Exhibit 10.9 Tower Gate Finance Limited Agreement
TOWERGATE
AGREEMENT
BETWEEN
Tower Gate Finance Limited ("Tower Gate");
and Telemetrix Inc (the "Company" or "Telemetrix").
1. INVESTMENT
1.1. Upon signing of this Agreement, by signing the attached letter, Tower Gate,
its management or its associates will invest USD $30,000 in Telemetrix
stock at a share price of $0.04 per share. This being the average share
price of the last investment in the Company, and the lowest subscription
made to-date in the Company. These 750,000 shares will be divided by 200
and taken as 3,750 Series D Preference Shares.
1.2. By a series of agreed payments, Tower Gate, its management or its
associates will invest up to a further USD $150,000 in Telemetrix stock,
again at $0.04 per share, being 3,750,000 Ordinary shares, taken as 8,750
to 18,750 Series D Preferred shares. It is anticipated that this amount
will be sufficient to fund the working capital of the Company until the
additional $2M investment round is completed.
1.3. These amounts invested as detailed in Sections 1.1 and 1.2 will be used by
the Company to make the payments listed in Appendix A hereto.
1.4. As soon as practicable hereafter and before the $2M raise as referred to
below, the Company will - by a series of steps:
o Finalise the Company's balance sheet as referred to in the spreadsheet
listed in Appendix 81 hereto by effecting amongst others the changes
as defined in Appendix 82.
o Reach a satisfactory agreement with the holders of the $1,200,000
convertible debentures Satisfaction being defined as (a) removal of
the risk of the debenture holders delaying the $2M investment round
and (b) based on the scenarios offered, achieving the best mix of a
far blue soon to be a trading name of Tower Gate Finance Limited
Registered in England Number 03924137
Regulated by the FSA
TOWERGATE
reduction in the cash paid or equity given in-lieu as settlement and
the longest extension of the date of any repayments.
1.5. The Company will as soon as practicable issue the stock referred to above
upon receipt of subscription monies and will enter the subscribers in the
Company's records and do all filings and obtain all due consents.
1.6. Stock issued will be subject to the same restrictions as any/all other 144
stock and will carry the same notations as all other Series D stock.
2. SERVICES OFFERED
2.1. Tower Gate and Telemetrix Inc will work together in the $2 million fund
raising round to prepare necessary documentation and Tower Gate will
project manage the round to the close.
2.2. Tower Gate will supply ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ as a Non-Executive Director.
3. LEASE PURCHASE
3.1. Telemetrix will seek to purchase the switch and associated software and
hardware as defined in the agreed business plan in the form attached hereto
as Attachment 1 (the "Business Plan") via a lease purchase scheme. Tower
Gate will help facilitate this process.
3.2. In the event a guarantee in addition to the guarantee of Telemetrix Inc. is
required for the lease/purchase of a switch, Tower Gate will provide the
leasing entity such guarantee subject to a form of agreement acceptable to
the leasing entity and Tower Gate and Telemetrix.
3.3. In the Event Telemetrix is unable to maintain the lease payments on a
current basis, Tower Gate may declare Telemetrix in breach of agreement and
upon Tower Gate's written notice of breach, Telemetrix has a period of 15
days to remedy the breach. If Telemetrix does not remedy the specific
matter causing the breach, Tower Gate may declare Telemetrix in breach and
either make lease the payments in the place of Telemetrix or take any other
action provided in the leasing agreement, including taking possession of
the switch.
3.4. In the event of a breach as set forth in 3.3, any amount advanced by Tower
Gate either as a payment or in settlement of the lease agreement in
far blue soon to be a trading name of Tower Gate Finance Limited
Registered in England Number 03924137
Regulated by the FSA
TOWERGATE
total, Tower Gate may at its option convert lease advances as well as any
sums owing into shares of Telemetrix. In such event, the conversion rate
will amount to average trading price of Telemetrix stock over the prior 28
day trading period, less twenty percent (20%).
4. SETTLEMENT
4.1. The guarantee as above will be valued for the purposes of this clause at
the cash amounts paid by Tower Gate under it. This shall be added to all
amounts that Tower Gate, its management or associates or its investors
invest, combined with other amounts raised by the Company ("New Money") .
4.2. For every $10,000 of New Money the Company will issue to Tower Gate 100,000
shares of Common Stock in Telemetrix.
4.3. The Company will issue such shares to Tower Gate (or as it shall direct)
and enter the names of the subscribers in the Company books and make all
necessary filings and obtain all necessary consents. The Company will
increase its authorised shares to 200M to facilitate this.
4.4. An Option Pool of 10M shares of Common Stock in Telemetrix will be created.
Individual employees of Tower Gate will be allowed to participate in this
pool alongside Telemetrix employees
5. CAPITAL STRUCTURE
5.1. The current capital structure of the company is as shown in Appendix Cl.
5.2. Following the approval of the FCC, the capital structure of the company
incorporating the issuance of the Series D preferred shares could be as in
Appendix C2 which is included for illustrative purposes only.
5.3. The anticipated capital structure of the Company for a $2M investment, as
well as other amounts invested by Tower Gate (and related parties) as
referred to herein is shown in the attached spreadsheet appended as
Appendix D. Again this recognises that FCC approval has not yet been
granted for the Series D preferred and that these amounts are liable to
change as interest accumulates.
far blue soon to be a trading name of Tower Gate Finance Limited
Registered in England Number 03924137
Regulated by the FSA
TOWERGATE
5.4. It is recognised that the company has a number of alternative approaches to
create the final capital structure as illustrated by Appendix D. The final
route will be agreed between the two parties soon after the signing of this
agreement.
5.5. All existing shareholders, future shareholders and investors will become
holders of Ordinary shares.
5.6. For providing management services, Tower Gate will receive $125,000 per
annum excluding expenses from 1st September 2003.
6. OTHER TERMS
6.1. All key shareholders including Tower Gate, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ hereby agree a lock out of 12 months until
30th August 2004, and such shareholders will sign this Agreement in order
to confirm this, as well as agreeing to all the other terms hereof.
6.2. The following shareholders may sell a total of 2,250,000 shares of company
stock as delineated below pursuant to Rule 144 and these shares are not
subject to the lockout
o ▇▇▇▇▇▇▇ ▇▇▇▇▇▇: 500,000 shares
o ▇▇▇▇▇▇▇ ▇▇▇▇▇: 1,000,000 shares
o ▇▇▇▇▇▇▇ ▇▇▇▇▇▇: 500,000 shares
o ▇▇▇▇▇ ▇▇▇▇▇▇: 250,000 shares
6.3. The parties will work to ensure that all the shares of the Company owned by
parties referred to herein will be listed on the market.
6.4. Telemetrix will be obligated to work with Tower Gate for the raising of the
anticipated $2M and the strategy as outlined in the Business Plan.
6.5. Telemetrix will ensure all future filings with the SEC are made on time and
to the required standard, as well as obtain all consents to complete all
the actions referred to herein and in the Business Plan.
6.6. Any FCC and/or SEC approvals have been confirmed and are completed. The
current exceptions to this are recognised as being:
o The 10K for the financial year ending 31st December 2002, which is
completed but not yet filed
far blue soon to be a trading name of Tower Gate Finance Limited
Registered in England Number 03924137
Regulated by the FSA
TOWERGATE
o The two 10Qs for the quarters ending 31st March 2003 and 30th June
2003 neither of which have been completed or filed
6.7. If necessary, documents will be filed with the FCC outlining any foreign
ownership.
6.8. ▇▇▇▇▇ ▇▇▇▇▇▇▇ will be employed on a management contract until such time as
approval can be gained from the FCC to employ him as an officer of the
company.
6.9. English law shall apply to this Agreement and the parties submit to the
non-exclusive jurisdiction of the English courts.
6.10.Nothing in this Agreement shall infer any partnership between any of the
parties, from a legal point of view.
6.11.Both parties can vary or waive any of the terms hereof if situations
change, and such changes must be in writing and signed by both parties.
7. TIMINGS
7.1. Following signing of this term sheet the parties shall together agree a
timetable of actions to be completed before the $2M funding round and at
the time of the $2M funding round. These shall include but not be limited
to:
o Agreement of a management contract with ▇▇▇▇▇ ▇▇▇▇▇▇▇
o Gaining FCC approval for the appointment of ▇▇▇▇▇ ▇▇▇▇▇▇▇ as an
Officer of the company.
o Gaining approval for changes relating to the creation of the Series D
preferred shares.
o Reaching agreement with the Debenture holders.
o Completion of the company's audited balance sheet.
o Filing of the completed 10K.
o Completion and filing of the two 10Qs.
o Increasing the authorised share capital of the company to 200M shares.
far blue soon to be a trading name of Tower Gate Finance Limited
Registered in England Number 03924137
Regulated by the FSA
TOWERGATE
8. REPRESENTATIONS AND WARRANTIES
8.1. It is recognized that Tower Gate will need representations and warranties
both for itself and the subscribers of stock under or pursuant to this
Agreement (in order to raise money), and accordingly the Company hereby
represents and warrants to Tower Gate (for itself and for the subscribers)
that:
o The various actions referred to in the Business Plan and in particular
in relation to the company's balance sheet shall be effected
o The Business Plan is accurate as to all facts and all opinions stated
therein are reasonably held by the Company.
o The Company has paid all necessary state, federal and employee related
taxes.
o The current balance sheet of the company is as set out in Appendix B.
o Appendix Cl sets out details of all shares, warrants and options
issued as at the date of signing.
o Appendix E contains a list of all liabilities and amounts of the
Company as known at the time of signing this agreement.
o Appendix F contains Any actual or possible litigation against the
Company is as specified in the attached representations.
8.2. Tower Gate represents it has had an opportunity to do all appropriate and
necessary due diligence to enter into this agreement and has had the
opportunity to complete the work prior to offering this letter
9. SIGNATURES
9.1. For the purpose of this document, scanned signatures shall have the same
meaning and effect as actual signatures.
far blue soon to be a trading name of Tower Gate Finance Limited
Registered in England Number 03924137
Regulated by the FSA
TOWERGATE
Signed and dated:
/s/▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ 6th October 2003
------------------------------- ---------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Dated
Director
Tower Gate Finance Ltd
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 10/1/03
------------------------------- ---------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Dated
Chairman, Director Telemetrix Inc.
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ October 1, 2003
------------------------------- ---------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Dated
President, Director Telemetrix Inc.
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 10/01/03
------------------------------- ---------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Dated
Secretary, Director Telemetrix Inc.
far blue soon to be a trading name of Tower Gate Finance Limited
Registered in England Number 03924137
Regulated by the FSA
TOWERGATE
Signed and dated by major shareholders on behalf of themselves or as legal
representatives of the entities listed in Attachment 3, according to Section 6.1
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 10/01/03
------------------------------- ---------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Dated
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ October 1, 2003
------------------------------- ---------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Dated
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 10/1/03
------------------------------- ---------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Dated
/s/▇▇▇▇▇ ▇▇▇▇▇▇ 10/01/03
------------------------------- ---------------
▇▇▇▇▇ ▇▇▇▇▇▇ Dated
far blue soon to be a trading name of Tower Gate Finance Limited
Registered in England Number 03924137
Regulated by the FSA
TOWERGATE
REPRESENTATION
I, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President of Telemetrix Inc. offer the following
representations on behalf of the company:
1. Litigation. Dovle v. Telemetrix. Judgement was entered by default in the
amount of $70,167.52. Management claims that service of summons was not
made. The court file reflects that the Delaware Registered Agent was
served. An action to vacate the judgement is pending. While management
desires to vigorously pursue the motion, it is the opinion of counsel the
motion will be denied and the judgement will stand. Concurrently,
Telemetrix has initiated action against the Registered Agent for failure to
notify or forward the notice of summons.
2. The Company has paid and/or is current on all necessary state, federal and
employee related taxes.
3. The balance sheet and associated financial information is not the result of
an outside audit, however is based on the financial information found in
the books and records of the corporation. The audit for Telemetrix will be
completed as soon as funds are available to re-engage the auditing firm.
Once the audit is completed, all necessary filings will be brought current
with the SEC. There is another outstanding matter with the SEC, and that
involves an inquiry of the FCC with respect to some of the accounting
procedures used by the former auditors. The current auditing firm is aware
of the questions that remain open and will finalise a response to the SEC
during the completion of the audit.
4. The existing capital structure as stated in Appendix C1 accurately
represents the structure as of the date of the completion of the 10K for
2001. There have been no changes since that date. The structure does not
represent or include the changes in shareholdings which are held in
abeyance at this time. However the future shareholdings are current through
this date. There are some matters of the corporation with respect to the
issuance of shares to ▇▇▇▇▇ for unpaid salary and expenses and to
far blue soon to be a trading name of Tower Gate Finance Limited
Registered in England Number 03924137
Regulated by the FSA
TOWERGATE
▇▇▇▇▇▇▇ for the execution of a financial guarantee on behalf of the company.
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
far blue soon to be a trading name of Tower Gate Finance Limited
Registered in England Number 03924137
Regulated by the FSA
TOWERGATE
LIST OF APPENDICES
Appendix A Proposed Key Items of Expenditure
Appendix B1 Telemetrix Inc Balance Sheet for 10K dated 31st December 2003
Appendix B2 Changes to be effected to the Telemetrix Inc Balance Sheet
Appendix B3 Pro forma balance as at 31st August 2003
Appendix C1 Telemetrix Inc current Capital Structure
Appendix C2 Telemetrix Inc illustrative Capital Structure following
approval by FCC to create the Series D preferred shares
Appendix D Telemetrix Inc future intended Capital Structure
Appendix E Existing Liabilities
Appendix F Details of actual or possible litigation
LIST OF ATTACHMENTS
Attachment 1 Business Plan
Attachment 2 Company Certificates
Attachment 3 Copies of agreements to debt for equity swap.
far blue soon to be a trading name of Tower Gate Finance Limited
Registered in England Number 03924137
Regulated by the FSA
TOWERGATE
APPENDIX A: PROPOSED KEY ITEMS OF EXPENDITURE
These are intended to be:
Organisation Amount
---------------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION $59,295
▇▇▇▇▇*W1NTER*▇▇▇▇▇▇▇▇▇ & CO., LLP $15,955
LIEBEN, WHITTED, HOUGHTON, SLOWIACZEK, & CAV $15,000
HALL, ESTILL, HARDWlCK, ▇▇▇▇▇, GOLDEN & NELSO $10,000
▇▇▇▇▇ BROADCASTING CORPORATION $10,000
TSI TELECOMMUNICATION SERVICES $5,100
▇▇▇▇▇▇▇▇ ▇▇▇▇ $5,000
VAN STEENBERG LAW FIRM $5,000
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, PC, LLO $4,000
REGIONAL WEST MEDICAL CENTER $3,500
▇▇▇ ▇▇▇▇▇ $2,500
STAPLES $2,153
▇▇▇▇▇▇▇▇▇, HOL YOKE, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & CHA $2,000
ELAN CC (▇▇▇ ▇▇▇▇▇) $2,000
ELAN CC (▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇) $2,000
ELAN CC (▇▇▇▇ ▇▇▇▇▇) $2,000
ELAN CC (▇▇▇▇ ▇▇▇▇▇▇) $2,000
ELAN CC (▇▇▇▇▇▇▇ ▇▇▇▇▇) $2,000
COMPUTERSHARE $1,827
ELAN CC (▇▇▇▇▇▇ ▇▇▇▇▇) $1,527
SCOTTS BLUFF COUNTY TREASURER $1,473
SPRINT (PCS) $1,353
SPRINT DATA SERVICES $1,152
CITY OF ▇▇▇▇▇▇ $1,001
ELAN CC (▇▇▇▇ ▇▇▇▇▇▇▇) $1,000
▇.▇. ▇▇▇▇▇▇▇ COMPANY $992
▇▇▇▇ ▇▇▇▇▇ $967
ELAN CC (▇▇▇▇▇ ▇▇▇▇ 1029) $923
SPRINT - 436-6400 $884
VALLEY BANK AND TRUST CO $872
COMMSOURCE INC. $750
ELAN CC (▇▇▇▇▇▇ ▇▇▇▇▇) $728
CHEYENNE COUNTY $720
THE DEPOSITORY TRUST COMPANY $675
KAAQ-FM/KQSK-FM $470
D & H ELECTRONICS SUPPLY, INC $443
NEBRASKA DEPT OF REVENUE - SALES TAX $433
▇▇▇▇▇ COUNTY IMPLEMENT $400
SPRINT - 635-3185 - KC,MO $367
far blue soon to be a trading name of Tower Gate Finance Limited
Registered in England Number 03924137
Regulated by the FSA
TOWERGATE
APPENDIX A: (contd)
Organisation Amount
---------------------------------------------------------------------------
▇▇▇▇▇▇'▇ ACE HARDWARE $330
GOSHEN COUNTY UNIFIED SCHOOL DIST. $307
SPRINT - 436-7101 - KC,MO $291
NEBR. PUBLIC PO\!-JER DIST. $283
PANHANDLE COOPERATIVE ASSN $251
HAMPTON INN & SUITES $206
NEBRASKA TRANSPORT CO, INC. $205
TOO WAY RADIO SERVICE, INC $180
VILLAGE OF ▇▇▇▇▇▇▇ $180
CITY OF TORRINGTON $160
IONEX 1197505 $103
CITY OF ▇▇▇▇▇▇▇▇ $100
▇▇▇▇▇▇▇-CASHWAY LUMBER COMPANY $97
BANNER COUNTY TREASURER $74
NORTHERN EXPOSURE COMPUTER CENTER $71
HIGH WEST ENERGY 922403 $62
SPRINT - 632-5989 - KC,MO $50
SPRINT - 235-2275 - KC,MO $44
QWEST $41
SPRINT - 532-3020 - KC,MO $40
WHEATLAND RURAL ELECTRIC ASSOCIATION $37
SCOTTSBLUFF FORD LLC $26
RADIO SHACK $25
WHEAT BELT PUBLIC POWER DISTRICT $24
HIGH WEST ENERGY 922402 $24
CITY OF ALLIANCE $20
CITY OF ▇▇▇▇▇▇ $19
SPRINT - 635-4200 - KC,MO $11
▇▇▇▇▇▇▇ COUNTY TREASURER $10
---------------------------------------------------------------------------
TOTAL $171,731
---------------------------------------------------------------------------
far blue soon to be a trading name of Tower Gate Finance Limited
Registered in England Number 03924137
Regulated by the FSA
TOWERGATE
APPENDIX B1: TELEMETRIX INC BALANCE SHEET FROM 10-K
The balance sheet as taken from 10-K 31st December 2002 is:
BALANCE SHEET CONSOLIDATION
--------------------------------------------------------------------------------
Current assets $38,103
Accounts receivable $12,174
-----------
$50,277
-----------
Property and equipment, NBV $473,516
Other assets
Licences $350,708
Receivable from affiliates $12,751
-----------
$363,459
-----------
$887,252
===========
Liabilities and stockholders defecit
Bank Overdraft $244,162
Accounts payable $2,169,486
Accrued expenses $463,863
A/c payable & accrued expenses - affiliates $895,676
Convertible debenture $1,200,000
Notes payable affiliate $3,515,351
Current portion of long term debt $238,073
---------
Total current liabilities $8,726,611
-----------
Long term debt $591,841
-----------
Stockholders deficit
Common stock $18,477
Paid in capi1a1 $46,808,483
Subscribed common shares $3,783,425
Accurnulated (defecit) -$58,949,714
Deferred compensation -$283,625
-----------
-$8,622,954
Other comprehensive income
Currency translation income $191,754
-----------
$887,252
===========
This balance sheet is not yet audited and will be replaced by an audited balance
sheet as soon as possible.
far blue soon to be a trading name of Tower Gate Finance Limited
Registered in England Number 03924137
Regulated by the FSA
TOWERGATE
APPENDIX B2: CHANGES TO BE EFFECTED TO BALANCE SHEET
The following changes will be effected before or at the time of the $2M raise:
ACCOUNTS PAYABLE
As at the 30th August 2003, the Accounts Payable in total was $1,985,424 versus
$2,169,486 as shown in Appendix B1. Of this amount it is the company's belief
that:
o $362,381.83 represents creditors that are yet to be paid.
o $1,464,838.17 represents creditors whose claims are either held to not
be valid, have agreed to abandon their claim or have lapsed.
On completion of the latest audited accounts it is the company's belief that the
auditors will recognise and incorporate the above changes.
ACCRUED EXPENSES
The accrued expenses figure of $463,863 represents interest that was expensed
and is due to holders of the loan notes. This amount will be converted into
equity under the same terms as the aforementioned loan note conversion.
The effect of this will be to remove the Accrued expenses figure.
ACCOUNTS PAYABLE AND ACCRUED EXPENSES - AFFILIATES
The majority of this figure represents inter company transactions due between
companies or associates controlled by the ▇▇▇▇▇▇ Group of Companies ("BGC"). It
is the company's belief that a substantial proportion of the $895,676 will be
written off following re-engagement with the auditors.
CONVERSION OF LOAN NOTES TO EQUITY
Of the $3,515,351 "Notes payable - affiliates" shown in Appendix B1, the holders
of these loan notes being ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇ have agreed to convert the outstanding principal and accrued interest to
equity as part of the proposed Series D preferred round (it being recognised
that
far blue soon to be a trading name of Tower Gate Finance Limited
Registered in England Number 03924137
Regulated by the FSA
TOWERGATE
this round may be superseded by the increase in the authorised share capital to
200M shares).
As of the 18th September 2003 the total value of the Notes payable was
$3,576,980.32 following the format of Appendix Bl.
These changes have been agreed and these agreements are shown in Attachment 3.
The result of these changes will be:
o Removal of the Notes payable figure from the balance sheet. As of 18th
September this amount would be $3,536,980.32.
o Repayment of $30,000 to ▇▇▇▇▇ Broadcasting Corporation (such repayment
taking place at the time of the $2M raise).
o Repayment of $10,000 to ▇▇▇▇▇ ▇▇▇▇▇▇ (such repayment taking place at
the time of the $2M raise).
CURRENT PORTION OF LONG TERM DEBT
The amount of $238,073 will be converted on the same terms as detailed earlier
for the loan notes.
The net result will be the reduction of the figure to $0.
far blue soon to be a trading name of Tower Gate Finance Limited
Registered in England Number 03924137
Regulated by the FSA
TOWERGATE
APPENDIX B3: PRO FORMA BALANCE SHEET AS AT 31st AUGUST 2003
As taken from Telemetrix's MIS:
PRO FORMA BALANCE SHEET As at 31st August 2003
Current assets
Accounts receivable $70,669
Other current assets $3,983 $74,652
Property and equipment, NBV $133,591
Construction in progress $1,114,901
Patents, net $34,659
T -3000 capitalised $288,193 $1,571,344
Other assets
Deposits $2,923
Licences $289,185
Receivable from affiliates $12,751 $304,859
----------
$1,950,855
==========
Liabilities and stockholders defecit
Accounts payable $1,985,424
Accrued expenses $223,939
A/c payable & accrued expenses - affiliates $397,274
Convertible deben1ure $1,200,000
Notes payable affiliate $7,563,704
Current portion of long term debt $238,073 $11,608,414
Long term debt $507,336
Stockholders deficit
Common stock $18,477
Paid in capita1 $46,808,483
Subscribed common shares $3,783,425
Accumulated (defecit) -$60,491,655
Deferred compensation -$283,625 -$10,164,895
----------
$1,950,855
==========
Those figures shown highlighted in green do not reflect the changes outlined in
Appendix B2.
The most significant difference is in the notes payable figure that incorporate
various transactions between BGC and Telemetrix Inc, which are due to be written
off in the ensuing audit.
far blue soon to be a trading name of Tower Gate Finance Limited
Registered in England Number 03924137
Regulated by the FSA
TOWERGATE
APPENDIX C1: CURRENT CAPITAL STRUCTURE
As of the date of signing, the current capital structure of the company is:
COMMON STOCK
COMMON STOCK Number Shareholdings
---------------------------------------------- ----------- -------------
Directors Hartford Holdings 3,962,004 21.4%
and Adara Investments 750,000 4.1%
Significant Wise Investments 500,000 2.7%
Investors Ionaian Investments 750,000 4.1%
Vintage Investments Ltd 1,725,000 9.3%
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ 137,500 0.7%
▇▇▇▇▇ ▇▇▇▇▇▇ (over 5%
beneficial ownership) 946,833 5.1%
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ 4,885,504 26.4%
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ 1,432,554 7.8%
▇▇▇ ▇▇▇▇▇ 50,000 0.3%
Subtotal 15,139,395 81.9%
----------------------- ----------- -------------
Public & Non-Private 3,336,791 18.1%
---------------------------------------------- ----------- -------------
TOTAL - issued and outstanding stock 18,476,186 100.0%
---------------------------------------------- ----------- -------------
Source: 10K (draft) 3151 December 2002
WARRANTS and OPTIONS
Instrument Name Amount Strike price Expires
-----------------------------------------------------------------------
Warrants 664,376 31/12/2003
-----------------------------------------------------------------------
TOTAL 664,376
-----------------------------------------------------------------------
Options ▇▇▇ ▇▇▇▇▇ 300,000 4.69 12/09/2003
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 50,000 4.75 30/04/2010
100,000 0.68 30/04/2011
▇▇▇▇▇▇▇ ▇▇▇▇▇ 50,000 4.75 30/04/2010
100,000 0.68 30/04/2011
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 50,000 4.75 30/04/2010
100,000 0.68 30/04/2011
-----------------------------------------------------------------------
TOTAL 750,000
-----------------------------------------------------------------------
Source: 10K (draft) 31 5t December 2002
far blue soon to be a trading name of Tower Gate Finance Limited
Registered in England Number 03924137
Regulated by the FSA
TOWERGATE
APPENDIX C2: ANTICIPATED CAPITAL STRUCTURE FOLLOWING FCC APPROVAL
Were the sums outstanding as at the 18th August 2003, to be converted into the
Series D preferred shares then the capital structure on a fully diluted basis
would be:
------------------------- ---------- ----------- -------------------
Ordinary Preferred
Capital Structure Shares shares TOTAL %
------------------------- ---------- ----------- ---------- ------
Hartford Holdings 594,301 16,839 611,139 2.7%
Ardara, Wyse & Ionian
Investments 300,000 8,500 308,500 1.4%
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 137,500 0 137,500 0.6%
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 3,584,151 101,551 3,685,702 16.4%
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 886,380 25,114 911,494 4.1%
▇▇▇▇▇ ▇▇▇▇▇▇ 632,002 17,907 649,909 2.9%
Vintage Investments 1,725,000 0 1,725,000 7.7%
TBC Stock Ownership 10,042,500 0 10,042,500 44.7%
------------------------- ---------- ----------- ---------- ------
Directors and significant
investors 17,901,834 169,910 18,071,744 80.5%
Public/Float 2,867,088 0 2,867,088 12.8%
Rest Cert Shares - Misc.
Ownership 1,513,095 0 1,513,095 6.7%
------------------------- ---------- ----------- -------------------
TOTAL 22,282,017 169,910 22,451,927 100.0%
------------------------- ---------- ----------- -------------------
As FCC approval has not yet been sought or given, the outstanding debts will
continue to increase as interest is paid on them leading to an increase in the
amount of preferred stock to be issued.
At the same time, the increase of the company's authorised shares to 200M may
negate the requirement to create the Series D preferred.
far blue soon to be a trading name of Tower Gate Finance Limited
Registered in England Number 03924137
Regulated by the FSA
TOWERGATE
APPENDIX D
Existing shareholder Existing Existing New S'holding
Ordinaries Preferred Ordinaries
-----------------------------------------------------------------------------------------------------
ILLUSTRATIVE Directors Hartford Holdings (a) 594,301 16,839 3,962,004 3.2%
FUTURE & Ardara, Wyse & Ionian Investments 300,000 8,500 2,000,000 1.6%
CAPITAL Large ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Chairman of the
STRUCTURE s/holders Board of Directors (b) 137,500 0 137,500 0.1%
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chief
Executive Officer 3,584,151 101,551 23,894,343 19.3%
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Secretary
and Director 886,380 25,114 5,909,202 4.8%
▇▇▇▇▇ ▇▇▇▇▇▇ (does not include
$30K note outstanding) 632,002 17,907 4,213,345 3.4%
Vintage Investments 1,725,000 0 1,725,000 1.4%
TBC Stock Ownership 10,042,500 0 10,042,500 8.1%
This is based -------------------------------------------------------------------------------
on Appendix C2 Subtotal 17,901,834 169,910 51,883,894 41.9%
and so should
be accepted to Public Pubic Float & Rest Ownership 2,867,088 0 15,781,842 12.8%
be an Restricted Certificated Shares
illustration - Misc. Ownership 1,513,095 0 8,328,808 6.7%
of potential -------------------------------------------------------------------------------
holdings.
Subtotal 4,380,183 0 24,110,650 19.5%
Noteholders Debenture holders - equity kicker 0 0 2,000,000 1.6%
Any such Pre-round investment 0 18,750 3,750,000 3.0%
transaction Investors 0 0 10,000,000 8.1%
will be subject far blue 0 0 20,000,000 16.2%
to Board and Option Pool 0 0 10,000,000 8.1%
FCC approval ▇▇▇▇▇▇▇ ▇▇▇▇▇
salaries and
incentives 0 10,000 2,000,000 1.6%
-----------------------------------------------------------------------------------------------------
TOTAL 22,282,017 198,660 123,744,544 100.0%
-----------------------------------------------------------------------------------------------------
Authorised 200,000,000
Issued shares 123,744,544
Authorised not issued 76,255,456
far blue soon to be a trading name of Tower Gate Finance Limited
Registered in England Number 03924137
Regulated by the FSA
TOWERGATE
APPENDIX E: OUTSTANDING LIABILITIES
As taken from the pro-forma accounts dated 31st August 2003. A total list of the
company's liabilities are:
LIABILITIES
-----------
Liabilities
Current Liabilities
Accounts Payable
Accounts Payable $1,985,423.72
-------------
Total Accounts Payable $1,985,423.72
Credit Cards
TBC - Elan Visa $582.64
TBC VISA $357.95
Valley Bank - $819.36
-------------
Total Credit Cards $1,759.95
Other Current Liabilities
Accrued Interest ▇▇▇▇▇ C Cards
Accr Int Advanta -$486.56
Accr Int Am Express Blue -$75.00
Accr Int Aria Provo -$151.74
Accr Int Capital One Plat MC -$1,016.83
Accr Int Capital One Visa -$224.10
Accr Int Citibank Plat MC 7495 -$636.14
Accr Int Juniper -$527.19
Accrlnt MBNA Platinum MC -$1,311.00
Accr Int Nextcard Visa -$398.70
Accr Int US Bank Visa -$541.92
Accr Int Wachovia Visa -$327.93
-------------
Total Accrued Interest ▇▇▇▇▇ C Cards -$5,697.11
Accrued Salaries $55,750.00
Interco - Solutions $397,273.58
Interco - Telemetrix, Inc.
Intercompany-INC FNB -$181.83
Interco - Telemetrix, Inc. - Other $7,118,047.25
-------------
Total Interco - Telemetrix, Inc. $7,117,865.42
Page 1
far blue soon to be a trading name of Tower Gate Finance Limited
Registered in England Number 03924137
Regulated by the FSA
TOWERGATE
LIABILITIES contd.
------------------
Nebraska City Sales Tax $66.00
Nebraska State Sales Tax $2,602.52
Nebraska Universal Service Fund $20,558.63
Note Payable - ▇▇▇▇▇▇▇ ▇▇▇▇▇ $1,416,965.16
Note Payable - TBC $198,873.71
Notes Payable - ▇▇▇▇▇ ▇▇▇▇▇▇ $30,000.00
Notes Payable - Valley Bank $3,020.68
Notes Payable ▇▇▇▇▇. C Cards
MT Advanta 0002 $10,287.44
MT American Express Blue $7,707.45
MT Aria Providian 1370 $4,293.03
MT Capital One Plat MC 1512 $20,911.11
MT Capital One Visa 9297 $4,123.49
MT Citibank Platinum MC 7495 $19,717.08
MT Juniper 1377 $17,783.10
MT MBNA Platinum 2786 $21,964.02
MT Nextcard Visa 6515 $13,922.58
MT US BankVisa $15,891.49
MT Wachovia Visa 4265 $7,264.21
Total Notes Payable ▇▇▇▇▇. C Cards $143,865.00
Payroll Liabilities $3,312.81
Sales Tax Payable -$432.66
Valley Bank. LOC - OEM -$723.76
Wyoming Sales Tax -$142.58
-------------
Total Other Current Liabilities $9,383,157.40
-------------
Total Current Liabilities $11,370,341.07
Long Term Liabilities
Customer Deposits Held $4,385.00
FCC Payable. C Block $694,097.50
FCC Payable. F Block $46,926.80
-------------
Total Long Term Liabilities $745,409.30
-------------
Total Liabilities $12,115,750.37
-------------
Page 1
Note that like the pro-forma summary accounts, these figures do not incorporate
any of the changes that will take effect following the audit by the new
accountants.
far blue soon to be a trading name of Tower Gate Finance Limited
Registered in England Number 03924137
Regulated by the FSA
TOWERGATE
APPENDIX F: ACTUAL AND OUTSTANDING LITIGATION
▇▇▇▇▇▇▇▇▇, Holyoke, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
A Professional Corpornlion, L.L.O.
Attorneys at Law
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Post Office Box 2424 ALLIANCE OFFICE
▇▇▇▇▇▇ ▇.Holyoke Scottsbluff, Nebraska 69363.2424 ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ Alliance, Nebraska 69301
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
May 28, 2003
▇▇▇▇▇ Winter ▇▇▇▇▇▇▇▇▇ & Co., L.L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Telemetrix Inc.
Dear Ladies and Gentlemen:
As requested by the referenced corporation, we are furnishing you with the
following information:
PENDING LITIGATION
▇▇▇▇▇ ▇. Telemetrix: Judgement was entered by default in the amount of
$70,167.52. Management claims that service of summons was not made. The court
file reflects that the Delaware registered agent was served. We have filed a
motion to vacate the judgement which is pending. While management desires to
vigorously pursue the motion, it more likely than not that the motion will be
denied and thus the judgement will stand.
THREATENED LITIGATION
The company is in a dispute with a Canadian firm called Echo Consultants, Ltd.,
with which there is an agreement to complete certain software development work.
Echo takes the position that their work was accepted by Telemetrix. Telemetrix
believes that the software does not work. The parties attempted to resolve the
matter and $25,000 was placed in escrow which Telemetrix claims. The procedural
questions are complex because of Canadian law, an applicable arbitration
provision and the refusal of Echo to negotiate. We believe that the probable
cost to recover the money makes the claim marginal and may open Telemetrix to
additional claims against it by Echo in an undeterminable amount.
far blue soon to be a trading name of Tower Gate Finance Limited
Registered in England Number 03924137
Regulated by the FSA
TOWERGATE
▇▇▇▇▇ Winter ▇▇▇▇▇▇▇▇▇ & Co., LLP
May 28, 2003
Page 2
UNASSERTED CLAIMS AND ASSESSMENTS
We are unaware of any unasserted possible claims or assessments against this
corporation. The corporation's understanding with respect to Statement of
Financial Account Standards No.5 is correct.
It should be noted that we are not general counsel to this corporation and are
not familiar with its business and operations. We are not securities lawyers and
are not familiar with the requirements for publicly owned companies. We are
asked periodically to undertake specific matters on behalf of this corporation.
As of December 31, 2OO2, the amount due us, including unbilled amounts, was
$1,690.62.
Very truly yours,
▇▇▇▇▇▇ ▇. Holyoke
TTH:cmm
cc: Telemetrix, Inc.
far blue soon to be a trading name of Tower Gate Finance Limited
Registered in England Number 03924137
Regulated by the FSA
TOWERGATE
ATTACHMENT 1: BUSINESS PLAN
The following business plan is a true and fair representation of the future
strategy of Telemetrix Inc. based on the company receiving a further investment
of $2M (two million US dollars).
The plan was created through meetings and discussions between ▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ and other members of the prospective management group. The
forecasts are based on current and expected future wireless telephony markets
and business trends, and on the knowledge of Messrs. ▇▇▇▇▇▇▇ and ▇▇▇▇▇ in those
areas.
Signed and dated:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President 24th Sept 2003
▇▇▇▇▇▇▇ ▇▇▇▇▇ Dated
Director
Telemetrix Inc
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ 24th Sept 2003
▇▇▇▇▇ ▇▇▇▇▇▇▇ Dated
far blue soon to be a trading name of Tower Gate Finance Limited
Registered in England Number 03924137
Regulated by the FSA
TOWERGATE
ATTACHMENT 2: COMPANY CERTIFICATES
AGENTS AND CORPORATIONS, INC.
PROFESSIONAL CORPORATION SERVICES SINCE 1974
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ESQUIRE PHONE (▇▇▇) ▇▇▇-▇▇▇▇
PRESIDENT (▇▇▇) ▇▇▇-▇▇▇▇
FAX (▇▇▇) ▇▇▇-▇▇▇▇
SUITE 600, ONE COMMERCE CENTER E-MAIL ADDRESS:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇.▇▇▇▇▇▇.▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
July 16, 2003
Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇
P O Box 17
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
RE: Telemetrix Inc.
Dear ▇▇. ▇▇▇▇▇:
Enclosed for your records is the date-stamped copy of the Certificate of Renewal
and Revival which was filed and became effective on July 15, 2003 with the
Office of the Secretary of State of Delaware.
You should retain this document with the corporation records.
Thank you for the opportunity to be of service.
Yours truly,
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
DELAWARE IS THE FIRST STATE FOR INCORPORATION
far blue soon to be a trading name of Tower Gate Finance Limited
Registered in England Number 03924137
Regulated by the FSA
TOWERGATE
ATTACHMENT 2: Contd
COVER SHEET
INCORPORATION SECTION
GENERAL INFORMATION
STATE OF DELAWARE 303/739-2073
INCORPORATION SECTION DEPARTMENT OF STATE NAME RESERVATION
P.O. BOX 390 ▇▇▇▇▇▇▇ ▇▇▇▇▇ Windsor, Secretary 303/759-5800
FRANCHISE TAX SECTION DIVISION OF CORPORATIONS 800/420-5042
▇.▇. ▇▇▇ ▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ BUILDING FRANCHISE TAX SECTION
UNIFORM COMMERCIAL CODE DUKE OF YORK STREET 303/739-4228
▇.▇. ▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ UNIFORM COMMERCIAL CODE
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 303/739-4278
********************************************************************************
SRV#: 030462084 Agent: 9030670 File #: 2019301 Package#: 000279631
Priority: 6 Mail Code F
User: SDOCDJM
Comments:
Attn:
Agent: AGENTS AND CORPORATIONS, INC.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
ONE COMMERCE CENTER
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Items Included: Item Type Copies
Image 001
********************************************************************************
far blue soon to be a trading name of Tower Gate Finance Limited
Registered in England Number 03924137
Regulated by the FSA
TOWERGATE
ATTACHMENT 2: Contd
State of Delaware
Secretary of State
Division of Corporations
Delivered 11:05 AM 07/15/2003
FILED 11:04 AM 07-15-2003
SRV 030462084 - 2019301 FILE
STATE OF DELAWARE
CERTIFICATE FOR RENEWAL AND REVIVAL
OF
Telemetrix Inc.
Telemetrix Inc., a corporation organized under the laws of Delaware, the charter
of which was forfeited for failure to obtain a registered agent, now desires to
procure a restoration, renewal and revival of its charter, and hereby certifies
as follows:
1. The name of the corporation if Telemetrix Inc.
2. Its registered office in the State of Delaware if located at ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ of ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
the name and address of its registered agent is Agents and Corporations,
Inc., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ of ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
3. The date of filing of the original Certificate of Incorporation in Delaware
was October 17, 1983.
4. The date when restoration, renewal, and revival of the charter of this
company is to commence is the October 23, 2002, at which time its charter
became inoperative and forfeited for failure to obtain a registered agent
and this certificate for renewal and revival is filed by authority of the
duly elected directors of the corporation in accordance with the laws of
the State of Delaware.
IN TESTIMONY WHEREOF, and in compliance with the provisions of Section 312 of
the General Corporation Law of the State of Delaware, as amended, providing for
the renewal, extension and restoration of charters, the last and acting
authorized officer hereunto set his/her hand to this certificate the 14th day of
July, 2003.
Telemetrix Inc.
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Authorized Officer
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Pres.
Print Name and Title
far blue soon to be a trading name of Tower Gate Finance Limited
Registered in England Number 03924137
Regulated by the FSA
TOWERGATE
ATTACHMENT 3: AGREEMENT TO DEBT TO EQUITY SWAP
EXCHANGE AND CONVERSION AGREEMENT
BETWEEN
TELEMETRIX INC.
AND
ARDARA INVESTMENTS, LTD
THIS EXCHANGE AND CONVERSION AGREEMENT (hereinafter called this "Agreement")
made and entered into as of this 30th day of May, 2003 by and among
TELEMETRIX INC., a Delaware corporation with offices at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Company"), and Ardara Investments Ltd.,
Harbour Trust Co. Ltd, One Capital Place, P.O. Box 1787 GT, Grand
Cayman, Cayman Islands, B.W.I., ("ARDARARDARA").
WHEREAS, the Company has been organized as a Delaware corporation for the
primary purpose of engaging in the telecommunications business; and
WHEREAS, ARDARA holds stock in the Company;
WHEREAS, the Company has agreed upon the terms and conditions set forth herein,
to an exchange of the Common Stock held by ARDARA for new issue preferred
capital stock of the Company; and
WHEREAS, the Company and ARDARA mutually desire to set forth their agreements
and understandings with respect to such exchange of common capital stock for new
issue preferred capital stock of the Company of the Company and to provide for
certain rights of ARDARA in connection therewith;
NOW, THEREFORE, for and in consideration of the premises and of the mutual
agreements, provisions and covenants herein contained and the mutual benefits
derived therefrom, the parties hereto do covenant and agree as follows:
1. Capital Structure of the Company. The Company is a Delaware corporation
authorized by its Certificate of Incorporation, to issue 25,000,000 shares
of Common Stock ("Common Stock"), par value $.001 per share, of which
18,486,176 are outstanding and 5,000,000 shares of Preferred Stock, par
value of $.001 per share, of which 0 shares are outstanding.
2. Exchange of Common Stock capital stock for new issue preferred shares of
stock. As of the date of this agreement, ARDARA shall surrender to the
principal office of the Company (or such other office or agency of the
Company as the Company may designate by notice in writing to the holder or
holders of the Common Stock of the Company) certificates representing
2,000,000 shares of Common Stock which have been issued by the Company to
ARDARA, successors or assigns, and shall exchange without further cost
750,000 shares of Common Stock for 112,500 shares of Common Stock and
3187.5 shares of Preferred Stock. This agreement does not contemplate the
surrender of any shares of stock which are held by ARDARA and which were
not a part of any transactions between ARDARA and the Company, and which
shares are held by ARDARA as either restricted or unrestricted shares of
Common Stock.
3. Authorization of Issuance of Preferred Stock. This exchange calls for the
issuance of Preferred Stock. The Company shall promptly take such steps as
may be necessary or appropriate under the laws of Delaware and the federal
securities laws to permit the issuance of the Preferred Stock. If the
authorization and issuance of such Preferred Stock requires an amendment to
the Company's Certificate of Incorporation and the adoption by the
stockholders of such amendment, the Company shall immediately initiate the
necessary and required documents and corporate meetings. The Preferred
Stock shall be non-voting stock.
4. Option of ARDARA for Registration or Exchange of Stock. At any time, and
subject to the terms set forth in paragraph 5 of this document, ARDARA
shall have the right by providing written notice to the Company to have the
Company register in accordance with Paragraph 6 hereof all or any part of
the Common Stock owned by ARDARA. if any, held by ARDARA on a registration
statement in compliance with the Securities Act of 1933 in order to permit
the sale or distribution of such stock.
5. Registration of Stock. If the Company shall receive from ARDARA a written
request that the Company register Common Stock under a registration
statement in compliance with the Securities Act of 1933 as provided in
paragraph 6 hereof, in order to permit the sale or distribution of such
stock, the Company, as soon as practicable after giving written notice to
ARDARA (which notice shall be given by the Company within ten (10) days
after receipt of the written request for registration from ARDARA) that it
has elected to file a registration statement for the Common Stock held by
ARDARA pursuant to this paragraph, will use its best efforts to effect such
registration and qualify the Common Stock in such jurisdictions as may be
requested by ARDARA. Any such registration of shares requested by ARDARA
may include shares of Common Stock owned by other shareholders of the
Company. 100,000 (One Hundred Thousand) shares in the aggregate is the
minimum number of shares that may be included in any registration. Each
selling shareholder shall bear a pro rata portion of all costs and expenses
paid to third parties (other than those paid to any affiliate or subsidiary
of the Company or any shareholder thereof) for registration and filing
fees, printing expenses, fees and disbursements of counsel, and any
accounting fees incident to or required by the registration or
qualification. Underwriting discounts and commissions shall be the pro rata
expense of each selling shareholder. The Company shall keep effective and
maintain any such registration statement for such period and to the extent
as ARDARA may deem necessary for the purpose of selling or disposing of the
shares, and from time to time during such period shall amend or supplement
the prospectus used in connection therewith to the extent necessary in
order to comply with the applicable law. The Company shall be required to
comply with the above registration provisions only once, except that if
ARDARA receives a Warrant which it is not entitled to exercise until after
the registration statement has become effective, then ARDARA shall be
entitled to a second registration to cover Common Stock acquired by it upon
exercise of the Warrant an any other shares of Common Stock then still
owned by ARDARA.
Should the Company at any time seek to register all or any part of its
Common Stock under a registration statement in compliance with the
Securities Act of 1933, without having been requested to do so by ARDARA,
in accordance with this paragraph, ARDARA may (in addition to its
registration rights set forth above) add any or all of such shares of the
Company as it may own to any such registration. The Company shall bear all
costs and expenses for registration and filing fees, printing expenses,
fees and disbursements of all counsel and any accounting fees, including
expenses of any special audit, incident to or required by any registration
not requested by ARDARA. Underwriting discounts and commissions shall be
the pro rata expense of such selling shareholder.
6. Indemnification. Prior to the effective date of any registration statement
relating to any of the shares of Common Stock owned by ARDARA, the Company
and ARDARA shall enter into an agreement providing for reciprocal
indemnification against any losses, claims, damages or liabilities to which
the Company or ARDARA (or controlling persons thereof) may become subject
under the Securities Act of 1933, as amended, or otherwise, in the form of
reciprocal indemnification provisions which customarily appear in
underwriting agreements used by reputable investment bankers.
7. Acquisition for investment. ARDARA hereby agrees that the shares of Common
Stock are being acquired for its own account and not with a view to the
distribution or resale thereof and the same shall not be sold or
transferred in the absence of an effective registration statement under the
Securities Act of 1933 unless an exemption therefrom is available.
8. Agreements Relating to Rule 144. If and so long as the Company has
securities registered pursuant to the Securities Act of 1933, the Company
will (a) file reports in compliance with the Securities Exchange Act of
1934, and (b) at its expense, forthwith upon the request of ARDARA, deliver
to ARDARA a certificate, signed by the Company's principal financial
officer, stating (i) Company's name, address and telephone number
(including area code), (ii) the Company's Securities and Exchange
identification number, (iii) the Company's Securities and Exchange
Commission file number, (iv) the number of shares of stock (and other
securities) outstanding as shown by the most recent report or statement
published by the Company and (v) whether the Company has filed the reports
required to be filed under the Securities Exchange Act of 1934 for a period
of at least ninety (90) days prior to the date of such certificate and in
addition has filed the most recent annual report required to be filed
thereunder. If at any time, subsequent to the exchange of ARDARA's notes
for Common Stock, the Company is not required to file reports in compliance
with either Section 13 or Section 15(d) of the Securities Exchange Act of
1934, the Company, at its expense will, forthwith upon the written request
of ARDARA, make available adequate current public information with respect
to the Company within the meaning of paragraph (c)(2) of Rule 144 of the
General Rules and Regulations promulgated under the Securities Act of 1933.
9. Transfer of Common Stock by ARDARA. It is expected that ARDARA shall and
ARDARA shall at any time be permitted without any approval, consent or
action of the Company to, sell, transfer or assign all or any part of the
Common Stock or other voting or non-voting equity securities of the Company
then owned by ARDARA to other individuals, corporations or other entities;
provided, however, in the event of a sale, transfer or assignment by ARDARA
of any of its shares of Common Stock, ARDARA shall, in the absence of an
effective registration statement under the Securities Act of 1933 covering
such shares, provide the Company with an opinion of counsel, satisfactory
in form and substance to the Company and its counsel, to the effect that
such sale, transfer or assignment will not require that such securities be
registered under the Securities Act of 1933. Any such assignee, in
proportion to its ownership of the Common Stock or other voting or
non-voting equity securities, shall be entitled to exercise or acquire all
of the rights or interests which may be exercised or acquired by ARDARA
pursuant to the terms of this Agreement; provided, however, that the right
to request mandatory registration under paragraph 5 shall be exercisable
only by the then owners of a majority interest of the Common Stock
previously held by ARDARA.
10. Notices and Addresses. All notices or other communications in connection
herewith shall be in writing and shall be mailed by first class or air
mail, postage prepaid to the following addresses and to the attention of
the party in question:
Harbour Trust Co., Ltd.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
Cayman Islands, B.W.I.
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Or at such other addresses as may have been furnished to the other parties
in writing.
11. No additional Classes of Common Stock. The Company shall not create any
additional classes of common capital stock.
12. Termination of Agreement. This Agreement shall terminate only upon the
exercise by ARDARA of all of its rights for registration or exchange of
stock as set forth in paragraphs 2, 4 and 5 hereof or by the mutual written
consent of the Company and ARDARA.
13. Amendments. This agreement may be amended only by written amendment signed
by ARDARA and the Company.
14. Complete Agreement. This Agreement contains all of the Agreements and
understandings between the parties here-to relative to the transaction
contemplated herein.
15. Choice of Law. This agreement and all matters pertaining thereto shall be
construed under the laws of the State of Nebraska.
16. Signatures. This Agreement may be executed in counterparts, with each such
duly executed counterpart having the same validity, force and effect as the
original.
17. Facsimile. A facsimile copy of this document and any signatures shall be
considered for all purposes and intent as legal and binding originals.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the
date first above written.
Ardara Investments, Ltd. Telemetrix Inc.
/s/ illegible /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------- ----------------------------
By:For and on behalf of Bluejay Investments, Ltd. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
and Cardinal Investments Limited, Directors
Telemetrix Inc.
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Secretary
far blue soon to be a trading name of Tower Gate Finance Limited
Registered in England Number 03924137
Regulated by the FSA
TOWERGATE
EXCHANGE AND CONVERSION AGREEMENT
BETWEEN
TELEMETRIX INC.
AND
▇▇▇▇▇▇ CAPITAL MANAGEMENT
THIS EXCHANGE AND CONVERSION AGREEMENT (hereinafter called this "Agreement")
made and entered into as of this 26 day of May, 2003 by and among TELEMETRIX
INC., a Delaware corporation with offices at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ("the Company"), and ▇▇▇▇▇▇ CAPITAL MANAGEMENT, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ("BCM").
WHEREAS, the Company has been organized as a Delaware corporation for the
primary purpose of engaging in the telecommunications business; and
WHEREAS, the Company and BCM have entered into certain loan agreements
("notes"), a schedule of which is identified as Exhibit 1 and is attached to and
made a part of this agreement; and
WHEREAS, the Company has agreed upon the terms and conditions set forth herein,
to an exchange of the notes held by BCM for shares of the common and preferred
capital stock of the Company; and
WHEREAS, the Company and BCM mutually desire to set forth their agreements and
understandings with respect to such exchange of notes for shares of the common
capital stock of the Company and to provide for certain rights of BCM in
connection therewith;
NOW, THEREFORE, for and in consideration of the premises and of the mutual
agreements, provisions and covenants herein contained and the mutual benefits
derived therefrom, the parties hereto do covenant and agree as follows:
1. Capital Structure of the Company. The Company is a Delaware corporation
authorized by its Certificate of Incorporation, to issue 25,000,000 shares
of Common Stock ("Common Stock"), par value $.001 per share, of which
18,486,176 are outstanding and 5,000,000 shares of Preferred Stock, par
value of $.001 per share, of which 0 shares are outstanding.
2. Exchange of notes for Common Stock. As of the date of this agreement, BCM
shall surrender to the principal office of the Company (or such other
office or agency of the Company as the Company may designate by notice in
writing to the holder or holders of the Common Stock of the Company) all
certificates representing all shares of Common Stock which have been issued
by the Company to ▇▇▇▇▇▇ Capital Management, ▇▇▇▇▇ ▇▇▇▇▇▇, his heirs,
successors or assigns which correspond or were issued in connection or
association with the schedule of notes attached hereto as Exhibit 1, and
shall exchange without further cost all notes and shares of Common Stock
issued as consideration for any of the notes listed in Exhibit 1, for
632,002 shares of Common Stock of the Company and 17,906.7 shares of
Preferred Stock. This agreement does not contemplate the surrender of any
shares of stock which are held by BCM and which were not a part of any
transactions between BCM and the Company, and which shares are held by BCM
as either restricted or unrestricted shares of Common Stock.
3. Authorization of Issuance of Preferred Stock. This exchange calls for the
issuance of Preferred Stock. The Company shall promptly take such steps as
may be necessary or appropriate under the laws of Delaware and the federal
securities laws to permit the issuance of the Preferred Stock. If the
authorization and issuance of such Preferred Stock requires an amendment to
the Company's Certificate of Incorporation and the adoption by the
stockholders of such amendment, the Company shall immediately initiate the
necessary and required documents and corporate meetings. The Preferred
Stock shall be non-voting stock.
4. Option of BCM for Registration or Exchange of Stock. At any time, and
subject to the terms set forth in paragraph 5 of this document, BCM shall
have the right by providing written notice to the Company to have the
Company register in accordance with Paragraph 6 hereof all or any part of
the Common Stock owned by BCM. if any, held by BCM on a registration
statement in compliance with the Securities Act of 1933 in order to permit
the sale or distribution of such stock.
5. Registration of Stock. If the Company shall receive from BCM a written
request that the Company register Common Stock under a registration
statement in compliance with the Securities Act of 1933 as provided in
paragraph 6 hereof, in order to permit the sale or distribution of such
stock, the Company, as soon as practicable after giving written notice to
BCM (which notice shall be given by the Company within ten (10) days after
receipt of the written request for registration from BCM) that it has
elected to file a registration statement for the Common Stock held by BCM
pursuant to this paragraph, will use its best efforts to effect such
registration and qualify the Common Stock in such jurisdictions as may be
requested by BCM. Any such registration of shares requested by BCM may
include shares of Common Stock owned by other shareholders of the Company.
100,000 (One Hundred Thousand) shares in the aggregate is the minimum
number of shares that may be included in any registration. Each selling
shareholder shall bear a pro rata portion of all costs and expenses paid to
third parties (other than those paid to any affiliate or subsidiary of the
Company or any shareholder thereof) for registration and filing fees,
printing expenses, fees and disbursements of counsel, and any accounting
fees incident to or required by the registration or qualification.
Underwriting discounts and commissions shall be the pro rata expense of
each selling shareholder. The Company shall keep effective and maintain any
such registration statement for such period and to the extent as BCM may
deem necessary for the purpose of selling or disposing of the shares, and
from time to time during such period shall amend or supplement the
prospectus used in connection therewith to the extent necessary in order to
comply with the applicable law. The Company shall be required to comply
with the above registration provisions only once, except that if BCM
receives a Warrant which it is not entitled to exercise until after the
registration statement has become effective, then BCM shall be entitled to
a second registration to cover Common Stock acquired by it upon exercise of
the Warrant an any other shares of Common Stock then still owned by BCM.
Should the Company at any time seek to register all or any part of its
Common Stock under a registration statement in compliance with the
Securities Act of 1933, without having been requested to do so by BCM, in
accordance with this paragraph, BCM may (in addition to its registration
rights set forth above) add any or all of such shares of the Company as it
may own to any such registration. The Company shall bear all costs and
expenses for registration and filing fees, printing expenses, fees and
disbursements of all counsel and any accounting fees, including expenses of
any special audit, incident to or required by any registration not
requested by BCM. Underwriting discounts and commissions shall be the pro
rata expense of such selling shareholder.
6. Indemnification. Prior to the effective date of any registration statement
relating to any of the shares of Common Stock owned by BCM, the Company and
BCM shall enter into an agreement providing for reciprocal indemnification
against any losses, claims, damages or liabilities to which the Company or
BCM (or controlling persons thereof) may become subject under the
Securities Act of 1933, as amended, or otherwise, in the form of reciprocal
indemnification provisions which customarily appear in underwriting
agreements used by reputable investment bankers.
7. Acquisition for investment. BCM hereby agrees that the shares of Common
Stock are being acquired for its own account and not with a view to the
distribution or resale thereof and the same shall not be sold or
transferred in the absence of an effective registration statement under the
Securities Act of 1933 unless an exemption therefrom is available.
8. Agreements Relating to Rule 144. If and so long as the Company has
securities registered pursuant to the Securities Act of 1933, the Company
will (a) file reports in compliance with the Securities Exchange Act of
1934, and (b) at its expense, forthwith upon the request of BCM, deliver to
BCM a certificate, signed by the Company's principal financial officer,
stating (i) Company's name, address and telephone number (including area
code), (ii) the Company's Securities and Exchange identification number,
(iii) the Company's Securities and Exchange Commission file number, (iv)
the number of shares of stock (and other securities) outstanding as shown
by the most recent report or statement published by the Company and (v)
whether the Company has filed the reports required to be filed under the
Securities Exchange Act of 1934 for a period of at least ninety (90) days
prior to the date of such certificate and in addition has filed the most
recent annual report required to be filed thereunder. If at any time,
subsequent to the exchange of BCM's notes for Common Stock, the Company is
not required to file reports in compliance with either Section 13 or
Section 15(d) of the Securities Exchange Act of 1934, the Company, at its
expense will, forthwith upon the written request of BCM, make available
adequate current public information with respect to the Company within the
meaning of paragraph (c)(2) of Rule 144 of the General Rules and
Regulations promulgated under the Securities Act of 1933.
9. Transfer of Common Stock by BCM. It is expected that BCM shall and BCM
shall at any time be permitted without any approval, consent or action of
the Company to, sell, transfer or assign all or any part of the Common
Stock or other voting or non-voting equity securities of the Company then
owned by BCM to other individuals, corporations or other entities;
provided, however, in the event of a sale, transfer or assignment by BCM of
any of its shares of Common Stock, BCM shall, in the absence of an
effective registration statement under the Securities Act of 1933 covering
such shares, provide the Company with an opinion of counsel, satisfactory
in form and substance to the Company and its counsel, to the effect that
such sale, transfer or assignment will not require that such securities be
registered under the Securities Act of 1933. Any such assignee, in
proportion to its ownership of the Common Stock or other voting or
non-voting equity securities, shall be entitled to exercise or acquire all
of the rights or interests which may be exercised or acquired by BCM
pursuant to the terms of this Agreement; provided, however, that the right
to request mandatory registration under paragraph 5 shall be exercisable
only by the then owners of a majority interest of the Common Stock
previously held by BCM.
10. Notices and Addresses. All notices or other communications in connection
herewith shall be in writing and shall be mailed by first class or air
mail, postage prepaid to the following addresses and to the attention of
the party in question:
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ Capital Management
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
Or at such other addresses as may have been furnished to the other parties
in writing.
11. No additional Classes of Common Stock. The Company shall not create any
additional classes of common capital stock.
12. Termination of Agreement. This Agreement shall terminate only upon the
exercise by BCM of all of its rights for registration or exchange of stock
as set forth in paragraphs 2, 4 and 5 hereof or by the mutual written
consent of the Company and BCM.
13. Amendments. This agreement may be amended only by written amendment signed
by BCM and the Company.
14. Complete Agreement. This Agreement contains all of the Agreements and
understandings between the parties here-to relative to the transaction
contemplated herein.
15. Choice of Law. This agreement and all matters pertaining thereto shall be
construed under he laws of the State of Nebraska.
16. Signatures. This Agreement may be executed in counterparts, with each such
duly executed counterpart having the same validity, force and effect as the
original.
17. Facsimile. A facsimile copy of this document and any signatures shall be
considered for all purposes and intent as legal and binding originals.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the
date first above written.
▇▇▇▇▇▇ Capital Management Telemetrix Inc.
/s/▇▇▇▇▇ ▇▇▇▇▇▇ /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------- -----------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
Telemetrix Inc. Telemetrix Inc.
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------- ----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chairman
Secretary Board of Directors
EXHIBIT 1
Total 03/31/2003
Date of Interest Accrued Share price
Note # Loan Rate Principal Int. Total at $0.15
--------------------------------------------------------------------------------------------------
30-01 (31) 04/06/2001 ▇▇▇▇▇▇ Capital Mgmt 10.00% 75,000.00 15,750.00 90,750.00 605,000
30-02 (32) 04/30/2000 ▇▇▇▇▇▇ Capital Mgmt 10.00% 50,000.00 10,500.00 60,500.00 403,333
30-03 (33) 05/30/2001 ▇▇▇▇▇▇ Capital Mgmt 10.00% 30,000.00 6,300.00 36,300.00 242,000
30-04 (34) 06/14/2001 ▇▇▇▇▇▇ Capital Mgmt 10.00% 80,000.00 16,800.00 96,800.00 645,333
30-05 07/02/2001 ▇▇▇▇▇▇ Capital Mgmt 10.00% 25,000.00 5,250.00 30,250.00 201,667
30-06 07/31/2001 ▇▇▇▇▇▇ Capital Mgmt 10.00% 64,000.00 13,440.00 77,440.00 516,267
30-07 08/21/2001 ▇▇▇▇▇▇ Capital Mgmt 10.00% 25,000.00 5,250.00 30,250.00 201,667
30-08 10/26/2001 ▇▇▇▇▇▇ Capital Mgmt 10.00% 20,105.64 4,222.18 24,327.82 162,185
067 01/30/2002 ▇▇▇▇▇▇ Capital Mgmt 10.00% 50,000.00 10,500.00 60,500.00 403,333
071 07/12/2002 ▇▇▇▇▇▇ Capital Mgmt 10.00% 24,963.59 1,816.79 26,780.38 178,536
072 07/30/2002 ▇▇▇▇▇▇ Capital Mgmt 10.00% 25,000.00 1,694.44 26,694.44 177,963
073 08/06/2002 ▇▇▇▇▇▇ Capital Mgmt 10.00% 8,000.00 526.67 8,526.67 56,844
074 08/21/2002 ▇▇▇▇▇▇ Capital Mgmt 10.00% 35,000.00 2,158.33 37,158.33 247,722
075 09/04/2002 ▇▇▇▇▇▇ Capital Mgmt 10.00% 16,000.00 924.44 16,924.44 112,830
11/07/2002 ▇▇▇▇▇▇ Capital Mgmt 10.00% 3,500.00 140.00 3,640.00 24,267
12/06/2002 ▇▇▇▇▇▇ Capital Mgmt 10.00% 5,000.00 159.72 5,159.72 34,398
Totals 95,432.59 632,001.82 4,213,345
*Total Shares 4,213,345
*This number is after adjustment to the conversion value of the notes,
reflecting an interest rate of 10% on all notes, interest computed on an
annually compounded basis through March 31, 2003.
far blue soon to be a trading name of Tower Gate Finance Limited
Registered in England Number 03924137
Regulated by the FSA
TOWERGATE
EXCHANGE AND CONVERSION AGREEMENT
BETWEEN
TELEMETRIX INC.
AND
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
THIS EXCHANGE AND CONVERSION AGREEMENT (hereinafter called this "Agreement")
made and entered into as of this 26 day of May, 2003 by and among TELEMETRIX
INC., a Delaware corporation with offices at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ("the Company"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ an individual residing at ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("▇▇▇▇▇▇").
WHEREAS, the Company has been organized as a Delaware corporation for the
primary purpose of engaging in the telecommunications business; and
WHEREAS, the Company and ▇▇▇▇▇▇ have entered into certain loan agreements
("notes"), a schedule of which is identified as Exhibit 1 and is attached to and
made a part of this agreement; and
WHEREAS, the Company has agreed upon the terms and conditions set forth herein,
to an exchange of the notes held by ▇▇▇▇▇▇ for shares of the common and
preferred capital stock of the Company; and
WHEREAS, the Company and ▇▇▇▇▇▇ mutually desire to set forth their agreements
and understandings with respect to such exchange of notes for shares of the
common capital stock of the Company and to provide for certain rights of ▇▇▇▇▇▇
in connection therewith;
NOW, THEREFORE, for and in consideration of the premises and of the mutual
agreements, provisions and covenants herein contained and the mutual benefits
derived therefrom, the parties hereto do covenant and agree as follows:
1. Capital Structure of the Company. The Company is a Delaware corporation
authorized by its Certificate of Incorporation, to issue 25,000,000 shares
of Common Stock ("Common Stock"), par value $.001 per share, of which
18,486,176 are outstanding and 5,000,000 shares of Preferred Stock, par
value of $.001 per share, of which 0 shares are outstanding.
2. Exchange of notes for Common Stock. As of the date of this agreement,
▇▇▇▇▇▇ shall surrender to the principal office of the Company (or such
other office or agency of the Company as the Company may designate by
notice in writing to the holder or holders of the Common Stock of the
Company) all certificates representing all shares of Common Stock which
have been issued by the Company to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, his heirs, successors
or assigns which correspond or were issued in connection or association
with the schedule of notes attached hereto as Exhibit 1, and shall exchange
without further cost all notes and shares of Common Stock issued as
consideration for any of the notes listed in Exhibit 1, as well as shares
issued on the date of reorganization as consideration and shares issued for
services for 886,380 shares of Common Stock of the Company and 25,114.1
shares of Preferred Stock. This agreement does not contemplate the
surrender of any shares of stock which are held by ▇▇▇▇▇▇ and which were
not a part of any transactions between ▇▇▇▇▇▇ and the Company, and which
shares are held by ▇▇▇▇▇▇ as either restricted or unrestricted shares of
Common Stock.
3. Authorization of Issuance of Preferred Stock. This exchange calls for the
issuance of Preferred Stock. The Company shall promptly take such steps as
may be necessary or appropriate under the laws of Delaware and the federal
securities laws to permit the issuance of the Preferred Stock. If the
authorization and issuance of such Preferred Stock requires an amendment to
the Company's Certificate of Incorporation and the adoption by the
stockholders of such amendment, the Company shall immediately initiate the
necessary and required documents and corporate meetings. The Preferred
Stock shall be non-voting stock.
4. Option of ▇▇▇▇▇▇ for Registration or Exchange of Stock. At any time, and
subject to the terms set forth in paragraph 5 of this document, ▇▇▇▇▇▇
shall have the right by providing written notice to the Company to have the
Company register in accordance with Paragraph 6 hereof all or any part of
the Common Stock owned by ▇▇▇▇▇▇. if any, held by ▇▇▇▇▇▇ on a registration
statement in compliance with the Securities Act of 1933 in order to permit
the sale or distribution of such stock.
5. Registration of Stock. If the Company shall receive from ▇▇▇▇▇▇ a written
request that the Company register Common Stock under a registration
statement in compliance with the Securities Act of 1933 as provided in
paragraph 6 hereof, in order to permit the sale or distribution of such
stock, the Company, as soon as practicable after giving written notice to
▇▇▇▇▇▇ (which notice shall be given by the Company within ten (10) days
after receipt of the written request for registration from ▇▇▇▇▇▇) that it
has elected to file a registration statement for the Common Stock held by
▇▇▇▇▇▇ pursuant to this paragraph, will use its best efforts to effect such
registration and qualify the Common Stock in such jurisdictions as may be
requested by ▇▇▇▇▇▇. Any such registration of shares requested by ▇▇▇▇▇▇
may include shares of Common Stock owned by other shareholders of the
Company. 100,000 (One Hundred Thousand) shares in the aggregate is the
minimum number of shares that may be included in any registration. Each
selling shareholder shall bear a pro rata portion of all costs and expenses
paid to third parties (other than those paid to any affiliate or subsidiary
of the Company or any shareholder thereof) for registration and filing
fees, printing expenses, fees and disbursements of counsel, and any
accounting fees incident to or required by the registration or
qualification. Underwriting discounts and commissions shall be the pro rata
expense of each selling shareholder. The Company shall keep effective and
maintain any such registration statement for such period and to the extent
as ▇▇▇▇▇▇ may ▇▇▇▇ necessary for the purpose of selling or disposing of the
shares, and from time to time during such period shall amend or supplement
the prospectus used in connection therewith to the extent necessary in
order to comply with the applicable law. The Company shall be required to
comply with the above registration provisions only once, except that if
▇▇▇▇▇▇ receives a Warrant which it is not entitled to exercise until after
the registration statement has become effective, then ▇▇▇▇▇▇ shall be
entitled to a second registration to cover Common Stock acquired by it upon
exercise of the Warrant an any other shares of Common Stock then still
owned by ▇▇▇▇▇▇.
Should the Company at any time seek to register all or any part of its
Common Stock under a registration statement in compliance with the
Securities Act of 1933, without having been requested to do so by ▇▇▇▇▇▇,
in accordance with this paragraph, ▇▇▇▇▇▇ may (in addition to its
registration rights set forth above) add any or all of such shares of the
Company as it may own to any such registration. The Company shall bear all
costs and expenses for registration and filing fees, printing expenses,
fees and disbursements of all counsel and any accounting fees, including
expenses of any special audit, incident to or required by any registration
not requested by ▇▇▇▇▇▇. Underwriting discounts and commissions shall be
the pro rata expense of such selling shareholder.
6. Indemnification. Prior to the effective date of any registration statement
relating to any of the shares of Common Stock owned by ▇▇▇▇▇▇, the Company
and ▇▇▇▇▇▇ shall enter into an agreement providing for reciprocal
indemnification against any losses, claims, damages or liabilities to which
the Company or ▇▇▇▇▇▇ (or controlling persons thereof) may become subject
under the Securities Act of 1933, as amended, or otherwise, in the form of
reciprocal indemnification provisions which customarily appear in
underwriting agreements used by reputable investment bankers.
7. Acquisition for investment. ▇▇▇▇▇▇ hereby agrees that the shares of Common
Stock are being acquired for its own account and not with a view to the
distribution or resale thereof and the same shall not be sold or
transferred in the absence of an effective registration statement under the
Securities Act of 1933 unless an exemption therefrom is available.
8. Agreements Relating to Rule 144. If and so long as the Company has
securities registered pursuant to the Securities Act of 1933, the Company
will (a) file reports in compliance with the Securities Exchange Act of
1934, and (b) at its expense, forthwith upon the request of ▇▇▇▇▇▇, deliver
to ▇▇▇▇▇▇ a certificate, signed by the Company's principal financial
officer, stating (i) Company's name, address and telephone number
(including area code), (ii) the Company's Securities and Exchange
identification number, (iii) the Company's Securities and Exchange
Commission file number, (iv) the number of shares of stock (and other
securities) outstanding as shown by the most recent report or statement
published by the Company and (v) whether the Company has filed the reports
required to be filed under the Securities Exchange Act of 1934 for a period
of at least ninety (90) days prior to the date of such certificate and in
addition has filed the most recent annual report required to be filed
thereunder. If at any time, subsequent to the exchange of ▇▇▇▇▇▇'▇ notes
for Common Stock, the Company is not required to file reports in compliance
with either Section 13 or Section 15(d) of the Securities Exchange Act of
1934, the Company, at its expense will, forthwith upon the written request
of ▇▇▇▇▇▇, make available adequate current public information with respect
to the Company within the meaning of paragraph (c)(2) of Rule 144 of the
General Rules and Regulations promulgated under the Securities Act of 1933.
9. Transfer of Common Stock by ▇▇▇▇▇▇. It is expected that ▇▇▇▇▇▇ shall and
▇▇▇▇▇▇ shall at any time be permitted without any approval, consent or
action of the Company to, sell, transfer or assign all or any part of the
Common Stock or other voting or non-voting equity securities of the Company
then owned by ▇▇▇▇▇▇ to other individuals, corporations or other entities;
provided, however, in the event of a sale, transfer or assignment by ▇▇▇▇▇▇
of any of its shares of Common Stock, ▇▇▇▇▇▇ shall, in the absence of an
effective registration statement under the Securities Act of 1933 covering
such shares, provide the Company with an opinion of counsel, satisfactory
in form and substance to the Company and its counsel, to the effect that
such sale, transfer or assignment will not require that such securities be
registered under the Securities Act of 1933. Any such assignee, in
proportion to its ownership of the Common Stock or other voting or
non-voting equity securities, shall be entitled to exercise or acquire all
of the rights or interests which may be exercised or acquired by ▇▇▇▇▇▇
pursuant to the terms of this Agreement; provided, however, that the right
to request mandatory registration under paragraph 5 shall be exercisable
only by the then owners of a majority interest of the Common Stock
previously held by ▇▇▇▇▇▇.
10. Notices and Addresses. All notices or other communications in connection
herewith shall be in writing and shall be mailed by first class or air
mail, postage prepaid to the following addresses and to the attention of
the party in question:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
Or at such other addresses as may have been furnished to the other parties
in writing.
11. No additional Classes of Common Stock. The Company shall not create any
additional classes of common capital stock.
12. Termination of Agreement. This Agreement shall terminate only upon the
exercise by ▇▇▇▇▇▇ of all of its rights for registration or exchange of
stock as set forth in paragraphs 2, 4 and 5 hereof or by the mutual written
consent of the Company and ▇▇▇▇▇▇.
13. Amendments. This agreement may be amended only by written amendment signed
by ▇▇▇▇▇▇ and the Company.
14. Complete Agreement. This Agreement contains all of the Agreements and
understandings between the parties here-to relative to the transaction
contemplated herein.
15. Choice of Law. This agreement and all matters pertaining thereto shall be
construed under the laws of the State of Nebraska.
16. Signatures. This Agreement may be executed in counterparts, with each such
duly executed counterpart having the same validity, force and effect as the
original.
17. Facsimile. A facsimile copy of this document and any signatures shall be
considered for all purposes and intent as legal and binding originals.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the
date first above written.
Telemetrix Inc.
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------- -----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
Telemetrix Inc.
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chairman
Board of Directors
Exhibit 1
Total 03/31/2003
Date of Interest Accrued Share price
Note # Loan Rate Principal Int. Total at $0.15
--------------------------------------------------------------------------------------------------
057 08/01/2001 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ 10.00% 55,500.00 11,655.00 67,155.00 447,700
Rollover
064 12/15/2001 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ 10.00% 343,488.87 72,132.66 415,621.53 2,770,810
Rollover
066 12/31/2001 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ 10.00% 165,375.00 34,728.75 200,103.75 1,334,025
Rollover
069 02/22/2002 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 10.00% 100,000.00 21,000.00 121,000.00 806,667
139,516.41 803,880.28 5,359,202
Shares At Org. 550,000
Total Shares* 5,909,202
*This number is after adjustment to the conversion value of the notes,
reflecting an interest rate of 10% on all notes, interest computed on an
annually compounded basis through March 31, 2003.
far blue soon to be a trading name of Tower Gate Finance Limited
Registered in England Number 03924137
Regulated by the FSA
TOWERGATE
EXCHANGE AGREEMENT
BETWEEN
TELEMETRIX INC.
AND
HARTFORD HOLDINGS
THIS EXCHANGE AND CONVERSION AGREEMENT (hereinafter called this "Agreement")
made and entered into as of this 26 day of May, 2003 by and among TELEMETRIX
INC., a Delaware corporation with offices at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ("Company"), and HARTFORD HOLDINGS, a Cayman corp with offices at P.O. Box
143, Grand Cayman, BWI ("Hartford").
WHEREAS, the Company has been organized as a Delaware corporation for the
primary purpose of engaging in the telecommunications business; and
WHEREAS, HARTFORD holds stock in the Company;
WHEREAS, the Company has agreed upon the terms and conditions set forth herein,
to an exchange of the Common Stock held by HARTFORD for new issue preferred
capital stock of the Company; and
WHEREAS, the Company and HARTFORD mutually desire to set forth their agreements
and understandings with respect to such exchange of common capital stock for new
issue preferred capital stock of the Company of the Company and to provide for
certain rights of HARTFORD in connection therewith;
NOW, THEREFORE, for and in consideration of the premises and of the mutual
agreements, provisions and covenants herein contained and the mutual benefits
derived therefrom, the parties hereto do covenant and agree as follows:
1. Capital Structure of the Company. The Company is a Delaware corporation
authorized by its Certificate of Incorporation, to issue 25,000,000 shares
of Common Stock ("Common Stock"), par value $.001 per share, of which
18,486,176 are outstanding and 5,000,000 shares of Preferred Stock, par
value of $.001 per share, of which 0 shares are outstanding.
2. Exchange of Common Stock capital stock for new issue preferred shares of
stock. As of the date of this agreement, HARTFORD shall surrender to the
principal office of the Company (or such other office or agency of the
Company as the Company may designate by notice in writing to the holder or
holders of the Common Stock of the Company) certificates representing
3,962,004 shares of Common Stock which have been issued by the Company to
HARTFORD, successors or assigns, and shall exchange without further cost
3,962,004 shares of Common Stock for 594,301 shares of Common Stock and
16,838.5 shares of Preferred Stock. This agreement does not contemplate the
surrender of any shares of stock which are held by HARTFORD and which were
not a part of any transactions between HARTFORD and the Company, and which
shares are held by HARTFORD as either restricted or unrestricted shares of
Common Stock.
3. Authorization of Issuance of Preferred Stock. This exchange calls for the
issuance of Preferred Stock. The Company shall promptly take such steps as
may be necessary or appropriate under the laws of Delaware and the federal
securities laws to permit the issuance of the Preferred Stock. If the
authorization and issuance of such Preferred Stock requires an amendment to
the Company's Certificate of Incorporation and the adoption by the
stockholders of such amendment, the Company shall immediately initiate the
necessary and required documents and corporate meetings. The Preferred
Stock shall be non-voting stock.
4. Option of HARTFORD for Registration or Exchange of Stock. At any time, and
subject to the terms set forth in paragraph 5 of this document, HARTFORD
shall have the right by providing written notice to the Company to have the
Company register in accordance with Paragraph 6 hereof all or any part of
the Common Stock owned by HARTFORD. if any, held by HARTFORD on a
registration statement in compliance with the Securities Act of 1933 in
order to permit the sale or distribution of such stock.
5. Registration of Stock. If the Company shall receive from HARTFORD a written
request that the Company register Common Stock under a registration
statement in compliance with the Securities Act of 1933 as provided in
paragraph 6 hereof, in order to permit the sale or distribution of such
stock, the Company, as soon as practicable after giving written notice to
HARTFORD (which notice shall be given by the Company within ten (10) days
after receipt of the written request for registration from HARTFORD) that
it has elected to file a registration statement for the Common Stock held
by HARTFORD pursuant to this paragraph, will use its best efforts to effect
such registration and qualify the Common Stock in such jurisdictions as may
be requested by HARTFORD. Any such registration of shares requested by
HARTFORD may include shares of Common Stock owned by other shareholders of
the Company. 100,000 (One Hundred Thousand) shares in the aggregate is the
minimum number of shares that may be included in any registration. Each
selling shareholder shall bear a pro rata portion of all costs and expenses
paid to third parties (other than those paid to any affiliate or subsidiary
of the Company or any shareholder thereof) for registration and filing
fees, printing expenses, fees and disbursements of counsel, and any
accounting fees incident to or required by the registration or
qualification. Underwriting discounts and commissions shall be the pro rata
expense of each selling shareholder. The Company shall keep effective and
maintain any such registration statement for such period and to the extent
as HARTFORD may deem necessary for the purpose of selling or disposing of
the shares, and from time to time during such period shall amend or
supplement the prospectus used in connection therewith to the extent
necessary in order to comply with the applicable law. The Company shall be
required to comply with the above registration provisions only once, except
that if HARTFORD receives a Warrant which it is not entitled to exercise
until after the registration statement has become effective, then HARTFORD
shall be entitled to a second registration to cover Common Stock acquired
by it upon exercise of the Warrant an any other shares of Common Stock then
still owned by HARTFORD.
Should the Company at any time seek to register all or any part of its
Common Stock under a registration statement in compliance with the
Securities Act of 1933, without having been requested to do so by HARTFORD,
in accordance with this paragraph, HARTFORD may (in addition to its
registration rights set forth above) add any or all of such shares of the
Company as it may own to any such registration. The Company shall bear all
costs and expenses for registration and filing fees, printing expenses,
fees and disbursements of all counsel and any accounting fees, including
expenses of any special audit, incident to or required by any registration
not requested by HARTFORD. Underwriting discounts and commissions shall be
the pro rata expense of such selling shareholder.
6. Indemnification. Prior to the effective date of any registration statement
relating to any of the shares of Common Stock owned by HARTFORD, the
Company and HARTFORD shall enter into an agreement providing for reciprocal
indemnification against any losses, claims, damages or liabilities to which
the Company or HARTFORD (or controlling persons thereof) may become subject
under the Securities Act of 1933, as amended, or otherwise, in the form of
reciprocal indemnification provisions which customarily appear in
underwriting agreements used by reputable investment bankers.
7. Acquisition for investment. HARTFORD hereby agrees that the shares of
Common Stock are being acquired for its own account and not with a view to
the distribution or resale thereof and the same shall not be sold or
transferred in the absence of an effective registration statement under the
Securities Act of 1933 unless an exemption therefrom is available.
8. Agreements Relating to Rule 144. If and so long as the Company has
securities registered pursuant to the Securities Act of 1933, the Company
will (a) file reports in compliance with the Securities Exchange Act of
1934, and (b) at its expense, forthwith upon the request of HARTFORD,
deliver to HARTFORD a certificate, signed by the Company's principal
financial officer, stating (i) Company's name, address and telephone number
(including area code), (ii) the Company's Securities and Exchange
identification number, (iii) the Company's Securities and Exchange
Commission file number, (iv) the number of shares of stock (and other
securities) outstanding as shown by the most recent report or statement
published by the Company and (v) whether the Company has filed the reports
required to be filed under the Securities Exchange Act of 1934 for a period
of at least ninety (90) days prior to the date of such certificate and in
addition has filed the most recent annual report required to be filed
thereunder. If at any time, subsequent to the exchange of HARTFORD's notes
for Common Stock, the Company is not required to file reports in compliance
with either Section 13 or Section 15(d) of the Securities Exchange Act of
1934, the Company, at its expense will, forthwith upon the written request
of HARTFORD, make available adequate current public information with
respect to the Company within the meaning of paragraph (c)(2) of Rule 144
of the General Rules and Regulations promulgated under the Securities Act
of 1933.
9. Transfer of Common Stock by HARTFORD. It is expected that HARTFORD shall
and HARTFORD shall at any time be permitted without any approval, consent
or action of the Company to, sell, transfer or assign all or any part of
the Common Stock or other voting or non-voting equity securities of the
Company then owned by HARTFORD to other individuals, corporations or other
entities; provided, however, in the event of a sale, transfer or assignment
by HARTFORD of any of its shares of Common Stock, HARTFORD shall, in the
absence of an effective registration statement under the Securities Act of
1933 covering such shares, provide the Company with an opinion of counsel,
satisfactory in form and substance to the Company and its counsel, to the
effect that such sale, transfer or assignment will not require that such
securities be registered under the Securities Act of 1933. Any such
assignee, in proportion to its ownership of the Common Stock or other
voting or non-voting equity securities, shall be entitled to exercise or
acquire all of the rights or interests which may be exercised or acquired
by HARTFORD pursuant to the terms of this Agreement; provided, however,
that the right to request mandatory registration under paragraph 5 shall be
exercisable only by the then owners of a majority interest of the Common
Stock previously held by HARTFORD.
10. Notices and Addresses. All notices or other communications in connection
herewith shall be in writing and shall be mailed by first class or air
mail, postage prepaid to the following addresses and to the attention of
the party in question:
Hartford Holdings
c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Park Lane
West Bay Road
Georgetown, Grand Cayman Islands,
British West Indies
Or at such other addresses as may have been furnished to the other parties
in writing.
11. No additional Classes of Common Stock. The Company shall not create any
additional classes of common capital stock.
12. Termination of Agreement. This Agreement shall terminate only upon the
exercise by HARTFORD of all of its rights for registration or exchange of
stock as set forth in paragraphs 2, 4 and 5 hereof or by the mutual written
consent of the Company and HARTFORD.
13. Amendments. This agreement may be amended only by written amendment signed
by HARTFORD and the Company.
14. Complete Agreement. This Agreement contains all of the Agreements and
understandings between the parties here-to relative to the transaction
contemplated herein.
15. Choice of Law. This agreement and all matters pertaining thereto shall be
construed under he laws of the State of Nebraska.
16. Signatures. This Agreement may be executed in counterparts, with each such
duly executed counterpart having the same validity, force and effect as the
original.
17. Facsimile. A facsimile copy of this document and any signatures shall be
considered for all purposes and intent as legal and binding originals.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the
date first above written.
HARTFORD HOLDINGS Telemetrix Inc.
/s/ illegible /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------- -----------------------------
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
Telemetrix Inc.
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Secretary
far blue soon to be a trading name of Tower Gate Finance Limited
Registered in England Number 03924137
Regulated by the FSA
TOWERGATE
EXCHANGE AGREEMENT
BETWEEN
TELEMETRIX INC.
AND
IONIAN INVESTMENTS, LTD
THIS EXCHANGE AND CONVERSION AGREEMENT (hereinafter called this "Agreement")
made and entered into as of this 30th day of May, 2003 by and among TELEMETRIX
INC., a Delaware corporation with offices at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ("Company"), and IONIAN Investments Ltd. ___________Harbour Trust Co.
Ltd, One Capital Place, P.O. Box 1787 GT, Grand Cayman, Cayman Islands, B.W.I.,
("IONIAN").
WHEREAS, the Company has been organized as a Delaware corporation for the
primary purpose of engaging in the telecommunications business; and
WHEREAS, IONIAN holds stock in the Company;
WHEREAS, the Company has agreed upon the terms and conditions set forth herein,
to an exchange of the Common Stock held by IONIAN for new issue preferred
capital stock of the Company; and
WHEREAS, the Company and IONIAN mutually desire to set forth their agreements
and understandings with respect to such exchange of common capital stock for new
issue preferred capital stock of the Company of the Company and to provide for
certain rights of IONIAN in connection therewith;
NOW, THEREFORE, for and in consideration of the premises and of the mutual
agreements, provisions and covenants herein contained and the mutual benefits
derived therefrom, the parties hereto do covenant and agree as follows:
1. Capital Structure of the Company. The Company is a Delaware corporation
authorized by its Certificate of Incorporation, to issue 25,000,000 shares
of Common Stock ("Common Stock"), par value $.001 per share, of which
18,486,176 are outstanding and 5,000,000 shares of Preferred Stock, par
value of $.001 per share, of which 0 shares are outstanding.
2. Exchange of Common Stock capital stock for new issue preferred shares of
stock. As of the date of this agreement, IONIAN shall surrender to the
principal office of the Company (or such other office or agency of the
Company as the Company may designate by notice in writing to the holder or
holders of the Common Stock of the Company) certificates representing
2,000,000 shares of Common Stock which have been issued by the Company to
IONIAN, successors or assigns, and shall exchange without further cost
750,000 shares of Common Stock for 112,500 shares of Common Stock and
3,187.5 shares of Preferred Stock. This agreement does not contemplate the
surrender of any shares of stock which are held by IONIAN and which were
not a part of any transactions between IONIAN and the Company, and which
shares are held by IONIAN as either restricted or unrestricted shares of
Common Stock.
3. Authorization of Issuance of Preferred Stock. This exchange calls for the
issuance of Preferred Stock. The Company shall promptly take such steps as
may be necessary or appropriate under the laws of Delaware and the federal
securities laws to permit the issuance of the Preferred Stock. If the
authorization and issuance of such Preferred Stock requires an amendment to
the Company's Certificate of Incorporation and the adoption by the
stockholders of such amendment, the Company shall immediately initiate the
necessary and required documents and corporate meetings. The Preferred
Stock shall be non-voting stock.
4. Option of IONIAN for Registration or Exchange of Stock. At any time, and
subject to the terms set forth in paragraph 5 of this document, IONIAN
shall have the right by providing written notice to the Company to have the
Company register in accordance with Paragraph 6 hereof all or any part of
the Common Stock owned by IONIAN. if any, held by IONIAN on a registration
statement in compliance with the Securities Act of 1933 in order to permit
the sale or distribution of such stock.
5. Registration of Stock. If the Company shall receive from IONIAN a written
request that the Company register Common Stock under a registration
statement in compliance with the Securities Act of 1933 as provided in
paragraph 6 hereof, in order to permit the sale or distribution of such
stock, the Company, as soon as practicable after giving written notice to
IONIAN (which notice shall be given by the Company within ten (10) days
after receipt of the written request for registration from IONIAN) that it
has elected to file a registration statement for the Common Stock held by
IONIAN pursuant to this paragraph, will use its best efforts to effect such
registration and qualify the Common Stock in such jurisdictions as may be
requested by IONIAN. Any such registration of shares requested by IONIAN
may include shares of Common Stock owned by other shareholders of the
Company. 100,000 (One Hundred Thousand) shares in the aggregate is the
minimum number of shares that may be included in any registration. Each
selling shareholder shall bear a pro rata portion of all costs and expenses
paid to third parties (other than those paid to any affiliate or subsidiary
of the Company or any shareholder thereof) for registration and filing
fees, printing expenses, fees and disbursements of counsel, and any
accounting fees incident to or required by the registration or
qualification. Underwriting discounts and commissions shall be the pro rata
expense of each selling shareholder. The Company shall keep effective and
maintain any such registration statement for such period and to the extent
as IONIAN may deem necessary for the purpose of selling or disposing of the
shares, and from time to time during such period shall amend or supplement
the prospectus used in connection therewith to the extent necessary in
order to comply with the applicable law. The Company shall be required to
comply with the above registration provisions only once, except that if
IONIAN receives a Warrant which it is not entitled to exercise until after
the registration statement has become effective, then IONIAN shall be
entitled to a second registration to cover Common Stock acquired by it upon
exercise of the Warrant an any other shares of Common Stock then still
owned by IONIAN.
Should the Company at any time seek to register all or any part of its
Common Stock under a registration statement in compliance with the
Securities Act of 1933, without having been requested to do so by IONIAN,
in accordance with this paragraph, IONIAN may (in addition to its
registration rights set forth above) add any or all of such shares of the
Company as it may own to any such registration. The Company shall bear all
costs and expenses for registration and filing fees, printing expenses,
fees and disbursements of all counsel and any accounting fees, including
expenses of any special audit, incident to or required by any registration
not requested by IONIAN. Underwriting discounts and commissions shall be
the pro rata expense of such selling shareholder.
6. Indemnification. Prior to the effective date of any registration statement
relating to any of the shares of Common Stock owned by IONIAN, the Company
and IONIAN shall enter into an agreement providing for reciprocal
indemnification against any losses, claims, damages or liabilities to which
the Company or IONIAN (or controlling persons thereof) may become subject
under the Securities Act of 1933, as amended, or otherwise, in the form of
reciprocal indemnification provisions which customarily appear in
underwriting agreements used by reputable investment bankers.
7. Acquisition for investment. IONIAN hereby agrees that the shares of Common
Stock are being acquired for its own account and not with a view to the
distribution or resale thereof and the same shall not be sold or
transferred in the absence of an effective registration statement under the
Securities Act of 1933 unless an exemption therefrom is available.
8. Agreements Relating to Rule 144. If and so long as the Company has
securities registered pursuant to the Securities Act of 1933, the Company
will (a) file reports in compliance with the Securities Exchange Act of
1934, and (b) at its expense, forthwith upon the request of IONIAN, deliver
to IONIAN a certificate, signed by the Company's principal financial
officer, stating (i) Company's name, address and telephone number
(including area code), (ii) the Company's Securities and Exchange
identification number, (iii) the Company's Securities and Exchange
Commission file number, (iv) the number of shares of stock (and other
securities) outstanding as shown by the most recent report or statement
published by the Company and (v) whether the Company has filed the reports
required to be filed under the Securities Exchange Act of 1934 for a period
of at least ninety (90) days prior to the date of such certificate and in
addition has filed the most recent annual report required to be filed
thereunder. If at any time, subsequent to the exchange of IONIAN's notes
for Common Stock, the Company is not required to file reports in compliance
with either Section 13 or Section 15(d) of the Securities Exchange Act of
1934, the Company, at its expense will, forthwith upon the written request
of IONIAN, make available adequate current public information with respect
to the Company within the meaning of paragraph (c)(2) of Rule 144 of the
General Rules and Regulations promulgated under the Securities Act of 1933.
9. Transfer of Common Stock by IONIAN. It is expected that IONIAN shall and
IONIAN shall at any time be permitted without any approval, consent or
action of the Company to, sell, transfer or assign all or any part of the
Common Stock or other voting or non-voting equity securities of the Company
then owned by IONIAN to other individuals, corporations or other entities;
provided, however, in the event of a sale, transfer or assignment by IONIAN
of any of its shares of Common Stock, IONIAN shall, in the absence of an
effective registration statement under the Securities Act of 1933 covering
such shares, provide the Company with an opinion of counsel, satisfactory
in form and substance to the Company and its counsel, to the effect that
such sale, transfer or assignment will not require that such securities be
registered under the Securities Act of 1933. Any such assignee, in
proportion to its ownership of the Common Stock or other voting or
non-voting equity securities, shall be entitled to exercise or acquire all
of the rights or interests which may be exercised or acquired by IONIAN
pursuant to the terms of this Agreement; provided, however, that the right
to request mandatory registration under paragraph 5 shall be exercisable
only by the then owners of a majority interest of the Common Stock
previously held by IONIAN.
10. Notices and Addresses. All notices or other communications in connection
herewith shall be in writing and shall be mailed by first class or air
mail, postage prepaid to the following addresses and to the attention of
the party in question:
IONIAN
Harbour Trust Co., Ltd.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
Cayman Islands, B.W.I.
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Or at such other addresses as may have been furnished to the other parties
in writing.
11. No additional Classes of Common Stock. The Company shall not create any
additional classes of common capital stock.
12. Termination of Agreement. This Agreement shall terminate only upon the
exercise by IONIAN of all of its rights for registration or exchange of
stock as set forth in paragraphs 2, 4 and 5 hereof or by the mutual written
consent of the Company and IONIAN.
13. Amendments. This agreement may be amended only by written amendment signed
by IONIAN and the Company.
14. Complete Agreement. This Agreement contains all of the Agreements and
understandings between the parties here-to relative to the transaction
contemplated herein.
15. Choice of Law. This agreement and all matters pertaining thereto shall be
construed under he laws of the State of Nebraska.
16. Signatures. This Agreement may be executed in counterparts, with each such
duly executed counterpart having the same validity, force and effect as the
original.
17. Facsimile. A facsimile copy of this document and any signatures shall be
considered for all purposes and intent as legal and binding originals.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the
date first above written.
IONIAN Investments, Ltd. Telemetrix Inc.
/s/illegible /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------- -----------------------------
By: For and on behalf of Bluejay ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
Investments Ltd. and Cardinal
Investments Limited, Directors
Telemetrix Inc.
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Secretary
far blue soon to be a trading name of Tower Gate Finance Limited
Registered in England Number 03924137
Regulated by the FSA
TOWERGATE
EXCHANGE AND CONVERSION AGREEMENT
BETWEEN
TELEMETRIX INC.
AND
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
THIS EXCHANGE AND CONVERSION AGREEMENT (hereinafter called this "Agreement")
made and entered into as of this 26 day of May, 2003 by and among TELEMETRIX
INC., a Delaware corporation with offices at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ("the Company"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, an individual residing at ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("▇▇▇▇▇").
WHEREAS, the Company has been organized as a Delaware corporation for the
primary purpose of engaging in the telecommunications business; and
WHEREAS, the Company and ▇▇▇▇▇ have entered into certain loan agreements
("notes"), a schedule of which is identified as Exhibit 1 and is attached to and
made a part of this agreement; and
WHEREAS, the Company has agreed upon the terms and conditions set forth herein,
to an exchange of the notes held by ▇▇▇▇▇ for shares of the common and preferred
capital stock of the Company; and
WHEREAS, the Company and ▇▇▇▇▇ mutually desire to set forth their agreements and
understandings with respect to such exchange of notes for shares of the common
capital stock of the Company and to provide for certain rights of ▇▇▇▇▇ in
connection therewith;
NOW, THEREFORE, for and in consideration of the premises and of the mutual
agreements, provisions and covenants herein contained and the mutual benefits
derived therefrom, the parties hereto do covenant and agree as follows:
1. Capital Structure of the Company. The Company is a Delaware corporation
authorized by its Certificate of Incorporation, to issue 25,000,000 shares
of Common Stock ("Common Stock"), par value $.001 per share, of which
18,486,176 are outstanding and 5,000,000 shares of Preferred Stock, par
value of $.001 per share, of which 0 shares are outstanding.
2. Exchange of notes for Common Stock. As of the date of this agreement, ▇▇▇▇▇
shall surrender to the principal office of the Company (or such other
office or agency of the Company as the Company may designate by notice in
writing to the holder or holders of the Common Stock of the Company) all
certificates representing all shares of Common Stock which have been issued
by the Company to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, his heirs, successors or assigns which
correspond or were issued in connection or association with the schedule of
notes attached hereto as Exhibit 1, as well as shares issued on the date of
reorganization as consideration and shares issued for salary and shall have
the right to exchange without further cost all notes and shares of Common
Stock issued as consideration for any of the notes listed in Exhibit 1, as
well as shares issued as in lieu of salary for 3,584,151 shares of Common
Stock of the Company and 101,551 shares of Preferred Stock. This agreement
does not contemplate the surrender of any shares of stock which are held by
▇▇▇▇▇ and which were not a part of any transactions between ▇▇▇▇▇ and the
Company, and which shares are held by ▇▇▇▇▇ as either restricted or
unrestricted shares of Common Stock.
3. Authorization of Issuance of Preferred Stock. This exchange calls for the
issuance of Preferred Stock. The Company shall promptly take such steps as
may be necessary or appropriate under the laws of Delaware and the federal
securities laws to permit the issuance of the Preferred Stock. If the
authorization and issuance of such Preferred Stock requires an amendment to
the Company's Certificate of Incorporation and the adoption by the
stockholders of such amendment, the Company shall immediately initiate the
necessary and required documents and corporate meetings. The Preferred
Stock shall be non-voting stock.
4. Option of ▇▇▇▇▇ for Registration or Exchange of Stock. At any time, and
subject to the terms set forth in paragraph 5 of this document, ▇▇▇▇▇
shall have the right by providing written notice to the Company to have the
Company register in accordance with Paragraph 6 hereof all or any part of
the Common Stock owned by ▇▇▇▇▇. if any, held by ▇▇▇▇▇ on a registration
statement in compliance with the Securities Act of 1933 in order to permit
the sale or distribution of such stock.
5. Registration of Stock. If the Company shall receive from ▇▇▇▇▇ a written
request that the Company register Common Stock under a registration
statement in compliance with the Securities Act of 1933 as provided in
paragraph 6 hereof, in order to permit the sale or distribution of such
stock, the Company, as soon as practicable after giving written notice to
▇▇▇▇▇ (which notice shall be given by the Company within ten (10) days
after receipt of the written request for registration from ▇▇▇▇▇) that it
has elected to file a registration statement for the Common Stock held by
▇▇▇▇▇ pursuant to this paragraph, will use its best efforts to effect such
registration and qualify the Common Stock in such jurisdictions as may be
requested by ▇▇▇▇▇. Any such registration of shares requested by ▇▇▇▇▇ ▇▇▇
include shares of Common Stock owned by other shareholders of the Company,.
100,000 (One Hundred Thousand) shares in the aggregate is the minimum
number of shares that may be included in any registration. Each selling
shareholder shall bear a pro rata portion of all costs and expenses paid to
third parties (other than those paid to any affiliate or subsidiary of the
Company or any shareholder thereof) for registration and filing fees,
printing expenses, fees and disbursements of counsel, and any accounting
fees incident to or required by the registration or qualification.
Underwriting discounts and commissions shall be the pro rata expense of
each selling shareholder. The Company shall keep effective and maintain any
such registration statement for such period and to the extent as ▇▇▇▇▇ ▇▇▇
▇▇▇▇ necessary for the purpose of selling or disposing of the shares, and
from time to time during such period shall amend or supplement the
prospectus used in connection therewith to the extent necessary in order to
comply with the applicable law. The Company shall be required to comply
with the above registration provisions only once, except that if ▇▇▇▇▇
receives a Warrant which it is not entitled to exercise until after the
registration statement has become effective, then ▇▇▇▇▇ shall be entitled
to a second registration to cover Common Stock acquired by it upon exercise
of the Warrant an any other shares of Common Stock then still owned by
▇▇▇▇▇.
Should the Company at any time seek to register all or any part of its
Common Stock under a registration statement in compliance with the
Securities Act of 1933, without having been requested to do so by ▇▇▇▇▇, in
accordance with this paragraph, ▇▇▇▇▇ ▇▇▇ (in addition to its registration
rights set forth above) add any or all of such shares of the Company as it
may own to any such registration. The Company shall bear all costs and
expenses for registration and filing fees, printing expenses, fees and
disbursements of all counsel and any accounting fees, including expenses of
any special audit, incident to or required by any registration not
requested by ▇▇▇▇▇. Underwriting discounts and commissions shall be the pro
rata expense of such selling shareholder.
6. Indemnification. Prior to the effective date of any registration statement
relating to any of the shares of Common Stock owned by ▇▇▇▇▇, the Company
and ▇▇▇▇▇ shall enter into an agreement providing for reciprocal
indemnification against any losses, claims, damages or liabilities to which
the Company or ▇▇▇▇▇ (or controlling persons thereof) may become subject
under the Securities Act of 1933, as amended, or otherwise, in the form of
reciprocal indemnification provisions which customarily appear in
underwriting agreements used by reputable investment bankers.
7. Acquisition for investment. ▇▇▇▇▇ hereby agrees that the shares of Common
Stock are being acquired for its own account and not with a view to the
distribution or resale thereof and the same shall not be sold or
transferred in the absence of an effective registration statement under the
Securities Act of 1933 unless an exemption therefrom is available.
8. Agreements Relating to Rule 144. If and so long as the Company has
securities registered pursuant to the Securities Act of 1933, the Company
will (a) file reports in compliance with the Securities Exchange Act of
1934, and (b) at its expense, forthwith upon the request of ▇▇▇▇▇, deliver
to ▇▇▇▇▇ a certificate, signed by the Company's principal financial
officer, stating (i) Company's name, address and telephone number
(including area code), (ii) the Company's Securities and Exchange
identification number, (iii) the Company's Securities and Exchange
Commission file number, (iv) the number of shares of stock (and other
securities) outstanding as shown by the most recent report or statement
published by the Company and (v) whether the Company has filed the reports
required to be filed under the Securities Exchange Act of 1934 for a period
of at least ninety (90) days prior to the date of such certificate and in
addition has filed the most recent annual report required to be filed
thereunder. If at any time, subsequent to the exchange of Tracy's notes for
Common Stock, the Company is not required to file reports in compliance
with either Section 13 or Section 15(d) of the Securities Exchange Act of
1934, the Company, at its expense will, forthwith upon the written request
of ▇▇▇▇▇, make available adequate current public information with respect
to the Company within the meaning of paragraph (c)(2) of Rule 144 of the
General Rules and Regulations promulgated under the Securities Act of 1933.
9. Transfer of Common Stock by ▇▇▇▇▇. It is expected that ▇▇▇▇▇ shall and
▇▇▇▇▇ shall at any time be permitted without any approval, consent or
action of the Company to, sell, transfer or assign all or any part of the
Common Stock or other voting or non-voting equity securities of the Company
then owned by ▇▇▇▇▇ to other individuals, corporations or other entities;
provided, however, in the event of a sale, transfer or assignment by ▇▇▇▇▇
of any of its shares of Common Stock, ▇▇▇▇▇ shall, in the absence of an
effective registration statement under the Securities Act of 1933 covering
such shares, provide the Company with an opinion of counsel, satisfactory
in form and substance to the Company and its counsel, to the effect that
such sale, transfer or assignment will not require that such securities be
registered under the Securities Act of 1933. Any such assignee, in
proportion to its ownership of the Common Stock or other voting or
non-voting equity securities, shall be entitled to exercise or acquire all
of the rights or interests which may be exercised or acquired by ▇▇▇▇▇
pursuant to the terms of this Agreement; provided, however, that the right
to request mandatory registration under paragraph 5 shall be exercisable
only by the then owners of a majority interest of the Common Stock
previously held by ▇▇▇▇▇.
10. Notices and Addresses. All notices or other communications in connection
herewith shall be in writing and shall be mailed by first class or air
mail, postage prepaid to the following addresses and to the attention of
the party in question:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
Or at such other addresses as may have been furnished to the other parties
in writing.
11. No additional Classes of Common Stock. The Company shall not create any
additional classes of common capital stock.
12. Termination of Agreement. This Agreement shall terminate only upon the
exercise by ▇▇▇▇▇ of all of its rights for registration or exchange of
stock as set forth in paragraphs 2, 4 and 5 hereof or by the mutual written
consent of the Company and ▇▇▇▇▇.
13. Amendments. This agreement may be amended only by written amendment signed
by ▇▇▇▇▇ and the Company.
14. Complete Agreement. This Agreement contains all of the Agreements and
understandings between the parties here-to relative to the transaction
contemplated herein.
15. Choice of Law. This agreement and all matters pertaining thereto shall be
construed under he laws of the State of Nebraska.
16. Signatures. This Agreement may be executed in counterparts, with each such
duly executed counterpart having the same validity, force and effect as the
original.
17. Facsimile. A facsimile copy of this document and any signatures shall be
considered for all purposes and intent as legal and binding originals.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the
date first above written.
Telemetrix Inc.
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------- ----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Secretary
Telemetrix Inc.
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chairman
Board of Directors
far blue soon to be a trading name of Tower Gate Finance Limited
Registered in England Number 03924137
Regulated by the FSA