CHINA TEL GROUP, INC. AGREEMENT
Exhibit
99.1
CHINA
TEL GROUP, INC. AGREEMENT
THIS CHINA TEL GROUP, INC.
AGREEMENT (“Agreement”) is entered into and effective as of February 25,
2009 (the “Effective Date”), by and among Olotoa Investments, LLC, a California
limited liability company (“Purchaser”), and China Tel Group, Inc., a Nevada corporation
(“Company”). Purchaser and Company are sometimes referred to
collectively herein as the “Parties” and each individually as a
“Party”.
RECITALS
A. The
Company, through Trussnet USA, a Nevada corporation and a wholly owned
subsidiary of the Company (“Trussnet”), is in the business of designing,
developing, operating and maintaining wireless communications facilities in the
United States of America, South America, Europe, Russia and the People’s
Republic of China;
B. Pursuant
to the terms of that certain Asset Purchase Agreement dated March 9, 2009,
among: (i) Gulfstream Capital Partners Ltd., a Seychelles corporation and a
100% owned subsidiary of Trussnet (“Gulfstream Capital”), and Trussnet Capital
Partners Hong Kong (Ltd.), a Hong Kong corporation
(“Trussnet HK”), Trussnet, through its wholly owned subsidiary Gulfstream
Capital, acquired 2,450,000,000 ordinary shares of Chinacomm Cayman owned by
Trussnet HK, constituting the legal and beneficial ownership of 49% of the
equity of Chinacomm Cayman on a Fully-Diluted Basis;
C. Gulfstream
Capital has purchased a 95% interest in Perusat S.A., a local wireless and
exchange carrier in Peru;
D. Attached
as Exhibit A to this Agreement is an organizational chart reflecting the
ownership and contractual relationship Company has with its subsidiaries and
affiliated companies, which is incorporated herein by reference.
E. Purchaser
desires, in accordance with the terms of this Agreement, to acquire 49% of
the shares of the Class A common stock of Company for $300,000,000;
and
F. The Board
of Directors of Company and Purchaser have each deemed it advisable, and in
the best interests of Company and Purchaser, respectively, to
consummate the Stock Purchase, in accordance with the terms of this
Agreement.
NOW THEREFORE, In
consideration of the promises and the mutual covenants contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties, intending to be legally bound, hereby agree as
follows:
ARTICLE
I
SELECTED DEFINED
TERMS
1.1.
Definitions. In
addition to the terms defined in the Recitals and other terms defined in this
Agreement, the following capitalized terms shall have the respective meanings
specified in this Article I. Other terms defined elsewhere in this
Agreement shall have meanings so given them.
1.1.1. Class A
Common Shares. The term “Class A Common Shares” shall mean the
500,000,000 shares of Class A Common Stock authorized for issuance by Company
pursuant to its certificate of incorporation.
1.1.2.
Fully
Diluted Basis. The term “Fully Diluted Basis” shall mean, with
respect to the Person in question, the sum of: (a) the aggregate number of
issued and outstanding shares of Class A Common Stock as of the date of this
Agreement, plus (b) such additional shares of Class A Common Stock that would be
issued and outstanding on a fully-diluted basis, assuming: (i) the
conversion into Class A Common Stock of all securities issued by the Company as
of June 30, 2009, or (ii) the exercise of all options, warrants or other rights
entitling any holder to purchase shares of Class A Common Stock of the
Company.
ARTICLE
II
THE PURCHASED
SECURITIES
2.1.
The
Purchased Securities, Purchase Price.
2.1.1
The
Purchase Price. Purchaser shall pay to Company by wire
transfer of immediately available funds to an account designated by Company the
sum of $300,000,000.00 (“Purchase Price”). The Purchase Price shall
be payable commencing March 9, 2009 through September 9, 2010 in such amounts
and at such times as designated by the Board of Directors of
Company. After receipt of each payment toward the
Purchase Price, Company shall deliver to the Purchaser certificates evidencing
legal and beneficial ownership of the pro rated portion of the Purchased
Securities so that the amount set forth in Section 2.1.2 below has been
delivered after receipt of the entire Purchase Price.
2.1.2
Purchased
Securities. Upon full payment of the Purchase Price, Purchaser
shall have received Class A Common Shares, constituting 49% of the Class A
Common Shares of Company on a Fully Diluted Basis (the “Purchased
Securities”).
2.2 Board of
Directors. Upon execution of this Agreement, Purchaser and
Company agree Purchaser shall have the right to select one member of the Board
of Directors of Company. Upon payment of the first $50,000,000 of the Purchase
Price, Purchaser and Company agree Purchaser shall have the right to select a
second member of the Board of Directors of Company.
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2.3 Closing. Subject
to the terms and conditions of this Agreement, the closing of the Stock Purchase
(“Closing”) shall take place at the law office of ▇▇▇▇▇▇▇, Cron & Jasper,
PLC, Four ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ on March 9, 2009
(“Closing Date”).
ARTICLE
III
REPRESENTATIONS AND
WARRANTIES OF THE PURCHASER
Purchaser
hereby represents and warrants to Company as follows upon execution of this
Agreement and at Closing:
3.1. Organization
and Authorization. Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the State of
California. Purchaser has full power and authority to execute and
deliver this Agreement and to perform its obligations hereunder. This
Agreement constitutes the valid and legally binding obligation of Purchaser,
enforceable in accordance with its terms and conditions. Purchaser
need not give any notice to, make any filing with, or obtain any authorization,
consent, or approval of any government or governmental agency in order to
consummate the transactions contemplated by this Agreement. Purchaser
has the requisite corporate power and authority and all requisite licenses,
permits and franchises necessary to own and operate its properties and to carry
on its business as now being conducted.
3.2. Investment
Intent and Due Diligence. Purchaser is not acquiring the
Purchased Securities with a view to or for sale in connection with any
distribution thereof within the meaning of the Securities Act of 1933, as
amended (“Securities Act”). Purchaser is an accredited investor
within the meaning of the Securities Act, and its management is sophisticated
and experienced in transactions such as the Stock Purchase set forth in this
Agreement. Purchaser has had an opportunity to review any
documentation of and from Company, including, without limitation, its books,
records, properties and such other information as Purchaser has requested for
the purpose of conducting any review or investigation related to the
transactions contemplated by this Agreement. Purchaser has completed
its due diligence investigation, and Purchaser has no reason to believe that any
of the representations and warranties of Company, if any, are misleading or
inaccurate in any material respect.
3.3. Restricted
Securities. Purchaser hereby acknowledges that the Purchased
Securities shall constitute restricted securities within the standard meaning of
the Securities Act. Purchaser is an accredited investor within the
meaning of the Securities Act.
ARTICLE
IV
ADDITIONAL MISCELLANEOUS
PROVISIONS
4.1. Termination. This
Agreement may be terminated and the transactions contemplated herein may be
abandoned at any time prior to the Closing, by mutual consent of Purchaser and
Company.
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4.2. Executed
Counterparts. This Agreement may be executed in any number of
original, fax, electronic or copied counterparts. All counterparts
shall be considered together as one agreement.
4.3. Successors
and Assigns. Except as expressly provided in this Agreement,
each and all of the covenants, terms, provisions, conditions and agreements
contained in this Agreement shall be binding upon and shall inure to the benefit
of the successors and assigns of the Parties to this Agreement.
4.4. Governing
Law and Dispute Resolution. This Agreement shall be governed
by the laws of the State of California , without giving effect to any choice or
conflict of law provision or rule (whether of the State of California or any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of California. In the
event of a dispute related to or arising from the terms of this Agreement, such
dispute shall be submitted to binding arbitration before a single arbitrator
with the Judicial Arbitration and Mediation Services, Inc. located in Orange
County, California, for resolution pursuant to the California Code of Civil
Procedure and the California Evidence Code. The determination of the
arbitrator shall be final and binding on the Parties, and may be enforced by the
Superior Court of the State of California for the County of Orange.
4.5. Expenses. Each
of the Parties hereto shall pay their own expenses in connection with this
Agreement and the transaction contemplated herein, other than as a result of the
breach hereof by any other party hereto.
4.6. Entire
Agreement. This Agreement contains the entire agreement and
understanding of the Parties hereto in respect to the subject matter contained
in this Agreement. The Parties have expressly not relied upon any
promises, representations, warranties, agreements, covenants, or undertakings,
other than those expressly set forth or referred to in this
Agreement. This Agreement supersedes any and all prior written or
oral agreements, understandings and negotiations between the Parties with
respect to the subject matter contained in this Agreement. This
Agreement may be amended or modified only by a writing signed by all
Parties.
4.7. Waiver. No
failure by any Party to insist on the strict performance of any covenant, duty,
agreement, or condition of this Agreement or to exercise any right or remedy on
a breach shall constitute a waiver of any such breach or of any other covenant,
duty, agreement or condition. No course of dealing between the
Parties, nor any failure to exercise, nor any delay in exercising, any right,
power or privilege of either Party shall operate as a waiver thereof, nor shall
any single or partial exercise of any right, power, or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege.
4.8. Assignability. This
Agreement is not assignable by either Party, without the expressed written
consent of all Parties.
4.9. No Third
Party Beneficiaries. This Agreement has been entered into
solely by and between the Parties, solely for their benefit. There is
no intent by either Party to create or establish a third party beneficiary to
this Agreement, and no such third party shall have any right to enforce any
right, claim, or cause of action created or established under this
Agreement.
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IN WITNESS WHEREOF, this
Agreement has been duly executed by the Parties, and shall be effective as of
and on the Effective Date.
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PURCHASER:
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COMPANY:
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OLOTOA INVESTMENTS, LLC.,
a California limited liability company
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CHINA TEL GROUP, INC., a
Nevada corporation
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By:
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