Contract
Exhibit
10.1
This
agreement is dated as of December 10, 2010, and is between Kind Chin Associates,
LLC, a California limited liability company (“Seller”) and C2 Global
Technologies, Inc. (“C2”).
Seller
and C2 are Members of Counsel RB Capital LLC (“Counsel RB”), and are party to
the Company’s amended and restated operating agreement dated May 28, 2009 (the
“Operating Agreement”). Capitalized terms used but not defined in
this agreement have the meanings set forth in the Operating
Agreement.
Seller
desires to sell all of its membership interests, limited liability company
interests and other ownership interests (“Equity Interests”) in Counsel RB to
C2.
The
parties therefore agree as follows:
1.
Purchase and Sale of LLC
Interests.
1.1 Seller
hereby sells, assigns and transfers to C2 all of the Equity Interests in Counsel
RB owned by Seller (the “Purchased Interests”), free and clear of all
Encumbrances. “Encumbrances” means any pledge, lien, charge, claim,
security interest, obligation, liability, option, right of first refusal or
first offer or other encumbrance or restriction of any kind.
1.2 C2
will deliver to Seller a stock certificate representing 1,621,000 shares of C2’s
common stock (the “C2 Shares”), which will be subject to a lockup agreement also
entered into on the Effective Date by C2, Seller and Seller’s sole owner, Xxxx
Xxxxx (the “Lockup
Agreement”). The C2 Shares comprise the entire consideration payable
to Seller for the Purchased Interests, no other consideration is due to Seller,
and the C2 Shares represent full value for the Purchased Interests.
1.3 The
transaction contemplated by this agreement is effective as of 11:59 p.m. on
November 30, 2010 (the “Effective Date”).
2.
Representations and
Warranties of Seller. Seller hereby represents and warrants to
C2 that:
2.1 Seller
(i) is a limited liability company duly organized, validly existing and in good
standing under the laws of the state of its organization, and (ii) has full
power and authority to own and lease its property and conduct its business as it
is now being conducted and to execute and deliver, and to carry out the
transactions on its part contemplated by, this agreement.
2.2 Xxxx Xxxxx owns all of the
Equity Interests in Seller, all of which have been duly authorized, are validly
issued, have no outstanding capital contribution obligations, and were not
issued in violation of any preemptive rights, options, rights of first refusal
or other preferential rights of subscription or purchase of any person or
entity. There are not any outstanding (i) options, warrants, calls,
commitments, pre-emptive rights, agreements or other rights to purchase any
Equity Interests in Seller, (ii) securities convertible into or exchangeable for
any Equity Interests in Seller, (iii) equity-based awards or rights relating to
or valued by reference to any Equity Interests in Seller, (iv) other commitments
of any kind for the issuance of additional equity interests or options, warrants
or other securities of Seller, or (v) registration rights agreements or other
agreements or understandings to which Seller is a party or by which Seller or
Xxxx Xxxxx are bound relating to the voting or disposition of any Equity
Interests in Seller. Seller does not own, directly or indirectly, any
shares of capital stock or other Equity Interests, or securities or interests
convertible into or exchangeable for capital stock or Equity Interests in any
other person or entity, other than any Equity Interests in Counsel
RB. Xxxx Xxxxx has good and marketable title to and owns all of the
Equity Interests in Seller, beneficially and of record, free and clear of any
and all Encumbrances. Xxxx Xxxxx has full voting
power over the Equity Interests in Seller, subject to no proxy, voting trust or
other agreement relating to the voting of any of the Equity Interests in
Seller. There is no agreement with respect to the disposition of the
Equity Interests in Seller. Other than Seller, Xxxx Xxxxx owns no Equity
Interests in any other person or entity.
2.3 Seller
has the right, power, legal capacity and authority to enter into and perform
this agreement. The execution, delivery and performance of this
agreement has been duly authorized by all necessary action on the part of
Seller, and no other proceedings on the part of Seller are necessary to
authorize this agreement and the consummation of the transactions contemplated
hereby. This agreement and all documents ancillary hereto are and
will constitute the valid and legally binding obligations of Seller and are and
will be enforceable against Seller in accordance with the respective terms
hereof or thereof, except as limited by applicable bankruptcy, reorganization,
insolvency, moratorium or other similar laws affecting the enforcement of
creditor’s rights generally from time to time in effect.
2.4 Seller
owns 12.50% of the Equity Interests in Counsel RB, free and clear of any
Encumbrances, with full and unrestricted legal power, authority, and right to
enter into this agreement and to sell, assign and transfer the Purchased
Interests to C2. Upon execution of this agreement and payment of the
Purchase Price, C2 will be the owner of the Purchased Interests and receive all
legal and beneficial title to the Purchased Interests, free and clear of all
Encumbrances.
2.5 Seller
(i) has been advised to discuss this agreement with Seller’s legal or other
professional advisors, or with other investment representatives who have
knowledge of business and financial matters, and if Seller has not done so it is
because, in Seller’s opinion, Seller is capable of evaluating the consequences
of entering into this agreement and does not need the advice of other persons;
and (ii) has been afforded the opportunity to ask questions concerning this
agreement, C2 and its business and its proposed operations and has been
furnished with all such information as Seller (and, to the extent deemed
necessary by Seller, any of the persons mentioned above) has requested to
Seller’s satisfaction.
2.6 Seller
is an “accredited investor” as such term is defined in Rule 501 of Regulation D
promulgated under the Securities Act of 1933.
2.7 Seller
is acquiring the C2 Shares for its own account and not for the account of any
other person or entity. Seller is acquiring the C2 Shares solely for
investment and not with a view to, or for resale in connection with, the
distribution or other disposition thereof. Seller understands that
the sale and issuance of the C2 Shares has not been registered under the
Securities Act of 1933, as amended (the “Securities Act”), or applicable United
States state securities laws.
2.8 Seller
understands that the C2 Shares will be “restricted securities” within the
meaning of Rule 144 under the Securities Act and therefore may not be sold,
resold, pledged, assigned or otherwise disposed of by Seller unless subsequently
registered under the securities and similar laws of each applicable
jurisdiction, or unless exemptions from such registration requirements are
available.
2.9 Seller
understands that dispositions of the C2 Shares can be made only (i) as
explicitly permitted or contemplated under the terms of the Lockup Agreement,
(ii) in compliance with the Securities Act and the rules and regulations of the
Securities and Exchange Commission (“SEC”) promulgated thereunder, and (iii) all
applicable state securities and “blue sky” laws.
2.10 Seller
understands that C2 is under no obligation to register the offer or sale of any
of the C2 Shares in any jurisdiction whatsoever or to assist Seller in complying
with any exemption from registration under the securities or similar laws of any
jurisdiction whatsoever.
2.11 Seller
understands that this transaction has not been reviewed by, passed on, or
submitted to the SEC or any U.S. state regulatory authority, nor has the SEC or
any such other regulatory authority made any finding or determination as to the
fairness of an investment in the C2 Shares, nor any recommendation or
endorsement of this offering. Any representation to the contrary is
unlawful.
3. Reliance. Seller
understands that C2 is relying on the truth and accuracy of the representations
and warranties made by Seller in this agreement in issuing the C2 Shares to
Seller and in determining the availability of certain exemptions under
applicable securities laws. Seller agrees that such representations
and warranties shall survive the closing of the transaction contemplated in this
agreement. Seller agrees to indemnify and hold harmless C2 from any
damages, claims, expenses, losses or actions resulting from the untruth of any
of the representations and warranties of Seller contained in this
agreement.
4. Miscellaneous.
4.1 This
agreement constitutes the entire agreement between the parties and supersedes
any prior or contemporaneous communications, representations or agreements
between the parties, whether oral or written, regarding the subject matter of
this agreement.
4.2 If
any provision of this agreement is found to be void, invalid or unenforceable:
(i) the same will be conformed to the extent necessary to comply with applicable
law or stricken if not so conformable, so as not to affect the validity of this
agreement; and (ii) the remaining provisions will remain in
effect. No amendment of this agreement is binding unless in writing
and executed by each of the parties. Any waiver or consent is valid
only if in a signed writing and only in the specific instance in which it is
given, and such waiver or consent is not to be construed as a waiver of any
subsequent breach of any other provision or as a consent with respect to any
similar instance or circumstance.
4.3 This
agreement inures to the benefit of and is binding upon the parties and their
respective legal representatives, successors, and assigns. Seller may
not directly or indirectly, including by assignment, operation of law or change
of control, transfer or assign this agreement without C2’s prior written
consent, and any purported transfer or assignment in violation of this section
will be null and void.
4.4 This
agreement will be governed by and construed in accordance with the laws of the
State of New York, without regard to conflict of laws
principles. Exclusive venue for any action arising out of or related
to this agreement will be in state or federal court located in the County of New
York, New York, and each party consents to the jurisdiction of such courts and
waives any defense based on lack of personal jurisdiction or inconvenient
forum.
4.5 EACH
PARTY IRREVOCABLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO DEMAND THAT ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT
BE TRIED BY JURY. EACH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS
RIGHT TO DEMAND TRIAL BY JURY.
4.6 This
agreement may be executed in counterparts, each of which will be an original,
and all of which together will be one and the same agreement. A
signed copy of this agreement delivered by facsimile, e-mail or other means of
electronic transmission will have the same legal effect as delivery of an
original signed copy of this agreement. The headings of this
agreement are provided for convenience only and are not intended to affect its
construction or interpretation.
4.7 The
parties acknowledge that there may be no adequate remedy at law for a breach of
this agreement and that money damages may not be an appropriate remedy for
breach of this agreement. Therefore, the parties agree that each
party has the right to injunctive relief and specific performance of this
agreement in the event of any breach hereof in addition to any rights it may
have for damages. The remedies set forth in this section are
cumulative and will in no way limit any other remedy any party has at law, in
equity or pursuant hereto.
[signature
page follows]
The parties are executing this
agreement effective as of the Effective Date.
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Kind
Chin Associates, LLC
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By:
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/s/ Xxxx Xxxxx | |
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Its:
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Member | |
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C2
Global Technologies, Inc.
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By:
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/s/ Xxxxx X. Xxxxxx | |
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Its:
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Chairman & CEO | |
