STOCK PURCHASE AGREEMENT
Exhibit
10.1
This
Stock Purchase Agreement (this “Agreement”), dated as of January 15, 2010, is
made between Business Marketing Services, Inc., a Delaware corporation
(“Company”), Xxxxxxx X. Black, an individual (“Black”) (Company and Black,
collectively, the “Sellers”), and Xxxx Xxxxxxx, an individual (the
“Buyer”).
WHEREAS,
subject to the terms and conditions set forth in this Agreement, the Sellers
desire to sell to the Buyer and the Buyer desires to purchase from the Seller
all of the issued and outstanding shares of the Company's common stock held by
Sellers (the “Shares”).
NOW,
THEREFORE, in consideration of mutual covenants contained in this Agreement, and
for other good and valuable consideration, the sufficiency and receipt of which
is hereby acknowledged, the Seller and Buyer agree as follows:
Article
I
Purchase
and Sale
1.1 The
Closing.
Subject to terms and conditions set forth in this agreement, the Sellers shall
sell to Buyer and the Buyer shall purchase from Black 15,000,000 shares of the
Company’s common stock from Black, which represents all issued and outstanding
common stock of the Seller (15,000,000 shares total) for an aggregate purchase
price of $325,000 (the “Purchase Price”), of which $25,000 has been previously
deposited with Xxxxxx & Xxxxxx, LLP (the “Escrow Deposit”). The
closing of the purchase and sale of the shares (the “Closing”) shall take place
on January 15, 2010 (the “Closing Date”) at such place as the parties mutually
agree.
1.2 Closing
Deliveries.
(a) On
the Closing Date, the parties shall deliver or shall cause to be delivered the
following: (a) the Sellers shall transfer 15,000,000 shares of the
Company’s common stock to the Buyer (b) Buyer shall deliver the Purchase Price
minus the Escrow Deposit to the escrow account of the law firm of Xxxxxx &
Jaclin, LLP.
(b) On
the Closing Date, Black will resign from all officer and director positions held
with the Company and the Buyer will be appointed as the Company’s President,
Chief Executive Officer, Principal Accounting Officer and Director.
Article
II
Representations
and Warranties
2.1
Sellers hereby represent and warrants, except as set forth in the Seller
Disclosure Schedule, as follows:
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(a) Company
is a duly organized and validly existing corporation in good standing under the
laws of the State of Delaware, authorized to issue 200,000,000 shares of Company
common stock and 50,000,000 shares of “blank check” preferred stock. The
issued and outstanding capital stock of Company consists only of the 19,200,000
Shares of outstanding common stock, all of which are duly authorized, validly
issued and fully paid and nonassessable shares of Company common stock.
Except as set forth in Schedule 2(a) of the
Sellers Disclosure Schedule, there are no issued or outstanding rights, options
or warrants to purchase Company Common Stock or any issued or outstanding
securities of any nature convertible into Company Common Stock. The outstanding
Company common stock have all been registered or issued pursuant to an
appropriate exemption from the registration requirements of the Securities Act
of 1933 (the “Securities Act”) and
from any applicable registration requirements of the various
states.
(b) Company
and Black have full power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. This Agreement and the
transactions contemplated hereby have been duly approved by the Board of
Directors of Company. This Agreement has been duly executed and delivered
by Company and constitutes a valid and binding obligation of Company enforceable
against Company in accordance with its terms, except that such enforcement may
be subject to bankruptcy, insolvency, reorganization, moratorium or other
similar laws now, or hereafter, in effect relating to creditors'
rights.
(c) Company
is qualified as a foreign corporation in all jurisdictions where its business or
ownership of assets or properties so requires, except where the failure to be so
qualified would not have a material adverse effect on the business or financial
condition of Company (a “Company Material Adverse
Effect”). The business of Company does not require it to be registered as
an investment company or investment adviser as such terms are defined under the
Investment Company Act of 1940 and the Investment Advisers Act of 1940, each as
amended.
(d) Except as
set forth in Schedule
2(d) of the Sellers Disclosure Schedule, Company has no
subsidiaries.
(e) The
Company financial statements shall present fairly, in all material respects, the
consolidated financial position and results of operations of Company as of the
dates, period and year indicated, prepared in accordance with GAAP, and in
accordance with Regulation S-X (“Regulation S-X”),
promulgated by the SEC, and, in particular, Rules 1-02 and 3-05
thereunder.
(f) There are
no material liabilities (including, but not limited to material tax liabilities)
or material claims against Company (whether such liabilities or claims are
contingent or absolute, direct or indirect, matured or unmatured) not
described in the Company financial statements, other than liabilities incurred
in the ordinary course of business.
(g) Company
has duly filed with the appropriate governmental authorities all material
franchise, income and all other material tax returns other than tax returns, the
failure of to file of which would have no Material Adverse Effect on
Company. All such tax returns were when filed, and are, accurate and
complete in all material respects and were prepared in conformity with
applicable laws. Company has paid, or will pay in full or have adequately
reserved against, all taxes otherwise assessed against it through the Closing
Date. Company is not a party to any pending action or proceeding by any
governmental authority for the assessment of any tax, and no claim for
assessment or collection of any tax has been asserted in writing against Company
that has not been paid. There are no liens for taxes upon the assets of
Company (other than liens for taxes not yet due and payable). There is no
valid basis, to the knowledge of Company, for any assessment, deficiency,
notice, 30-day letter or similar intention to assess any tax to be issued to
Company by any governmental authority.
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(h) Except as
described in the Schedule 2(h) of the
Sellers Disclosure Schedule, Company has good and marketable title in all
material respects to all its furniture, fixtures, equipment and other owned
assets as set forth in the Company financial statements and such assets are
owned free and clear of all material security interests, pledges, liens,
restrictions and encumbrances of every kind and nature.
(i) The
accounts receivable set forth in the Company financial statements represent
amounts due for goods sold, or services rendered, by Company in the ordinary
course of business and, except as reserved for in the Company financial
statements, are, to the best knowledge of Company, collectable in all material
respects in the ordinary course of business.
(j) Copies of
all written material agreements, contracts, arrangements, understandings and
commitments, including, without limitation, real estate leases and loan
agreements (each a “Contract,”
collectively, “Contracts”), to which
Company is a party, by which Company is bound, or from which Company is entitled
to receive substantial benefits, and a summary of the provisions of each oral
material contract, have been delivered to Buyer. Company is not in material
default under any such Contract. The validity and enforceability of, and
rights of Company contained in each such Contract shall not be materially
adversely affected by the transactions contemplated hereby.
(k) There are
no legal, administrative, arbitral or other proceedings, claims, actions or
governmental investigations of any nature against Company which could reasonably
be expected to have a Company Adverse Effect or which challenge the validity or
propriety of the transactions contemplated by this Agreement and, to Company’s
best knowledge, there is no reasonable basis for any such proceeding, claim,
action or governmental investigation against Company. Company is not a
party to or bound by any order, judgment or decree which could reasonably be
expected to have a Company Material Adverse Effect.
(l) Since
September 30, 2009, there have been (i) no bonuses or extraordinary compensation
paid to any of the officers or directors of Company; (ii) no loans made to, or
any transactions with, any of the officers or directors of Company or their
families; (iii) no dividends or other distributions declared or paid by Company;
and (iv) no purchase by Company or Black of any Company Shares.
(m) Except as
set forth in Schedule
2(m) of the Sellers Disclosure Schedule, Company has not issued or
committed itself to issue, and up to the Effective Date will not issue or commit
itself to issue, any Company Common Stock or any options, rights, warrants, or
other securities convertible into Company Common Stock.
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(n) “Intellectual
Property” shall mean and refer to: (i) domestic and foreign patents and
patent applications (or equivalents thereto); (ii) domestic and foreign
copyrights and copyright registrations; (iii) domestic and foreign trademarks,
service marks, trade names and respective registrations thereof; (iv) Trade
Secrets, privacy rights, and any other protection for confidential information
or ideas, and (v) technical information and documentation, proprietary
technology and processes, and know-how.
As of the
Closing Date:
(1) Company
owns the entire right, title and interest to all Intellectual Property, free and
clear of all mortgages, liens, pledges, security interests, charges, claims,
restrictions and encumbrances of any nature whatsoever.
(2) Company
has not violated, misappropriated, infringed, induced infringement of, or
contributed to the infringement of any patent, copyright, Trade Secret,
trademark, service xxxx, trade name, Internet domain name or other Intellectual
Property right of any other person or entity. Company's representation in this
Section 2(n)(2) is limited to Company 's or Black’s knowledge.
(3) Company
has not made, asserted or threatened any claim of violation, misappropriation or
infringement of the Intellectual Property against any other person or entity,
and Company is not aware of any such violation, misappropriation or
infringement.
(4) The
transactions contemplated herein will have no Material Adverse Effect on the
Intellectual Property.
(o) Company
has, in all material respects, conducted its affairs in compliance with all
applicable laws, rules and regulations except where the failure to so comply
could not reasonably be expected to have a Company Material Adverse
Effect.
(p) Except as
described in the Company financial statements, there are no loans, leases or
other contracts outstanding between Company and any other officer or director of
Company or any person or entity related to any officer or director of
Company.
(q) During
the past five year period, no officer or director of Company has been the
subject of:
(1) a
petition under the Federal bankruptcy laws or any other insolvency law nor has a
receiver, fiscal agent or similar officer been appointed by a court for the
business or property of such person, or any partnership in which he was a
general partner at or within two years before the time of such filing, or any
corporation or business association of which he was an executive officer at or
within two years before the time of such filing;
(2) a
conviction in a criminal proceeding or a named subject of a pending criminal
proceeding (excluding traffic violations which do not relate to driving while
intoxicated);
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(3) any
order, judgment or decree, not subsequently reversed, suspended or vacated, of
any court of competent jurisdiction, permanently or temporarily enjoining him
from, or otherwise limiting, the following activities:
(i)
Acting as a futures commission merchant, introducing broker, commodity trading
advisor, commodity pool operator, floor broker, leverage transaction merchant,
any other person regulated by the Commodity Futures Trading Commission or an
associated person of any of the foregoing, or as an investment adviser,
underwriter, broker or dealer in securities, or as an affiliated person,
director or employee of any investment company, bank, savings and loan
association or insurance company, or engaging in or continuing any conduct or
practice in connection with such activity;
(ii)
Engaging in any type of business practice; or
(iii)
Engaging in any activity in connection with the purchase or sale of any security
or commodity or in connection with any violation of federal, state or other
securities laws or commodities laws.
(4) any
order, judgment or decree, not subsequently reversed, suspended or vacated, of
any federal, state or local authority barring, suspending or otherwise limiting
for more than 60 days the right of such person to engage in any activity
described in the preceding sub-paragraph, or to be associated with persons
engaged in any such activity;
(5) a finding
by a court of competent jurisdiction in a civil action or by the SEC to have
violated any securities law, regulation or decree and the judgment in such civil
action or finding by the SEC has not been subsequently reversed, suspended or
vacated; or
(6) a finding
by a court of competent jurisdiction in a civil action or by the Commodity
Futures Trading Commission to have violated any federal commodities law, and the
judgment in such civil action or finding by the Commodity Futures Trading
Commission has not been subsequently reversed, suspended or
vacated.
(r) Except
for the consent and approval of the Board of Directors of Company, no consents
or approvals of, or filings or registrations with, any third party or any public
body or authority are necessary in connection with (i) the execution and
delivery by Company of this Agreement and (ii) the consummation by Company and
Black of the transactions contemplated hereby.
(s) The
execution and delivery by Company and Black of this Agreement, the consummation
and performance of the transactions herein contemplated, and compliance with the
terms of this Agreement by Company will not conflict with, result in a breach
of, or constitute a default under any indenture, mortgage, deed of trust or
other agreement, instrument or Contract to which Company is now a party or by
which it or any of its assets or properties is bound or the Articles of
Incorporation, as amended, or the bylaws of Company, in each case as amended, or
any law, order, rule or regulation, writ, injunction, judgment or decree of any
government, governmental instrumentality or court, domestic or foreign, having
jurisdiction over Company or any of its business or properties, which conflict,
breach or default could reasonably be expected to have a Material Adverse Effect
on the Company.
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2.2
Representations and
Warranties of the Buyer. The Buyer hereby represents and warrants
to the Sellers as follows:
(a) Organization;
Authority. The Buyer has the requisite power and authority to enter
into and to consummate the transactions contemplated by the Transaction
Documents and otherwise carry out its obligations thereunder. The purchase
by Buyer of the securities hereunder has been duly authorized by all necessary
action on the part of such Buyer. This agreement has been duly executed by
the Buyer, and when delivered to the Seller in accordance with the terms
thereof, will constitute the valid and legally binding obligation of such Buyer,
enforceable against it in accordance with its terms.
(b) Exempt
Transaction. Buyer understands that the offering and sale of
the Shares is intended to be exempt from registration under the Securities Act
of 1933, as amended (the “Act”) and exempt from registration or qualification
under any state law.
(c) Shares. The Shares to
be purchased by Buyer hereunder will be acquired for investment for Buyer’s own
account, not as a nominee or agent, and not with a view to the public resale or
distribution thereof, and Buyer has no present intention of selling, granting
any participation in, or otherwise distributing the same.
(d) Information Concerning the
Company. Buyer has conducted its own due diligence with
respect to the Company and its liabilities and believes it has enough
information upon which to base an investment decision in the
Shares.
(e) Investment
Experience. The Buyer understands that purchase of the Shares
involves substantial risk. The Buyer:
(i) has
experience as a purchaser in securities of companies in the development stage
and acknowledges that he can bear the economic risk of Buyer’s investment in the
Shares; and,
(ii) has such
knowledge and experience in financial, tax, and business matters so as to enable
Buyer to evaluate the merits and risks of an investment in the Shares, to
protect Buyer’s own interests in connection with the investment and to make an
informed investment decision with respect thereto.
(f) Restricted
Securities. Buyer understands that the Shares are characterized as
“restricted securities” under the Act inasmuch as they were acquired from the
Company in a transaction not involving a public offering.
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Article
III
Other
Agreements of the Parties
3.1
Payment of All
Outstanding Liabilities. As a condition to closing, the Seller
hereby agree and confirm that they shall pay all balances due on all accounts,
notes, invoices, or other agreements to which the Company may be liable, and
that on the Closing Date, the Company shall have no such balances
due.
3.2
Indemnification.
The Sellers hereby agree to indemnify and hold Buyers harmless for any acts,
instances, occurrences or other matters whatsoever that may now or in the future
create any liability for the Company or Buyers that arises from acts or
omissions on the part of Sellers prior to the Closing Date.
Article
IV
Miscellaneous
4.1
Entire
Agreement. This Agreement and any other writings referred to herein
or delivered pursuant hereto which form a part hereof contain the entire
agreement among the parties with respect to the subject matter hereto and
supersedes all prior and contemporaneous arrangements or understandings with
respect thereto.
4.2
Notices.
All notices, request, consents and other communications hereunder to any party
shall be deemed to be sufficient if contained in writing delivered in person or
sent by facsimile, nationally recognized overnight courier or first-class
register or certified mail, return receipt requested, postage prepaid, addressed
to such party at the address set forth below were such other addresses may
hereafter be designated in writing by such party to the other
parties:
(I) if to
Sellers, to:
Xxxxxxx
X. Black
000 Xxxxx
Xxx 00xx Xx
Xxxxxxx,
XX 00000
Tel:
(000) 000-0000
With a copy to (which shall
not constitute notice):
Xxxxxx
& Xxxxxx LLP
Attn:
Xxxxx X. Xxxxxx, Esq.
000 Xxxxx
0 Xxxxx, Xxxxx 000
Xxxxxxxxx,
XX 00000
Tel:
(000) 000-0000
Fax:
(000) 000-0000
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(II) if
to Buyers, to:
Xxxx
Xxxxxxx
Global
Gaming Factory X AB
Xxx
00000
00000
Xxxxxxxxx
XXXXXX
With a
copy to (which shall not constitute notice):
Law
Office of Xxxxxx X. Xxxxx, P.A.
Westin
Executive Offices
0000 Xxxx
Xxxxxx
Xxxxxx,
Xxxxxxx 00000
Attn:
Xxxxxx X. Xxxxx, Esq.
All such
notices, request, consents and other communications shall be deemed to have been
delivered (a) in the case of personal delivery or delivery by facsimile, on the
date of such delivery, (b) in the case of dispatch by nationally recognized
overnight courier, on the next business day following such dispatch and (c) in
the case of mailing, on the date of receipt.
4.3
Amendments. The
terms and provisions of this Agreement may not be modified or amended, nor may
any of the provisions hereof be waived, temporarily or permanently, except
pursuant to a written instrument executed by each of the parties
hereto.
4.4
Counterparts.
This agreement may be executed in any number of counterparts, and each such
counterpart hereof shall be deemed to be an original instrument, all such
counterparts together shall constitute but one agreement. Fax and PDF copies
shall be deemed originals for all purposes.
4.5
Headings.
The headings in the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed part of this
Agreement.
4.6
Validity.
If any provision of this agreement is held to the legal, invalid or
unenforceable under any present or future law, and if the rights or obligations
of any party hereto in this agreement will not be materially or adversely
affected thereby, (a) such provision will be fully severable, (b) this Agreement
will be construed and forest as a such illegal, invalid or unenforceable
provision had never comprise a party or off, and (see) the remaining provisions
of this Agreement will remain in full force and effect will not be affected by
the illegal, invalid or unenforceable provision or bite severance here
from.
4.7 Governing Law.
This Agreement shall be governed by and construed in accordance with laws of the
State of Florida without regard to conflict of law provisions. Each party
hereby irrevocably submits to the exclusive jurisdiction of the state and
federal courts sitting in the County of Miami-Dade, Florida, for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein, and hereby irrevocably
waives and agrees not to assert any suit, action or proceeding, any claim that
is not personally subject to the jurisdiction of any such court, that such suit,
action or proceeding is improper.
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4.8 No Third Party
Beneficiaries. Nothing in this agreement shall confer any rights
upon any person or entity that is not a party or permitted assignee of the party
to this agreement.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
their respective duly authorized signatories all as of the day and year first
written above.
SELLERS
/s/ Xxxxxxx X.
Black
Business
Marketing Services, Inc.
By:
Xxxxxxx X. Black, President
/s/
Xxxxxxx X.
Black
Xxxxxxx
X. Black, individually
BUYER
/s/ Xxxx
Xxxxxxx
Xxxx
Xxxxxxx
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