Exhibit 10.3
STOCK TRANSFER AGREEMENT
This Stock Transfer Agreement (the "AGREEMENT"), dated as of July 31, 2013
(the "EFFECTIVE DATE"), is entered into by and among Guar Global Ltd., a Nevada
corporation (the "COMPANY"), Greenberg Traurig, LLP, as escrow agent (the
"ESCROW AGENT"), Michael C. Shores (the "TRANSFEREE") and Joselito Christopher
G. Imperial (the "TRANSFEROR").
RECITALS
WHEREAS, the Transferor is the registered holder of Thirty Three Million
Nine Hundred Thousand (33,900,000) shares of the Company's common stock, par
value $0.0001 represented by Certificate No. ER1117;
WHEREAS, the Transferor and the Transferee desire to specify the terms and
conditions upon which the Transferor is willing to sell, assign and transfer
10,000,000 shares of the Company's common stock (the "SHARES") to the
Transferee;
WHEREAS, the Transferor, the Company and the Transferee agree to have the
Shares placed into an escrow account for the benefit of the Company based on the
Company achieving certain business milestones as set forth on Exhibit A hereto
(each a "MILESTONE" and collectively, the "MILESTONES"); and
WHEREAS, the Escrow Agent has agreed to act as escrow agent pursuant to the
terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises of the parties and
the terms and conditions hereof, the parties hereby agree as follows:
1. Transfer of Shares; Consideration. The Transferor hereby sells, assigns
and transfers the Shares to the Transferee in consideration for $10,000.00.
2. Appointment of Escrow Agent. The Transferor, the Transferee and the
Company hereby appoint Escrow Agent to act in accordance with the terms and
conditions set forth in this Agreement. Escrow Agent hereby agrees to act as
escrow agent in this transaction and subject to the terms of this Agreement. The
parties hereby appoint the Escrow Agent as their joint agent for the purpose of
holding and disbursing the Shares pursuant to the terms and provisions hereof.
The parties agree to waive any actual or potential conflicts that may arise out
of Escrow Agent's duties hereunder, and agree that in the event of any
controversy of dispute hereunder, Escrow Agent may continue its legal
representation of the Company. Additionally, in the event of any controversy or
litigation between the Company and the Transferor or Transferee, each of the
Transferor and the Transferee agree to waive any actual or potential conflicts,
and each of the Transferor and the Transferee agree and acknowledge that Escrow
Agent shall not be precluded from its legal representation of the Company as
against the Transferor, Transferee or any third party.
3. Establishment of Escrow. Within five (5) business days of the Effective
Date, the Company shall cause the Transfer Agent to deliver certificates
evidencing the Shares (as equitably adjusted for any stock splits, stock
combinations, stock dividends or similar transactions) registered in the name of
Transferee to the Escrow Agent. As used in this Agreement, "TRANSFER AGENT"
means Securities Transfer Corp. or such other entity hereafter retained by the
Company as its stock transfer agent as specified in writing from the Company to
the Escrow Agent and the Transferee.
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4. Representations of Transferor. The Transferor represents and warrants to
the Transferee, the Company and the Escrow Agent as follows:
a. The Transferor has all individual power and authority to enter into this
Agreement and to carry out his obligations hereunder. This Agreement has been
duly executed by the Transferor, and when delivered by the Transferor in
accordance with the terms hereof, will constitute the valid and legally binding
obligation of the Transferor, enforceable against him in accordance with its
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar laws relating to,
or affecting generally the enforcement of, creditors' rights and remedies or by
other equitable principles of general application.
b. All of the Shares are validly issued, fully paid and nonassessable
shares of the Company, and free and clear of all pledges, liens and
encumbrances. Subject to achieving the Milestones set forth herein, upon the
sale, assignment and transfer of Shares to the Transferee hereunder, the
Transferee will receive full right, title and authority to such shares.
c. Transferor has not sold, assigned, conveyed, transferred, mortgaged,
hypothecated, pledged or encumbered or otherwise permitted any lien to be
incurred with respect to the Shares, or any portion thereof.
d. Performance of this Agreement and compliance with the provisions hereof
will not violate any provision of any applicable law and will not conflict with
or result in any breach of any of the terms, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of any lien,
charge or encumbrance upon, any of the properties or assets of the Transferor
pursuant to the terms of any indenture, mortgage, deed of trust or other
agreement or instrument binding upon the Transferor, other than such breaches,
defaults or liens which would not have a material adverse effect taken as a
whole.
5. Representations of Transferee. The Transferee represents and warrants to
the Transferor, the Company and Escrow Agent as follows:
a. The Transferee has all individual power and authority to enter into this
Agreement and to carry out his obligations hereunder. This Agreement has been
duly executed by the Transferee, and when delivered by the Transferee in
accordance with the terms hereof, will constitute the valid and legally binding
obligation of the Transferee, enforceable against him in accordance with its
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar laws relating to,
or affecting generally the enforcement of, creditors' rights and remedies or by
other equitable principles of general application.
b. Performance of this Agreement and compliance with the provisions hereof
will not violate any provision of any applicable law and will not conflict with
or result in any breach of any of the terms, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of any lien,
charge or encumbrance upon, any of the properties or assets of the Transferee
pursuant to the terms of any indenture, mortgage, deed of trust or other
agreement or instrument binding upon the Transferee, other than such breaches,
defaults or liens which would not have a material adverse effect taken as a
whole.
c. Transfer of the Shares has not been registered or qualified under any
federal or applicable state law regulating securities and therefore the Shares
cannot and will not be sold unless they are subsequently registered or qualified
under any such law or an exemption therefrom is available.
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d. Transferee acknowledges that the Transferee has not relied and will not
rely upon the Transferor with respect to any tax consequences related to the
ownership, purchase, or disposition of the Shares. The Transferee assumes full
responsibility for all such consequences and for the preparation and filing of
all tax returns and elections which may or must be filed in connection with such
Shares.
6. Disbursement of Shares.
a. Upon achievement of any Milestone on or before the date associated with
such Milestone on Exhibit A, the Company shall promptly provide written notice
to the Escrow Agent and the Transferee of such achievement (each a "COMPLETION
NOTICE"). Upon the passage of any Milestone date set forth on Exhibit A for
which the Company has not achieved the associated Milestone, the Company shall
promptly provide written notice to the Escrow Agent and the Transferee of such
failure to achieve the milestone (each a "NONCOMPLETION NOTICE"). In carrying
out its duties under this Agreement, the Escrow Agent need only rely on such
written notices received from the Company and will disregard any contrary
instructions.
b. The Transferee agrees that if the Escrow Agent has received a
Noncompletion Notice with respect to a Milestone, the Escrow Agent shall
instruct the Transfer Agent to transfer to the Company for no additional
consideration, the portion of the Shares allocated to such Milestone, as
indicated on Exhibit A, (as adjusted for any stock splits, stock combinations,
stock dividends or similar transactions). The Transferee shall promptly provide
any written instruction (with a copy to the Company) requested by the Escrow
Agent in connection with such transfer, provided that the failure of the
Transferee to provide such written instructions shall not affect the authority
of the Escrow Agent to make such transfer.
c. Upon receipt of a Completion Notice, the Transferee shall immediately
provide written instruction (with a copy to the Company) to the Escrow Agent to
release the Shares associated with the Milestone described in the Completion
Notice to the Transferee within seven (7) business days of receipt of such
instruction.
d. If Transferee's employment by the Company is terminated, with or without
cause, within thirty six (36) months of the Effective Date, then no further
Shares will be released to the Transferee after such termination date, even if
Shares were due to be released to the Transferee in accordance with the terms of
this Agreement prior to such termination date. Upon such termination of
employment, the Company shall provide prompt written notice to the Escrow Agent
to transfer any such remaining Shares to the Company for no additional
consideration. Upon receipt of such notice, the Escrow Agent shall instruct the
Transfer Agent to transfer to the Company any such remaining Shares, and the
Company and the Escrow Agent shall have no further obligations to the Transferee
with respect to the Shares.
7. Duration. This Agreement shall terminate on the sooner of (i) the
distribution of all the Shares, or (ii) thirty seven (37) months from the
Effective Date.
8. Stock Power. Upon the Effective Date, the Transferee shall have executed
and delivered to the Escrow Agent a blank stock power, in the form attached
hereto as Exhibit B. Transferee also covenants and agrees to execute all such
other instruments of transfer as are required by the Transfer Agent to evidence
and consummate the transfer of the Shares from the Transferee to the Company, to
the extent not done so in accordance with Section 6. Until such time as (if at
all) the Shares are required to be delivered in accordance with this Agreement,
any dividends payable in respect of the Shares shall be retained by the
Transferee.
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9. Interpleader and Other Resolutions of Controversies Among the Parties.
Should any controversy arise among the parties hereto with respect to this
Agreement or with respect to the right to receive any Shares, Escrow Agent shall
have the right to consult and hire counsel and/or to institute an appropriate
interpleader action to determine the rights of the parties. Escrow Agent is also
hereby authorized to institute an appropriate interpleader action upon receipt
of a written letter of direction executed by the parties so directing the Escrow
Agent. If Escrow Agent is directed to institute an appropriate interpleader
action, it shall institute such action not prior to thirty (30) days after
receipt of such letter of direction and not later than sixty (60) days after
such date. Any interpleader action instituted in accordance with this Section 9
shall be filed in any court of competent jurisdiction in the State of
California, and the Shares in dispute shall be deposited with the court and in
such event by the Escrow Agent. Should any controversy arise among the parties
hereto or any third person with respect to this Agreement, Escrow Agent may
also, at its discretion, hold all funds, documents and instruments, and may wait
for settlement of any such controversy by final appropriate legal proceedings or
other means as, in the Escrow Agent's sole discretion, it deems reasonable.
Escrow Agent may await settlement of any controversy by appropriate legal
proceeding or otherwise, notwithstanding any provision of this Escrow Agreement
or related agreements to the contrary. In the event of a controversy, Escrow
Agent shall not be liable for interest on any money held in escrow or damages
for nondelivery thereunder.
10. Exculpation and Indemnification of Escrow Agent.
a. Escrow Agent is not a party to, and is not bound by or charged with
notice of any agreement out of which this escrow may arise. Escrow Agent acts
under this Agreement as a depositary only and is not responsible or liable in
any manner whatsoever for the sufficiency, correctness, genuineness or validity
of the subject matter of the escrow, or any part thereof, or for the form or
execution of any notice given by any other party hereunder, or for the identity
or authority of any person executing any such notice. Escrow Agent will have no
duties or responsibilities other than those expressly set forth herein. Escrow
Agent will be under no liability to anyone by reason of any failure on the part
of any party hereto (other than Escrow Agent) or any maker, endorser or other
signatory of any document to perform such person's or entity's obligations
hereunder or under any such document. Except for this Agreement and instructions
to Escrow Agent pursuant to the terms of this Agreement, Escrow Agent will not
be obligated to recognize any agreement between or among any or all of the
persons or entities referred to herein, notwithstanding its knowledge thereof.
Escrow Agent is not charged with any obligation to conduct any investigation
into the Milestones or make any other investigation related thereto. In the
event of any actual or alleged mistake or fraud of the Company, its auditors or
any other person in connection with delivery or failure to deliver a Completion
Notice or Noncompletion Notice, Escrow Agent shall not have any obligation or
liability to any party hereunder.
b. Escrow Agent will not be liable for any action taken or omitted by it,
or any action suffered by it to be taken or omitted, absent gross negligence or
willful misconduct. Escrow Agent may rely conclusively on, and will be protected
in acting upon, any order, notice, demand, certificate, or opinion or advice of
counsel (including counsel chosen by Escrow Agent), statement, instrument,
report or other paper or document (not only as to its due execution and the
validity and effectiveness of its provisions, but also as to the truth and
acceptability of any information therein contained) which is reasonably believed
by Escrow Agent to be genuine and to be signed or presented by the proper person
or persons. The duties and responsibilities of the Escrow Agent hereunder shall
be determined solely by the express provisions of this Agreement and no other or
further duties or responsibilities shall be implied, including, but not limited
to, any obligation under or imposed by any laws of the State of California upon
fiduciaries. THE ESCROW AGENT SHALL NOT BE LIABLE, DIRECTLY OR INDIRECTLY, FOR
ANY (I) DAMAGES, LOSSES OR EXPENSES ARISING OUT OF THE SERVICES PROVIDED
HEREUNDER, OTHER THAN DAMAGES, LOSSES OR EXPENSES WHICH HAVE BEEN FINALLY
ADJUDICATED TO HAVE DIRECTLY RESULTED FROM THE ESCROW AGENT'S GROSS NEGLIGENCE
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OR WILLFUL MISCONDUCT, OR (II) SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR
LOSSES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOST PROFITS),
EVEN IF THE ESCROW AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR
DAMAGES AND REGARDLESS OF THE FORM OF ACTION.
c. The Company and the Transferee each hereby, jointly and severally,
indemnify and hold harmless each of Escrow Agent, and any of its principals,
partners, agents, employees and affiliates from and against any expenses,
including reasonable attorneys' fees and disbursements, damages or losses
suffered by Escrow Agent in connection with any claim or demand, which, in any
way, directly or indirectly, arises out of or relates to this Agreement or the
services of Escrow Agent hereunder; except, that if Escrow Agent is guilty of
willful misconduct or gross negligence under this Agreement, then Escrow Agent
will bear all losses, damages and expenses arising as a result of its own
willful misconduct or gross negligence. Promptly after the receipt by Escrow
Agent of notice of any such demand or claim or the commencement of any action,
suit or proceeding relating to such demand or claim, Escrow Agent will notify
the other parties hereto in writing. For the purposes hereof, the terms
"expense" and "loss" will include all amounts paid or payable to satisfy any
such claim or demand, or in settlement of any such claim, demand, action, suit
or proceeding settled with the express written consent of the parties hereto,
and all costs and expenses, including, but not limited to, reasonable attorneys'
fees and disbursements, paid or incurred in investigating or defending against
any such claim, demand, action, suit or proceeding. The provisions of this
Section 10 shall survive the termination of this Agreement, and the resignation
or removal of the Escrow Agent.
11. Resignation of Escrow Agent. At any time, upon ten (10) days' written
notice to the Company, Escrow Agent may resign and be discharged from its duties
as Escrow Agent hereunder. As soon as practicable after its resignation, Escrow
Agent will promptly turn over to a successor escrow agent designated by both the
Company and the Transferee, the Shares held hereunder upon presentation of a
document appointing the new escrow agent and evidencing its acceptance thereof.
If, by the end of the ten (10) day period following the giving of notice of
resignation by Escrow Agent, the Company and Transferee shall have failed to
appoint a successor escrow agent, Escrow Agent may interplead the Shares into
the registry of any court having jurisdiction. Upon the transfer of and
accounting for the Shares as set forth in this Section 11, the Escrow Agent
shall be fully relieved of all liability under this Agreement to any and all
parties.
12. Voting Rights.
a. The Transferee hereby appoints the Transferor and any designee of the
Transferor, and each of them individually, its proxies and attorneys-in-fact,
with full power of substitution and re-substitution, to vote or act by written
consent during the term of this Agreement with respect to any Shares that have
not been released to the Transferee under the terms of this Agreement (the
"UNVESTED SHARES"). This proxy and power of attorney is given to secure the
performance of the duties of Transferee under this Agreement. Transferee shall
take such further action or execute such other instruments as may be necessary
to effectuate the intent of this proxy. This proxy and power of attorney granted
by Transferee shall be irrevocable during the term of this Agreement, shall be
deemed to be coupled with an interest sufficient in law to support an
irrevocable proxy and shall revoke any and all prior proxies granted by
Transferee with respect to the Unvested Shares. The power of attorney granted by
Transferee herein is a durable power of attorney and shall survive the
dissolution, bankruptcy, death or incapacity of Transferee. The proxy and power
of attorney granted hereunder shall terminate upon the termination of this
Agreement.
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b. Except as set forth herein, the Transferee agrees that the Transferee
will not, and will not permit any entity under Transferee's control to, deposit
any of the Unvested Shares in a voting trust, grant any proxies with respect to
the Unvested Shares or subject any of the Unvested Shares to any arrangement
with respect to the voting of the Unvested Shares other than agreements entered
into with the Company.
c. The Transferee agrees that during the term of this Agreement, the
Transferee will not, directly or indirectly, transfer, sell, offer, exchange,
assign, pledge or otherwise dispose of or encumber ("TRANSFER") any of the
Unvested Shares or enter into any contract, option or other agreement with
respect to, or consent to, a Transfer of, any of the Unvested Shares or the
Transferee's voting or economic interest therein. Any attempted Transfer of the
Unvested Shares or any interest therein in violation of this Agreement shall be
null and void.
13. Notice. All notices, communications and instructions required or
desired to be given under this Agreement must be in writing and shall be deemed
to be duly given if sent by fax, registered or certified mail, return receipt
requested, or overnight courier, to the addresses listed below:
If to the Company:
Guar Global Ltd.
407 E. Louisiana Street
McKinney, Texas 75069
Attention: Chief Executive Officer
Telephone: (702) 990-8402
with a copy to:
Greenberg Traurig, LLP
Attention: Mark C. Lee, Esq.
1201 K Street, Suite 1100
Sacramento, California 95814
Telephone: (916) 442-1111
Facsimile: (916) 448-1709
If to the Escrow Agent:
Greenberg Traurig, LLP
Attention: Mark C. Lee, Esq.
1201 K Street, Suite 1100
Sacramento, California 95814
Telephone: (916) 442-1111
Facsimile: (916) 448-1709
If to the Transferor:
Joselito Christopher G. Imperial
c/o Ere Management Inc.
8275 Southern Eastern Avenue, Suite 200
Las Vegas, NV 89123
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If to the Transferee:
Michael C. Shores
407 E. Louisiana Street
McKinney, TX 75069
If to the Transfer Agent:
Securities Transfer Corp.
6860 N Dallas Parkway, Suite 200
Plano, TX 75024
P: (469) 633-0101 ext 113
F: (469) 633-0088
Attn: Jason Freeman
14. Execution in Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
15. Assignment and Modification. This Agreement and the rights and
obligations hereunder of any of the parties hereto may not be assigned without
the prior written consent of the other parties hereto. Subject to the foregoing,
this Agreement will be binding upon and inure to the benefit of each of the
parties hereto and their respective successors and permitted assigns. No other
person will acquire or have any rights under, or by virtue of, this Agreement.
No portion of the Shares shall be subject to interference or control by any
creditor of any party hereto, or be subject to being taken or reached by any
legal or equitable process in satisfaction of any debt or other liability of any
such party hereto prior to the disbursement thereof to such party hereto in
accordance with the provisions of this Agreement. This Agreement may be amended
or modified only in writing signed by all of the parties hereto.
16. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California without giving effect to the
principles of conflicts of laws thereof.
17. Headings. The headings contained in this Agreement are for convenience
of reference only and shall not affect the construction of this Agreement.
18. Attorneys' Fees. If any action at law or in equity, including an action
for declaratory relief, is brought to enforce or interpret the provisions of
this Agreement, the prevailing party shall be entitled to recover reasonable
attorneys' fees from the other party (unless such other party is the Escrow
Agent), which fees may be set by the court in the trial of such action or may be
enforced in a separate action brought for that purpose, and which fees shall be
in addition to any other relief that may be awarded.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
set forth opposite their respective names.
COMPANY:
GUAR GLOBAL LTD.
By: /s/ Michael C. Shores
-----------------------------------
Name: Michael C. Shores
Title: Chief Executive Officer
ESCROW AGENT:
GREENBERG TRAURIG, LLP
By: /s/ Greenberg Traurig, LLP
-----------------------------------
Greenberg Traurig, LLP
Its: Escrow Agent
TRANSFEROR:
/s/ Joselito Christopher G. Imperial
--------------------------------------
Joselito Christopher G. Imperial
TRANSFEREE:
/s/ Michael C. Shores
--------------------------------------
Michael C. Shores
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PAGE FOR OTHER PARTIES FOLLOWS IF APPLICABLE.]
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EXHIBIT A
Schedule of Milestones
Milestone: Date: Shares to be Released:
---------- ----- ----------------------
Plant 50HA of guar gum seed; complete 6 months after 2,000,000 shares
Company website; file current report on Effective Date
Form Super 8-K
Plant and harvest over 100HA of guar gum 12 months after 2,000,000 shares
seed (not including initial 50HA); establish Effective Date
relevant research and development in the U.S.
or grow over 10HA guar gum in the U.S.
Plant and harvest over 250HA of guar gum seed 18 months after 2,000,000 shares
(not including that grown to date) Effective Date
Plant and harvest over 500HA of guar gum seed 24 months after 2,000,000 shares
(not including that grown to date) Effective Date
Achieve positive free cash flow 30 months after 2,000,000 shares
Effective Date
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EXHIBIT B
Form of Stock Power
FOR VALUE RECEIVED, the undersigned, hereby sells, assigns and transfers unto
Guar Global Ltd., a Nevada corporation (the "Company"), [_____] ([____]) shares
of Common Stock of the Company, represented by Stock Certificate No. [____], and
does hereby irrevocably constitute and appoint Securities Transfer Corp. to
transfer said stock on the books of the Company with full power of substitution
in the premises:
Dated: ________, 2013
------------------------------------
Michael C. Shores
NOTARY
On ____________ 2013 before me, ___________________________, a notary public in
and for ___________, ______________, [insert jurisdiction], personally appeared
Michael C. Shores, proved to me on the basis of satisfactory evidence to be the
person whose name is subscribed to the within instrument, and acknowledged to me
that he executed the same in his authorized capacities, and that by his
signature on the instrument the person executed the instrument.
WITNESS my hand and official seal.
Signature ___________________________
(This area for official notarial seal)
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