RESCISSION AGREEMENT
Exhibit
10.1
This
Rescission Agreement (the "Agreement") is made and entered into as of November
25, 2008, and effective as of April 1, 2008, by and among Global Roaming
Distribution, Inc., a Florida corporation (the "Company"), Global Roaming Inc.
(“GRI”), a Nevada corporation, and the Holders named below. The
Company and GRI may be referred to herein individually as a "party" and together
as the "parties."
WITNESSETH
THAT:
WHEREAS,
on January 29, 2008, the Company and GRI entered into a share exchange agreement
(“Exchange Agreement”), pursuant to which the Company issued and sold to GRI
8,000,000 shares of the Company’s Series A Preferred Stock (“Preferred Shares”)
as consideration for the transfer to the Company of 2,000,000 common shares
(“Cubic Shares”) of Cubic Telecom Limited (“Cubic”) held by GRI.
WHEREAS,
the 8,000,000 Preferred Shares are currently held by Xxxxxxx Xxxxxx, Xxxxx
Xxxxxxx, and Xxxxx Xxxxxxxxx, in the amount of 2,666,667 Preferred Shares,
4,000,000 Preferred Shares, and 1,333,333 Preferred Shares,
respectively;
WHEREAS,
a dispute has arisen between the Company, GRI and Cubic with regard to the
Exchange Agreement and the parties’ ongoing relationships.
WHEREAS,
the Boards of Directors of GRI and the Company have determined that it is in the
best interests of the Company and its stockholders to rescind the Exchange
Agreement.
WHEREAS,
the parties desire to: (i) rescind the Exchange Agreement; (ii) return to the
Company for cancellation the certificates representing the Preferred Shares; and
(iii) return to GRI the certificate representing the Cubic Shares.
NOW, THEREFORE, in
consideration of the foregoing and mutual covenants set forth below, the parties
hereto agree as follows:
1. RESCISSION
OF AGREEMENT AND DELIVERY OF SECURITIES
1.1 Closing. The
closing (the “Closing”
or “Closing Date”) shall take place on or before November 25, 2008, at the
offices of Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP, 61 Broadway, 32nd Fl. Xxx
Xxxx, XX 00000, or as counsel for the parties otherwise may agree, subject
to the satisfaction of the Closing Conditions (hereinafter defined) having been
satisfied or waived by Parties. At the Closing, upon the terms and subject to
the conditions set forth herein, substantially concurrent with the execution and
delivery of this Agreement by the parties hereto, the Company and GRI agree to
rescind the Exchange Agreement, and such Exchange Agreement shall be of no
further force or effect as between the Company and GRI. Each party
shall deliver to the other agreements and other items set forth in Section 1.2
of this Agreement.
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1.2 Deliveries.
(a) On
or prior to the Closing Date, the Company shall deliver or cause to be delivered
to GRI the following:
(i) this
Agreement duly executed by the Company; and
(ii) a
certificate evidencing the Cubic Shares together with a stock power duly
endorsed to GRI;
(b) On
or prior to the Closing Date, GRI shall deliver or cause to be delivered to the
Company the following:
(i) this
Agreement duly executed by GRI; and
(ii) a
certificate evidencing 8,000,000 Preferred Shares, together with a stock power
duly endorsed to the Company.
1.3 Closing
Conditions.
(a) The
obligations of the Company hereunder in connection with the Closing are subject
to the following conditions being met:
(i) the
accuracy in all material respects on the Closing Date of the representations and
warranties of GRI contained herein;
(ii) all
obligations, covenants and agreements of GRI required to be performed at or
prior to the Closing Date shall have been performed; and
(iii) the
delivery by GRI of the items set forth in Section 1.2(b) of this
Agreement.
(b) The
obligations of GRI hereunder in connection with the Closing are subject to the
following conditions being met:
(i) the
accuracy in all material respects on the Closing Date of the representations and
warranties of the Company contained herein;
(ii) all
obligations, covenants and agreements of the Company required to be performed at
or prior to the Closing Date shall have been performed; and
(iii) the
delivery by the Company of the items set forth in Section 1.2(a) of this
Agreement.
2. REPRESENTATIONS
AND WARRANTIES
2.1 The
Company hereby represents and warrants to GRI as follows:
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(a) Organization and
Qualification. The Company is an entity duly incorporated or
otherwise organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization. The Company is not
in violation nor default of any of the provisions of its certificate or articles
of incorporation, bylaws or other organizational or charter
documents. The Company is duly qualified to conduct business and is
in good standing as a foreign corporation or other entity in each jurisdiction
in which the nature of the business conducted or property owned by it makes such
qualification necessary, except where the failure to be so qualified or in good
standing, as the case may be, could not have or reasonably be expected to result
in: (i) a material adverse effect on the legality, validity or enforceability of
this Agreement, (ii) or (ii) a material adverse effect on the Company’s ability
to perform in any material respect on a timely basis its obligations under this
Agreement (any of (i), or (ii), a “Material Adverse
Effect”) and no Proceeding has been instituted in any such jurisdiction
revoking, limiting or curtailing or seeking to revoke, limit or curtail such
power and authority or qualification.
(b) Authorization;
Enforcement. The Company has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated the
Agreement and otherwise to carry out its obligations hereunder. The
execution and delivery this Agreement by the Company and the consummation by it
of the transaction contemplated hereby have been duly authorized by all
necessary action on the part of the Company and no further action is required by
the Company, the Board of Directors or the Company’s stockholders in connection
therewith. This Agreement has been duly executed by the Company and,
when delivered in accordance with the terms hereof and thereof, will constitute
the valid and binding obligation of the Company enforceable against the Company
in accordance with its terms, except: (i) as limited by general equitable
principles and applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of creditors’ rights
generally, (ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies and (iii) insofar as
indemnification and contribution provisions may be limited by applicable
law.
(c) No
Conflicts. The execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the transactions
contemplated hereby do not and will not (i) conflict with or violate any
provision of the Company’s certificate of incorporation, bylaws, articles of
organization, operating agreement or other organizational documents, if any, or
(ii) conflict with, or constitute a default (or an event that with notice or
lapse of time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation (with or without
notice, lapse of time or both) of, any agreement, credit facility, debt or other
instrument to which the Company is a party, or (iii) result in a violation by
the Company of any law, rule, regulation, order, judgment, injunction or decree
of any court or governmental authority to which the Company is
subject.
(d) Filings, Consents and
Approvals. The Company is not required to obtain any consent,
waiver, authorization or order of, give any notice to, or make any filing or
registration with, any court or other federal, state, local or other
governmental authority or other person in connection with the execution,
delivery and performance by the Company of this Agreement.
(e) Transfer of the
Shares. The Company is the record and beneficial owner of the
Cubic Shares set forth below the Company’s signature block on the signature page
to this Agreement. The Company has good title to such securities free
and clear of any tax, lien, charge, mortgage, pledge, right (including any
rights of first offer and tag-along rights) or encumbrances of any kind and such
securities are not subject to any pre-emptive, participation or similar right
(“Liens”). Delivery
of the securities to GRI will pass good and valid title to the securities, free
and clear of any Liens.
(g) No
Reliance. The Company has made its own independent decision to
enter into this Agreement and whether this Agreement is appropriate or proper
for the Company based upon the Company’s own judgment and upon advice of such
advisors as the Company deems necessary. The Company acknowledges and
agrees that it is not relying, and has not relied, upon any communication
(written or oral) of GRI or Cubic or any affiliate, employee, director or agent
of the them, other than as specifically stated in this Agreement, with respect
to the legal, accounting, tax or other implications of this Agreement, and that
the Company has conducted its own analyses of the legal, accounting, tax and
other implications hereof and thereof; it being understood that information and
explanations related to the terms and conditions of this Agreement shall not be
considered investment advice or a recommendation to enter into this
Agreement.
(h) Material, Non-Public
Information. The Company acknowledges that GRI currently
may have, and later may come into possession of, information with respect to
Cubic, the Company and/or GRI that may or may not be known to the Company and
that may be material to a decision to transfer the Cubic Shares (“Cubic Excluded
Information”), and the Company has determined to transfer the Cubic
Shares notwithstanding its lack of knowledge of the Cubic Excluded
Information.
2.2 GRI
represents and warrants to the Company as follows:
(a) Organization and
Qualification. GRI is an entity duly incorporated or otherwise
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization. GRI is not in
violation nor default of any of the provisions of its certificate or articles of
incorporation, bylaws or other organizational or charter
documents. GRI is duly qualified to conduct business and is in good
standing as a foreign corporation or other entity in each jurisdiction in which
the nature of the business conducted or property owned by it makes such
qualification necessary, except where the failure to be so qualified or in good
standing, as the case may be, could not have or reasonably be expected to result
in: (i) a material adverse effect on the legality, validity or enforceability of
this Agreement, or (ii) a material adverse effect on GRI’s ability to
perform in any material respect on a timely basis its obligations under this
Agreement (any of (i), or (ii), a “Material Adverse
Effect”) and no Proceeding has been instituted in any such jurisdiction
revoking, limiting or curtailing or seeking to revoke, limit or curtail such
power and authority or qualification.
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(b) Authorization;
Enforcement. GRI has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated the
Agreement and otherwise to carry out its obligations hereunder. The
execution and delivery this Agreement by GRI and the consummation by it of the
transaction contemplated hereby have been duly authorized by all necessary
action on the part of GRI and no further action is required by GRI, the Board of
Directors or GRI’s stockholders in connection therewith. This
Agreement has been duly executed by GRI and, when delivered in accordance with
the terms hereof and thereof, will constitute the valid and binding obligation
of GRI enforceable against the Company in accordance with its terms, except: (i)
as limited by general equitable principles and applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, (ii) as limited by laws
relating to the availability of specific performance, injunctive relief or other
equitable remedies and (iii) insofar as indemnification and contribution
provisions may be limited by applicable law.
(c) No
Conflicts. The execution, delivery and performance of this
Agreement by GRI and the consummation by GRI of the transactions contemplated
hereby do not and will not (i) conflict with or violate any provision of GRI’s
certificate of incorporation, bylaws, articles of organization, operating
agreement or other organizational documents, if any, or (ii) conflict with, or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation (with or without notice, lapse of time
or both) of, any agreement, credit facility, debt or other instrument to which
GRI is a party, or (iii) result in a violation by GRI of any law, rule,
regulation, order, judgment, injunction or decree of any court or governmental
authority to which GRI is subject.
(d) Filings, Consents and
Approvals. GRI is not required to obtain any consent, waiver,
authorization or order of, give any notice to, or make any filing or
registration with, any court or other federal, state, local or other
governmental authority or other person in connection with the execution,
delivery and performance by GRI of this Agreement.
(e) Transfer of the
Shares. Xxxxxxx Xxxxxx, Xxxxx Xxxxxxx and Xxxxx Xxxxxxxxx (the
“Holders”) are the record and beneficial owner of the Preferred
Shares. The Holders have good title to such securities free and clear
of any tax, lien, charge, mortgage, pledge, right (including any rights of first
offer and tag-along rights) or encumbrances of any kind and such securities are
not subject to any pre-emptive, participation or similar right (“Liens”). Delivery
of the securities to the Company will pass good and valid title to the
securities, free and clear of any Liens.
(g) No
Reliance. GRI has made its own independent decision to enter
into this Agreement and whether this Agreement is appropriate or proper for GRI
based upon its own judgment and upon advice of such advisors as GRI deems
necessary. GRI acknowledges and agrees that it is not relying, and
has not relied, upon any communication (written or oral) of the Company or any
affiliate, employee, director or agent of the them, other than as specifically
stated in this Agreement, with respect to the legal, accounting, tax or other
implications of this Agreement, and that GRI has conducted its own analyses of
the legal, accounting, tax and other implications hereof and thereof; it being
understood that information and explanations related to the terms and conditions
of this Agreement shall not be considered investment advice or a recommendation
to enter into this Agreement.
(h) Material, Non-Public
Information. GRI acknowledges that the Company currently
may have, and later may come into possession of, information with respect to
Cubic and/or the Company’s operations that may or may not be known to the
Company and that may be material to a decision to transfer the Preferred Shares
(“Excluded
Information”), and GRI has determined to transfer the Preferred Shares
notwithstanding its lack of knowledge of the Excluded Information.
2.3 The
Holders represent and warrant to the Company as follows:
(a)(a) Transfer of the
Shares. Each Holder is the record and beneficial owner of the
Preferred Shares as set forth above. Each Holder has good title to
such securities free and clear of any tax, lien, charge, mortgage, pledge, right
(including any rights of first offer and tag-along rights) or encumbrances of
any kind and such securities are not subject to any pre-emptive, participation
or similar right (“Liens”). Delivery
of the securities to the Company will pass good and valid title to the
securities, free and clear of any Liens.
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(b) No
Reliance. Each Holder has made its own independent decision to
enter into this Agreement and whether this Agreement is appropriate or proper
for such Holder based upon its own judgment and upon advice of such advisors as
such Holder deems necessary. The Holders acknowledge and agree that
they are not relying, and has not relied, upon any communication
(written or oral) of the Company or any affiliate, employee, director or agent
of the them, other than as specifically stated in this Agreement, with respect
to the legal, accounting, tax or other implications of this Agreement, and that
such Holders have conducted their own analyses of the legal, accounting, tax and
other implications hereof and thereof; it being understood that information and
explanations related to the terms and conditions of this Agreement shall not be
considered investment advice or a recommendation to enter into this
Agreement.
(c) Material, Non-Public
Information. Each Holder acknowledges that the Company currently may
have, and later may come into possession of, information with respect to the
Company’s operations that may or may not be known to the Company and that may be
material to a decision to transfer the Preferred Shares (“Excluded
Information”), and such Holder has determined to transfer the Preferred
Shares notwithstanding its lack of knowledge of the Excluded
Information.
3. SURVIVAL
OF REPRESENTATIONS
3. Survival of
Representations. Regardless of any investigation at any time
made by or on behalf of any party hereto or of any information any party may
have in respect thereof, all covenants, agreements, representations and
warranties made hereunder or pursuant hereto or in connection with the
transaction contemplated hereby shall survive the execution and delivery of this
Agreement and continue in effect for 12 months after the execution and delivery
of this Agreement (the “Survival Period”), except that: (i) Company’s title
representations in Section 2.1(e); and (ii) GRI’s title representations in
Section 2.2(e), shall survive for the period that is permitted for third-party
claims by the applicable statute of limitations.
4. MISCELLANEOUS
4.1 Expenses. All
fees and expenses incurred by the parties in connection with the transactions
contemplated by this Agreement shall be borne by the respective parties
hereto.
4.2 Further
Assurances. From time to time, at a party’s request and
without further consideration, the other party, at the requesting party’s
expense, will execute and transfer such documents and will take such action as
may reasonably be requested in order to effectively consummate the transactions
contemplated herein.
4.3 Parties in
Interest. All the terms and provisions of this Agreement shall
be binding upon, shall inure to the benefit of, and shall be enforceable by the
prospective heirs, beneficiaries, representatives, successors and assigns of the
parties hereto.
4.5 Entire Agreement. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to the subject matter hereof. This Agreement shall not
be amended except by a writing signed by both parties or their respective
successors or assigns.
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4.6 Headings. The
section and paragraph headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretations of
this Agreement.
4.7 Governing
Law. For all purposes this Agreement will be governed
exclusively by and construed and enforced in accordance with the laws of the
State of New York and the Courts prevailing in the State of New
York.
4.8 Notices. All
notices, requests, demands, and other communication hereunder shall be in
writing and shall be deemed to have been duly given if delivered or mailed
(registered or certified mail, postage prepaid, return receipt requested) as
follows:
If to the
Company:
__________________
With a
copy to:
Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP
00
Xxxxxxxx, 00xx
Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxx X. Xxxxxxxx, Esq.
If to
GRI:
Global
Roaming Inc.,
00000
Xxxxxxxx Xxxx.
Xxxxx
000
Xxxxx,
Xxxxxxx 00000
If to the
Holders:
00000
Xxxxxxxx Xxxx.
Xxxxx
000
Xxxxx,
Xxxxxxx 00000
If to GRI
or any Holder, with a copy to:
Xxxxxx
& Poliakoff, LLP
00
Xxxxxxxx
Xxx Xxxx,
XX 00000
Attn.
Xxxxxx X. XxXxxxx
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4.9 Effect. In
the event any portion of this Agreement is deemed to be null and void under any
state, provincial, or federal law, all other portions and provisions not deemed
void or voidable shall be given full force and effect.
4.10 Counterparts. This
Agreement may be executed in one or more counterparts and by transmission of a
facsimile or digital image containing the signature of an authorized person,
each of which shall be deemed and accepted as an original, and all of which
together shall constitute a single instrument. Each party represents
and warrants that the person executing on behalf of such party has been duly
authorized to execute this Agreement.
4.11 Transfer. This
Agreement will constitute, and may be presented to the appropriate parties
transfer agent as the transferring parties irrevocable authorization to transfer
the record ownership of the Cubic Shares and Preferred Shares to the respective
parties.
IN
WITNESS WHEREOF, this Agreement has been duly executed and delivered by the
Company, GRI and the Holders on the date first written above.
*************
(signature
page follows)
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day and year
first written above.
THE
COMPANY:
By: _/s/ Xxxxx
Sarousi_____________
Name:
Xxxxx Xxxxxxx
Title:
Chief Executive Officer
GRI:
By: _/s/ Xxxxx
Sarousi_____________
Name:
Xxxxx Xxxxxxx
Title:
Chief Executive Officer
THE
HOLDERS:
_/s/ Xxxxxxx
Thaler_________________
Xxxxxxx
Xxxxxx
_/s/ Xxxxx
Sarousi_________________
Xxxxx
Xxxxxxx
_/s/ Xxxxx
Callicott_________________
Xxxxx
Xxxxxxxxx
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