Exhibit
10.1
RESCISSION
AGREEMENT
This Rescission Agreement (the "Agreement") is
made and entered into as of November 25, 2008, and effective as of
April 1, 2008, by and among Global Roaming Distribution, Inc.,
a Florida corporation (the "Company"), Global Roaming Inc.
(“GRI”), a Nevada corporation, and the Holders named
below. The Company and GRI may be referred to herein
individually as a "party" and together as the "parties."
WITNESSETH THAT:
WHEREAS, on January 29, 2008, the Company and
GRI entered into a share exchange agreement (“Exchange
Agreement”), pursuant to which the Company issued and sold to
GRI 8,000,000 shares of the Company’s Series A Preferred
Stock (“Preferred Shares”) as consideration for the
transfer to the Company of 2,000,000 common shares (“Cubic
Shares”) of Cubic Telecom Limited (“Cubic”) held
by GRI.
WHEREAS, the 8,000,000 Preferred Shares are
currently held by Michael Thaler, Yakov Sarousi, and Jenny
Callicott, in the amount of 2,666,667 Preferred Shares, 4,000,000
Preferred Shares, and 1,333,333 Preferred Shares,
respectively;
WHEREAS, a dispute has arisen between the
Company, GRI and Cubic with regard to the Exchange Agreement and
the parties’ ongoing relationships.
WHEREAS, the Boards of Directors of GRI and the
Company have determined that it is in the best interests of the
Company and its stockholders to rescind the Exchange
Agreement.
WHEREAS, the parties desire to: (i) rescind the
Exchange Agreement; (ii) return to the Company for cancellation the
certificates representing the Preferred Shares; and (iii) return to
GRI the certificate representing the Cubic Shares.
NOW, THEREFORE, in consideration of the foregoing and mutual
covenants set forth below, the parties hereto agree as
follows:
1. RESCISSION
OF AGREEMENT AND DELIVERY OF SECURITIES
1.1
Closing . The closing (the “
Closing ” or “Closing Date”) shall
take place on or before November 25, 2008, at the offices of
Sichenzia Ross Friedman Ference LLP, 61 Broadway, 32
nd Fl. New York, NY 10006, or as counsel for
the parties otherwise may agree, subject to the satisfaction of the
Closing Conditions (hereinafter defined) having been satisfied or
waived by Parties. At the Closing, upon the terms and subject to
the conditions set forth herein, substantially concurrent with the
execution and delivery of this Agreement by the parties hereto, the
Company and GRI agree to rescind the Exchange Agreement, and such
Exchange Agreement shall be of no further force or effect as
between the Company and GRI. Each party shall deliver to
the other agreements and other items set forth in Section 1.2 of
this Agreement.
(a) On
or prior to the Closing Date, the Company shall deliver or cause to
be delivered to GRI the following:
(i) this
Agreement duly executed by the Company; and
(ii) a
certificate evidencing the Cubic Shares together with a stock power
duly endorsed to GRI;
(b) On
or prior to the Closing Date, GRI shall deliver or cause to be
delivered to the Company the following:
(i) this
Agreement duly executed by GRI; and
(ii) a
certificate evidencing 8,000,000 Preferred Shares, together with a
stock power duly endorsed to the Company.
(a) The
obligations of the Company hereunder in connection with the Closing
are subject to the following conditions being met:
(i) the
accuracy in all material respects on the Closing Date of the
representations and warranties of GRI contained herein;
(ii) all
obligations, covenants and agreements of GRI required to be
performed at or prior to the Closing Date shall have been
performed; and
(iii) the
delivery by GRI of the items set forth in Section 1.2(b) of this
Agreement.
(b) The
obligations of GRI hereunder in connection with the Closing are
subject to the following conditions being met:
(i) the
accuracy in all material respects on the Closing Date of the
representations and warranties of the Company contained
herein;
(ii) all
obligations, covenants and agreements of the Company required to be
performed at or prior to the Closing Date shall have been
performed; and
(iii) the
delivery by the Company of the items set forth in Section 1.2(a) of
this Agreement.
2. REPRESENTATIONS
AND WARRANTIES
2.1 The
Company hereby represents and warrants to GRI as
follows:
(a)
Organization and Qualification . The Company is
an entity duly incorporated or otherwise organized, validly
existing and in good standing under the laws of the jurisdiction of
its incorporation or organization. The Company is not in
violation nor default of any of the provisions of its certificate
or articles of incorporation, bylaws or other organizational or
charter documents. The Company is duly qualified to
conduct business and is in good standing as a foreign corporation
or other entity in each jurisdiction in which the nature of the
business conducted or property owned by it makes such qualification
necessary, except where the failure to be so qualified or in good
standing, as the case may be, could not have or reasonably be
expected to result in: (i) a material adverse effect on the
legality, validity or enforceability of this Agreement, (ii) or
(ii) a material adverse effect on the Company’s ability to
perform in any material respect on a timely basis its obligations
under this Agreement (any of (i), or (ii), a “ Material
Adverse Effect ”) and no Proceeding has been instituted
in any such jurisdiction revoking, limiting or curtailing or
seeking to revoke, limit or curtail such power and authority or
qualification.
(b)
Authorization; Enforcement . The Company has the
requisite corporate power and authority to enter into and to
consummate the transactions contemplated the Agreement and
otherwise to carry out its obligations hereunder. The
execution and delivery this Agreement by the Company and the
consummation by it of the transaction contemplated hereby have been
duly authorized by all necessary action on the part of the Company
and no further action is required by the Company, the Board of
Directors or the Company’s stockholders in connection
therewith. This Agreement has been duly executed by the
Company and, when delivered in accordance with the terms hereof and
thereof, will constitute the valid and binding obligation of the
Company enforceable against the Company in accordance with its
terms, except: (i) as limited by general equitable principles and
applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of
creditors’ rights generally, (ii) as limited by laws relating
to the availability of specific performance, injunctive relief or
other equitable remedies and (iii) insofar as indemnification and
contribution provisions may be limited by applicable
law.
(c)
No Conflicts . The execution, delivery and
performance of this Agreement by the Company and the consummation
by the Company of the transactions contemplated hereby do not and
will not (i) conflict with or violate any provision of the
Company’s certificate of incorporation, bylaws, articles of
organization, operating agreement or other organizational
documents, if any, or (ii) conflict with, or constitute a default
(or an event that with notice or lapse of time or both would become
a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation (with or without notice,
lapse of time or both) of, any agreement, credit facility, debt or
other instrument to which the Company is a party, or (iii) result
in a violation by the Company of any law, rule, regulation, order,
judgment, injunction or decree of any court or governmental
authority to which the Company is subject.
(d)
Filings, Consents and Approvals . The Company is
not required to obtain any consent, waiver, authorization or order
of, give any notice to, or make any filing or registration with,
any court or other federal, state, local or other governmental
authority or other person in connection with the execution,
delivery and performance by the Company of this
Agreement.
(e)
Transfer of the Shares . The Company is the
record and beneficial owner of the Cubic Shares set forth below the
Company’s signature block on the signature page to this
Agreement. The Company has good title to such securities
free and clear of any tax, lien, charge, mortgage, pledge, right
(including any rights of first offer and tag-along rights) or
encumbrances of any kind and such securities are not subject to any
pre-emptive, participation or similar right (“ Liens
”). Delivery of the securities to GRI will pass
good and valid title to the securities, free and clear of any
Liens.
(g)
No Reliance . The Company has made its own
independent decision to enter into this Agreement and whether this
Agreement is appropriate or proper for the Company based upon the
Company’s own judgment and upon
