SHARE EXCHANGE AGREEMENT
EXHIBIT
10.1
This
Agreement dated as of the 29th day of
January
2008, by and among Global Roaming Distribution, Inc., a Florida corporation
having its offices at 0000 Xxxx Xxxxx Xxxx, Xxxxx 000, Xxxxx, XX 00000 (the
“Company”), and Global Roaming, Inc., d/b/a CelTrek, a Nevada
corporation having its offices at 00000 Xxxxxxxx Xxxx., Xxxxx 000, Xxxxx, XX
00000 (“GRI”).
WITNESSETH:
WHEREAS,
GRI is the holder of Two Million (2,000,000) shares of the common stock of
Cubic
Telecom, an Irish company (“Cubic”);
WHEREAS,
subject to the terms and conditions hereof, GRI desires to sell, transfer and
assign to the Company, and the Company desires to purchase from GRI, Two Million
(2,000,000) shares of Cubic common stock owned by GRI (the “Cubic Shares”) in
consideration for shares of the Company’s Series A Convertible Preferred Stock,
par value $0.0001 per share (the “Shares” or “Series A Preferred
Stock”);
NOW,
THEREFORE, for the mutual consideration set out herein, the parties agree as
follows:
ARTICLE
I
EXCHANGE
OF SHARES
1.1 Issuance
of Shares by the Company. On and subject to the conditions set forth in this
Agreement, the Company will issue to GRI or its designees in such amounts as
stated opposite their respective names on Exhibit A to this Agreement
attached hereto, in exchange for the Cubic Shares, Eight Million (8,000,000)
shares of Series A Convertible Preferred Stock. The Shares to be
issued to GRI shall have a stated value and such other designations, as set
forth in Exhibit B to this Agreement attached hereto.
1.2 Transfer
of Cubic Shares by GRI. On and subject to the conditions set forth in this
Agreement, the GRI will transfer to the Company Two Million (2,000,000) of
its
shares of Cubic common stock in exchange for the Shares.
1.3 Conversion
of Series A Preferred Stock. Each Share issued to GRI pursuant to
Article I of this Agreement shall be entitled to Ten (10) votes and shall be
convertible into Ten (10) shares of common stock of the Company upon the
occurrence of Cubic attaining Thirty Million Dollars ($30,000,000) in any
consecutive twelve (12) month period, and GRI or Cubic (or any of their
designees) investing One Million Dollars ($1,000,000) into the Company to be
used for research and development of related business technology.
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1.4 Closing.
The issuance of the Shares to GRI and the transfer of the Cubic Shares to the
Company will take place at a closing (the “Closing”) to be held at the office of
Sichenzia Xxxx Xxxxxxxx Xxxxxxx, LLP, 00 Xxxxxxxx, 00xx Xxxxx,
Xxx Xxxx,
Xxx Xxxx 00000, as soon as possible after or contemporaneously with the
satisfaction or waiver of all of the conditions to closing set forth in Sections
5 and 6 of this Agreement (the “Closing Date”).
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF GRI
2.1 Organization
and Good Standing. GRI is a company duly organized, validly existing, and in
good standing under the laws of its jurisdiction of incorporation and has the
corporate power, authority and capacity to carry on its business as presently
conducted.
2.2 Authority.
(a) The
execution and delivery of this Agreement and the consummation of the
transactions contemplated herein have been, or will prior to Closing be, duly
and validly approved and acknowledged by all necessary corporate action on
the
part of GRI.
(b) The
execution of this Agreement and the delivery hereof to GRI and the purchase
contemplated herein have been, or will be prior to Closing, duly authorized
by
GRI’s Board of Directors having full power and authority to authorize such
actions.
(c) GRI
has full power and authority to sell and transfer the Cubic Shares to the
Company without obtaining the waiver, consent, order or approval of (i) any
state or federal governmental authority or (ii) any third party or other person
including, but not limited to, other stockholders of Cubic. The Cubic
Shares have been validly issued, are fully paid and non-assessable, and are
owned beneficially and of record by GRI free and clear of all liens, pledges,
encumbrances, security agreements, equities, options, claims, charges and
restrictions of any nature whatsoever, except any restrictions under applicable
securities laws, and GRI has not previously entered into any agreement or
commitment for the sale of all or part of the Cubic Shares or otherwise conveyed
or encumbered GRI’s interest (voting or otherwise) with respect to the Cubic
Shares. GRI has the unqualified right to sell, assign, and deliver
the Cubic Shares, and, upon consummation of the transactions contemplated by
this Agreement, the Company will acquire good and valid title to the Cubic
Shares, free and clear of all liens, claims, options, charges, and encumbrances
of whatsoever nature.
(d) This
Agreement and any other agreement executed by GRI in connection herewith have
been duly executed and delivered by it and constitute the valid, binding and
enforceable obligation of GRI, subject to the applicable bankruptcy, insolvency
and similar laws affecting creditors’ rights generally and rights of
stockholders.
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2.3 Conflicts;
Consents of Third Parties.
(a) GRI
is not a party to or bound by any unexpired, undischarged or unsatisfied written
or oral contract, agreement, indenture, mortgage, debenture, note or other
instrument under the terms of which performance by the Company according to
the
terms of this Agreement will be a default or an event of acceleration, or
grounds for termination, or whereby timely performance by the Company according
to the terms of this Agreement may be prohibited, prevented or
delayed.
(b) Neither
the execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby will constitute a violation or default under
any term or provision of the Certificate of Incorporation or By-Laws of Cubic,
or of any contract, commitment, indenture, other agreement or restriction of
any
kind or character to which Cubic or GRI is a party to or by which Cubic or
GRI
is bound.
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2.4
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Acquisition
of Series A Preferred Stock.
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(a) GRI
understands that the Shares have not been registered with the United States
Securities and Exchange Commission (the “SEC”) or any state or foreign
securities agencies.
(b) GRI
is capable of evaluating the merits and risks of its investment in the Company
and has the capacity to protect its interests. GRI acknowledges that
it must bear the economic risk of this investment indefinitely, unless the
the
Shares are subsequently registered pursuant to the Securities Act of 1933,
as
amended (the “Act”), or an exemption from registration is
available. GRI understands that the Company has no present intention
of registering the Shares.
(c) GRI
is not an underwriter and is acquiring the Shares for the GRI’s own account for
investment only and not with a view towards distribution thereof within the
meaning of the Act, the state securities laws and any other applicable
laws.
(d) GRI
has the capacity to protect its interests in connection with the transactions
contemplated hereby as a result of its business or financial
expertise.
(e) The
Shares acquired herein may not be transferred, encumbered, sold, hypothecated,
or otherwise disposed of to any person, without the express prior written
consent of the Company and/or the prior opinion of legal counsel that is
reasonably acceptable to the Company that such disposition will not violate
federal and/or state securities laws. Disposition shall include, but
is not limited to acts of selling, assigning, transferring, pledging,
encumbering, hypothecating, gifting, and any form of conveying, whether
voluntary or not.
(f) To
the extent that any federal, and/or state securities laws shall require, GRI
hereby agrees that any Shares acquired pursuant to this Agreement shall be
without preference as to assets.
(g) Neither
the Company nor GRI is under an obligation to register or seek an exemption
under any federal, state or foreign securities acts for any Company stock or
to
cause or permit such stock to be transferred in the absence of any registration
or exemption and that GRI herein must hold such stock indefinitely unless such
stock is subsequently registered under any federal and/or state securities
acts
or an exemption from registration is available.
(h) GRI
has had the opportunity to ask questions of the Company and receive additional
information from the Company to the extent that the Company possessed such
information or could acquire it without unreasonable effort or expense necessary
to evaluate the merits and risks of any investment in the
Company. Further, GRI has been given or has had access to: (1) all
material books and records of the Company; (2) all material contracts and
documents relating to the Company and this proposed transaction; and (3) an
opportunity to question the Company and the appropriate executive officers
of
the Company.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
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3.1
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Organization
and Good Standing. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State
of
Florida.
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3.2
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Authority.
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(a) The
execution and delivery of this Agreement and the consummation of the
transactions contemplated herein have been, or will prior to Closing be, duly
and validly approved and acknowledged by all necessary corporate action on
the
part of the Company.
(b) The
execution of this Agreement and the delivery hereof to GRI and the GRI
Shareholders and the purchase contemplated herein have been, or will be prior
to
Closing, duly authorized by the Company’s Board of Directors having full power
and authority to authorize such actions.
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3.3
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Capitalization;
Shares.
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(a) The
Shares, when issued pursuant to this Agreement, will be duly and validly
authorized and issued, fully paid and non-assessable. The issuance of the Shares
to GRI is exempt from the registration requirements of the Securities Act of
1933, as amended (the “Securities Act”), pursuant to an exemption provided by
Section 4(2) and Rule 506 promulgated thereunder or under Regulation
D.
(b) The
authorized capital stock of the Company consists of 300,000,000 shares of Common
Stock, of which 164,730,800 shares are presently outstanding. Except as provided
in, contemplated by, or set forth in this Agreement or the Company SEC Documents
(as defined below), the Company has no outstanding or authorized warrants,
options, other rights to purchase or otherwise acquire capital stock or any
other securities of the Company, preemptive rights, rights of first refusal,
registration rights or related commitments of any nature. All issued
and outstanding shares were either (i) registered under the Securities Act,
or
(ii) issued pursuant to valid exemptions from registration
thereunder.
3.4 SEC
Documents. The Company is registered pursuant to Section 12 of the Exchange
Act and it is current with its reporting obligations under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”). None of the
Company’s filings made pursuant to the Exchange Act (collectively, the “Company
SEC Documents”) contains any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The Company SEC Documents, as of their respective
dates, complied in all material respects with the requirements of the Exchange
Act, and the rules and regulations of the Commission thereunder, and are
available on the Commission’s XXXXX system.
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3.5
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Conflicts;
Consents of Third Parties.
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(a) The
execution and delivery of this Agreement, the acquisition of the GRI Shares
by
the Company and the consummation of the transactions herein contemplated, and
the compliance with the provisions and terms of this Agreement, are not
prohibited by the Articles of Incorporation or Bylaws of the Company and will
not violate, conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any court order, indenture,
mortgage, loan agreement, or other agreement or instrument to which the Company
is a party or by which it is bound.
(b) No
consent, waiver, approval, order, permit or authorization of, or declaration
or
filing with, or notification to, any person or governmental body is required
on
the part of the Company in connection with the execution and delivery of this
Agreement or the Company Documents or the compliance by the Company with any
of
the provisions hereof or thereof.
3.6 Litigation.
There are no Legal Proceedings pending or, to the best knowledge of the Company,
threatened that are reasonably likely to prohibit or restrain the ability of
the
Company to enter into this Agreement or consummate the transactions contemplated
hereby.
3.7 Reliance
by Shareholders. The representations and warranties set forth in
this Section 2 taken together, do not contain any untrue statement of a material
fact or omits to state a material fact necessary to make the statements
contained herein and therein, when taken together, not misleading, and there
is
no fact which materially and adversely affects the business, operations or
financial condition of the Company. Shareholders of the Company may
rely on the representations set forth in this Section 2 notwithstanding any
investigation it may have made.
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3.8 Acquisition
of Cubic Shares.
(a) The
Company understands that the Cubic Shares have not been registered with the
SEC
or any state or foreign securities agencies.
(b) The
Company is capable of evaluating the merits and risks of its investment in
Cubic
and has the capacity to protect its interests. The Company
acknowledges that it must bear the economic risk of this investment
indefinitely, unless the Cubic Shares are subsequently registered pursuant
to
the Securities Act of 1933, as amended (the “Act”), or an exemption from
registration is available. The Company understands that Cubic has no
present intention of registering the Shares.
(c) The
Company is not an underwriter and is acquiring GRI’s Cubic Shares for
the Company’s own account for investment only and not with a view towards
distribution thereof within the meaning of the Act, the state securities laws
and any other applicable laws.
(d) The
Company has the capacity to protect its interests in connection with the
transactions contemplated hereby as a result of its business or financial
expertise.
(e) The
Cubic Shares acquired herein may not be transferred, encumbered, sold,
hypothecated, or otherwise disposed of to any person, without the express prior
written consent of Cubic and/or the prior opinion of legal counsel that is
reasonably acceptable to Cubic that such disposition will not violate federal
and/or state securities laws. Disposition shall include, but is not
limited to acts of selling, assigning, transferring, pledging, encumbering,
hypothecating, gifting, and any form of conveying, whether voluntary or
not.
(f) To
the extent that any federal, and/or state securities laws shall require, the
Company hereby agrees that any Shares acquired pursuant to this Agreement shall
be without preference as to assets.
(g) Neither
Cubic nor GRI is under an obligation to register or seek an exemption under
any
federal, state or foreign securities acts for any Cubic stock or to cause or
permit such stock to be transferred in the absence of any registration or
exemption and that the Company herein must hold such stock indefinitely unless
such stock is subsequently registered under any federal and/or state securities
acts or an exemption from registration is available.
(h) The
Company has had the opportunity to ask questions of Cubic and GRI and receive
additional information from Cubic and GRI to the extent that Cubic and GRI
possessed such information or could acquire it without unreasonable effort
or
expense necessary to evaluate the merits and risks of any investment in
Cubic. Further, the Company has been given or has had access to: (1)
all material books and records of Cubic; (2) all material contracts and
documents relating to Cubic and this proposed transaction; and (3) an
opportunity to question GRI and the appropriate executive officers of
Cubic.
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ARTICLE
IV
CLOSING
DELIVERIES
4.1 Deliveries
by Company. Within five (5) business days of the Closing Date,
the Company shall deliver or cause to be delivered to GRI a certificate
registered in the name of GRI or its designees representing the number of shares
of Series A Preferred Stock as set forth on Exhibit A.
4.2 Deliveries
by GRI. On the Closing Date, GRI shall deliver or cause to be
delivered to the Company the certificate representing GRI’s shares in Cubic
common stock.
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ARTICLE
V
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CONDITIONS
TO CLOSING
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5.1 Conditions
to the Obligation of GRI to Close. The obligations of GRI under
this Agreement are subject to the satisfaction of the following conditions
unless waived by GRI:
(a) Representations
and Warranties. On the Closing Date, the representations and
warranties of the Company shall be true and correct in all material respects
on
and as of the Closing Date with the same force and effect as if made on such
date, and the Company shall have performed all of their respective obligations
required to be performed by them pursuant to this Agreement at or prior to
the
Closing Date, and GRI shall have received a certificate of the Company to such
effect and as to any other matters set forth in this Agreement.
(b) No
Material Adverse Change. No Material Adverse Change in the
business or financial condition of the Company shall have occurred or be
threatened since the date of this Agreement, and no action, suit or proceedings
shall be threatened or pending before any court of governmental agency or
authority or regulatory body seeking to restraint, prohibition or the obtain
damages or other relief in connection with this Agreement or the consummation
of
the transactions contemplated by this Agreement or that, if adversely decided,
has or may have a Material Adverse Effect.
(c) Designation
of Series A Preferred Stock. Promptly after closing, the
Company shall file with the Secretary of State of Florida an amendment to its
Articles of Incorporation designating a class of Series A Preferred Stock
subject to the preferences, rights, and limitations as described in a Form
of
Articles of Amendment attached hereto as Exhibit B.
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5.2 Conditions
to the Obligation of the Company to Close. The obligations of the
Company under this Agreement are subject to the satisfaction of the following
conditions unless waived by the Company:
(a) Representations
and Warranties. On the Closing Date, the representations and
warranties of GRI shall be true and correct in all material respects on and
as
of the Closing Date with the same force and effect as if made on such date,
and
GRI shall have performed all of their respective obligations required to be
performed by them pursuant to this Agreement at or prior to the Closing Date,
and the Company shall have received a certificate of the Company to such
effect.
(b) No
Material Adverse Change. No Material Adverse Change in the
business or financial condition of GRI shall have occurred or be threatened
since the date of this Agreement, and no action, suit or proceedings shall
be
threatened or pending before any court of governmental agency or authority
or
regulatory body seeking to restraint, prohibition or the obtain damages or
other
relief in connection with this Agreement or the consummation of the transactions
contemplated by this Agreement or that, if adversely decided, has or may have
a
Material Adverse Effect.
ARTICLE
VI
MISCELLANEOUS
6.1 Entire
Agreement; Amendments and Waivers. This Agreement constitutes the entire
agreement between the parties relating to the subject matter hereof, superseding
any and all prior or contemporaneous oral and prior written agreements,
understandings and letters of intent. This Agreement may not be modified or
amended nor may any right be waived except by a writing which expressly refers
to this Agreement, states that it is a modification, amendment or waiver and
is
signed by all parties with respect to a modification or amendment or the party
granting the waiver with respect to a waiver. No course of conduct or dealing
and no trade custom or usage shall modify any provisions of this
Agreement.
6.2 Governing
Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to contracts made and to be
performed entirely within such State.
6.3
Binding
Effect; Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties hereto, and their respective successors
and
permitted assigns.
6.4 Execution. This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original but all of which together shall constitute one and the same
document.
6.5 Survival
of Representations and Warranties. The various representations,
warranties, and covenants set forth in this Agreement or in any other writing
delivered in connection therewith shall survive the issuance of the
Shares.
6.6 Severability. If
any provision of this Agreement is invalid or unenforceable, the balance of
this
Agreement shall remain in effect.
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IN
WITNESS WHEREOF, the parties have executed this Share Exchange Agreement the
day
and year first above written.
| GLOBAL ROAMING, INC. | |||
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By:
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/s/ Xxxxx Xxxxxxx | |
| GLOBAL ROAMING DISTRIBUTION, INC. | |||
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By:
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/s/ Xxxxx Xxxxxxxxx | |
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List
of GRI Designees to be Issued GRDB Shares
1. Xxxxx
XXXXXXX – 50% Shareholder of GRI
2 Xxxxxxx
XXXXXX – 50% Shareholder of GRI
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Exhibit
B
Articles
of Amendment to the Articles of Incorporation
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