EXHIBIT 99.1
SHARE EXCHANGE AGREEMENT
by and among
GLOBAL WIRELESS SATELLITE NETWORKS (USA), INC.
a Delaware Corporation
and
AUSTRALIAN AGRICULTURE & PROPERTY MANAGEMENT LTD
NO 2 HOLDINGS PTY LTD
VICTORIAN LAND DEVELOPMENT PTY LTD
Australian Corporations
effective as of September 4, 2004
SHARE EXCHANGE AGREEMENT
THIS SHARE EXCHANGE AGREEMENT, made and entered into this 4th day of
September, 2004 by and among Global Wireless Satellite Networks (USA), Inc., a
Delaware corporation with its principal place of business located at 00
Xxxxxxxxxxxxx, Xxxxxx, XX XX0X ("XXXX"); and Australian Agriculture & Property
Management Ltd, No. 2 Holdings Pty Ltd and Victorian Land Development Pty Ltd,
each an Australian corporation with its principal place of business at 00
Xxxxxxx Xxxxx, Xx. Xxxxxxx, Xxxxxxxxx, Xxxxxxxxx (all reflected in the agreement
as "AAPD").
PREMISES
A. This Agreement provides for the acquisition of AAPD by GWSN whereby
AAPD shall become a wholly owned subsidiary of GWSN and in connection therewith,
the issuance of a total of 85,000,000 shares of common stock, $0.001 par value
per share ("Shares"), of GWSN of which 76,000,000 shares shall be issued to the
shareholders of AAPD, 3,900,000 shares shall be issued to Xxxxxxxxx Corporate
Ventures, S.A. and 100,000 to Mr. Xxxxx Xxxxxxx ("Share Exchange") and 5,000,000
shares shall be issued collectively to Messrs. Xxxx Xxxxxxx (2,500,000 shares),
Xxxxxxxx Xxxxxxxxxxx (1,750,000 shares) and Xxxxx Xxxxxxx (750,000 shares)
consultants of GWSN pursuant to the terms of their consulting agreements. As
additional consideration, GWSN shall transfer Two Hundred Fifty Thousand
($250,000) Australian Dollars to AAPD.
B. The boards of directors of AAPD and GWSN have determined, subject to
the terms and conditions set forth in this Agreement, that the transaction
contemplated hereby is desirable and in the best interests of their
stockholders, respectively. This Agreement is being entered into for the purpose
of setting forth the terms and conditions of the proposed acquisition.
AGREEMENT
NOW, THEREFORE, on the stated premises and for and in consideration of
the mutual covenants and agreements hereinafter set forth and the mutual
benefits to the parties to be derived herefrom, it is hereby agreed as follows:
ARTICLE I
THE SHARE EXCHANGE
SECTION 1.1 SHARE EXCHANGE/DELIVERY OF AAPD SECURITIES. Upon
satisfaction of the conditions set forth in Article VI of this Agreement, the
shareholders of AAPD as found on EXHIBIT 1.1 (collectively, "AAPD Shareholders")
to this Agreement, shall transfer all rights, title and interest to and in the
AAPD Ordinary Shares held by him which constitutes one hundred percent of the
issued and outstanding shares of AAPD.
SECTION 1.2 TRANSFER OF GWSN COMMON SHARES. In exchange for all of the
AAPD Ordinary Shares tendered pursuant to Section 1.1, GWSN shall issue to the
AAPD Shareholders 76,000,000 GWSN shares of common stock upon the completion of
the actions referred to in Article VI of this Agreement. Further, 3,900,000
shares of GWSN common stock shall be issued to Xxxxxxxxx Corporate Ventures,
S.A. and 100,000 shares of GWSN common stock shall be issued to Mr. Xxxxx
Xxxxxxx as compensation for arranging the transaction contemplated by this
Agreement. Such shares shall be "restricted securities", (as such term is
defined in Rule 144 under the U.S. Securities Act of 1933, as amended (the
"Securities Act").
SECTION 1.3 ISSUANCE OF S-8 REGISTERED COMMON STOCK. Subject to the
qualifications found in this Section, as soon as practicable, but in no event
later than 30 days after the Closing, GWSN shall file a registration statement
on Form S-8 pursuant to which 5,000,000 shares of GWSN common stock shall be
registered and issued pursuant to consulting agreements between GWSN and Messrs.
Xxxx Xxxxxxx, Xxxxxxxx Xxxxxxxxxxx and Xxxxx Xxxxxxx, respectively. Messrs.
Xxxxxxx and Mauerberger's consulting agreements are attached hereto as EXHIBITS
1.3(A) AND 1.3(B). The Company shall only be required to file a registration on
Form S-8 if the following conditions have been met: (i) a complete Form 8-K with
the required financial statements has been filed in compliance with the Exchange
Act of 1934 as they currently exist; and (ii) the proposed rule changes to Forms
8-K and S-8 as found in the U.S. Securities and Exchange Commission
("Commission") Releases 33-8407 and 34-49566 have not been adopted by the
Commission. In the event that GWSN fails to file (i) above or the Commission
adopts law having a similar affect to that found in (ii) above, GWSN shall grant
a one time demand registration right to Messrs Mauerberger, Xxxxxxx and Xxxxxxx,
in the aggregate, for a period of 12 months from the Closing for a total of
5,000,000 shares. The parties to this Agreement shall negotiate the particular
terms of such demand rights in good faith.
SECTION 1.4 EVENTS PRIOR TO CLOSING. Upon execution hereof or as soon
thereafter as practicable, management of AAPD and GWSN shall execute,
acknowledge and deliver (or shall cause to be executed, acknowledged and
delivered) any and all certificates, opinions, financial statements, schedules,
agreements, resolutions rulings or other instruments required by this Agreement
to be so delivered, together with such other items as may be reasonably
requested by the parties hereto and their respective legal counsel in order to
effectuate or evidence the transactions contemplated hereby, subject only to the
conditions to Closing referenced herein below.
SECTION 1.5 CLOSING. The closing ("Closing") of the transactions
contemplated by this Agreement shall be upon satisfaction of the conditions set
forth in Articles V and VI of this Agreement, which the parties expect to occur
no event later than forty-five (45) days after the date hereof.
SECTION 1.6 DIRECTORS OF GWSN AFTER ACQUISITION. The Board of directors
of GWSN will change as a result of the Exchange in accordance with the terms of
Article VI of this Agreement.
ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES OF
GWSN
As an inducement to and to obtain the reliance of AAPD, GWSN represents
and warrants as follows:
SECTION 2.1 ORGANIZATION. GWSN is a corporation duly organized, validly
existing, and in good standing under the laws of Delaware and has the corporate
power and is duly authorized, qualified, franchised and licensed under all
applicable laws, regulations, ordinances and orders of public authorities to own
all of its properties and assets and to carry on its business in all material
respects as it is now being conducted, including qualification to do business as
a foreign corporation in the jurisdiction in which the character and location of
the assets owned by it or the nature of the business transacted by it requires
qualification. Complete and correct copies of the articles of incorporation,
bylaws and amendments thereto of GWSN as in effect on the date hereof are
available on the United States Securities and Exchange Commission's Website
(xxx.xxx.xxx) as filed by GWSN. The execution and delivery of this Agreement
does not and the consummation of the transactions contemplated by this Agreement
in accordance with the terms hereof will not violate any provision of GWSN's
articles of incorporation or bylaws. GWSN has full power, authority and legal
right and has taken all action required by law, its articles of incorporation,
its bylaws or otherwise to authorize the execution and delivery of this
Agreement.
SECTION 2.2 CAPITALIZATION. The authorized capitalization of GWSN
consists of 90,000,000 common shares, $0.001 par value per share, and 10,000,000
shares of preferred stock, $.001 par value. As of the date hereof, GWSN has
1,054,326 common shares issued and outstanding and no shares of preferred stock.
GWSN is a public company listed on the NASDAQ OTC-Bulletin Board under the
symbol "GWSN". All issued and outstanding shares are legally issued, fully paid
and nonassessable and are not issued in violation of the pre-emptive or other
rights of any person. GWSN has no other securities, warrants or options
authorized or issued.
SECTION 2.3 SUBSIDIARIES AND PREDECESSOR CORPORATIONS. GWSN does not
have any other subsidiaries and does not own, beneficially or of record, any
shares of any other corporation.
SECTION 2.4 OPTIONS AND WARRANTS. The only existing options, warrants,
calls or commitments of any character to which GWSN is a party and by which it
is bound are those with respect to Mr. Xxxxx Xxxxxxx and his consulting
agreement with GWSN dated July 27, 2004.
SECTION 2.5 CLAIMS, LITIGATION AND PROCEEDINGS.There are no actions,
suits, proceedings or investigations pending or threatened by or against GWSN,
affecting GWSN or its properties, at law or in equity, before any court or other
governmental agency or instrumentality, domestic or foreign or before any
arbitrator of any kind that would have a material adverse affect on the
business, operations, financial condition or income of GWSN. GWSN does not have
any knowledge of any default on its part with respect to any judgment, order,
writ, injunction, decree, award, rule or regulation of any court, arbitrator or
governmental agency or instrumentality or of any circumstances which, after
reasonable investigation, would result in the discovery of such a default.
SECTION 2.6 MATERIAL CONTRACT DEFAULTS. GWSN is not in default in any
material respect under the terms of any outstanding contract, agreement, lease
or other commitment which is material to the business, operations, properties,
assets or condition of GWSN, and there is no event of default in any material
respect under any such contract, agreement, lease or other commitment in respect
of which GWSN has not taken adequate steps to prevent such a default from
occurring.
SECTION 2.7 NO CONFLICT WITH OTHER INSTRUMENTS.The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, or
constitute an event of default under, any material indenture, mortgage, deed of
trust or other material contract, agreement or instrument to which GWSN is a
party or to which any of its properties or operations are subject.
SECTION 2.8 GOVERNMENTAL AUTHORIZATIONS. GWSN has all licenses,
franchises, permits or other governmental authorizations legally required to
enable GWSN to conduct its business in all material respects as conducted on the
date hereof. Except for compliance with federal and state securities and
corporation laws, as hereinafter provided, no authorization, approval, consent
or order of, or registration, declaration or filing with, any court or other
governmental body is required in connection with the execution and delivery by
GWSN of this Agreement and the consummation of GWSN of the transactions
contemplated hereby.
SECTION 2.9 TAX MATTERS; BOOKS & RECORDS
(a) The books and records, financial and others, of GWSN are in all
material respects complete and correct and have been maintained in
accordance with good business accounting practices; and
(b) GWSN has no liabilities with respect to the payment of any country,
federal, state, county, local or other taxes (including any
deficiencies, interest or penalties).
SECTION 2.10 INFORMATION. The information concerning GWSN as set forth
in this Agreement and in the GWSN Schedules is complete and accurate in all
material respects and does not contain any untrue statement of a material fact
or omit to state a material fact required to make the statements made, in light
of the circumstances under which they were made, not misleading.
SECTION 2.11 TITLE AND RELATED MATTERS.GWSN owns free and clear of any
liens, claims, encumbrances, royalty interests or other restrictions or
limitations of any nature whatsoever all its assets and all procedures,
techniques, marketing plans, business plans, methods of management or other
information utilized in connection with GWSN's business. No third party has any
right to, and GWSN had not received any notice of infringement of or conflict
with asserted rights of others with respect to any product, technology, data,
trade secrets, know-how, proprietary techniques, trademarks, service marks,
trade names or copyrights which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would have a materially adverse
affect on the business, operations, financial conditions or income of GWSN or
any material portion of its properties, assets or rights.
SECTION 2.12 APPROVAL OF AGREEMENT. GWSN has all requisite power and
authority to enter into this Agreement, including approval of its board of
directors. The holders of a majority of the common voting shares outstanding of
GWSN have authorized the execution and delivery of the Agreement by GWSN and
have approved the transactions contemplated hereby.
SECTION 2.13 COMPLIANCE WITH LAWS AND REGULATIONS. GWSN has complied
with all applicable statutes and regulations of any federal, state or other
governmental entity or agency thereof, except to the extent that noncompliance
would not materially and adversely affect the business; operations, properties,
or financial condition of GWSN.
SECTION 2.14 MATERIAL TRANSACTIONS OR AFFILIATIONS. Other than the
Stock Purchase Agreement between GWSN and various parties, filed as an exhibit
to the Form 8-K filed with the U.S. Securities and Exchange Commission on August
11, 2004 ("Xxxxxxxxx Stock Purchase Agreement") and a consulting agreement with
Mr. Xxxxx Xxxxxxx found as an exhibit to the Xxxxxxxxx Stock Purchase Agreement,
GWSN has no material contracts to which GWSN is a party and which are to be
performed in whole or in part after the date hereof. GWSN has no commitment,
whether written or oral, to lend any funds to, borrow any money from or enter
into any other material transactions with, any of its directors or person owning
of record, or known by GWSN to own beneficially, ten percent (10%) or more the
issued and outstanding ordinary shares of GWSN and which is to be performed in
whole or in part after the date hereof. GWSN has no commitment, whether written
or oral, to lend and funds to, borrow and money from or enter into any other
material transactions with, any such affiliated person.
ARTICLE III
REPRESENTATIONS, COVENANTS AND WARRANTIES
OF AAPD
As an inducement to, and to obtain the reliance of GWSN, AAPD
represents and warrants as follows:
SECTION 3.1 ORGANIZATION. AAPD is a corporation duly organized, validly
existing and in good standing under the laws of Australia and has the corporate
power and is duly authorized, qualified, franchised and licensed under all
applicable laws, regulations, ordinances and orders of public authorities to own
all of its properties and assets and to carry on its business in all material
respects as it is now being conducted, including qualification to do business as
a foreign entity in the country or states in which the character and location of
the assets owned by it or the nature of the business transacted by it requires
qualification. Included in EXHIBIT 3.1 are complete and correct copies of the
constitution and amendments thereto of AAPD as in effect on the date hereof. The
execution and delivery of this Agreement does not and the consummation of the
transactions contemplated by this Agreement in accordance with the terms hereof
will not, violate any provision of AAPD's constitution. AAPD has full power,
authority and legal right and has taken all action required by law, its
constitution or otherwise to authorize the execution and delivery of this
Agreement.
SECTION 3.2 CAPITALIZATION. The authorized capitalization of AAPD has
been provided to GWSN in writing prior to the date hereof and has not changed
since such date. All issued and outstanding AAPD shares have been legally issued
and are nonassessable as of the Closing Date. There exists no unexercised right
to purchase shares in AAPD in any form whatsoever including, but not limited to,
options, warrants or convertible debt instruments. To the best knowledge of
AAPD, each of the AAPD Shareholders owns and is conveying to GWSN all of his
rights, title and interests to the Shares, free and clear of all liens,
mortgages, pledges, security interests, encumbrances or charges of any kind or
description and upon consummation of the transaction contemplated herein good
title in the Shares shall vest in GWSN free of all liens and other charges.
SECTION 3.3 SUBSIDIARIES. AAPD does not own, beneficially or of record,
any shares of any other corporation.
SECTION 3.4 TAX MATTERS; BOOKS & RECORDS
(a) The books and records, financial and others, of AAPD are in all
material respects complete and correct and have been maintained in
accordance with good business accounting practices; and
(b) Other than taxes due on a monthly basis, AAPD has no liabilities
with respect to the payment of any country, federal, state, county,
local or other taxes (including any deficiencies, interest or
penalties).
SECTION 3.5 INFORMATION. The information concerning AAPD as set forth
in this Agreement is complete and accurate in all material respects and does not
contain any untrue statement of a material fact or omit to state a material fact
required to make the statements made, in light of the circumstances under which
they were made, not misleading.
SECTION 3.6 TITLE AND RELATED MATTERS.AAPD has good and marketable
title to and is the sole and exclusive owner of all of its properties,
inventory, interests in properties and assets, real and personal including those
assets described in the confidential memorandum dated July 2004 and provided to
GWSN at that time (collectively, "Assets") and such Assets are free and clear of
all liens, pledges, charges or encumbrances other than those described in such
Memorandum and as previously advised and existing at the time. AAPD owns free
and clear of any liens, claims, encumbrances, royalty interests or other
restrictions or limitations of any nature whatsoever and all procedures,
techniques, marketing plans, business plans, methods of management or other
information utilized in connection with AAPD's business. No third party has any
right to, and AAPD had not received any notice of infringement of or conflict
with asserted rights of others with respect to any product, technology, data,
trade secrets, know-how, proprietary techniques, trademarks, service marks,
trade names or copyrights which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would have a materially adverse
affect on the business, operations, financial conditions or income of AAPD or
any material portion of its properties, assets or rights.
SECTION 3.7 CLAIMS, LITIGATION AND PROCEEDINGS.There are no actions,
suits, proceedings or investigations pending or threatened by or against AAPD,
affecting AAPD or its properties, at law or in equity, before any court or other
governmental agency or instrumentality, domestic or foreign or before any
arbitrator of any kind that would have a material adverse affect on the
business, operations, financial condition or income of AAPD. AAPD does not have
any knowledge of any default on its part with respect to any judgment, order,
writ, injunction, decree, award, rule or regulation of any court, arbitrator or
governmental agency or instrumentality or of any circumstances which, after
reasonable investigation, would result in the discovery of such a default..
SECTION 3.8 NO CONFLICT WITH OTHER INSTRUMENTS.The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, or
constitute an event of default under, any material indenture, mortgage, deed of
trust or other material contract, agreement or instrument to which AAPD is a
party or to which any of its properties or operations are subject.
SECTION 3.9 MATERIAL CONTRACT DEFAULTS. To the best of AAPD's knowledge
and belief, AAPD is not in default in any material respect under the terms of
any outstanding contract, agreement, lease or other commitment which is material
to the business, operations, properties, assets or condition of AAPD, and there
is no event of default in any material respect under any such contract,
agreement, lease or other commitment in respect of which AAPD has not taken
adequate steps to prevent such a default from occurring.
SECTION 3.10 GOVERNMENTAL AUTHORIZATIONS. To the best of AAPD's
knowledge, AAPD has all licenses, franchises, permits and other governmental
authorizations that are legally required to enable it to conduct its business
operations in all material respects as conducted on the date hereof. Except for
compliance with federal and state securities or corporation laws, no
authorization, approval, consent or order of, or registration, declaration or
filing with, any court or other governmental body is required in connection with
the execution and delivery by AAPD of the transactions contemplated hereby.
SECTION 3.11 COMPLIANCE WITH LAWS AND REGULATIONS. AAPD has complied
with all applicable statutes and regulations of any federal, state or other
governmental entity or agency thereof, except to the extent that noncompliance
would not materially and adversely affect the business; operations, properties,
or financial condition of AAPD.
SECTION 3.12 MATERIAL TRANSACTIONS OR AFFILIATIONS. AAPD has provided
GWSN with copies of all material contracts to which AAPD is a party and which
are to be performed in whole or in part after the date hereof. AAPD has no
commitment, whether written or oral, to lend any funds to, borrow any money from
or enter into any other material transactions with, any of its directors or
person owning of record, or known by AAPD to own beneficially, ten percent (10%)
or more the issued and outstanding ordinary shares of AAPD and which is to be
performed in whole or in part after the date hereof. AAPD has no commitment,
whether written or oral, to lend and funds to, borrow and money from or enter
into any other material transactions with, any such affiliated person.
SECTION 3.13 LABOR RELATIONS. AAPD has never had a work stoppage
resulting from labor problems.
SECTION 3.14 NATURE OF BOOKS AND RECORDS. It is acknowledged that AAPD
books and records must be in auditable condition and that such audit must be
completed within sixty days (60) of this Agreement. The books and records of
AAPD are in such auditable condition.
SECTION 3.15 NET ASSET VALUE AND AUDITED FINANCIAL STATEMENTS. GWSN has
been provided with audited financial statement of AAPD dated as of 10th
September, 2004 and which are attached hereto as EXHIBIT 3.15. Such financial
statements reflect the assets, liabilities, net worth, profit and loss, and cash
flow of AAPD with respect to its business. All financial statements referred to
herein are complete and correct in all material respects, present fairly the
financial condition and results of operations of AAPD as at the dates of such
statements and have been prepared in accordance with generally accepted
accounting principles. The books of account and records have been maintained in
accordance with good business practice and reflect fairly all properties,
assets, liabilities and transactions of AAPD. AAPD has no material liabilities
or obligations of any kind (whether accrued, absolute, direct, indirect,
contingent or otherwise) which are not fully disclosed, accrued or reserved
against in its financial statements. AAPD has no bad debts as of the Closing
Date. Since the last day of AAPD's last fiscal year, it has conducted its
business only in the ordinary and usual course and have not experienced any
material adverse changes in its business or its financial condition. Without
limiting the foregoing, AAPD has not:
(i) permitted or allowed any of its assets or properties
to be subjected to any lien or encumbrance;
(ii) amended, terminated, cancelled or compromised any
material claim;
(iii) sold, transferred, leased, subleased, licensed or
otherwise disposed of any properties or assets, real,
personal or mixed including, without limitation,
leasehold interests and intangible property of or
relating to the businesses in excess of Twenty-Five
Thousand and No/100 ($25,000.00) Dollars other than
in the ordinary course of business and consistent
with past practices;
(iv) granted or proposed any increase or announce any
increase in compensation or benefits payable to its
employees or consultants other than as has been
disclosed in writing to GWSN;
(v) made any material change in its method of accounting
other than as required by generally acceptable
accounting principles; and
(vi) entered into any agreement with any of its directors,
officers, or shareholders (or any family member
thereof) except as has been disclosed in writing to
GWSN.
ARTICLE IV
SPECIAL COVENANTS
SECTION 4.1 ACCESS TO PROPERTIES AND RECORDS. It is acknowledged by
each of GWSN and AAPD, that its officers and authorized representatives have
been afforded full access to the other's properties, books and records of AAPD
and GWSN as the case may be, so that each had full opportunity to make such
reasonable investigation as it desired to make of the affairs of the other and
each has furnished the other with such additional financial and operating data
and other information as to the business and properties of AAPD and GWSN as the
case may be, as the other shall from time to time reasonably request. Should
either party require further opportunity to conduct any further investigation
into the affairs of the other, it shall be allowed to do so prior to closing as
long as this investigation is completed prior to Closing.
SECTION 4.2 AVAILABILITY OF RULE 144. Each of the parties acknowledge
that the stock of GWSN to be issued pursuant to this Agreement have not been
registered under the Securities Act and will be "restricted securities" as that
term is defined in Rule 144 promulgated pursuant to the Securities Act. Such
"restricted securities" may not be sold, transferred or encumbered except in a
transaction registered under the Securities Act or in a transaction exempt from
or not subject to the registration requirements.
SECTION 4.3 SPECIAL COVENANTS AND REPRESENTATIONS REGARDING THE AAPD
COMMON SHARES TO BE ISSUED IN THE EXCHANGE. The consummation of this Agreement,
including the issuance of the GWSN Shares to the AAPD Shareholders and the
resulting issuance of common shares as contemplated hereby, constitutes the
offer and sale of securities under the Securities Act, and applicable state
statutes. Such transaction shall be consummated in reliance on exemptions from
the registration and prospectus delivery requirements of such statutes which
depend, inter alia, upon the circumstances under which the AAPD Shareholders
acquired such securities.
SECTION 4.4 THIRD PARTY CONSENTS. AAPD and GWSN agree to cooperate with
each other in order to obtain any required third party consents to this
Agreement and the transactions herein contemplated.
SECTION 4.5 INDEMNIFICATION.
(a) AAPD hereby agrees to indemnify GWSN and each of the officers,
agents and directors of GWSN as of the date of execution of
this Agreement against any loss, liability, claim, damage or
expense (including, but not limited to, any and all expense
whatsoever reasonably incurred in investigating, preparing or
defending against and litigation, commenced or threatened or
any claim whatsoever), to which it or they may become subject
to arising out of or based on any misrepresentation made in
this Agreement. The indemnification provided for in this
paragraph shall survive the Closing and consummation of the
transactions contemplated hereby and termination of this
Agreement; and
(b) GWSN and its officers and directors hereby agrees to indemnify
AAPD and its officers, agents, directors and current
shareholders of AAPD as of the Closing Date against any loss,
liability, claim, damage or expense (including, but not
limited to, any and all expense whatsoever reasonably incurred
in investigating, preparing or defending against any
litigation, commenced or threatened or any claim whatsoever),
to which it or they may become subject arising out of or based
on any misrepresentation made in this Agreement. The
indemnification provided for in this Section shall survive the
Closing and consummation of the transactions contemplated
hereby and termination of this Agreement.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF GWSN
The obligations of GWSN under this Agreement are subject to the
satisfaction, at or before the Closing Date, of the following conditions:
SECTION 5.1 ACCURACY OF REPRESENTATIONS. The representations and
warranties made by AAPD in this Agreement were true when made and shall be true
at the Closing Date with the same force and effect as if such representations
and warranties were made at the Closing Date (except for changes therein
permitted by this Agreement), and AAPD shall have performed or complied with all
covenants and conditions required by this Agreement to be performed or complied
with by AAPD prior to or at the Closing.
SECTION 5.2 SHAREHOLDER APPROVAL. The AAPD Shareholders have duly
authorized and approved this Agreement and the transactions contemplated herein.
SECTION 5.3 NO MATERIAL ADVERSE CHANGE. Prior to the Closing Date,
there shall not have occurred any material adverse change in the financial
condition, business or operations of nor shall any event have occurred which,
with the lapse of time or the giving of notice, may cause or create any material
adverse change in the financial condition, business or operations or AAPD.
SECTION 5.4 OTHER ITEMS. GWSN shall have received such further
documents, certificates or instruments relating to the transactions contemplated
hereby as GWSN may reasonably request.
SECTION 5.5 SECRETARY'S CERTIFICATE. AAPD shall have delivered to GWSN
a certificate, dated the Closing Date, executed by the Secretary of AAPD in
substantially the form attached hereto as Exhibit 5.5, which shall include
confirmation that all requisite board and stockholder approvals have been
obtained and remain in force.
SECTION 5.6 OPINIONS OF COUNSEL. AAPD shall have delivered to GWSN
opinions, dated the Closing Date, from counsel for AAPD, in substantially the
form attached hereto as Exhibit 5.6.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF AAPD
The obligations of AAPD under this Agreement are subject to the
satisfaction, at or before the Closing date (unless otherwise indicated herein),
of the following conditions:
SECTION 6.1 ACCURACY OF REPRESENTATIONS. The representations and
warranties made by GWSN in this Agreement were true when made and shall be true
as of the Closing Date (except for changes therein permitted by this Agreement)
with the same force and effect as if such representations and warranties were
made at and as of the Closing Date, and GWSN shall have performed and complied
with all covenants and conditions required by this Agreement to be performed or
complied with by GWSN prior to or at the Closing.
SECTION 6.2 NO MATERIAL ADVERSE CHANGE. Prior to the Closing Date,
there shall not have occurred any material adverse change in the financial
condition, business or operations nor shall any event have occurred which, with
the lapse of time or the giving of notice, may cause or create any material
adverse change in the financial condition, business or operations of GWSN.
SECTION 6.3 GWSN ADDITIONAL CONSIDERATION. Prior to Closing, GWSN shall
place an amount equal to Two Hundred Fifty Thousand ($250,000) Australian
Dollars with its counsel, Rubin, Bailin, Ortoli LLP as additional consideration
to be paid at Closing.
SECTION 6.4 STOCK CERTIFICATE. GWSN shall have tendered to AAPD a
certificate representing the Shares, duly endorsed to AAPD, and such endorsement
shall have been witnessed by an officer or GWSN.
SECTION 6.5 SECRETARY'S CERTIFICATE. GWSN shall have delivered to AAPD
a certificate, dated the Closing Date, executed by the Secretary of GWSN in
substantially the form attached hereto as Exhibit 6.5, which shall include
confirmation that all requisite board and stockholder approvals have been
obtained and remain in force.
SECTION 6.6 OPINION OF COUNSEL. GWSN shall have delivered to AAPD an
opinion, dated the Closing Date, from counsel for GWSN, in substantially the
form attached hereto as Exhibit 6.6.
SECTION 6.7 RESIGNATIONS. All officers or directors of GWSN shall have
tendered their resignations from such positions of GWSN effective upon the
Closing.
SECTION 6.8 PROCEEDINGS. All proceedings to be taken on the part of
GWSN in connection with the transactions contemplated by this Agreement and all
documents delivered by GWSN incidental thereto shall be reasonably satisfactory
in form and substance to AAPD. AAPD shall have received copies of all documents
as it may reasonably request in order to establish the consummation of such
transactions.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 BROKERS AND FINDERS. Other than the shares being issued to
Xxxxxxxxx Corporate Ventures, S.A. and Xxxxx Xxxxxxx enumerated in this
Agreement, each party hereto hereby represents and warrants that it is under no
obligation, express or implied, to pay certain finders in connection with the
bringing of the parties together in the negotiation, execution, or consummation
of this Agreement. The parties each agree to indemnify the other against any
claim by any third person for any commission, brokerage or finder's fee or other
payment with respect to this Agreement or the transactions contemplated hereby
based on any alleged agreement or understanding between the indemnifying party
and such third person, whether express or implied from the actions of the
indemnifying party.
SECTION 7.2 LAW, FORUM AND JURISDICTION. This Agreement shall be
construed and interpreted in accordance with the laws of the State of Delaware,
United States of America.
SECTION 7.3 NOTICES. Any notices or other communications required or
permitted hereunder shall be sufficiently given if personally delivered to it or
sent by registered mail or certified mail, postage prepaid, or by prepaid
telegram addressed as follows:
If to GWSN: c/o Rubin, Bailin, Ortoli LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxxxx, Esq.
If to AAPD: 00 Xxxxxxx Xxxxx
Xxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxx
or such other addresses as shall be furnished in writing by any party in the
manner for giving notices hereunder, and any such notice or communication shall
be deemed to have given as of the date so delivered, mailed or telegraphed.
SECTION 7.4 ATTORNEYS' FEES. In the event that any party institutes any
action or suit to enforce this Agreement or to secure relief from any default
hereunder or breach hereof, the breaching party or parities shall reimburse the
non-breaching party or parties for all costs, including reasonable attorneys'
fee, incurred in connection therewith and in enforcing or collecting any
judgment rendered therein.
SECTION 7.5 CONFIDENTIALITY. Each party hereto agrees with the other
parties that, unless and until the reorganization contemplated by this Agreement
has been consummated, they and their representatives will hold in strict
confidence all data and information obtained with respect to another party or
any subsidiary thereof from any representative, officer, director or employee,
or from any books or records or from personal inspection, of such other party,
and shall not used such data or information or disclose the same to others,
except: (i) to the extent such data is a matter of public knowledge or is
required by law to be published; and (ii) to the extent that such data or
information must be used or disclosed in order to consummate the transactions
contemplated by this Agreement.
SECTION 7.6 EXHIBITS; KNOWLEDGE. Each party is presumed to have full
knowledge of all information set forth in the other party's exhibits delivered
pursuant to this Agreement.
SECTION 7.7 THIRD PARTY BENEFICIARIES.This contract is solely among
AAPD and GWSN and except as specifically provided, no director, officer,
stockholder, employee, agent, independent contractor or any other person or
entity shall be deemed to be a third party beneficiary of this Agreement.
SECTION 7.8 ENTIRE AGREEMENT.This Agreement represents the entire
agreement between the parties relating to the subject matter hereof. This
Agreement alone fully and completely expresses the agreement of the parties
relating to the subject matter hereof. There are no other courses of dealing,
understanding, agreements, representations or warranties, written or oral,
except as set forth herein. This Agreement may not be amended or modified,
except by a written agreement signed by all parties hereto.
SECTION 7.9 SURVIVAL; TERMINATION. The representations, warranties and
covenants of the respective parties shall survive the Closing Date and the
consummation of the transactions herein contemplated.
SECTION 7.10 COUNTERPARTS. This Agreements may be executed in multiple
counterparts, each of which shall be deemed an original and all of which taken
together shall be but a single instrument.
SECTION 7.11 AMENDMENT OR WAIVER. Every right and remedy provided
herein shall be cumulative with every other right and remedy, whether conferred
herein, at law, or in equity, and may be enforced concurrently herewith, and no
waiver by any party of the performance of any obligation by the other shall be
construed as a waiver of the same or any other default then, theretofore, or
thereafter occurring or existing. At any time prior to the Closing Date, this
Agreement may be amended by a writing signed by all parties hereto, with respect
to any of the terms contained herein, and any term or condition of this
Agreement may be waived or the time for performance hereof may be extended by a
writing signed by the party or parties for whose benefit the provision is
intended.
SECTION 7.12 INCORPORATION OF RECITALS.All of the recitals hereof are
incorporated by this reference and are made a part hereof as though set forth at
length herein.
SECTION 7.13 EXPENSES. Each party herein shall bear all of their
respective costs and expenses incurred in connection with the negotiation of
this Agreement and in the consummation of the transactions provided for herein
and the preparation thereof.
SECTION 7.14 HEADINGS; CONTEXT. The headings of the sections and
paragraphs contained in this Agreement are for convenience of reference only and
do not form a part hereof and in no way modify, interpret or construe the
meaning of this Agreement.
SECTION 7.15 BENEFIT. This Agreement shall be binding upon and shall
insure only to the benefit of the parties hereto, and their permitted assigns
hereunder. This Agreement shall not be assigned by any party without the prior
written consent of the other party.
SECTION 7.16 SEVERABILITY. In the event that any particular provision
or provisions of this Agreement or the other agreements contained herein shall
for any reason hereafter be determined to be unenforceable, or in violation of
any law, governmental order or regulation, such unenforceability or violation
shall not affect the remaining provisions of such agreements, which shall
continue in full force and effect and be binding upon the respective parties
hereto.
SECTION 7.17 FAILURE OF CONDITIONS; XXXXXXXXXXX.Xx the event of any of
the conditions specified in this Agreement shall not be fulfilled on or before
the Closing Date, either of the parties have the right either to proceed or,
upon prompt written notice to the other, to terminate and rescind this Agreement
without liability to any other party. The election to proceed shall not affect
the right of such electing party reasonably to require the other party to
continue to use its efforts to fulfill the unmet conditions.
SECTION 7.18 NO STRICT CONSTRUCTION. The language of this Agreement
shall be construed as a whole, according to its fair meaning and intendment, and
not strictly for or against wither party hereto, regardless of who drafted or
was principally responsible for drafting the Agreement or terms or conditions
hereof.
SECTION 7.19 EXECUTION KNOWING AND VOLUNTARY. In executing this
Agreement, the parties severally acknowledge and represent that each: (a) has
fully and carefully read and considered this Agreement; (b) has been or has had
the opportunity to be fully apprised of its attorneys of the legal effect and
meaning of this document and all terms and conditions hereof; and (c) is
executing this Agreement voluntarily, free from any influence, coercion or
duress of any kind.
IN WITNESS WHEREOF, the corporate parties hereto have caused this
Agreement to be executed by their respective officers, hereunto duly authorized,
and entered into as of the date first above written.
GLOBAL WIRELESS SATELLITE NETWORKS
(USA), INC.
BY: /S/ XXXXX XXXXXXX
-------------------------
XXXXX XXXXXXX
PRESIDENT
AUSTRALIAN AGRICULTURAL & PROPERTY
MANAGEMENT LTD;
NO 2 HOLDINGS PTY LTD;
and
VICTORIAN LAND DEVELOPMENT PTY LTD
BY: /S/ XXXXX XXXX
-------------------------
NAME: XXXXX XXXX
TITLE: PRESIDENT
(EXHIBITS HAVE BEEN REDACTED)