell or solicit
offers to buy any of the Securities, or similar securities to, or solicit offers
with respect thereto from, or enter into any preliminary conversations or
negotiations relating thereto with, any person, or has taken or will take any
action so as to bring the issuance and sale of any of the Securities under the
registration provisions of the Securities Act and applicable state securities
laws. Neither the Company nor any of its affiliates, nor any person acting on
its or their behalf, has engaged in any form of general solicitation or general
advertising (within the meaning of Regulation D under the Securities Act) in
connection with the offer or sale of any of the Securities.
(h) The Company represents that it has not paid, and shall not
pay, any commissions or other remuneration, directly or indirectly, to the
Holder or to any third party for the solicitation of the exchange of the Series
A Preferred Shares pursuant to this Agreement.
(i) The Company covenants and agrees that promptly following the
Closing Date, all outstanding Series A Preferred Shares will be cancelled and
retired by the Company.
4. CONDITIONS PRECEDENT TO THE OBLIGATION OF THE COMPANY TO ISSUE THE
SECURITIES. The obligation hereunder of the Company to issue and deliver the
Securities to each Holder is subject to the satisfaction or waiver, at or before
the Closing Date, of each of the conditions set forth below. These conditions
are for the Company's sole benefit and may be waived by the Company at any time
in its sole discretion.
(a) Each Holder shall have executed and delivered this Agreement.
(b) Each Holder shall have performed, satisfied and complied in
all material respects with all covenants, agreements and conditions required by
this Agreement to be performed, satisfied or complied with by such Holder at or
prior to the Closing Date.
(c) The representations and warranties of each Holder shall be
true and correct in all material respects as of the date when made and as of the
Closing Date as though made at that time, except for representations and
warranties that are expressly made as of a particular date, which shall be true
and correct in all material respects as of such date.
5. CONDITIONS PRECEDENT TO THE OBLIGATION OF THE HOLDERS TO ACCEPT THE
SECURITIES. The obligation hereunder of each Holder to accept the Securities is
subject to the satisfaction or waiver, at or before the Closing Date, of each of
the conditions set forth below. These conditions are for each Holder's sole
benefit and may be waived by each Holder at any time in its sole discretion.
(a) The Company shall have executed and delivered this Agreement.
(b) The Company shall have performed, satisfied and complied in
all material respects with all covenants, agreements and conditions required by
the Agreement to be performed, satisfied or complied with by the Company at or
prior to the Closing Date.
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(c) Each of the representations and warranties of the Company
shall be true and correct in all material respects as of the date when made and
as of the Closing Date as though made at that time, except for representations
and warranties that speak as of a particular date, which shall be true and
correct in all material respects as of such date.
(d) No statute, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or endorsed by any
court or governmental authority of competent jurisdiction which prohibits the
consummation of any of the transactions contemplated by this Agreement at or
prior to the Closing Date.
(e) As of the Closing Date, no action, suit or proceeding before
or by any court or governmental agency or body, domestic or foreign, shall be
pending against or affecting the Company, or any of its properties, which
questions the validity of the Agreement or the transactions contemplated thereby
or any action taken or to be taken pursuant thereto. As of the Closing Date, no
action, suit, claim or proceeding before or by any court or governmental agency
or body, domestic or foreign, shall be pending against or affecting the Company,
or any of its properties, which, if adversely determined, is reasonably likely
to result in a Material Adverse Effect.
6. RIGHTS, BENEFITS AND OBLIGATIONS OF SERIES B CONVERTIBLE PREFERRED
STOCK PURCHASE AGREEMENT AND REGISTRATION RIGHTS AGREEMENT. The Company and the
Holders hereby agree that the Company and the Holders shall have all of the
rights and benefits, and be subject to all of the obligations, under (i) the
Series B Convertible Preferred Stock Purchase Agreement dated as of February 28,
2005 among the Company and the purchasers named therein (the "Series B Purchase
Agreement") and (ii) the Registration Rights Agreement dated as of February 28,
2005 among the Company and the purchasers named therein (the "Registration
Rights Agreement"), in each case, with respect to the Securities sold pursuant
to this Agreement.
7. GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement shall be
governed by and interpreted in accordance with the laws of the State of New York
without giving effect conflicts of law principles that would result in the
application of the substantive laws of another jurisdiction. Each of the parties
consents to the exclusive jurisdiction of the Federal courts whose districts
encompass any part of the County of New York located in the City of New York in
connection with any dispute arising under this Agreement and hereby waives, to
the maximum extent permitted by law, any objection, including any objection
based on forum non conveniens, to the bringing of any such proceeding in such
jurisdictions. Each party waives its right to a trial by jury. Each party to
this Agreement irrevocably consents to the service of process in any such
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to such party at its address set forth herein. Nothing herein
shall affect the right of any party to serve process in any other manner
permitted by law.
8. NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, express overnight
courier, registered first class mail, or telecopier (provided that any notice
sent by telecopier shall be confirmed by other means pursuant to this Section
11), initially to the address set forth below, and thereafter at such other
address, notice of which is given in accordance with the provisions of this
Section.
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(a) if to the Company:
Boundless Motor Sports Racing, Inc.
0000 XxXxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxx and Xxxxx Xxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxx L.L.P.
0000 X. Xxxxxxx Xxxxxxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxx, 00000
Attention: Xxxxxxx X. Xxxxxxx
Tel No.: (000) 000-0000
Fax No.: (000) 000-0000
(b) if to the Holders:
At the address of such Holder set forth on Exhibit A
to this Agreement.
with a copy to:
Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxxxx X. Xxxxxxx
Tel No.: (000) 000-0000
Fax No.: (000) 000-0000
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; when receipt is
acknowledged, if telecopied; or when actually received or refused if sent by
other means.
9. ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding and agreement of the parties with respect to the subject matter
hereof and supersedes all prior and/or contemporaneous oral or written proposals
or agreements relating thereto all of which are merged herein. This Agreement
may not be amended or any provision hereof waived in whole or in part, except by
a written amendment signed by both of the parties.
10. COUNTERPARTS. This Agreement may be executed by facsimile signature
and in counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, this Agreement was duly executed on the date first
written above.
BOUNDLESS MOTOR SPORTS RACING, INC.
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Vice President
HOLDER
North Sound Legacy Fund LLC
By: North Sound Capital,
its Manager
By: /s/ Xxxxxx X Xxxxx
Name: Xxxxxx X. Xxxxx
Title: General Counsel
North Sound Legacy Institutional Fund LLC
By: North Sound Capital,
its Manager
By: /s/ Xxxxxx X Xxxxx
Name: Xxxxxx X. Xxxxx
Title: General Counsel
North Sound Legacy International Fund LLC
By: North Sound Capital,
its Manager
By: /s/ Xxxxxx X Xxxxx
Name: Xxxxxx X. Xxxxx
Title: General Counsel
Royal Bank of Canada
By: its agent RBC Capital Markets
Corporation
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: Director and Senior
Counsel
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By: /s/ Xxxxx Xxxxxxxxx
Name: Xxxxx Xxxxxxxxx
Title: Managing Director
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