PROFIT INTEREST AGREEMENT
Exhibit 10.12
THIS
PROFIT INTEREST AGREEMENT (the “Agreement”) is entered into as of February 2,
2010 by and between Well
Mount International
Limited at P.
O. Box 957, Offshore Incorporations Centre, Road Town, Tortola, British Virgin
Islands, a company incorporated in the British Virgin Islands with limited
liability (the “Buyer”); and Doowell Limited at P. O. Box 957, Offshore
Incorporations Centre, Road Town, Tortola, British Virgin Islands, a company
incorporated in the British Virgin Islands with limited liability and is
principally engaged in the junket representative business (the
“Seller”).
WITNESSETH:
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A.
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The
Seller owns the right, title, interest and benefits in and to 100% of the
Profit, being the Net Operating Profit generated by the Seller at the VIP
Club located at Lvegas Casino (“Casino”) at T.H.E. Hotel in Jeju (the
“Interest”).
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B.
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The
Seller, as the sole legal and beneficial owner of the Interest, desires to
sell and/or assign the Interest to the Buyer and the Buyer desires to buy
from the Seller the Interest pursuant to the terms and subject to the
conditions set forth in this
Agreement.
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AGREEMENT
In
consideration of the foregoing and the mutual understanding contained herein,
the parties agree as follows:
1. PURCHASE AND SALE OF INTEREST.
Upon the terms and subject to the conditions set forth in this Agreement, the
Seller hereby irrevocably agrees to sell, assign and convey the Interest to the
Buyer, and the Buyer hereby agrees purchase, obtain and acquire the Interest
from the Seller.
2. NET OPERATING PROFIT. The Net
Operating Profit generated by the Seller at the VIP Club located at the Casino
is arrived at by the calculation of deducting the Chips Commission Paid to
Promoters and Management Fee Paid from the Income received being Net Revenue
from Gaming Operations from the Casino pursuant to the VIP Junket Promotion
Agreement, dated January 18, 2008 (“VIP Junket Promotion Agreement”) between
Doowell Limited and Xxxxxxxx Investments Asia, Ltd. calculated in accordance
with the format annexed as Exhibit 2.
3. PURCHASE PRICE. In
consideration of and in exchange for the sale, assignment and conveyance of the
Interest, the Buyer agrees to pay and the Seller agrees to receive Hong Kong
Dollar One (HK$ 1.00- the “value”).
4. CLOSING. Subject to the
satisfaction of the conditions set forth in this Agreement and compliance with
the other provisions hereof, the closing of the transaction contemplated by this
Agreement (the “Closing”) shall take place on the date that the transactions
contemplated by that certain Stock Purchase Agreement dated October 6, 2009, as
amended on November 10, 2009, December 9, 2009 and January 11, 2010, by and
among CS China Acquisition Corp., Asia Gaming & Resort Ltd. and Spring
Fortune Investment Ltd are consummated (the “Closing Date”). At the Closing, the
Seller shall deliver to the Buyer an assignment of the Interest, in the form
attached as Exhibit
1.
5. ASSIGNMENT OF THE INTEREST. On
the Closing Date, the Seller shall be the sole legal and beneficial owner of the
Interest, free and clear of all claims, liens, mortgages, charges, security
interests, encumbrances, liabilities or other restrictions and limitations of
any kind and nature whatsoever. From and after the Closing, all Interest shall
be owned by the Buyer.
6. REPRESENTATIONS AND
WARRANTIES
6.1 The
Seller represents and warrants to the Buyer that the following statements are
true, correct, and complete as of the date first written above:
6.1.1 Due
Organization. The
Seller is a corporation duly organized and validly existing under the laws of
the jurisdiction of its incorporation with its principal office at the address
first written. It has the requisite power and authority to own its property and
to carry on its business as it is now being conducted. The Seller has made all
filings and is in good standing in the jurisdiction of its incorporation and in
each other jurisdiction in which the nature of the business it transacts or the
character of property it owns makes such filings necessary.
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6.1.2 Requisite
Authority. The
Seller has requisite power and authority to execute and deliver this Agreement
and any other instrument or agreement required under this Agreement, and to
observe and perform. the terms and provisions of this Agreement and of all such
other instruments, and agreements.
6.1.3 Necessary
Corporate Action.
All corporate actions by the Seller and its directors or shareholders, necessary
for the observation, authorization, execution, delivery, and performance of this
Agreement and any other instrument or agreement required under this Agreement,
has been duly taken.
6.1.4 Authority
of Officers. The
officers of the Seller executing this Agreement and any other instrument or
agreement required under this Agreement have been duly appointed to the office
and are fully authorized to execute the Agreement and any other instrument
required under this Agreement.
6.1.5 Validity
of Agreement.
This Agreement has been duly executed and delivered by the Seller, and
constitutes the legal, valid, and binding obligation of the Seller, enforceable
against it in accordance with its terms and any other instrument or agreement
required under this Agreement when executed and delivered by the Seller, will
similarly constitute the legal, valid, and binding obligation of the Seller,
enforceable against it in accordance with its terms, except as limited by
bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement,
moratorium, marshalling, or other similar laws relating to or affecting the
rights of the Seller generally.
6.1.6 No
Contrary Bylaw, Agreement, or Statute. There is no charter, bylaw, or
capital stock provision of the Seller, and no provision of any indenture or
agreement, written or oral, to which the Seller is a party or under which the
Seller is obligated, nor is there any statute, rule, or regulation, or any
judgment, decree, or order of any court or agency binding on the Seller that
would be violated by the execution and delivery of this Agreement, or any other
instrument or agreement required under this Agreement, or by the performance of
any provision, condition, covenant, or other term of this Agreement or any such
other instrument, or agreement.
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6.1.7 No
Pending Litigation. No litigation, tax claim,
proceeding, or dispute is pending or, to the Seller’s knowledge, threatened
against or affecting the Seller or its property, the adverse determination. of
which might affect the Seller’s financial condition or operations or impair the
Seller’s ability to perform its obligations under this Agreement or under any
other instrument or agreement required by this Agreement.
6.2 The
Buyer represents and warrants to the Seller that the following statements are
true, correct, and complete as of the date first written above:
6.2.1 Due
Organization. The
Buyer is a corporation duly organized and validly existing under the laws of the
jurisdiction of its incorporation with its principal office at the address first
written. It has the requisite power and authority to own its property and to
carry on its business as it is now being conducted. The Buyer has made all
filings and is in good standing in the jurisdiction of its incorporation and in
each other jurisdiction in which the nature of the business it transacts or the
character of property it owns makes such filings necessary.
6.2.2 Requisite
Authority. The
Buyer has requisite power and authority to execute and deliver this Agreement
and any other instrument or agreement required under this Agreement, and to
observe and perform the terms and provisions of this Agreement and of all such
other instruments, and agreements.
6.2.3 Necessary
Corporate Action.
All corporate actions by the Buyer and its directors or shareholders, necessary
for the observation, authorization, execution, delivery, and performance of this
Agreement and any other instrument or agreement required under this Agreement,
has been duly taken.
6.2.4 Authority
of Officers. The
officers of the Buyer executing this Agreement and any other instrument or
agreement required under this Agreement have been duly appointed to the office
and are fully authorized to execute the Agreement and any other instrument
required under this Agreement.
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6.2.5 Validity
of Agreement.
This Agreement has been duly executed and delivered by the Buyer, and
constitutes the legal, valid, and binding obligation of the Buyer, enforceable
against it in accordance with its terms and any other instrument or agreement
required under this Agreement when executed and delivered by the Buyer, will
similarly constitute the legal, valid, and binding obligation of the Buyer,
enforceable against it in accordance with its terms, except as limited by
bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement,
moratorium, marshalling, or other similar laws relating to or affecting the
rights of the Buyer generally.
6.2.6 No
Contrary Bylaw, Agreement, or Statute. There
is no charter, bylaw, or capital stock provision of the Buyer, and no provision
of any indenture or agreement, written or oral, to which the Buyer is a party or
under which the Buyer is obligated, nor is there any statute, rule, or
regulation, or any judgment, decree, or order of any court or agency binding on
the Buyer that would be violated by the execution and delivery of this
Agreement, or any other instrument or agreement required under this Agreement,
or by the performance of any provision, condition, covenant, or other term of
this Agreement or any such other instrument, or agreement.
6.2.7 No
Pending Litigation. No
litigation, tax claim, proceeding, or dispute is pending or, to the Buyer’s
knowledge, threatened against or affecting the Buyer or its property, the
adverse determination of which might affect the Buyer’s financial condition or
operations or impair the Buyer’s ability to perform its obligations under this
Agreement or under any other instrument or agreement required by this
Agreement.
7. CONDITIONS TO OBLIGATIONS OF THE
SELLER. The obligation of the Seller to consummate the transactions
contemplated by this Agreement is subject to the fulfillment of each of the
following conditions:
7.1 On
the Closing Date, any and all necessary consents, authorizations, orders or
approvals for assignment of the interest shall have been obtained.
8. POST-CLOSING OBLIGATIONS OF THE
SELLER AND FUNDER. Effective from and after the Closing
Date:
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8.1 The
VIP Junket Promotion Agreement dated January 18, 2008 between the Seller and the
Casino shall not be terminated or amended in any material respect without the
consent of CS China Acquisition Corp. and Seller will at all times maintain all
licenses, agreements and other permissions it requires to perform its
obligations pursuant to such agreement.
8.2 By
their execution of this Agreement in the place provided for below, Xx. Xxx Man
Pou and Xx. Xxxx Xxx Xxx agree that they will continue to fund chips for use in
the VIP Gaming Rooms promoted by Jinark Limited, Doowell Limited, Champion Lion
Limited, Xxxx Xxxx Gaming Promotion Company Limited, Spring Gaming Promotion
Company Limited and Iao Pou Gaming Promotion Limited (collectively, the"AGRL VIP
Gaming Promoters") at the VIP gaming rooms promoted by such companies to the
same extent, but in no event less than HK$ 350,000,000 in the aggregate at any
time, and in the same manner as they are providing such funding as of the date
of this Agreement and as provided for in the Operation Manual of Asia Gaming
& Resort Limited. Upon the working capital of the AGRL VIP Gaming
Promoters being not less than HK$ 775,000,000 at the end of any fiscal quarter
year (exclusive of any working capital provided by the Funder), the Funder's
commitment to fund chips pursuant to this Section 8.2 shall
terminate.
9. MISCELLANEOUS.
9.1 This
Agreement represents the entire agreement between the parties hereto with
respect to the transactions contemplated hereby and supersedes all prior
agreements with respect thereto, whether written or oral, including with
limitation the agreement entered into as of August 8, 2008.
9.2 This
Agreement shall be governed by and construed in accordance with the laws of the
Hong Kong Special Administrative Region, without regard, however, to such
jurisdiction’s principles of conflict of laws.
9.3 This
Agreement may be executed in counterpart originals, each of which shall be an
original, but all of which shall constitute only one Agreement. A facsimile
signature of any party will be binding on that party, and any facsimile
communication shall be immediately followed by a hard copy containing such
signature.
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9.4 This
Agreement, into which the Seller and the Buyer have once entered, shall be
irrevocable and non-terminable unless otherwise required by law or pursuant to
any governmental or regulatory bodies.
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DATED
as of the date first written above
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BUYER:
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Well
Mount International Limited
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/s/
Xxx Man Pou
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SELLER:
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Doowell
Limited
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/s/
Xxx Man
Pou
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The
undersigned hereby agree to the provisions of Section 8.2 of the
Agreement.
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/s/
Xxx Man Pou
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/s/
Xxxx Xxx Xxx
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Xxx
Man Xxx
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Xxxx
Xxx
Xxx
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EXHIBIT
1
ASSIGNMENT
OF PROFIT INTEREST
FOR VALUE
RECEIVED, Doowell Limited, a company incorporated in the British Virgin Islands
with limited liability and is principally engaged in the junket representative
business (“Assignor”), herewith sells, assigns, transfers and conveys to Well
Mount International Limited, a company incorporated in the British Virgin
Islands with limited liability (“Assignee’), the entirety of Assignor’s right,
title, interest and benefits in and to 100% of the Profit Interest in Doowell
Limited.
This
Assignment of Profit Interest in the Assignor is made, delivered and shall be
effective on the date hereof.
IN
WITNESS WHEREOF, Assignor has executed this Assignment by and through its
members this February 2, 2010.
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Doowell
Limited
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By:
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Xxx
Man
Pou
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Acknowledged,
consented, approved and agreed to by Doowell Limited, a company incorporated in
British Virgin Islands and is principally engaged in the junket representative
business, and its members this February 2, 2010, that Well Mount
International Limited, a company incorporated in the British Virgin Islands with
limited liability has become and at all times hereafter be authorized to
withdraw all the Profit Interest distribution payable by Doowell Limited to Xx.
Xxx Man Pou, Xx. Xxxx Hon Kun and Xx. Xxx Xxxx In, and cause such Profit
Interest distribution to be paid to Well Mount International
Limited.
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Doowell
Limited
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By:
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Xxx
Man
Pou
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EXHIBIT
2
CALCULATION
OF NET OPERATING PROFIT
(See
Schedule A for Definitions)
DOOWELL
LIMITED
INCOME
STATEMENT FOR PERIOD FROM __________ TO ______________
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INCOME
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Net
Revenue from Gaming Operations
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$ | |||
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EXPENSES
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Chips
Commission Paid to Agents
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$ | |||
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Management
Fee Paid
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Total
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Net
Operating Profit (Loss) for the period
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$ | |||
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SCHEDULE
A
DEFINITIONS
As used in Exhibit 2 – Calculation of
Net Operating Profit, the following terms shall have the meanings set forth
herein:
“Net
Revenue from Gaming Operations” shall mean revenue from VIP operations net of
special rolling tax
“Chips
Commission Paid to Agents” shall mean chips commission paid to junket agents and
collaborators
“Management
Fee” shall mean selling, general and administrative expenses of the VIP gaming
room
[Note: When
drafting above definitions refer to specific agreements which apply to revenue,
commissions and management fees between the various casinos and
others.]
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