Exhibit 2.3
EXCHANGE AGREEMENT
by and among
THE XXXXXXX X. XXXXXX REVOCABLE LIVING TRUST, dated April 23, 1987,
XXXXXXX X. XXXXXX and
GAMECO, INC.
February 22, 2002
Exchange Agreement Page 1 of 19
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT ("Agreement") dated as of this 22/nd/ day of
February, 2002, is entered into by and among THE XXXXXXX X. XXXXXX REVOCABLE
LIVING TRUST, dated April 23, 1987 ("REJ"), XXXXXXX X. XXXXXX, an individual
resident of the State of Florida ("JPJ"), and GAMECO, INC., a Delaware
corporation ("Gameco").
RECITALS:
A. REJ is the record and beneficial owner of fifty percent (50%) of the
membership interests (the "REJ Ownership Interests") of Diversified
Opportunities Group Ltd., an Ohio limited liability company ("DOGL");
B. REJ is the record and beneficial owner of fifty percent (50%) of the
issued and outstanding shares (the "REJ Shares") of JALOU II INC., a Louisiana
corporation ("JALOU II");
C. REJ is the record and beneficial owner of one percent (1%) of the
membership interests in CD Entertainment, Ltd., an Ohio limited liability
company (the "CD Interests");
D. REJ is the record and beneficial owner of one percent (1%) of the
membership interests in BH Entertainment, Ltd., an Ohio limited liability
company (the "BH Interests")
X. Xxxxxx Entertainment Ltd., an Ohio limited liability company
("Entertainment"), wholly owned by JPJ or entities wholly controlled by him, is
the record and beneficial owner of fifty percent (50%) of the membership
interests of DOGL (the "Entertainment Ownership Interests") (the Entertainment
Ownership Interests together with the REJ Ownership Interests represent all of
the membership interests of DOGL);
F. JPJ is the record and beneficial owner of fifty percent (50%) of the
issued and outstanding shares (the "JPJ Shares") of JALOU II;
G. JPJ is the record and beneficial owner of one hundred percent (100%) of
Xxxxxx Entertainment, Inc., an Ohio corporation;
H. REJ desires to transfer to Gameco, and Gameco agrees to accept and
acquire from REJ: (i) all of the REJ Ownership Interests; (ii) the REJ Shares;
(iii) the CD Interests; and (iv) the BH Interests, all in partial satisfaction
of the subscription agreement entered into by REJ under which Gameco issued to
REJ seven hundred fifty (750) shares of its common stock (the "REJ Gameco
Shares");
I. JPJ desires to transfer to Gameco, and Gameco agrees to accept and
acquire from JPJ: (i) all of the membership interests of Entertainment (the
"Entertainment Membership Interests"); and (ii) the JPJ Shares, and to cause the
merger of Xxxxxx Entertainment, Inc. with Gameco, all in partial satisfaction of
the subscription agreement entered into by JPJ under which Gameco issued to JPJ
seven hundred fifty (750) shares of its common stock (the "JPJ Gameco Shares");
Exchange Agreement Page 2 of 19
J. REJ and JPJ desire to amend the DOGL operating agreement as provided in
this Agreement; and
K. This Agreement is executed by REJ and JPJ, in part, to fulfill their
obligations under the subscription agreements entered into by REJ and JPJ as
part of the formation of Gameco.
NOW, THEREFORE, in consideration of the mutual promises and
representations, warranties, covenants and agreements hereinafter set forth and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, REJ, JPJ and Gameco agree as follows:
ARTICLE I
EXCHANGE OF OWNERSHIP INTERESTS AND SHARES
1.1 Exchange of REJ Ownership Interests and REJ Shares. At the Closing (as
--------------------------------------------------
hereinafter defined), REJ shall assign, transfer, convey and deliver to Gameco,
and Gameco shall acquire and accept from REJ: (i) the REJ Ownership Interests;
(ii) the REJ Shares; (iii) the CD Interests; and (iv) the BH Interests, each
free and clear of all liens, pledges, charges, claims, rights of third parties
and other encumbrances of any nature (collectively, the "Liens").
1.2 Exchange of Entertainment Membership Interests and JPJ Shares. At the
-------------------------------------------------------------
Closing, JPJ shall assign, transfer, convey and deliver to Gameco, or caused to
be assigned, transferred, conveyed and delivered to Gameco, and Gameco shall
acquire and accept from JPJ, or entities controlled by him: (i) the
Entertainment Membership Interests; and (ii) the JPJ Shares, each free and clear
of all Liens.
1.3 Amount and Form of Consideration. The consideration for the transfer of
--------------------------------
the REJ Ownership Interests, the REJ Shares, the CD Interests, the BH Interests,
the Entertainment Membership Interests and the JPJ Shares to, and the merger of
Xxxxxx Entertainment, Inc. with, Gameco by REJ and JPJ, respectively, shall
consist of the following:
1.3.1 the issuance by Gameco of the REJ Gameco Shares to REJ; and
1.3.2 the issuance by Gameco of the JPJ Gameco Shares to JPJ. The
parties acknowledge and agree that one (1) of the JPJ Gameco Shares shall
represent the consideration paid by Gameco to JPJ for its merger with Xxxxxx
Entertainment, Inc.
1.4 Closing Delivery of Documents and Other Actions.
-----------------------------------------------
1.4.1 Deliveries by REJ to Gameco. At the Closing, REJ shall deliver or
---------------------------
cause to be delivered to Gameco: (i) a validly executed assignment transferring
the REJ Ownership Interests, the CD Interests and the BH Interests; and (ii) a
validly executed irrevocable stock power transferring the REJ Shares.
1.4.2 Deliveries by JPJ to Gameco. At the Closing, JPJ shall deliver or
---------------------------
cause to be delivered to Gameco: (i) a validly executed irrevocable stock power
transferring the JPJ
Exchange Agreement Page 3 of 19
Shares; (ii) a validly executed assignment transferring the Entertainment
Membership Interests; and (iii) the merger agreement between Xxxxxx
Entertainment, Inc. and Gameco, attached hereto as Exhibit A and incorporated by
reference herein.
1.5 Closing. The term "Closing" shall mean that date and time Gameco shall
-------
receive the proceeds, following their release from any escrow(s), of those
certain Senior Secured Notes, due 2009, and more completely described in the
Offering Memorandum dated January 15, 2002 (the "Notes"). In the event that the
Notes are not issued for any reason, this Agreement shall become null and void
and of no further force and effect.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF GAMECO
2.1 Representations and Warranties of Gameco. As an inducement to each of
----------------------------------------
REJ and JPJ to enter into this Agreement and to consummate the transactions
contemplated hereby, Gameco hereby represents and warrants to each of REJ and
JPJ as follows:
2.1.1 Organization and Existence. Gameco is a corporation duly
--------------------------
organized, validly existing and in good standing under the laws of the State of
Delaware and has full corporate power and authority to own, lease and operate
its properties and to carry on its business as now conducted and as presently
proposed to be conducted.
2.1.2. Authorization and Execution. Gameco has full corporate power and
---------------------------
authority to execute and deliver this Agreement and each other agreement,
document, instrument or certificate contemplated by this Agreement to which
Gameco is a party (all such other agreements, documents, instruments and
certificates being hereinafter referred to, collectively, as the "Gameco
Documents"), and to perform fully its obligations hereunder and thereunder. The
execution, delivery and performance by Gameco of this Agreement and each of the
Gameco Documents have been duly authorized by all necessary corporate action on
the part of Gameco. This Agreement and each of the Gameco Documents have been
duly executed and delivered by Gameco and this Agreement and each of the Gameco
Documents constitute legal, valid and binding obligations of Gameco, enforceable
against Gameco in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization or moratorium laws and other
laws of general application affecting the enforcement of creditors' rights.
2.1.3 Common Stock of Gameco. Upon issuance and delivery of
----------------------
certificates representing the REJ Gameco Shares and the JPJ Gameco Shares to REJ
and JPJ, respectively, the REJ Gameco Shares and the JPJ Gameco Shares will be
duly authorized, validly issued, fully paid and nonassessable by Gameco. The REJ
Gameco Shares and the JPJ Gameco shares have been issued in compliance with all
applicable federal and state securities laws. Upon consummation of the
transactions contemplated by this Agreement and except for the REJ Gameco Shares
and the JPJ Gameco Shares, there are no other shares of capital stock of Gameco
outstanding (excluding only those shares previously issued to REJ and JPJ in
equal proportion, if any) and there are no securities convertible into, or
rights to subscribe for or to purchase, or any options or warrants for the
purchase of, or any agreement or arrangement providing for the
Exchange Agreement Page 4 of 19
issuance, purchase or transfer (contingent or otherwise) of, or any actions
relating to, any capital stock of Gameco.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF REJ AND JPJ
3.1 Representations and Warranties of REJ and JPJ. As an inducement to
---------------------------------------------
Gameco to enter into this Agreement and to consummate the transactions
contemplated hereby, REJ and JPJ, severally and not jointly, hereby represent
and warrant as follows:
3.1.1 Authorization and Execution. Each of REJ and JPJ has full
---------------------------
power, authority and capacity to execute and deliver this Agreement and each
other agreement, document, instrument or certificate, or cause the same to be
delivered, each as contemplated by this Agreement to which it is a party (all of
such agreements, documents, instruments and certificates being hereinafter
referred to, collectively, as the "Investor Documents"), and to perform its
obligations hereunder and thereunder. This Agreement and each Investor Document
have been duly executed and delivered by each of REJ and JPJ, or their
wholly-owned affiliates, and this Agreement and each Investor Document
constitutes the legal, valid and binding obligations of each of REJ and JPJ, or
their wholly-owned affiliates, enforceable against each in accordance with its
terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization or moratorium laws and other laws of general application
affecting the enforcement of creditors' rights.
ARTICLE 4
COVENANTS
4.1 Covenants of All Parties.
------------------------
4.1.1 Further Assurances. Each party hereto, at the request of any
------------------
other party hereto, at or after the Closing, shall, without further
consideration, promptly execute and deliver, or cause to be executed and
delivered, to such requesting party such deeds, assignments, bills of sale,
consents and other instruments in addition to those required by this Agreement,
in form and substance reasonably satisfactory to the requesting party, and take
all such other actions, as the requesting party may reasonably deem necessary or
desirable to implement any provision of this Agreement.
4.2 Covenants of Gameco.
-------------------
4.2.1 Access, Etc. Gameco, at the request of REJ or JPJ, at or after
-----------
the Closing, shall, without further consideration, permit REJ or JPJ and their
respective authorized representatives to have reasonable access to the books and
records DOGL or any of its subsidiaries or affiliates in connection with any
legal proceeding against or governmental investigation of REJ or JPJ or in
connection with any tax preparation or examination of REJ or JPJ.
Exchange Agreement Page 5 of 19
ARTICLE 5
MISCELLANEOUS
5.1 Notices. All notices and other communications under this Agreement
-------
shall be in writing and shall be deemed to have been given (i) three business
(3) days after mailing if sent by registered mail, postage prepaid, return
receipt requested, (ii) on receipt if delivered personally, (iii) the business
day after delivery to an overnight national express courier service, or (iv)
immediately if given by confirmed facsimile during normal business hours on a
business day. The addresses and fax numbers of the parties for purposes of this
Agreement are:
If to : with a copy to:
Gameco, Inc. Xxxxx & Xxxxxxxxx LLP
000 Xxxx Xxxxxx 0000 Xxxx Xxxxx Xxxxxx 0000 Xxxxxxxx Xxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxxx 00000 Xxxxxxxxx, Xxxx 00000
Fax: 000-000-0000 Fax.: 000-000-0000
Attn.: Chief Financial Officer Attn.: Xxxxxx Xxxxxx
If to The Xxxxxxx X. Xxxxxx Revocable Trust: with a copy to:
The Xxxxxxx X. Xxxxxx Group Xxxxx & Xxxxxxxxx LLP
00000 Xxxxxx Xxxxx Xxxx 0000 Xxxxxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000 0000 Xxxx Xxxxx Xxxxxx
Fax: 000-000-0000 Xxxxxxxxx, Xxxx 00000
Attn.: ___________________________ Fax.: 000-000-0000
Attn: Xxxx X. Xxxxxxxx, Esq.
If to Xxxxxxx X. Xxxxxx: with a copy to:
Xxxxxx Investments Management Co., Inc. Xxxx Xxxxxx & Parks LLP
0000 X. XX Xxxxxxx Xxx #000 3300 BP Tower
Jupiter, Florida 33477 000 Xxxxxx Xxxxxx
Fax: 000-000-0000 Xxxxxxxxx, Xxxx 00000
Attn: Xxxxxxx X. Xxxxxx Fax: 000-000-0000
Attn.: Xxxxxxx X. Xxxxxxxx, Esq.
5.2. Binding Effect. This Agreement shall be binding upon and inure to
--------------
the benefit of the parties and their respective successors, assigns, heirs,
trustees, successor trustees and personal representatives.
5.3 Third Party Beneficiaries. Nothing in this Agreement is intended or
-------------------------
shall be construed to confer on any person other than the parties any rights or
benefits hereunder.
5.4 Survival of Representations and Warranties. The representations and
------------------------------------------
warranties
Exchange Agreement Page 6 of 19
of the parties contained in this Agreement shall survive the execution and
delivery hereof and the consummation of the transactions contemplated hereby for
an indefinite period.
5.5 Headings; Number and Gender. The headings in this Agreement are
---------------------------
intended solely for convenience of reference and shall be given no effect in the
construction or interpretation of this Agreement. Where the context requires,
the use of the singular form herein shall include the plural, the use of the
plural shall include the singular, and the use of any gender shall include any
and all genders.
5.6 Counterparts; Effectiveness. This Agreement may be executed in
---------------------------
multiple counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same document.
5.7 Governing Law; Consent to Jurisdiction. This Agreement shall be
--------------------------------------
governed by and construed in accordance with the laws of the State of Ohio
applicable to agreements made in and to be wholly performed in such state. Any
action or proceeding, however characterized, relating to or arising out of this
Agreement, or in connection with the subject matter hereof shall be maintained
in the state or federal courts located in the County of Cuyahoga and State of
Ohio, and the parties hereto, each for itself, its successors, assigns, heirs,
trustees, successor trustees and personal representatives hereby irrevocably
submits to the jurisdiction of the courts of the State of Ohio and the Courts of
the United States of America sitting in the County of Cuyahoga, the State of
Ohio for the purposes of any such action or proceeding and irrevocable agrees to
be bound by any judgment rendered thereby in connection with this Agreement.
5.8 Waivers. Compliance with the provisions of this Agreement may be
-------
waived only by a written instrument specifically referring to this Agreement and
signed by the party waiving compliance. No course of dealing, nor any failure or
delay in exercising any right, shall be construed as a waiver, and no single or
partial exercise of a right shall preclude any other or further exercise of that
or any other right.
5.9 Expense. Each party shall bear all of its own fees and expenses
-------
(including, without limitation, fees and disbursements of counsel, accountants
and other experts) incurred by them in connection with the preparation,
negotiation, execution, delivery, performance and enforcement of this Agreement
and each of the other documents and instruments executed in connection with or
contemplated by this Agreement.
5.10 Severability. The invalidity or unenforceability of any provision
------------
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, each of which shall remain in full force and
effect.
5.11 Amendment. No amendment of this Agreement shall be binding unless
---------
made in a written instrument that specifically refers to this Agreement and is
signed by all of the parties hereto.
Exchange Agreement Page 7 of 19
5.12 Entire Agreement. This Agreement (together with the Exhibits
----------------
hereto) is the exclusive statement of the agreement among the parties hereto
concerning the subject matter hereof. All negotiations, disclosures, discussions
and investigations relating to the subject matter of this Agreement are merged
into the Agreement and there are no representations, warranties, covenants,
understandings, or agreements, oral or otherwise, relating to the subject matter
of the Agreement, other than those included herein.
[signature page to follow]
Exchange Agreement Page 8 of 19
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
THE XXXXXXX X. XXXXXX
REVOCABLE LIVING TRUST, dated
April 23, 1987
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxxxx X. Xxxxxx
By: ________________________________ _____________________________________
Xxxxxxx X. Xxxxxx, Trustee XXXXXXX X. XXXXXX, an individual
GAMECO, INC., a Delaware corporation
/s/ Xxxxxxx X. Xxxxxx
By: _________________________________
Xxxxxxx X. Xxxxxx, President
Exchange Agreement Page 9 of 19
EXHIBIT A
(Merger Agreement)
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement") is made and
---------
entered into this __ day of February, 2002, by and between GAMECO, INC., a
Delaware corporation ("GAMECO"), and XXXXXX ENTERTAINMENT, INC., an Ohio.
------
corporation ("JEI").
---
ARTICLE 1
RECITALS
A. JEI desires to be merged into GAMECO and upon such merger to be
extinguished and to have its existence as a separate entity
terminated; and
B. GAMECO desires to merge with JEI and to be the surviving entity
following such merger.
NOW, THEREFORE, in consideration of the mutual covenants, promises and
representations contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. RECITALS: The foregoing recitals are incorporated herein as if fully
rewritten herein.
2. MERGER:
a. On the Effective Date (as hereinafter defined), pursuant to the
terms and conditions contained in this Agreement: (i) JEI will be
merged into GAMECO; (ii) the separate existence of JEI shall
cease; (iii) GAMECO shall continue in existence; and (iv) such
merger shall in all respects have the effect provided for in
Sections 251, et seq. of the Delaware General Corporation Law,
including, but not limited to, Section 252 of the same, as well
as Sections 1701.01, et seq. of the Ohio Revised Code, including,
but not limited to, Section 1701.79.
b. Prior to, from and after the Effective Date, JEI and GAMECO shall
take all actions as shall be necessary or appropriate in order to
effectuate the merger. If at any time after the Effective Date
GAMECO shall determine or be advised that any further
assignments, documents, agreements, instruments, conveyances or
assurances are necessary or desirable to effect the merger
contemplated herein, the duly authorized officers or directors of
GAMECO shall be and are hereby authorized on behalf of JEI to
execute and deliver any such assignments, documents, agreements,
instruments, conveyances or
Exchange Agreement Page 10 of 19
assurances in the name, place and stead of JEI to be wholly
binding upon JEI and to do all things and take any actions
necessary and proper to carry out the terms and conditions
hereof.
2. TERMS OF MERGER: On the Effective Date:
a. Each share of JEI common stock issued and outstanding immediately
prior to the merger shall be converted into and become one (1)
share of GAMECO; and each share of JEI common stock unissued or
held in the treasury of JEI shall be deemed cancelled, and no
shares of GAMECO shall be issued for such unissued or treasury
stock.
b. JEI represents and warrants that: (i) there shall exist one
shareholder of JEI common stock, to-wit; Xxxxxxx X. Xxxxxx; (ii)
there shall be no other shares of JEI stock issued, authorized or
outstanding other than common stock; and (iii) there shall exist
no options, warrants or conversion rights attached to or
regarding any JEI common stock.
c. JEI shall cause Xxxxxxx X. Xxxxxx to deliver certificates
representing the outstanding common stock of JEI to GAMECO duly
marked as "cancelled". Until delivery of the foregoing
certificates, each such certificate issued prior to the Effective
Date representing common shares of JEI shall be deemed and
treated for all purposes, on and after the effective date, as
representing one (1) share of GAMECO common stock.
d. Immediately upon delivery of the certificates representing JEI
common stock, GAMECO shall deliver to Xxxxxxx X. Xxxxxx a
certificate for 1 share of common stock in GAMECO to be duly
issued and delivered to Xxxxxxx X. Xxxxxx or his designee.
3. CERTIFICATE OF INCORPORATION AND BY-LAWS: From and after the Effective
Date and until thereafter amended or modified by law, the Certificate
of Incorporation and By-laws of GAMECO, as in effect immediately
preceding the Effective Date, shall be and remain the Certificate of
Incorporation and By-Laws of the surviving corporation: GAMECO.
4. DIRECTORS AND OFFICERS: The persons who are the duly elected and
appointed directors and officers of GAMECO immediately preceding the
merger shall continue as the directors and officers of GAMECO
following the merger and shall hold their respective offices as
provided in the Certificate of Incorporation and By-laws of GAMECO.
5. STOCKHOLDER APPROVAL, EFFECTIVE DATE:
a. By their signatures below, the undersigned, being all of the
shareholders and directors of GAMECO and JEI, respectively, do
herewith approve and adopt
Exchange Agreement Page 11 of 19
this Agreement for and on behalf of themselves, individually, and
on behalf of their respective corporations.
b. The undersigned shareholders and directors do herewith authorize
Xxxxxxx X. Xxxxxx, as a director and president of both GAMECO and
JEI, to execute this Agreement on behalf of each of GAMECO and
JEI, individually, and to further execute the certificates of
merger, attached hereto as Exhibits A and B, on behalf of each of
GAMECO and JEI (collectively "Certificates").
------------
c. The undersigned shareholders and directors, by their signatures
hereon, do herewith authorize Xxxxxxx X. Xxxxxx, as a director
and president of both GAMECO and JEI, to execute such additional
documents and instruments as may be necessary, in his sole
discretion, to implement and carry out the merger contemplated by
this Agreement and to do and take all such other actions as may
be necessary to carry out the other terms and conditions of this
Agreement.
d. The undersigned shareholders and directors agree that any third
party may rely upon the representations contained in this Section
6 without further action of either GAMECO or JEI and that the
power and authority granted herein shall remain in full force and
effect notwithstanding the death or incapacitation of any
signatory hereto.
e. The undersigned do herewith waive any requirements of notice and
a meeting prior to the effectiveness of the merger contemplated
herein.
f. The "Effective Date", as used in this Agreement, shall be the __
day of February, 2002.
g. Upon or following the Effective Date, as shall be appropriate in
his sole judgment, Xxxxxxx X. Xxxxxx shall cause the Certificates
to be duly executed and filed with the appropriate state
officials.
h. The directors of each of GAMECO and JEI may abandon this
Agreement prior to the Effective Date, in writing, without the
approval of the undersigned shareholders.
6. CONSENT TO SERVICE AND IRREVOCABLE APPOINTMENT OF STATUTORY AGENT:
GAMECO herewith consents to be sued and served with process in the
State of Ohio. Further, subject to Section 8 below, GAMECO does
herewith irrevocably appoint the Secretary of State for the State of
Ohio as its agent to accept service of process in any proceeding in
the State of Ohio if: (a) the agent appointed pursuant to Section 8
below cannot be found; (b) GAMECO fails to designate another agent
when required to do so; or (c) GAMECO's license or registration to do
business in Ohio expires or is canceled.
Exchange Agreement Page 12 of 19
7. APPLICATION OF GAMECO TO TRANSACT BUSINESS WITHIN THE STATE OF OHIO:
On the Effective Date, GAMECO shall, as part of its merger
certificate, make application to conduct business as a foreign
corporation within the State of Ohio. GAMECO does herewith appoint:
HL Statutory Agent, Inc.
0000 XX Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
to serve as its statutory agent for the service of any process, notice
or demand within the State of Ohio.
8. ADDRESS OF SURVIVING CORPORATION: The address, in the State of
Delaware, of GAMECO following the Effective Date shall be:
GAMECO, INC.,
The Corporation Trust Center
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
and GAMECO's statutory agent at such location shall be:
The Corporation Trust Company.
9. MISCELLANEOUS:
a. Amendments; Waiver: This Agreement may not be modified or amended
except by written instrument executed by all parties. No waiver
of any provision or condition hereof shall be effective unless
evidenced by an instrument, in writing, duly executed by the
party granting such waiver. No delay on the part of any party in
exercising any right, power or privilege hereunder shall operate
as a waiver thereof.
b. Binding Effect: This Agreement shall be binding upon and inure to
the benefit of the parties and their respective heirs, personal
representatives, executors, administrators, successors and
assigns. Anything herein to the contrary notwithstanding, the
parties hereto acknowledge that the foregoing is intended to be
for the benefit of the parties and their respective heirs,
personal representatives, executors, administrators, successors
and assigns, and except for the foregoing, no third party shall
be entitled to any rights, benefits or privileges with respect
hereto.
c. Heading: The headings used herein are for convenience of
reference only and do not form a part hereof and do not in any
manner modify, interpret or set forth the intentions of the
parties.
Exchange Agreement Page 13 of 19
d. Exhibits: The exhibits attached to and referenced in this
Agreement are a part of this Agreement as if fully rewritten
herein.
e. Entire Agreement: This Agreement and the Exhibits attached hereto
contain the entire agreement between the parties with respect to
the transactions and merger contemplated herein and supercede all
previous written or oral negotiations, commitments or writings.
f. Counterparts: This Agreement may be executed in one or more
counterparts, each of which when executed and delivered shall
constitute one and the same original.
g. Governing Law: This Agreement shall be governed by and construed
under the internal laws of the State of Delaware and where
applicable the laws of the State of Ohio. In the event of a
conflict between the laws of the States of Delaware and Ohio, the
laws of the State of Delaware shall be controlling.
IN WITNESS WHEREOF, the parties have caused their authorized representatives to
execute this Agreement as of the date first written above.
Witnesses: "GAMECO"
GAMECO, INC., a Delaware corporation
________________________________ By:_______________________________
Printed Name:___________________ Xxxxxxx X. Xxxxxx, President
________________________________
Printed Name:___________________
As to Sections 4, 5 and 6:
by its directors:
________________________________ __________________________________
Printed Name:___________________ Xxxxxxx X. Xxxxxx, Director
________________________________
Printed Name:___________________
Exchange Agreement Page 14 of 19
and:
________________________________ __________________________________
Printed Name:___________________ Xxxxxxx X. Xxxxxx, Director
________________________________
Printed Name:___________________
and by its shareholders:
________________________________ __________________________________
Printed Name:___________________ Xxxxxxx X. Xxxxxx
________________________________
Printed Name:___________________
The Xxxxxxx X. Xxxxxx Revocable
Living Trust, dated April 23, 1987
________________________________ By:_______________________________
Printed Name:___________________ Xxxxxxx X. Xxxxxx, Trustee
________________________________
Printed Name:___________________
"JEI"
Xxxxxx Entertainment, Inc., an Ohio
corporation
________________________________ By:_______________________________
Printed Name:___________________ Xxxxxxx X. Xxxxxx, President
________________________________
Printed Name:___________________
Exchange Agreement Page 15 of 19
As to Sections 4, 5 and 6:
by its sole director:
________________________________ __________________________________
Printed Name:___________________ Xxxxxxx X. Xxxxxx, Director
________________________________
Printed Name:___________________
and by its shareholder:
________________________________ __________________________________
Printed Name:___________________ Xxxxxxx X. Xxxxxx
STATE OF ______________ )
) ss.
COUNTY OF____________ )
BEFORE ME a notary public in and for the aforesaid County and State,
did personally appear XXXXXXX X. XXXXXX, who did execute the foregoing Agreement
and Plan of Merger for himself individually, and as: (i) the President, Director
and a shareholder of Gameco, Inc., a Delaware corporation; and (ii) the
President, Director and shareholder of Xxxxxx Entertainment, Inc., an Ohio
corporation, and did acknowledge that such act was his free act and deed,
individually, and as such President, Director and shareholder of each of Gameco,
Inc. and Xxxxxx Entertainment, Inc.
In witness whereof, I have hereunto subscribed my name this __ day of
February, 2002, at the City of _________________, State of ____________________.
____________________________________
Notary Public
STATE OF ______________ )
) ss.
COUNTY OF____________ )
Exchange Agreement Page 16 of 19
BEFORE ME a notary public in and for the aforesaid County and State, did
personally appear XXXXXXX X. XXXXXX, who did execute the foregoing Agreement and
Plan of Merger for himself as Trustee of the Xxxxxxx X. Xxxxxx Revocable Living
Trust, dated April 23, 1987, and individually, and did acknowledge that such act
was his free act and deed, individually, and as such Trustee.
In witness whereof, I have hereunto subscribed my name this __ day of
February, 2002, at the City of _________________, State of ____________________.
___________________________________
Notary Public
Exchange Agreement Page 17 of 19
EXHIBIT A
[Certificate of Merger - Delaware]
CERTIFICATE OF OWNERSHIP AND MERGER
[Pursuant to Section 252 of the Delaware General Corporation Law]
GAMECO, INC., a Delaware corporation (the "Corporation"), does hereby certify:
FIRST: That the Corporation was incorporated and duly organized pursuant to
the General Corporation Law of the State of Delaware.
SECOND: That Xxxxxx Entertainment, Inc. ("JEI") was incorporated and duly
organized pursuant to the Revised Code of the State of Ohio.
THIRD: That the Corporation shall be the surviving corporation and that its
duly registered name is: GAMECO, INC.
FOURTH: That an Agreement and Plan of Merger (the "Agreement") has been
approved, adopted, certified, executed and acknowledged by each of
the Corporation and JEI in accordance with Section 252 of the General
Corporation Law of the State of Delaware.
FIFTH: That the Agreement is on file at the offices of the Corporation,
within the State of Delaware and located at: The Corporation Trust
Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
SIXTH: That a copy of the Agreement will be furnished by the Corporation
upon request by and without cost to any stockholder of JEI.
SEVENTH: That prior to the effective date of the merger, as defined in the
Agreement, the authorized capital stock of JEI was EIGHT HUNDRED
FIFTY (850) shares of common stock each being without par value.
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
signed by its duly authorized president, this __ day of February,
2002.
GAMECO, INC.,
a Delaware corporation
By:_________________________
Xxxxxxx X. Xxxxxx, President
Exchange Agreement Page 18 of 19
EXHIBIT B
[Certificate of Merger - Ohio
Exchange Agreement Page 19 of 19
