SHARE EXCHANGE AGREEMENT
THIS
AGREEMENT is made as of the 28th
day of September,
2007
AMONG:
COMMONCACHE,
INC., a corporation formed pursuant to the laws of the State of Nevada
and having an office for business located at 0000 Xxxx Xxxxx Xxxxx Xxxx., Xxxxx
000, Xxxx Xxxx Xxxxx, Xxxxxxx 00000 (“Commoncache”)
AND:
FREECOM,
LLC, a limited liability company formed pursuant to the laws of the
State of Florida and having an office for business located at c/o Global Roaming
Distribution, 00000 XX 00xx Xxxxxx,
0xx Xxxxx,
Xxxxxxxx,
XX 00000 ("FreeCom")
AND:
The
shareholders of FreeCom, each of whom are set forth on the signature page of
this Agreement (the “FreeCom Interestholders”)
WHEREAS:
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A.
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The
FreeCom Interestholders own all of the presently issued and outstanding
membership interests of FreeCom;
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|
B.
|
Commoncache
was incorporated on July 31, 2001 and became an SEC reporting company
on
September 17, 2002;
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|
C.
|
The
respective Boards of Directors of Commoncache and FreeCom deem it
advisable and in the best interests of Commoncache and FreeCom that
FreeCom become a wholly-owned subsidiary of Commoncache (the
“Acquisition”) pursuant to this
Agreement;
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NOW
THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the
premises and the mutual covenants, agreements, representations and warranties
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree
as
follows:
ARTICLE
1
DEFINITIONS
AND INTERPRETATION
Definitions
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1.1
|
In
this Agreement the following terms will have the following
meanings:
|
|
(a)
|
“Acquisition”
means the Acquisition, at the Closing, of FreeCom by Commoncache
pursuant
to this Agreement;
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(b)
|
“Acquisition
Shares” means the 37,000,000 Commoncache Common Shares to be
issued to the FreeCom Interestholders at Closing pursuant to the
terms of
the Acquisition;
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(c)
|
“Agreement”
means this share exchange agreement among Commoncache, FreeCom, and
the
FreeCom Interestholders;
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(d)
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“Closing”
means the completion, on the Closing Date, of the transactions
contemplated hereby in accordance with Article 9
hereof;
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(e)
|
“Closing
Date” means the day on which all conditions precedent to the
completion of the transaction as contemplated hereby have been satisfied
or waived, but in any event no later than September 30,
2007;
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(f)
|
“Commoncache
Accounts Payable and Liabilities” means all accounts payable and
liabilities of Commoncache, on a consolidated basis, due and owing
or
otherwise constituting a binding obligation of Commoncache pursuant
to
Commoncache Financial Statements;
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(g)
|
“Commoncache
Accounts Receivable” means all accounts receivable and other
debts owing to Commoncache, on a consolidated basis, as of June 30,
2007;
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(h)
|
“Commoncache
Assets” means the undertaking and all the property and assets of
the Commoncache Business of every kind and description wheresoever
situated including, without limitation, Commoncache Equipment, Commoncache
Inventory, Commoncache Material Contracts, Commoncache Accounts
Receivable, Commoncache Cash, Commoncache Intangible Assets and
Commoncache Goodwill, and all credit cards, charge cards and banking
cards
issued to Commoncache;
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(i)
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“CommoncacheBank
Accounts” means all of the bank accounts, lock boxes and safety
deposit boxes of Commoncache relating to the Commoncache
Business;
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(j)
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“CommoncacheBusiness”
means all aspects of any business conducted by
Commoncache;
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(k)
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“CommoncacheCash”
means all cash on hand or on deposit to the credit of Commoncache
on the
Closing Date;
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(l)
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“CommoncacheCommon
Shares” means the shares of common stock in the capital of
Commoncache;
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(m)
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“CommoncacheDebt
to Related Parties” means the debts owed by Commoncache to any
affiliate, director or officer of
Commoncache;
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(n)
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“CommoncacheEquipment”
means all machinery, equipment, furniture, and furnishings used in
the
Commoncache Business;
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(o)
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“CommoncacheFinancial
Statements” means, collectively, the audited consolidated
financial statements of Commoncache for the fiscal year ended December
31,
2006, together with the auditors' report thereon, true copies of
which are
attached as Schedule “A”
hereto;
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(p)
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“CommoncacheGoodwill”
means the goodwill of the Commoncache Business including the right
to all
corporate, operating and trade names associated with the Commoncache
Business, or any variations of such names as part of or in connection
with
the Commoncache Business, all books and records and other information
relating to the Commoncache Business, all necessary licenses and
authorizations and any other rights used in connection with the
Commoncache Business;
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(q)
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“CommoncacheInsurance
Policies” means the public liability insurance and insurance
against loss or damage to the Commoncache Assets and the Commoncache
Business;
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(r)
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“CommoncacheIntangible
Assets" means all of the intangible assets of Commoncache,
including, without limitation, Commoncache Goodwill, all trademarks,
logos, copyrights, designs, and other intellectual and industrial
property
of Commoncache and its
subsidiaries;
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(s)
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“CommoncacheInventory”
means all inventory and supplies of the Commoncache Business as of
June
30, 2007;
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(t)
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“CommoncacheMaterial
Contracts” means the burden and benefit of and the right, title
and interest of Commoncache in, to and under all trade and non-trade
contracts, engagements or commitments, whether written or oral, to
which
Commoncache or its subsidiaries are entitled whereunder Commoncache
are
obligated to pay or entitled to receive the sum of $10,000 or more
including, without limitation, any pension plans, profit sharing
plans,
bonus plans, loan agreements, security agreements, indemnities and
guarantees, any agreements with employees, lessees, licensees, managers,
accountants, suppliers, agents, distributors, officers, directors,
attorneys or others which cannot be terminated without liability
on not
more than one month's notice;
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(u)
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“Place
of Closing” means the offices of Sichenzia Xxxx Xxxxxxxx Xxxxxxx
LLP, or such other place as Commoncache and FreeCom may mutually
agree
upon;
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(v)
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“FreeCom
Accounts Payable and Liabilities” means all accounts payable and
liabilities of FreeCom, due and owing or otherwise constituting a
binding
obligation of FreeCom (other than a FreeCom Material Contract) as
set
forth in the FreeCom Financial
Statements;
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(w)
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“FreeCom
Accounts Receivable” means all accounts receivable and other
debts owing to FreeCom, as set forth in the FreeCom Financial
Statements;
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(x)
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“FreeCom
Assets“ means the undertaking and all the property and assets of
the FreeCom Business of every kind and description wheresoever situated
including, without limitation, FreeCom Equipment, FreeCom Inventory,
FreeCom Material Contracts, FreeCom Accounts Receivable, FreeCom
Cash,
FreeCom Intangible Assets and FreeCom Goodwill, and all credit cards,
charge cards and banking cards issued to
FreeCom;
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(y)
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“FreeCom
Bank Accounts” means all of the bank accounts, lock boxes and
safety deposit boxes of FreeCom or relating to the FreeCom
Business;
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(z)
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“FreeCom
Business” means all aspects of the business conducted by
FreeCom;
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(aa)
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“FreeCom
Cash” means all cash on hand or on deposit to the credit of
FreeCom on the Closing Date;
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(bb)
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“FreeCom
Debt to Related Parties” means the debts owed by FreeCom and its
subsidiaries to the FreeCom Interestholders or to any family member
thereof, or to any affiliate, director or officer of FreeCom or the
FreeCom Interestholders as set forth in the FreeCom Financial
Statements;
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(cc)
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“FreeCom
Equipment” means all machinery, equipment, furniture, and
furnishings used in the FreeCom Business, including, without limitation,
as set forth in the FreeCom Financial
Statements;
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(dd)
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“FreeCom
Financial Statements” means collectively, the audited financial
statements of FreeCom for the period ended June 30, 2007, a true
copy of
which is attached as Schedule “B”
hereto;
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(ee)
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“FreeCom
Goodwill” means the goodwill of the FreeCom Business together
with the exclusive right of Commoncache to represent itself as carrying
on
the FreeCom Business in succession of FreeCom subject to the terms
hereof,
and the right to use any words indicating that the FreeCom Business
is so
carried on including the right to use the name "FreeCom” or “FreeCom
International" or any variation thereof as part of the name of or
in
connection with the FreeCom Business or any part thereof carried
on or to
be carried on by FreeCom, the right to all corporate, operating and
trade
names associated with the FreeCom Business, or any variations of
such
names as part of or in connection with the FreeCom Business, all
telephone
listings and telephone advertising contracts, all lists of customers,
books and records and other information relating to the FreeCom Business,
all necessary licenses and authorizations and any other rights used
in
connection with the FreeCom
Business;
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(ff)
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“FreeCom
Intangible Assets” means all of the intangible assets of FreeCom,
including, without limitation, FreeCom Goodwill, all trademarks,
logos,
copyrights, designs, and other intellectual and industrial property
of
FreeCom and its subsidiaries;
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(gg)
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“FreeCom
Inventory” means all inventory and supplies of the FreeCom
Business;
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(hh)
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“FreeCom
Material Contracts” means the burden and benefit of and the
right, title and interest of FreeCom in, to and under all trade and
non-trade contracts, engagements or commitments, whether written
or oral,
to which FreeCom is entitled in connection with the FreeCom Business
whereunder FreeCom is obligated to pay or entitled to receive the
sum of
$10,000 or more including, without limitation, any pension plans,
profit
sharing plans, bonus plans, loan agreements, security agreements,
indemnities and guarantees, any agreements with employees, lessees,
licensees, managers, accountants, suppliers, agents, distributors,
officers, directors, attorneys or others which cannot be terminated
without liability on not more than one month's
notice;
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(ii)
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“FreeCom
Related Party Debts” means the debts owed by the FreeCom
Interestholders or by any family member thereof, or by any affiliate,
director or officer of FreeCom or the FreeCom Interestholders, to
FreeCom
as described in the FreeCom Financial
Statements;
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(jj)
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“FreeCom
Membership Interests” means all of the issued and outstanding
membership interests of FreeCom;
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Any
other
terms defined within the text of this Agreement will have the meanings so
ascribed to them.
Captions
and Section Numbers
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1.2
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The
headings and section references in this Agreement are for convenience
of
reference only and do not form a part of this Agreement and are not
intended to interpret, define or limit the scope, extent or intent
of this
Agreement or any provision thereof.
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Section
References and Schedules
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1.3
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Any
reference to a particular “Article”, “section”, “paragraph”, “clause” or
other subdivision is to the particular Article, section, clause or
other
subdivision of this Agreement and any reference to a Schedule by
letter
will mean the appropriate Schedule attached to this Agreement and
by such
reference the appropriate Schedule is incorporated into and made
part of
this Agreement. The Schedules to this Agreement are as
follows:
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Information
concerning Commoncache
Schedule
“A” Commoncache
Financial Statements
Information
concerning FreeCom
Schedule
“B” FreeCom
Financial Statements
Severability
of Clauses
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1.4
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If
any part of this Agreement is declared or held to be invalid for
any
reason, such invalidity will not affect the validity of the remainder
which will continue in full force and effect and be construed as
if this
Agreement had been executed without the invalid portion, and it is
hereby
declared the intention of the parties that this Agreement would have
been
executed without reference to any portion which may, for any reason,
be
hereafter declared or held to be
invalid.
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ARTICLE
2
THE
ACQUISITION
Sale
of Membership Interests
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2.1
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The
FreeCom Interestholders hereby agree to sell to Commoncache the FreeCom
Membership Interests in exchange for the Acquisition Shares on the
Closing
Date and to transfer to Commoncache on the Closing Date a 100% undivided
interest in and to the FreeCom Membership Interests free from all
liens,
mortgages, charges, pledges, encumbrances or other burdens with all
rights
now or thereafter attached thereto.
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Allocation
of Consideration
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2.2
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The
Acquisition Shares shall be allocated to the FreeCom Interestholders
on
the basis of 370,000 Acquisition Shares for each one percent FreeCom
membership interest held by a FreeCom Interestholder as set forth
in
Schedule 2.2 attached
hereto.
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Adherence
with Applicable Securities Laws
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2.2
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The
FreeCom Interestholders agree that they are acquiring the Acquisition
Shares for investment purposes and will not offer, sell or otherwise
transfer, pledge or hypothecate any of the Acquisition Shares issued
to
them (other than pursuant to an effective Registration Statement
under the
Securities Act of 1933, as amended) directly or indirectly
unless:
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(a)
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the
sale is to Commoncache;
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(b)
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the
sale is made pursuant to the exemption from registration under the
Securities Act of 1933, as amended, provided by Rule 144
thereunder; or
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(c)
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the
Acquisition Shares are sold in a transaction that does not require
registration under the Securities Act of 1933, as amended, or any
applicable United States state laws and regulations governing the
offer
and sale of securities, and the vendor has furnished to Commoncache
an
opinion of counsel to that effect or such other written opinion as
may be
reasonably required by Commoncache.
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The
FreeCom Interestholders acknowledge
that the certificates representing the Acquisition Shares shall bear the
following legend:
NO
SALE,
OFFER TO SELL, OR TRANSFER OF THE SHARES REPRESENTED BY THIS CERTIFICATE SHALL
BE MADE UNLESS A REGISTRATION STATEMENT UNDER THE FEDERAL SECURITIES ACT OF
1933, AS AMENDED, IN RESPECT OF SUCH SHARES IS THEN IN EFFECT OR AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF SAID ACT IS THEN IN FACT APPLICABLE TO
SAID SHARES.
ARTICLE
3
REPRESENTATIONS
AND WARRANTIES
OF
COMMONCACHE
Representations
and Warranties
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3.1
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Commoncache
hereby represents and warrants in all material respects to FreeCom
and the
FreeCom Interestholders, with the intent that FreeCom and the FreeCom
Interestholders will rely thereon in entering into this Agreement
and in
approving and completing the transactions contemplated hereby,
that:
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Commoncache
- Corporate Status and Capacity
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(a)
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Incorporation.
Commoncache is a corporation duly incorporated and validly subsisting
under the laws of the State of Nevada and in good standing with the
office
of the Secretary of State for the State of
Nevada;
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(b)
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Carrying
on Business. Commoncache conducts the business described in its
filings with the Securities and Exchange Commission and does not
conduct
any other business. Commoncache is duly authorized to carry on such
business in the State of Massachusetts. The nature of the
Commoncache Business does not require Commoncache to register or
otherwise
be qualified to carry on business in any other
jurisdictions;
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(c)
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Corporate
Capacity. Commoncache has the corporate power, capacity and authority
to own the Commoncache Assets and to enter into and complete this
Agreement;
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(d)
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Reporting
Status; Listing. Commoncache is required to file current reports with
the Securities and Exchange Commission pursuant to section 13 of
the
Securities Exchange Act of 1934. At present, Commoncache is
listed on the Over-the-Counter Bulletin Board under the symbol
“CCAH”;
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Commoncache
- Capitalization
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(e)
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Authorized
Capital. The authorized capital of Commoncache consists of 100,000,000
Commoncache Common Shares, $0.001 par value and 10,000,000 shares
of
preferred stock, of which 25,682,700 Commoncache Common Shares, are
presently issued and outstanding;
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(f)
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No
Option, Warrant or Other Right. No person, firm or corporation has any
agreement, option, warrant, preemptive right or any other right capable
of
becoming an agreement, option, warrant or right for the acquisition
of
Commoncache Common Shares or for the purchase, subscription or issuance
of
any of the unissued shares in the capital of
Commoncache;
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Commoncache
- Records and Financial Statements
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(g)
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Charter
Documents. The charter documents of Commoncache and its subsidiaries
have not been altered since the incorporation of each, respectively,
except as filed in the record books of
Commoncache;
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(h)
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Corporate
Minute Books. The corporate minute books of Commoncache and its
subsidiaries are complete and each of the minutes contained therein
accurately reflect the actions that were taken at a duly called and
held
meeting or by consent without a meeting. All actions by Commoncache
which
required director or shareholder approval are reflected on the corporate
minute books of Commoncache and its subsidiaries. Commoncache is
not in
violation or breach of, or in default with respect to, any term of
its
Certificates of Incorporation (or other charter documents) or
by-laws.
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(i)
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Commoncache
Financial Statements. The Commoncache Financial Statements present
fairly, in all material respects, the assets and liabilities (whether
accrued, absolute, contingent or otherwise) of Commoncache, and the
sales
and earnings of the Commoncache Business during the periods covered
thereby, in all material respects and have been prepared in substantial
accordance with generally accepted accounting principles consistently
applied;
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(j)
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Commoncache
Accounts Payable and Liabilities. There are no material liabilities,
contingent or otherwise, of Commoncache which are not reflected in
the
Commoncache Financial Statements except those incurred in the ordinary
course of business since the date of the said schedule and the Commoncache
Financial Statements, and Commoncache has not guaranteed or agreed
to
guarantee any debt, liability or other obligation of any person,
firm or
corporation.
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(k)
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Commoncache
Accounts Receivable. All the Commoncache Accounts Receivable result
from bona fide business transactions and services actually rendered
without, to the knowledge and belief of Commoncache, any claim by
the
obligor for set-off or counterclaim. Without limiting the generality
of
the foregoing, all accounts receivable of Commoncache as of June
30, 2007,
are described in Schedule “A”
hereto;
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(l)
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No
Debt to Related Parties. Commoncache will not, and on the Closing will
not be, indebted to any affiliate, director, officer or any other
party
(including unrelated parties) of Commoncache except accounts payable
on
account of bona fide business transactions of Commoncache incurred
in
normal course of the Commoncache Business, including employment
agreements, none of which are more than 30 days in
arrears;
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(m)
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No
Related Party Debt to Commoncache. No director or officer or affiliate
of Commoncache is now indebted to or under any financial obligation
to
Commoncache or any subsidiary on any account whatsoever, except for
advances on account of travel and other expenses not exceeding $1,000
in
total;
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(n)
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No
Dividends. No dividends or other distributions on any shares in the
capital of Commoncache have been made, declared or authorized since
the
date of Commoncache Financial
Statements;
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(o)
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No
Payments. No payments of any kind have been made or authorized since
the date of the Commoncache Financial Statements to or on behalf
of
officers, directors, shareholders or employees of Commoncache or
its
subsidiaries or under any management agreements with Commoncache
or its
subsidiaries, except payments made in the ordinary course of business
and
at the regular rates of salary or other remuneration payable to
them;
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(p)
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No
Pension Plans. There are no pension, profit sharing, group insurance
or similar plans or other deferred compensation plans affecting
Commoncache;
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(q)
|
No
Adverse Events. Since the date of the Commoncache Financial
Statements:
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(i)
|
there
has not been any material adverse change in the consolidated financial
position or condition of Commoncache, its liabilities or the Commoncache
Assets or any damage, loss or other change in circumstances materially
affecting Commoncache, the Commoncache Business or the Commoncache
Assets
or Commoncache’ right to carry on the Commoncache Business, other than
changes in the ordinary course of
business,
|
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(ii)
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there
has not been any damage, destruction, loss or other event (whether
or not
covered by insurance) materially and adversely affecting Commoncache,
the
Commoncache Business or the Commoncache
Assets,
|
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(iii)
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there
has not been any material increase in the compensation payable or
to
become payable by Commoncache to any of Commoncache’ officers, employees
or agents or any bonus, payment or arrangement made to or with any
of
them,
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(iv)
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the
Commoncache Business has been and continues to be carried on in the
ordinary course,
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(v)
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Commoncache
has not waived or surrendered any right of material
value,
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(vi)
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Commoncache
has not discharged or satisfied or paid any lien or encumbrance or
obligation or liability other than current liabilities in the ordinary
course of business, and
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(vii)
|
no
capital expenditures in excess of $10,000 individually or $30,000
in total
have been authorized or made.
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Commoncache
- Income Tax Matters
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(r)
|
Tax
Returns. All tax returns and reports of Commoncache required by law
to
be filed have been filed and are true, complete and correct, and
any taxes
payable in accordance with any return filed by Commoncache and its
subsidiaries or in accordance with any notice of assessment or
reassessment issued by any taxing authority have been so
paid;
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(s)
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Current
Taxes. Adequate provisions have been made for taxes payable for the
current period for which tax returns are not yet required to be filed
and
there are no agreements, waivers, or other arrangements providing
for an
extension of time with respect to the filing of any tax return by,
or
payment of, any tax, governmental charge or deficiency by Commoncache
or
its subsidiaries. Commoncache is not aware of any contingent
tax liabilities or any grounds which would prompt a reassessment
including
aggressive treatment of income and expenses in filing earlier tax
returns;
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Commoncache
- Applicable Laws and Legal Matters
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(t)
|
Licenses.
Commoncache and its subsidiaries hold all licenses and permits as
may be
requisite for carrying on the Commoncache Business in the manner
in which
it has heretofore been carried on, which licenses and permits have
been
maintained and continue to be in good standing except where the failure
to
obtain or maintain such licenses or permits would not have a material
adverse effect on the Commoncache
Business;
|
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(u)
|
Applicable
Laws. Neither Commoncache nor its subsidiaries have been charged
with
or received notice of breach of any laws, ordinances, statutes,
regulations, by-laws, orders or decrees to which they are subject
or which
apply to them the violation of which would have a material adverse
effect
on the Commoncache Business, and neither Commoncache nor its subsidiaries
are in breach of any laws, ordinances, statutes, regulations, bylaws,
orders or decrees the contravention of which would result in a material
adverse impact on the Commoncache
Business;
|
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(v)
|
Pending
or Threatened Litigation. There is no material litigation or
administrative or governmental proceeding pending or threatened against
or
relating to Commoncache, the Commoncache Business, or any of the
Commoncache Assets nor does Commoncache have any knowledge of any
deliberate act or omission of Commoncache or its subsidiaries that
would
form any material basis for any such action or
proceeding;
|
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(w)
|
No
Bankruptcy. Commoncache has not made any voluntary assignment or
proposal under applicable laws relating to insolvency and bankruptcy
and
no bankruptcy petition has been filed or presented against Commoncache
and
no order has been made or a resolution passed for the winding-up,
dissolution or liquidation of
Commoncache;
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(x)
|
Labor
Matters. Commoncache is not a party to any collective agreement
relating to the Commoncache Business with any labor union or other
association of employees and no part of the Commoncache Business
has been
certified as a unit appropriate for collective bargaining or, to
the
knowledge of Commoncache, has made any attempt in that
regard;
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(y)
|
Finder's
Fees. Commoncache is not a party to any agreement which provides
for
the payment of finder's fees, brokerage fees, commissions or other
fees or
amounts which are or may become payable to any third party in connection
with the execution and delivery of this Agreement and the transactions
contemplated herein;
|
Execution
and Performance of Agreement
|
(z)
|
Authorization
and Enforceability. The execution and delivery of this Agreement, and
the completion of the transactions contemplated hereby, have been
duly and
validly authorized by all necessary corporate action on the part
of
Commoncache;
|
|
(aa)
|
No
Violation or Breach. The execution and performance of this Agreement
will not:
|
|
(i)
|
violate
the charter documents of Commoncache or result in any breach of,
or
default under, any loan agreement, mortgage, deed of trust, or any
other
agreement to which Commoncache is a
party,
|
|
(ii)
|
give
any person any right to terminate or cancel any agreement including,
without limitation, the Commoncache Material Contracts, or any right
or
rights enjoyed by Commoncache,
|
|
(iii)
|
result
in any alteration of Commoncache’ obligations under any agreement to which
Commoncache is a party including, without limitation, the Commoncache
Material Contracts,
|
|
(iv)
|
result
in the creation or imposition of any lien, encumbrance or restriction
of
any nature whatsoever in favor of a third party upon or against the
Commoncache Assets,
|
|
(v)
|
result
in the imposition of any tax liability to Commoncache relating to
the
Commoncache Assets, or
|
|
(vi)
|
violate
any court order or decree to which either Commoncache is
subject;
|
The
Commoncache Assets - Ownership and Condition
|
(bb)
|
Business
Assets. The Commoncache Assets comprise all of the property and assets
of the Commoncache Business, and no other person, firm or corporation
owns
any assets used by Commoncache in operating the Commoncache Business,
whether under a lease, rental agreement or other
arrangement;
|
|
(cc)
|
Title.
Commoncache is the legal and beneficial owner of the Commoncache
Assets,
free and clear of all mortgages, liens, charges, pledges, security
interests, encumbrances or other claims
whatsoever;
|
|
(dd)
|
No
Option. No person, firm or corporation has any agreement or option
or
a right capable of becoming an agreement for the purchase of any
of the
Commoncache Assets;
|
|
(ee)
|
Commoncache
Insurance Policies. Commoncache does not maintain any public liability
insurance or insurance against loss or damage to the Commoncache
Assets
and the Commoncache Business;
|
|
(ff)
|
No
Default. There has not been any default in any material obligation of
Commoncache or any other party to be performed under any of the
Commoncache Material Contracts, each of which is in good standing
and in
full force and effect and unamended, and Commoncache is not aware
of any
default in the obligations of any other party to any of the Commoncache
Material Contracts;
|
|
(gg)
|
No
Compensation on Termination. There are no agreements, commitments or
understandings relating to severance pay or separation allowances
on
termination of employment of any employee of Commoncache. Commoncache
is
not obliged to pay benefits or share profits with any employee after
termination of employment except as required by
law;
|
Commoncache
Assets - Commoncache Equipment
|
(hh)
|
Commoncache
Equipment. The Commoncache Equipment has been maintained in a manner
consistent with that of a reasonably prudent owner and such equipment
is
in good working condition;
|
Commoncache
Assets - Commoncache Goodwill and Other Assets
|
(ii)
|
Commoncache
Goodwill. Commoncache does not carry on the Commoncache Business under
any other business or trade names. Commoncache does not have any
knowledge
of any infringement by Commoncache of any patent, trademarks, copyright
or
trade secret;
|
The
Commoncache Business
|
(jj)
|
Maintenance
of Business. Since the date of the Commoncache Financial Statements,
Commoncache has not entered into any material agreement or commitment
except in the ordinary course and except as disclosed
herein;
|
|
(kk)
|
Subsidiaries.
Commoncache does not own any subsidiaries and does not otherwise
own,
directly or indirectly, any shares or interest in any other corporation,
partnership, joint venture or firm;
and
|
Commoncache
- Acquisition Shares
|
(ll)
|
Acquisition
Shares. The Acquisition Shares when delivered to the FreeCom
Interestholders pursuant to the Acquisition shall be validly issued
and
outstanding as fully paid and non-assessable shares and the Acquisition
Shares shall be transferable upon the books of Commoncache, in all
cases
subject to the provisions and restrictions of all applicable securities
laws.
|
Non-Merger
and Survival
|
3.2
|
The
representations and warranties of Commoncache contained herein will
be
true at and as of Closing in all material respects as though such
representations and warranties were made as of such
time. Notwithstanding the completion of the transactions
contemplated hereby, the waiver of any condition contained herein
(unless
such waiver expressly releases a party from any such representation
or
warranty) or any investigation made by FreeCom or the FreeCom
Interestholders, the representations and warranties of Commoncache
shall
survive the Closing.
|
Indemnity
|
3.3
|
Commoncache
agrees to indemnify and save harmless FreeCom and the FreeCom
Interestholders from and against any and all claims, demands, actions,
suits, proceedings, assessments, judgments, damages, costs, losses
and
expenses, including any payment made in good faith in settlement
of any
claim (subject to the right of Commoncache to defend any such claim),
resulting from the failure to disclose the existence of any material
liability or the breach by it of any representation or warranty made
under
this Agreement or from any misrepresentation in or omission from
any
certificate or other instrument furnished or to be furnished by
Commoncache to FreeCom or the FreeCom Interestholders
hereunder.
|
ARTICLE
4
COVENANTS
OF COMMONCACHE
Covenants
|
4.1
|
Commoncache
covenants and agrees with FreeCom and the FreeCom Interestholders
that it
will:
|
|
(a)
|
Conduct
of Business. Until the Closing, conduct the Commoncache Business
diligently and in the ordinary course consistent with the manner
in which
the Commoncache Business generally has been operated up to the date
of
execution of this Agreement;
|
|
(b)
|
Preservation
of Business. Until the Closing, use its best efforts to
preserve the Commoncache Business and the Commoncache Assets and,
without
limitation, preserve for FreeCom Commoncache’s and its subsidiaries’
relationships with any third party having business relations with
them;
|
|
(c)
|
Access.
Until the Closing, give FreeCom, the FreeCom Interestholders, and
their
representatives full access to all of the properties, books, contracts,
commitments and records of Commoncache, and furnish to FreeCom, the
FreeCom Interestholders and their representatives all such information
as
they may reasonably request; and
|
|
(d)
|
Procure
Consents. Until the Closing, take all reasonable steps required to
obtain, prior to Closing, any and all third party consents required
to
permit the Acquisition and to preserve and maintain the Commoncache
Assets
notwithstanding the change in control of FreeCom arising from the
Acquisition.
|
Authorization
|
4.2
|
Commoncache
hereby agrees to authorize and direct any and all federal, state,
municipal, foreign and international governments and regulatory
authorities having jurisdiction respecting Commoncache and its
subsidiaries to release any and all information in their possession
respecting Commoncache and its subsidiaries to the FreeCom
Interestholders. Commoncache shall promptly execute and deliver to
the
FreeCom Interestholders any and all consents to the release of information
and specific authorizations which the FreeCom Interestholders reasonably
requires to gain access to any and all such
information.
|
Survival
|
4.3
|
The
covenants set forth in this Article shall survive the Closing for
the
benefit of FreeCom and the FreeCom
Interestholders.
|
ARTICLE
5
REPRESENTATIONS
AND WARRANTIES OF
THE
FREECOM INTERESTHOLDERS
Representations
and Warranties
|
5.1
|
The
FreeCom Interestholders hereby jointly and severally represent and
warrant
in all material respects to Commoncache, with the intent that it
will rely
thereon in entering into this Agreement and in approving and completing
the transactions contemplated hereby,
that:
|
FreeCom
- Company Status and Capacity
|
(a)
|
Formation.
FreeCom is a limited liability corporation duly incorporated and
validly
subsisting under the laws of the State of Florida and in good standing
with the office of the Secretary of State for the State of
Florida;
|
|
(b)
|
Carrying
on Business. FreeCom carries on the FreeCom Business primarily in the
State of Florida and carries on material business activity in other
jurisdiction. The nature of the FreeCom Business does not require
FreeCom
to register or otherwise be qualified to carry on business in any
jurisdiction;
|
|
(c)
|
Legal
Capacity. FreeCom has the legal power, capacity and authority to own
FreeCom Assets, to carry on the Business of FreeCom and to enter
into and
complete this Agreement;
|
FreeCom
- Capitalization
|
(d)
|
Ownership
of FreeCom Membership Interests. The issued and outstanding membership
interests of FreeCom (being the FreeCom Membership Interests), which
membership interests on Closing shall be validly issued and outstanding
as
fully paid and non-assessable membership interests. The FreeCom
Interestholders will be at Closing the registered and beneficial
owners of
the FreeCom Membership Interests. The FreeCom Membership Interests
owned
by the FreeCom Interestholders will on Closing be free and clear
of any
and all liens, charges, pledges, encumbrances, restrictions on transfer
and adverse claims whatsoever;
|
|
(e)
|
Options,
Warrants or Other Rights. No person, firm or corporation has any
agreement, option, warrant, preemptive right or any other right capable
of
becoming an agreement, option, warrant or right for the acquisition
of
FreeCom Membership Interests held by the FreeCom Interestholders
or for
the purchase, subscription or issuance of any of the unissued membership
interests in the capital of
FreeCom;
|
|
(f)
|
No
Restrictions. There are no restrictions on the transfer, sale or other
disposition of FreeCom Membership Interests contained in the charter
documents of FreeCom or under any
agreement;
|
FreeCom
- Records and Financial Statements
|
(g)
|
Charter
Documents. The charter documents of FreeCom have not been altered
since its formation date, except as filed in the record books of
FreeCom;
|
|
(h)
|
Minute
Books. The minute books of FreeCom are complete and each of the
minutes contained therein accurately reflect the actions that were
taken
at a duly called and held meeting or by consent without a meeting.
All
actions by FreeCom which required director or shareholder approval
are
reflected on the corporate minute books of FreeCom. FreeCom is not
in
violation or breach of, or in default with respect to, any term of
its
Certificate of Incorporation (or other charter documents) or
by-laws.
|
|
(i)
|
FreeCom
Financial Statements. The FreeCom Financial Statements present fairly,
in all material respects, the assets and liabilities (whether accrued,
absolute, contingent or otherwise) of FreeCom as of the date thereof,
and
the sales and earnings of the FreeCom Business during the periods
covered
thereby, in all material respects, and have been prepared in substantial
accordance with generally accepted accounting principles consistently
applied;
|
|
(j)
|
FreeCom
Accounts Payable and Liabilities. There are no material liabilities,
contingent or otherwise, of FreeCom which are not reflected in the
FreeCom
Financial Statements except those incurred in the ordinary course
of
business since the date of the said schedule and the FreeCom Financial
Statements, and FreeCom has not guaranteed or agreed to guarantee
any
debt, liability or other obligation of any person, firm or corporation.
Without limiting the generality of the foregoing, all accounts payable
and
liabilities of FreeCom as of June 30, 2007 are described in the FreeCom
Financial Statements;
|
|
(k)
|
FreeCom
Accounts Receivable. All the FreeCom Accounts Receivable result from
bona fide business transactions and services actually rendered without,
to
the knowledge and belief of the FreeCom Interestholders, any claim
by the
obligor for set-off or counterclaim. Without limiting the
generality of the foregoing, all accounts receivable of FreeCom as
of June
30, 2007, are described in Schedule “B”
hereto;
|
|
(l)
|
No
Debt to Related Parties. FreeCom is not and on Closing will not be,
indebted to the FreeCom Interestholders nor to any family member
thereof,
nor to any affiliate, director or officer of FreeCom or the FreeCom
Interestholders except accounts payable on account of bona fide business
transactions of FreeCom incurred in normal course of FreeCom Business,
including employment agreements with the FreeCom Interestholders,
none of
which are more than 30 days in
arrears;
|
|
(m)
|
No
Related Party Debt to FreeCom. No FreeCom Shareholder nor any
director, officer or affiliate of FreeCom is now indebted to or under
any
financial obligation to FreeCom on any account whatsoever, except
for
advances on account of travel and other expenses not exceeding $5,000
in
total;
|
|
(n)
|
No
Dividends. No dividends or other distributions on any membership
interests in the capital of FreeCom have been made, declared or authorized
since the date of the FreeCom Financial
Statements;
|
|
(o)
|
No
Payments. No payments of any kind have been made or authorized since
the date of the FreeCom Financial Statements to or on behalf of the
FreeCom Interestholders or to or on behalf of officers, directors,
shareholders or employees of FreeCom or under any management agreements
with FreeCom, except payments made in the ordinary course of business
and
at the regular rates of salary or other remuneration payable to
them;
|
|
(p)
|
No
Pension Plans. There are no pension, profit sharing, group insurance
or similar plans or other deferred compensation plans affecting FreeCom,
except as set forth in the FreeCom Financial
Statements;
|
|
(q)
|
No
Adverse Events. Since June 30,
2007:
|
|
(i)
|
there
has not been any material adverse change in the consolidated financial
position or condition of FreeCom, its liabilities or the FreeCom
Assets or
any damage, loss or other change in circumstances materially affecting
FreeCom, the FreeCom Business or the FreeCom Assets or FreeCom’s right to
carry on the FreeCom Business, other than changes in the ordinary
course
of business,
|
|
(ii)
|
there
has not been any damage, destruction, loss or other event (whether
or not
covered by insurance) materially and adversely affecting FreeCom,
the
FreeCom Business or the FreeCom
Assets,
|
|
(iii)
|
there
has not been any material increase in the compensation payable or
to
become payable by FreeCom to the FreeCom Interestholders or to any
of
FreeCom's officers, employees or agents or any bonus, payment or
arrangement made to or with any of
them,
|
|
(iv)
|
the
FreeCom Business has been and continues to be carried on in the ordinary
course,
|
|
(v)
|
FreeCom
has not waived or surrendered any right of material
value,
|
|
(vi)
|
FreeCom
has not discharged or satisfied or paid any lien or encumbrance or
obligation or liability other than current liabilities in the ordinary
course of business, and
|
|
(vii)
|
no
capital expenditures in excess of $10,000 individually or $30,000
in total
have been authorized or made;
|
FreeCom
- Income Tax Matters
|
(r)
|
Tax
Returns. All tax returns and reports of FreeCom required by law to be
filed have been filed and are true, complete and correct, and any
taxes
payable in accordance with any return filed by FreeCom or in accordance
with any notice of assessment or reassessment issued by any taxing
authority have been so paid;
|
|
(s)
|
Current
Taxes. Adequate provisions have been made for taxes payable for the
current period for which tax returns are not yet required to be filed
and
there are no agreements, waivers, or other arrangements providing
for an
extension of time with respect to the filing of any tax return by,
or
payment of, any tax, governmental charge or deficiency by FreeCom.
FreeCom
is not aware of any contingent tax liabilities or any grounds which
would
prompt a reassessment including aggressive treatment of income and
expenses in filing earlier tax
returns;
|
|
|
FreeCom
- Applicable Laws and Legal
Matters
|
|
(t)
|
Licenses.
FreeCom holds all licenses and permits as may be requisite for carrying
on
the FreeCom Business in the manner in which it has heretofore been
carried
on, which licenses and permits have been maintained and continue
to be in
good standing except where the failure to obtain or maintain such
licenses
or permits would not have a material adverse effect on the FreeCom
Business;
|
|
(u)
|
Applicable
Laws. FreeCom has not been charged with or received notice of breach
of any laws, ordinances, statutes, regulations, by-laws, orders or
decrees
to which they are subject or which applies to them the violation
of which
would have a material adverse effect on the FreeCom Business, and,
to the
knowledge of the FreeCom Interestholders, FreeCom is not in breach
of any
laws, ordinances, statutes, regulations, by-laws, orders or decrees
the
contravention of which would result in a material adverse impact
on the
FreeCom Business;
|
|
(v)
|
Pending
or Threatened Litigation. There is no material litigation or
administrative or governmental proceeding pending or threatened against
or
relating to FreeCom, the FreeCom Business, or any of the FreeCom
Assets,
nor do the FreeCom Interestholders have any knowledge of any deliberate
act or omission of FreeCom that would form any material basis for
any such
action or proceeding;
|
|
(w)
|
No
Bankruptcy. FreeCom has not made any voluntary assignment or proposal
under applicable laws relating to insolvency and bankruptcy and no
bankruptcy petition has been filed or presented against FreeCom and
no
order has been made or a resolution passed for the winding-up, dissolution
or liquidation of FreeCom;
|
|
(x)
|
Labor
Matters. FreeCom is not party to any collective agreement relating to
the FreeCom Business with any labor union or other association of
employees and no part of the FreeCom Business has been certified
as a unit
appropriate for collective bargaining or, to the knowledge of the
FreeCom
Interestholders, has made any attempt in that
regard;
|
|
(y)
|
Finder's
Fees. FreeCom is not a party to any agreement which provides for
the
payment of finder's fees, brokerage fees, commissions or other fees
or
amounts which are or may become payable to any third party in connection
with the execution and delivery of this Agreement and the transactions
contemplated herein;
|
Execution
and Performance of Agreement
|
(z)
|
Authorization
and Enforceability. The execution and delivery of this Agreement, and
the completion of the transactions contemplated hereby, have been
duly and
validly authorized by all necessary corporate action on the part
of
FreeCom;
|
|
(aa)
|
No
Violation or Breach. The execution and performance of this Agreement
will not
|
|
(i)
|
violate
the charter documents of FreeCom or result in any breach of, or default
under, any loan agreement, mortgage, deed of trust, or any other
agreement
to which FreeCom is a party,
|
|
(ii)
|
give
any person any right to terminate or cancel any agreement including,
without limitation, FreeCom Material Contracts, or any right or rights
enjoyed by FreeCom,
|
|
(iii)
|
result
in any alteration of FreeCom's obligations under any agreement
to which FreeCom is a party including, without limitation, the
FreeCom Material Contracts,
|
|
(iv)
|
result
in the creation or imposition of any lien, encumbrance or restriction
of
any nature whatsoever in favor of a third party upon or against the
FreeCom Assets,
|
|
(v)
|
result
in the imposition of any tax liability to FreeCom relating to FreeCom
Assets or the FreeCom Membership Interests,
or
|
|
(vi)
|
violate
any court order or decree to which either FreeCom is
subject;
|
FreeCom
Assets - Ownership and Condition
|
(bb)
|
Business
Assets. The FreeCom Assets, comprise all of the property and assets
of
the FreeCom Business, and neither the FreeCom Interestholders nor
any
other person, firm or corporation owns any assets used by FreeCom
in
operating the FreeCom Business, whether under a lease, rental agreement
or
other arrangement, other than as disclosed in Schedules “N” or “Q”
hereto;
|
|
(cc)
|
Title.
FreeCom is the legal and beneficial owner of the FreeCom Assets,
free and
clear of all mortgages, liens, charges, pledges, security interests,
encumbrances or other claims whatsoever, save and except as disclosed
in
Schedules “N” or “Q” hereto;
|
|
(dd)
|
No
Option. No person, firm or corporation has any agreement or option
or
a right capable of becoming an agreement for the purchase of any
of the
FreeCom Assets;
|
|
(ee)
|
FreeCom
Insurance Policies. FreeCom maintains the public liability insurance
and insurance against loss or damage to the FreeCom Assets and the
FreeCom
Business as described in Schedule “P”
hereto;
|
|
(ff)
|
FreeCom
Material Contracts. The FreeCom Material Contracts listed in Schedule
“R” constitute all of the material contracts of
FreeCom;
|
|
(gg)
|
No
Default. There has not been any default in any material obligation of
FreeCom or any other party to be performed under any of FreeCom Material
Contracts, each of which is in good standing and in full force and
effect
and unamended (except as disclosed in Schedule “R”), and FreeCom is not
aware of any default in the obligations of any other party to any
of the
FreeCom Material Contracts;
|
|
(hh)
|
No
Compensation on Termination. There are no agreements, commitments or
understandings relating to severance pay or separation allowances
on
termination of employment of any employee of FreeCom. FreeCom
is not obliged to pay benefits or share profits with any employee
after
termination of employment except as required by
law;
|
FreeCom
Assets - FreeCom Equipment
|
(ii)
|
FreeCom
Equipment. The FreeCom Equipment has been maintained in a manner
consistent with that of a reasonably prudent owner and such equipment
is
in good working condition;
|
FreeCom
Assets - FreeCom Goodwill and Other Assets
|
(jj)
|
FreeCom
Goodwill. FreeCom carries on the FreeCom Business only under the name
"FreeCom Technologies, Inc." and variations thereof and under no
other
business or trade names. The FreeCom Interestholders do not have
any
knowledge of any infringement by FreeCom of any patent, trademark,
copyright or trade secret;
|
The
Business of FreeCom
|
(kk)
|
Maintenance
of Business. Since the date of the FreeCom Financial Statements, the
FreeCom Business has been carried on in the ordinary course and FreeCom
has not entered into any material agreement or commitment except
in the
ordinary course; and
|
|
(ll)
|
Subsidiaries.
FreeCom does not own any subsidiaries and does not otherwise own,
directly
or indirectly, any shares or interest in any other corporation,
partnership, joint venture or firm and FreeCom does not own any subsidiary
and does not otherwise own, directly or indirectly, any shares or
interest
in any other corporation, partnership, joint venture or
firm.
|
Non-Merger
and Survival
|
5.2
|
The
representations and warranties of FreeCom contained herein will be
true at
and as of Closing in all material respects as though such representations
and warranties were made as of such time. Notwithstanding the
completion of the transactions contemplated hereby, the waiver of
any
condition contained herein (unless such waiver expressly releases
a party
from any such representation or warranty) or any investigation made
by
Commoncache, the representations and warranties of FreeCom shall
survive
the Closing.
|
ARTICLE
6
COVENANTS
OF FREECOM AND
THE
FREECOM INTERESTHOLDERS
Covenants
|
6.1
|
FreeCom
and the FreeCom Interestholders covenant and agree with Commoncache
that
they will:
|
|
(a)
|
Conduct
of Business. Until the Closing, conduct the FreeCom Business
diligently and in the ordinary course consistent with the manner
in which
the FreeCom Business generally has been operated up to the date of
execution of this Agreement;
|
|
(b)
|
Preservation
of Business. Until the Closing, use their best efforts to
preserve the FreeCom Business and the FreeCom Assets and, without
limitation, preserve for Commoncache FreeCom’s relationships with their
suppliers, customers and others having business relations with
them;
|
|
(c)
|
Procure
Consents. Until the Closing, take all reasonable steps required to
obtain, prior to Closing, any and all third party consents required
to
permit the Acquisition and to preserve and maintain the FreeCom Assets,
including the FreeCom Material Contracts, notwithstanding the change
in
control of FreeCom arising from the
Acquisition;
|
Authorization
|
6.2
|
FreeCom
hereby agrees to authorize and direct any and all federal, state,
municipal, foreign and international governments and regulatory
authorities having jurisdiction respecting FreeCom to release any
and all
information in their possession respecting FreeCom to
Commoncache. FreeCom shall promptly execute and deliver to
Commoncache any and all consents to the release of information and
specific authorizations which Commoncache reasonably require to gain
access to any and all such
information.
|
Survival
|
6.3
|
The
covenants set forth in this Article shall survive the Closing for
the
benefit of Commoncache.
|
ARTICLE
7
CONDITIONS
PRECEDENT
Conditions
Precedent in favor of Commoncache
|
7.1
|
Commoncache’s
obligations to carry out the transactions contemplated hereby are
subject
to the fulfillment of each of the following conditions precedent
on or
before the Closing:
|
|
(a)
|
all
documents or copies of documents required to be executed and delivered
to
Commoncache hereunder will have been so executed and
delivered;
|
|
(b)
|
all
of the terms, covenants and conditions of this Agreement to be complied
with or performed by FreeCom or the FreeCom Interestholders at or
prior to
the Closing will have been complied with or
performed;
|
|
(c)
|
title
to the FreeCom Membership Interests held by the FreeCom Interestholders
and to the FreeCom Assets will be free and clear of all mortgages,
liens,
charges, pledges, security interests, encumbrances or other claims
whatsoever, save and except as disclosed herein, and the FreeCom
Membership Interests shall be duly transferred to
Commoncache;
|
|
(d)
|
subject
to Article 8 hereof, there will not have
occurred
|
|
(i)
|
any
material adverse change in the financial position or condition of
FreeCom,
its liabilities or the FreeCom Assets or any damage, loss or other
change
in circumstances materially and adversely affecting FreeCom, the
FreeCom
Business or the FreeCom Assets or FreeCom's right to carry on the
FreeCom
Business, other than changes in the ordinary course of business,
none of
which has been materially adverse,
or
|
|
(ii)
|
any
damage, destruction, loss or other event, including changes to any
laws or
statutes applicable to FreeCom or the FreeCom Business (whether or
not
covered by insurance) materially and adversely affecting FreeCom,
the
FreeCom Business or the FreeCom
Assets;
|
|
(e)
|
the
transactions contemplated hereby shall have been approved by all
other
regulatory authorities having jurisdiction over the subject matter
hereof,
if any;
|
|
(f)
|
the
transactions contemplated hereby shall have been approved by the
Board of
Directors and shareholders of
FreeCom;
|
|
(g)
|
on
or prior to the Closing Date, FreeCom and/or the FreeCom Interestholders
shall have acquired all of the membership interests held by FreeCom
Interestholders that are not participating in this Agreement so that
Commoncache shall acquire 100% of the presently issued and outstanding
FreeCom Membership Interests; and
|
|
(h)
|
on
or prior to the Closing Date, FreeCom shall have delivered the FreeCom
Financial Statements.
|
Waiver
by Commoncache
|
7.2
|
The
conditions precedent set out in the preceding section are inserted
for the
exclusive benefit of Commoncache and any such condition may be waived
in
whole or in part by Commoncache at or prior to the Closing by delivering
to FreeCom a written waiver to that effect signed by Commoncache.
In the
event that the conditions precedent set out in the preceding section
are
not satisfied on or before the Closing, Commoncache shall be released
from
all obligations under this
Agreement.
|
Conditions
Precedent in Favor of FreeCom and the FreeCom
Interestholders
|
7.3
|
The
obligations of FreeCom and the FreeCom Interestholders to carry out
the
transactions contemplated hereby are subject to the fulfillment of
each of
the following conditions precedent on or before the
Closing:
|
|
(a)
|
all
documents or copies of documents required to be executed and delivered
to
FreeCom hereunder will have been so executed and
delivered;
|
|
(b)
|
all
of the terms, covenants and conditions of this Agreement to be complied
with or performed by Commoncache at or prior to the Closing will
have been
complied with or performed;
|
|
(c)
|
Commoncache
will have delivered the Acquisition Shares to be issued pursuant
to the
terms of the Acquisition to FreeCom at the Closing and the Acquisition
Shares will be registered on the books of Commoncache in the name
of the
holder of FreeCom Membership Interests at the time of
Closing;
|
|
(d)
|
title
to the Acquisition Shares will be free and clear of all mortgages,
liens,
charges, pledges, security interests, encumbrances or other claims
whatsoever;
|
|
(e)
|
subject
to Article 8 hereof, there will not have
occurred
|
|
(i)
|
any
material adverse change in the financial position or condition of
Commoncache, its subsidiaries, their liabilities or the Commoncache
Assets
or any damage, loss or other change in circumstances materially and
adversely affecting Commoncache, the Commoncache Business or the
Commoncache Assets or Commoncache’ right to carry on the Commoncache
Business, other than changes in the ordinary course of business,
none of
which has been materially adverse,
or
|
|
(ii)
|
any
damage, destruction, loss or other event, including changes to any
laws or
statutes applicable to Commoncache or the Commoncache Business (whether
or
not covered by insurance) materially and adversely affecting Commoncache,
its subsidiaries, the Commoncache Business or the Commoncache
Assets;
|
|
(f)
|
the
transactions contemplated hereby shall have been approved by all
other
regulatory authorities having jurisdiction over the subject matter
hereof,
if any;
|
|
(g)
|
the
transactions contemplated hereby shall have been approved by the
Board of
Directors of Commoncache;
|
|
(i)
|
each
of the directors and officers of Commoncache shall have resigned
as
directors and/or officers of
Commoncache;
|
|
(j)
|
Xxxxxxx
Xxxxxxxx shall have been appointed as the Chairman of the Board of
the
Board of Directors of Commoncache and Xxxxxxx Xxxxxx, Xxxxxxxx Xxxxxxx
and
Xxxxxxxx Xxxxxxxxx shall be appointed as members of the Board of
Directors.
|
Waiver
by FreeCom and the FreeCom Interestholders
|
7.4
|
The
conditions precedent set out in the preceding section are inserted
for the
exclusive benefit of FreeCom and the FreeCom Interestholders and
any such
condition may be waived in whole or in part by FreeCom or the FreeCom
Interestholders at or prior to the Closing by delivering to Commoncache
a
written waiver to that effect signed by FreeCom and the FreeCom
Interestholders. In the event that the conditions precedent set out
in the
preceding section are not satisfied on or before the Closing, FreeCom
and
the FreeCom Interestholders shall be released from all obligations
under
this Agreement.
|
Nature
of Conditions Precedent
|
7.5
|
The
conditions precedent set forth in this Article are conditions of
completion of the transactions contemplated by this Agreement and
are not
conditions precedent to the existence of a binding agreement. Each
party
acknowledges receipt of the sum of $10.00 and other good and valuable
consideration as separate and distinct consideration for agreeing
to the
conditions of precedent in favor of the other party or parties set
forth
in this Article.
|
Termination
|
7.6
|
Notwithstanding
any provision herein to the contrary, if the Closing does not occur
on or
before September 30, 2007 (the “Termination Date”), this Agreement will be
at an end and will have no further force or effect, unless otherwise
agreed upon by the parties in
writing.
|
Confidentiality
|
7.7
|
Notwithstanding
any provision herein to the contrary, the parties hereto agree that
the
existence and terms of this Agreement are confidential and that if
this
Agreement is terminated pursuant to the preceding section the parties
agree to return to one another any and all financial, technical and
business documents delivered to the other party or parties in connection
with the negotiation and execution of this Agreement and shall keep
the
terms of this Agreement and all information and documents received
from
FreeCom and Commoncache and the contents thereof confidential and
not
utilize nor reveal or release same, provided, however, that Commoncache
will be required to issue a news release regarding the execution
and
consummation of this Agreement and file a Current Report on Form
8-K with
the Securities and Exchange Commission respecting the proposed Acquisition
contemplated hereby together with such other documents as are required
to
maintain the currency of Commoncache’s filings with the Securities and
Exchange Commission.
|
ARTICLE
8
RISK
Material
Change in the Business of FreeCom
|
8.1
|
If
any material loss or damage to the FreeCom Business occurs prior
to
Closing and such loss or damage, in Commoncache's reasonable opinion,
cannot be substantially repaired or replaced within sixty (60) days,
Commoncache shall, within two (2) days following any such loss or
damage,
by notice in writing to FreeCom, at its option,
either:
|
|
(a)
|
terminate
this Agreement, in which case no party will be under any further
obligation to any other party; or
|
|
(b)
|
elect
to complete the Acquisition and the other transactions contemplated
hereby, in which case the proceeds and the rights to receive the
proceeds
of all insurance covering such loss or damage will, as a condition
precedent to Commoncache' obligations to carry out the transactions
contemplated hereby, be vested in FreeCom or otherwise adequately
secured
to the satisfaction of Commoncache on or before the Closing
Date.
|
Material
Change in the Commoncache Business
|
8.2
|
If
any material loss or damage to the Commoncache Business occurs prior
to
Closing and such loss or damage, in FreeCom's reasonable opinion,
cannot
be substantially repaired or replaced within sixty (60) days, FreeCom
shall, within two (2) days following any such loss or damage, by
notice in
writing to Commoncache, at its option,
either:
|
|
(a)
|
terminate
this Agreement, in which case no party will be under any further
obligation to any other party; or
|
|
(b)
|
elect
to complete the Acquisition and the other transactions contemplated
hereby, in which case the proceeds and the rights to receive the
proceeds
of all insurance covering such loss or damage will, as a condition
precedent to FreeCom's obligations to carry out the transactions
contemplated hereby, be vested in Commoncache or otherwise adequately
secured to the satisfaction of FreeCom on or before the Closing
Date.
|
ARTICLE
9
CLOSING
Closing
|
9.1
|
The
Acquisition and the other transactions contemplated by this Agreement
will
be closed at the Place of Closing on Closing Date in accordance with
the
closing procedure set out in this
Article.
|
Documents
to be Delivered by FreeCom
|
9.2
|
On
or before the Closing, FreeCom and the FreeCom Interestholders will
deliver or cause to be delivered to
Commoncache:
|
|
(a)
|
copies
of the charter documents of FreeCom, including amendments thereof,
and all
corporate records documents and instruments of FreeCom, the corporate
seal
of FreeCom and all books and accounts of
FreeCom;
|
|
(b)
|
certified
copies of such resolutions and minutes of the shareholders and directors
of FreeCom as are required to be passed to authorize the execution,
delivery and implementation of this
Agreement;
|
|
(c)
|
an
acknowledgement from FreeCom and the FreeCom Interestholders of the
satisfaction of the conditions precedent set forth in section 7.3
hereof;
|
|
(d)
|
the
certificates or other evidence of ownership of the FreeCom Membership
Interests, together with such other documents or instruments required
to
effect transfer of ownership of the FreeCom Membership Interests
to
Commoncache; and
|
|
(e)
|
such
other documents as Commoncache may reasonably require to give effect
to
the terms and intention of this
Agreement.
|
Documents
to be Delivered by Commoncache
|
9.3
|
On
or before the Closing, Commoncache shall deliver or cause to be delivered
to FreeCom and the FreeCom
Interestholders:
|
|
(a)
|
share
certificates representing the Acquisition Shares duly registered
in the
names of the holders of shares of FreeCom Common
Stock;
|
|
(b)
|
certified
copies of such resolutions of the directors of Commoncache as are
required
to be passed to authorize the execution, delivery and implementation
of
this Agreement;
|
|
(c)
|
a
certified copy of a resolution of the directors of Commoncache dated
as of
the Closing Date appointing the nominees of FreeCom as officers of
Commoncache and appointing the nominees of the FreeCom Interestholders
to
the board of directors of
Commoncache;
|
|
(d)
|
resignations
of all of the officers of Commoncache as of the Closing
Date;
|
|
(e)
|
resignations
of all of the directors of Commoncache as of the Closing Date,
dated subsequent to the resolution
described in (d), above;
|
|
(f)
|
certificates
representing an aggregate of 21,500,000 shares of common stock of
Commoncache from its shareholders, together with duly executed stock
powers, for cancellation;
|
|
(g)
|
an
acknowledgement from Commoncache of the satisfaction of the conditions
precedent set forth in section 7.1
hereof;
|
|
(h)
|
certificate
or incorporation and good standing certificate of Commoncache;
and
|
|
(i)
|
such
other documents as FreeCom may reasonably require to give effect
to the
terms and intention of this
Agreement.
|
ARTICLE
10
POST-CLOSING
MATTERS
Forthwith
after the Closing,
Commoncache, FreeCom and the FreeCom Interestholders, as the case may be, agree
to use all their best efforts to:
|
(a)
|
change
the name of Commoncache to “GLOBAL ROAMING DISTRIBUTION, INC.” and change
the name of FreeCom to “GLOBAL ROAMING DISTRIBUTION CORPORATION” or such
other name as determined by the Board of Directors of
Commoncache.
|
|
(b)
|
Complete
a 4-to-1 forward-split of the issued and outstanding common stock
of
Commoncache (by way of a mandatory exchange of certificates), resulting
164,730,800 shares of of common stock of Commoncache issued and
outstanding (based upon a total of 41,182,700 shares of common stock
of
Commoncache issued and outstanding immediately following the Closing,
after giving effect to the issuance of the Acquisition Shares and
the
cancellation of 21,500,000 shares of common stock of Commoncache
by the
Commoncache shareholders).
|
|
(c)
|
Increase
the number of shares of common stock which Commoncache is authorized
to
issue to 300,000,000 shares;
|
|
(d)
|
issue
a news release reporting the Closing;
|
|
(e)
|
file
a Form 8-K with the Securities and Exchange Commission disclosing
the
terms of this Agreement with audited financial statements of Company
as
well as any required pro forma financial information or other information
of Company as required by the rules and regulations of the Securities
and
Exchange Commission;
|
|
(f)
|
file
with the Securities and Exchange Commission a report on Form 14f
disclosing the change in control of Company and, 10 days after such
filing, date the resolutions appointing to the board of directors
of the
Company Xxxxxxx Xxxxxx, Xxxxxxxx Xxxxxxxxx, Xxxxxxxx Xxxxxxx and
Xxxxxxx
Xxxxxx, and forthwith date and accept the resignations of Xxxx Xxxxx
and
Xxxxx X. Xxxxxx as Directors of the
Company;
|
|
(g)
|
take
the necessary steps to transfer and relinquish to Xxxxxxx Xxxxx and
Xxxxxxx Xxxxxxxx, all claims, rights, title and interests the Company
may
have in to the business model labeled as “Caching” and “Effect”, including
taking appropriate actions to provide that Xxxxxxx Xxxxx and Xxxxxxx
Xxxxxxxx shall have the right to pursue the development of such concepts
and business plans with other parties without any claim by the Company
in
the future.
|
ARTICLE
10(A)
FURTHER
AGREEMENTS
|
10A.1
|
The
parties hereby agree that, for a period of three (3) years following
the
Closing, the shareholders of Commoncache that own the 4,182,700 issued
and
outstanding shares of common stock of Commoncache at the Closing
(the
“Initial Commoncache Shareholders”) and the Vantage Group Ltd. shall be
granted anti-dilution protection with respect to such shares so that
the
interests represented by the shares held by the Initial Commoncache
Shareholders and the Vantage Group Ltd. shall be protected against
dilution absent the agreement by the holders of a majority of the
Initial
Commoncache Shareholders or the Vantage Group, respectively, as the
case
may be; provided, however, that this antidilution protection shall
not be
triggered by or applicable to (i) securities issued pursuant to
acquisitions or strategic transactions, provided any such issuance
shall
only be to a party which is, itself or through its subsidiaries,
an
operating company in a business synergistic with the business of
the
Company and in which the Company receives benefits in addition to
the
investment of funds, but shall not include a transaction in which
the
Company is issuing securities primarily for the purpose of raising
capital
or to an entity whose primary business is investing in securities,
or (ii)
to any transactions completed at a price above $4.00 per share on
a
pre-split basis (or $1.00 per share on a post-split basis),including
any
transaction that may be completed for the purpose of obtaining capital
for
marketing and/or working capital.purposes; and provided,
further, that such anti-dilution protection may be waived (as to
all parties provided for in this Section 10A.1) by the sole written
consent of the Vantage Group Ltd.
|
|
10A.2
|
The
parties hereby agree that, for a period of three (3) years following
the
Closing, Commoncache shall not effect a reverse split of its common
stock.
|
|
10A.3
|
The
Vantage Group Ltd. shall be granted a right of first refusal for
all
future financing by Commoncache.
|
ARTICLE
11
GENERAL
PROVISIONS
Arbitration
|
11.1
|
The
parties hereto shall attempt to resolve any dispute, controversy,
difference or claim arising out of or relating to this Agreement
by
negotiation in good faith. If such good negotiation fails to
resolve such dispute, controversy, difference or claim within fifteen
(15)
days after any party delivers to any other party a notice of its
intent to
submit such matter to arbitration, then any party to such dispute,
controversy, difference or claim may submit such matter to arbitration
in
the City of New York, New York.
|
Notice
|
11.2
|
Any
notice required or permitted to be given by any party will be deemed
to be
given when in writing and delivered to the address for notice of
the
intended recipient by personal delivery, prepaid single certified
or
registered mail, or telecopier. Any notice delivered by mail shall
be
deemed to have been received on the fourth business day after and
excluding the date of mailing, except in the event of a disruption
in
regular postal service in which event such notice shall be deemed
to be
delivered on the actual date of receipt. Any notice delivered personally
or by telecopier shall be deemed to have been received on the actual
date
of delivery.
|
Addresses
for Service
|
11.3
|
The
address for service of notice of each of the parties hereto is as
follows:
|
|
(a)
|
Commoncache:
|
2300
Palm Beach Xxxxx
Xxxx.
Xxxxx
000
Xxxx
Xxxx Xxxxx, Xxxxxxx
00000
|
(b)
|
FreeCom
or the FreeCom Interestholders:
|
c/o
Global Roaming Distribution
0000
Xxxx
Xxxxx Xxxx
Xxxxx
000
Xxxxx,
Xxxxxxx 00000
Change
of Address
|
11.4
|
Any
party may, by notice to the other parties change its address for
notice to
some other address in North America and will so change its address
for
notice whenever the existing address or notice ceases to be adequate
for
delivery by hand. A post office box may not be used as an address
for
service.
|
Further
Assurances
|
11.5
|
Each
of the parties will execute and deliver such further and other documents
and do and perform such further and other acts as any other party
may
reasonably require to carry out and give effect to the terms and
intention
of this Agreement.
|
Time
of the Essence
|
11.6
|
Time
is expressly declared to be the essence of this
Agreement.
|
Entire
Agreement
|
11.7
|
The
provisions contained herein constitute the entire agreement among
FreeCom,
the FreeCom Interestholders and Commoncache respecting the subject
matter
hereof and supersede all previous communications, representations
and
agreements, whether verbal or written, among FreeCom, the FreeCom
Interestholders and Commoncache with respect to the subject matter
hereof.
|
Enurement
|
11.8
|
This
Agreement will enure to the benefit of and be binding upon the parties
hereto and their respective heirs, executors, administrators, successors
and permitted assigns.
|
Assignment
|
11.9
|
This
Agreement is not assignable without the prior written consent of
the
parties hereto.
|
Counterparts
|
11.10
|
This
Agreement may be executed in counterparts, each of which when executed
by
any party will be deemed to be an original and all of which counterparts
will together constitute one and the same Agreement. Delivery of
executed
copies of this Agreement by telecopier will constitute proper delivery,
provided that originally executed counterparts are delivered to the
parties within a reasonable time
thereafter.
|
Applicable
Law
|
11.11
|
This
Agreement shall be enforced, governed by and construed in accordance
with
the laws of the State of New York applicable to agreements made and
to be
performed entirely within such state, without regard to the principles
of
conflict of laws The parties hereto hereby submit to the
exclusive jurisdiction of the United States federal courts located
in New
York, New York with respect to any dispute arising under this Agreement,
the agreements entered into in connection herewith or the transactions
contemplated hereby or thereby. All parties irrevocably waive the
defense
of an inconvenient forum to the maintenance of such suit or
proceeding. All parties further agree that service of process
upon a party mailed by first class mail shall be deemed in every
respect
effective service of process upon the party in any such suit or
proceeding. Nothing herein shall affect either party’s right to
serve process in any other manner permitted by law. All parties
agree that a final non-appealable judgment in any such suit or proceeding
shall be conclusive and may be enforced in other jurisdictions by
suit on
such judgment or in any other lawful manner. The party which
does not prevail in any dispute arising under this Agreement shall
be
responsible for all fees and expenses, including attorneys’ fees, incurred
by the prevailing party in connection with such
dispute.
|
IN
WITNESS WHEREOF the parties have executed this Agreement effective as of
the day
and year first above written.
|
By:
/s/ Xxxxxxx Xxxxx
|
| Xxxxxxx Xxxxx President |
FREECOM,
LLC
By:
/s/ Xxxxxxxx Xxxxxxx
Xxxxxxxx
Xxxxxxx President
INTERESTHOLDERS
OF FREECOM, LLC
FREECOM
INC.
By: /s/
Xxxxxxxx Xxxxxxx
Name: Xxxxxxxx
Xxxxxxx
Title: President
Number
of
Interests: 24.23%
By:
/s/ Xxxxxxx Xxxxxx
Name:
Xxxxxxx Xxxxxx
Number
of
Interests: 24.23%
GLOBAL
ROAMING INC.
By:
/s/ Xxxxx Xxxxxxx
Name:
Xxxxx Xxxxxxx
Title
Chief Executive Officer Number of Interests: 33.43%
THE
VANTAGE GROUP LTD.
By:
/s/ Xxxx Xxxxxx
Name:
Xxxx Xxxxxx
Title:
Chairman, CEO
Number
of
Interests: 18.11%
Schedule
A
Commoncache
Financial Statements
Schedule
B
FreeCom
Financial Statements
SCHEDULE 2.2
|
Name
|
Percent
membership Interest
|
No.
of Shaes
|
|
FreeCom
|
24.23%
|
8,965,800
|
|
Xxxxxxx
Xxxxxx
|
24.23%
|
8,965,800
|
|
Global
Roaming, Inc
|
33.43%
|
12,368,400
|
|
The
Vantage Group, Ltd.
|
18.11%
|
6,700,000
|
.
