AMENDED AND RESTATED CHINA TEL GROUP, INC. AGREEMENT
Exhibit
99.1
AMENDED
AND RESTATED CHINA TEL GROUP, INC. AGREEMENT
THIS AMENDED AND RESTATED CHINA TEL
GROUP, INC. AGREEMENT (“Agreement”) is entered into and effective as of
February 25, 2009 ( “Effective Date”), by and among Olotoa Investments, LLC, a
California limited liability company (“Purchaser”), and China Tel Group, Inc., a Nevada corporation
(“Company”). Purchaser and Company are sometimes referred to
collectively herein as the “Parties” and each individually as a
“Party”.
RECITALS
A. The
Company, through Trussnet USA, a Nevada corporation and a wholly owned
subsidiary of the Company (“Trussnet”), is in the business of designing,
developing, operating and maintaining wireless communications facilities in the
United States of America, South America, Europe, Russia and the People’s
Republic of China;
B. Pursuant
to the terms of that certain Asset Purchase Agreement dated March 9, 2009,
among: (i) Gulfstream Capital Partners Ltd., a Seychelles corporation and a
one hundred percent (100%) owned subsidiary of Trussnet (“Gulfstream Capital”),
and Trussnet Capital Partners (HK) Ltd., a Hong Kong corporation (“Trussnet
HK”), Trussnet, through its wholly owned subsidiary Gulfstream Capital, acquired
two billion four hundred and fifty million (2,450,000,000) ordinary shares of
Chinacomm Limited, a Cayman Islands corporation (“Chinacomm”) owned by Trussnet
HK, constituting the legal and beneficial ownership of forty nine percent (49%)
of the equity of Chinacomm on a fully-diluted basis;
C. Gulfstream
Capital has purchased a ninety five percent (95%) interest in Perusat S.A., a
local wireless and exchange carrier in Peru;
D. Attached
to this Agreement as Exhibit A is an organizational chart reflecting the
ownership and contractual relationship the Company has with its subsidiaries and
affiliated companies, which is incorporated into this Agreement by
reference;
E. The
Purchaser desires to acquire forty nine percent (49%) of the shares of the
Class A common stock of the Company for Three Hundred Fourteen Million Dollars
($314,000,000.00) (“Stock Purchase”). The Purchaser also desires to
obtain a right of first refusal relating to any additional financing of the
Company;
F. The
Purchaser and the Company entered into that certain China Tel Group, Inc.
Agreement entered into and effective as of February 25, 2009 relating
to the Stock Purchase (“Prior Agreement”);
G. The
Purchaser and the Company desire to amend and restate in its entirety the Prior
Agreement and enter into this Agreement in order to, among other things, amend
and restate the terms of the Stock Purchase by the Purchaser from the Company,
all upon the terms and conditions set forth in this Agreement; and
1
H. The Board
of Directors of the Company and the Purchaser have each deemed it
advisable and in the best interests of the Company and the Purchaser,
respectively, to consummate the Stock Purchase, in accordance with the terms of
this Agreement.
NOW THEREFORE, in
consideration of the promises and the mutual covenants contained in this
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties, intending to be
legally bound, hereby agree as follows:
ARTICLE
I
SELECTED DEFINED
TERMS
1.1. Definitions. In
addition to the terms defined in the Recitals and other terms defined in this
Agreement, the following capitalized terms shall have the respective meanings
specified in this Article I. Other terms defined elsewhere in this
Agreement shall have meanings so given to them.
1.1.1. Class A
Common Shares. The term “Shares” shall mean the five hundred
million (500,000,000) shares of Series A Common Stock authorized for issuance by
the Company pursuant to its Articles of Incorporation, as amended.
1.1.2. Fully
Diluted Basis. The term “Fully Diluted Basis” shall mean, with
respect to the Purchaser, as of January 11, 2010, the sum of: (a) the
aggregate number of the issued and outstanding Shares and (b) such additional
Shares that would be issued and outstanding on a fully-diluted basis, assuming:
(i) the conversion into Shares of all issued and outstanding convertible
securities of the Company and (ii) the exercise of all options, warrants or
other rights entitling any holder to purchase Shares.
ARTICLE
II
THE PURCHASED
SECURITIES
2.1. The
Purchased Securities; Purchase Price.
2.1.1. The
Purchase Price. Purchaser shall pay to the Company by wire
transfer of immediately available funds to an account designated by the Company
the sum of Three Hundred Fourteen Million Dollars ($314,000,000.00) (“Stock
Purchase Price”). The Stock Purchase Price shall be payable
commencing March 9, 2009 through September 9, 2010 in such amounts and at such
times as designated by the Board of Directors of the
Company. After receipt of each payment toward the Stock
Purchase Price, the Company shall deliver to the Purchaser certificates
evidencing legal and beneficial ownership of the pro rated portion of the
Purchased Securities (as defined below) so that the amount set forth in Section
2.1.2. below has been delivered after receipt of the entire Stock Purchase
Price. Until such time as the total number of Purchased Securities
can be determined, the Company shall deliver to the Purchaser certificates
evidencing a pro rated portion of the Purchased Securities based on the number
of issued and outstanding Shares, as of the date each payment of the Stock
Purchase Price is delivered to the Company. Upon the determination of
the total number of Purchased Securities, the Company shall deliver to the
Purchaser (or cancel as the case maybe) the number of additional Shares equal to
the Purchased Securities.
2
2.1.2. Purchased
Securities. Upon full payment of the Stock Purchase Price, the
Purchaser shall have received Shares, constituting forty nine percent (49%) of
the Shares on a Fully Diluted Basis (“Purchased Securities”).
2.2. Board of
Directors. Upon execution of this Agreement, the Purchaser and
the Company agree that the Purchaser shall have the right to select one member
of the Board of Directors of the Company.
2.3. Closing. Subject
to the terms and conditions of this Agreement, the closing of the Stock Purchase
shall take place at the law office of ▇▇▇▇▇▇▇, Cron & Jasper, PLC, Four
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ on the date or dates of the
delivery of the Stock Purchase Price or any portion thereof to the Company
(“each a “Closing”).
ARTICLE
III
RIGHT OF FIRST
REFUSAL
3.1. Right of
First Refusal
3.1.1. Notice of
Proposed Financing. If the Company
receives a proposal from a third party to raise capital to finance the Company’s
activities (“Proposed Financing”), the Company shall promptly give written
notice (“Notice”) to the Purchaser at least ten (10) business days prior to the
completion of the Proposed Financing. The Notice shall describe in
reasonable detail the Proposed Financing including, without limitation, the
amount of money to be raised pursuant to the Proposed Financing, the name and
address of the person or entity providing the Proposed Financing and the
consideration to be paid for the Proposed Financing.
3.1.2. Period of
Time to Exercise Right of First Refusal. The Purchaser shall have the
right, exercisable upon written notice to the Company within ten (10) business
days after receipt of the Notice, to provide written notice to the Company that
the Purchaser will provide the Proposed Financing on the same terms and
conditions set forth in the Proposed Financing.
3.1.3. Notice of
Election Not to Exercise Right of First Refusal. If the Purchaser decides
not to exercise its right of first refusal pursuant to paragraph 3.1.2. of this
Agreement, the Purchaser shall promptly give written notice of such decision to
the Company, but in no event later than the ten (10) business day period the
Purchaser has to exercise its right of first refusal for the Proposed
Financing. In the event that the Company does not receive such
written notice from the Purchaser within the ten (10) business day period, there
shall be a conclusive presumption that the Purchaser has elected not to exercise
its right of first refusal, and the Company may complete the Proposed Financing
on the same terms set forth in the Notice. In the event that the
Purchaser declines to exercise its right of first refusal after receipt of the
Notice or fails to do so within the required period of time, the Purchaser’s
right of first refusal shall nevertheless apply to any subsequent proposed
financing transaction.
3
ARTICLE
IV
REPRESENTATIONS AND
WARRANTIES OF THE PURCHASER
The
Purchaser hereby represents and warrants to the Company as follows, upon
execution of this Agreement and at Closing:
4.1. Organization
and Authorization. The Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
California. The Purchaser has full power and authority to execute and
deliver this Agreement and to perform its obligations pursuant to this
Agreement. This Agreement constitutes the valid and legally binding
obligation of the Purchaser, enforceable in accordance with its terms and
conditions. The Purchaser need not give any notice to, make any
filing with, or obtain any authorization, consent, or approval of any government
or governmental agency in order to consummate the transactions contemplated by
this Agreement. The Purchaser has the requisite corporate power and
authority and all requisite licenses, permits and franchises necessary to own
and operate its properties and to carry on its business as now being
conducted.
4.2. Investment
Intent and Due Diligence. The Purchaser is not acquiring the
Purchased Securities with a view to or for sale in connection with any
distribution thereof within the meaning of the Securities Act of 1933, as
amended (“Securities Act”). Purchaser is an accredited investor
within the meaning of the Securities Act, and its management is sophisticated
and experienced in transactions such as the Stock Purchase set forth in this
Agreement. The Purchaser has had an opportunity to review any
documentation of and from the Company, including, without limitation, its books,
records, properties and such other information as the Purchaser has requested
for the purpose of conducting any review or investigation related to the
transactions contemplated by this Agreement. The Purchaser has
completed its due diligence investigation, and the Purchaser has no reason to
believe that any of the representations and warranties of the Company, if any,
are misleading or inaccurate in any material respect.
4.3. Restricted
Securities. The Purchaser hereby acknowledges that the
Purchased Securities shall constitute restricted securities within the standard
meaning of the Securities Act. The Purchaser is an accredited
investor within the meaning of the Securities Act.
ARTICLE
V
ADDITIONAL MISCELLANEOUS
PROVISIONS
5.1. Termination. This
Agreement may be terminated and the transactions contemplated herein may be
abandoned at any time prior to the Closing, by mutual consent of the Purchaser
and the Company.
5.2. Executed
Counterparts. This Agreement may be executed in any number of
original, fax, electronic or copied counterparts. All counterparts
shall be considered together as one agreement.
5.3. Successors
and Assigns. Except as expressly provided in this Agreement,
each and all of the covenants, terms, provisions, conditions and agreements
contained in this Agreement shall be binding upon and shall inure to the benefit
of the successors and assigns of the Parties to this Agreement.
4
5.4. Governing
Law and Dispute Resolution. This Agreement shall be governed
by the laws of the State of California , without giving effect to any choice or
conflict of law provision or rule (whether of the State of California or any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of California. In the
event of a dispute related to or arising from the terms of this Agreement, such
dispute shall be submitted to binding arbitration before a single arbitrator
with the Judicial Arbitration and Mediation Services, Inc. located in Orange
County, California, for resolution pursuant to the California Code of Civil
Procedure and the California Evidence Code. The determination of the
arbitrator shall be final and binding on the Parties, and may be enforced by the
Superior Court of the State of California for the County of Orange.
5.5. Expenses. Each
of the Parties hereto shall pay its own expenses in connection with this
Agreement and the transactions contemplated by this Agreement, other than as a
result of the breach of this Agreement by any Party to this
Agreement.
5.6. Entire
Agreement. This Agreement contains the entire agreement and
understanding of the Parties to this Agreement with respect to the subject
matter contained in this Agreement. The Parties have expressly not
relied upon any promises, representations, warranties, agreements, covenants, or
undertakings, other than those expressly set forth or referred to in this
Agreement. This Agreement supersedes any and all prior written or
oral agreements, understandings and negotiations between the Parties with
respect to the subject matter contained in this Agreement. This
Agreement may be amended or modified only by a writing signed by all
Parties.
5.7. Waiver. No
failure by any Party to insist on the strict performance of any covenant, duty,
agreement, or condition of this Agreement or to exercise any right or remedy on
a breach shall constitute a waiver of any such breach or of any other covenant,
duty, agreement or condition. No course of dealing between the
Parties, nor any failure to exercise, nor any delay in exercising, any right,
power or privilege of either Party shall operate as a waiver thereof, nor shall
any single or partial exercise of any right, power, or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege.
5.8. Assignability. This
Agreement is not assignable by either Party, without the expressed written
consent of all Parties.
5.9. No Third
Party Beneficiaries. This Agreement has been entered into
solely by and between the Parties, solely for their benefit. There is
no intent by either Party to create or establish a third party beneficiary to
this Agreement, and no such third party shall have any right to enforce any
right, claim or cause of action created or established under this
Agreement.
5
IN WITNESS WHEREOF, this
Agreement has been duly executed by the Parties, and shall be effective as, of
and on the Effective Date.
|
PURCHASER:
|
COMPANY:
|
|
|
OLOTOA INVESTMENTS, LLC.,
a California limited liability company
|
CHINA TEL GROUP, INC., a
Nevada corporation
|
|
|
By: ___________________________
Signature
Print
Name
|
By: ______________________________
Signature
Print
Name
|
|
|
Its:
Print
Title
|
Its:
Print
Title
|
|
|
Dated
|
Dated
|
6