Attached files
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| 8-K/A - AMENDMENT NO. 1 TO FORM 8-K - Texas Gulf Energy Inc | v244852_8ka.htm |
AMENDMENT NO. 1
TO
SHARE EXCHANGE AGREEMENT
This Amendment No. 1 (this “Amendment”) is made and entered into effective as of the 31st day of December, 2011, by and among Global NuTech, Inc., a Nevada corporation (the “Parent”), and International Plant Services, L.L.C., a Texas limited liability company (“IPS), together with all other signatories to that certain Share Exchange Agreement (the “SXA”) dated December 30, 2011 (all parties to the SXA, collectively, the “Parties”).
Pursuant to the SXA, the Parent agreed to acquire one hundred percent (100%) of the membership interests in IPS (the “Control Interests”) on the terms and subject to the conditions of the SXA.
The Parties now desire to, among other things, amend the SXA in order to provide for the issuance of newly designated shares of the Parent’s preferred stock instead of Promissory Notes (as such term is defined in the SXA) as consideration for the delivery of the Control Interests, all on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the agreements of the Parties as set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1. Recitals. The foregoing Recitals are true and correct and are incorporated herein by this reference.
2. Definitions. Capitalized terms used but not otherwise defined in this Amendment shall have the respective meanings ascribed to such terms in the SXA.
3. Amendments.
3.1 Amendment to Third Recital. The Third Recital of the SXA is hereby amended to read in its entirety:
WHEREAS, the Parent desires to acquire the Control Interests in exchange for the issuance by the Parent to the Equity-Holders of (i) Twenty-Nine Million Four Hundred Eleven Thousand Seven Hundred Sixty-Five (29,411,765) newly-issued shares (the “Common Shares”) of the Parent’s common stock, par value $0.00001 per share (“Parent Common Stock”), and (ii) US$10,000,000.00 worth of shares of a new series of the Parent’s preferred stock, par value $0.00001 per share, convertible into shares of Parent Common Stock, subject to the terms of such series’ certificate of designation (the “New Preferred Shares”, which shall be designated pursuant to a certificate of designation substantially in the form attached hereto as Exhibit B) (such transaction, collectively, the “Exchange”); and
3.2 Amendment to Section 3.1. Section 3.1 of the SXA is hereby amended to read in its entirety:
On the terms and subject to the conditions set forth in this Agreement, on the Closing Date, the Equity-Holders, by executing this Agreement, shall assign, transfer and deliver, free and clear of all liens, pledges, encumbrances, charges, restrictions or known claims of any kind, nature, or description, the Control Interests, constituting all of the IPS Interests, including voting power, of IPS. In exchange for the transfer of the Control Interests by the Equity-Holders, the Parent shall issue to the Equity-Holders (i) share certificates representing an aggregate amount of Twenty-Nine Million Four Hundred Eleven Thousand Seven Hundred Sixty-Five (29,411,765) shares of Parent Common Stock (defined herein as the “Common Shares”), which at the time of exchange and as of the Closing Date shall represent approximately seventy-six percent (76%) of the currently issued and outstanding equity and voting power of the Parent, of which Karim Ayed shall receive a certificate in the amount of Fourteen Million Seven Hundred Five Thousand Eight Hundred Eighty-Two (14,705,882) shares and Mohamed Noureddine Ayed shall receive a certificate in the amount of Fourteen Million Seven Hundred Five Thousand Eight Hundred Eighty-Three (14,705,883) shares, and (ii) two share certificates representing the New Preferred Shares, one to each of Karim Ayed and Mohammed Noureddine Ayed, each in the amount of US $5,000,000.00 worth of New Preferred Shares, or Five Million (5,000,000) of such shares, convertible into shares of Parent Common Stock as set forth in the certificate of designation creating such New Preferred Shares. As a result of the Exchange as contemplated herein, (1) the issued and outstanding equity of the Parent shall consist of Thirty-Eight Million Two Hundred Forty-Four Thousand Two Hundred Eighteen (38,244,218) shares of Parent Common Stock, Two Million Nine Hundred Thousand (2,900,000) shares of Series A Convertible Preferred Stock and Ten Million (10,000,000) shares of the New Preferred Shares; (2) each of the Equity-Holders will own approximately thirty-eight percent (38%) of the issued and outstanding shares of Parent Common Stock on the Closing Date; and (3) each of the Equity-Holders will own at least thirty-seven percent (37%) of the equity and voting power of the Parent with respect to currently issued capital stock. On the Closing Date, the Equity-Holders shall enter into an assignment and assumption agreement effecting the transfer of the Control Interests to the Parent. Upon consummation of the transaction contemplated herein, all of the IPS Interests shall be held by the Parent.
3.3 Table of Contents and Exhibit List. With respect to “Exhibit B – Promissory Note Form” as listed in the Table of Contents to the SXA, such listing is hereby amended to read “Exhibit B – Certificate of Designation of New Preferred Shares”. Exhibit B to the SXA is hereby replaced in its entirety by the document attached hereto as Annex A.
4. Representations and Warranties. Each of the Parties hereby represents and warrants that (a) this Amendment and the SXA, as amended hereby, constitute the legal, valid and binding obligation of each of the Parties and are enforceable against any and all of the Parties in accordance with their terms, and (b) this Amendment has been duly authorized, executed and delivered by each of the Parties.
5. Effect on the SXA. The SXA, as amended hereby, shall remain in full force and effect and is hereby ratified and confirmed. Except as expressly set forth herein, the execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the Parties, nor constitute a waiver of any provision of the SXA (or an agreement to agree to any future amendment, waiver or consent).
6. Governing Law. This Amendment and the SXA shall be governed by, enforced, and construed under and in accordance with the laws of the United States of America and, with respect to the matters of State law, with the laws of the State of Texas. Venue for all matters shall be in Harris County, Texas, without giving effect to principles of conflicts of law thereunder. Each of the Parties irrevocably consents and agrees that any legal or equitable action or proceedings arising under or in connection with this Amendment and the SXA shall be brought exclusively in the federal courts of the United States sitting in Harris County, Texas. By execution and delivery of this Amendment and its incorporation into the SXA, each party hereto irrevocably submits to and accepts, with respect to any such action or proceeding, generally and unconditionally, the jurisdiction of the aforesaid court, and irrevocably waives any and all rights such party may now or hereafter have to object to such jurisdiction.
7. Counterparts. This Amendment may be executed in counterparts (including by means of facsimile or digital transmission), each of which shall be deemed an original but all of which, when taken together, will constitute one and the same agreement.
** Signature Page to Follow **
IN WITNESS WHEREOF, the Parties, each intending to be legally bound thereby, have executed this Amendment effective as of the first date identified in the first sentence of this Amendment.
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GLOBAL NUTECH, INC.
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By:
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/s/ David Mathews
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| Name: |
David Mathews
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| Title: | Chief Executive Officer | ||
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INTERNATIONAL PLANT SERVICES, L.L.C.
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By:
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/s/ Craig Crawford
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| Name: |
Craig Crawford
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| Title: | President | ||
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EQUITY-HOLDERS
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By:
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/s/ Mohamed Noureddine Ayed
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| Name: |
Mohamed Noureddine Ayed
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| Title: | Member | ||
| By: | /s/ Karim Ayed | ||
| Name: | Karim Ayed | ||
| Title: | Member | ||
| OTHER PARTIES | |||
| /s/ Pamela Stewart | |||
| Pamela Stewart | |||
| /s/ John Magner | |||
| John Magner | |||
** Signature Page to Amendment No. 1 to Share Exchange Agreement **
ANNEX A – CERTIFICATE OF DESIGNATION OF NEW PREFERRED SHARES
