EQUITY EXCHANGE AGREEMENT by and among CAR CHARGING GROUP, INC., A Nevada Corporation, BEAM ACQUISITION LLC A Nevada Limited Liability Company, BEAM CHARGING, LLC, A New York Limited Liability Company, and THE MEMBERS OF BEAM CHARGING, LLC Dated as of February 26, 2013 EQUITY EXCHANGE AGREEMENT

 

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2.1.1.

Beam is a limited liability company duly organized, validly existing and in good standing under the laws of New York, and has all requisite corporate power and authority to own its properties and assets and governmental licenses, authorizations, consents and approvals to conduct its business as now conducted and is duly qualified to do business and is in good standing in each jurisdiction in which the nature of its activities makes such qualification and being in good standing necessary, except where the failure to be so qualified and in good standing will not have a Material Adverse Effect on the activities, business, operations, properties, assets, or condition of Beam.  “Material Adverse Effect” means, when used with respect to Beam, any event, occurrence, fact, condition, change or effect, which, individually or in the aggregate, would reasonably be expected to be materially adverse to the business, operations, properties, assets, or condition (financial or otherwise) of Beam, or materially impair the ability of Beam to perform its obligations under this Agreement, excluding any change, effect or circumstance resulting from (i) the announcement, pendency or consummation of the transactions contemplated by this Agreement, or (ii) changes in the United States securities markets generally.

 

2.1.2.

 

2.2.1.

 

2.2.2.

 

2.2.3.

 

3.6.1.

 

3.6.2.

Other Legends.  The certificates representing such CCGI Shares, and each certificate issued in transfer thereof, will also bear any other legend required under any applicable law, including, without limitation, any U.S. state corporate and state securities law, or contract.

 

3.6.3.

Opinion. Such Beam Member understands that the CCGI Stock may not be sold, transferred, or otherwise disposed of without registration of any or all of the CCGI Shares under the Securities Act, Regulation S or an exemption therefrom, and that in the absence of an effective registration statement covering the CCGI Stock or any available exemption from registration under the Securities Act and applicable state securities law covering the disposition of the CCGI Shares, CCGI Stock may have to be held indefinitely.  Such Beam Member further acknowledges that the CCGI Stock may not be sold pursuant to Rule 144 promulgated under the Securities Act without an opinion of counsel (which opinion is reasonably satisfactory to CCGI) to the effect that such transfer will be made in compliance with Rule 144, under the Securities Act unless all of the conditions of Rule 144 are satisfied.

4.1.1

Beam Acquisition is a company duly incorporated, validly existing, and in good standing under the laws of the State of Nevada and has the corporate power and is duly authorized under all applicable laws, regulations, ordinances, and orders of public authorities to carry on its business in all material respects as it is now being conducted.  The execution and delivery of this Agreement does not, and the consummation of the transactions contemplated hereby will not, violate any provision of Beam Acquisition’s Articles of Organization or Operating Agreement. Beam Acquisition has taken all actions required by law, its Articles of Organization or Operating Agreement, or otherwise to authorize the execution and delivery of this Agreement.  Beam Acquisition has full power, authority, and legal capacity and has taken all action required by law, its Articles of Organization or Operating Agreement, and otherwise to consummate the transactions herein contemplated.

4.2.1

4.2.2

Except as set forth in CCGI’s periodic reports filed with the SEC pursuant to the Exchange Act (the “CCGI Filings”) or on Schedule 4.2, there are no outstanding or authorized options, warrants, agreements, commitments, conversion rights, preemptive rights or other rights to subscribe for, purchase or otherwise acquire or receive any securities of CCGI, nor are there any outstanding or authorized stock appreciation, phantom stock, profit participation or similar rights, pre-emptive rights or rights of first refusal with respect to CCGI or any of its securities, or any voting trusts, proxies or other agreements, understandings or restrictions with respect to the voting of CCGI’s securities. Except as set forth in the CCGI filings, there is no voting trust, proxy, rights plan, anti-takeover plan or other agreement or understanding to which CCGI is a party or by which it is bound with respect to any equity security of any class of CCGI. CCGI is not a party to, and it has no knowledge of, any agreement restricting the transfer of any security of Beam except as is disclosed in the CCGI Filings.  The transactions contemplated hereby will not trigger any exercise of, or make effective, any conversion rights, preemptive rights or other rights to subscribe for, purchase or otherwise acquire or receive any securities of CCGI, nor will the transactions contemplated hereby trigger any rights with respect to any authorized stock appreciation, phantom stock, profit participation or similar rights, anti-dilution or similar protection, pre-emptive rights or rights of first refusal with respect to CCGI or any of its securities.

4.2.3

 

4.3.1

CCGI’s financial statements (the “CCGI Financial Statements”) contained in its periodic reports filed with the SEC have been prepared in accordance with U.S. GAAP applied on a consistent basis throughout the periods indicated, except that those CCGI Financial Statements that are not audited do not contain all footnotes required by U.S. GAAP. The CCGI Financial Statements fairly present the financial condition and operating results of CCGI as of the dates, and for the periods, indicated therein, subject to normal year-end audit adjustments. CCGI has no material liabilities (contingent or otherwise). CCGI is not a guarantor or indemnitor of any indebtedness of any other Person, entity or organization. CCGI maintains a standard system of accounting established and administered in accordance with U.S. GAAP.

 

4.3.2

 

5.6.1.

Assignment of the Beam Interests duly executed by each Beam Member (attached hereto as Exhibit G);

 

5.6.2.

Resolutions of the Beam Members approving this Agreement and the transactions contemplated hereby and thereby;

 

5.6.3.

a Certificate of Good Standing of Beam, dated as of a recent date prior to the Closing Date from each jurisdiction in which it is registered to conduct business;

 

5.6.4.

this Agreement duly executed;

 

5.6.5.

the resignations of each officer and manager of Beam as of the Closing Date;

 

5.6.6.

a copy of the Assignment of Note, duly executed by the lender holding the Secured Notes;

 

5.6.7.

a Release of Claim executed by Ardour Capital Investments LLC (attached hereto as Exhibit H);

 

5.6.8.

a copy of the employment agreement entered into by and between Car Charging, Inc. and Joseph Turquie (the “Employment Agreement”) attached hereto as Exhibit I, and duly executed by Joseph Turquie;

 

5.6.9.

a copy of the Bleed-Out Agreement, attached hereto as Exhibit J, duly executed by each of the Share Recipients;

 

5.6.10.

 

5.6.11.

a copy of the Security Agreement, duly executed by the secured parties listed therein;

 

5.6.12.

a copy of the Pledge Agreement, duly executed by the secured parties listed therein; and

 

5.6.13.

a copy of the Side Letter from Brian Valenza (attached hereto as Exhibit L).

 

6.6.1.

Copies of the stock certificates issued by CCGI’s transfer agent for the CCGI Shares as well as parcel tracking numbers from a reputable overnight courier evidencing the shipment of such stock certificates to the Share Recipients;

 

6.6.2.

this Agreement duly executed;

 

6.6.3.

a copy of the Employment Agreement, duly executed by Car Charging Inc.;

 

6.6.4.

a copy of the Assignment of Note, duly executed by CCGI;

 

6.6.5.

a copy of the Secured Note Amendment, duly executed by CCGI and Beam (as of the Closing);

 

6.6.6.

originally executed copies of the Promissory Notes;

 

6.6.7.

a copy of the Security Agreement, duly executed by Beam;

 

6.6.8.

a copy of the Pledge Agreement, duly executed by Beam Acquisition; and

 

6.6.9.

each of the liabilities of Beam listed on Schedule 1.5 hereto shall be fully and indefeasibly paid in full by CCGI.

 

7.2.1

Indemnification Obligations in favor of Beam Members. From and after the Closing Date until the expiration of the Survival Period (except with respect to clauses (iv),(v) and (vi) of this paragraph which shall not be so limited to the Survival Period), CCGI shall indemnify, reimburse and hold harmless each of the Beam Members and their respective officers, directors, agents, attorneys and employees, and each Person, if any, who controls or may “control” (within the meaning of the Securities Act) any of the forgoing Persons or entities (each such Person and his heirs, executors, administrators, agents, successors and assigns is referred to herein as a “Beam Indemnified Party“) from and against any and all losses, costs, damages, liabilities and expenses arising from claims, demands, actions, causes of action, including, without limitation, legal fees (collectively, “Damages”) arising out of (i) any breach of representation or warranty made by CCGI in this Agreement, and in any certificate delivered by CCGI pursuant to this Agreement; (ii) any breach by CCGI or Beam Acquisition of any covenant, obligation or other agreement made by CCGI or Beam Acquisition in this Agreement, the Cancellation Documents and any documents or instruments referred to herein or therein; (iii) a third-party claim based on any acts or omissions by CCGI, Beam Acquisition or Beam (with respect to Beam, only so long as it arising after the Closing); (iv) the failure of CCGI, Beam Acquisition or Beam to pay when due each and every liability of Beam listed in Schedule 7.2.1 hereto;(v) any action or attempt by any CCGI Indemnified Party (as defined below) to prevent, impede, set off or restrict any right of or remedy available to the Beam Members or the Share Recipients under the Loan Documents or the Cancellation Documents;(vi) the failure of CCGI or any of its employees, agents or representatives to reasonably cooperate with the Share Recipients to facilitate and allow the Share Recipients to trade, sell or transfer their CCGI Shares, so long as such proposed trades, sales or transfers are in accordance with this Agreement and the applicable Bleed-out Agreement and are not prohibited by applicable law or regulation; and (vii) in the event that the Cancellation Documents are released from escrow and become effective, any and all liabilities of Beam (including, without limitation, third-party claims based on any acts or omissions by Beam but excluding any claims based on liabilities arising in the ordinary course of business) arising after the Closing Date until the time that the Beam Members resume full control and management of Beam; provided, however, that in each case, a court having jurisdiction thereof, has issued a final judicial determination with respect to CCGI’s liability to such damages, provided, further, that such limitation shall not apply to item (iv) of this sentence. No claim for indemnification may be brought under Section 7.2.1 unless all claims for indemnification, in the aggregate, total more than $10,000 (in which case, such claim for indemnification shall not be reduced by such $10,000 but rather shall include such $10,000), provided, however, that such limitation shall not apply to item (iv) of the immediately preceding sentence.

 

7.2.2

Indemnification in favor of CCGI. From and after the Closing Date until the expiration of the Survival Period, each Beam Members shall, severally and not jointly, indemnify and hold harmless CCGI, Beam, Beam Acquisition and their respective officers, directors, agents, attorneys and employees, and each Person, if any, who controls or may “control” (within the meaning of the Securities Act) any of the forgoing Persons or entities (hereinafter referred to individually as a “CCGI Indemnified Person”) from and against any and all Damages arising out of any: (i) any breach of representation or warranty made by Beam or such Beam Member in this Agreement, and in any certificate delivered by Beam or such Beam Member pursuant to this Agreement; (ii) any breach by Beam or such Beam Member of any covenant, obligation or other agreement made by Beam or such Beam Member in this Agreement (so long as relating to Beam prior to Closing);and (iii)  any and all liabilities paid by CCGI, Beam Acquisition or Beam as a result of any action taken by Beam or such Beam Member prior to Closing that, in the aggregate, exceed $715,000, provided, however, that in each case, a court having jurisdiction thereof, has issued a final judicial determination with respect to a CCGI Indemnified Person’s liability to such Damages.  Notwithstanding any right to indemnification or any other right of any CCGI Indemnified Person under this Agreement, in no event shall any CCGI Indemnified Party have any right of set off, or attempt to set off, any claim that any such CCGI Indemnified Party may have against any amounts owed under the Promissory Notes, nor shall any CCGI Indemnified Party take any action to prevent, impede, set off or restrict any right of or remedy available to the Beam Members or the Share Recipients under the Loan Documents or the Cancellation Documents. No claim for indemnification may be brought under Section 7.2.2 unless all claims for indemnification, in the aggregate, total more than $10,000 (in which case, such claim for indemnification shall not be reduced by such $10,000 but rather shall include such $10,000).IN NO EVENT SHALL THE LIABILITY OF EACH BEAM MEMBER FROM ALL DAMAGES, ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY EXCEED AN AGGREGATE OF THE AMOUNTS ACTUALLY RECEIVED BY SUCH BEAM MEMBER FROM CCGI TOWARD THE PAYMENT OF THE PROMISSORY NOTE ISSUED TO SUCH BEAM MEMBER PLUS THE PROCEEDS OF THE SALE OR LIQUIDATION OF THECCGI SHARES RECEIVED BY SUCH BEAM MEMBER HEREUNDER.

Name

Percentage of Beam Interests to be Received in the Event of Default