EXHIBIT 10.4
AWI GLOBAL TECHNOLOGIES INC.
CAPITAL STOCK EXCHANGE AGREEMENT
THIS AGREEMENT is made this 30th day of August, 2002, by and between
CYBERTEL COMMUNICATIONS CORP., a Nevada corporation (the "Seller") and
UNIVERSAL BROADBAND COMMUNICATIONS, INC., a Nevada corporation (the
"Purchaser").
WHEREAS, the Seller is the owner of all of the issued and
outstanding shares of the capital stock (the "Stock") of AWI GLOBAL
TECHNOLOGIES INC., a Nevada corporation (the "Company"); and
WHEREAS, the Seller and the Purchaser desire to exchange shares of
the Stock as hereinafter provided;
NOW, THEREFORE, in consideration of the foregoing and the following
mutual covenants and agreements, the Seller and the Purchaser agree as
follows:
1. EXCHANGE OF THE STOCK. Upon the terms and conditions set forth
in this Agreement, the Seller shall exchange, sell, assign, and transfer
to the Purchaser at the closing of this Agreement (the "Closing"), free
and clear of all liens and encumbrances, and the Purchaser, upon the
basis of the covenants, warranties and representations of the Seller set
forth herein, shall accept from the Seller at the Closing all of said
shares of the Stock owned by the Seller.
2. CONSIDERATION. Subject to the terms of this Agreement and in
reliance on the representations and warranties of the Seller, the
Purchaser shall accept the Stock, and in full consideration therefor,
shall deliver to the Seller, in exchange, at the Closing 2,000,000 shares
of the Purchaser's common stock, par value $0.001 per share (the
"Consideration").
3. TAX TREATMENT. The exchange described herein is intended to
comply with all of the provisions of Section 351 of the Internal Revenue
Code of 1986, as amended, and all applicable regulations thereunder. In
order to ensure compliance with said provisions, the parties agree to
take whatever steps may be necessary, including, but not limited to, the
amendment of this Agreement, if necessary.
4. REGISTRATION RIGHTS. It is contemplated by the parties that
certain of the shares of the Stock will be spun-off to the Purchaser's
stockholders pursuant to a registration statement on Form SB-2 (the
"Registration Statement") to be filed by the Purchaser under the
Securities Act of 1933, as amended, as soon as is reasonably possible
after the Closing, with such shares being freely tradable. The Purchaser
hereby undertakes that it will file the Registration Statement as
promptly as possible following the Closing. The Seller agrees to
reasonably cooperate in furnishing all required information reasonably
requested by the Purchaser in connection with the preparation and filing
of the Registration Statement.
- 1 -
5. REPRESENTATIONS AND WARRANTIES OF THE SELLER. Where a
representation contained in this Agreement is qualified by the phrase "to
the best of the Seller's knowledge" (or words of similar import), such
expression means that, after having conducted a due diligence review, the
Seller believes the statement to be true, accurate, and complete in all
material respects. Knowledge shall not be imputed nor shall it include
any matters which such person should have known or should have been
reasonably expected to have known. The Seller represents and warrants as
follows:
(a) POWER AND AUTHORITY. The Seller has full power and
authority to execute, deliver, and perform this Agreement and all other
agreements, certificates or documents to be delivered in connection
herewith, including, without limitation, the other agreements,
certificates and documents contemplated hereby (collectively the "Other
Agreements").
(b) BINDING EFFECT. Upon execution and delivery by the
Seller, this Agreement and the Other Agreements shall be and constitute
the valid, binding and legal obligations of the Seller, enforceable
against the Seller in accordance with the terms hereof and thereof,
except as the enforceability hereof or thereof may be subject to the
effect of (i) any applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or affecting creditors' rights
generally, and (ii) general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
(c) EFFECT. Neither the execution and delivery of this
Agreement or the Other Agreements nor full performance by the Seller of
its obligations hereunder or thereunder will violate or breach, or
otherwise constitute or give rise to a default under, the terms or
provisions of the Articles of Incorporation or Bylaws of the Company or,
subject to obtaining any and all necessary consents, of any contract,
commitment or other obligation of the Company or necessary for the
operation of the Company's business (the "Business") following the
Closing or any other material contract, commitment, or other obligation
to which the Company is a party, or create or result in the creation of
any encumbrance on any of the property of the Company.
(d) NO CONSENTS. No consent, approval or authorization of, or
registration, declaration or filing with any third party, including, but
not limited to, any governmental department, agency, commission or other
instrumentality, will, except such consents, if any, delivered or
obtained on or prior to the Closing, be obtained or made by the Seller
prior to the Closing to authorize the execution, delivery and performance
by the Seller of this Agreement or the Other Agreements.
(e) STOCK OWNERSHIP. The Seller has good, absolute, and
marketable title to 2,000,000 shares of the Stock, which constitute all
of the issued and outstanding shares of the capital stock of the Company.
The Seller has the complete and unrestricted right, power and authority
to sell, transfer and assign the Stock pursuant to this Agreement. The
delivery of the Stock to the Purchaser as herein contemplated will vest
in the Purchaser good, absolute and marketable title to all of the issued
and outstanding shares of the Stock of the Company, free and clear of all
liens, claims, encumbrances, and restrictions of every kind, except those
restrictions imposed by applicable securities laws.
- 2 -
(f) ORGANIZATION AND STANDING OF THE COMPANY. The Company is
a duly organized and validly existing Nevada corporation in good
standing, with all requisite corporate power and authority to carry on
the Business as presently conducted. The Company has not qualified to do
business in any other jurisdiction.
(g) NO SUBSIDIARIES. The Company has no subsidiaries.
(h) CAPITALIZATION. The Company is authorized by its Articles
of Incorporation to issue 500,000,000 shares of common stock, par value
$0.001 per share, 2,000,000 shares of which are duly and validly issued
and outstanding, fully paid, and non-assessable. The Company does not
have any authority to issue any other capital stock or other security.
There are no outstanding options, contracts, commitments, warrants,
preemptive rights, agreements or any rights of any character affecting or
relating in any manner to the issuance of the Stock of the Company or
other securities or entitling anyone to acquire the Stock or other
securities of the Company.
(i) ASSETS AND LIABILITIES. The Company is newly formed and
does not have any assets or liabilities, or pending or threatened claims.
(j) THE SELLER'S REPRESENTATIONS AND WARRANTIES TRUE AND
COMPLETE. All representations and warranties of the Seller in this
Agreement and the Other Agreements are true, accurate and complete in all
material respects as of the Closing.
(k) NO KNOWLEDGE OF THE PURCHASER'S DEFAULT. The Seller has
no knowledge that any of the Purchaser's representations and warranties
contained in this Agreement or the Other Agreements are untrue,
inaccurate or incomplete or that the Purchaser is in default under any
term or provision of this Agreement or the Other Agreements.
(l) NO UNTRUE STATEMENTS. No representation or warranty by
the Seller in this Agreement or in any writing furnished or to be
furnished pursuant hereto, contains or will contain any untrue statement
of a material fact, or omits, or will omit to state any material fact
required to make the statements herein or therein contained not
misleading.
(m) RELIANCE. The foregoing representations and warranties
are made by the Seller with the knowledge and expectation that the
Purchaser is placing complete reliance thereon.
6. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. Where a
representation contained in this Agreement is qualified by the phrase "to
the best of the Purchaser's knowledge" (or words of similar import), such
expression means that, after having conducted a due diligence review, the
Purchaser believes the statement to be true, accurate, and complete in
all material respects. Knowledge shall not be imputed nor shall it
include any matters which such person should have known or should have
been reasonably expected to have known. The Purchaser hereby represents
and warrants to the Seller as follows:
(a) POWER AND AUTHORITY. The Purchaser has full corporate
power and authority to execute, deliver and perform this Agreement and
the Other Agreements.
- 3 -
(b) AUTHORIZATION. The execution, delivery and performance of
this Agreement and the Other Agreements by the Purchaser have been duly
authorized by all requisite corporate action.
(c) BINDING EFFECT. Upon execution and delivery by the
Purchaser, this Agreement and the Other Agreements shall be and
constitute the valid, binding and legal obligations of the Purchaser
enforceable against the Purchaser in accordance with the terms hereof and
thereof, except as the enforceability hereof and thereof may be subject
to the effect of (i) any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting
creditors' rights generally, and (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding
in equity or at law).
(d) NO DEFAULT. Neither the execution and delivery of this
Agreement or the Other Agreements nor full performance by the Purchaser
of its obligations hereunder or thereunder will violate or breach, or
otherwise constitute or give rise to a default under, the terms or
provisions of the Articles of Incorporation or Bylaws of the Purchaser
or, subject to obtaining any and all necessary consents, of any contract,
commitment or other obligation of the Purchaser or necessary for the
operation of the Purchaser's business following the Closing or any other
material contract, commitment, or other obligation to which the Purchaser
is a party, or create or result in the creation of any encumbrance on any
of the Purchaser's assets.
(e) NO CONSENTS. No consent, approval or authorization of, or
registration, declaration or filing with any third party, including, but
not limited to, any governmental department, agency, commission or other
instrumentality, will, except such consents, if any, delivered or
obtained on or prior to the Closing, be obtained or made by the Purchaser
prior to the Closing to authorize the execution, delivery and performance
by the Purchaser of this Agreement or the Other Agreements.
(f) ORGANIZATION AND STANDING OF THE PURCHASER. The Purchaser
is a duly organized and validly existing Nevada corporation in good
standing, with all requisite corporate power and authority to carry on
its business as presently conducted. The Purchaser has not qualified to
do business in any other jurisdiction.
(g) THE PURCHASER'S REPRESENTATIONS AND WARRANTIES TRUE AND
COMPLETE. All representations and warranties of the Purchaser in this
Agreement and the Other Agreements are true, accurate and complete in all
material respects as of the Closing.
(h) NO KNOWLEDGE OF THE SELLER'S DEFAULT. The Purchaser has
no knowledge that any of the Seller's representations and warranties
contained in this Agreement or the Other Agreements are untrue,
inaccurate or incomplete in any respect or that the Seller is in default
under any term or provision of this Agreement or the Other Agreements.
(i) NO UNTRUE STATEMENTS. No representation or warranty by
the Purchaser in this Agreement or in any writing furnished or to be
furnished pursuant hereto, contains or will contain any untrue statement
of a material fact, or omits, or will omit to state any material fact
required to make the statements herein or therein contained not
misleading.
- 4 -
(j) RELIANCE. The foregoing representations and warranties
are made by the Purchaser with the knowledge and expectation that the
Seller is placing complete reliance thereon.
7. ACTIONS OF THE COMPANY PENDING THE CLOSING. The Seller agrees
that from the date hereof through the Closing:
(a) OPERATIONS. The Seller will use its best efforts to cause
the Company to (i) be operated in keeping with its customary practices
and in compliance with all applicable laws, rules and regulations; (ii)
continue to replenish its inventory in a normal and customary manner
consistent with its practices; (iii) use its best efforts to maintain the
relationships of its suppliers, customers and those having business
relations with it; and (iv) not engage in any transaction or make any
commitment or expenditure other than those which are in the usual and
ordinary course of business.
(b) NO CHANGE IN CORPORATE CHARTER. No change will be made in
the Articles of Incorporation or Bylaws of the Company, except as may be
first approved in writing by the Purchaser.
(c) NO CHANGE IN STOCK. No change will be made in the
authorized or issued capital stock of the Company.
(d) NO DEFAULT. The Company shall timely pay and/or not
suffer any default with respect to any of its contracts, commitments or
obligations. The Company shall also continue to pay as they become due
all accounts payable of the Company.
(e) NO CONTRACTS. No contract or commitment will be entered
into by or on behalf of the Company.
(f) NO LIABILITIES. The Company shall not issue or sell any
of its Stock, bonds, notes, or other corporate securities, or incur any
obligation or liability, except as may be first approved in writing by
the Purchaser.
(g) COMPLIANCE. The Seller shall cause the Company and its
officers and employees to comply with all applicable provisions of this
Agreement.
8. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE PURCHASER. All
obligations of the Purchaser under this Agreement are subject to the
fulfillment, prior to or at the Closing, of the following conditions
which must be satisfied as herein specified:
(a) REPRESENTATIONS AND WARRANTIES TRUE AT CLOSING. The
representations and warranties of the Seller herein shall be deemed to
have been made again on the Closing Date, and then be true and correct,
subject to any changes contemplated by this Agreement. The Seller shall
have performed all of the obligations to be performed by it hereunder on
or prior to the Closing Date.
- 5 -
(b) RESIGNATIONS OF DIRECTORS AND OFFICERS. The Seller shall
have delivered to the Purchaser at the Closing the written resignations
of all of the directors and officers of the Company.
(c) EXECUTION AND DELIVERY OF DOCUMENTS. On or before the
Closing Date, the Seller shall have executed and delivered to the
Purchaser all the items listed in Paragraph 14 hereof.
(d) OTHER MATTERS. All corporate and other proceedings and
actions taken in connection with the transactions contemplated hereby and
all certificates, opinions, agreements, instruments and documents
mentioned herein or incident to any such transaction shall be
satisfactory in form and substance to the Purchaser and its counsel,
whose approval shall not be unreasonably withheld.
9. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLER. All
obligations of the Seller under this Agreement are subject to the
fulfillment, prior to or at the Closing, of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES TRUE AT CLOSING. The
representations and warranties of the Purchaser herein shall be deemed to
have been made again on the Closing Date, and then be true and correct,
subject to any changes contemplated by this Agreement. The Purchaser
shall have performed all of the obligations to be performed by the
Purchaser hereunder on or prior to the Closing Date.
(b) RESOLUTIONS. The Seller's counsel shall have received
certified resolutions of a meeting of the Board of Directors of the
Purchaser pursuant to which this Agreement and the transactions
contemplated hereby were duly and validly approved, adopted and ratified
by the Purchaser all in form and content satisfactory to such counsel,
authorizing (i) the execution, delivery and performance of this
Agreement, (ii) such other documents and instruments as shall be
necessary to consummate the transactions contemplated hereby and thereby,
and (iii) all actions to be taken by the Purchaser hereunder.
(c) OTHER MATTERS. All corporate and other proceedings and
actions taken in connection with the transactions contemplated hereby and
all certificates, opinions, agreements, instruments and documents
mentioned herein or incident to any such transaction shall be
satisfactory in form and substance to the Seller and its counsel, whose
approval shall not be unreasonably withheld.
10. THE NATURE AND SURVIVAL OF REPRESENTATIONS, COVENANTS AND
WARRANTIES. All statements and facts contained in any memorandum,
certificate, instrument, or other document delivered by or on behalf of
the parties hereto for information or reliance pursuant to this
Agreement, shall be deemed representations, covenants and warranties by
the parties hereto under this Agreement. All representations, covenants
and warranties of the parties shall survive the Closing and all
inspections, examinations, or audits on behalf of the parties, shall
expire one year following the Closing Date.
- 6 -
11. COOPERATION. The Purchaser and the Seller will each cooperate
with the other, at the other's request and expense, in furnishing
information, testimony, and other assistance in connection with any
actions, proceedings, arrangements, disputes with other persons or
governmental inquiries or investigations involving the Seller's or the
Purchaser's conduct of the Business or the transactions contemplated
hereby.
12. FURTHER CONVEYANCES AND ASSURANCES. After the Closing, the
Seller will, without further cost or expense to, or consideration of any
nature from the Purchaser, execute and deliver, or cause to be executed
and delivered, to the Purchaser, such additional documentation and
instruments of transfer and conveyance, and will take such other and
further actions, as the Purchaser may reasonably request as more
completely to sell, transfer and assign to and fully vest in the
Purchaser ownership of the Stock.
13. CLOSING. The Closing Date of the sale and purchase
contemplated hereunder shall be on or before August 30, 2002, subject to
acceleration or postponement from time to time as the Seller and the
Purchaser mutually agree. The Closing shall be held at the offices of
the Seller at 2:00 p.m., San Diego, California time, on the Closing Date
unless another hour or place is mutually agreed upon by the Seller and
the Purchaser.
14. DELIVERIES AT THE CLOSING BY THE SELLER. At the Closing, the
Seller shall deliver to the Purchaser the following:
(a) Certificates representing all issued and outstanding
shares of the Stock of the Company, duly endorsed in favor of the
Purchaser.
(b) A certificate executed by the Seller to the effect that:
(i) All corporate and other proceedings or actions
required to be taken by the Seller and the Company in connection with the
transactions contemplated by this Agreement have been taken;
(ii) All requisite governmental approvals and
authorizations necessary for consummation by the Seller of the
transactions contemplated hereby have been duly issued or granted; and
(iii) There has not been issued, and there is not in
effect, any injunction or similar legal order prohibiting or restraining
consummation of any of the transactions herein contemplated, and no legal
or governmental action, proceeding or investigation which might
reasonably be expected to result in any such injunction or order is
pending.
(c) The resignations of all of the directors and officers of
the Company.
(d) Any other document which may be necessary to carry out the
intent of this Agreement.
- 7 -
All documents reflecting any actions taken, received or delivered by
the Seller pursuant to this Paragraph 14 shall be reasonably satisfactory
in form and substance to the Purchaser and the Purchaser's counsel.
15. DELIVERIES AT THE CLOSING BY THE PURCHASER. At the Closing,
the Purchaser shall deliver to the Seller the following:
(a) The Consideration, constituting, 2,000,000 shares of the
Purchaser's common stock, par value $0.001 per share, duly endorsed in
favor of the Seller.
(b) A certificate executed by an officer of the Purchaser with
knowledge of the facts to the effect that:
(i) All corporate and other proceedings or actions
required to be taken by the Purchaser in connection with the transactions
contemplated by this Agreement have been taken;
(ii) All requisite governmental approvals and
authorizations necessary for consummation by the Purchaser of the
transactions contemplated hereby have been duly issued or granted; and
(iii) There has not been issued, and there is not in
effect, any injunction or similar legal order prohibiting or restraining
consummation of any of the transactions herein contemplated, and no legal
or governmental action, proceeding or investigation which might
reasonably be expected to result in any such injunction or order is
pending.
(c) Any other document which may be necessary to carry out the
intent of this Agreement.
All documents reflecting any actions taken, received or delivered by
the Purchaser pursuant to this Paragraph 15 shall be reasonably
satisfactory in form and substance to the Seller and the Seller's
counsel.
16. ASSIGNMENT. This Agreement shall be binding upon and inure to
the benefit of the successors of each of the parties hereto, but shall
not be assignable by either party without the prior written consent of
the other party, which consent shall be subject to such party's sole,
absolute and unfettered discretion.
17. NOTICES. All notices, requests, demands, and other
communications hereunder shall be in writing and delivered personally or
sent by registered or certified United States mail, return receipt
requested with postage prepaid, by facsimile, or by e-mail, if to the
Seller, addressed to Mr. Xxxxxxx Xxxxxxx, at 0000 Xx Xxxxxx Xxxxx, Xxxxx
X, Xxxxx, Xxxxxxxxxx 00000, telephone (000) 000-0000, facsimile (888)
267-5950, and e-mail xxxxxxxx@xxxxxxxxxxxx.xxx; and if to the Purchaser,
addressed to Mr. Xxxx Xxxxx at 00000 Xxx Xxxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxx, Xxxxxxxxxx 00000, telephone (000) 000-0000, facsimile (949)
474-1330, and e-mail xxxxxx@xxxxx.xxx. Any party hereto may change its
address upon 10 days' written notice to any other party hereto.
- 8 -
18. CONSTRUCTION. Words of any gender used in this Agreement shall
be held and construed to include any other gender, and words in the
singular number shall be held to include the plural, and vice versa,
unless the context requires otherwise.
19. WAIVER. No course of dealing on the part of any party hereto
or its agents, or any failure or delay by any such party with respect to
exercising any right, power or privilege of such party under this
Agreement or any instrument referred to herein shall operate as a waiver
thereof, and any single or partial exercise of any such right, power or
privilege shall not preclude any later exercise thereof or any exercise
of any other right, power or privilege hereunder or thereunder.
20. CUMULATIVE RIGHTS. The rights and remedies of any party under
this Agreement and the instruments executed or to be executed in
connection herewith, or any of it, shall be cumulative and the exercise
or partial exercise of any such right or remedy shall not preclude the
exercise of any other right or remedy.
21. INVALIDITY. In the event any one or more of the provisions
contained in this Agreement or in any instrument referred to herein or
executed in connection herewith shall, for any reason, be held to be
invalid, illegal or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect the other provisions of
this Agreement or any such other instrument.
22. TIME OF THE ESSENCE. Time is of the essence of this Agreement.
23. MULTIPLE COUNTERPARTS. This Agreement may be exercised in one
or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
24. CONTROLLING AGREEMENT. In the event of any conflict between
the terms of this Agreement or any agreement referred to herein, the
terms of this Agreement shall control.
25. LAW GOVERNING. This Agreement shall be construed and governed
by the laws of the State of California, and all obligations hereunder
shall be deemed performable in San Diego County, California.
26. ENTIRE AGREEMENT. This instrument, together with all Schedules
attached hereto, contain the entire understanding of the parties and may
not be changed orally, but only by an instrument in writing signed by the
party against whom enforcement of any waiver, change, modification,
extension, or discharge is sought.
- 9 -
IN WITNESS WHEREOF, this Agreement has been executed in multiple
counterparts on the date first written above.
CYBERTEL COMMUNICATIONS CORP.
By /s/ XXXXXXX XXXXXXX
---------------------------------
Xxxxxxx Xxxxxxx, President
UNIVERSAL BROADBAND
COMMUNICATIONS, INC.
By /s/ XXXX XXXXX
---------------------------------
Xxxx Xxxxx, President
- 10 -
