EXHIBIT 10.1
THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "1933 ACT"), NOR REGISTERED UNDER ANY
STATE SECURITIES LAW, AND ARE "RESTRICTED SECURITIES" AS THAT TERM IS DEFINED IN
RULE 144 UNDER THE 1933 ACT. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE 1933 ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933
ACT, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE SATISFACTION OF THE
COMPANY.
AGREEMENT FOR THE EXCHANGE OF COMMON STOCK
AGREEMENT made this 1st day of February, 2005, by and between Pegasus
Wireless Corp., a Colorado corporation, (the "ISSUER") and the individuals
listed in Exhibit A attached hereto, (the "SHAREHOLDERS"), which SHAREHOLDERS
own of all the issued and outstanding shares and convertible debt of United
Service Attendants, Inc., a Florida corporation, ("United")
In consideration of the mutual promises, covenants, and representations
contained herein, and other good and valuable consideration,
THE PARTIES HERETO AGREE AS FOLLOWS:
1. EXCHANGE OF SECURITIES. Subject to the terms and conditions of this
Agreement, the ISSUER agrees to issue to SHAREHOLDERS, 3,000,000 shares of the
common stock of ISSUER, $.0001 par value (the "Shares"), in exchange for 100% of
the issued and outstanding shares of United, such that United shall become a
wholly owned subsidiary of the ISSUER and to settle100% of the outstanding
convertible debt of United.
2. REPRESENTATIONS AND WARRANTIES. ISSUER represents and warrants to
SHAREHOLDERS the following:
i. Organization. ISSUER is a corporation duly organized, validly
existing, and in good standing under the laws of Colorado, and has all
necessary corporate powers to own properties and carry on a business, and
is duly qualified to do business and is in good standing in Colorado. All
actions taken by the Incorporators, directors and shareholders of ISSUER
have been valid and in accordance with the laws of the State of Colorado.
ii. Capital. The authorized capital stock ISSUER consists of
100,000,000 shares of common stock, $.0001 par value, of which no more than
30,409,992 are issued and outstanding stock. All outstanding shares are
fully paid and non assessable, free of liens, encumbrances, options,
restrictions and legal or equitable rights of others not a party to this
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Agreement. At closing, there will be no outstanding subscriptions, options,
rights, warrants, convertible securities, or other agreements or
commitments obligating ISSUER to issue or to transfer from treasury any
additional shares of its capital stock. Immediately following the closing
there will be no more than 33,409,992 shares of common stock issued and
outstanding. None of the outstanding shares of ISSUER are subject to any
stock restriction agreements. All of the shareholders of ISSUER have valid
title to such shares and acquired their shares in a lawful transaction and
in accordance with the laws of Colorado.
3. SHAREHOLDERS, convertible debt holders and United represent and warrant
to ISSUER the following:
i. Organization United is a corporation duly organized, validly
existing, and in good standing under the laws of Florida, has all necessary
corporate powers to own properties and carry on a business, and is duly
qualified to do business and is in good standing in Florida. All actions
taken by the Incorporators, directors and shareholders of United have been
valid and in accordance with the laws of Florida.
ii. Shareholders and Issued Stock. Exhibit A annexed hereto sets forth
the names and share/convertible debt holdings of 100% of United
shareholders and convertible debt holders.
iii. Absence of Changes. Since the date of the financial statements
(December 31, 2004, attached hereto), there has not been any change in the
financial condition or operations of United, except changes in the ordinary
course of business, which changes have not in the aggregate been materially
adverse.
iv. Liabilities. United does not have any debt, liability, or
obligation of any nature, whether accrued, absolute, contingent, or
otherwise, and whether due or to become due, that is not reflected on the
United financial statements. United is not aware of any pending, threatened
or asserted claims, lawsuits or contingencies involving United or its
common stock. There is no dispute of any kind between the United and any
third party, and no such dispute will exist at the closing of this
Agreement. At closing, United will be free from any and all liabilities,
liens, claims and/or commitments.
v. Ability to Carry Out Obligations. United has the right, power, and
authority to enter into and perform its obligations under this Agreement.
The execution and delivery of this Agreement by Issuer and the performance
by United of its obligations hereunder will not cause, constitute, or
conflict with or result in (a) any breach or violation or any of the
provisions of or constitute a default under any license, indenture,
mortgage, charter, instrument, articles of incorporation, bylaw, or other
agreement or instrument to which United or its shareholders are a party, or
by which they may be bound, nor will any consents or authorizations of any
party other than those hereto be required, (b) an event that would cause
United to be liable to any party, or (c) an event that would result in the
creation or imposition or any lien, charge or encumbrance on any asset of
United or upon the securities of ISSUER to be acquired by SHAREHOLDERS.
vi. Full Disclosure. None of the representations and warranties made
by the United, or in any certificate or memorandum furnished or to be
furnished by the United, contains or will contain any untrue statement of a
material fact, or omit any material fact the omission of which would be
misleading.
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vii. Contract and Leases. United is not currently carrying on any
business and is not a party to any contract, agreement or lease. No person
holds a power of attorney from United.
viii. Compliance with Laws. United has complied with, and is not in
violation of any federal, state, or local statute, law, and/or regulation
pertaining to United. United has complied with all federal and state
securities laws in connection with the issuance, sale and distribution of
its securities.
ix. Litigation. United is not, (and has not been), a party to any
suit, action, arbitration, or legal, administrative, or other proceeding,
or pending governmental investigation. To the best knowledge of the United,
there is no basis for any such action or proceeding and no such action or
proceeding is threatened against United and United is not subject to or in
default with respect to any order, writ, injunction, or decree of any
federal, state, local, or foreign court, department, agency, or
instrumentality.
x. Conduct of Business. Prior to the closing, United shall conduct its
business in the normal course, and shall not (1) sell, pledge, or assign
any assets (2) amend its Articles of Incorporation or Bylaws, (3) declare
dividends, redeem or sell stock or other securities, (4) incur any
liabilities, (5) acquire or dispose of any assets, enter into any contract,
guarantee obligations of any third party, or (6) enter into any other
transaction.
xi. Corporate Documents. Copies of each of the following documents,
which are true complete and correct in all material respects, will be
attached to and made a part of this Agreement:
(1) Articles of Incorporation;
(2) Bylaws;
(3) Minutes of Shareholders Meetings;
(4) Minutes of Directors Meetings;
(5) List of Officers and Directors;
(6) Current Balance Sheet together with other financial
statements described in Section 2(iii); (7) Stock register
and stock records of United and a current, accurate list of
United's shareholders.
xii. Documents. All minutes, consents or other documents pertaining to
United to be delivered at closing shall be valid and in accordance with the
laws of Florida.
xiii. Title. The Shares to be issued to SHAREHOLDERS will be, at
closing, free and clear of all liens, security interests, pledges, charges,
claims, encumbrances and restrictions of any kind. None of such Shares are
or will be subject to any voting trust or agreement. No person holds or has
the right to receive any proxy or similar instrument with respect to such
shares, except as provided in this Agreement, the ISSUER is not a party to
any agreement which offers or grants to any person the right to purchase or
acquire any of the securities to be issued to SHAREHOLDERS. There is no
applicable local, state or federal law, rule, regulation, or decree which
would, as a result of the issuance of the Shares to SHAREHOLDERS, impair,
restrict or delay SHAREHOLDERS' voting rights with respect to the Shares.
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4. INVESTMENT INTENT. SHAREHOLDERS agree that the shares being issued
pursuant to this Agreement may be sold, pledged, assigned, hypothecate or
otherwise transferred, with or without consideration (a "Transfer"), only
pursuant to an effective registration statement under the Act, or pursuant
to an exemption from registration under the Act, the availability of which
is to be established to the satisfaction of ISSUER.
5. CLOSING. The closing of this transaction shall take place at
Freemont, California office of ISSUER.
6. DOCUMENTS TO BE DELIVERED AT CLOSING.
i. By the ISSUER
(1) Board of Directors Minutes authorizing the issuance of a
certificate or certificates for 3,000,000 Shares, registered in
the names of the SHAREHOLDERS based upon their holdings in United
as agreed to on Exhibit A.
ii. By SHAREHOLDERS AND UNITED
(1) Delivery to the ISSUER, or to its Transfer Agent, the
certificates representing 100% of the issued and outstanding
stock of United and representations that 100% of the convertible
debt of United is considered paid in full.
(2) Consents signed by all the shareholders of United
consenting to the terms of this Agreement.
(3) The resignation of all officers of United.
(4) A Board of Directors resolution appointing such person
as ISSUER designate as a director(s) of United.
(5) The resignation of all the directors of United, except
that of SHAREHOLDER'S designee, dated subsequent to the
resolution described in 3, above.
(6) Audited financial statements of the United filed with
the SEC, which shall include a current balance sheet and
statements of operations, stockholders equity and cash flows for
the twelve month period then ended.
(7) All of the business and corporate records of United,
including but not limited to correspondence files, bank
statements, checkbooks, savings account books, minutes of
shareholder and directors meetings, financial statements,
shareholder listings, stock transfer records, agreements and
contracts.
(7) Such other minutes of United shareholders or directors
as may reasonably be required by ISSUER.
(8) An Opinion Letter from United's Attorney attesting to
the validity and condition of the United.
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7. REMEDIES.
i. Arbitration. Any controversy or claim arising out of, or relating
to, this Agreement, or the making, performance, or interpretation thereof,
shall be settled by arbitration in Freemont, California in accordance with
the Rules of the American Arbitration Association then existing, and
judgment on the arbitration award may be entered in any court having
jurisdiction over the subject matter of the controversy.
8. MISCELLANEOUS.
i. Captions and Headings. The Article and paragraph headings
throughout this Agreement are for convenience and reference only, and shall
in no way be deemed to define, limit, or add to the meaning of any
provision of this Agreement.
ii. No oral change. This Agreement and any provision hereof, may not
be waived, changed, modified, or discharged orally, but only by an
agreement in writing signed by the party against whom enforcement of any
waiver, change, modification, or discharge is sought.
iii. Non Waiver. Except as otherwise provided herein, no waiver of any
covenant, condition, or provision of this Agreement shall be deemed to have
been made unless expressly in writing and signed by the party against whom
such waiver is charged; and (I) the failure of any party to insist in any
one or more cases upon the performance of any of the provisions, covenants,
or conditions of this Agreement or to exercise any option herein contained
shall not be construed as a waiver or relinquishment for the future of any
such provisions, covenants, or conditions, (ii) the acceptance of
performance of anything required by this Agreement to be performed with
knowledge of the breach or failure of a covenant, condition, or provision
hereof shall not be deemed a waiver of such breach or failure, and (iii) no
waiver by any party of one breach by another party shall be construed as a
waiver with respect to any other or subsequent breach.
iv. Time of Essence. Time is of the essence of this Agreement and of
each and every provision hereof.
v. Entire Agreement.This Agreement contains the entire Agreement and
understanding between the parties hereto, and supersedes all prior
agreements and understandings.
vi. Counterparts. This Agreement may be executed simultaneously in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
vii. Notices.All notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be deemed to have been
duly given on the date of service if served personally on the party to whom
notice is to be given, or on the third day after mailing if mailed to the
party to whom notice is to be given, by first class mail, registered or
certified, postage prepaid, and properly addressed, and by fax, as follows:
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ISSUER: Pegasus Wireless Corp.
00000 Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
STOCKHOLDERS c/o Mintmire & Assoc
000 Xxxxxxx Xxx., Xxxxx 000
Xxxx Xxxxx, XX 00000
IN WITNESS WHEREOF, the undersigned has executed this Agreement this 1st
day of February 2005.
By: /s/ Xxxxx Xxxxxx
-----------------------------------------
Xxxxx Xxxxxx, President and sole Director
United Service Attendants, Inc.
(SHAREHOLDERS)
By: /s/ Xxxx Xxxx
-----------------------------------------
Xxxx Xxxx, CEO and Chairman of the Board
Pegasus Wireless Corp.,
(ISSUER)
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