STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this "Agreement") dated January 26, 2006,
among Global General Technologies, Inc., a Nevada corporation ("GLGT"), Xxxxxx
Xxxxxx, ("Xxxxxx"), and AirSpeak, Inc., a California corporation ("AirSpeak").
R E C I T AL S :
X. Xxxxxx owns 17,500,000 shares of the issued and outstanding shares
of common stock of AirSpeak (the "Shares").
B. The parties hereto have determined that it is for the benefit of
each of them that GLGT acquire AirSpeak by purchasing from Xxxxxx all of
Xxxxxx'x shares of the capital stock of AirSpeak.
C. The parties hereto have further determined that it is for the
benefit of each of them that, after the Closing, AirSpeak employ Xxxxxx as
further provided herein, and that Xxxxxx be granted a put option with respect to
certain of his shares of GLGT as further provided in Article XI below.
NOW, THEREFORE, in consideration of the covenants, promises and
representations set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, and intending to be
legally bound hereby, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 Certain Definitions. As used in this Agreement and the schedules
hereto, the following terms have the respective meanings set forth below:
"Action" means any administrative, regulatory, judicial or
other proceeding by or before any Governmental Authority or arbitrator.
"Affiliate" means, with respect to any Person, any other
Person that, directly or indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control with, such Person. The
term "control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise,
including the ability to elect the members of the board of directors or other
governing body of a Person, and the terms "controlled" and "controlling" have
correlative meanings.
"Business Day" means a day on which banks are open for
business in the state of New York.
"Claims" means any and all claims, demands or causes of
action, relating to or resulting from an Action.
"Closing" has the meaning given to such term in Section 3.1.
"Closing Date" has the meaning given to such term in Section
3.1.
"Consideration Shares" has the meaning given to such term in
Section 2.2.
"Contract" means any contract, agreement, indenture, deed of
trust, license, note, bond, mortgage, lease, guarantee and any similar
understanding or arrangement, whether written or oral.
"Employment Agreement" has the meaning given to such term in
Section 2.3.
"Encumbrances" means security interests, liens, Claims,
charges, title defects, deficiencies or exceptions (including, with respect to
Real Property, defects, deficiencies or exceptions in, or relating to,
marketability of title, or leases, subleases or the like affecting title),
mortgages, pledges, easements, encroachments, restrictions on use, rights
of-way, rights of first refusal, conditional sales or other title retention
agreements, covenants, conditions or other similar restrictions (including
restrictions on transfer) or other encumbrances of any nature whatsoever.
"End Date" has the meaning given to such term in Section 3.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"GAAP" means United States generally accepted accounting
principles.
"Governmental Authority" means any supranational, national,
federal, state or local government, foreign or domestic, or the government of
any political subdivision of any of the foregoing, or any entity, authority,
agency, ministry or other similar body exercising executive, legislative,
judicial, regulatory or administrative authority or functions of or pertaining
to government, including any authority or other quasi-governmental entity
established by a Governmental Authority to perform any of such functions.
"Indebtedness" of any Person means (i) all obligations of such
Person for money borrowed; (ii) all obligations of such Person evidenced by
notes, debentures, bonds or other similar instruments for the payment of which
such Person is responsible or liable; (iii) all obligations of such Person
issued or assumed for deferred purchase price payments associated with
acquisitions, divestments or other transactions; (iv) all obligations of such
Person under leases required to be capitalized in accordance with GAAP, as
consistently applied by such Person, (v) all obligations of such Person for the
reimbursement of any obligor on any letter of credit, banker's acceptance,
guarantees or similar credit transaction, excluding in all cases in clauses (i)
through (v) current accounts payable, trade payables and accrued liabilities
incurred in the ordinary course of business.
"Laws" means all federal, state, local or foreign laws,
constitutions, statutes, codes, rules, regulations, ordinances, executive
orders, decrees or edicts by a Governmental Authority having the force of law.
"Liability", with respect to a Person, means any liability or
obligation of such Person of any kind, character or description, whether known
or unknown, absolute or contingent, accrued or unaccrued, disputed or
undisputed, liquidated or unliquidated, secured or unsecured, joint or several,
due or to become due, vested or unvested, executory, determined, determinable or
otherwise, and whether or not the same is required to be accrued on the
financial statements of such Person.
"Material Adverse Effect" means, with respect to a Person, any
change, effect, event, occurrence or state of facts which would reasonably be
expected to be materially adverse to the business, operations or financial
condition of such Person, taken as a whole, or on the ability of such Person to
consummate the transactions contemplated by this Agreement, other than any
change, effect, event, occurrence or state of facts (1) that is generally
applicable in the economy affecting such Person, (2) that is generally
applicable in the relevant securities markets, (3) generally affecting the
industry in which such Person operates, (4) arising from or related to an act of
international terrorism, or (5) relating to the announcement or disclosure of
this Agreement and the transactions contemplated hereby.
"Person" means an individual or an entity, including, without
limitation, a partnership, corporation, limited liability company, joint stock
company, unincorporated organization or association, trust, joint venture or
Governmental Authority.
"Required Consents" means, with respect to either AirSpeak or
GLGT, as the case may be, (1) each consent or novation with respect to any
Contract to which AirSpeak or GLGT, as the case may be, is a party or by which
any of its assets are bound required to be obtained from the other parties
thereto by virtue of the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby in order to avoid the
invalidity of the transfer of such Contract, the termination or acceleration
thereof, giving rise to any obligation to make a payment thereunder or to any
increased, additional or guaranteed rights of any person thereunder, a breach or
default thereunder or any other change or modification to the terms thereof, and
(2) each registration, filing, application, notice, transfer, consent, approval,
order, qualification and waiver required from any third party or Governmental
Authority by virtue of the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby.
"Restrictive Legend" has the meaning given to such term in
Section 3.4.
"Securities Act" means the Securities Act of 1933, as amended.
"SEC" means the Securities and Exchange Commission.
"Tax" means any taxes imposed by an Governmental Authority,
including but not limited to any income, gross receipts, payroll, employment,
excise, severance, stamp, business, premium, windfall profits, environmental
(including taxes under section 59A of the Internal Revenue Code, as amended),
capital stock, franchise, profits, withholding, social security (or similar),
unemployment, disability, real property, personal property, sales, use, service,
service use, lease, lease use, transfer, registration, value added tax, or
similar tax, any alternative or add-on minimum tax, and any estimated tax, in
each case, including any interest, penalty, or addition thereto, whether
disputed or not.
"Tax Returns" means all returns, declarations, reports,
estimates, information returns and statements required to be filed in respect of
Taxes.
1.2 References and Title. All references in this Agreement to
articles, sections, subsections and other subdivisions refer to the articles,
sections, subsections and other subdivisions of this Agreement unless
expressly provided otherwise. Titles appearing at the beginning of any section
or subdivision are for convenience only and do not constitute any part of such
subdivisions and shall be disregarded in construing the language contained in
such subdivisions. The words "this Agreement," "this instrument," "herein,"
"hereof," "hereby," "hereunder" and words of similar import refer to this
Agreement as a whole and not to any particular subdivision unless expressly so
limited. The phrases "this Section" and "this subsection" and similar phrases
refer only to the sections or subsections hereof in which such phrases occur.
Pronouns in masculine, feminine and neuter genders shall be construed to
include any other gender, and words in the singular form shall be construed to
include the plural and vice versa, unless the context otherwise requires.
ARTICLE II
SALE AND PURCHASE
2.1 Sale and Purchase. Subject to the terms and conditions of this
Agreement, at the Closing, Xxxxxx shall sell, assign, transfer, convey, and
deliver to GLGT, and GLGT shall accept and purchase, the Shares and any and all
rights in the Shares to which Xxxxxx is entitled, and by doing so Xxxxxx shall
be deemed to have assigned all of his right, title and interest in and to the
Shares to GLGT. Such sale of the Shares shall be evidenced by stock
certificates, duly endorsed in blank or accompanied by stock powers duly
executed in blank, or other instruments of transfer in form and substance
reasonably satisfactory to GLGT.
2.2 Consideration. As payment in full for all of the Shares, GLGT shall
deliver to Xxxxxx the following at Closing:
(a) Fifty Thousand and 00/100 ($50,000.00) Dollars, subject to
the cancellation of the escrow of $20,000, which would be returned to GLGT.
Monies to be paid by certified check or wire transfer of immediately available
funds;
(b) a promissory note in the form annexed hereto as Exhibit A,
in the principal amount of One Hundred Eighty Thousand and 00/100 ($180,000.00)
Dollars (the "Promissory Note"); and
(c) Seven Hundred Fifty Thousand (750,000) shares of the
common stock of GLGT (the "Consideration Shares"); and
2.3 Employment of Xxxxxx by AirSpeak. At the Closing, Xxxxxx, AirSpeak,
and GLGT shall enter into an employment agreement (the "Employment Agreement")
pursuant to which Xxxxxx shall be employed by AirSpeak after the Closing on the
following general terms: Xxxxxx shall receive an annual salary of One Hundred
Thirty Three and 00/100 ($133,000.00) Dollars. As additional compensation,
Xxxxxx shall receive a commission as follows: (a) for each One Million and
00/100 Dollars ($1,000,000.00) of personally initiated and direct-sales of
gaming related revenue generated during the twenty four (24) month period after
the Closing, GLGT shall issue to Xxxxxx One Hundred Thousand (100,000) shares of
the common stock of GLGT, prorated commensurately; (b) Xxxxxx shall be paid an
amount equal to 5.5% of all personally initiated and direct-sales of gaming
related revenue generated at any time after the first day of the twenty fifth
(25th) month following the Closing; (c) Xxxxxx shall be paid an amount equal to
5.5% of all non-gaming revenue directly generated by Xxxxxx. The other terms of
the Employment Agreement shall be negotiated in good faith by the parties after
the execution of this Agreement; and (e) Xxxxxx shall be paid an amount equal to
5.5% of all personally initiated outside investment monies made into AirSpeak.
ARTICLE III
CLOSING
3.1 Date and Location of the Closing. Unless this Agreement shall have
been terminated pursuant to Article IX, the closing (the "Closing") of the
transactions contemplated hereunder shall take place at the offices of GLGT's
attorney, Xxxxx Xxxxx & Associates PLLC, 00 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, XX
00000, on or as promptly as practicable following satisfaction or waiver of the
conditions set forth in Sections 8.1 and 8.2, or at such other time and place as
is mutually agreed in writing by the parties hereto, but in no event later than
three (3) months after the date hereof (the "End Date"). The date of the Closing
is referred to herein as the "Closing Date."
3.2 Deliveries. At the Closing,
(a) AirSpeak and Xxxxxx shall deliver to GLGT the following:
(i) stock certificates evidencing all the Shares,
duly endorsed in blank or
accompanied by stock powers duly executed in blank, signature medallion
guaranteed, in proper form for transfer to GLGT, and any documentary evidence of
the due recordation in AirSpeak's share register of GLGT's full and unrestricted
title to all of the Shares;
(ii) the Employment Agreement, executed by Xxxxxx and
AirSpeak
(iii) such other documents as may be required under
applicable law or required by
GLGT, including without limitation, any Required Consents;
(iv) a legal opinion substantially in a form
reasonably acceptable to GLGT's counsel;
(v) a good standing certificate from the Secretary of
State of the State of incorporation of AirSpeak, dated not less than two
business days from the Closing Date; and
(vi) and various certificates, instruments, and
documents referred to in Section 8.2
below.
(b) GLGT shall deliver to Xxxxxx:
(i) stock certificates evidencing the Consideration
Shares, to be delivered no later
than five (5) business days after the Closing Date;
(ii) the Employment Agreement, executed by GLGT;
(iii) such other documents as may be required under
applicable law or required by
GLGT, including without limitation, any Required Consents; and
(iv) the various certificates, instruments, and
documents referred to in Section 8.1
below.
3.3 Wholly-Owned Subsidiary. At and after the Closing, the share
exchange contemplated hereby will have the effects set forth in this
Agreement, and AirSpeak shall become a subsidiary of GLGT.
3.4 Restrictive Legends. Certificates evidencing the shares to be issued
by GLGT to Xxxxxx pursuant to this Agreement shall bear the following legend,
including without limitation, any legend required by the laws of the
jurisdiction in which Xxxxxx reside, and any legend required by any applicable
law, including without limitation, any legend that will be useful to aid
compliance with Regulation D or other regulations adopted by the SEC under the
Securities Act (the "Restrictive Legends"):
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH
RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED OR
UNLESS TRANSFERRED PURSUANT TO ANY VALID EXEMPTION FROM REGISTRATION
AVAILABLE UNDER SUCH ACT."
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF AIRSPEAK
As an inducement to GLGT to enter into this Agreement and to consummate
the transactions contemplated herein, AirSpeak and Xxxxxx represent and warrant,
jointly and severally, as of the date of this Agreement and as of the Closing
Date, to GLGT as follows:
4.1 Organization. AirSpeak is a corporation duly organized,
validly existing, and in good standing under the laws of California. AirSpeak
has all requisite power to own, operate and lease its business and assets and
carry on its business as the same is now being conducted.
4.2 Capital Structure.
(a) AirSpeak's authorized capital stock consists of
17,500,000 shares of common
stock, of which approximately 18,500,000 are issued and outstanding (detailed
Schedule to be provided by AirSpeak's legal counsel). To the best of Xxxxxx'x
knowledge, as per the corporate books and per counsel, Xxxxx Xxxxx, Xxxxxxxx &
Xxxx, Esq., there are no shares of capital stock of AirSpeak issued or
outstanding other than the foregoing shares. Xxxxxx owns at least ____ of the
issued and outstanding shares of AirSpeak. Xxxxxx owns the Shares beneficially
and of record, free and clear of any Encumbrances. Xxxxxx has the sole, absolute
and unrestricted right, power and capacity to exchange, assign and transfer all
of the Shares to GLGT. Upon delivery to GLGT of the certificates representing
the Shares at the Closing, GLGT will acquire good and valid title to such
shares, free and clear of any Encumbrances.
(b) All of the Shares are duly authorized, validly
issued, fully paid and
nonassessable, and were not issued in violation of any preemptive or similar
rights. There are no outstanding subscriptions, options, warrants, puts, calls,
agreements or other rights of any type or other securities (a) requiring the
issuance, sale, transfer, repurchase, redemption or other acquisition of any
shares of capital stock of AirSpeak, (b) restricting the transfer of any shares
of capital stock of AirSpeak, or (c) relating to the voting of any shares of
capital stock of AirSpeak. There is no issued or outstanding Indebtedness of
AirSpeak having the right to vote (or convertible into, or exchangeable for,
securities having the right to vote), upon the happening of a certain event or
otherwise, on any matters on which the equity holders of AirSpeak may vote.
(c) The offer and sale of the Shares to Xxxxxx was
done in compliance with all
applicable Laws.
4.3 Corporate Power and Authority. AirSpeak has all requisite
corporate power and authority to enter into and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution, delivery, and
performance of this Agreement by AirSpeak and the consummation by it of the
transactions contemplated hereby, and the execution, delivery and performance of
the other agreements, documents and instruments to be executed and delivered in
connection with this Agreement by AirSpeak and the consummation of the
transactions contemplated thereby, have been duly authorized by all necessary
action on the part of AirSpeak and no other corporate action or corporate
proceeding on the part of AirSpeak is necessary to authorize the execution,
delivery, and performance by AirSpeak of this Agreement and the consummation of
the transactions contemplated hereby. This Agreement has been duly executed and
delivered by AirSpeak and constitutes the legal, valid and binding obligation of
AirSpeak, enforceable against it in accordance with its terms.
4.4 Conflicts; Consents and Approvals. Neither the execution
and delivery by AirSpeak of this Agreement and the other agreements, documents
and instruments to be executed and delivered by it in connection with this
Agreement, nor the consummation of the transactions contemplated hereby and
thereby, will:
(a) conflict with, or result in a breach of any
provision of, the organizational
documents of AirSpeak;
(b) violate, or conflict with, or result in a breach
of any provision of, or
constitute a default (or an event that, with the giving of notice, the passage
of time or otherwise, would constitute a default) under, or entitle any Person
(with the giving of notice, the passage of time or otherwise) to terminate,
accelerate, modify or call a default under, or give rise to any obligation to
make a payment under, or to any increased, additional or guaranteed rights of
any Person under, or result in the creation of any Encumbrance upon any of the
properties or assets of AirSpeak or the Shares under any of the terms,
conditions or provisions of (1) the organizational documents of AirSpeak, (2)
any Contract to which AirSpeak is a party or to which any of its properties or
assets may be bound, or (3) any permit, registration, approval, license or other
authorization or filing to which AirSpeak is subject or to which any of its
properties or assets may be subject;
(c) require any Required Consent; or
(d) violate any order, writ, or injunction, or any
decree, or Law applicable to
AirSpeak or any of its properties or assets.
4.5 No Material Adverse Effect. (a) AirSpeak has (1)
maintained its books and records in accordance with past accounting practice,
and (2) used all reasonable commercial efforts to preserve intact the assets and
the business organization and operations of AirSpeak, to keep available the
services of its employees and to preserve its relationships with customers,
suppliers, licensors, licensees, contractors and other persons with whom
AirSpeak have business relations, (b) no Material Adverse Effect on AirSpeak has
occurred, and (c) there has been no event, occurrence or development that has
had, or would reasonably be expected to have, a material adverse effect on the
ability of Xxxxxx or AirSpeak to timely consummate the transactions contemplated
hereby.
4.6 Contracts. Schedule 4.6 contains a complete list, as of
the date hereof, of all Contracts to which AirSpeak is, or will be at Closing, a
party or bound, or that otherwise relate to its business or assets. AirSpeak has
made available to GLGT or its representatives correct and complete copies of all
such Contracts with all amendments thereof. Each such Contract is, and will at
Closing be, valid, binding, and enforceable against AirSpeak and the other
parties thereto in accordance with its terms, and is, and will at Closing be, in
full force and effect. AirSpeak is not in default under or in breach of or is,
or as of the Closing will be, otherwise materially delinquent in performance
under any such Contract, and no event has occurred, or will as of the Closing
occur, that, with notice or lapse of time, or both, would constitute such a
default. Each of the other parties thereto has performed in all material
respects all of the obligations required to be performed by it under, and is not
in material default under, any such Contract and no event has occurred that,
with notice or lapse of time, or both, would constitute such a default. There
are no disputes pending or threatened in writing with respect to any such
Contracts. Neither AirSpeak nor any other party to any such Contract has
exercised any option granted to it to terminate or shorten or extend the term of
such Contract, and AirSpeak has not given notice or received notice to such
effect. All of such Contracts will continue to be valid, binding, enforceable
and in full force and effect on substantially identical terms following the
consummation of the transactions contemplated hereby.
4.7 Liabilities. Except as set forth in Schedule 4.7, AirSpeak
has no Liabilities.
4.8 Litigation. There is no Action pending or threatened
against AirSpeak, or any executive officer or director thereof that (a) relates
to AirSpeak, its assets, or its business, or (b) as of the date hereof, seeks,
or could reasonably be expected, to prohibit or restrain the ability of AirSpeak
to enter into this Agreement or to timely consummate any of the transactions
contemplated hereby, and there is no reasonable basis for any such Action. There
are no judgments, decrees, agreements, memoranda of understanding or orders of
any Governmental Authority outstanding against AirSpeak.
4.9 Taxes. AirSpeak has (a) duly and timely filed all Tax
Returns relating to AirSpeak that it was required to file (taking into account
any extensions of Taxes that are shown thereon as owing or that are otherwise
due and payable by it, except as follows: 2004 Tax Returns are currently in the
process of completion; 2005 Tax Returns are in process and will probably be
completed in a timely manner. Filed Tax Returns are true, correct and complete
in all material respects.
4.10 Compliance with Law. AirSpeak and each of the officers,
directors, employees and agents of AirSpeak has complied in all respects with
all Laws applicable to AirSpeak and its products and operations. AirSpeak has
not received any notice from any Governmental Authority, nor has any reason to
believe, that AirSpeak has been or is being conducted in violation of any
applicable Law or that an investigation or inquiry into any noncompliance with
any applicable Law is ongoing, pending or threatened.
4.11 Environmental Matters. AirSpeak is in compliance with,
and has at all times complied with, all applicable environmental Laws,
including, without limitation, Laws relating to pollution or protection of human
health and safety or the environment (including ambient air, surface water,
groundwater, land surface, natural resources or subsurface strata), and there
are no facts, circumstances or conditions, including requirements of current
environmental Laws that have been adopted but are not yet effective, for which
reserves or accruals would be required under GAAP, as consistently applied.
4.12 Permits; Compliance. AirSpeak is in possession of all
franchises, grants, authorizations, licenses, permits, easements, variances,
exemptions, consents, certificates, approvals and orders necessary to own, lease
and operate its properties and assets and to carry on its business as it is now
being conducted and as it will be conducted through to the Closing
(collectively, the "Permits"). Each Permit is valid and in full force and
effect. AirSpeak is in compliance with the terms of all such Permits. There is
no Action pending or threatened regarding any of the Permits and each such
Permit is in full force and effect. AirSpeak is not in conflict with, or in
material default (or would be in default with the giving of notice, the passage
of time, or both) with, or in violation of, any of the Permits.
4.13 Employment Matters.
(a) Schedule 4.13 contains a complete and accurate list of the
following information for each employee, director, independent contractor,
consultant and agent of AirSpeak, including each employee on leave of absence or
layoff status: name; job title; date of hiring or engagement; date of
commencement of employment or engagement; current compensation paid or payable;
sick and vacation leave that is accrued but unused; and service credited for
purposes of vesting and eligibility to participate under any employee benefit
plan.
..
(b) AirSpeak has complied in all respects with all Laws
relating to employment practices, terms and conditions of employment, equal
employment opportunity, nondiscrimination, immigration, wages, hours, benefits,
collective bargaining, the payment of social security and similar Taxes and
occupational safety and health. AirSpeak is not liable for the payment of any
Taxes, fines, penalties, or other amounts, however designated, for failure to
comply with any of the foregoing Legal Requirements.
(c) AirSpeak has not been, and is not now, a party to any
collective bargaining agreement or other labor contract.
(d) AirSpeak does not, and never has had, any employee benefit
plans, including, without limiations, "employee benefit plans" as defined by
Section 3(3) of the Employee Retirement Income Security Act of 1974.
4.14 Assets. Schedule 4.14 lists all assets of AirSpeak. The
assets set forth on Schedule 4.14 are sufficient for the conduct of the
AirSpeak's business as it is currently being conducted by AirSpeak. Except as
set forth on Schedule 4.14, AirSpeak has good and marketable title to all of its
assets, free and clear of all Encumbrances.
4.15 Real Property.
(a) Schedule 4.15 sets forth a list, complete and
accurate in all respects, of all
real property that is, as of the date hereof, and will be as of the Closing,
owned, leased, or subleased to AirSpeak. AirSpeak has provided GLGT with true
and correct copies of all leases for any leased real property (each, a "Real
Property Lease").
(b) Each Real Property Lease is and will be at the
Closing valid, binding and
enforceable against AirSpeak and, to the knowledge of AirSpeak, the other
parties thereto in accordance with its terms, and is in full force and effect.
(c) As of the Closing, AirSpeak will not be in
default under, in breach of or
otherwise delinquent in performance under any Real Property Lease and, no event
has occurred, or as of the Closing will occur, which, with due notice or lapse
of time, or both, would constitute such a default.
(d) There are no leases or subleases to which
AirSpeak will be a party or bound at
Closing, as lessor, and third parties, as lessees, with respect to any of the
real property, except as disclosed in Schedule 4.15.
(e) There does not exist any actual, threatened or
contemplated condemnation or
eminent domain proceedings that affect any Leased Real Property.
(f) The current use and occupancy of the Leased Real
Property and the improvements
located thereon are not in violation of any material recorded covenants,
conditions, restrictions, reservations, easements or agreements affecting the
Leased Real Property.
4.16 Intellectual Property.
(a) For the purposes of this Agreement, the following
terms have the following
definitions:
(1) "Intellectual Property" means
any or all of the following and
all rights in, arising out of, or associated therewith: (i) all patents and
applications therefor throughout the world, and all reissues, divisions,
renewals, extensions, provisionals, continuations and continuations-in-part
thereof; (ii) all inventions (whether patentable or not), invention disclosures,
improvements, trade secrets, proprietary information, know how, technology,
technical data and customer lists, and all documentation relating to any of the
foregoing; (iii) all copyrights, copyrights registrations and applications
therefor, and all other rights corresponding thereto throughout the world; (iv)
all industrial designs and any registrations and applications therefor
throughout the world, (v) all trade names, logos, URLs, common law trademarks
and service marks, trademark and service xxxx registrations and applications
therefor throughout the world; (vi) all databases and data collections and all
rights therein throughout the world; (vii) all moral and economic rights of
authors and inventors, however denominated, throughout the world, and (viii) any
similar or equivalent rights to any of the foregoing anywhere in the world.
(2) "Registered Intellectual
Property" means all: (i) registered
patents and applications for patent registration (including provisional
applications); (ii) registered trademarks, applications to register trademarks,
intent-to-use applications, or other registrations or applications related to
trademarks; (iii) registered copyrights and applications for copyright
registration; and (iv) any other Intellectual Property that is the subject of an
application, certificate, filing, registration or other document issued, filed
with, or recorded by any state, government or other public legal authority.
(3) "AirSpeak Intellectual
Property" shall mean any Intellectual
Property or Registered Intellectual Property that is owned by, or licensed to
AirSpeak.
(b) No AirSpeak Intellectual Property or product or
service of AirSpeak is subject to any
Action or Claim, agreement, or stipulation restricting in any manner the use,
transfer, or licensing thereof by AirSpeak, or which may affect the validity,
use or enforceability of such AirSpeak Intellectual Property.
(c) Schedule 4.16 is a complete and accurate list of all
the AirSpeak Intellectual Property
and specifies, where applicable, the jurisdictions in which each such item of
the Registered Intellectual Property has been issued or registered or in which
an application for such issuance and registration have been filed, including the
respective registration or application numbers. Each item of the AirSpeak
Intellectual Property is valid and subsisting, all necessary registration,
maintenance and renewal fees currently due in connection with such Intellectual
Property have been made and all necessary documents, recordations and
certificates in connection with such AirSpeak Intellectual Property have been
filed with the relevant patent, copyright, trademark or other authorities in the
United States or foreign jurisdictions, as the case may be, for the purposes of
maintaining such AirSpeak Intellectual Property.
(d) AirSpeak owns and has good and exclusive title to, or
has license (sufficient for the
conduct of its business as currently conducted and as proposed to be conducted)
to, each item of the AirSpeak Intellectual Property free and clear of any
Encumbrances (excluding licenses and related restrictions).
(e) Schedule 4.16 lists all Contracts pursuant to which a
Person has licensed or
transferred any intellectual property to AirSpeak. All Contracts relating to
AirSpeak's intellectual property are in full force and effect. The consummation
of the transactions contemplated by this Agreement will neither violate nor
result in the breach, modification, cancellation, termination, or suspension of
such Contracts. AirSpeak is in compliance with, and has not breached any term of
such Contracts and, to the knowledge of AirSpeak, all other parties to such
Contracts are in compliance with, and have not breached any term of, such
Contracts. Following the Closing, GLGT will be permitted to exercise all the
rights of AirSpeak under such Contracts to the same extent AirSpeak would have
been able to had the transactions contemplated by this Agreement not occurred
and without the payment of any additional amounts or consideration other than
ongoing fees, royalties or payments which AirSpeak would otherwise be required
to pay.
(f) AirSpeak has not infringed or misappropriated any
intellectual property of any third
Person or engaged in unfair competition or any unlawful trade practice. AirSpeak
has not received notice from any third party that the operation of the business
of AirSpeak, or any act, product or service of AirSpeak, infringes or
misappropriates the Intellectual Property of any third party or constitutes
unfair competition or trade practices under the laws of any jurisdiction. No
Person has infringed or misappropriated or is infringing or misappropriating any
the AirSpeak Intellectual Property.
4.17 Brokers, Finders, etc. AirSpeak is not a party to any
agreement with any finder or broker, or in any other way obligated to any finder
or broker, for any commissions, fees or expenses in connection with the origin,
negotiation, execution or performance of this Agreement or the transactions
contemplated hereby.
4.18 Financial Statements and Information. The financial
statements and other financial information of AirSpeak that AirSpeak has made
available to GLGT or its representatives is true and correct in all material
respects, does not contain any untrue statement of a material fact, fairly
reflects the financial condition of AirSpeak, and does not omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
4.19 Accounts Receivables. Schedule 4.19 contains a complete
and accurate list of all Accounts Receivable (hereafter defined) as of the
Closing Date, which list sets forth the aging of each such Account Receivable.
All Accounts Receivable represent or will represent valid obligations arising
from sales actually made or services actually performed by AirSpeak in the
ordinary course of business. Except to the extent paid prior to the Closing
Date, such Accounts Receivable are or will be as of the Closing Date current and
collectible. Each of such Accounts Receivable either has been or will be
collected in full, without any setoff, within ninety (90) days after the day on
which it first becomes due and payable. There is no contest, claim, defense or
right of setoff, other than returns in the ordinary course of business of
AirSpeak, under any Contract with any account debtor of an Account Receivable
relating to the amount or validity of such Account Receivable. "Accounts
Receivable" means (a) all trade accounts receivable and other rights to payment
from customers of AirSpeak and the full benefit of all security for such
accounts or rights to payment, including all trade accounts receivable
representing amounts receivable in respect of goods shipped or products sold or
services rendered to customers of AirSpeak, (b) all other accounts or notes
receivable of AirSpeak and the full benefit of all security for such accounts or
notes and (c) any claim, remedy or other right related to any of the foregoing.
4.20 Full Disclosure. No representation or warranty of
AirSpeak in this Agreement omits to state a material fact necessary to make the
statements herein, in light of the circumstances in which they were made, not
misleading. There is no fact known to AirSpeak that has specific application to
AirSpeak and that materially adversely affects or, as far as can be reasonably
foreseen, materially threatens, the assets, business, prospects, financial
condition, or results of operations of AirSpeak that has not been set forth in
this Agreement.
ARTICLE V
ADDITIONAL REPRESENTATIONS AND WARRANTIES
OF XXXXXX
As an inducement to GLGT to enter into this Agreement and to consummate
the transactions contemplated herein, Xxxxxx represents and warrants, as of the
date of this Agreement and as of the Closing Date, to GLGT as follows:
5.1 Authority. Xxxxxx has the right, power, authority and capacity to
execute and deliver this Agreement to which he is or will become a party, to
consummate the transactions contemplated hereby and to perform his respective
obligations under this Agreement to which he is or will become a party. This
Agreement has been duly authorized, executed and delivered by Xxxxxx and is
enforceable against Xxxxxx in accordance with the terms hereof. Xxxxxx has all
authorizations and consents necessary for the execution and delivery of this
Agreement, and for the performance of his obligations hereunder. This Agreement
constitutes the legal, valid and binding obligations of Xxxxxx, enforceable
against him in accordance with the terms hereof.
5.2 Ownership. Xxxxxx has (i) good and marketable title to the Shares,
free and clear of all Encumbrances, and (ii) full legal right and power to sell,
transfer and deliver such Shares to GLGT in accordance with this Agreement. The
Shares are the only securities of AirSpeak held by Xxxxxx. Upon delivery of the
Shares to be conveyed to GLGT in accordance with this Agreement, GLGT will
receive good and marketable title to all the Xxxxxx Shares, free and clear of
all Encumbrances, and Xxxxxx will have no further interest, direct or indirect,
in AirSpeak.
5.3 No Conflict. None of the execution, delivery or performance of
this Agreement to which Xxxxxx is or will become a party, and the consummation
of the transactions contemplated hereby by Xxxxxx conflicts or will conflict
with or results or will result in any breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any Encumbrance upon, any of its properties or assets pursuant to
(i) the terms of any Contract to which he is a party or by which he is bound or
to which any of his properties is subject, which conflict, breach, violation or
default would adversely affect the Stockholder's ability to perform its
obligations hereunder; (ii) any statute, rule or regulation of any Governmental
Authority having jurisdiction over him or any of his activities or properties;
or (iv) the terms of any order of any arbitrator or any Governmental Authority
having such jurisdiction.
5.4 No Consent. No consent, approval, authorization or order of, or
any filing or declaration with any Governmental Authority or any other Person is
required for the consummation by Xxxxxx of any of the transactions on his part
contemplated under this Agreement.
5.5 Investment. Xxxxxx is acquiring the Consideration Shares for
investment, for Xxxxxx'x own account and not with a view to distribution. Xxxxxx
acknowledges that Consideration Shares will not be registered under the
Securities Act and may be transferred only if the shares are eventually
registered or if an applicable exemption exists for the transfer under
securities Laws. Xxxxxx understands and acknowledges that the offering of
Consideration Shares pursuant to this Agreement is made on the basis of an
exemption from registration pursuant to Section 4(2) and/or Section 3(b) of the
Securities Act and Regulation D thereunder and that GLGT's reliance upon such
exemption is predicated upon Xxxxxx'x representations as set forth in this
Agreement. Xxxxxx acknowledges that due to this lack of registration, there may
not be a market for the Consideration Shares.
5.6 Experience. Xxxxxx represents that: (a) Xxxxxx has such knowledge
and experience in financial and business matters as to be capable of evaluating
the merits and risks of his prospective investment in the Consideration Shares;
and (b) Xxxxxx has received all the information he has requested from GLGT and
considers necessary or appropriate for deciding whether to obtain the
Consideration Shares.
5.7 Agreements Regarding Company Shares. There are no voting trusts
or other Contracts or understandings to which Xxxxxx is a party with respect to
the transfer, Encumbrance, voting or registration of the Shares and there are no
Contracts relating to the issuance, sale or transfer of any equity securities or
other securities of AirSpeak.
5.8 Full Disclosure. No representation or warranty of Xxxxxx in this
Agreement omits to state a material fact necessary to make the statements
herein, in light of the circumstances in which they were made, not misleading.
There is no fact known to Xxxxxx that has specific application to the Xxxxxx
Shares or AirSpeak and that materially adversely affects or, as far as can be
reasonably foreseen, materially threatens, the Shares or the assets, business,
prospects, financial condition, or results of operations of AirSpeak that has
not been set forth in this Agreement.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF GLGT
As an inducement to Xxxxxx and AirSpeak to enter into this Agreement
and to consummate the transactions contemplated herein, GLGT represents and
warrants, as of the date of this Agreement and as of the Closing Date, to Xxxxxx
and AirSpeak as follows:
6.1 Organization. GLGT is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Nevada.
GLGT has all requisite power to own, operate and lease its business and assets
and carry on its business as the same is now being conducted.
6.2 Corporate Power and Authority. GLGT has all requisite
corporate power and authority to enter into and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution, delivery, and
performance of this Agreement by GLGT and the consummation of the transactions
contemplated hereby, have been duly authorized by all necessary action and no
other corporate action or corporate proceeding on the part of GLGT is necessary
to authorize the execution, delivery, and performance by GLGT of this Agreement
and the consummation by GLGT of the transactions contemplated hereby. This
Agreement has been duly executed and delivered by GLGT and constitutes the
legal, valid and binding obligation of GLGT, enforceable against GLGT in
accordance with its terms.
6.3 Conflicts; Consents and Approvals. Neither the execution
and delivery by the GLGT of this Agreement and the other agreements, documents
and instruments to be executed and delivered by any of them in connection with
this Agreement, nor the consummation of the transactions contemplated hereby and
thereby, will:
(a) conflict with, or result in a breach of any
provision of, the organizational
documents of GLGT;
(b) violate, or conflict with, or result in a breach
of any provision of, or
constitute a default (or an event that, with the giving of notice, the passage
of time or otherwise, would constitute a default) under, or entitle any Person
(with the giving of notice, the passage of time or otherwise) to terminate,
accelerate, modify or call a default under, or give rise to any obligation to
make a payment under, or to any increased, additional or guaranteed rights of
any Person under, or result in the creation of any Encumbrance upon any of the
properties or assets of GLGT or the shares to be issued to Xxxxxx hereunder
under any of the terms, conditions or provisions of (1) the organizational
documents of GLGT, (2) any Contract to which GLGT is a party or to which any of
their respective properties or assets may be bound which, if so affected, would
either have a Material Adverse Effect or be reasonably likely to prevent the
consummation of the transactions contemplated herein, or (3) any permit,
registration, approval, license or other authorization or filing to which GLGT
is subject or to which any of its properties or assets may be subject;
(c) require any action, consent or approval of any
non-governmental third party;
(d) violate any order, writ, or injunction, or any
material decree, or material
Law applicable to GLGT or any of its, business, properties, or assets; or
(e) require any action, consent or approval of, or
review by, or registration or
filing by GLGT with any Governmental Authority.
6.4 Consideration Shares. The Consideration Shares shall be
duly authorized, validly issued, fully paid and nonassessable, and not issued in
violation of any preemptive or similar rights. Upon delivery to Xxxxxx of the
certificates representing the Consideration Shares at the Closing, Xxxxxx will
acquire good and valid title to such shares, free and clear of any Encumbrances,
other than restrictions under applicable securities laws.
6.5 SEC Documents. GLGT has timely filed all reports,
schedules, forms, statements and other documents required to be filed by it with
the SEC pursuant to the reporting requirements of the Exchange Act (all of the
foregoing filed prior to the date hereof and all exhibits included therein and
financial statements and schedules thereto and documents (other than exhibits to
such documents) incorporated by reference therein, being hereinafter referred to
herein as the "SEC Documents"). As of their respective dates, the SEC Documents
complied in all material respects with the requirements of the Exchange Act and
the rules and regulations of the SEC promulgated thereunder applicable to the
SEC Documents, and none of the SEC Documents, at the time they were filed with
the SEC, contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. None of the statements made in any such SEC Documents is, or has
been, required to be amended or updated under applicable law (except for such
statements as have been amended or updated in subsequent filings prior to the
date hereof). GLGT has not received any communication from the SEC, NASD or
other regulatory agency with respect to the SEC Documents.
6.6 No Material Adverse Effect. (a) GLGT has (1) maintained
its books and records in accordance with past accounting practice, and (2) used
all reasonable commercial efforts to preserve intact the assets and the business
organization and operations of GLGT, to keep available the services of its
employees and to preserve its relationships with customers, suppliers,
licensors, licensees, contractors and other persons with whom GLGT have business
relations, (b) no Material Adverse Effect on GLGT has occurred, and (c) there
has been no event, occurrence or development that has had, or would reasonably
be expected to have, a material adverse effect on the ability of GLGT to timely
consummate the transactions contemplated hereby.
6.7 Full Disclosure. No representation or warranty of GLGT in
this Agreement omits to state a material fact necessary to make the statements
herein, in light of the circumstances in which they were made, not misleading.
There is no fact known to GLGT that has specific application to GLGT and that
materially adversely affects or, as far as can be reasonably foreseen,
materially threatens, the assets, business, prospects, financial condition, or
results of operations of GLGT that has not been set forth in this Agreement.
ARTICLE VII
ADDITIONAL AGREEMENTS AND COVENANTS
7.1 Due Diligence. From the date hereof until the earlier of the
Closing, the termination of this Agreement pursuant to the terms hereof, or
sixty (60) days after the date hereof (the "Due Diligence Period"), AirSpeak and
Xxxxxx shall permit representatives of GLGT to have reasonable access during
normal business hours and upon reasonable notice to all premises, properties,
personnel, books, records, Contracts, commitments, reports of examination and
documents of or pertaining to, as may be necessary to permit GLGT to make, or
cause to be made, such investigations thereof as GLGT reasonably deems necessary
or advisable in connection with the consummation of the transactions
contemplated by this Agreement, and AirSpeak and Xxxxxx shall reasonably
cooperate with any such investigations. No investigation by GLGT or its
representatives or advisors prior to or after the date of this Agreement
(including any information obtained by a party pursuant to this Section 7.1)
shall diminish, obviate or cure any breach of any representation, warranty,
covenant or agreement contained in this Agreement nor shall the conduct or
completion of any such investigation be a condition to any of such party's
obligations under this Agreement.
7.2 Confidentiality. Each of the parties shall use reasonable efforts
to cause their respective Affiliates, officers, directors, employees, auditors,
attorneys, consultants, advisors and agents, to treat as confidential and hold
in strict confidence, unless compelled to disclose by judicial or administrative
process or, in the opinion of its counsel, by other requirements of Law, and
after prior written notice to the other parties, all confidential information of
GLGT or AirSpeak, as the case may be, that is made available in connection with
this Agreement, and will not release or disclose such confidential information
to any other Person, except their respective auditors, attorneys, financial
advisors and other consultants, agents, and advisors in connection with this
Agreement. If the Closing does not occur (a) such confidence shall be maintained
by the parties and each party shall use reasonable efforts to cause its
officers, directors, Affiliates and such other Persons to maintain such
confidence, except to the extent such information comes into the public domain
(other than as a result of an action by such party, its officers, directors or
such other Persons in contravention of this Agreement), and (b) upon the request
of any party, the other party shall promptly return to the request party any
written materials remaining in its possession, which materials it has received
from the requesting party or its representatives, together with any analyses or
other written materials based upon the materials provided.
7.3 Conduct of Business. From and after the date hereof until the
Closing, except as otherwise expressly contemplated by this Agreement, each of
AirSpeak and GLGT shall:
(a) use reasonable commercial efforts to preserve its
business, operations, physical facilities, working conditions and its business
relationships with customers, suppliers, licensors, licensees, contractors and
other persons with whom it has significant business relations;
(b) not knowingly take any action that would cause the
representations and warranties contained herein to be untrue in any respect.
(c) not amend its Certificate of Incorporation or Bylaws (or
other similar governing instrument);
(d) not split, combine or reclassify any shares of its capital
stock, declare, set aside or pay any dividend or other distribution (whether in
cash, stock or property or any combination thereof) in respect of its capital
stock, make any other actual or constructive distribution in respect of its
capital stock or otherwise make any payments to stockholders in their capacity
as such, or redeem or otherwise acquire any of its securities or any other
securities;
(e) not adopt a plan of complete or partial liquidation,
dissolution, merger, consolidation, restructuring, recapitalization or other
reorganization or otherwise permit its corporate existence to be suspended,
lapsed or revoked;
(f) not create or form any subsidiary;
(g) not (1) incur or assume any Liability in excess of
$10,000; (2) assume, guarantee, endorse or otherwise become liable or
responsible (whether directly, contingently or otherwise) for the obligations of
any other Person; (3) make any loans, advances or capital contributions to or
investments in any other Person; nor (4) pledge or otherwise Encumber shares of
its capital stock;
(h) not acquire, sell, lease, license, transfer or otherwise
dispose of any assets in any single transaction or series of related
transactions having a fair market value in excess of $10,000 in the aggregate or
that are otherwise material to it other than sales of its products in the
ordinary course of business;
(i) not (1) acquire (by merger, consolidation or acquisition
of stock or assets) any corporation, partnership or other entity or division
thereof or any equity interest therein; (2) amend, modify, waive or terminate
any right under any material contract in any material way; nor (3) authorize any
new capital expenditure or expenditures that individually is in excess of
$10,000 or in the aggregate are in excess of $20,000;
(j) not enter into any Contract; or
(k) not make any change with respect to the compensation or
benefits of any officer, director or employee or former employee.
7.4 Efforts to Consummate. Subject to the terms and conditions of this
Agreement, each party hereto shall use reasonable commercial efforts to take, or
to cause to be taken, all actions and to do, or to cause to be done, all things
necessary, proper or advisable as promptly as practicable to satisfy the
conditions set forth in Article VIII, and to consummate the transactions
contemplated hereby.
7.5 Further Assurances. From time to time whether before, at or
following the Closing, each party shall make reasonable commercial efforts to
take, or cause to be taken, all actions, and to do, or cause to be done, all
things reasonably necessary, proper or advisable, including as required by
applicable Laws, to consummate and make effective as promptly as practicable the
transactions contemplated by this Agreement.
7.6 No-Shop. From the date hereof until the earlier of the Closing Date
or the date of the termination of this Agreement in accordance with the terms
hereof, none of AirSpeak, Xxxxxx, or any of their officers, directors,
employees, agents, representatives and Affiliates, shall, directly or
indirectly, make, solicit, initiate or encourage submission of proposals or
offers from any Persons relating to an Acquisition Proposal (as defined below).
As used herein, "Acquisition Proposal" means any proposal or offer involving a
liquidation, dissolution, re-capitalization, merger, consolidation or
acquisition or purchase of all or substantially all of the assets of, or equity
interest in, AirSpeak or any other similar transaction or business combination
involving the same. AirSpeak shall immediately cease and cause to be terminated
all discussions or negotiations with third parties with respect to any
Acquisition Proposal, if any, exiting on the date hereof.
7.7 Notification by the Parties. Each party hereto shall as promptly as
practicable inform the other parties hereto in writing if, prior to the
consummation of the Closing, it obtains knowledge that any of the
representations and warranties made by such party in this Agreement ceases to be
accurate and complete in any material respect (except for any representation and
warranty that is qualified hereunder as to materiality or Material Adverse
Effect, as to which such notification shall be given if the notifying party
obtains knowledge that such representation and warranty ceases to be accurate
and complete in any respect). Each party hereto shall also promptly inform the
other parties hereto in writing if, prior to the consummation of the Closing, it
becomes aware of any fact or condition that constitutes, in its reasonable
judgment, a breach of any covenant of such party as of the date of this
Agreement or that would reasonably be expected to cause any of its covenants to
be breached as of the Closing Date. Any such notification shall not be deemed to
have cured any breach of any representation, warranty, covenant or agreement
made in this Agreement for any purposes of this Agreement.
7.8 Cooperation with Respect to Financial Reporting. After the date of
this Agreement, Xxxxxx and AirSpeak shall cooperate with GLGT in connection with
the preparation of financial statements and other information as required for
GLGT's filings with the SEC under the Exchange Act, including, without
limitation, GLGT's Current Report on Form 8-K that is to be filed with the SEC
pursuant to the Exchange Act in connection with the Closing.
7.9 Release of Claims By Xxxxxx. In consideration of the transactions
contemplated hereby, as of the Closing, Xxxxxx and his representatives, heirs,
executors, successors and assigns (the "Waiving Parties"), release, waive and
forever discharge, in all capacities, including as stockholders of AirSpeak,
from and after the Closing any and all Claims, known or unknown, that the
Waiving Parties ever had, now have or may have against AirSpeak and its
officers, directors, employees or agents in connection with or arising out of
any act or omission of AirSpeak or its officers, directors, employees, advisers
or agents, in such capacity, at or prior to the Closing; provided, however, that
nothing in this Section 7.9 shall be deemed a waiver by the Waiving Parties of
any rights under this Agreement.
7.10 Post-Closing Filings. As soon as practicable following the
Closing, GLGT shall cause the share exchange contemplated hereunder to be
memorialized and disclosed by making all filings or recordings required under
applicable law. Xxxxxx hereby covenants and agrees to aid GLGT in preparing and
making such filings or recordings.
ARTICLE VIII
CONDITIONS TO CLOSING
8.1 Conditions to Xxxxxx' and AirSpeak's Obligations to Close. All
obligations of Xxxxxx and AirSpeak to consummate the transactions contemplated
hereunder are subject to the fulfillment or waiver prior to or at the Closing of
each of the following conditions:
(a) All representations and warranties of GLGT
contained in this Agreement shall
be true and correct in all respects when made and shall be deemed to have been
made again at and as of the Closing and shall then be true and correct in all
respects (except that representations and warranties made as of a specified
date, shall be true and correct only as of such specified date);
(b) Since the date hereof, there shall not have been
any Material Adverse Effect
with respect to GLGT;
(c) Prior to or at the Closing, GLGT shall have
delivered to Xxxxxx the items to
be delivered pursuant to Section 3.2(b); and
--------------
(d) GLGT shall have performed in all material
respects each obligation and
agreement to be performed by it, and shall have complied in all material
respects with each covenant required by this Agreement to be performed or
complied with by it at or prior to the Closing.
8.2 Conditions to GLGT's Obligations to Close. All obligations of GLGT
to consummate the transactions contemplated hereunder are subject to the
fulfillment or waiver prior to or at the Closing of each of the following
conditions:
(a) All representations and warranties of Xxxxxx and
AirSpeak contained in this
Agreement shall be true and correct in all respects when made and shall be
deemed to have been made again at and as of the Closing and shall then be true
and correct in all respects (except that representations and warranties made as
of a specified date, shall be true and correct only as of such specified date);
(b) Since the date hereof, there shall not have been
any Material Adverse Effect
with respect to AirSpeak;
(c) GLGT shall have received a certificate, executed
by Xxxxxx and the President
of AirSpeak, dated as of the Closing Date, to certifying the fulfillment of the
conditions set forth in Sections 8.2(a) and 8.2(b) and as to such other matters
as may be requested by GLGT.
(d) Prior to or at the Closing, Xxxxxx and AirSpeak
shall have delivered to GLGT
the items to be delivered pursuant to Section 3.2(a);
--------------
(e) Xxxxxx and AirSpeak shall have performed in all
respects each obligation and
agreement to be performed by them, and shall have complied in all respects with
each covenant required by this Agreement to be performed or complied with by
them at or prior to the Closing;
(f) AirSpeak shall have provided to GLGT a
certificate of good standing and
certified copies of its charter;
(g) GLGT shall have completed to its satisfaction its
business and legal due
diligence investigation of AirSpeak, its property, business and subsidiaries,
shall not have discovered any facts, circumstances, liabilities or conditions
that, in GLGT's sole discretion, may adversely affect the value or prospects of
AirSpeak or that may expose AirSpeak to any liability not heretofore fully
disclosed to GLGT;
(h) GLGT shall have received any agreements,
instruments, certificates and any
other documentation requested; and
(i) AirSpeak shall have prepared historical financial
statements and other
information required to be filed pursuant to the Exchange Act with the SEC by
GLGT on its Current Report on Form 8-K in connection with the Closing.
ARTICLE IX
TERMINATION
9.1 Termination. This Agreement may be terminated at any time prior to
the consummation of the Closing under the following circumstances:
(a) by mutual written consent of GLGT and Xxxxxx;
(b) by GLGT or by Xxxxxx, if the Closing shall not have been
consummated on or before the End Date; provided that the right to terminate this
Agreement under this Section 9.1 shall not be available to a party if such
party's or such party's Affiliate's willful act or willful failure to act has
been the cause of or resulted in the failure of the Closing to be consummated on
or before the End Date;
(c ) by GLGT, if its due diligence investigation indicates
that any of the information provided for in the Agreement or in any of the
information provided by Xxxxxx or AirSpeak is inaccurate, incomplete or untrue
in any way, or if such due diligence investigation reveals any facts,
circumstances, liabilities or conditions that, in GLGT's discretion, may
adversely affect the value or prospects of the Shares or AirSpeak or that may
expose AirSpeak or GLGT to any liability not heretofore fully disclosed; or
(d) by any party, if there shall be in effect a final,
non-appealable order of a court or government administrative agency of competent
jurisdiction permanently prohibiting the consummation of the transactions
contemplated hereby.
9.2 Termination Procedure. Written notice of any termination
("Termination Notice") pursuant to this Article IX shall be given by the party
electing termination of this Agreement ("Terminating Party") to the other
parties (collectively, the "Terminated Party"), and such notice shall state the
reason for termination. The party or parties receiving Termination Notice shall
have a period of ten (10) days after receipt of Termination Notice to cure the
matters giving rise to such termination to the reasonable satisfaction of the
Terminating Party. If the matters giving rise to termination are not cured as
required hereby, this Agreement shall be terminated effective as of the close of
business on the tenth (10th) day following the Terminated Party's receipt of
Termination Notice.
9.3 Effect of Termination. Upon termination of this Agreement prior to
the consummation of the Closing and in accordance with the terms hereof, this
Agreement shall become void and of no effect, and none of the parties shall have
any liability to the others, except as provided for in Section 7.2.
Notwithstanding the foregoing, nothing contained herein shall relieve any party
from liability for its intentional breach of any representation, warranty or
covenant contained herein, or its intentional failure to comply with the terms
and conditions of this Agreement or to perform its obligations hereunder. If it
shall be finally judicially determined that termination of this Agreement was
caused by an intentional and deliberate breach of this Agreement, then, in
addition to other remedies at Law or equity for breach of this Agreement, the
party so found to have intentionally and deliberately breached this Agreement
shall indemnify and hold harmless the other parties hereto for their respective
out-of-pocket costs, including the reasonable fees and expenses of their
counsel, accountants, financial advisors and other experts and advisors, as well
as reasonable fees and expenses incident to the negotiation, preparation and
execution of this Agreement and related documentation.
ARTICLE X
INDEMNIFICATION; SURVIVAL
10.1 Survival. All representations, warranties, covenants and
agreements of the parties contained herein or in any other certificate or
document delivered pursuant hereto shall survive the Closing for three years
from the Closing Date.
ARTICLE XI
PUT OPTION
11.1 Put Option. Xxxxxx shall have the right and option, in his
discretion, to sell to GLGT, and to require GLGT to purchase from him, all or
any portion of the Consideration Shares from which all Restrictive Legends are
properly removed pursuant to and in accordance with all applicable Laws
(including, without limitation, the Securities Act and the Exchange Act) (such
shares, hereinafter referred to as the "Put Shares"). For avoidance of doubt, it
is expressly agreed that Xxxxxx shall not have the right to exercise his Put
Option hereunder with respect to any of the Consideration Shares that have
restrictive legends.
11.2 Excercise Price. The purchase price of the Put Shares shall be One
Dollar (1.00) per Share, payable within seven (7) to ten (10) business days
after the Put Closing (hereafter defined).
11.3 Exercise. In order to exercise the Put Option, Xxxxxx shall send
to GLGT written notice of its intention to exercise its right hereunder,
indicating how many of the shares it is selling to GLGT (the "Put Option
Exercise Notice"). Upon receipt of the Put Option Exercise Notice, GLGT shall be
obligated to purchase all of such shares offered by Xxxxxx.
11.4 Closing for the Sale of Put Shares. A closing for the sale of the
Put Shares (the "Put Closing") shall be held within ninety (90) days after the
Put Option Exercise Notice, unless the parties otherwise agree in writing. At
the Put Closing, GLGT shall deliver to Xxxxxx the Put Promissory Note, and
Xxxxxx shall deliver to GLGT a certificate executed by Xxxxxx whereby he
represents and warrants to GLGT that he is the sole record and beneficial owner
of the Shares being sold, free and clear of all Encumbrances, and shall deliver
to GLGT the stock certificate(s) representing the shares being sold to GLGT
along with a stock power(s) thereto duly endorsed by the Seller in blank.
ARTICLE XII
MISCELLANEOUS
12.1 Notices. All notices or other communications required or permitted
hereunder shall be in writing. Any notice, reAirSpeak, demand, claim or other
communication hereunder shall be deemed duly given (a) if by personal delivery,
when so delivered, (b) if mailed, three (3) Business Days after having been sent
by registered or certified mail, return receipt requested, postage prepaid and
addressed to the intended recipient as set forth below, or (c) if sent through
an overnight delivery service in circumstances to which such service guarantees
next day delivery, the day following being so sent:
(1) If to GLGT:
Global General Technologies, Inc.
000 Xxxxx Xxxxxxxx Xxxxxxxxx
28th floor, Miami Center
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxxxxxx
With a copy to:
Xxxxx Xxxxx, Esq.
Xxxxx Xxxxx & Associates PLLC
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
(2) If to AirSpeak or Xxxxxx:
AirSpeak Inc.
00000 Xxxx Xxxxxx Xxxx, #000
Xxxxxxxxx, XX 00000
With a copy to:
=================
-----------------
Any party may change the address to which notices and other
communications hereunder are to be delivered by giving the other parties notice
in the manner herein set forth.
12.2 Choice of Law. This Agreement shall be governed, construed and
enforced in accordance with the laws of the State of New York and the federal
laws of United States applicable therein, without giving effect to principles of
conflicts of law.
12.3 Jurisdiction. The parties hereby irrevocably consent to the in
personam jurisdiction of the state or federal courts located in the County of
New York, New York, in connection with any action or proceeding arising out of
or relating to this Agreement or the transactions and the relationships
established thereunder. The parties hereby agree that such courts shall be the
venue and exclusive and proper forum in which to adjudicate such matters and
that they will not contest or challenge the jurisdiction or venue of these
courts.
12.4 Waiver of any and all Rights to a Trial by Jury. All parties to
this Agreement unconditionally, irrevocably and expressly waive all rights to
trial by jury in any action, proceeding, suit, counterclaim or cross-claim in
any matter (whether sounding in tort, contract or otherwise) in any way arising
out of or otherwise relating to this Agreement or the transaction or the
relationships established hereunder. All parties confirm that the foregoing
waiver of a trial by jury is informed and freely made.
12.5 Entire Agreement. This Agreement and such other agreements related
to this transaction executed simultaneously herewith set forth the entire
agreement and understanding of the parties in respect of the transactions
contemplated hereby and supersedes all prior agreements, arrangements and
understandings of the parties relating to the subject matter hereof, including,
without limitation, the Letter of Intent, dated January 4, 2006, among the
parties hereto. No representation, promise, inducement, waiver of rights,
agreement or statement of intention has been made by any of the parties which is
not expressly embodied in this Agreement, such other agreements, notes or
instruments related to this transaction executed simultaneously herewith, or the
written statements, certificates, schedules or other documents delivered
pursuant to this Agreement or in connection with the transactions contemplated
hereby.
12.6 Assignment. Each party's rights and obligations under this
Agreement shall not be assigned or delegated, by operation of law or otherwise,
without the other party's prior consent, and any such assignment or attempted
assignment shall be void, of no force or effect, and shall constitute a material
default by such party. Notwithstanding anything contained herein to the
contrary, GLGT shall have the right to assign this Agreement to a subsidiary.
12.7 Amendments. This Agreement may be amended, modified, superseded or
cancelled, and any of the terms, covenants, representations, warranties or
conditions hereof may be waived, only by a written instrument executed by GLGT,
AirSpeak, and Xxxxxx, in the case of a waiver, by the party waiving compliance.
12.8 Waivers. The failure of any party at any time or times to require
performance of any provision hereof shall in no manner affect the right at a
later time to enforce the same. No waiver by any party of any condition, or the
breach of any term, covenant, representation or warranty contained in this
Agreement, whether by conduct or otherwise, in any one or more instances shall
be deemed to be or construed as a further or continuing waiver of any such
condition or breach or a waiver of any other term, covenant, representation or
warranty of this Agreement.
12.9 Execution. This Agreement may be executed by facsimile and in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
12.10 Brokers. The parties hereto, covenant, represent, and warrant
that they have not dealt with any broker or finder in connection with this
Agreement or the transactions contemplated hereby, and no broker is entitled to
receive any brokerage commission, finder's fee, or similar compensation in
connection with this Agreement or the transactions contemplated hereby. Each of
the parties shall indemnify and hold the other parties harmless from and against
all liability, claim, loss, damage, or expense, including reasonable attorney's
fees, pertaining to any broker, finder, or other person with whom such party has
dealt.
12.11 Severability. If any term, provisions, covenant or restriction of
this Agreement is held by a court of competent jurisdiction or other authority
to be invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such determination,
the parties shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in an
acceptable manner in order that the transactions contemplated hereby be
consummated as originally contemplated to the fullest extent possible.
12.12 Independent Representation. Each of the parties hereto further
acknowledges and agrees that he or it, as the case may be, has been advised by
counsel during the course of negotiations leading up to the execution and
delivery of this Agreement and had significant input in the development of this
Agreement. This Agreement shall not, therefore, be construed more strictly
against any party responsible for its drafting regardless of any presumption or
rule requiring construction against the party whose attorney drafted this
Agreement.
12.13 Publicity. Neither Xxxxxx nor AirSpeak shall, and none of them
shall permit any Affiliate to, issue any press release or make any other
statement or disclosure with respect to this Agreement or the transactions
contemplated hereby without the prior written approval of GLGT. Nothing
contained herein shall prevent any Party at any time from furnishing any
required information to any governmental agency or authority or from issuing any
press release or making any other statement or disclosure with respect to this
Agreement or the transactions contemplated hereby (after consulting with the
other Parties hereto) if required by Law or any regulatory agency or to comply
with the terms of this Agreement.
12.14 Expenses. Except as otherwise set forth in Section 9.3, the
parties shall each bear their own respective expenses incurred in connection
with this Agreement and the Closing.
12.15 Escrow Monies. GLGT will deposit $20,000 in an escrow
account, within three (3) business days, subject to an Escrow
Agreement. It is agreed by both parties that the designated
Escrow Agent will be Xxxxx Xxxxx, Xxxxxxxx & Xxxx,
attorneys-at-law.
12.16 Liabilities. As noted in Section 4.7, AirSpeak will provide a
schedule of liabilities. There is approximately $150,000 of
past due balances comprised of: $50,000 in Notes Payable,
$25,000 in a judgment for past due rent and lost rental
income, $54,000 in threatened litigation for unpaid inventory
invoices and other miscellaneous payables.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE TO FOLLOW]
IN WITNESS WHEREOF, the parties have duly executed this Stock Purchase
Agreement as of the date first above written.
GLOBAL GENERAL TECHNOLOGIES, INC.
By: /s/ Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: President
/s/ Xxxxxx Xxxxxx
XXXXXX XXXXXX
AIRSPEAK, INC.
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: President
EXHIBIT A
PROMISSORY NOTE
$180,000.00 , 2006
----------------
FOR VALUED RECEIVED, Global General Technologies, Inc., a Nevada
corporation ("Payor"), promises to pay to Xxxxxx Xxxxxx at
______________________________________ ("Payee"), or at such other place as
Payee may from time to time designate in writing, the principal sum of One
Hundred Eighty Thousand and 00/100 ($180,000.00) Dollars. No interest shall
accrue on the unpaid principal balance due under this promissory note (the
"Note"). The principal shall be paid in twelve (12) equal and consecutive
monthly installments of Fifteen Thousand and 00/100 ($15,000.00) Dollars,
commencing on the first business day of the second month following the date of
this Note and continuing on the same day of each subsequent month to and
including ____________, 2007, when the entire unpaid principal balance and all
accrued but unpaid interest shall be due and payable in full.
Any of the following events shall constitute an event of default under
this Note:
(i) Failure of Payor to make any payment required hereunder
and such failure continues for fifteen (15) business days after Payor receives
written notice from Payee of such failure;
(ii) Payor shall make an assignment for the benefit of
creditors, or appoint a committee of any creditors or a liquidating agent; or
(iii) Filing against Payor of any proceeding in bankruptcy or
any proceeding, suit, or action (at law, in equity or under any provisions of
the Bankruptcy Act or amendments thereto) for reorganization, composition with
creditors, arrangement, receivership, liquidation, dissolution, or similar
relief, which is not discontinued within sixty (60) days from the date of
filing.
This Note may be prepaid by Payor, in whole or in part, at any time
without penalty or premium.
Payor hereby waives presentment, demand for payment, protest, and all
other demands and notices in connection with the delivery, acceptance,
performance and enforcement of this Note and authorizes Payee, without notice or
further consent, to grant extensions of time in the payment of any monies under
this Note, and to waive compliance of any provision of this Note.
This Note shall be construed, performed, and enforced in accordance
with the laws of the State of New York.
This Note shall be binding upon and inure to the benefit of Payor and
Payee and their permitted successors and assigns.
This Note shall be subject to a right of offset by the Payor for any
amounts or obligations owed by Payee to Payor.
IN WITNESS WHEREOF, Payor has executed this Promissory Note the day and
year first above written.
GLOBAL GENERAL TECHNOLOGIES, INC.
By:_________________________________
Name: Xxxxxx Xxxxxxxxx
Title: President
