EXHBIT 10.1
AWI GLOBAL TECHNOLOGIES INC.
CAPITAL STOCK EXCHANGE AGREEMENT
THIS AGREEMENT is made this 30th day of August, 2002, by and between
CYBERTEL COMMUNICATIONS CORP., a Nevada corporation (the "Seller") and UNIVERSAL
BROADBAND COMMUNICATIONS, INC., a Nevada corporation (the "Purchaser").
WHEREAS, the Seller is the owner of all of the issued and outstanding
shares of the capital stock (the "Stock") of AWI GLOBAL TECHNOLOGIES INC., a
Nevada corporation (the "Company"); and
WHEREAS, the Seller and the Purchaser desire to exchange shares of the
Stock as hereinafter provided;
NOW, THEREFORE, in consideration of the foregoing and the following
mutual covenants and agreements, the Seller and the Purchaser agree as follows:
1. Exchange of the Stock. Upon the terms and conditions set forth in this
Agreement, the Seller shall exchange, sell, assign, and transfer to the
Purchaser at the closing of this Agreement (the "Closing"), free and clear of
all liens and encumbrances, and the Purchaser, upon the basis of the covenants,
warranties and representations of the Seller set forth herein, shall accept from
the Seller at the Closing all of said shares of the Stock owned by the Seller.
2. Consideration. Subject to the terms of this Agreement and in reliance on the
representations and warranties of the Seller, the Purchaser shall accept the
Stock, and in full consideration therefor, shall deliver to the Seller, in
exchange, at the Closing 2,000,000 shares of the Purchaser's common stock, par
value $0.001 per share (the "Consideration").
3. Tax Treatment. The exchange described herein is intended to comply with all
of the provisions of Section 351 of the Internal Revenue Code of 1986, as
amended, and all applicable regulations thereunder. In order to ensure
compliance with said provisions, the parties agree to take whatever steps may be
necessary, including, but not limited to, the amendment of this Agreement, if
necessary.
4. Registration Rights. It is contemplated by the parties that certain of the
shares of the Stock will be spun-off to the Purchaser's stockholders pursuant to
a registration statement on Form SB-2 (the "Registration Statement") to be filed
by the Purchaser under the Securities Act of 1933, as amended, as soon as is
reasonably possible after the Closing, with such shares being freely tradable.
The Purchaser hereby undertakes that it will file the Registration Statement as
promptly as possible following the Closing. The Seller agrees to reasonably
cooperate in furnishing all required information reasonably requested by the
Purchaser in connection with the preparation and filing of the Registration
Statement.
5. Representations and Warranties of the Seller. Where a representation
contained in this Agreement is qualified by the phrase "to the best of the
Seller's knowledge" (or words of similar import), such expression means that,
after having conducted a due diligence review, the Seller believes the statement
to be true, accurate, and complete in all material respects. Knowledge shall not
be imputed nor shall it include any matters which such person should have known
or should have been reasonably expected to have known. The Seller represents and
warrants as follows:
(a) Power and Authority. The Seller has full power and authority to execute,
deliver, and perform this Agreement and all other agreements, certificates or
documents to be delivered in connection herewith, including, without limitation,
the other agreements, certificates and documents contemplated hereby
(collectively the "Other Agreements").
(b) Binding Effect. Upon execution and delivery by the Seller, this Agreement
and the Other Agreements shall be and constitute the valid, binding and legal
obligations of the Seller, enforceable against the Seller in accordance with the
terms hereof and thereof, except as the enforceability hereof or thereof may be
subject to the effect of (i) any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting creditors'
rights generally, and (ii) general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
(c) Effect. Neither the execution and delivery of this Agreement or the Other
Agreements nor full performance by the Seller of its obligations hereunder or
thereunder will violate or breach, or otherwise constitute or give rise to a
default under, the terms or provisions of the Articles of Incorporation or
Bylaws of the Company or, subject to obtaining any and all necessary consents,
of any contract, commitment or other obligation of the Company or necessary for
the operation of the Company's business (the "Business") following the Closing
or any other material contract, commitment, or other obligation to which the
Company is a party, or create or result in the creation of any encumbrance on
any of the property of the Company.
(d) No Consents. No consent, approval or authorization of, or registration,
declaration or filing with any third party, including, but not limited to, any
governmental department, agency, commission or other instrumentality, will,
except such consents, if any, delivered or obtained on or prior to the Closing,
be obtained or made by the Seller prior to the Closing to authorize the
execution, delivery and performance by the Seller of this Agreement or the Other
Agreements.
(e) Stock Ownership. The Seller has good, absolute, and marketable title to
2,000,000 shares of the Stock, which constitute all of the issued and
outstanding shares of the capital stock of the Company. The Seller has the
complete and unrestricted right, power and authority to sell, transfer and
assign the Stock pursuant to this Agreement. The delivery of the Stock to the
Purchaser as herein contemplated will vest in the Purchaser good, absolute and
marketable title to all of the issued and outstanding shares of the Stock of the
Company, free and clear of all liens, claims, encumbrances, and restrictions of
every kind, except those restrictions imposed by applicable securities laws.
(f) Organization and Standing of the Company. The Company is a duly organized
and validly existing Nevada corporation in good standing, with all requisite
corporate power and authority to carry on the Business as presently conducted.
The Company has not qualified to do business in any other jurisdiction.
(g) No Subsidiaries. The Company has no subsidiaries.
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(h) Capitalization. The Company is authorized by its Articles of Incorporation
to issue 500,000,000 shares of common stock, par value $0.001 per share,
2,000,000 shares of which are duly and validly issued and outstanding, fully
paid, and non-assessable. The Company does not have any authority to issue any
other capital stock or other security. There are no outstanding options,
contracts, commitments, warrants, preemptive rights, agreements or any rights of
any character affecting or relating in any manner to the issuance of the Stock
of the Company or other securities or entitling anyone to acquire the Stock or
other securities of the Company.
(i) Assets and Liabilities. The Company is newly formed and does not
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have any assets or liabilities, or pending or threatened claims.
(j) The Seller's Representations and Warranties True and Complete. All
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representations and warranties of the Seller in this Agreement and the Other
Agreements are true, accurate and complete in all material respects as of the
Closing.
(k) No Knowledge of the Purchaser's Default. The Seller has no knowledge that
any of the Purchaser's representations and warranties contained in this
Agreement or the Other Agreements are untrue, inaccurate or incomplete or that
the Purchaser is in default under any term or provision of this Agreement or the
Other Agreements.
(l) No Untrue Statements. No representation or warranty by the Seller in this
Agreement or in any writing furnished or to be furnished pursuant hereto,
contains or will contain any untrue statement of a material fact, or omits, or
will omit to state any material fact required to make the statements herein or
therein contained not misleading.
(m) Reliance. The foregoing representations and warranties are made
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by the Seller with the knowledge and expectation that the Purchaser is placing
complete reliance thereon.
6. Representations and Warranties of the Purchaser. Where a representation
contained in this Agreement is qualified by the phrase "to the best of the
Purchaser's knowledge" (or words of similar import), such expression means that,
after having conducted a due diligence review, the Purchaser believes the
statement to be true, accurate, and complete in all material respects. Knowledge
shall not be imputed nor shall it include any matters which such person should
have known or should have been reasonably expected to have known. The Purchaser
hereby represents and warrants to the Seller as follows:
(a) Power and Authority. The Purchaser has full corporate power and
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authority to execute, deliver and perform this Agreement and the
Other Agreements.
(b) Authorization. The execution, delivery and performance of this Agreement and
the Other Agreements by the Purchaser have been duly authorized by all requisite
corporate action.
(c) Binding Effect. Upon execution and delivery by the Purchaser, this Agreement
and the Other Agreements shall be and constitute the valid, binding and legal
obligations of the Purchaser enforceable against the Purchaser in accordance
with the terms hereof and thereof, except as the enforceability hereof and
thereof may be subject to the effect of (i) any applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or affecting
creditors' rights generally, and (ii) general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law).
(d) No Default. Neither the execution and delivery of this Agreement or the
Other Agreements nor full performance by the Purchaser of its obligations
hereunder or thereunder will violate or breach, or otherwise constitute or give
rise to a default under, the terms or provisions of the Articles of
Incorporation or Bylaws of the Purchaser or, subject to obtaining any and all
necessary consents, of any contract, commitment or other obligation of the
Purchaser or necessary for the operation of the Purchaser's business following
the Closing or any other material contract, commitment, or other obligation to
which the Purchaser is a party, or create or result in the creation of any
encumbrance on any of the Purchaser's assets.
(e) No Consents. No consent, approval or authorization of, or registration,
declaration or filing with any third party, including, but not limited to, any
governmental department, agency, commission or other instrumentality, will,
except such consents, if any, delivered or obtained on or prior to the Closing,
be obtained or made by the Purchaser prior to the Closing to authorize the
execution, delivery and performance by the Purchaser of this Agreement or the
Other Agreements.
(f) Organization and Standing of the Purchaser. The Purchaser is a duly
organized and validly existing Nevada corporation in good standing, with all
requisite corporate power and authority to carry on its business as presently
conducted. The Purchaser has not qualified to do business in any other
jurisdiction.
(g) The Purchaser's Representations and Warranties True and Complete.
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All representations and warranties of the Purchaser in this Agreement and the
Other Agreements are true, accurate and complete in all material respects
as of the Closing.
(h) No Knowledge of the Seller's Default. The Purchaser has no knowledge that
any of the Seller's representations and warranties contained in this Agreement
or the Other Agreements are untrue, inaccurate or incomplete in any respect or
that the Seller is in default under any term or provision of this Agreement or
the Other Agreements.
(i) No Untrue Statements. No representation or warranty by the Purchaser in this
Agreement or in any writing furnished or to be furnished pursuant hereto,
contains or will contain any untrue statement of a material fact, or omits, or
will omit to state any material fact required to make the statements herein or
therein contained not misleading.
(j) Reliance. The foregoing representations and warranties are made by
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the Purchaser with the knowledge and expectation that the Seller is placing
complete reliance thereon.
7. Actions of the Company Pending the Closing. The Seller agrees
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that from the date hereof through the Closing:
(a) Operations. The Seller will use its best efforts to cause the Company to (i)
be operated in keeping with its customary practices and in compliance with all
applicable laws, rules and regulations; (ii) continue to replenish its inventory
in a normal and customary manner consistent with its practices; (iii) use its
best efforts to maintain the relationships of its suppliers, customers and those
having business relations with it; and (iv) not engage in any transaction or
make any commitment or expenditure other than those which are in the usual and
ordinary course of business.
(b) No Change in Corporate Charter. No change will be made in the
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Articles of Incorporation or Bylaws of the Company, except as may be first
approved in writing by the Purchaser.
(c) No Change in Stock. No change will be made in the authorized or issued
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capital stock of the Company.
(d) No Default. The Company shall timely pay and/or not suffer any
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default with respect to any of its contracts, commitments or obligations.
The Company shall also continue to pay as they become due all accounts payable
of the Company.
(e) No Contracts. No contract or commitment will be entered into by or on
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behalf of the Company.
(f) No Liabilities. The Company shall not issue or sell any of its Stock,
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bonds, notes, or other corporate securities, or incur any obligation or
liability, except as may be first approved in writing by the Purchaser.
(g) Compliance. The Seller shall cause the Company and its officers
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and employees to comply with all applicable provisions of this Agreement.
8. Conditions Precedent to Obligations of the Purchaser. All
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obligations of the Purchaser under this Agreement are subject to the
fulfillment, prior to or at the Closing, of the following conditions which
must besatisfied as herein specified:
(a) Representations and Warranties True at Closing. The representations and
warranties of the Seller herein shall be deemed to have been made again on the
Closing Date, and then be true and correct, subject to any changes contemplated
by this Agreement. The Seller shall have performed all of the obligations to be
performed by it hereunder on or prior to the Closing Date.
(b) Resignations of Directors and Officers. The Seller shall have
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delivered to the Purchaser at the Closing the written resignations of all of the
directors and officers of the Company.
(c) Execution and Delivery of Documents. On or before the Closing Date, the
Seller shall have executed and delivered to the Purchaser all the items listed
in Paragraph 14 hereof.
(d) Other Matters. All corporate and other proceedings and actions taken in
connection with the transactions contemplated hereby and all certificates,
opinions, agreements, instruments and documents mentioned herein or incident to
any such transaction shall be satisfactory in form and substance to the
Purchaser and its counsel, whose approval shall not be unreasonably withheld.
9. Conditions Precedent to Obligations of the Seller. All obligations
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of the Seller under this Agreement are subject to the fulfillment, prior to or
at the Closing, of the following conditions:
(a) Representations and Warranties True at Closing. The representations and
warranties of the Purchaser herein shall be deemed to have been made again on
the Closing Date, and then be true and correct, subject to any changes
contemplated by this Agreement. The Purchaser shall have performed all of the
obligations to be performed by the Purchaser hereunder on or prior to the
Closing Date.
(b) Resolutions. The Seller's counsel shall have received certified resolutions
of a meeting of the Board of Directors of the Purchaser pursuant to which this
Agreement and the transactions contemplated hereby were duly and validly
approved, adopted and ratified by the Purchaser all in form and content
satisfactory to such counsel, authorizing (i) the execution, delivery and
performance of this Agreement, (ii) such other documents and instruments as
shall be necessary to consummate the transactions contemplated hereby and
thereby, and (iii) all actions to be taken by the Purchaser hereunder.
(c) Other Matters. All corporate and other proceedings and actions taken in
connection with the transactions contemplated hereby and all certificates,
opinions, agreements, instruments and documents mentioned herein or incident to
any such transaction shall be satisfactory in form and substance to the Seller
and its counsel, whose approval shall not be unreasonably withheld.
10. The Nature and Survival of Representations, Covenants and Warranties. All
statements and facts contained in any memorandum, certificate, instrument, or
other document delivered by or on behalf of the parties hereto for information
or reliance pursuant to this Agreement, shall be deemed representations,
covenants and warranties by the parties hereto under this Agreement. All
representations, covenants and warranties of the parties shall survive the
Closing and all inspections, examinations, or audits on behalf of the parties,
shall expire one year following the Closing Date.
11. Cooperation. The Purchaser and the Seller will each cooperate with the
other, at the other's request and expense, in furnishing information, testimony,
and other assistance in connection with any actions, proceedings, arrangements,
disputes with other persons or governmental inquiries or investigations
involving the Seller's or the Purchaser's conduct of the Business or the
transactions contemplated hereby.
12. Further Conveyances and Assurances. After the Closing, the Seller will,
without further cost or expense to, or consideration of any nature from the
Purchaser, execute and deliver, or cause to be executed and delivered, to the
Purchaser, such additional documentation and instruments of transfer and
conveyance, and will take such other and further actions, as the Purchaser may
reasonably request as more completely to sell, transfer and assign to and fully
vest in the Purchaser ownership of the Stock.
13. Closing. The Closing Date of the sale and purchase contemplated hereunder
shall be on or before August 30, 2002, subject to acceleration or postponement
from time to time as the Seller and the Purchaser mutually agree. The Closing
shall be held at the offices of the Seller at 2:00 p.m., San Diego, California
time, on the Closing Date unless another hour or place is mutually agreed upon
by the Seller and the Purchaser.
14. Deliveries at the Closing by the Seller. At the Closing, the Seller
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shall deliver to the Purchaser the following:
(a) Certificates representing all issued and outstanding shares of the
Stock of the Company, duly endorsed in favor of the Purchaser.
(b) A certificate executed by the Seller to the effect that:
(i) All corporate and other proceedings or actions required to be taken by the
Seller and the Company in connection with the transactions contemplated by this
Agreement have been taken;
(ii) All requisite governmental approvals and authorizations necessary for
consummation by the Seller of the transactions contemplated hereby have been
duly issued or granted; and
(iii) There has not been issued, and there is not in effect, any injunction or
similar legal order prohibiting or restraining consummation of any of the
transactions herein contemplated, and no legal or governmental action,
proceeding or investigation which might reasonably be expected to result in any
such injunction or order is pending.
(c) The resignations of all of the directors and officers of the Company.
(d) Any other document which may be necessary to carry out the intent of
this Agreement.
All documents reflecting any actions taken, received or delivered by
the Seller pursuant to this Paragraph 14 shall be reasonably satisfactory in
form and substance to the Purchaser and the Purchaser's counsel.
15. Deliveries at the Closing by the Purchaser. At the Closing, the
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Purchaser shall deliver to the Seller the following:
(a) The Consideration, constituting, 2,000,000 shares of the Purchaser's common
stock, par value $0.001 per share, duly endorsed in favor of the Seller.
(b) A certificate executed by an officer of the Purchaser with knowledge of
the facts to the effect that:
(i) All corporate and other proceedings or actions required to be taken by the
Purchaser in connection with the transactions contemplated by this Agreement
have been taken;
(ii) All requisite governmental approvals and authorizations necessary for
consummation by the Purchaser of the transactions contemplated hereby have been
duly issued or granted; and
(iii) There has not been issued, and there is not in effect, any injunction or
similar legal order prohibiting or restraining consummation of any of the
transactions herein contemplated, and no legal or governmental action,
proceeding or investigation which might reasonably be expected to result in any
such injunction or order is pending.
(c) Any other document which may be necessary to carry out the intent of
this Agreement.
All documents reflecting any actions taken, received or delivered by
the Purchaser pursuant to this Paragraph 15 shall be reasonably satisfactory in
form and substance to the Seller and the Seller's counsel.
16. Assignment. This Agreement shall be binding upon and inure to the benefit of
the successors of each of the parties hereto, but shall not be assignable by
either party without the prior written consent of the other party, which consent
shall be subject to such party's sole, absolute and unfettered discretion.
17. Notices. All notices, requests, demands, and other communications hereunder
shall be in writing and delivered personally or sent by registered or certified
United States mail, return receipt requested with postage prepaid, by facsimile,
or by e-mail, if to the Seller, addressed to Mr. Xxxxxxx Xxxxxxx, at 0000 Xx
Xxxxxx Xxxxx, Xxxxx X, Xxxxx, Xxxxxxxxxx 00000, telephone (000) 000-0000,
facsimile (000) 000-0000, and e-mail xxxxxxxx@xxxxxxxxxxxx.xxx; and if to the
Purchaser, addressed to Mr. Xxxx Xxxxx at 00000 Xxx Xxxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxx, Xxxxxxxxxx 00000, telephone (000) 000-0000, facsimile (000) 000-0000,
and e-mail xxxxxx@xxxxx.xxx. Any party hereto may change its address upon 10
days' written notice to any other party hereto.
18. Construction. Words of any gender used in this Agreement shall be
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held and construed to include any other gender, and words in the singular
number shall be held to include the plural, and vice versa, unless the
context requires otherwise.
19. Waiver. No course of dealing on the part of any party hereto or its agents,
or any failure or delay by any such party with respect to exercising any right,
power or privilege of such party under this Agreement or any instrument referred
to herein shall operate as a waiver thereof, and any single or partial exercise
of any such right, power or privilege shall not preclude any later exercise
thereof or any exercise of any other right, power or privilege hereunder or
thereunder.
20. Cumulative Rights. The rights and remedies of any party under
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this Agreement and the instruments executed or to be executed in connection
herewith, or any of it, shall be cumulative and the exercise or partial
exercise of any such right or remedy shall not preclude the exercise of any
other right or remedy.
21. Invalidity. In the event any one or more of the provisions contained in this
Agreement or in any instrument referred to herein or executed in connection
herewith shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality, or unenforceability shall not
affect the other provisions of this Agreement or any such other instrument.
22. Time of the Essence. Time is of the essence of this Agreement.
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23. Multiple Counterparts. This Agreement may be exercised in one or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
24. Controlling Agreement. In the event of any conflict between the
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terms of this Agreement or any agreement referred to herein, the terms of
this Agreement shall control.
25. Law Governing. This Agreement shall be construed and governed by
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the laws of the State of California, and all obligations hereunder shall be
deemed performable in San Diego County, California.
26. Entire Agreement. This instrument, together with all Schedules
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attached hereto, contain the entire understanding of the parties and may not
be changed orally, but only by an instrument in writing signed by the party
against whom enforcement of any waiver, change, modification, extension, or
ischarge is sought.
IN WITNESS WHEREOF, this Agreement has been executed in multiple
counterparts on the date first written above.
CYBERTEL COMMUNICATIONS CORP.
By/s/Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxxx, President
UNIVERSAL BROADBAND COMMUNICATIONS, INC.
By/s/Xxxx Xxxxx
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Xxxx Xxxxx, President
