EXHIBIT 10.52
EXCHANGE AGREEMENT
April 13, 2001
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
c/o HA Technology, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear ▇▇▇. ▇▇▇▇▇▇:
Group Long Distance, Inc., a Florida corporation ("GLDI"), shall
acquire from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (the "Shareholder"), on the terms and subject to the
conditions set forth in this Exchange Agreement (the "Agreement"), eighty
percent (80%) of the issued and outstanding shares of common stock of HA
Technology, Inc., a Delaware corporation ("HAT"). This Agreement is intended to
be, and shall be construed, as a binding obligation of the parties hereto.
I. Exchange of Shares
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A. Exchange
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Simultaneously with the execution and delivery of this Agreement, GLDI
is acquiring from the Shareholder Four Hundred Thousand (400,000) shares of
common stock, par value $.001 per share, of HAT (collectively, the "HAT
Shares"), constituting eighty percent (80%) of the issued and outstanding shares
of common stock of HAT, in exchange for Seven Million Eight Hundred Thousand
(7,800,000) shares of common stock, no par value, of GLDI (collectively, the
"GLDI Shares").
Simultaneously with the execution and delivery of this Agreement, the
Shareholder is delivering to GLDI a certificate representing all of the HAT
Shares, together with an appropriate form of assignment, separate from
certificate, endorsed in blank. Simultaneously with the execution and delivery
of this Agreement, GLDI is causing its transfer agent to deliver to the
Shareholder a certificate representing the GLDI Shares issued in the name of the
Shareholder.
B. Investment Letters
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Simultaneously with the execution and delivery of this Agreement, the
Shareholder is executing and delivering to GLDI an investment letter in
substantially the form of Exhibit A attached hereto and incorporated herein by
this reference.
Simultaneously with the execution and delivery of this Agreement, GLDI
is executing and delivering to the Shareholder an investment letter in
substantially the form of Exhibit B attached hereto and incorporated herein by
this reference.
C. Tax-Free Reorganization
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The transaction contemplated by Section I.A. above is a plan of
reorganization intended by the parties to constitute a tax-free reorganization
within the meaning of Section 368(a)(1)(B) of the Internal Revenue Code of 1986.
II. Certain Representations and Warranties of the Parties
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A. Certain Representations and Warranties of the Shareholder
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In order to induce GLDI to execute and deliver this Agreement and to
consummate the transactions contemplated hereby, the Shareholder represents and
warrants to GLDI as follows:
1. The Shareholder has full right, power and authority to execute,
deliver and perform her obligations under this Agreement and to exchange,
transfer, assign and convey to GLDI all of the right, title and interest in and
to the HAT Shares. This Agreement has been duly executed and delivered by the
Shareholder and constitutes the legal, valid and binding obligation of the
Shareholder and is enforceable against the Shareholder in accordance with its
terms.
2. Except for that certain Option Agreement dated October 19, 2000 (the
"Option Agreement") by and between Quentra Networks, Inc., a Delaware
corporation ("Quentra"), HAT, the Shareholder, ▇▇▇▇▇ ▇▇▇▇▇▇ and DQE Enterprises,
Inc., a Pennsylvania corporation ("DQE"), the execution, delivery and
performance of this Agreement by the Shareholder and the consummation of the
transactions contemplated hereby:
(a) do not and will not violate (with or without the giving of
notice or the lapse of time or both) any contract, agreement, document
or instrument to which the Shareholder or HAT is a party or by which
the Shareholder or HAT or any of the assets or properties of the
Shareholder or HAT, including without limitation the HAT Shares, is
bound, or require any consent or approval from, any person or entity
(including without limitation any governmental entity, any bank or
other financial institution or any creditor); and
(b) do not and will not require any consent or approval under, and
do not and will not conflict with, or result in the breach, violation
or termination of any provision of, or constitute a default under, or
result in the acceleration of the performance of the obligations of the
Shareholder or HAT under, or result in the creation of any lien or
encumbrance upon any or all of the properties, assets or business of
the Shareholder or HAT, including without limitation the HAT Shares,
pursuant to, any contract, agreement, document or instrument to which
the Shareholder or HAT is a party or by which the Shareholder or HAT or
any of the assets or properties of the Shareholder or HAT, including
without limitation the HAT Shares, is bound.
3. The Shareholder holds good, valid, legal and beneficial title, as
her sole and separate property, to all of the HAT Shares, free and clear of any
and all liens, encumbrances, security interests, pledges, hypothecations,
charges, restrictions and imperfections of title of any kind or nature
whatsoever.
4. Except for the Option Agreement, the Shareholder is not a party to,
and the HAT Shares are not the subject of, any contract or agreement involving
or relating to the voting, sale, transfer, assignment or conveyance of the HAT
Shares, including without limitation any shareholders' agreement, voting
agreement, voting trust agreement, proxy agreement, proxy, warrant or option
agreement, right of first refusal, right of first offer or other similar
agreement. The Shareholder has never granted a security interest in or pledged
any or all of the HAT Shares to any person or entity. The Shareholder has never
granted to any person or entity any proxy, voting trust or other right to vote
the HAT Shares. Except for the Option Agreement, the Shareholder has never
granted to any person or entity any warrant, option or other right to purchase
directly or indirectly any or all of the HAT Shares and, except for this
Agreement, the Shareholder has never entered into any contract or agreement for
the sale or purchase of the HAT Shares.
5. The HAT Shares constitute eighty percent (80%) of issued and
outstanding shares of common stock of the HAT. The HAT Shares constitute eighty
percent (80%) of the securities of HAT legally or beneficially owned by the
Shareholder.
6. No broker, finder or person or entity acting in a similar capacity
has been employed or retained by the Shareholder in connection with the
transactions contemplated by this Agreement, and no person or entity is entitled
to receive any brokerage, finders' or similar fee or commission in connection
with this Agreement and the transactions contemplated hereby.
7. HAT is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. HAT has all requisite
corporate power, franchises, licenses and authority to own, lease and operate
its assets and properties and to carry on its business as presently conducted.
8. True, correct and complete copies of the minute book and stock book
of HAT have previously been delivered to GLDI.
9. There are no options, warrants, conversion rights, stock
appreciation rights, redemption rights, repurchase rights or other rights,
agreements, arrangements or commitments of any kind or nature whatsoever to
which HAT is a party or by which HAT is bound relating to the shares of capital
stock of HAT or obligating HAT to issue or sell any shares of capital stock of,
or other equity interests in, HAT, other than those arising from (a) the Option
Agreement, (b) that certain Warrant Purchase Agreement dated as of October 19,
2000 by and between HAT and DQE (the "Warrant Purchase Agreement"), and (c)
those certain Preferred Stock Purchase Warrants dated October 19, 2000 issued by
HAT to DQE (the "Warrants"). True, correct and complete copies of each of the
Option Agreement, the Warrant Purchase Agreement and the Warrants have
previously been delivered to GLDI.
10. The sole asset of HAT consists of its interest in that certain
License Agreement dated as of October 19, 2000 by and between HomeAccess
Microweb, Inc., a California corporation ("HA"), and HAT (the "License
Agreement"). A true, correct and complete copy of the License Agreement has
previously been delivered to GLDI. The License Agreement is a legal and binding
obligation of the parties thereto.
11. HAT has no liabilities, whether fixed or contingent, or
obligations or commitments of any kind or nature whatsoever, other than (a)
those arising from (i) the Option Agreement, (ii) the Warrant Agreement, (iii)
the Warrants and (iv) the License Agreement; (b) franchise taxes which have not
yet become due and payable; and (c) legal fees and costs in an amount not
exceeding Fifty Thousand Dollars ($50,000).
12. There are no contractual restrictions whatsoever on the business
or operations of HAT, other than those arising from the (a) the Warrant
Agreement and (b) the License Agreement.
B. Certain Representations and Warranties of GLDI
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In order to induce the Shareholder to execute and deliver this
Agreement and to consummate the transactions contemplated hereby, GLDI
represents and warrants to the Shareholder as follows:
1. GLDI is a corporation duly organized, validly existing and in good
standing under the laws of the State of Florida. GLDI has all requisite
corporate power, franchises, licenses and authority to own, lease and operate
its assets and properties and to carry on its business as presently conducted.
2. GLDI has all necessary corporate power and authority to execute,
deliver and perform its obligations under this Agreement and to issue, exchange,
transfer, assign and convey to the Shareholder the GLDI Shares. The execution,
delivery and performance of this Agreement by GLDI have been authorized by all
necessary corporate action of GLDI. This Agreement has been duly executed and
delivered by GLDI and constitutes the legal, valid and binding obligation of
GLDI and is enforceable against GLDI in accordance with its terms.
3. The execution, delivery and performance of this Agreement by GLDI
and the consummation of the transactions contemplated hereby:
(a) do not and will not violate (with or without the giving of
notice or the lapse of time or both) any contract, agreement, document
or instrument to which GLDI is a party or by which GLDI or any of its
assets or properties is bound, or require any consent or approval from,
any person or entity (including without limitation any governmental
entity, any bank or other financial institution or any creditor); and
(b) do not and will not require any consent or approval under, and
do not and will not conflict with, or result in the breach, violation
or termination of any provision of, or constitute a default under, or
result in the acceleration of the performance of the obligations of
GLDI under, or result in the creation of any lien or encumbrance upon
any or all of the properties, assets or business of GLDI pursuant to,
any contract, agreement, document or instrument to which GLDI is a
party or by which GLDI or any of its assets or properties is bound.
4. The GLDI Shares being issued to the Shareholder pursuant to this
Agreement are validly issued, fully paid and nonassessable. Upon issuance of the
GLDI Shares to the Shareholder, the Shareholder will acquire legal and valid
title to the GLDI Shares, free and clear of all restrictions on title other than
those imposed by applicable securities laws or created by action of the
Shareholder.
5. No broker, finder or person or entity acting in a similar capacity
has been employed or retained by GLDI in connection with the transactions
contemplated by this Agreement, and no person or entity is entitled to receive
any brokerage, finders' or similar fee or commission in connection with this
Agreement and the transactions contemplated hereby.
6. (a) The authorized capital stock of GLDI consists of Two Million
(2,000,000) shares of preferred stock, no par value (the "Preferred Stock"), and
Twelve Million (12,000,000) shares of common stock, no par value (the "Common
Stock").
(b) As of the date hereof, Two Hundred Thousand (200,000) shares of
Series A Preferred Stock, no par value, of GLDI are issued and outstanding and
held by Quentra. Commencing one year from and after the date hereof, the shares
of Series A Preferred Stock are convertible into Two Million (2,000,000) shares
of Common Stock.
(c) As of the date hereof, GLDI is obligated to issue to Quentra
warrants to purchase Two Hundred Thousand (200,000) shares of Common Stock of
GLDI at a purchase price of $4.50 per share (the "Warrants"). The Warrants are
exercisable for a period of six months, commencing one year from and after the
date hereof and terminating eighteen months from and after the date hereof.
(d) As of the date hereof, Three Million Five Hundred Thousand Four
Hundred Two (3,500,402) shares of Common Stock are issued and outstanding.
(e) As of the date hereof, options to purchase Six Hundred Thirty
(630,000) shares of Common Stock are issued, outstanding and exercisable.
III. Survival; Indemnities; Release
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A. Survival
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All of the representations, warranties, covenants, agreements and
indemnities of the Shareholder set forth in this Agreement shall survive the
consummation of the transactions contemplated by this Agreement, notwithstanding
any audit or investigation made by or on behalf of GLDI.
All of the representations, warranties, covenants, agreements and
indemnities of GLDI set forth in this Agreement shall survive the consummation
of the transactions contemplated by this Agreement, notwithstanding any audit or
investigation made by or on behalf of the Shareholder.
B. Indemnification of Shareholder
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GLDI shall indemnify and hold harmless the Shareholder from, against
and in respect of the full amount of any and all liabilities, damages, claims,
taxes, deficiencies, assessments, losses, penalties, interest, costs and
expenses (including without limitation fees and disbursements of trial and
appellate counsel)(collectively, the "Indemnified Expenses") arising from, in
connection with, or incident to any breach or violation of any or all of the
representations, warranties, covenants and agreements made by GLDI in this
Agreement.
C. Indemnification of GLDI
-----------------------
The Shareholder shall indemnify and hold harmless GLDI from, against
and in respect of the full amount of any and all Indemnified Expenses arising
from, in connection with, or incident to any breach or violation of any or all
of the representations, warranties, covenants and agreements made by the
Shareholder in this Agreement.
D. General Release
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The Shareholder does hereby remise, release, acquit, satisfy, and
forever discharge each of HA and HAT, and their respective successors and
assigns, of and from all, and all manner of, action and actions, cause and
causes of action, suits, debts, dues, sums of money, accounts, reckonings,
bonds, bills, specialties, covenants, contracts, controversies, agreements,
promises, variances, trespasses, damages, judgments, executions, claims and
demands whatsoever, in law or in equity, which the Shareholder ever had, now
has, or hereafter can, shall or may have, against either or both of HA and HAT,
and their respective successors and assigns, for, upon or by reason of any
matter, cause or thing whatsoever, from the beginning of time to the date of
this Agreement.
IV. Other Agreements
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Simultaneously with the execution and delivery of this Agreement:
1. GLDI and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ are entering into a Registration Rights
Agreement in substantially the form of Exhibit C attached hereto;
2. GLDI and ▇▇▇▇▇ ▇▇▇▇▇▇ are entering into an Employment Agreement in
substantially the form of Exhibit D attached hereto;
3. GLDI and ▇▇▇▇▇ ▇▇▇▇▇ are entering into an Employment Agreement in
substantially the form of Exhibit E attached hereto;
4. GLDI and the Shareholder are entering into a Second Exchange
Agreement in substantially the form of Exhibit F attached hereto; and
5. The Board of Directors of GLDI is taking action to:
(a) increase the number of directors of GLDI to nine persons;
(b) to cause each class of directors of GLDI to consist of three
persons; and
(c) to appoint ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ to be Class II
directors of GLDI.
V. Miscellaneous Provisions
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A. Governing Law
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The provisions of this Agreement shall be governed by, and shall be
construed and interpreted in accordance with, the laws of the State of Florida,
without giving effect to the principles of conflicts of law thereof.
B. Entire Agreement
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This Agreement constitutes the entire agreement among the parties with
respect to the subject matter hereof and supersedes all prior agreements,
understandings, negotiations and arrangements, both oral and written, among the
parties with respect to such subject matter. This Agreement may not be amended
or modified in any manner, except by a written instrument executed by each of
the parties.
C. Benefits; Binding Effect
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This Agreement shall be for the benefit of, and shall be binding
upon, the parties and their respective heirs, personal representatives,
executors, legal representatives, successors and assigns. D. Severability
The invalidity of any one or more of the words, phrases, sentences,
clauses or sections contained in this Agreement shall not affect the
enforceability of the remaining portions of this Agreement or any part hereof,
all of which are inserted conditionally on their being valid in law. If any one
or more of the words, phrases, sentences, clauses or sections contained in this
Agreement shall be declared invalid by a court of competent jurisdiction, then,
in any such event, this Agreement shall be construed as if such invalid word or
words, phrase or phrases, sentence or sentences, clause or clauses, or section
or sections had not been inserted.
E. Waiver
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The waiver by any party of a breach or violation of any provision of
this Agreement by any other party shall not operate nor be construed as a waiver
of any subsequent breach or violation, nor as a waiver by any other party of
such breach or violation, nor as a waiver by any other party of any subsequent
breach or violation. The waiver by any party to exercise any right or remedy it,
he or she may possess shall not operate nor be construed as a bar to the
exercise of such right or remedy by such party upon the occurrence of any
subsequent breach or violation, nor as a bar to the exercise of any right or
remedy by any other party.
F. Headings
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The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of any or all
of the provisions hereof.
G. Counterparts
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This Agreement may be executed in any number of counterparts and by the
separate parties in separate counterparts, each of which shall be deemed to
constitute an original and all of which shall be deemed to constitute the one
and the same instrument.
H. Expenses
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Each party shall bear all of the legal, accounting and other costs and
expenses incurred by it or her in connection with the negotiation, preparation,
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby.
If this Agreement sets forth our mutual agreement, please execute a
copy of it in the appropriate space below and return it to GLDI.
Sincerely,
GROUP LONG DISTANCE, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇, President
The provisions of the foregoing Agreement are accepted and agreed to on
April 13, 2001.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇
