-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, A8Ak3N2EafLVVFGG6NfsFPPVbpysLMpz2LnD0jv86i49EaBoLuHYhbEpjZqOHTnA lMX9TNfGPMheIig2Jg+YyQ== 0001144204-10-069038.txt : 20110103 0001144204-10-069038.hdr.sgml : 20101231 20101230173335 ACCESSION NUMBER: 0001144204-10-069038 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 7 CONFORMED PERIOD OF REPORT: 20101227 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Unregistered Sales of Equity Securities ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20110103 DATE AS OF CHANGE: 20101230 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Sanswire Corp. CENTRAL INDEX KEY: 0000919742 STANDARD INDUSTRIAL CLASSIFICATION: TELEPHONE COMMUNICATIONS (NO RADIO TELEPHONE) [4813] IRS NUMBER: 880292161 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-32509 FILM NUMBER: 101282083 BUSINESS ADDRESS: STREET 1: 9050 PINES BLVD., STREET 2: SUITE 110 CITY: PEMBROKE PINES STATE: FL ZIP: 33024 BUSINESS PHONE: 954-241-0590 MAIL ADDRESS: STREET 1: 9050 PINES BLVD., STREET 2: SUITE 110 CITY: PEMBROKE PINES STATE: FL ZIP: 33024 FORMER COMPANY: FORMER CONFORMED NAME: GLOBETEL COMMUNICATIONS CORP DATE OF NAME CHANGE: 20020904 FORMER COMPANY: FORMER CONFORMED NAME: AMERICAN DIVERSIFIED GROUP INC DATE OF NAME CHANGE: 19950329 FORMER COMPANY: FORMER CONFORMED NAME: TERA WEST VENTURES INC DATE OF NAME CHANGE: 19940303 8-K 1 v206653_8k.htm Unassociated Document
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM 8-K

CURRENT REPORT
Pursuant to Section 13 OR 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): December 27, 2010

SANSWIRE CORP.
(Exact name of registrant as specified in its charter)

Delaware
000-235332
88-0292161
(State or other jurisdiction of
incorporation)
(Commission File Number)
(IRS Employer Identification No.)

State Road 405, Building M6-306A, Room 1400, Kennedy Space Center, FL 32815
 (Address of principal executive offices and Zip Code)

Registrant's telephone number, including area code (786) 288-0717

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 
 

 

      
ITEM 1.01
ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT
ITEM 3.02  UNREGISTERED SALES OF EQUITY SECURITIES
ITEM 5.02 DEPARTURE OF DIRECTORS OR CERTAIN OFFICERS; ELECTION OF DIRECTORS; APPOINTMENT OF CERTAIN OFFICERS; COMPENSATORY ARRANGEMENTS OF CERTAIN OFFICERS

 
On December 27, 2010, Sanswire Corp. (the“Company”) entered into a First Amendment to Escrow and Stock Purchase Agreement (the “Amendment”) with Michael K. Clark, the Company’s Chairman of the Board of Directors, and Hinshaw& Culbertson LLP to amend that certain Escrow and Stock Purchase Agreement dated as of September 29, 2010 among the parties.  The Amendment reduces the number of shares of common stock, par value $0.00001 per share, of the Company (the “Common Stock”) from 4,000,000 to 3,333,333 shares that Mr. Clark will receive in return for the $250,000 he provided to facilitate the Company’s settlement with the Securities and Exchange Commission.

On December 27, 2010, the Company entered into a Stock Purchase Agreement withMr. Clark, for the purchase of 3,333,333 shares of Common Stock, which shares shall be restricted pursuant to the securities laws, in connection with the $250,000 Mr. Clark provided to facilitate the Company’s settlement with the Securities and Exchange Commission.

On December 27, 2010, Mr. Clarkreceived an option(the “Clark Option”) to purchase 1,333,334 shares of Common Stock at an exercise price of $0.09 per share, which wasthe closing price of the Company’s Common Stock on the date the Company’s Board of Directors approved the issuance of the Clark Option, pursuant to an Option Agreement. The Clark Optionis fully vested and is exercisable until the earlier of three years from the effective date of the Clark Option or 90 days after the termination of Mr. Clark’s membership on the Company’s Board of Directors.

On December 27, 2010, the Company entered into an Agreement (the “Rescission Agreement”) with Glenn D. Estrella, the Company’s President and Chief Executive Officer, whereby the parties mutually agreed to rescind the issuance of 5,000,000 shares of Common Stock that had been issued to Mr. Estrella in June 2010.

On December 27, 2010, the Company entered into an Amended and Restated Employment Agreement (the “Employment Agreement”) with Mr. Estrella providing for a three year term and annual salary of $250,000 per year, such salary to be accelerated upon a change of control of the Company or Mr. Estrella’s termination of employment without cause or for good reason.  The Employment Agreement includes one year noncompetition and non-solicitation provisions as well as confidentiality and inventions assignment provisions.

On December 27, 2010, Mr. Estrella received an option (the “EstrellaOption”) to purchase 7,222,222 shares of Common Stock at an exercise price of $0.09 per share, which was the closing price of the Company’s Common Stock on the date the Company’s Board of Directors approved the issuance of the EstrellaOption, pursuant to an Option Agreement.  The Estrella Option is fully vested and is exercisable until the earlier of three years from the effective date of the Estrella Option or 90 days after the termination of Mr. Estrella’s employment with the Company.

No underwriting discounts or commissions were paid in connection with any of the above agreements or securities issuances.

 
 

 

The securities sold and/or issued pursuant to the above agreements were issued as restricted securities under an exemption provided byRegulationD, Rule 506, promulgated under the Securities Act of 1933, as amended (the “Securities Act”), and/or Section 4(2) of the Securities Act.

The foregoing information is a summary of each of the agreements involved in the transactions described above, is not complete, and is qualified in its entirety by reference to the full text of those agreements, each of which is attached as an exhibit to this Current Report on Form 8-K.  Readers should review those agreements for a complete understanding of the terms and conditions associated with this transaction.
 
ITEM 9.01
FINANCIAL STATEMENTS AND EXHIBITS

Exhibit Number
 
Description
     
10.1
 
First Amendment to Escrow and Stock Purchase Agreement, dated December 27, 2010, by and among the Company, Michael K. Clark, and Hinshaw& Culbertson LLP
10.2
 
Stock Purchase Agreement, dated December 27, 2010, between the Company and Michael K. Clark
10.3
 
Option Agreement, dated December 27, 2010 issued to Michael K. Clark
10.4
 
Agreement dated December 27, 2010, between the Company and Glenn D. Estrella
10.5
 
Amended and Restated Employment Agreement, dated December 27, 2010, betweenthe Company and Glenn D. Estrella
10.6
 
Option Agreement, dated December 27, 2010 issued to Glenn D. Estrella
 
 
 

 
 
SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 
Sanswire Corp.
 
(Registrant)
   
Date:December 30, 2010
/s/ Glenn D. Estrella
 
By: Glenn D. Estrella
 
Title:  President and Chief Executive Officer
 
 
 

 
EX-10.1 2 v206653_ex10-1.htm

 FIRST AMENDMENT TO ESCROW AND STOCK PURCHASE AGREEMENT

This First Amendment (the “Amendment”) to Escrow and Stock Purchase Agreement is entered into by and between Sanswire Corp., a Delaware corporation with offices at State Road 405, Building M6-306A, Room 1400, Kennedy Space Center, FL 32815 (“Sanswire”), Michael K. Clark (“Clark”)  157 Beach 135 Street, Belle Harbor, NY 11694, and Hinshaw & Culbertson LLP, an Illinois limited liability partnership, 780 Third Avenue, 4th Floor, New York, NY 10017 (the “Escrow Agent”) on this 27th day of December, 2010 (the "Effective Date").

WHEREAS, Sanswire, Clark and the Escrow Agent entered into that certain Escrow and Stock Purchase Agreement dated September 29, 2010 (the “Agreement”).

WHEREAS, Sanswire, Clark and the Escrow Agent now desire to amend the terms of the Agreement as more particularly set forth below:

NOW, THEREFORE, in consideration of the mutual promises and consideration contained herein, the parties agreed as follows:

1.           The address for Sanswire Corp. in the first paragraph shall hereby be amended to read “State Road 405, Building M6-306A, Room 1400, Kennedy Space Center, FL 32815.”

2.           Section 5 of the Agreement is hereby amended and restated in its entirety and shall hereafter be and read as follows: “In the event that Sanswire enters into a written settlement agreement using the Settlement Funds, the $250,000 contributed by Michael K. Clark and remitted by the Escrow Agent will be deemed to be an equity investment for the purchase of Sanswire shares, and Michael K. Clark and Sanswire will enter into a Stock Purchase Agreement whereby Michael K. Clark will receive in exchange for his $250,000 contribution to the settlement 3,333,333 shares of common stock of Sanswire, par value $0.00001 per share, restricted pursuant to Rule 144 promulgated under the Securities Act of 1933, as amended.”

3.           Section 7.a of the Agreement is hereby amended and restated in its entirety and shall hereafter be and read as follows:

Sanswire Corp.
State Road 405, Building M6-306A, Room 1400
Kennedy Space Center, FL 32815
Attn: President

Mailing Address:
Mail Code: SWC
Kennedy Space Center, FL 32899
Attn: President
 
 
Page 1 of 2

 

4.           Except as provided in this Amendment, all terms used in this Amendment that are not otherwise defined shall have the respective meanings ascribed to such terms in the Agreement.

5.           This Amendment embodies the entire agreement between Sanswire, Clark and the Escrow Agent with respect to the amendment of the Agreement. In the event of any conflict or inconsistency between the provisions of the Agreement and this Amendment, the provisions of this Amendment shall control and govern.

6.           Except as specifically modified and amended herein, all of the terms, provisions, requirements and specifications contained in the Agreement remain in full force and effect. Except as otherwise expressly provided herein, the parties do not intend to, and the execution of this Amendment shall not, in any manner impair the Agreement, the purpose of this Amendment being simply to amend and ratify the Agreement, as hereby amended and ratified, and to confirm and carry forward the Agreement, as hereby amended, in full force and effect.

7.           This Amendment shall be construed and governed by the laws of the State of New York.

IN WITNESS WHEREOF, Sanswire, Clark and the Escrow Agent have executed and delivered this Amendment effective as of the Effective Date.
 
SANSWIRE CORP.
 
By:
 
Name: Glenn D. Estrella
Title: President and Chief Executive Officer
Date: December 27, 2010
 
 
Michael K. Clark
Date: December 27, 2010
 
Hinshaw & Culbertson LLP
 
By:
 
Name: Maranda Fritz
Date: December 27, 2010
 
 
Page 2 of 2

 
EX-10.2 3 v206653_ex10-2.htm

STOCK PURCHASE AGREEMENT
 
This Stock Purchase Agreement (this "AGREEMENT") is dated as of December 27, 2010, by and between Sanswire Corp., a Delaware corporation (the "COMPANY"), and Michael K. Clark (the "PURCHASER"); and
 
WHEREAS, subject to the terms and conditions set forth in this Agreement and pursuant to Section 4(2) of the Securities Act (as defined below), and Rule 506 promulgated thereunder, the Company desires to issue and sell to the Purchaser, and the Purchaser, desires to purchase from the Company, 3,333,333 shares of Common Stock (as defined below) at the Closing.
 
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt and adequacy of which are hereby acknowledged, the Company and the Purchaser agree as follows:
 
ARTICLE I. DEFINITIONS
 
1.1 DEFINITIONS. In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following terms have the meanings indicated in this Section 1.1:
 
"BUSINESS DAY" means any day except Saturday, Sunday and any day which shall be a federal legal holiday or a day on which banking institutions in the State of New York are authorized or required by law or other governmental action to close.
 
"CLOSING" means the closing of the purchase and sale of Shares pursuant to Section 2.1.
 
"COMMON STOCK" means the common stock of the Company, $0.00001 par value per share, and any securities into which such common stock may hereafter be reclassified.
 
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
 
"LIENS" means a lien, charge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
 
"PURCHASE PRICE" equals $250,000.

"PERSON" means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
 
"RULE 144" means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Securities and Exchange Commission (the “SEC”) having substantially the same effect as such Rule.

 
 

 

"SECURITIES ACT" means the Securities Act of 1933, as amended.
 
"SHARES" means the 3,333,333 shares of Common Stock issued to the Purchaser pursuant to this Agreement.
 
"TRADING DAY" means (i) a day on which the Common Stock is traded on a trading market, or (ii) if the Common Stock is not quoted on a trading market, a day on which the Common Stock is quoted in the over-the-counter market as reported by Pink OTC Markets Inc. (or any similar organization or agency succeeding its functions of reporting prices); provided, that in the event that the Common Stock is not listed or quoted as set forth in (i) and (ii) hereof, then Trading Day shall mean a Business Day.
 
ARTICLE II. PURCHASE AND SALE
 
2.1 CLOSING.  On the terms and subject to the conditions set forth in this Agreement, at the Closing, the Purchaser shall purchase from the Company, and the Company shall issue and sell to the Purchaser, 3,333,333 shares of Common Stock for the Purchase Price, which Purchase Price the Parties agree Purchaser has previously paid to the Company in connection with that certain Escrow and Stock Purchase Agreement dated September 29, 2010 by and among the Purchaser, the Company and Hinshaw & Culbertson LLP. Upon satisfaction of the conditions set forth in Section 2.2, the Closing shall occur at the offices of the Company.
 
2.2 CLOSING CONDITIONS; DELIVERIES.
 
(a) As a condition to the Purchaser’s obligations hereunder, at the Closing, the Company shall deliver or cause to be delivered to the Purchaser the following:
 
(i) this Agreement duly executed by the Company; and
 
(ii) a certificate evidencing the Shares registered in the name of the Purchaser.
 
(b) As a condition to the Company’s obligations hereunder, at the Closing (unless otherwise noted below), the Purchaser shall deliver or cause to be delivered to the Company the following:
 
(i) this Agreement duly executed by the Purchaser; and
 
(ii) the Purchase Price for the Shares, which Purchase Price the Parties agree Purchaser has previously paid to the Company in connection with that certain Escrow and Stock Purchase Agreement dated September 29, 2010 by and among the Purchaser, the Company and Hinshaw & Culbertson LLP.

 
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ARTICLE III. REPRESENTATIONS AND WARRANTIES
 
3.1 REPRESENTATIONS AND WARRANTIES OF THE COMPANY.  The Company hereby makes the following representations and warranties as of the date hereof to the Purchaser:
 
(a) ORGANIZATION. 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 (as applicable).

 (b) AUTHORIZATION; ENFORCEMENT. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder. The execution and delivery of this Agreement by the Company and the consummation by it of the transactions 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 in connection herewith. This Agreement has been duly executed by the Company and, when delivered in accordance with the terms hereof, will constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms except (i) as limited by 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) in so far 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, the issuance and sale of the Shares and the consummation by the Company of the transactions contemplated hereby do not and will not conflict with or violate any provision of the Company's certificate of incorporation, bylaws or other organizational or charter documents.

(d) ISSUANCE OF THE SHARES. The Shares are duly authorized and, when issued and paid for in accordance with this Agreement, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens.

The Purchaser acknowledges and agrees that the Company does not make and has not made any representations and warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Section 3.1.

3.2 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser hereby represents and warrants as of the date hereof to the Company as follows:
 
 
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(a) AUTHORITY. The Purchaser is an individual with full right, power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder. This Agreement has been duly executed by the Purchaser, and when delivered by such Purchaser in accordance with the terms hereof, will constitute the valid and legally binding obligation of the Purchaser, enforceable against it 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.
 
(b) INVESTMENT INTENT.  The Purchaser understands that the Shares are "restricted securities" and have not been registered under the Securities Act or any applicable state securities law and may not be offered for sale, sold, assigned or transferred unless (i) subsequently registered under the Securities Act, or (ii) the Purchaser shall have delivered to the Company an opinion of counsel in a form acceptable to the Company to the effect that such Shares to be sold, assigned or transferred may be sold, assigned or transferred pursuant to an exemption from such registration, or (iii) the Purchaser provides the Company with assurances and proper documentation including an opinion of counsel that such Shares can be sold, assigned or transferred pursuant to Rule 144 or Rule 144A promulgated under the Securities Act (or a successor rule thereto).  The Purchaser is acquiring the Shares as principal for its own account for investment purposes only and not with a view to or for distributing or reselling such Shares or any part thereof, has no present intention of distributing any of such Shares and has no arrangement or understanding with any other Persons regarding the distribution of such Shares. The Purchaser does not have any agreement or understanding, directly or indirectly, with any Person to distribute any of the Shares. The Purchaser understands that any sale of the Shares made in reliance on Rule 144 may be made only in accordance with the terms of Rule 144, and further, if Rule 144 is not applicable, any resale of the Shares under circumstances in which the seller (or the Person through whom the sale is made) may be deemed to be an underwriter (as that term is defined in the Securities Act) may require compliance with some other exemption under the Securities Act or the rules and regulations of the SEC promulgated thereunder  The Purchaser further understands that neither the Company nor any other Person is under any obligation whatsoever to register the Shares under the Securities Act or any state securities laws or to comply with the terms and conditions of any exemption thereunder.
 
(c) PURCHASER STATUS. At the time the Purchaser was offered the Shares, it was, and at the date hereof, it is, an "accredited investor" as defined in Rule 501(a) under the Securities Act. The Purchaser is not required to be registered as a broker-dealer under Section 15 of the Exchange Act.
 
(d) EXPERIENCE OF THE PURCHASER. The Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Shares, and has so evaluated the merits and risks of such investment. The Purchaser is able to bear the economic risk of an investment in the Shares and, at the present time, is able to afford a complete loss of such investment.
 
 
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(e) GENERAL SOLICITATION. The Purchaser is not purchasing the Shares as a result of any advertisement, article, notice, website posting or other communication regarding the Shares published in any newspaper, magazine or similar media or broadcast over television, internet or radio or presented at any seminar or any other general solicitation or general advertisement.

(f) RELIANCE ON EXEMPTIONS. The Purchaser understands that the Shares are being offered and sold to it in reliance on specific exemptions from the registration requirements of the United States federal and state securities laws and that the Company is relying on the truth and accuracy of, and the Purchaser’s compliance with, the representations, warranties, agreements, acknowledgements and understandings of the Purchaser set forth herein in order to determine the availability of such exemptions and the eligibility of the Purchaser to acquire the Shares.

(g) INFORMATION.  The Purchaser and its advisors have been furnished with all materials relating to the business, finances and operations of the Company and all materials relating to the offer and sale of the Shares which have been requested by the Purchaser.  The Purchaser and its advisors have been afforded the opportunity to ask questions of the Company.  The Purchaser understands that its investment in the Shares involves a high degree of risk.  The Purchaser has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to its acquisition of the Shares.

(h) NO GOVERNMENTAL REVIEW.  The Purchaser understands that no United States federal or state agency or any other government or governmental agency has passed on or made any recommendation or endorsement of the Shares or the fairness or suitability of the investment in the Shares nor have such authorities passed upon or endorsed the merits of the offering of the Shares.
 
(i) CERTAIN TRADING ACTIVITIES. The Purchaser has not directly or indirectly, nor has any Person acting on behalf of or pursuant to any understanding with the Purchaser, engaged in any transaction in the securities of the Company (including without limitation, any short sales (as defined in Rule 200 promulgated under the Exchange Act) involving the Company’s securities) during the period commencing as of the time that such Purchaser was first contacted by the Company regarding the specific investment in the Company contemplated by this Agreement and ending immediately prior to the execution of this Agreement by the Purchaser.

The Company acknowledges and agrees that the Purchaser does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Section 3.2.
 
 
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ARTICLE IV. OTHER AGREEMENTS OF THE PARTIES

4.1 TRANSFER RESTRICTIONS.
 
(a) The Purchaser hereby agrees that the Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser, the Company shall require the transferor thereof to provide to the Company an opinion of counsel, the form and substance of which opinion shall be satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Shares under the Securities Act. As a condition of transfer, any such transferee shall agree in writing to be bound by the terms of this Agreement and shall have the rights and obligations of a Purchaser under this Agreement.
 
(b) The Purchaser agrees to the imprinting, so long as is required by this Section 4.1(b), of a legend on any of the Shares in the following form:
 
THESE SHARES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE TRANSFERRED, OFFERED, SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE ACCEPTABLE TO THE COMPANY.
 
(c) Certificates evidencing the Shares shall not be required to contain any legend (including the legend set forth in Section 4.1(b)), (i) while a registration statement covering the resale of such security is effective under the Securities Act, or (ii) following any sale of such Shares pursuant to Rule 144 (assuming the transferor is not an affiliate of the Company), or (iii) if such Shares are eligible for sale under Rule 144 (provided that the Purchaser provides the Company with reasonable assurances and proper documentation including an opinion of counsel that such Shares are eligible for sale, assignment or transfer under Rule 144), or (iv) if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the Staff of the SEC). The Company agrees that following such time as such legend is no longer required under this Section 4.1(c), it will, following the delivery by the Purchaser to the Company or the Company's transfer agent of a certificate representing Shares issued with a restrictive legend (such date, the "LEGEND REMOVAL DATE") (endorsed or with stock powers attached, signature guaranteed, and otherwise in a form necessary to affect the reissuance and/or transfer, if applicable) and proper documentation, including an opinion of counsel when required, related thereto, deliver or cause to be delivered to the Purchaser a certificate representing such Shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to any transfer agent of the Company that enlarge the restrictions on transfer set forth in this Section.
 
 
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(d) The Purchaser agrees that the removal of the restrictive legend from certificates representing Shares as set forth in this Section 4.1 is predicated upon the Company's reliance that the Purchaser will sell any Shares pursuant to either the registration requirements of the Securities Act, including any applicable prospectus delivery requirements, or an exemption therefrom, and that such legends will be removed only with proper documentation, including an opinion of counsel when required, provided to the Company or its transfer agent.

4.2  COMMERCIALLY REASONABLE EFFORTS.  Subject to the terms and conditions of this Agreement, each of the parties will use its commercially reasonable efforts in good faith to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or desirable, or advisable under applicable laws, so as to permit consummation of the transactions contemplated hereby as promptly as practicable and otherwise to enable consummation of the transactions contemplated hereby and shall use commercially reasonable efforts to cooperate with the other party to that end.
 
ARTICLE V. MISCELLANEOUS
 
5.1 FEES AND EXPENSES. Unless otherwise provided herein, each party shall pay all the fees and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby.

5.2 ENTIRE AGREEMENT. This Agreement, together with the exhibits and schedules tereto, contains the entire understanding of the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules.  Except as specifically set forth herein, neither the Company nor the Purchaser makes any representations, warranties, covenants and undertakings with respect to the matters set forth herein.
 
5.3 NOTICES. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the earliest of (a) the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number set forth on the signature pages attached hereto prior to 6:30 p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number set forth on the signature pages attached hereto on a day that is not a Trading Day or later than 6:30 p.m. (New York City time) on any Trading Day, (c) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (d) upon actual receipt by the party to whom such notice is required to be given. The address for such notices and communications shall be as set forth on the signature pages attached hereto.
 
 
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5.4 AMENDMENTS; WAIVERS. No provision of this Agreement may be waived or amended except in a written instrument signed, in the case of an amendment, by the Company and the Purchaser or, in the case of a waiver, by the party against whom enforcement of any such waiver is sought. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of either party to exercise any right hereunder in any manner impair the exercise of any such right.
 
5.5 CONSTRUCTION. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against any party. Each and every reference to share prices, shares of Common Stock and any other numbers in this Agreement that relate to the Common Stock, shall automatically be adjusted for stock splits, stock combinations and other similar transactions that occur with respect to the Common Stock after the date of this Agreement.
 
5.6 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. The Company may not assign this Agreement or all or any of its rights or obligations hereunder without the prior written consent of the Purchaser, except an assignment in the case of a business combination where the Company is not the surviving entity, or a sale of all or substantially all of the assets of the Company, to the entity which is the survivor of such business combination or the purchaser in such sale. The Purchaser may not assign this Agreement or any or all of its rights or obligations hereunder without the prior written consent of the Company; provided, however, that the Purchaser may assign any or all of its rights under this Agreement to any Person to whom the Purchaser assigns or transfers any Shares, provided such transfer is in compliance with all federal and state securities laws and the transferee agrees in writing to be bound, with respect to the transferred Shares, by the provisions hereof that apply to the "Purchaser".
 
5.7 NO THIRD-PARTY BENEFICIARIES. This Agreement is intended for the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person.
 
 
8

 
 
5.8 GOVERNING LAW. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Delaware, without regard to the principles of conflicts of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement (whether brought against a party hereto or its respective affiliates, directors, officers, shareholders, employees or agents) shall be commenced exclusively in the state and federal courts sitting in Brevard County, Florida. Each party hereto hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in Brevard County, Florida, for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper. Each party hereto hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by delivering a copy thereof via overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. Each party hereto (including its affiliates, agents, officers, directors and employees) hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. If either party shall commence an action or proceeding to enforce any provisions of this Agreement, then the prevailing party in such action or proceeding shall be reimbursed by the other party for its attorneys' fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
 
5.9 SURVIVAL. The representations and warranties herein shall survive the Closing and delivery of the Shares.
 
5.10 EXECUTION. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party, it being understood that both parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by an email which contains a portable document format (.pdf) file of an executed signature page, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or .pdf file signature page were an original thereof.
 
5.11 SEVERABILITY. If any provision of this Agreement is held to be invalid or unenforceable in any respect, the provision that would otherwise be invalid or unenforceable shall be deemed amended to apply to the broadest extent that it would be valid and enforceable and the validity and enforceability of the remaining terms and provisions of this Agreement shall not in any way be affected or impaired thereby.
 
 
9

 
 
5.12 REPLACEMENT OF SHARES. If any certificate or instrument evidencing any Shares is mutilated, lost, stolen or destroyed, the Company shall issue or cause to be issued in exchange and substitution for and upon cancellation thereof, or in lieu of and substitution therefore, a new certificate or instrument, but only upon receipt of evidence satisfactory to the Company of such loss, theft or destruction and customary and reasonable indemnity, if requested. The applicants for a new certificate or instrument under such circumstances shall also pay any reasonable third-party costs associated with the issuance of such replacement Shares.
 
5.13 REMEDIES. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages the Purchaser and the Company will be entitled to specific performance under this Agreement. The parties agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations described in the foregoing sentence and hereby agrees to waive in any action for specific performance of any such obligation the defense that a remedy at law would be adequate.
 
5.14 HEADINGS; GENDER.  The headings of this Agreement are for convenience of reference and shall not form part of, or affect the interpretation of this Agreement.   Unless the context clearly indicates otherwise, each pronoun herein shall be deemed to include the masculine, feminine, neuter, singular and plural forms thereof.  The terms “including,” “includes,” “include” and words of like import shall be construed as broadly as if followed by the words “without limitation.”  The terms “herein,” “hereunder,” “hereof” and words of like import refer to this entire Agreement instead of just the provision in which they are found.
 
(SIGNATURE PAGE FOLLOWS)
 
 
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IN WITNESS WHEREOF, the parties hereto have caused this Stock Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
 
SANSWIRE CORP.

By:
 
Name:  Glenn D. Estrella
Title:  President and Chief Executive Officer

Address for Notice:

Sanswire Corp.
State Road 405, Building M6-306A, Room 1400
Kennedy Space Center, FL 32815

Mailing Address:
Mail Code: SWC
Kennedy Space Center, FL 32899

Attn: General Counsel
Fax: 305-356-3630

PURCHASER

 
Michael K. Clark

Address for Notice:
157 Beach 135 Street
Belle Harbor, NY 11694

 
11

 

EX-10.3 4 v206653_ex10-3.htm

THE COMMON STOCK PURCHASE OPTION REPRESENTED BY THE AGREEMENT (THE “OPTION”) AND THE SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE OF THE OPTION (THE “OPTION SHARES”) HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND THEREFORE, MAY BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF ONLY IN ACCORDANCE WITH THE ACT, INCLUDING THE REGISTRATION PROVISIONS THEREIN CONTAINED OR PROVIDED AN EXEMPTION FROM REGISTRATION IS AVAILABLE UNDER THE ACT, AND SUBJECT TO THE OPINION OF COUNSEL TO SANSWIRE CORP.

SANSWIRE CORP.
OPTION AGREEMENT

This Option Agreement is made on this 27th day of December, 2010 (the “Effective Date”) by and between SANSWIRE CORP., a Delaware corporation (the “Optionor” or “Company”), and MICHAEL K. CLARK (the “Holder”).

RECITALS

Holder is the Chairman of the Board of Directors of the Company (the “Board”).  In conjunction with Holder’s position, the Board of Directors of the Company has authorized granting to Holder options to purchase the number of shares of common stock, par value $0.00001 per share, of the Company (the “Common Stock”) specified in paragraph (1) hereof, at the prices and for the terms specified herein, pursuant to the terms and conditions stated herein and in the 2004 Employee Stock Option Plan of Globetel Communications Corp. (the “Stock Option Plan”).

AGREEMENT

1.           Option.  Optionor hereby grants to Holder the option (the “Option”) to purchase from Optionor 1,333,334 shares of Common Stock of the Optionor (the “Shares”), upon the conditions and terms set forth herein and in the Stock Option Plan.  The parties understand and agree that the Shares’ transferability is restricted in accordance with state and federal laws.  The Shares pursuant to this Option shall be immediately and fully vested on the date hereof.

2.           Exercise Price.  The per share exercise price payable for the Shares (the “Exercise Price”) shall be $0.09 per share.

3.           Exercise of Option.  This Option may be exercised as to the Shares at any time by the Holder by tendering a copy of this Option Agreement stating the name in which the Shares shall be registered and amount of Shares to be exercised (the “Exercise Notice”), together with the cash amount sufficient to exercise the Option, to the Optionor, or by Cashless Exercise, if applicable, as defined below.  The Option may be exercised in whole or in part at any time during the option period, which begins on the effective date of this Option Agreement and terminates on the earlier of (i) three (3) years from the effective date of this Option Agreement or (ii) 90 days after the termination of Holder’s membership on the Company’s Board (the “Option Period”).

 
 

 
 
4.           Cashless Exercise. In the event the Market Price (as defined below) of the Company Common Stock is above the Exercise Price, and in lieu of the payment method set forth in Section 3, above, the Holder may elect to exchange all or some of the Shares for the Common Stock equal to the value of the amount of the Shares being exchanged on the date of exchange (the “Cashless Exercise”).  If the Holder elects to take advantage of such Cashless Exercise, the Holder shall tender to the Company this Option Agreement for the amount being exchanged, along with written notice of the Holder’s election to exchange some or all of the Shares, and the Company shall issue to the Holder the number of shares of Common Stock computed using the following formula:

X  = Y (A-B)
A

Where:  X =     The number of shares of Common Stock to be issued to the Holder.

Y =      The number of shares of Common Stock purchasable under the amount of this Option Agreement being exchanged (as adjusted to the date of such calculation).

A =     The Market Price (as defined below) of one share of Common Stock.

B =      The Exercise Price (as adjusted to the date of such calculation).

The Cashless Exercise shall take place on the date specified in the notice or if the date the notice is received by the Company is later than the date specified in the notice, on the date the notice is received by the Company.

The Market Price of a share of Common Stock as of a particular date (the "Determination Date") shall mean:
 
(a)           If the Company's Common Stock is traded on an exchange or is quoted on the NASDAQ Global Select Market, the NASDAQ Global Market or the NASDAQ Capital Market, then the closing or last sale price, respectively, reported for the last business day immediately preceding the Determination Date;
 
(b)           If the Company's Common Stock is not traded on an exchange or on the NASDAQ Global Select Market, the NASDAQ Global Market or the NASDAQ Capital Market, but is traded in the over-the-counter market, then the average of the closing bid and ask prices reported for the last business day immediately preceding the Determination Date; and
 
(c)           If the Company's Common Stock is not publicly traded, then as determined in good faith by the Board of Directors of the Company.

 
2

 
 
As soon as practicable after full or partial exercise of the Shares, the Company at its expense (including, without limitation, the payment by it of all taxes and governmental charges applicable to such exercise and issuance of the Shares) shall cause to be issued in the name of and delivered to the Holder or such other persons as directed by the Holder, a certificate or certificates for the total number of Shares being exercised in such denominations as instructed by the Holder, together with any other securities and property to which the Holder is entitled upon exercise under the terms of this Option Agreement. The Option shall be deemed to have been exercised, and the Shares acquired thereby shall be deemed issued, and the Holder or any person(s) designated by the Holder shall be deemed to have become holders of record of such Shares for all purposes, as of the close of business on the date that the Option, the duly executed and completed Exercise Notice, and full payment of the aggregate Exercise Price has been presented and surrendered to the Company, notwithstanding that the stock transfer books of the Company may then be closed. In the event this Option is only partially exercised, a new Option Agreement evidencing the right to acquire the number of Shares with respect to which this Option Agreement shall not then have been exercised, shall be executed, issued and delivered by the Company to the Holder simultaneously with the delivery of the certificates representing the Shares so purchased.

5.           Shares Not Registered

The certificates representing the Shares issued upon exercise of the options shall bear the following legend:

“THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”) OR THE LAWS OF ANY OTHER JURISDICTION AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF IN ANY MANNER (1) WITHOUT REGISTRATION UNDER THE ACT AND IN COMPLIANCE WITH THE LAWS OF ANY APPLICABLE JURISDICTION OR (2) AN OPINION OF COUNSEL (IN FORM AND SUBSTANCE ACCEPTABLE TO THE COMPANY) THAT REGISTRATION IS NOT REQUIRED.”
 
6.           Representation, Warranties and Covenants of the Holder.  The Holder represents, warrants to and covenants with Optionor as follows:

a)           The Holder warrants he has evaluated the merits and risks associated with the investment in the Company as represented by this option, including review of the Annual and Quarterly Reports and other reports of the Company that have been filed from time to time with the Securities and Exchange Commission (“SEC”), and all other documentation that he deems necessary under the Securities and Exchange Act of 1934, as amended, and the applicable state securities laws.

 
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b)           The Holder further represents that he understands that neither this Option nor the Shares underlying the option are registered under the Act.

c)           The Holder is sufficiently experienced in financial matters and matters pertaining to securities to be capable of evaluating the merits and risks associated with the acceptance of this Option, and has relied upon such experience in so determining to accept this option in partial consideration for the services performed by Holder to the Company. The parties agree that this Option is not the exclusive consideration granted or to be granted to Holder for services heretofore provided or to be provided by Holder to the Company.
 
7.           Representation, Warranties and Covenants of the Optionor.  The Optionor represents, warrants to and covenants with Holder as follows:

a)           This Agreement has been duly executed and delivered by such Optionor and constitutes the valid and binding obligation of such Optionor and such Optionor has the requisite power and capacity to execute, deliver and perform this Agreement and to comply with the terms hereof.

b)           The grant of the Option by such Optionor does not, and the sale of the Option Shares to Holder by such Optionor, upon payment of the Exercise Price thereof, will not, conflict with or constitute an event of default under or breach of any agreement, document or instrument to which such Optionor is a party.

c)           The Option Shares underlying the Option granted by such Optionor hereunder are currently owned by such Optionor and, upon exercise of the Options by Holder and payment of the Exercise Price therefore, Holder will acquire such Option Shares free and clear of all security interests, claims, liens, security or other interests, encumbrances and charges of any kind whatsoever, other than pursuant to the federal and state securities laws.

d)           Until the earlier of (i) the exercise of the Option granted by such Optionor or (ii) the expiration of the Option Period, such Optionor will not sell, transfer, assign, pledge, alienate or hypothecate any of the Option Shares, or permit such Option Shares to become subject to any mortgage pledge, lien, security or other interest, encumbrance or charge of any kind, other than pursuant to the federal and state securities laws.
 
 
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8.           Notices.  All notices, requests, demands and other communications which are given pursuant to this Agreement shall be in writing and shall be deemed to have been duly given when delivered by hand, when sent by facsimile (with receipt confirmed), or when mailed by registered or certified mail (postage prepaid, return receipt requested), as follows (or to such other address or telex number as either party hereto may designate to the other party hereto by like notice):

If to the Holder, to:
Michael K. Clark
157 Beach 135 Street
Belle Harbor, NY 11694

If to the Optionor, to:
SANSWIRE CORP.
State Road 405, Building M6-306A, Room 1400
Kennedy Space Center, FL 32815

Mail Address:
Mail Code: SWC
Kennedy Space Center, FL 32899

Attention:  Glenn D. Estrella,
President and Chief Executive Officer

9.           Successors.  All the covenants and provisions of this Agreement by or for the benefit of the Optionor and Holder inure to the benefit of their respective successors and assigns hereunder.

10.           Entire Agreement.  This Agreement constitutes the complete agreement between the parties and terminates and supersedes all prior and contemporaneous oral and written agreements. This Agreement may not be altered, amended or modified except by a writing duly executed by the parties hereto.

11.           Severability.  In the event that any term or condition in this Agreement shall for any reason be held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other term or condition of this Agreement, but this Agreement shall be construed as if such invalid or illegal or unenforceable term or condition had never been contained herein.

12.           Non-Waiver. No waiver, forbearance or failure by any party of its right to enforce any provision of this Agreement shall constitute a waiver or estoppel of such party’s right to enforce such provision in the future or such party’s right to enforce any other provision of this Agreement.
 
 
5

 
 
13.           Binding Effect; No Third Party Beneficiaries.  Each term and provision of this Agreement shall be binding upon and enforceable against and inure to the benefit of the parties hereto and their respective successors or assigns, nothing in this Agreement, express or implied, being intended to confer upon any other person any rights or remedies hereunder.
 
14.           Counterparts.  This Agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original, and such counterparts shall together constitute but one and the same instrument.
 
 
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.
 
HOLDER:
 
   
  By: 
 
   
 
Name:
Michael K. Clark
     
 
Date:
December 27, 2010
   
OPTIONOR:
 
   
SANSWIRE CORP.,
A DELAWARE CORPORATION
   
  By: 
 
 
 
Name:
 Glenn D. Estrella
 
Title:
President and Chief Executive Officer
   
 
Date:
December 27, 2010
 
 
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EX-10.4 5 v206653_ex10-4.htm

 AGREEMENT

This Agreement (the “Agreement”) between Glenn D. Estrella (“Estrella”) and Sanswire Corp. (the “Company”) is effective on the date fully executed by both parties ("Effective Date"), and is entered into by and between Estrella, the Company’s President and Chief Executive Officer with an address of 1608 Sheridan Drive, Wall Township, NJ 07753 and the Company, a Delaware corporation with offices at State Road 405, Building M6-306A, Room 1400, Kennedy Space Center, FL 32815.

WHEREAS, pursuant to that certain Confidential Employment Agreement by and between Estrella and the Company dated June 23, 2010 (the “Employment Agreement”), the Company issued to Estrella 5,000,000 shares (the “Shares”) of its common stock, par value $0.00001 per share (the “Common Stock).

WHEREAS, Estrella and the Company now desire to rescind the issuance of the Shares as more particularly set forth below:

NOW, THEREFORE, in consideration of the mutual promises and consideration contained herein, the parties agreed as follows:

1.           Estrella and the Company have mutually agreed to rescind the issuance of the Shares whereby the Shares are hereby returned by Estrella to the Company for cancellation and return to treasury, and hereafter all right, title and interest of Estrella in the Shares is hereby  terminated.

2.           The Employment Agreement will be amended and restated as of the date hereof as set forth as Appendix A hereto.

3.           This Agreement embodies the entire agreement between Estrella and the Company with respect to the matters set forth herein.

4.           This Agreement shall be construed and governed by the laws of the State of Delaware.

 
Page 1 of 3

 

IN WITNESS WHEREOF, Estrella and the Company have executed and delivered this Agreement effective as of the Effective Date.

SANSWIRE CORP.
 
By:
   
 
Name: Michael K. Clark
 
Title: Chairman of Board of Directors
 
Date: December 27, 2010
 
     
Glenn D. Estrella
 
Date: December 27, 2010
 
 
Page 2 of 3

 

APPENDIX A

 
Page 3 of 3

 

EX-10.6 6 v206653_ex10-6.htm
THE COMMON STOCK PURCHASE OPTION REPRESENTED BY THE AGREEMENT (THE “OPTION”) AND THE SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE OF THE OPTION (THE “OPTION SHARES”) HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND THEREFORE, MAY BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF ONLY IN ACCORDANCE WITH THE ACT, INCLUDING THE REGISTRATION PROVISIONS THEREIN CONTAINED OR PROVIDED AN EXEMPTION FROM REGISTRATION IS AVAILABLE UNDER THE ACT, AND SUBJECT TO THE OPINION OF COUNSEL TO SANSWIRE CORP.

SANSWIRE CORP.
OPTION AGREEMENT

This Option Agreement is made on this 27th day of December, 2010 (the “Effective Date”) by and between SANSWIRE CORP., a Delaware corporation (the “Optionor” or “Company”), and GLENN D. ESTRELLA (the “Holder”).

RECITALS

Holder is the President, Chief Executive Officer, Chief Financial Officer and a member of the Board of Directors of the Company (the “Board”).  In conjunction with Holder’s position, the Board of Directors of the Company has authorized granting to Holder options to purchase the number of shares of common stock, par value $0.00001 per share, of the Company (the “Common Stock”) specified in paragraph (1) hereof, at the prices and for the terms specified herein, pursuant to the terms and conditions stated herein and in the 2004 Employee Stock Option Plan of Globetel Communications Corp. (the “Stock Option Plan”).

AGREEMENT

1.           Option.  Optionor hereby grants to Holder the option (the “Option”) to purchase from Optionor 7,222,222 shares of Common Stock of the Optionor (the “Shares”), upon the conditions and terms set forth herein and in the Stock Option Plan.  The parties understand and agree that the Shares’ transferability is restricted in accordance with state and federal laws.  The Shares pursuant to this Option shall be immediately and fully vested on the date hereof.

2.           Exercise Price.  The per share exercise price payable for the Shares (the “Exercise Price”) shall be $0.09 per share.

3.           Exercise of Option.  This Option may be exercised as to the Shares at any time by the Holder by tendering a copy of this Option Agreement stating the name in which the Shares shall be registered and amount of Shares to be exercised (the “Exercise Notice”), together with the cash amount sufficient to exercise the Option, to the Optionor, or by Cashless Exercise, if applicable, as defined below.  The Option may be exercised in whole or in part at any time during the option period, which begins on the effective date of this Option Agreement and terminates on the earlier of (i) three (3) years from the effective date of this Option Agreement or (ii) 90 days after the termination of Holder’s employment with the Company (the “Option Period”).

 
 

 
 
4.           Cashless Exercise. In the event the Market Price (as defined below) of the Company Common Stock is above the Exercise Price, and in lieu of the payment method set forth in Section 3, above, the Holder may elect to exchange all or some of the Shares for the Common Stock equal to the value of the amount of the Shares being exchanged on the date of exchange (the “Cashless Exercise”).  If the Holder elects to take advantage of such Cashless Exercise, the Holder shall tender to the Company this Option Agreement for the amount being exchanged, along with written notice of the Holder’s election to exchange some or all of the Shares, and the Company shall issue to the Holder the number of shares of Common Stock computed using the following formula:

X  = Y (A-B)
A

Where:  X =    The number of shares of Common Stock to be issued to the Holder.

Y =     The number of shares of Common Stock purchasable under the amount of this Option Agreement being exchanged (as adjusted to the date of such calculation).

A =     The Market Price (as defined below) of one share of Common Stock.

B =      The Exercise Price (as adjusted to the date of such calculation).

The Cashless Exercise shall take place on the date specified in the notice or if the date the notice is received by the Company is later than the date specified in the notice, on the date the notice is received by the Company.

The Market Price of a share of Common Stock as of a particular date (the "Determination Date") shall mean:
 
(a)           If the Company's Common Stock is traded on an exchange or is quoted on the NASDAQ Global Select Market, the NASDAQ Global Market or the NASDAQ Capital Market, then the closing or last sale price, respectively, reported for the last business day immediately preceding the Determination Date;
 
(b)           If the Company's Common Stock is not traded on an exchange or on the NASDAQ Global Select Market, the NASDAQ Global Market or the NASDAQ Capital Market, but is traded in the over-the-counter market, then the average of the closing bid and ask prices reported for the last business day immediately preceding the Determination Date; and
 
(c)           If the Company's Common Stock is not publicly traded, then as determined in good faith by the Board of Directors of the Company.

 
2

 
 
As soon as practicable after full or partial exercise of the Shares, the Company at its expense (including, without limitation, the payment by it of all taxes and governmental charges applicable to such exercise and issuance of the Shares) shall cause to be issued in the name of and delivered to the Holder or such other persons as directed by the Holder, a certificate or certificates for the total number of Shares being exercised in such denominations as instructed by the Holder, together with any other securities and property to which the Holder is entitled upon exercise under the terms of this Option Agreement. The Option shall be deemed to have been exercised, and the Shares acquired thereby shall be deemed issued, and the Holder or any person(s) designated by the Holder shall be deemed to have become holders of record of such Shares for all purposes, as of the close of business on the date that the Option, the duly executed and completed Exercise Notice, and full payment of the aggregate Exercise Price has been presented and surrendered to the Company, notwithstanding that the stock transfer books of the Company may then be closed. In the event this Option is only partially exercised, a new Option Agreement evidencing the right to acquire the number of Shares with respect to which this Option Agreement shall not then have been exercised, shall be executed, issued and delivered by the Company to the Holder simultaneously with the delivery of the certificates representing the Shares so purchased.

5.           Shares Not Registered

The certificates representing the Shares issued upon exercise of the options shall bear the following legend:

“THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”) OR THE LAWS OF ANY OTHER JURISDICTION AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF IN ANY MANNER (1) WITHOUT REGISTRATION UNDER THE ACT AND IN COMPLIANCE WITH THE LAWS OF ANY APPLICABLE JURISDICTION OR (2) AN OPINION OF COUNSEL (IN FORM AND SUBSTANCE ACCEPTABLE TO THE COMPANY) THAT REGISTRATION IS NOT REQUIRED.”
 
6.           Representation, Warranties and Covenants of the Holder.  The Holder represents, warrants to and covenants with Optionor as follows:

 
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a)           The Holder warrants he has evaluated the merits and risks associated with the investment in the Company as represented by this option, including review of the Annual and Quarterly Reports and other reports of the Company that have been filed from time to time with the Securities and Exchange Commission (“SEC”), and all other documentation that he deems necessary under the Securities and Exchange Act of 1934, as amended, and the applicable state securities laws.

b)           The Holder further represents that he understands that neither this Option nor the Shares underlying the option are registered under the Act.

c)           The Holder is sufficiently experienced in financial matters and matters pertaining to securities to be capable of evaluating the merits and risks associated with the acceptance of this Option, and has relied upon such experience in so determining to accept this option in partial consideration for the services performed by Holder to the Company. The parties agree that this Option is not the exclusive consideration granted or to be granted to Holder for services heretofore provided or to be provided by Holder to the Company.
 
7.           Representation, Warranties and Covenants of the Optionor.  The Optionor represents, warrants to and covenants with Holder as follows:

a)           This Agreement has been duly executed and delivered by such Optionor and constitutes the valid and binding obligation of such Optionor and such Optionor has the requisite power and capacity to execute, deliver and perform this Agreement and to comply with the terms hereof.

b)           The grant of the Option by such Optionor does not, and the sale of the Option Shares to Holder by such Optionor, upon payment of the Exercise Price thereof, will not, conflict with or constitute an event of default under or breach of any agreement, document or instrument to which such Optionor is a party.

c)           The Option Shares underlying the Option granted by such Optionor hereunder are currently owned by such Optionor and, upon exercise of the Options by Holder and payment of the Exercise Price therefore, Holder will acquire such Option Shares free and clear of all security interests, claims, liens, security or other interests, encumbrances and charges of any kind whatsoever, other than pursuant to the federal and state securities laws.

d)           Until the earlier of (i) the exercise of the Option granted by such Optionor or (ii) the expiration of the Option Period, such Optionor will not sell, transfer, assign, pledge, alienate or hypothecate any of the Option Shares, or permit such Option Shares to become subject to any mortgage pledge, lien, security or other interest, encumbrance or charge of any kind, other than pursuant to the federal and state securities laws.

 
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8.           Notices.  All notices, requests, demands and other communications which are given pursuant to this Agreement shall be in writing and shall be deemed to have been duly given when delivered by hand, when sent by facsimile (with receipt confirmed), or when mailed by registered or certified mail (postage prepaid, return receipt requested), as follows (or to such other address or telex number as either party hereto may designate to the other party hereto by like notice):

If to the Holder, to:
Glenn D. Estrella
1608 Sheridan Drive
Wall Township, NJ 07753

If to the Optionor, to:
SANSWIRE CORP.
State Road 405, Building M6-306A, Room 1400
Kennedy Space Center, FL 32815

Mail Address:
Mail Code: SWC
Kennedy Space Center, FL 32899

Attention: General Counsel

9.           Successors.  All the covenants and provisions of this Agreement by or for the benefit of the Optionor and Holder inure to the benefit of their respective successors and assigns hereunder.

10.           Entire Agreement.  This Agreement constitutes the complete agreement between the parties and terminates and supersedes all prior and contemporaneous oral and written agreements. This Agreement may not be altered, amended or modified except by a writing duly executed by the parties hereto.

11.           Severability.  In the event that any term or condition in this Agreement shall for any reason be held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other term or condition of this Agreement, but this Agreement shall be construed as if such invalid or illegal or unenforceable term or condition had never been contained herein.

12.           Non-Waiver. No waiver, forbearance or failure by any party of its right to enforce any provision of this Agreement shall constitute a waiver or estoppel of such party’s right to enforce such provision in the future or such party’s right to enforce any other provision of this Agreement.

 
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13.           Binding Effect; No Third Party Beneficiaries.  Each term and provision of this Agreement shall be binding upon and enforceable against and inure to the benefit of the parties hereto and their respective successors or assigns, nothing in this Agreement, express or implied, being intended to confer upon any other person any rights or remedies hereunder.

14.           Counterparts.  This Agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original, and such counterparts shall together constitute but one and the same instrument.
 
 
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.

HOLDER:
 
   
 
By:
   
 
Name:
Glenn D. Estrella
     
 
Date:
December 27, 2010
   
OPTIONOR:
 
 
SANSWIRE CORP.,
A DELAWARE CORPORATION
   
 
By:
   
 
Name:
 Michael K. Clark
 
Title:
Chairman of the Board
   
 
Date:
December 27, 2010


 
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EX-10.5 7 v206653_ex10-5.htm
 
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
 
This Amended and Restated Agreement (the “Agreement”), dated as of December 27, 2010 (the “Agreement Date”), is by and between SANSWIRE CORP. (the “Company”) and GLENN D. ESTRELLA (the “Executive”).
 
Introduction
 
WHEREAS, the Company and the Executive entered into a Confidential Employment Agreement (the “Prior Agreement”) dated June 23, 2010 (the “Effective Date”);
 
WHEREAS, the Company and the Executive want to hereby amend and restate in full the Prior Agreement and the Company desires to retain the services of the Executive pursuant to the terms and conditions set forth herein and the Executive wishes to be employed by the Company on such terms and conditions.
 
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
 
1.           Employment.  Pursuant to the terms and conditions herein, the Company shall employ the Executive from the Effective Date and during the Term (as defined below) hereof.  The term of this Agreement shall extend from the Effective Date until June 22, 2013 (the “Initial Term”), provided, however, that the Agreement shall be extended for successive one year terms thereafter unless a party notifies the other in writing within thirty (30) days prior to the end of either the Initial Term or any successive one year renewal term that the Agreement is not being renewed or unless terminated earlier pursuant to the terms hereof (the Initial Term and each successive one year renewal term being collectively known as the “Term”).
 
2.           Duties.  The Executive will initially serve as the President, Chief Executive Officer and Chief Financial Officer of the Company and shall have such duties of an executive nature as the Board of Directors of the Company (the “Board”) shall determine from time to time.  The Executive will report to the Board of Directors.  The Executive will be based in the Company’s offices in Kennedy Space Center, Florida.
 
3.           Full Time; Best Efforts.  The Executive shall use the Executive’s best efforts to promote the interests of the Company and its affiliated companies and shall devote the Executive’s full business time and efforts to their business and affairs.  Notwithstanding the foregoing, Executive may serve on other boards of directors, with the approval of the Board, or engage in religious, charitable or other community activities as long as such services and activities do not materially interfere with the Executive’s performance of the Executive’s duties to the Company as provided in this Agreement.
 
4.           Compensation and Benefits.  During the Term of Executive’s employment with the Company under this Agreement, the Executive shall be entitled to compensation and benefits as follows:
 
 
 

 
 
(a)          Base Salary.  The Executive will receive a salary at the rate of $250,000 annually (the “Base Salary”), payable in accordance with the Company’s normal payroll practices and subject to applicable taxes and withholding. The Executive’s Base Salary may from time to time be increased, but not decreased, by the Board.  The Executive may at any time elect to take a portion of the amounts owed as Base Salary as common stock, par value $0.00001 per share, of the Company (the “Common Stock”).  If during the Initial Term, Sanswire is acquired as a result of a transfer (by merger or by sale of assets or stock or other combination) of all or  substantially all of the Company’s total assets or all or a majority of the Company’s stock to an unrelated third party (a “Business Combination”), the Base Salary payable during the Initial Term will be accelerated so that upon the closing of such Business Combination, Executive shall be paid one hundred percent (100%) of the unpaid portion of such Base Salary in a lump sum cash payment.
 
(b)          Bonus.  The Executive will be eligible for an annual bonus for each fiscal year at the discretion of the Board (the “Bonus”).  The Bonus for a particular fiscal year will be payable within 75 days of the end of such fiscal year.  The payment of any Bonus shall be prorated for any partial fiscal year during the Term of this Agreement.  The Board shall determine in good faith the amount of the Bonus, and such determination shall be binding and conclusive on the Executive.
 
(c)          Signing Bonus.   On or promptly following the Effective Date, the Company will pay the Executive $20,000 cash as a signing bonus.
 
(d)          Stock Options.   It is anticipated that, based on performance and at the discretion of the Board, option grants to purchase shares of Common Stock may be made approximately annually.
 
(e)          Benefits.  In addition to the Base Salary and any Bonus, the Executive shall be entitled to receive fringe benefits that are generally available to the Company’s executive employees in accordance with the then existing terms and conditions of the Company’s policies, including medical insurance at the Company’s expense for Executive and his family.
 
(f)           Vacation.  The Executive shall be entitled to twenty (20) business days of paid vacation per fiscal year in accordance with the Company’s vacation policies.
 
(g)          Business Expenses.  The Company shall reimburse the Executive for all reasonable expenses incurred by the Executive in the ordinary course of business on behalf of the Company, subject to the presentation of appropriate documentation.
 
(h)          Cell Phone.  The Company shall reimburse the Executive for all reasonable expenses for the use of a cell phone in connection with the Executive’s employment with the Company.
 
(i)           Withholding.  The Company will withhold from compensation payable to the Executive all applicable federal, state and local withholding taxes.
 
 
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(j)           Directors and Officers Insurance; Indemnity.  The Company does not currently have Directors and Officers Liability Insurance, but the Company hereby agrees to purchase such insurance to cover all officers and directors as soon as practicable.  To the fullest extent permitted by law, the Company will indemnify the Executive against, and will hold the Executive harmless from, and pay any expenses (including without limitation, all legal fees and court costs), judgments, fines, penalties, settlements, damages and other amounts arising out of or in connection with any act or omission of the Executive performed or made in good faith on behalf of the Company, regardless of negligence.  The foregoing provisions will survive the Term of this Agreement and the termination of Executive’s employment with the Company for any reason whatsoever and regardless of fault.
 
(k)           Housing and Car Allowances.  The Company shall pay Executive (i) up to $2,800 per month as a housing allowance and (ii) up to $500 per month as a car allowance, such actual amounts to be submitted to the Company by the Executive upon his securing housing and a car in Florida.
 
5.          Confidentiality; Intellectual Property.  The Executive agrees that during the Executive’s employment with the Company, whether or not under this Agreement, and thereafter:
 
(a)           The Executive will not at any time, directly or indirectly, disclose or divulge any Confidential Information (as hereinafter defined), except as required in connection with the performance of the Executive’s duties for the Company, and except to the extent required by law (but only after the Executive has provided the Company with reasonable notice and opportunity to take action against any legally required disclosure).  As used herein, “Confidential Information” means all trade secrets and all other information of a business, financial, marketing, technical or other nature relating to the business of the Company including, without limitation, any customer or vendor lists, prospective customer names, financial statements and projections, know-how, pricing policies, operational methods, methods of doing business, technical processes, formulae, designs and design projects, inventions, computer hardware, software programs, business plans and projects pertaining to the Company and including any information of others that the Company has agreed to keep confidential; provided, that Confidential Information shall not include any information that has entered or enters the public domain through no fault of the Executive or any information known to the Executive before the Effective Date.  For greater certainty, Confidential Information shall not include any know-how concerning the unmanned aerial vehicle business in general (as opposed to the Company) acquired by the Executive prior to performing services for the Company.
 
(b)           The Executive shall make no use whatsoever, directly or indirectly, of any Confidential Information at any time, except as required in connection with the performance of the Executive’s duties for the Company.
 
(c)           Upon the Company’s request at any time and for any reason, the Executive shall immediately deliver to the Company, or destroy if directed by the Company,  all materials (including all soft and hard copies) in the Executive’s possession which contain or relate to Confidential Information.
 
 
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(d)           All inventions, modifications, discoveries, designs, developments, improvements, processes, software programs, works of authorship, documentation, formulae, data, techniques, know-how, secrets or intellectual property rights or any interest therein (collectively, the “Developments”) made by the Executive, either alone or in conjunction with others, at any time or at any place during the Executive’s employment with the Company, whether or not reduced to writing or practice during such period of employment, which relate to the business in which the Company is engaged shall be and hereby are the exclusive property of the Company without any further compensation to the Executive.  In addition, without limiting the generality of the prior sentence, all Developments which are copyrightable work by the Executive are intended to be “work made for hire” as defined in Section 101 of the Copyright Act of 1976, as amended, and shall be and hereby are the property of the Company.
 
(e)           The Executive shall promptly disclose all Developments to the Company.  If any Development is not the property of the Company by operation of law, this Agreement or otherwise, the Executive will, and hereby does, assign to the Company all right, title and interest in such Development, without further consideration, and will assist the Company and its nominees in every way, at the Company’s expense, to secure, maintain and defend the Company’s rights in such Development.  The Executive shall sign all instruments necessary for the filing and prosecution of any applications for, or extension or renewals of, letters patent (or other intellectual property registrations or filings) of the USA or any foreign country which the Company desires to file and relates to any Development.  The Executive hereby irrevocably designates and appoints the Company and its duly authorized officers and agents as such Executive’s agent and attorney-in-fact (which designation and appointment shall be deemed coupled with an interest and shall survive the Executive’s death or incapacity), to act for and in the Executive’s behalf to execute and file any such applications, extensions or renewals and to do all other lawfully permitted acts to further the prosecution and issuance of such letters patent, other intellectual property registrations or filings, or such other similar documents with the same legal force and effect as if executed by the Executive.
 
(f)           Attached hereto as Exhibit A is a list of all inventions, modifications, discoveries, designs, developments, improvements, processes, software programs, works of authorship, documentation, formulae, data, techniques, know-how, secrets or intellectual property rights or any interest therein made by the Executive prior to the Executive performing services for the Company (collectively, the “Prior Inventions”) which (i) the Executive owns or has interest therein, (ii) relate to the business of the Company and (iii) are not assigned to the Company hereunder; or, if no such list is attached, Executive represents that there are no such Prior Inventions.  If in the course of the Executive performing services for the Company, the Executive incorporates into a Company product, process or machine a Prior Invention owned by the Executive or in which the Executive has an interest, the Company is hereby granted and shall have a non-exclusive, royalty-free, irrevocable, perpetual, transferable, worldwide license to make, have made, modify, use, sell and otherwise exploit such Prior Invention as part of or in connection with such product, process or machine and any and all enhancements and extensions thereof.
 
6.          Noncompetition; Nonsolicitation.  The Executive agrees that:
 
 
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(a)           during the Executive’s employment with the Company, whether or not under this Agreement, and thereafter during the Noncompetition Period (as hereinafter defined), the Executive will not, directly or indirectly, individually or as a consultant to, or an employee, officer, director, manager, stockholder (except as the owner of less than 1% of the stock of a publicly traded company), partner, member or other owner or participant in any business entity other than the Company, engage in or assist any other person or entity to engage in any business which competes with any business in which the Company is then engaging anywhere in the USA or the world where the Company does business.
 
(b)           during the Executive’s employment with the Company, whether or not under this Agreement, and thereafter during the Noncompetition Period, the Executive will not, directly or indirectly, individually or as a consultant to, or an employee, officer, director, manager, stockholder (except as the owner of less than 1% of the stock of a publicly traded company), partner, member or other owner or participant in any business entity, offer employment or any consulting arrangement to, hire, or otherwise interfere with the business relationship of the Company with, any person or entity who is, or was within the six month period immediately prior thereto, employed by, associated with or a consultant to the Company.
 
(c)           during the Executive’s employment with the Company, whether or not under this Agreement, and thereafter during the Noncompetition Period, the Executive will not, directly or indirectly, individually or as a consultant to, or an employee, officer, director, manager, stockholder (except as the owner of less than 1% of the stock of a publicly traded company), partner, member or other owner or participant in any business entity, solicit away from the Company or endeavor to entice away from the Company, or otherwise interfere with the business relationship of the Company with, any person or entity who is, or was within the six month period immediately prior thereto, a customer, dealer, distributor or client of, supplier, vendor or service provider to the Company.
 
(d)           As used herein, “Noncompetition Period” means 12 months from the date of the termination of Executive’s employment with the Company, provided, however, that such period shall only be 6 months if the Company terminates the Executive’s employment without Cause or the Executive terminates his employment for Good Reason.
 
7.           Remedies; Applicability to Affiliated Companies.  Without limiting the remedies available to the Company, the Executive acknowledges that a breach of this Agreement, including any of the covenants contained in Sections 5 or 6 herein, could result in irreparable injury to the Company for which there might be no adequate remedy at law, and that, in the event of such a breach or threat thereof, the Company shall be entitled to obtain a temporary restraining order and/or a preliminary injunction and a permanent injunction restraining the Executive from engaging in any activities prohibited herein or such other equitable relief as may be required to enforce specifically any of the provisions herein.  The foregoing provisions and the provisions of Sections 5 and 6 herein shall survive the term of this Agreement and the termination of the Executive’s employment with the Company, and shall continue thereafter in full force and effect in accordance with their terms.  For purposes of Sections 5, 6 and 7 of this Agreement, the term “Company” shall include the Company, each of its affiliated companies, subsidiaries and parent company, as applicable, and their respective successors and assigns.
 
 
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8.           Termination.
 
(a)           General.  The Executive’s employment with the Company may be terminated at any time by the Company during the Term hereof with Cause or without Cause (which in the case of a termination without Cause shall be effective after at least thirty (30) days prior written notice thereof from the Company to the Executive), or in the event of the death or Disability of the Executive.  The Executive’s employment with the Company may also be terminated by the Executive in accordance with the Good Reason Process (hereinafter defined) or after at least thirty (30) days prior written notice thereof from the Executive to the Company.  Upon receipt of such notice, the Company may elect, in its discretion, to terminate the employment of Executive at any time following such notice; provided however that in the event the Company elects to terminate the Executive following notice, Executive’s Base Salary and benefits including any vesting of equity shall continue to be paid and accrued during the notice period.
 
(b)           Definitions.  As used herein, the following terms shall have the following meanings:

“Cause” means that the Executive has (i) willfully breached in any material respect any fiduciary duty or legal or contractual obligation to the Company or any of its affiliated companies, which breach in the case of a contractual obligation to the Company, if curable, is not cured within thirty (30) days after written notice to the Executive thereof, (ii) willfully failed to perform satisfactorily the Executive’s material job duties, which failure, if curable, is not cured within thirty (30) days after written notice to the Executive thereof, (iii) engaged in gross negligence, willful misconduct, fraud, embezzlement, or acts of dishonesty that has resulted in material injury to the Company or any of its affiliated companies, or (iv) been convicted of or pleaded nolo contendere to (A) any misdemeanor relating to the affairs of the Company or any of its affiliated companies or (B) any felony.

“Disability” means illness (mental or physical), which results in the Executive being unable to perform the Executive’s duties as an employee of the Company for a period of three (3) consecutive months, or an aggregate of six (6) months in any twelve (12) month period, as determined in the reasonable judgment of an independent physician mutually agreed upon by the Executive, or her personal representative (as the case may be), and the Company.  Nothing in this Section 8(b) shall be construed to waive the Executive’s rights, if any, under existing law including, without limitation, the Family and Medical Leave Act of 1993, 29 U.S.C. s.2601 et seq. and the Americans with Disabilities Act, 42 U.S.C. s.12101 et seq.

“Good Reason” means that the Executive has complied with the “Good Reason Process” (hereinafter defined) following the occurrence of any of the following events:  (i) a material diminution in the Executive’s responsibilities, authority or duties, (ii) any diminution in the Executive’s Base Salary, (iii) a material change in the geographic location at which the Executive is required to provide services to the Company (aside from work-related travel), or (iv) the material breach of this Agreement by the Company (each a “Good Reason Condition”).  Good Reason Process shall mean that (i)  the Executive notifies the Company in writing of her belief in the occurrence of the Good Reason Condition within 60 days of the first occurrence of such condition, (ii)  the Company fails to fully cure the Good Reason Condition within 30 days following such notice (the “Cure Period”), and (iii) the Executive terminates employment within 60 days after the end of the Cure Period.

 
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(c)          Effects of Termination.  If the Executive’s employment is terminated during the Term of this Agreement, the Company shall have no further obligation to make any payments or provide any benefits to the Executive hereunder after the date of termination except for (i) payments of Base Salary, Bonus and expense reimbursement that had accrued, but had not yet been paid, and any vested benefits the Executive may have under any employee benefit plans, through the date of termination, (ii) payments for any accrued but unused vacation time in accordance with Company policy and (iii) if the Executive’s employment with the Company is terminated by the Company without Cause (other than as a result of the death or Disability of the Executive, or as contemplated by Section 8(d) below), or by the Executive for Good Reason (A) continuation for a period of six (6) months (the “Severance Period”) of payments of Base Salary at the rate in effect at the date of termination, (B) a prorated portion of his annual Bonus for the year in which the termination occurs for performance through the date of the termination as determined in good faith by the Board, and (C) all health and dental benefits, including the cost of COBRA continuation coverage for Executive and his eligible dependents during the Severance Period, payable beginning on the first payroll day following the termination date; provided, however, that if Executive’s employment is terminated by the Company without Cause (other than as a result of the death or Disability of the Executive, or as contemplated by Section 8(d) below), or by the Executive for Good Reason during the Initial Term of this Agreement, in lieu of the payments to be made pursuant to Section 8(c)(iii) above, the Company shall pay the Executive one hundred percent (100%) of the unpaid portion of the Base Salary that would have been paid during the Initial Term in a lump sum cash payment within 90 days following the date of such termination.

(d)          Conditions and Limitations to Severance.   Notwithstanding the foregoing, the Company’s obligations to make payments to the Executive under Section 8(c)(iii) (including the proviso) of this Agreement shall be subject to the following provisions and conditions:
 
(i)           General Release of Claims.  The Company’s obligation to make payments under Section 8(c)(iii) (including the proviso) of this Agreement shall be contingent upon the Executive executing a general release of claims in a customary and reasonable form.

(ii)           Consequences of Breach.  If the Executive breaches the Executive’s obligations under Sections 5 or 6 of this Agreement, the Company may immediately cease all payments payable to the Executive under Section 8(c)(iii) (including the proviso) of this Agreement.  The cessation of these payments shall be in addition to, and not as an alternative to, any other remedies at law or in equity available to the Company, including without limitation the right to seek specific performance or an injunction.
 
(e)          Survival.  The provisions of Sections 5 through 20 of this Agreement shall survive the Term of this Agreement and the termination of the Executive’s employment with the Company, and shall continue thereafter in full force and effect in accordance with their terms.
 
 
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9.           Enforceability.  This Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision hereof shall be prohibited or invalid under any such law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating or nullifying the remainder of such provision or any other provisions of this Agreement.  If any one or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to duration, geographical scope, activity or subject, such provisions shall be construed by limiting and reducing it so as to be enforceable to the maximum extent permitted by applicable law.
 
10.        Notices.  Any notice, demand or other communication given pursuant to this Agreement shall be in writing and shall be personally delivered, sent by nationally recognized overnight courier or express mail, or mailed by first class certified or registered mail, postage prepaid, return receipt requested, or otherwise actually delivered as follows: (a) if to the Executive: Glenn D. Estrella, 1608 Sheridan Drive, Wall Township, NJ 07753, (b) if to the Company: Sanswire Corp., State Road 405, Building M6-306A, Room 1400, Kennedy Space Center, FL 32815 or mailing address: Mail Code: SWC, Kennedy Space Center, FL 32899, or (c) at such other address as may have been furnished by such person in writing to the other parties.
 
11.        Governing Law.  This Agreement shall be governed by and construed in accordance with the internal laws of the State of Florida, without regard to its conflict of law provisions.  The Company and Executive hereby submit to the jurisdiction of the courts of the State of Florida and of the United States located in Brevard County of Florida and each agrees not to raise and waive any objection to or defense based on the venue of any such court or forum non conveniens.
 
12.        Section 409A. This Agreement is intended to comply with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations thereunder.  To the extent that any provision in this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be interpreted in a manner so that no payment due to Executive shall be subject to an “additional tax” within the meaning of Section 409A(a)(1)(B) of the Code.  To the extent that any provision in the Agreement is ambiguous as to its compliance with Section 409A of the Code, or to the extent any provision in the Agreement must be modified to comply with Section 409A of the Code, such provision shall be read, or shall be modified (with the mutual consent of the parties), as the case may be, in such a manner so that no payment due to Executive shall be subject to an “additional tax” within the meaning of Section 409A(a)(1)(B) of the Code.
 
For purposes of Section 409A of the Code, each payment made under this Agreement shall be treated as a separate payment.  In no event may Executive, directly or indirectly, designate the calendar year of any payment.  All reimbursements provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A of the Code, including, where applicable, the requirement that (i) any reimbursement be for expenses incurred during Executive’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year, (iii) the reimbursement of an eligible expense will be made on or before the last day of the calendar year following the year in which the expense is incurred, and (iv) the right to reimbursement is not subject to liquidation or exchange for another benefit.
 
 
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Notwithstanding anything to the contrary herein, if a payment or benefit under this Agreement is due to a “separation from service” for purposes of the rules under Treas. Reg. § 1.409A-3(i)(2) (payments to specified employees upon a separation from service) and Executive is determined to be a “specified employee” (as determined under Treas. Reg. § 1.409A-1(i)), such payment or benefit shall, to the extent necessary to comply with the requirements of Section 409A of the Code, be made or provided on the later of the date specified by the foregoing provisions of this Agreement or the date that is six months after the date of Executive’s separation from service (or, if earlier, the date of Executive’s death).  Any installment payments that are delayed pursuant to this Section 12 shall be accumulated and paid in a lump sum on the first day of the seventh month following Executive’s separation from service, and the remaining installment payments shall begin on such date in accordance with the schedule provided in this Agreement.
 
13.           Amendments and Waivers.  This Agreement may be amended or modified only by a written instrument signed by the Company and the Executive.  No waiver of this Agreement or any provision hereof shall be binding upon the party against whom enforcement of such waiver is sought unless it is made in writing and signed by or on behalf of such party.  The waiver of a breach of any provision of this Agreement shall not be construed as a waiver or a continuing waiver of the same or any subsequent breach of any provision of this Agreement.  No delay or omission in exercising any right under this Agreement shall operate as a waiver of that or any other right.
 
14.           Binding Effect.  This Agreement shall be binding on and inure to the benefit of the parties hereto and their respective heirs, executors and administrators, successors and permitted assigns, except that the rights and obligations of the Executive hereunder are personal and may not be assigned without the Company’s prior written consent.  Without limiting the generality of the prior sentence, it is understood that the Company’s successors and assigns shall have the right to enforce Sections 5, 6 and 7 of this Agreement.  The Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Company expressly to assume and agree to perform this Agreement to the same extent that the Company would be required to perform it if no succession had taken place.  Failure of the Company to obtain an assumption of this Agreement at or prior to the effectiveness of any succession shall be a material breach of this Agreement.  Any assignment of this Agreement by the Company shall not constitute a termination of the Executive’s employment.  Each affiliated company, subsidiary and parent company of the Company shall be an intended third party beneficiary of Sections 5, 6 and 7 of this Agreement.
 
15.           Entire Agreement.  This Agreement constitutes the final and entire agreement of the parties with respect to the matters covered hereby and replaces and supersedes all other agreements and understandings, including the Prior Agreement, relating hereto and to the Executive’s employment.
 
 
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16.        Counterparts.  This Agreement may be executed in any number of counterparts, including counterpart signature pages or counterpart facsimile signature pages, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
 
17.        No Conflicting Agreements.  The Executive represents and warrants to the Company that the Executive is not a party to or bound by any confidentiality, noncompetition, nonsolicitation, employment, consulting or other agreement or restriction which could conflict with, or be violated by, the performance of the Executive’s duties to the Company or obligations under this Agreement.
 
18.        Review of Agreement.  The Executive acknowledges that the Executive (a) has carefully read and understands all of the provisions of this Agreement and has had the opportunity for this Agreement to be reviewed by counsel, (b) is voluntarily entering into this Agreement and (c) has not relied upon any representation or statement made by the Company (or its affiliates, equity holders, agents, representatives, employees or attorneys) with regard to the subject matter or effect of this Agreement.  The Executive further acknowledges that the provisions in Sections 5, 6 and 7 of this Agreement are reasonable and necessary to protect the goodwill, customer relationships, legitimate business interests and Confidential Information of the Company and its affiliated companies, and the Company would not have entered into this Agreement without the benefit of such provisions.
 
19.        Captions.  The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect the scope or substance of any section of this Agreement.
 
20.        No Strict Construction.  The parties hereto have participated jointly in the negotiation and drafting of this Agreement.  In the event an ambiguity or question of intent or interpretation arises under any provision of this Agreement, this Agreement shall be construed as if drafted jointly by the parties thereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of authoring any of the provisions of this Agreement.
 
[Remainder of Page Intentionally Left Blank.]

 
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This Agreement has been executed and delivered as a sealed instrument as of the date first above written.
 
SANSWIRE CORP.
   
By:
 
 
Name:  Michael Clark
 
Title:  Chairman of the Board of Directors
 
EXECUTIVE
 
 
Glenn D. Estrella

 
 

 
 
EXHIBIT A

 
 

 

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