Exhibit 10.2
SHARE TRANSACTION
PURCHASE AGREEMENT
THIS SHARE
TRANSACTION PURCHASE AGREEMENT dated as of the 21 st day
of September, 2009 (the “ Agreement ”), by and
between SWAV ENTERPRISES, LTD., a Nevada corporation
(“ SWAV ” or the “ Company ”)
and with CARLYLE GAMING LIMITED , a Canadian corporation
(“ Carlyle ”). The entities above are
collectively referred to as the “Parties.”
WITNESSETH:
WHEREAS
, Company is a publicly
held company quoted on the OTC Bulletin Board under the ticker
symbol “SWAV” and is an SEC Section 12(g) reporting
company; and
WHEREAS
, Carlyle is a
privately held company; and
WHEREAS
, the Company is
authorized to issue 25,000,000 shares of common stock, par value
$0.001 per share, and no preferred stock.
WHEREAS,
prior to the
consummation of the transaction contemplated by this Agreement (the
“Transaction”), there were 12,234,670 shares of SWAV
Common Stock issued and outstanding (6,234,670 of which are
free-trading and 6,000,000 are restricted) and upon the
consummation of the transaction contemplated by this Agreement,
there shall be a total of 12,234,770 shares of Common Stock of SWAV
issued and outstanding.
WHEREAS
, simultaneously with
the execution and delivery of this Agreement, the Selling
Stockholders named in that certain Stock Purchase Agreement dated
September 21, 2009, are selling an aggregate of 10,399,470 shares
of their common stock of the Company to Sandy J. Masselli, the 100%
owner of Carlyle (“Masselli”), representing
approximately 85% of the issued and outstanding shares of common
stock of the Company for an aggregate purchase price of $300,000;
and
WHEREAS,
the Company desires to
acquire from Masselli and Masselli desires to sell to the Company
100% of the issued and outstanding shares of common stock of
Carlyle, thereby making Carlyle a wholly-owned subsidiary of the
Company in consideration for 100 shares of the Company;
and
NOW,
THEREFORE ,
in consideration of the premises and of the mutual representations,
warranties and agreements set forth herein, the parties hereto
agree as follows:
ARTICLE
I
THE
TRANSACTION
1.1
The
Transaction .
Subject to the terms and conditions of this Agreement, on the
Closing Date (as hereinafter defined), the Company shall issue and
deliver to Carlyle an aggregate of 100 shares of SWAV common stock
and Carlyle shall deliver to the Company stock certificate(s)
evidencing all of all of the issued and outstanding shares of
Carlyle (the “Carlyle Shares”), duly endorsed on the
reverse side of such stock certificate(s) or accompanied by duly
executed stock powers and any and all other duly executed transfer
documents required to transfer the Carlyle Shares to Company. At
any time, and from time to time, upon request of the Company after
the Closing Date, Carlyle agrees to duly execute, acknowledge and
deliver, without further consideration, all such further documents,
and take all such further actions consistent with this Agreement
and the Transaction contemplated hereby, as shall be necessary to
effectuate the transfer of the Carlyle Shares as provided herein
free of all liens, security interests, pledges, restrictions,
encumbrances, equities, claims, charges, voting agreements, voting
trusts, proxies and rights of any kind, nature or
description.
1.2
Time and Place of
Closing . The
purchase of the Carlyle Shares shall take place at the law office
of The Sourlis Law Firm located at The Galleria, 2 Bridge Avenue,
Red Bank, New Jersey 07701 or such other place as the Parties may
agree to within two business days after the satisfaction of all
conditions set forth herein (the “Closing”) on or about
September 21, 2009 (the “Closing Date”).
1.3
Effective
Time . The
Transaction shall become effective (the “Effective
Time”) at the earlier to occur of (i) such time as all of the
conditions to set forth in Article VII hereof have been satisfied
or waived by the Parties hereto.
ARTICLE
II
REPRESENTATIONS AND
WARRANTIES OF THE COMPANY
The Company represents
and warrants to Carlyle that now and as of the Closing
Date:
2.1
Due Organization and
Qualification; Due Authorization .
(i)
The Company is a corporation duly
incorporated, validly existing and in good standing under the laws
of the State of Nevada, with full corporate power and authority to
own, lease and operate its respective business and properties and
to carry on its business in the places and in the manner as
presently conducted or proposed to be conducted. The Company is in
good standing as a foreign corporation in each jurisdiction in
which the properties owned, leased or operated, or the business
conducted, by which it requires such qualification except for any
such failure, which when taken together with all other failures, is
not likely to have a material adverse effect on the business of the
Company.
(ii)
The Company does not own, directly
or indirectly, any capital stock, equity or interest in any
corporation, firm, partnership, joint venture or other
entity.
(iii)
The Company has all requisite
corporate power and authority to execute and deliver this
Agreement, and to consummate the Transaction contemplated hereby.
The Company has taken all corporate action necessary for the
execution and delivery of this Agreement and the consummation of
the Transaction contemplated hereby, and this Agreement constitutes
the valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as may be
affected by bankruptcy, insolvency, moratoria or other similar laws
affecting the enforcement of creditors’ rights generally and
subject to the qualification that the availability of equitable
remedies is subject to the discretion of the court before which any
proceeding therefore may be brought.
2.2
No Conflicts or
Defaults .
The execution and delivery of this Agreement by the Company and the
consummation of the transactions contemplated hereby do not and
shall not (a) contravene the Articles of Incorporation or By-laws
of the Company, or (b) with or without the giving of notice or the
passage of time (i) violate, conflict with, or result in a breach
of, or a default or loss of rights under, any material covenant,
agreement, mortgage, indenture, lease, instrument, permit or
license to which the Company is a party or by which the Company is
bound, or any judgment, order or decree, or any law, rule or
regulation to which the Company is subject, (ii) result in the
creation of, or give any party the right to create, any lien,
charge, encumbrance or any other right or adverse interest
(“Liens”) upon any of the assets of the Company, (iii)
terminate or give any party the right to terminate, amend, abandon
or refuse to perform, any material agreement, arrangement or
commitment to which the Company is a party or by which the
Company’s assets are bound, or (iv) accelerate or modify, or
give any party the right to accelerate or modify, the time within
which, or the terms under which, the Company is to perform any
duties or obligations or receive any rights or benefits under any
material agreement, arrangement or commitment to which it is a
party.
2.3
Capitalization
. The authorized capital
stock of the Company immediately prior to giving effect to the
Transaction contemplated hereby consists of 25,000,000 shares of
Common Stock, par value $0.001 per share. As of the date
hereof, there are an aggregate of 12,234,670 shares of Company
Common Stock issued and outstanding (6,234,670 of which are
free-trading and 6,000,000 are restricted). The outstanding shares
of Company Common Stock are, and the shares of the Company’s
Common Stock, when issued in accordance with the terms hereof, will
be duly authorized, validly issued, fully paid and non-assessable,
and have not been or, with respect to such shares, will not be
issued in violation of any preemptive right of stockholders. There
is no outstanding voting trust agreement or other contract,
agreement, arrangement, option, warrant, call, commitment or other
right of any character obligating or entitling the Company to
issue, sell, redeem or repurchase any of its securities, and there
is no outstanding security of any kind convertible into or
exchangeable for Company Common Stock. The Company has not granted
registration rights to any person.
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2.4
Financial
Statements .
The Company is an SEC Section 12(g) reporting company and has
filed (a) the Company’s audited Balance Sheets, Operations
and Deficit and Cash Flow for the fiscal years December 31, 2008
and (b) the Company’s unaudited Balance Sheets, Operations
and Deficit and Cash Flows for the three months ended June
30, 2009 (collectively, the “SWAV Financial
Statements”).
2.5
No Assets or
Liabilities .
Except as set forth in the SWAV Financial Statements, the Company
does not have any (a) assets of any kind or (b) liabilities or
obligations, whether secured or unsecured, accrued, determined,
absolute or contingent, asserted or unasserted or otherwise other
than those assets acquired or liabilities incurred in the ordinary
course of business consistent with past practice.
2.6
Taxes
. The Company has, to
the best of its knowledge, filed all tax returns and reports which
were required to be filed on or prior to the date hereof in respect
of all income, withholding, franchise, payroll, excise, property,
sales, use, value-added or other taxes or levies, imposts, duties,
license and registration fees, charges, assessments or withholdings
of any nature whatsoever (together, “Taxes”), and, to
the best of its knowledge, has paid all Taxes (and any related
penalties, fines and interest) which have become due pursuant to
such returns or reports or pursuant to any assessment which has
become payable, or, to the extent its liability for any Taxes (and
any related penalties, fines and interest) has not been fully
discharged, the same have been properly reflected as a liability on
the books and records of the Company and adequate reserves
therefore have been established.
2.7
Indebtedness;
Contracts; No Defaults . Except as set forth in the SWAV
Financial Statements there are no agreements, indentures,
mortgages, guarantees, notes, commitments, accommodations, letters
of credit or other arrangements or understandings, whether written
or oral, to which the Company is a party, other than those
liabilities incurred in the ordinary course of business consistent
with past practices.
2.8
Real
Property .
The Company does not own or lease any real property other than
which is stated in the Company’s SEC reports.
2.9
Compliance with
Law . The
Company, to the best of its knowledge, is conducting its business
in material compliance with all applicable laws, ordinances, rules,
regulations, court or administrative order, decree or process
(“Applicable Laws”). The Company has not received any
notice of violation or claimed violation of any Applicable
Law.
2.10
Litigation
. Other than what is
disclosed in the Company’s SEC Reports, there is no claim,
dispute, action, suit, proceeding or investigation pending or, to
the knowledge of the Company, threatened, against the Company, or
challenging the validity or propriety of the transactions
contemplated by this Agreement, at law or in equity or admiralty or
before any federal, state, local, foreign or other governmental
authority, board, agency, commission or instrumentality, nor to the
knowledge of the Company, has any such claim, dispute, action,
suit, proceeding or investigation been pending or threatened,
during the twelve month period preceding the date
hereof;
There is no outstanding judgment,
order, writ, ruling, injunction, stipulation or decree of any
court, arbitrator or federal, state, local, foreign or other
governmental authority, board, agency, commission or
instrumentality, against or materially affecting the business of
the Company; and
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The Company has not received any
written or verbal inquiry from any federal, state, local, foreign
or other governmental authority, board, agency, commission or
instrumentality concerning the possible violation of any Applicable
Law.
2.11
Trading
. The Company Common
Stock is currently quoted on the OTCBB under the ticker symbol
SWAV.
2.12
SEC
Reports . The
Company’s SEC Reports are (i) accurate and complete, (ii)
contain all information required to be filed under the rules and
regulations of the SEC, (iii) are not subject to any outstanding
SEC comment letters or inquiries, and (iv) do not contain any false
statement of fact or fail to state any fact necessary to make the
facts stated therein not misleading. The Company has never
been subject to any investigation, injunction or cease and desist
action by the Securities and Exchange Commission or other federal
or state regulatory agency and to its Knowledge is not currently
subject to such pending or threatened actions.
2.13
No Taxes
. The Company is not,
and will not, to the best of its knowledge, become with respect to
any periods ending on or prior to the Closing Date, liable for any
income, sales, withholding, franchise, excise, license, real or
personal property taxes (a “ Tax ”) to any
foreign, United States federal, state or local governmental
agencies whatsoever. All United States federal, state, county,
municipality local or foreign income Tax returns and all other
material Tax returns (including information returns) that are
required, or have been required, to be filed by or on behalf of the
Company has been or will be filed as of the Closing Date and all
Taxes due pursuant to such returns or pursuant to any assessment
received by the Company have been or will be paid as of the Closing
Date. The charges, accruals and reserves on the books of the
Company in respect of taxes or other governmental charges have been
established in accordance with the tax method of accounting. All
returns of the Company that have been filed relating to Tax are
true and accurate in all material respects. No audit, action,
suit, proceeding or other examination regarding taxes for which the
Company may have any liability is currently pending against or with
respect to the Company and the Company has not received any notice
(formally or informally) of any audit, suit, proceeding or other
examination. No material adjustment relating to any Tax
returns, no closing or similar agreement have been entered into or
issued or have been proposed (formally or informally) by any tax
authority (insofar as such action relate to activities or income of
or could result in liability of the Company for any Tax) and no
basis exists for any such actions. The Company has not
changed any election, adopted or changed any accounting method or
period, filed any amended return for any Tax, settled any claim or
assessment of any Tax, or surrendered any right to claim any refund
of any Tax, or consented to any extension or waiver of the statute
of limitations for any Tax. The Company has not had an
“ownership change” as that term is defined in Section
382 of the Internal Revenue Code of 1986, as amended and in
effect.
2.14
Conduct of the
Business .
The Company is not a “shell” company as defined
in Rule 12b-2 of the Securities Exchange Act of 1934, as amended.
From and after June 30, 2009 until the Closing
Date:
(i)
The Company has not made
any expenditures or entered into any commitments which, when
compared to past operations of their businesses, are unusual or
extraordinary or outside the scope of the normal course of routine
operations;
(ii)
The Company has kept in
a normal state of repair and operating efficiency all tangible
personal property used in the operation of their
businesses;
(iii)
The Company has used
their best efforts to maintain the good will associated with their
businesses, and the existing business relationships with their
agents, customers, lessors, key employees, suppliers and other
persons having relations with them;
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(iv)
The Company has not
entered into any contract, agreement or action, or relinquished or
released any rights or privileges under any contracts or
agreements, the performance, violation, relinquishment or release
of which could, on the date on which such contract or agreement was
entered into, or such rights or privileges were relinquished or
released, be reasonably foreseen to have a material adverse
effect;
(v)
The Company has not
made, or agreed to make, any acquisition of stock or assets of, or
made loans to, any person not in the ordinary course of
business;
(vi)
The Company has not sold
or disposed of any assets or created or permitted to exist any
encumbrance on their assets except (x) in the ordinary course of
business and which could not, on the date of such sale,
disposition, creation or permission, be reasonably foreseen to have
a material adverse effect or (y) as otherwise permitted by this
Agreement;
(vii)
The Company has kept
true, complete and correct books of records and accounts with
respect to their businesses, in which entries will be made of all
transactions on a basis consistent with past practices and in
accordance with the tax method of accounting consistently applied
by the Company;
(viii)
The Company has paid
current liabilities as and when they became due and have paid or
incurred no fees and expenses not in the ordinary course of their
businesses;
(ix)
There has been no
declaration, setting aside or payment of any dividend or other
distribution in respect of any Shares or any other securities of
the Company (whether in cash or in kind);
(x)
The Company has not
redeemed, repurchased, or otherwise acquired any of their
securities or entered into any agreement to do so;
(xi)
The Company has not made
any loan to, or entered into any other transaction with, any of
their directors, officers, and employees;
(xii)
The Company has not made
or pledged to make any charitable or other capital contribution
outside the ordinary course of business; and
(xiii)
There has not been any
other occurrence, event, incident, action, failure to act or
transaction outside the ordinary course of business that would have
a material adverse effect.
2.15
Liabilities.
(i)
Except as set forth in
the Financial Statements, the Company has no liabilities or
obligations. It is a condition to Closing that the Company will
have no liabilities upon transfer of the Shares to the
Purchaser.
(ii)
Since June 30, 2009, the
Company has not:
(a)
subjected to
encumbrance, or agreed to do so to any of their assets, tangible or
intangible
