Exhibit 4.2
NEITHER
THIS NOTE NOR THE SHARES OF PREFERRED OR COMMON STOCK ISSUABLE UPON CONVERSION OF THIS NOTE HAS BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAW, AND SUCH SECURITIES MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE
OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT OR STATE LAW OR AN OPINION OF COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
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$10,000,000
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Santa
Monica, California
June
17, 2019
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6%
CONVERTIBLE NOTE DUE DECEMBER 31, 2021
FOR
VALUE RECEIVED, Gopher Protocol Inc., a Nevada corporation (the “Company”), hereby promises to pay to the order of
Pablo Gonzalez, the principal amount of Ten Million dollars ($10,000,000) on December 31, 2021 (“Maturity Date”).
Interest on the outstanding principal balance shall be paid at the rate of six percent (6%) per annum, payable on the Maturity
Date. Accrued interest shall also be payable at such time as any payment of principal of this Note is made. Interest shall be
computed on the basis of a 360-day year, using the number of days actually elapsed.
ARTICLE
1.
Events
of Default and Acceleration
(a)
Events of Default Defined
. The entire unpaid principal amount of this Note, together with interest thereon shall, on written
notice to the Company given by the Holders of this Note, forthwith become and be due and payable if any one or more the following
events (“Events of Default”) shall have occurred (for any reason whatsoever and whether such happening shall be voluntary
or involuntary or be affected or come about by operation of law pursuant to or in compliance with any judgment, decree, or order
of any court or any order, rule or regulation of any administrative or governmental body) and be continuing. An Event of Default
shall occur:
(i)
if failure shall be made in the payment of the principal when and as the same shall become due and such failure shall continue
for a period of five (5) business days after such payment is due; or
(ii)
if failure shall be made in the payment of any installment of interest any of the Notes when and as the same shall become due
and payable whether at maturity or otherwise and such failure shall continue for ten (10) days after the date such payment is
due; or
(iii)
if the Company shall violate or breach any of the representations, warranties and covenants contained in the Note and such violation
or breach shall continue for thirty (30) days after written notice of such breach shall been received by the Company from the
holder of the Note; or
(iv)
if the Company shall consent to the appointment of a receiver, trustee or liquidator of itself or of a substantial part of its
property, or shall admit in writing its inability to pay its debts generally as they become due, or shall make a general assignment
for the benefit of creditors, or shall file a voluntary petition in bankruptcy, or an answer seeking reorganization in a proceeding
under any bankruptcy law (as now or hereafter in effect) or an answer admitting the material allegations of a petition filed against
the Company, in any such proceeding, or shall by voluntary petition, answer or consent, seek relief under the provisions of any
other now existing or future bankruptcy or other similar law providing for the reorganization or winding up of corporations, or
an arrangement, composition, extension or adjustment with its or their creditors, or shall, in a petition in bankruptcy filed
against it or them be adjudicated a bankrupt, or the Company or their directors or a majority of its stockholders shall vote to
dissolve or liquidate the Company other than a liquidation involving a transfer of assets from a Subsidiary to the Company; or
(v)
if an involuntary petition shall be filed against the Company seeking relief against the Company under any now existing or future
bankruptcy, insolvency or other similar law providing for the reorganization or winding up of corporations, or an arrangement,
composition, extension or adjustment with its or their creditors, and such petition shall not be vacated or set aside within ninety
(90) days from the filing thereof; or
(vi)
if a court of competent jurisdiction shall enter an order, judgment or decree appointing, without consent of the Company, a receiver,
trustee or liquidator of the Company, or of all or any substantial part of the property of the Company, or approving a petition
filed against the Company or any Material Subsidiary seeking a reorganization or arrangement of the Company or any Material Subsidiary
under the Federal bankruptcy laws or any other applicable law or statute of the United States of America or any State thereof,
or any substantial part of the property of the Company shall be sequestered; and such order, judgment or decree shall not be vacated
or set aside within ninety (90) days from the date of the entry thereof.
(b)
Rights of Note Holder
. Nothing in this Note shall be construed to modify, amend or limit in any way the right of the holder
of this Note to bring an action against the Company.
ARTICLE
2.
Conversion
(a)
Right of Conversion
.
(i)
At any time commencing on the date hereof (the “Initial Conversion Date”), the holder of this Note shall have the
right, in whole at any time and in part from time to time, prior to payment of the principal of this Note, to convert all or any
part of the principal amount of this Note outstanding from time to time and any accrued but unpaid interest thereon into such
number of shares of Series H Preferred Stock, par value $0.00001 per share (the "Series H Preferred Stock") at the conversion
price hereinafter defined (the “Conversion Price”); provided, that the right to conversion shall terminate at 5:00
P.M. New York City time on the business day prior to the Maturity Date of this Note.
(ii)
In order to exercise the conversion right, the holder of this Note shall surrender this Note at the office of the Company together
with written instructions specifying the portion of the principal amount of accrued interest on this Note which the holder elects
to convert and the registration and delivery of certificates for shares of Preferred Stock issuable upon such conversion. The
shares of Preferred Stock issuable upon conversion of principal and interest on this Note are referred to as the “Conversion
Shares.” The number of Conversion Shares to be issued upon any whole or partial conversion of this Note shall be determined
by dividing the amount of principal and interest being converted by the Conversion Price in effect on the date of such conversion,
which shall be the date this Note is delivered to the Company for conversion. The holder shall thereupon be deemed the holder
of the shares of Preferred Stock so issued, and the principal amount of the Note and interest thereon, to the extent so converted,
shall be deemed to have been paid in full. If this Note shall have been converted in part, the holder of this Note shall be entitled
to a new Note representing the unpaid principal balance of such Note remaining after deducting the principal amount of the Note
converted.
(b)
Conversion Price
. The Conversion Price shall mean $500 per share; subject to adjustment as hereinafter provided, if converted
in full will be converted into 20,000 Series H Preferred Stock (which in turn can be converted into 100,000,000 Common Shares).
(c)
Adjustment in Conversion Price
. If the Company shall (A) pay a dividend or make a distribution on its shares of Common
or Preferred Stock in shares of Preferred or Common Stock, (B) subdivide or reclassify its outstanding Preferred or Common Stock
into a greater number of shares, or (C) combine or reclassify its outstanding Preferred or Common Stock into a smaller number
of shares or otherwise effect a reverse split, the Conversion Price in effect at the time of the record date for such dividend
or distribution or of the effective date of such subdivision or other combination or reclassification shall be proportionately
adjusted upward or downward, as the case may be in accordance with generally accepted accounting principles.
(d)
Reclassification, Reorganization or Merger
. In case of any reclassification, capital reorganization or other change of
outstanding shares of Common or Preferred Stock of the Company, or in case of any consolidation or merger of the Company with
or into another corporation (other than a merger with a subsidiary in which merger the Company is the continuing corporation and
which does not result in any reclassification, capital reorganization or other change of outstanding shares of Common or Preferred
Stock or the class issuable upon conversion of this Note) or in case of any sale, lease or conveyance to another corporation of
the property of the Company as an entirety, the Company shall, as a condition precedent to such transaction, cause effective provisions
to be made so that the holder of this Note shall have the right thereafter by converting this Note, to purchase the kind and amount
of shares of stock and other securities and property receivable upon such reclassification, capital reorganization and other change,
consolidation, merger, sale or conveyance by a holder of the number of shares of Common or Preferred Stock which might have been
purchased upon conversion of this Note immediately prior to such reclassification, change, consolidation, merger, sale or conveyance.
(e)
Fractional Shares
. No fractional shares or script representing fractional shares shall be issued upon the conversion of
any Notes.
ARTICLE
3.
Miscellaneous
(a)
Transferability
. This Note shall not be transferred except in a transaction exempt from registration pursuant to the Securities
Act and applicable state securities law. The Company shall treat as the owner of this Note the person shown as the owner on its
books and records.
(b)
WAIVER OF TRIAL BY JURY
. IN ANY LEGAL PROCEEDING TO ENFORCE PAYMENT OF THIS NOTE, THE COMPANY WAIVES TRIAL BY JURY.
(c)
WAIVER OF ANY RIGHT OF COUNTERCLAIM
. EXCEPT AS PROHIBITED BY LAW, THE COMPANY HEREBY WAIVES ANY RIGHT TO ASSERT ANY CLAIM
IT MAY HAVE AGAINST THE HOLDER OF THIS NOTE BY WAY OF A COUNTERCLAIM (OTHER THAN A COMPULSORY COUNTERCLAIM) IN ANY ACTION ON THIS
NOTE.
(d)
Usury Saving Provision
. All payment obligations arising under this Note are subject to the express condition that at no
time shall the Company be obligated or required to pay interest at a rate which could subject the holder of this Note to either
civil or criminal liability as a result of being in excess of the maximum rate which the Company is permitted by law to contract
or agree to pay. If by the terms of this Note, the Company is at any time required or obligated to pay interest at a rate in excess
of such maximum rate, the applicable rate of interest shall be deemed to be immediately reduced to such maximum rate, and interest
thus payable shall be computed at such maximum rate, and the portion of all prior interest payments in excess of such maximum
rate shall be applied and shall be deemed to have been payments in reduction of principal.
(e)
Governing Law
. This Note shall be governed by the laws of the State of California applicable to agreements executed and
to be performed wholly within such State. The Company hereby (i) consents to the exclusive jurisdiction of the state and federal
courts located in Los Angeles, California in any action relating to or arising out of this Note, (ii) agrees that any process
in any such action may be served upon it, in addition to any other method of service permitted by law, by certified or registered
mail, return receipt requested, or by an overnight courier service which obtains evidence of delivery, with the same full force
and effect as if personally served upon him in California City, and (iii) waives any claim that the jurisdiction of any such tribunal
is not a convenient forum for any such action and any defense of lack of in personal jurisdiction with respect thereto.
(f)
Expenses
. In the event that the Holder commences a legal proceeding in order to enforce its rights under this Note, the
Company shall pay all reasonable legal fees and expenses incurred by the holder with respect thereto.
IN
WITNESS WHEREOF, the Company has executed this Note as of the date and year first aforesaid.
GOPHER
PROTOCOL INC.
By:________________________________
Mansour
Khatib, CMO, Secretary & Director
NOTICE
OF CONVERSION
[To
be Signed Only Upon Conversion
of
Part or All of Notes]
GOPHER
PROTOCOL INC.
The
undersigned, the holder of the foregoing Note, hereby surrenders such Note for conversion into shares of Series H Preferred Stock,
par value $0.00001 per share (the "Series H Preferred Stock") of Gopher Protocol Inc.to the extent of $
unpaid principal amount of and interest due on such Note, and requests that the certificates for such shares be issued in the
name of
_____________
, and delivered to _________, whose address is
_____________________
.
Dated:_________________
______________________
(Signature)
(Signature
must conform in all respects to name of holder as specified on the face of the Note.)
Exhibit 10.1
EXCHANGE
AGREEMENT
EXCHANGE
AGREEMENT
, dated as of June 17
, 2019 (
the “
Agreement
”),
by and among
GOPHER PROTOCOL INC.
, a Nevada corporation (“
Parent
”),
ALTCORP TRADING LLC
, a Costa
Rican corporation and a wholly owned subsidiary of the Parent to be formed (“
Purchaser
”),
GBT TECHNOLOGIES,
S.A.
, a Costa Rican corporation, (the “
Company
”), and
Pablo Bernabe Gonzalez
– individual
for the benefit of Company in formation in his control (the “
Sellers
”).
WHEREAS
,
the Company is in the business of the strategic management of BPO (Business Process Outsourcing) digital communications processing
for enterprises and startups; distributed ledger technology development, AI development and fintech software development and applications;
WHEREAS
,
the Seller desires to sell to Purchaser and the Purchaser desires to purchase from the Seller, 25% of the outstanding securities
of the Company in exchange for shares of common stock and Series H Convertible Preferred Stock of the Purchaser and upon the terms
and conditions hereinafter set forth;
WHEREAS
,
certain terms used in this Agreement are defined in Article 1; and
NOW,
THEREFORE,
in consideration of the premises and the mutual covenants, agreements, representations and warranties contained
herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
Article
1.
DEFINITIONS AND INTERPRETATION
1.1
Definitions
. As used in this Agreement, the following terms when capitalized in this Agreement shall have the following
meanings:
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(a)
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“Affiliates"
shall mean, with respect to any Person, any and all other Persons that control, are
controlled by, or are under common control with, such Person. For purposes of the foregoing,
"control" of a Person shall mean direct or indirect ownership of 50% or more
of the securities or other interests of such Person having by their terms ordinary voting
power to elect or appoint a majority of the board of directors or others performing similar
functions with respect to such Person.
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(b)
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“Acquisition”
means the Acquisition, at the Closing, of the Company by Purchaser pursuant to this
Agreement;
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(c)
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“
Acquisition
Securities
” means the (A) 20,000 shares of Series H Convertible Preferred Stock
of the Parent (the “
Preferred Acquisition Securities
”) the rights
and preferences of which will be set forth in the Certificate of Designation attached
hereto as
Exhibit A
to be issued to the Sellers at Closing pursuant to the terms
of the Acquisition; (B) a Convertible Note in the principal amount of $10,000,000 issued by
the Parent attached hereto as
Exhibit B
(the “
Convertible Note
”); (C) that certain Promissory Note
payable by Gopher Protocol Costa Rica Sociedad De Responsabilidad Limitada to the Purchaser in the principal amount of
$5,000,000 dated February 6, 2019 attached hereto as
Exhibit C
(the “
Costa Rica Note
”); and (D)
60,000,000 restricted shares of common stock of Mobiquity Technologies, Inc. (the “
MOBQ
Shares
”).
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(d)
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"Business
Day"
shall mean any day other than Saturday, Sunday and any day on which banking
institutions in the United States are authorized by law or other governmental action
to close;
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(e)
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“
Closing
Date
” means the day on which all conditions precedent to the completion of
the transactions contemplated hereby have been satisfied or waived;
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(f)
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"Contract"
shall mean an agreement, written or oral, between the Company and any other Person
which obligates either the Company or such other Person to do or not to do a particular
thing.
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(g)
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"Environmental
Liabilities"
means any cost, damages, expense, liability, obligation, or other
responsibility arising from or under (a) any Environmental Law and consisting of or relating
to (i) any environmental matters or conditions (including on-site or off-site contamination
and environmental regulation of chemical substances or products); (ii) fines, penalties,
judgments, awards, settlements, legal or administrative proceedings, out-of-pocket damages
and necessary and required response, investigative, remedial, or inspection costs and
expenses arising under Environmental Law; (iii) financial responsibility under Environmental
Law for clean-up costs or corrective action, including any necessary and required investigation,
clean-up, removal, containment, or other remediation or response actions required by
Environmental Law and for any natural resource damages; or (iv) any other compliance,
corrective, investigative, or remedial measures required under Environmental Law; or
(b) any common law causes of action, including, but not limited to, negligence, trespass
or nuisance, based on violation by the Company of Environmental Laws, releases by the
Company of Hazardous Materials or actions or omissions by the Company that expose others
to Hazardous Materials. The terms "removal," "remedial," "response
action", and "release" shall have the meanings provided for such terms
under, and shall include the types of activities covered by, the United States Comprehensive
Environmental Response, Compensation, and Liability Act, 42 U.S.C. Section 9601 et seq.,
as amended ("CERCLA").
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(h)
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"Environmental
Laws"
shall mean all federal, state and local Laws relating to public health,
or to pollution or protection of the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface strata) including, without
limitation, the Clean Air Act, as amended, CERCLA, the Resource Conservation and Recovery
Act of 1976, as amended ("RCRA"), the Toxic Substances Control Act, the Federal
Water Pollution Control Act, as amended, the Safe Drinking Water Act, as amended, the
Hazardous Materials Transportation Act, as amended, the Oil Pollution Act of 1990, any
state Laws implementing the foregoing federal Laws, and all other Laws relating to or
regulating (i) emissions, discharges, releases, or cleanup of pollutants, contaminants,
chemicals, polychlorinated
biphenyls (PCB's), oil and gas exploration and production wastes, brine, solid wastes, or toxic or Hazardous Materials or wastes
(collectively, the "Polluting Substances"), (ii) the generation, processing, distribution, use, treatment, handling,
storage, disposal, or transportation of Polluting Substances, or (iii) environmental conservation or protection. References in
this Agreement to Environmental Laws existing or in effect as of a particular date shall include written administrative interpretations
and policies then existing or in effect.
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(i)
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"Environmental
Permit"
means any federal, state, local, provincial, or foreign permits, licenses,
approvals, consent or authorizations required by any Governmental or Regulatory Authority
under or in connection with any Environmental Law and includes any and all orders, consent
orders or binding agreements issued or entered into by a Governmental or Regulatory Authority
under any applicable Environmental Law.
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(j)
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"Governmental
or Regulatory Authority"
shall mean any federal, state, regional, municipal
or local court, legislative, executive, Native American or regulatory authority or agency,
board, commission, department or subdivision thereof.
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(k)
|
"Hazardous
Activity"
means the distribution, generation, handling, importing, management,
manufacturing, processing, production, refinement, release, storage, transfer, transportation,
treatment, or use (including any withdrawal or other use of groundwater) of Hazardous
Materials in, on, under, about, or from the Company’s facilities or any part thereof
into the environment.
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(l)
|
"Hazardous
Materials"
means (i) any petroleum or petroleum products, radioactive materials,
asbestos in any form that is, or that is likely to become, friable, urea formaldehyde
foam insulation and transformers or other equipment that contain dielectric fluid containing
levels of polychlorinated biphenyls (PCBs), or (ii) any chemicals, materials, substances
or wastes which are now or hereafter become defined as or included in the definition
of "hazardous substances," "hazardous wastes," "hazardous materials,"
"extremely hazardous wastes," "restricted hazardous wastes," "toxic
substances," "toxic pollutants" or words of similar import, under any
applicable Environmental Law.
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(m)
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"Indemnified
Party"
means any Person entitled to indemnification under any provision of Article
9.
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(n)
|
"Indemnifying
Party"
means any Person obligated to provide indemnification under any provision
of Article 9.
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(o)
|
"Law"
shall mean any federal, state, county, or local laws, statutes, regulations, rules,
codes, ordinances, orders, decrees, judgments or injunctions enacted, adopted, issued
or promulgated by any Governmental or Regulatory Authority, from time to time.
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(p)
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"Lien"
shall mean any mortgage, deed of trust, pledge, lien, claim, security interest, covenant,
restriction, easement, preemptive right, or any other encumbrance or charge of any kind.
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(q)
|
“Material
Adverse Effect”
shall mean any material adverse effect on the business or financial
condition of the Company;
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(r)
|
“Order”
shall mean any writ, judgment, decree, injunction or similar order of any Governmental
or Regulatory Authority (in each such case whether preliminary or final).
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(s)
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“
Place
of Closing
” means the offices of the Purchaser, or such other place as Purchaser
and the Sellers may mutually agree upon;
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(t)
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"Permitted
Lien"
shall mean: (a) liens created under any Lease, except any lien arising
as a result of any failure to timely make any payment or failure to perform any other
obligation or other default under such Lease; (b) liens for Taxes that are not yet due
and payable or that are being contested in good faith by appropriate proceedings; (c)
mechanics, materialmen's, landlords', carriers', warehousemen's, and other liens imposed
by law incurred in the ordinary course of business; (d) zoning restrictions, land use
regulations, declarations, reservations, provisions, covenants, conditions, waivers,
restrictions on the use of property and third party easements, rights of way, leases
or similar matters that are recorded in the county records where the effected property
is located and do not prohibit the use of the property as currently used; (e) the absence
of executed rights of way or easements, or a defect in any executed right of way or easement,
where such rights have been or can be otherwise obtained through a proceeding under prescription
or other operation of law; (f) deposits or pledges to secure obligations under worker's
compensation, social security or similar laws, or under unemployment insurance; (g) deposits
or pledges to secure bids, tenders, contracts (other than contracts for the payment of
money), leases, statutory obligations, surety and appeal bonds, performance bonds and
other obligations of like nature arising in the ordinary course of the Company's business
and made, created or arising prior to the Closing Date; (h) leases or subleases granted
by or to others; and (i) precautionary Uniform Commercial Code financing statements regarding
operating leases which leases are either disclosed pursuant to Article 3 hereof or no
longer in effect.
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(u)
|
"Person"
shall mean an individual, partnership, joint venture, trust, corporation, limited
liability company or other legal entity or Governmental or Regulatory Authority.
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(v)
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“
Shares
”
means 625,000 of the issued and outstanding shares of common stock of the Company as
defined in Section 3.3 representing 25.0% of the issuance and outstanding shares of common
stock of the Company, which has 2,500,000 shares of common stock outstanding.
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(w)
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"Taxes"
shall mean any and all taxes, charges, fees, levies or other assessments, including,
without limitation, all net income, gross income, gross receipts, excise, stamp, real
or personal property, ad valorem, withholding, estimated, social security, unemployment,
occupation, use, sales, service, service use, license, net worth, payroll, franchise,
severance, transfer, recording or other taxes, assessments or charges imposed by any
Governmental or Regulatory Authority, whether computed on a separate, consolidated, unitary,
combined or other basis, and in each case such term shall include any interest, penalties,
or additions to tax attributable thereto.
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(x)
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"Tax
Return"
shall mean any return, report or similar statement required to be filed
with respect to any Tax (including any attached schedules), including, without limitation,
any information return, claim for refund, amended return or declaration of estimated
Tax and including any return of an affiliated, combined or unitary group.
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Any
other terms defined within the text of this Agreement will have the meanings so ascribed to them.
1.2
Captions and Section Numbers
. The headings and section references in this Agreement are for convenience of reference only
and do not form a part of this Agreement and are not intended to interpret, define or limit the scope, extent or intent of this
Agreement or any provision thereof.
1.3
Section References and Schedules
. Any reference to a particular “Article”, “Section”, “paragraph”,
“clause” or other subdivision is to the particular Article, section, clause or other subdivision of this Agreement
and any reference to a Schedule by number will mean the appropriate Schedule attached to this Agreement and by such reference
the appropriate Schedule is incorporated into and made part of this Agreement.
1.4
Severability of Clauses
. If any part of this Agreement is declared or held to be invalid for any reason, such invalidity
will not affect the validity of the remainder which will continue in full force and effect and be construed as if this Agreement
had been executed without the invalid portion, and it is hereby declared the intention of the parties that this Agreement would
have been executed without reference to any portion which may, for any reason, be hereafter declared or held to be invalid.
Article
2.
THE ACQUISITION
2.1
The Acquisition
. Subject to the terms and conditions set forth in this Agreement and in reliance on the representations,
warranties, covenants and conditions herein contained, the Seller hereby agrees to sell, assign and deliver to Purchaser the Shares
in exchange for the Acquisition Securities on the Closing Date as set forth on
Exhibit D
and to transfer to Purchaser on
the Closing Date a undivided interest in and to the Shares free from all liens, mortgages, charges, pledges, encumbrances or other
burdens (other than those that may arise under federal or state securities laws restricting the right to sell or transfer the
Shares) with all rights now or thereafter attached thereto.
2.2
Purchase Price; Allocation
. The purchase price for the purchase of the Shares shall be the Acquisition Securities.
2.3
Adherence with Applicable Securities Laws
. The Seller agree that he is acquiring the Acquisition Securities for investment
purposes and will not offer, sell or otherwise transfer, pledge or hypothecate any of the Acquisition Securities issued to him
(other than pursuant to an effective Registration Statement under the Securities Act of 1933, as amended (the “
Securities
Act
”) directly or indirectly unless:
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(a)
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the
sale is to Purchaser;
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(b)
|
the
sale is made pursuant to the exemption from registration under the Securities Act
,
provided by Rule 144 thereunder; or
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(c)
|
the
Acquisition Securities are sold in a transaction that does not require registration under
the Securities Act or any applicable United States state laws and regulations governing
the offer and sale of securities, and the vendor has furnished to Purchaser an opinion
of counsel to that effect or such other written opinion as may be reasonably required
by Purchaser.
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The
Seller acknowledges that the certificates representing the Acquisition Securities shall bear the following legend:
THESE
SECURITIES HAVE NOT BEEN REGISTERED
UNDER
THE SECURITIES ACT OF 1933. THEY MAY NOT
BE
SOLD, OFFERED FOR SALE, PLEDGED,
HYPOTHECATED
OR OTHERWISE TRANSFERRED IN
THE
ABSENCE OF A REGISTRATION STATEMENT WITH
RESPECT
TO THE SECURITIES UNDER SUCH ACT AND
THE
OPINION OF COUNSEL REASONABLY
SATISFACTORY
TO THE COMPANY THAT SUCH
REGISTRATION
IS NOT REQUIRED OR UNLESS SOLD
PURSUANT
TO RULE 144 OR RULE 144A OF SUCH ACT.
2.4
Closing. The parties hereto shall use their best efforts to close the transactions contemplated by this Agreement (the “
Closing
”),
by June 17, 2019.
Article
3.
REPESENTATIONS AND WARRANTIES OF THE COMPANY and SELLER
The
Company and Seller hereby jointly and severally represent and warrant to Purchaser, that:
3.1
Organization, Standing and Power
. The Company is a corporation duly organized, validly existing and in good standing under
the laws of Costa Rica, with full corporate power and corporate authority to (i) own, lease and operate its properties, (ii) carry
on the business as currently conducted by it. There are no states or jurisdictions in which the character and location of any
of the properties owned or leased by the Company, or the conduct of the Company’s business makes it necessary for the Company
to qualify to do business as a foreign corporation, except for those jurisdictions in which the failure to so qualify would not
have a Material Adverse Effect on the business or operations of the Company.
3.2
Authorization
of Agreement.
The Seller has all requisite power, authority and legal capacity to execute and deliver this Agreement, and
each other agreement, document, or instrument or certificate contemplated by this Agreement or to be executed by such Seller
in connection with the consummation of the transactions contemplated by this Agreement (together with this Agreement, the
“
Seller Documents
”), and to consummate the transactions contemplated hereby and thereby. This
Agreement has been, and each of the Seller Documents will be at or prior to the Closing, duly and validly executed and
delivered by the Seller and (assuming the due authorization, execution and delivery by the other parties hereto and thereto)
this Agreement constitutes, and each of the Seller Documents when so executed and delivered will constitute, legal, valid and
binding obligations of the Seller, enforceable against the Seller in accordance with their respective terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors' rights and remedies
generally,
and subject, as to enforceability, to general principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in
equity).
3.3
Capitalization
. The authorized capital stock of the Company consists of 2,500,000 shares of common stock, $0.01 par value,
2,500,000 shares of which are issued and outstanding (the “
Shares
”). All of the Shares are duly authorized,
validly issued, fully paid and nonassessable. There are no options, warrants or other rights, agreements, arrangements or commitments
of any character relating to the issued or unissued capital stock of the Company or obligating the Company to issue or sell any
shares of capital stock of or other equity interests in the Company. There is no personal liability, and there are no preemptive
rights with regard to the capital stock of the Company, and no right-of-first refusal or similar catch-up rights with regard to
such capital stock. Except for the transactions contemplated by this Agreement, there are no outstanding contractual obligations
or other commitments or arrangements of the Company to (A) repurchase, redeem or otherwise acquire any shares of the shares of
the Company (or any interest therein) or (B) to provide funds to or make any investment (in the form of a loan, capital contribution
or otherwise) in any other entity, or (C) issue or distribute to any person any capital stock of the Company, or (D) issue or
distribute to holders of any of the capital stock of the Company any evidences of indebtedness or assets of the Company. All of
the outstanding securities of the Company have been issued and sold by the Company in full compliance in all material respects
with applicable federal and state securities laws.
3.4
Corporate Records
.
|
|
(a)
|
The
Sellers and the Company have delivered to the Purchaser true, correct and complete copies
of the certificate of incorporation (certified by the Secretary of State or other appropriate
official of the applicable jurisdiction of organization) and by-laws (certified by the
secretary, assistant secretary or other appropriate officer) or comparable organizational
documents of the Company.
|
|
|
(b)
|
The
minute books of the Company previously made available to the Purchaser contain complete
and accurate records of all meetings and accurately reflect all other corporate action
of the stockholders and board of directors (including committees thereof) of the Company.
The stock certificate books and stock transfer ledgers of the Company previously made
available to the Purchaser are true, correct and complete. All stock transfer taxes levied
or payable with respect to all transfers of shares of the Company prior to the date hereof
have been paid and appropriate transfer tax stamps affixed.
|
3.5
Conflicts; Consents of Third Parties
.
|
|
(a)
|
None
of the execution and delivery by the Company or the Seller of this Agreement and the
Seller Documents, the consummation of the transactions contemplated hereby or thereby,
or compliance by the Company or any Seller with any of the provisions hereof or thereof
will (i) conflict with, or result in the breach of, any provision of the articles of
incorporation or by-laws or comparable organizational documents of the Company; (ii)
conflict with, violate, result in the breach or termination of, or constitute a default
under any note, bond, mortgage, indenture, license, agreement or other instrument or
obligation to which the Company is a party or by which any of them or any of their respective
properties or assets is bound; (iii) violate any statute, rule, regulation, order or
decree of any governmental body or authority by which the Company is bound; or (iv) result
in the creation of any Lien upon the properties or assets of the Company or any subsidiary
of the Company except, in case of clauses (ii), (iii) and (iv), for such violations,
breaches or defaults as would not, individually or in the aggregate, have a Material
Adverse Effect.
|
|
|
(b)
|
No
consent, waiver, approval, Order, permit or authorization of, or declaration or filing
with, or notification to, any Person or Governmental or Regulatory Authority is required
on the part of any Seller, the Company in connection with the execution and delivery
of this Agreement or the Seller Documents, or the compliance by each Seller or the Company
as the case may be, with any of the provisions hereof or thereof.
|
3.6
Financial Statements
.
|
|
(a)
|
The
Purchaser has reviewed copies of the audited balance sheets of the Company as at December
31, 2018 and the related audited (by Deloitte) statements of income and of cash flows
of the Company for the year then ended and the copies of the unaudited balance sheets
of the Company as at March 31, 2019 and the related unaudited statements of income and
of cash flows of the Company for the years then ended (the “
Company Financial
Statements
”). Each of the Company Financial Statements is complete and correct
in all material respects, has been prepared in accordance with IFRS that been converted
into US GAAP (subject to normal year-end adjustments in the case of the unaudited statements)
and in conformity with the practices consistently applied by the Company without modification
of the accounting principles used in the preparation thereof and presents fairly the
financial position, results of operations and cash flows of the Company as at the dates
and for the periods indicated.
|
|
|
(b)
|
For
the purposes hereof, the audited balance sheet of the Company as at December 31, 2018
is referred to as the "Company Balance Sheet" and December 31, 2018 is referred
to as the “Company Balance Sheet Date”.
|
3.7
No
Undisclosed Liabilities
. Company has no indebtedness, obligations or liabilities of any kind (whether accrued,
absolute, contingent or otherwise, and whether due or to become due) that would have been required to be reflected in,
reserved against or otherwise described on the Company Balance Sheet or in the notes thereto in accordance with GAAP which
was not fully reflected in, reserved against or otherwise described in the Company Balance Sheet or the notes thereto or was
not incurred in the ordinary course of business consistent with past practice since the Company Balance Sheet
Date.
3.8
Absence of Certain Developments
. Except as expressly contemplated by this Agreement, since the Company Balance Sheet Date:
|
|
(i)
|
there
has not been any material adverse change nor has there occurred any event which is reasonably
likely to result in a material adverse change;
|
|
|
(ii)
|
there
has not been any damage, destruction or loss, whether or not covered by insurance, with
respect to the property and assets of the Company having a replacement cost of more than
$250,000 for any single loss or $1,000,000 for all such losses;
|
|
|
(iii)
|
there
has not been any declaration, setting aside or payment of any dividend or other distribution
in respect of any shares of capital stock of the Company or any repurchase, redemption
or other acquisition by the Company of any outstanding shares of capital stock or other
securities of, or other ownership interest in, the Company;
|
|
|
(iv)
|
there
has not been any change by the Company in accounting or Tax reporting principles, methods
or policies;
|
|
|
(v)
|
the
Company has not entered into any transaction or Contract or conducted its business other
than in the ordinary course consistent with past practice;
|
|
|
(vi)
|
the
Company has not made any loans, advances or capital contributions to, or investments
in, any Person or paid any fees or expenses to the Seller or any Affiliate of the Seller;
|
|
|
(vii)
|
the
Company has not mortgaged, pledged or subjected to any Lien, any of its assets, or acquired
any assets or sold, assigned, transferred, conveyed, leased or otherwise disposed of
any assets of the Company, except for assets acquired or sold, assigned, transferred,
conveyed, leased or otherwise disposed of in the ordinary course of business consistent
with past practice;
|
|
|
(viii)
|
the
Company has not discharged or satisfied any Lien, or paid any obligation or liability
(fixed or contingent), except in the ordinary course of business consistent with past
practice and which, in the aggregate, would not be material to the Company;
|
|
|
(ix)
|
the
Company has not canceled or compromised any debt or claim or amended, canceled, terminated,
relinquished, waived or released any Contract or right except in the ordinary course
of business consistent with past practice and which, in the aggregate, would not be material
to the Company;
|
|
|
(x)
|
the
Company has not made or committed to make any capital expenditures or capital additions
or betterments in excess of $250,000 individually or $1,000,000 in the aggregate;
|
|
|
(xi)
|
the
Company has not instituted or settled any material legal proceeding; and
|
|
|
(xii)
|
the
Company has not agreed to do anything set forth in this Section 4.9.
|
3.9
Taxes
.
|
|
(a)
|
(A)
all Tax Returns required to be filed by or on behalf of the Company have been filed with
the appropriate taxing authorities in all jurisdictions in which such Tax Returns are
required to be filed (after giving effect to any valid extensions of time in which to
make such filings), and all such Tax Returns were true, complete and correct in all material
respects; (B) all Taxes payable by or on behalf of the Company or in respect of its income,
assets or operations have been fully and timely paid, and (C) the Company has not executed
or filed with the IRS or any other taxing authority any agreement, waiver or other document
or arrangement extending or having the effect of extending the period for assessment
or collection of Taxes (including, but not limited to, any applicable statute of limitation),
and no power of attorney with respect to any Tax matter is currently in force.
|
|
|
(b)
|
The
Company has complied in all material respects with all applicable laws, rules and regulations
relating to the payment and withholding of Taxes and has duly and timely withheld from
employee salaries, wages and other compensation and has paid over to the appropriate
taxing authorities all amounts required to be so withheld and paid over for all periods
under all applicable laws.
|
3.10
Real Property
. The Company does not own any real property.
3.11
Patriot Act
. The Company certifies that it has not been designated, and is not owned or controlled, by a “suspected
terrorist” as defined in Executive Order 13224. The Company hereby acknowledges that the Seller seeks to comply with all
applicable Laws concerning money laundering and related activities. In furtherance of those efforts, the Company hereby represents,
warrants and agrees that: (i) none of the cash or property owned by the Company has been or shall be derived from, or related
to, any activity that is deemed criminal under United States law; and (ii) no contribution or payment by the Company has, and
this Agreement will not, cause the Company to be in violation of the United States Bank Secrecy Act, the United States International
Money Laundering Control Act of 1986 or the United States International Money Laundering Abatement and Anti-Terrorist Financing
Act of 2001.
ARTICLE
3A
REPESENTATIONS
AND WARRANTIES OF THE SELLER
The
Seller, on his behalf only, represents and warrants to Purchaser, that:
3A.1 Ownership
and Transfer of Shares
. The Seller is the record and beneficial owner of the Shares indicated as being owned by such Seller
on
Exhibit D
, free and clear of any and all Liens. The Seller has the power and authority to sell, transfer, assign and
deliver such Shares as provided in this Agreement, and such delivery will convey to the Purchaser good and marketable title to
such Shares, free and clear of any and all Liens.
3A.2 Investors
.
The Seller represents and warrants to Purchaser that he is an “accredited investor” as such term is defined under
the Securities Act of 1933, as amended.
Article
4.
REPRESENTATIONS AND WARRANTIES OF THE PARENT
Purchaser
represents and warrants to the Company and the Seller, that:
4.1
Organization and Good Standing
.
The
Parent is a corporation duly organized, validly existing and in good standing under the laws of the State of Nevada, with full
corporate power and corporate authority to (i) own, lease and operate its properties, (ii) carry on the business as currently
conducted by it. There are no states or jurisdictions in which the character and location of any of the properties owned or leased
by the Parent, or the conduct of the Parent’s business makes it necessary for the Parent to qualify to do business as a
foreign corporation, except for those jurisdictions in which the failure to so qualify would not have a Material Adverse Effect
on the business or operations of the Parent.
4.2
Authorization of Agreement
.
The
Parent has full corporate power and authority to execute and deliver this Agreement and each other agreement, document, instrument
or certificate contemplated by this Agreement or to be executed by the Parent in connection with the consummation of the transactions
contemplated hereby and thereby (the "
Parent Documents
"), and to consummate the transactions contemplated hereby
and thereby. The execution, delivery and performance by the Parent of this Agreement and each Parent Document have been duly authorized
by all necessary corporate action on behalf of the Parent. This Agreement has been, and each Parent Document will be at or prior
to the Closing, duly executed and delivered by the Parent and (assuming the due authorization, execution and delivery by the other
parties hereto and thereto) this Agreement constitutes, and each Parent Document when so executed and delivered will constitute,
legal, valid and binding obligations of the Parent, enforceable against the Parent in accordance with their respective terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors' rights and remedies
generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness,
good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity).
4.3
Capitalization
.
The
authorized capital stock of the Parent is as set forth in its filings with the Securities and Exchange Commission (the
“
SEC Filings
”). All of the shares of the Parent are duly authorized, validly issued, fully paid and
nonassessable. There is no personal liability, and there are no preemptive rights with regard to the capital stock of the
Parent, and no right-of-first refusal or similar catch-up rights with regard to such capital stock. There are no outstanding
contractual obligations or other commitments or arrangements of the Parent to (A) repurchase, redeem or otherwise acquire any
shares of the Shares (or any interest therein) or (B) to provide funds to or make any investment (in the form of a loan,
capital contribution or otherwise) in any other entity, or (C) issue or distribute to any person any capital stock of the
Parent, or (D) issue or distribute to holders of any of the capital stock of the Parent any evidences of indebtedness or
assets of the Parent. All of the outstanding securities of the Parent have been issued and sold by the Parent in full
compliance in all material respects with applicable federal and state securities laws.
4.4
Subsidiaries
. The Parent’s subsidiaries are set forth in the SEC Filings.
4.5
Corporate Records
.
|
|
(a)
|
The
Parent has delivered to the Company true, correct and complete copies of the articles
of incorporation (each certified by the Secretary of State or other appropriate official
of the applicable jurisdiction of organization) and by-laws (each certified by the secretary,
assistant secretary or other appropriate officer) or comparable organizational documents
of the Parent.
|
|
|
(b)
|
The
minute books of the Parent previously made available to the Seller contain complete and
accurate records of all meetings and accurately reflect all other corporate action of
the stockholders and board of directors (including committees thereof) of the Parent
to the best of the Parent’s knowledge. The stock certificate books and stock transfer
ledgers of the Parent previously made available to the Seller are true, correct and complete.
All stock transfer taxes levied or payable with respect to all transfers of shares of
the Parent prior to the date hereof have been paid and appropriate transfer tax stamps
affixed to the best of the Parent’s knowledge.
|
4.6
Intentionally Left Blank
.
4.7
Financial Statements
.
|
|
(a)
|
The
Seller has reviewed copies of the audited balance sheets of the Parent as at December
31, 2018 and 2017 and the related audited statements of income and of cash flows of the
Parent for the years then ended and the copies of the unaudited balance sheets of the
Parent as at December 31, 2018 and the related unaudited statements of income and of
cash flows of the Parent for the years then ended (the “
Financial Statements
”).
Each of the Financial Statements is complete and correct in all material respects, has
been prepared in accordance with GAAP (subject to normal year-end adjustments in the
case of the unaudited statements) and in conformity with the practices consistently applied
by the Parent without modification of the accounting principles used in the preparation
thereof and presents fairly the financial position, results of operations and cash flows
of the Parent as at the dates and for the periods indicated.
|
|
|
(b)
|
For
the purposes hereof, the audited balance sheet of the Parent as at December 31, 2018
is referred to as the "Balance Sheet" and December 31, 2018 is referred to
as the “Balance Sheet Date”.
|
4.8
No
Undisclosed Liabilities
. Parent has no indebtedness, obligations or liabilities of any kind (whether accrued,
absolute, contingent or otherwise, and whether due or to become due) that would have been required to be reflected in,
reserved against or otherwise described on the Balance Sheet or in the notes thereto in accordance with GAAP which was not
fully reflected in, reserved against or otherwise described in the Balance Sheet or the notes thereto or was not incurred in
the ordinary course of business consistent with past practice since the Balance Sheet Date.
4.9
Absence of Certain Developments
. Except as expressly contemplated by this Agreement, since the Balance Sheet Date:
|
|
(i)
|
there
has not been any material adverse change nor has there occurred any event which is reasonably
likely to result in a material adverse change;
|
|
|
(ii)
|
there
has not been any damage, destruction or loss, whether or not covered by insurance, with
respect to the property and assets of the Parent having a replacement cost of more than
$250,000 for any single loss or $1,000,000 for all such losses;
|
|
|
(iii)
|
there
has not been any declaration, setting aside or payment of any dividend or other distribution
in respect of any shares of capital stock of the Parent or any repurchase, redemption
or other acquisition by the Parent of any outstanding shares of capital stock or other
securities of, or other ownership interest in, the Parent;
|
|
|
(iv)
|
the
Parent has not awarded or paid any bonuses to employees of the Parent except to the extent
accrued on the Balance Sheet or entered into any employment, deferred compensation, severance
or similar agreement (nor amended any such agreement) or agreed to increase the compensation
payable or to become payable by it to any of the Parent's directors, officers, employees,
agents or representatives or agreed to increase the coverage or benefits available under
any severance pay, termination pay, vacation pay, company awards, salary continuation
for disability, sick leave, deferred compensation, bonus or other incentive compensation,
insurance, pension or other employee benefit plan, payment or arrangement made to, for
or with such directors, officers, employees, agents or representatives (other than normal
increases in the ordinary course of business consistent with past practice and that in
the aggregate have not resulted in a material increase in the benefits or compensation
expense of the Parent);
|
|
|
(v)
|
there
has not been any change by the Parent in accounting or Tax reporting principles, methods
or policies;
|
|
|
(vi)
|
the
Parent has not entered into any transaction or Contract or conducted its business other
than in the ordinary course consistent with past practice;
|
|
|
(vii)
|
the
Parent has not made any loans, advances or capital contributions to, or investments in,
any Person or paid any fees or expenses to any Seller or any Affiliate of any Seller;
|
|
|
(viii)
|
the
Parent has not mortgaged, pledged or subjected to any Lien, any of its assets, or acquired
any assets or sold, assigned, transferred, conveyed, leased or otherwise disposed of
any assets of the Parent, except for assets acquired or sold, assigned, transferred,
conveyed, leased or otherwise disposed of in the ordinary course of business consistent
with past practice;
|
|
|
(ix)
|
the
Parent has not discharged or satisfied any Lien, or paid any obligation or liability
(fixed or contingent), except in the ordinary course of business consistent with past
practice and which, in the aggregate, would not be material to the Parent;
|
|
|
(x)
|
the
Parent has not canceled or compromised any debt or claim or amended, canceled, terminated,
relinquished, waived or released any Contract or right except in the ordinary course
of business consistent with past practice and which, in the aggregate, would not be material
to the Parent;
|
|
|
(xi)
|
the
Parent has not made or committed to make any capital expenditures or capital additions
or betterments in excess of $250,000 individually or $1,000,000 in the aggregate;
|
|
|
(xii)
|
the
Parent has not instituted or settled any material legal proceeding; and
|
|
|
(xiii)
|
the
Parent has not agreed to do anything set forth in this Section 4.9.
|
4.10
Taxes
.
(a)
(A) all Tax Returns required to be filed by or on behalf of the Parent have been filed with the appropriate taxing authorities
in all jurisdictions in which such Tax Returns are required to be filed (after giving effect to any valid extensions of time in
which to make such filings), and all such Tax Returns were true, complete and correct in all material respects; (B) all Taxes
payable by or on behalf of the Parent or in respect of its income, assets or operations have been fully and timely paid, and (C)
the Parent has not executed or filed with the IRS or any other taxing authority any agreement, waiver or other document or arrangement
extending or having the effect of extending the period for assessment or collection of Taxes (including, but not limited to, any
applicable statute of limitation), and no power of attorney with respect to any Tax matter is currently in force.
(b)
The Parent has complied in all material respects with all applicable laws, rules and regulations relating to the payment and withholding
of Taxes and has duly and timely withheld from employee salaries, wages and other compensation and has paid over to the appropriate
taxing authorities all amounts required to be so withheld and paid over for all periods under all applicable laws.
4.11
Real Property
. The Parent does not own any real property.
4.12
Patriot Act
. The Parent certifies that it has not been designated, and is not owned or controlled, by a “suspected
terrorist” as defined in Executive Order 13224. The Parent hereby acknowledges that the Seller seeks to comply with all
applicable Laws concerning money laundering and related activities. In furtherance of those efforts, the Parent hereby represents,
warrants and agrees that: (i) none of the cash or property owned by the Parent has been or shall be derived from, or related to,
any activity that is deemed criminal under United States law; and (ii) no contribution or payment by the Parent has, and this
Agreement will not, cause the Parent to be in violation of the United States Bank Secrecy Act, the United States International
Money Laundering Control Act of 1986 or the United States International Money Laundering Abatement and Anti-Terrorist Financing
Act of 2001.
4.13
Trading Status.
Parent’s common stock is traded on the OTC Pink, under the trading symbol “GOPH”. Parent
has at least one market maker. As of the Closing, Parent’s Common Stock will be listed for trading on the OTC Pink with
at least one market maker.
4.14
Reporting Status
. Parent is a reporting issuer under Section 12(g) of the Securities Exchange Act of 1934 (the “’
34
Act
”). Parent is now, and as of the Closing will be, current in its filings and will have filed all of the filings required
to have been made in the previous twelve months.
4.15
Investment Intention
. Parent is acquiring the Shares for its own account, for investment purposes only and not with a view
to the distribution (as such term is used in Section 2(11) of the Securities Act of 1933, as amended (the "Securities Act")
thereof. Parent understands that the Shares have not been registered under the Securities Act and cannot be sold unless subsequently
registered under the Securities Act or an exemption from such registration is available.
4.16
Acquisition Securities
. The Acquisition Securities issuable or assignment pursuant to the purchase price, when issued or
assigned, will be duly authorized and validly issued, fully paid and non-assessable, will be delivered hereunder free and clear
of any Liens, except that such Acquisition Securities will be "restricted securities", as such term is defined in the
rules and regulations of the SEC promulgated under the Securities Act, and will be subject to restrictions on transfers pursuant
to such rules and regulations.
Article
5.
COVENANTS
5.1
Access to Information
.
The
Company agrees that, prior to the Closing Date, the Parent shall be entitled, through its officers, employees and representatives
(including, without limitation, its legal advisors and accountants), to make such investigation of the properties, businesses
and operations of the Company and its subsidiaries and such examination of the books, records and financial condition of the Company
and its Subsidiaries as it reasonably requests and to make extracts and copies of such books and records. Any such investigation
and examination shall be conducted during regular business hours and under reasonable circumstances, and the Company shall cooperate,
and shall cause the Company and its Subsidiaries to cooperate, fully therein. No investigation by the Parent prior to or after
the date of this Agreement shall diminish or obviate any of the representations, warranties, covenants or agreements of the Sellers
or the Company contained in this Agreement or the Sellers Documents. In order that the Parent may have full opportunity to make
such physical, business, accounting and legal review, examination or investigation as it may reasonably request of the affairs
of the Company and its Subsidiaries, the Company shall cause the officers, employees, consultants, agents, accountants, attorneys
and other representatives of the Company and its Subsidiaries to cooperate fully with such representatives in connection with
such review and examination.
5.2
Conduct of the Business Pending the Closing
.
|
|
(a)
|
Except
as otherwise expressly contemplated by this Agreement or with the prior written consent
of the Parent, the Sellers shall, and shall cause the Company to:
|
|
|
(i)
|
conduct
the businesses of the Company only in the ordinary course consistent with past practice;
|
|
|
(ii)
|
use
its best efforts to (A) preserve its present business operations, organization (including,
without limitation, management and the sales force) and goodwill of the Company and (B)
preserve its present relationship with Persons having business dealings with the Company;
|
|
|
(iii)
|
maintain
(A) all of the assets and properties of the Company in their current condition, ordinary
wear and tear excepted and (B) insurance upon all of the properties and assets of the
Company in such amounts and of such kinds comparable to that in effect on the date of
this Agreement;
|
|
|
(iv)
|
(A)
maintain the books, accounts and records of the Company in the ordinary course of business
consistent with past practices, (B) continue to collect accounts receivable and pay accounts
payable utilizing normal procedures and without discounting or accelerating payment of
such accounts, and (C) comply with all contractual and other obligations applicable to
the operation of the Company; and
|
|
|
(v)
|
comply
in all material respects with applicable laws, including, without limitation, Environmental
Laws.
|
|
|
(b)
|
Except
as otherwise expressly contemplated by this Agreement or with the prior written consent
of the Company, the Parent shall not:
|
|
|
(i)
|
declare,
set aside, make or pay any dividend or other distribution in respect of the capital stock
of the Parent or repurchase, redeem or otherwise acquire any outstanding shares of the
capital stock or other securities of, or other ownership interests in, the Parent;
|
|
|
(ii)
|
transfer,
issue, sell or dispose of any shares of capital stock or other securities of the Parent
or grant options, warrants, calls or other rights to purchase or otherwise acquire shares
of the capital stock or other securities of the Parent;
|
|
|
(iii)
|
effect
any recapitalization, reclassification, stock split or like change in the capitalization
of the Parent;
|
|
|
(iv)
|
amend
the certificate of incorporation or by-laws of the Parent;
|
|
|
(v)
|
(A)
materially increase the annual level of compensation of any employee of the Parent, (B)
increase the annual level of compensation payable or to become payable by the Parent
to any of its executive officers, (C) grant any unusual or extraordinary bonus, benefit
or other direct or indirect compensation to any employee, director or consultant, (D)
increase the coverage or benefits available under any (or create any new) severance pay,
termination pay, vacation pay, company awards, salary continuation for disability, sick
leave, deferred compensation, bonus or other incentive compensation, insurance, pension
or other employee benefit plan or arrangement made to, for, or with any of the directors,
officers, employees, agents or representatives of the Parent or otherwise modify or amend
or terminate any such plan or arrangement or (E) enter into any employment, deferred
compensation, severance, consulting, non-competition or similar agreement (or amend any
such agreement) to which the Parent is a party or involving a director, officer or employee
of the Parent in his or her capacity as a director, officer or employee of the Parent;
|
|
|
(vi)
|
subject
to any Lien (except for leases that do not materially impair the use of the property
subject thereto in their respective businesses as presently conducted), any of the properties
or assets (whether tangible or intangible) of the Parent;
|
|
|
(vii)
|
acquire
any material properties or assets or sell, assign, transfer, convey, lease or otherwise
dispose of any of the material properties or assets (except for fair consideration in
the ordinary course of business consistent with past practice) of the Parent;
|
|
|
(viii)
|
cancel
or compromise any debt or claim or waive or release any material right of the Parent
except in the ordinary course of business;
|
|
|
(ix)
|
enter
into any commitment for capital expenditures of the Parent;
|
|
|
(x)
|
enter
into, modify or terminate any labor or collective bargaining agreement of the Parent
or, through negotiation or otherwise, make any commitment or incur any liability to any
labor organization with respect to the Parent;
|
|
|
(xi)
|
permit
the Parent to enter into any transaction or to make or enter into any Contract;
|
|
|
(xii)
|
permit
the Parent to enter into or agree to enter into any merger or consolidation with, any
corporation or other entity, and not engage in any new business or invest in, make a
loan, advance or capital contribution to, or otherwise acquire the securities of any
other Person;
|
|
|
(xiii)
|
permit
the Parent to make any investments in or loans to, or pay any fees or expenses to, or
enter into or modify any Contract with any Affiliate; or
|
|
|
(xiv)
|
agree
to do anything prohibited by this Section 6.2 or anything which would make any of the
representations and warranties of the Parent in this Agreement untrue or incorrect in
any material respect.
|
5.3
Consents
. The Company shall use its best efforts, and the Parent shall cooperate with the Company, to obtain at the earliest
practicable date all consents and approvals required to consummate the transactions contemplated by this Agreement.
5.4
Other Actions
. The Company and the Parent shall use its best efforts to (i) take all actions necessary or appropriate to
consummate the transactions contemplated by this Agreement and (ii) cause the fulfillment at the earliest practicable date of
all of the conditions to their respective obligations to consummate the transactions contemplated by this Agreement.
Article
6.
CONDITIONS TO CLOSING
6.1
Conditions Precedent to Obligations of Purchaser
.
The
obligation of the Purchaser to consummate the transactions contemplated by this Agreement is subject to the fulfillment, on or
prior to the Closing Date, of each of the following conditions (any or all of which may be waived by the Purchaser in whole or
in part to the extent permitted by applicable law):
|
|
(a)
|
all
representations and warranties of the Company, the GBT Majority Shareholder and the Seller
contained herein shall be true and correct as of the date hereof and as of the Closing
Date;
|
|
|
(b)
|
all
representations and warranties of the Company, the GBT Majority Shareholder and the Seller
contained herein qualified as to materiality shall be true and correct, and the representations
and warranties of the Seller contained herein not qualified as to materiality shall be
true and correct in all material respects, at and as of the Closing Date with the same
effect as though those representations and warranties had been made again at and as of
that time;
|
|
|
(c)
|
the
Company, the GBT Majority Shareholder and the Seller shall have performed and complied
in all material respects with all obligations and covenants required by this Agreement
to be performed or complied with by them on or prior to the Closing Date;
|
|
|
(d)
|
the
Purchaser shall have been furnished with certificates (dated the Closing Date and in
form and substance reasonably satisfactory to the Purchaser) executed by the Chief Executive
Officer and Chief Financial Officer of the Company certifying as to the fulfillment of
the conditions specified in Sections 6.1(a), 6.2(b) and 6.2(c) hereof;
|
|
|
(e)
|
there
shall not have been or occurred any material adverse change in the business or operations
of the Company;
|
|
|
(f)
|
the
Seller shall have obtained all consents and waivers referred to in Section 3.5(b) there
are none hereof, in a form reasonably satisfactory to the Purchaser, with respect to
the transactions contemplated by this Agreement and the Seller Documents; and
|
|
|
(g)
|
no
legal proceedings shall have been instituted or threatened or claim or demand made against
the Seller, the Company or any of its Subsidiaries, or the Purchaser seeking to restrain
or prohibit or to obtain substantial damages with respect to the consummation of the
transactions contemplated hereby, and there shall not be in effect any Order by a Governmental
or Regulatory Authority of competent jurisdiction restraining, enjoining or otherwise
prohibiting the consummation of the transactions contemplated hereby.
|
6.2
Conditions Precedent to Obligations of the Seller
.
The
obligations of the Seller to consummate the transactions contemplated by this Agreement are subject to the fulfillment, prior
to or on the Closing Date, of each of the following conditions (any or all of which may be waived by the Seller in whole or in
part to the extent permitted by applicable law):
|
|
(a)
|
all
representations and warranties of the Parent and Purchaser contained herein shall be
true and correct as of the date hereof and as of the Closing Date;
|
|
|
(b)
|
all
representations and warranties of the Parent and Purchaser contained herein qualified
as to materiality shall be true and correct, and all representations and warranties of
the Purchaser contained herein not qualified as to materiality shall be true
and correct in all material respects, at and as of the Closing Date with the same effect as though those representations and warranties
had been made again at and as of that date;
|
|
|
(c)
|
the
Parent and Purchaser shall have performed and complied in all material respects with
all obligations and covenants required by this Agreement to be performed or complied
with by Purchaser on or prior to the Closing Date;
|
|
|
(d)
|
the
Seller shall have been furnished with certificates (dated the Closing Date and in form
and substance reasonably satisfactory to the Seller) executed by the Chief Executive
Officer and Chief Financial Officer of the Purchaser certifying as to the fulfillment
of the conditions specified in Sections 6.2(a), 6.2(b) and 6.2(c) hereof;
|
|
|
(e)
|
there
shall not be in effect any Order by a Governmental or Regulatory Authority of competent
jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the
transactions contemplated hereby; and
|
|
|
(f)
|
the
Seller shall have obtained all consents and waivers referred to in Section 4.6(b) hereof,
in a form reasonably satisfactory to the Purchaser, with respect to the transactions
contemplated by this Agreement and the Seller Documents;
|
Article
7.
termination
7.1
Material Change in the Business of Company
. Simultaneous execution and closing, if any material loss or damage to the Company
Business occurs prior to Closing and such loss or damage, in Purchaser' reasonable opinion, cannot be substantially repaired or
replaced within sixty (60) days, Purchaser shall, within two (2) days following any such loss or damage, by notice in writing
to Company, at its option, either:
|
|
(a)
|
terminate
this Agreement, in which case no party will be under any further obligation to any other
party; or
|
|
|
(b)
|
elect
to complete the Acquisition and the other transactions contemplated hereby, in which
case the proceeds and the rights to receive the proceeds of all insurance covering such
loss or damage will, as a condition precedent to Purchaser' obligations to carry out
the transactions contemplated hereby, be vested in Company or otherwise adequately secured
to the satisfaction of Purchaser on or before the Closing Date.
|
7.2
Material Change in the Purchaser Business
. If any material loss or damage to the Purchaser Business occurs prior to Closing
and such loss or damage, in Company's reasonable opinion, cannot be substantially repaired or replaced within sixty (60) days,
Company shall, within two (2) days following any such loss or damage, by notice in writing to Purchaser, at its option, either:
|
|
(a)
|
terminate
this Agreement, in which case no party will be under any further obligation to any other
party; or
|
|
|
(b)
|
elect
to complete the Acquisition and the other transactions contemplated hereby, in which
case the proceeds and the rights to receive the proceeds of all insurance covering such
loss or damage will, as a condition precedent to Company's obligations to carry out the
transactions contemplated hereby, be vested in Purchaser or otherwise adequately secured
to the satisfaction of Company on or before the Closing Date.
|
Article
8.
DOCUMENTS
TO BE DELIVERED
8.1
Documents to be Delivered by the Company
.
At
the Closing, the Company shall deliver, or cause to be delivered, to the Purchaser the following:
|
|
(a)
|
copies
of all consents and waivers referred to in Section 6.1(f) hereof;
|
|
|
(b)
|
certificates
of good standing with respect to the Company issued by the government of Costa Rica;
and
|
|
|
(c)
|
such
other documents as the Purchaser shall reasonably request.
|
8.2
Documents to be Delivered by the Purchaser
.
At
the Closing, the Parent and the Purchaser shall deliver to the Sellers the following:
|
|
(a)
|
certificates
representing the Preferred Acquisition Securities;
|
|
|
(b)
|
the
Convertible Note;
|
|
|
(c)
|
the
Costa Rica Note and any related assignment documentation; and
|
|
|
(d)
|
the
MOBQ Shares and any related assignment documentation (such as stock power).
|
(e)
the certificates referred to in Section 6.2(d) hereof;
(f)
copies of all consents and waivers referred to in Section 6.1(f) hereof;
(g)
certificates of good standing with respect to the Purchaser issued by the Secretary of the State of the Nevada; and
(h)
such other documents as the Sellers shall reasonably request.
Article
9.
INDEMNIFICATION
9.1
Indemnification
.
|
|
(a)
|
Subject
to Section 9.2 hereof, the Sellers hereby agree to indemnify and hold the Purchaser
and their respective directors, officers, employees, Affiliates, agents, representatives, heirs, successors and assigns (collectively,
the "Purchaser Indemnified Parties") harmless from and against:
|
|
|
(i)
|
any
and all losses, liabilities, obligations, damages, costs and expenses based upon, attributable
to or resulting from the failure of any representation or warranty of the Sellers set
forth in Article 3 or Article 3A hereof, or any representation or warranty contained
in any certificate delivered by or on behalf of the Sellers or the Company pursuant to
this Agreement, to be true and correct in all respects as of the date made;
|
|
|
(ii)
|
any
and all losses, liabilities, obligations, damages, costs and expenses based upon, attributable
to or resulting from the breach of any covenant or other agreement on the part of the
Sellers or the Company under this Agreement or any Sellers Document;
|
|
|
(iii)
|
any
and all losses, liabilities, obligations, damages, costs and expenses based upon, attributable
to or resulting from any act or omission of the Company or the Sellers; and
|
|
|
(iv)
|
any
and all expenses incident to the foregoing.
|
|
|
(b)
|
Subject
to Section 9.2, Purchaser hereby agrees to indemnify and hold the Sellers and their respective
Affiliates, agents, successors and assigns (collectively, the "Sellers Indemnified
Parties") harmless from and against:
|
|
|
(i)
|
any
and all losses, liabilities, obligations, damages, costs and expenses based upon, attributable
to or resulting from the failure of any representation or warranty of the Purchaser set
forth in Section 4 hereof, or any representation or warranty contained in any certificate
delivered by or on behalf of the Purchaser pursuant to this Agreement, to be true and
correct as of the date made;
|
|
|
(ii)
|
any
and all losses, liabilities, obligations, damages, costs and expenses based upon, attributable
to or resulting from the breach of any covenant or other agreement on the part of the
Purchaser under this Agreement; and
|
|
|
(iii)
|
any
and all Expenses incident to the foregoing.
|
9.2
Intentionally omitted
9.3
Indemnification Procedures
.
|
|
(a)
|
In
the event that any legal proceedings shall be instituted or that any claim or demand
("
Claim
") shall be asserted by any Person in respect of which payment
may be sought under Section 9.1 hereof, the Indemnified Party shall reasonably and promptly
cause written notice of the assertion of any Claim of which it has knowledge which is
covered by this indemnity to be forwarded to the Indemnifying Party. The Indemnifying
Party shall have the right, at its sole option and expense, to be represented by counsel
of its choice, which must be reasonably satisfactory to the Indemnified Party, and to
defend against, negotiate, settle or otherwise deal with any Claim which relates to any
Losses indemnified against hereunder. If the Indemnifying Party elects to defend against,
negotiate, settle or otherwise deal with any Claim which relates to any losses indemnified
against hereunder, it shall within five (5) days (or sooner, if the nature of the Claim
so requires) notify the Indemnified Party
of its intent to do so. If the Indemnifying Party elects not to defend against, negotiate, settle or otherwise deal with any Claim
which relates to any Losses indemnified against hereunder, fails to notify the Indemnified Party of its election as herein provided
or contests its obligation to indemnify the Indemnified Party for such Losses under this Agreement, the Indemnified Party may
defend against, negotiate, settle or otherwise deal with such Claim. If the Indemnified Party defends any Claim, then the Indemnifying
Party shall reimburse the Indemnified Party for the Expenses of defending such Claim upon submission of periodic bills. If the
Indemnifying Party shall assume the defense of any Claim, the Indemnified Party may participate, at his or its own expense, in
the defense of such Claim; provided, however, that such Indemnified Party shall be entitled to participate in any such defense
with separate counsel at the expense of the Indemnifying Party if, (i) so requested by the Indemnifying Party to participate or
(ii) in the reasonable opinion of counsel to the Indemnified Party, a conflict or potential conflict exists between the Indemnified
Party and the Indemnifying Party that would make such separate representation advisable; and provided, further, that the Indemnifying
Party shall not be required to pay for more than one such counsel for all indemnified parties in connection with any Claim. The
parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such
Claim.
|
|
|
(b)
|
After
any final judgment or award shall have been rendered by a court, arbitration board or
administrative agency of competent jurisdiction and the expiration of the time in which
to appeal therefrom, or a settlement shall have been consummated, or the Indemnified
Party and the Indemnifying Party shall have arrived at a mutually binding agreement with
respect to a Claim hereunder, the Indemnified Party shall forward to the Indemnifying
Party notice of any sums due and owing by the Indemnifying Party pursuant to this Agreement
with respect to such matter and the Indemnifying Party shall be required to pay all of
the sums so due and owing to the Indemnified Party by wire transfer of immediately available
funds within 10 business days after the date of such notice.
|
|
|
(c)
|
The
failure of the Indemnified Party to give reasonably prompt notice of any Claim shall
not release, waive or otherwise affect the Indemnifying Party's obligations with respect
thereto except to the extent that the Indemnifying Party can demonstrate actual loss
and prejudice as a result of such failure.
|
Article
10.
POST-CLOSING MATTERS
10.1
Within four business day of the Closing, Purchaser and the Company agree to use all their best efforts to:
|
|
(a)
|
issue
a news release reporting the Closing;
|
|
|
(b)
|
file
a Form 8-K with the Securities and Exchange Commission disclosing the terms of this Agreement
with audited financial statements of Company as well as any required pro forma financial
information or other information of Company and Purchaser as required by the rules and
regulations of the Securities and Exchange Commission.
|
10.3
Board
Appointments
. Following the Closing, the Purchaser shall take all required steps to establish a Board of Directors with nine
(9) members and appoint two (2) nominees of the Sellers to the Board of Directors.
10.4
Reverse Stock Split
. Following the Closing, the Purchaser may commence the process of reverse splitting the shares of common
stock at a ratio of up to 1:200 or more as approved by the Board of Directors of the Purchaser. The process may include the Purchaser
name change, as well as it’s transfer agent.
Article
11.
GENERAL PROVISIONS
11.1
Notices
. All notices and other communications under this Agreement shall be in writing and shall be deemed given when delivered
personally or mailed by certified mail, return receipt requested, to the parties (and shall also be transmitted by facsimile to
the Persons receiving copies thereof) at the following addresses (or to such other address as a party may have specified by notice
given to the other party pursuant to this provision):
If
to Purchaser to:
2500
Broadway F-125
Santa
Monica, California 90404
If
to Company or Sellers to:
EBC
Building, 9th fl Escazu, San Jose 10203
Costa
Rica
All
such notices, requests and other communications will (i) if delivered personally to the address as provided in this Section, be
deemed given upon delivery, (ii) if delivered by mail in the manner described above to the address as provided in this Section,
be deemed given upon receipt, and (iii) if delivered by courier to the address as provided for in this Section, be deemed given
on the earlier of the second Business Day following the date sent by such courier or upon receipt. Any party from time to time
may change its address or other information for the purpose of notices to that party by giving notice specifying such change to
the other party hereto.
11.2
Payment of Sales, Use or Similar Taxes
. All sales, use, transfer, intangible, recordation, documentary stamp or similar
Taxes or charges, of any nature whatsoever, applicable to, or resulting from, the transactions contemplated by this Agreement
shall be borne by the Sellers.
11.3
Expenses
. Except as otherwise provided in this Agreement, the Company and the Purchaser shall each bear its own expenses
incurred in connection with the negotiation and execution of this Agreement and each other agreement, document and instrument
contemplated by this Agreement and the consummation of the transactions contemplated hereby and thereby.
11.4
Specific
Performance
. The Sellers acknowledges and agrees that the breach of this Agreement would cause irreparable damage to the
Purchaser and that the Purchaser will not have an adequate remedy at law. Therefore, the obligations of the Sellers
under this Agreement, including, without limitation, the Sellers's obligation to sell the Shares to the Purchaser, shall be
enforceable by a decree of specific performance issued by any court of competent jurisdiction, and appropriate injunctive
relief may be applied for and granted in connection therewith. Such remedies shall, however, be cumulative and not exclusive
and shall be in addition to any other remedies which any party may have under this Agreement or otherwise.
11.5
Further Assurances
. The Sellers, the Company and the Purchaser each agrees to execute and deliver such other documents
or agreements and to take such other action as may be reasonably necessary or desirable for the implementation of this Agreement
and the consummation of the transactions contemplated hereby.
11.6
Submission to Jurisdiction; Consent to Service of Process
.
|
|
(a)
|
The
parties hereto hereby irrevocably submit to the non-exclusive jurisdiction of any federal
or state court located within the City of Los Angeles, State of California over any dispute
arising out of or relating to this Agreement or any of the transactions contemplated
hereby and each party hereby irrevocably agrees that all claims in respect of such dispute
or any suit, action proceeding related thereto may be heard and determined in such courts.
The parties hereby irrevocably waive, to the fullest extent permitted by applicable law,
any objection which they may now or hereafter have to the laying of venue of any such
dispute brought in such court or any defense of inconvenient forum for the maintenance
of such dispute. Each of the parties hereto agrees that a judgment in any such dispute
may be enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.
|
|
|
(b)
|
Each
of the parties hereto hereby consents to process being served by any party to this Agreement
in any suit, action or proceeding by the mailing of a copy thereof in accordance with
the provisions of Section 11.1.
|
11.7
Entire Agreement; Amendments and Waivers
. This Agreement (including the schedules and exhibits hereto) represents the entire
understanding and agreement between the parties hereto with respect to the subject matter hereof and can be amended, supplemented
or changed, and any provision hereof can be waived, only by written instrument making specific reference to this Agreement signed
by the party against whom enforcement of any such amendment, supplement, modification or waiver is sought. No action taken pursuant
to this Agreement, including without limitation, any investigation by or on behalf of any party, shall be deemed to constitute
a waiver by the party taking such action of compliance with any representation, warranty, covenant or agreement contained herein.
The waiver by any party hereto of a breach of any provision of this Agreement shall not operate or be construed as a further or
continuing waiver of such breach or as a waiver of any other or subsequent breach. No failure on the part of any party to exercise,
and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of such right, power or remedy by such party preclude any other or further exercise thereof or the exercise of any other
right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by law.
11.8
Governing Law
. This Agreement shall be governed by and construed in accordance with the laws of the State of California.
11.9
Headings
. Section headings of this Agreement are for reference purposes only and are to be given no effect in the construction
or interpretation of this Agreement.
11.10
Severability
. If any provision of this Agreement is invalid or unenforceable, the balance of this Agreement shall remain
in effect.
11.11
Binding Effect; Assignment
. This Agreement shall be binding upon and inure to the benefit of the parties and their respective
successors and permitted assigns. Nothing in this Agreement shall create or be deemed to create any third party beneficiary rights
in any person or entity not a party to this Agreement except as provided below. No assignment of this Agreement or of any rights
or obligations hereunder may be made by either the Sellers or the Purchaser (by operation of law or otherwise) without the prior
written consent of the other parties hereto and any attempted assignment without the required consents shall be void; provided,
however, that the Purchaser may assign this Agreement and any or all rights or obligations hereunder (including, without limitation,
the Purchaser's rights to purchase the Shares and the Purchaser's rights to seek indemnification hereunder) to any Affiliate of
the Purchaser. Upon any such permitted assignment, the references in this Agreement to the Purchaser shall also apply to any such
assignee unless the context otherwise requires.
11.12
Counterparts
. This Agreement may be executed in counterparts and by facsimile, each of which when executed by any party
will be deemed to be an original and all of which counterparts will together constitute one and the same Agreement. Delivery of
executed copies of this Agreement by telecopier will constitute proper delivery, provided that originally executed counterparts
are delivered to the parties within a reasonable time thereafter.
[Remainder
of page intentionally left blank.]
IN
WITNESS WHEREOF
the parties have executed this Agreement effective as of the day and year first above written.
The
Parent:
GOPHER
PROTOCOL INC.
By:
_______________________
Name:
Mansour Khatib
Title:
CMO, Secretary & Director
The
Purchaser:
ALTCORP
TRADING LLC
By:
_____________________
Name:
Hernan Velasco Sasso
Title:
Manager
The
Company: –
GBT
TECHNOLOGIES, S.A.
By:
_____________________
Name:
Salomon Ocon
Title:
COO and Director
The
Seller (Owner of 625,000 of the Company)
______________________________________
Pablo
Bernabe Gonzalez (
individual for the
benefit
of Company in formation in his control)
EXHIBIT
D
|
Name
|
Shares
|
Number
of Acquisition Preferred Shares
|
Convertible
Note (Principal)
|
Costa
Rica Note (Principal)
|
MOBQ
Shares
|
|
Pablo
Gonzalez
|
625,000
|
20,000
|
$10,000,000-
|
$5,000,000
|
60,000,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
