Exhibit
10.2


 


EXCHANGE
AND ASSIGNMENT AGREEMENT


 


THIS
EXCHANGE AND ASSIGNMENT AGREEMENT (the “Agreement”) is made as of June 23, 2020 (the “Effective Date”),
by and between Surge Holdings, Inc., a Nevada corporation (the “Company”), AltCorp Trading LLC (“AltCorp”),
Glen Eagles Acquisition LP (the “Investor”) and consented and agreed to by the parent company of AltCorp, GBT
Technologies, Inc. (“GBT”). In addition to the terms defined elsewhere in this Agreement, certain terms used
herein have the meanings set forth in Section 6 hereof.


 


WHEREAS,
reference is made to a loan made by GBT to the Company as evidenced by that certain Convertible Promissory Note issued by the
Company for the benefit of GBT on September 27, 2019 in the principal amount of $4,000,000 (the “Note”), which
such Note was subsequently assigned to GBT’s subsidiary AltCorp on February 3, 2020; and


 


WHEREAS,
subject to the satisfaction of the conditions set forth herein, the Company, AltCorp, GBT and the Investor desire to exchange
$1,250,000 of principal and any and all interest or other fees and expenses currently due on such principal amount (the “Note
Exchange Balance”) for 2,500,000 shares (the “Shares”) of the Company’s common stock, par value
$0.001 per share (the “Common Stock”) and immediately and irrevocably issue and assign said Shares to the Investor;


 


NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:


 


1.
Exchange; Assignment. The closing will occur on June 23, 2020 (or such later date as the parties hereto may agree in writing)
(the “Closing”) following the satisfaction or waiver of the conditions set forth herein (such date, the “Closing
Date”). On the Closing Date, subject to the terms and conditions of this Agreement, AltCorp and the Company shall exchange
the Note Exchange Balance for the Shares and the Shares shall be hereby immediately and irrevocably assigned and transferred to
the Investor for consideration paid to AltCorp in an amount agreed by AltCorp and the Investor. At the Closing, the following
transactions shall occur (such transactions in this Section 1, the “Exchange”):


 


1.1.
On the Closing Date and concurrently with the Exchange, the remaining $2,750,000 of principal due under the Note and any and all
interest or other fees and expenses currently due on such principal amount (the “Remaining Note Balance”) shall
be immediately and irrevocably exchanged for 5,500,000 shares of Common Stock of the Company to be held in the name of AltCorp.


 


1.2.
Promptly after the Closing Date, but in no event more than two (2) Trading Days (as defined below) after the Closing Date,
the Company shall deliver the Shares to the Investor either in book entry or certificated form, at the option of the
Investor. On the Closing Date, the Investor shall be deemed for all purposes to have become the holder of record of the
Shares, irrespective of the date the Company delivers the Shares to the Investor. Upon receipt of the Shares and the
immediate exchange of the Remaining Note Balance in accordance with Section 1.1, all of the Investor’s rights under the
Note shall be extinguished.


 


1.3.
It shall be a condition to the obligation of the Investor, on the one hand, and the Company, on the other hand, to consummate
the Exchange contemplated hereunder that the other party’s representations and warranties contained herein are true and
correct on the Closing Date with the same effect as though made on such date, unless waived in writing by the party to whom such
representations and warranties are made.


 


2.
Representations and Warranties of the Company. The Company hereby represents and warrants to the Investor that:


 


2.1.
Organization. The Company is a corporation duly organized, validly existing and in good standing under the laws of the
State of Nevada, with the requisite power and authority to own and use its properties and assets and to carry on its business
as currently conducted. The Company is not in violation nor default of any of the provisions of its certificate of incorporation,
bylaws or other organizational or charter documents. The Company is duly qualified to conduct business and is in good standing
as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned
by it makes such qualification necessary, and no claim, action or proceeding of any kind has been instituted in any such jurisdiction
revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification.


 




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2.2.
Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate
the transactions contemplated by this Agreement and to otherwise to carry out its obligations hereunder and thereunder. This Agreement
have been duly and validly authorized, executed and delivered on behalf of the Company and shall constitute the legal, valid and
binding obligations of the Company enforceable against the Company in accordance with their respective terms, except as such enforceability
may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and
other similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies. The
execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the transactions contemplated
hereby and thereby will not: (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate
of incorporation, bylaws or other organizational or charter documents; (ii) conflict with, or constitute a default (or an event
which with notice or lapse of time or both would become a default) under, result in the creation of any options, contracts, agreements,
liens, security interests, or other encumbrances (“Liens”) upon any of the properties or assets of the Company
or any of its Subsidiaries, or give to others any rights of termination, amendment, acceleration or cancellation of (with or without
notice, lapse of time or both), any agreement, credit facility, debt, indenture or other instrument to which the Company or any
of its Subsidiaries is a party or by which any property or asset of the Company or any of its Subsidiaries is bound or affected;
or (iii) result in a violation of any law, rule, regulation, order, judgment, decree or other restriction of any court or governmental
authority (including federal and state securities or “blue sky” laws) applicable to the Company or any of its Subsidiaries
or by which any property or asset of the Company or any of its Subsidiaries is bound or affected.


 


2.3.
Valid Issuance of the Shares. The Shares when issued and delivered in accordance with the terms of this Agreement, for
the consideration expressed herein, will be duly and validly issued, fully paid and non-assessable.


 


2.4.
SEC Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents
required to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d)
of the Exchange Act, for the two (2) years preceding the date hereof (the foregoing materials, including the exhibits thereto
and documents incorporated by reference therein, being collectively referred to herein as the “SEC Reports”)
on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration
of any such extension. As of their respective dates, the SEC Reports complied in all material respects with the requirements of
the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement
of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading. The financial statements of the Company
included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations
of the SEC with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance
with United States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”),
except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements
may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company
and its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods
then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments.


 


2.5.
No General Solicitation. Neither the Company, nor any of its Affiliates, nor any Person acting on its or their behalf,
has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D under the Securities
Act) in connection with the offer or sale of the Shares.


 




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3.
Representations and Warranties of the Investor, AltCorp and GBT. The Investor, AltCorp and GBT hereby represent, warrant
and covenant that:


 


3.1.
Organization. The Investor, AltCorp and GBT have the requisite corporate power and authority to enter into and to consummate
the transactions contemplated by this Agreement and to otherwise to carry out its obligations hereunder and thereunder.


 


3.2.
Authorization. This Agreement has been duly and validly authorized, executed and delivered on behalf of the Investor, AltCorp
and GBT and shall constitute the legal, valid and binding obligation of the Investor, AltCorp and GBT enforceable against the
Investor, AltCorp and GBT in accordance with its terms, except as such enforceability may be limited by general principles of
equity or to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and other similar laws relating to, or
affecting generally, the enforcement of applicable creditors’ rights and remedies. The execution, delivery and performance
by the Investor, AltCorp and GBT of this Agreement and the consummation by the Investor, AltCorp and GBT of the transactions contemplated
hereby and thereby will not: (i) conflict with, or constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement,
indenture or instrument to which the Investor is a party or by which it is bound; or (ii) result in a violation of any law, rule,
regulation, order, judgment or decree (including federal and state securities or “blue sky” laws) applicable to the
Investor.


 


3.3.
Accredited Investor Status; Investment Experience. The Investor is an “accredited investor” as that term is
defined in Rule 501(a) of Regulation D under the Securities Act. The Investor can bear the economic risk of its investment in
the Shares and has such knowledge and experience in financial and business matters that he is capable of evaluating the merits
and risks of an investment in the Shares.


 


3.4.
No Governmental Review. The Investor 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.


 


3.5.
Ownership of the Note. AltCorp owns and holds, beneficially and of record, the entire right, title, and interest in and
to the Note free and clear of all rights and liens (other than pledges or security interests (i) arising by operation of applicable
securities laws and (ii) that AltCorp may have created in favor of a prime broker under and in accordance with its prime brokerage
agreement with such broker). AltCorp has full power and authority to transfer and dispose of the Note to the Company and assign
the Shares to the Investor free and clear of any right or lien. Other than the transactions contemplated by this Agreement, there
is no outstanding, plan, pending proposal, or other right of any person or entity to acquire all or any part of the Note or any
shares of Common Stock issuable upon the exchange or conversion thereof, other than to the Investor.


 


3.6.
No Short Sales or Hedging Transactions. The Investor covenants and agrees that neither he, nor any Affiliate acting on
his behalf or pursuant to any understanding with him will execute any Short Sales of the Common Stock or hedging transaction,
which establishes a net short position with respect to the Common Stock during the period commencing with the execution of this
Agreement and ending upon the sale of the Shares and all True-Up Shares.


 


4.
Additional Covenants.


 


4.1.
Disclosure; Confidentiality. The Company shall, within four (4) Trading Days after the date of this Agreement, file with
the SEC a Current Report on Form 8-K disclosing all material terms of the transactions contemplated hereby and attaching the form
of this Agreement as an exhibit thereto (collectively with all exhibits attached thereto, the “8-K Filing”).


 


4.2.
Fees and Expenses. Except as otherwise set forth herein, each party to this Agreement shall pay 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.


 




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4.3.
Leak-Out. With the exception of the sale of 7,500 of the Shares per Trading Day (which shall be permitted), the Investor
will not offer, sell, contract to sell, hypothecate or otherwise dispose of (or enter into any transaction which is designed to,
or might reasonably be expected to, result in the sale, hypothecation or disposition (whether by actual or effective economic
sale, hypothecation or disposition due to cash settlement or otherwise) by the Investor or any Affiliate of the Investor or any
Person in privity with the Investor or any Affiliate of the Investor), directly or indirectly, including the filing (or participation
in the filing) of a registration statement with the U.S. Securities and Exchange Commission in respect of, or establish or increase
a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, with respect to the Shares. The Company agrees not to allow any transaction to occur that is
inconsistent with this Agreement. On a monthly basis, the Investor shall deliver brokerage statements showing any and all sales
of the Company’s Common Stock to the Company. In the event that the Investor violates the terms and conditions provided
in this Section 4.3, the rights provided by Section 4.4 shall be null and void and of not force and effect.


 


4.4.
True-Up Adjustments. It is the intention of the Company and the Investor that the Shares, including the Shares which have
been sold prior to the Valuation Date (as hereafter defined), shall have an aggregate value which equals $1,250,000 (the “Value
Amount”) on the one (1) year anniversary of the date hereof or if such date is not a Trading Day, the immediately subsequent
Trading Day (the “Valuation Date”). The Investor shall have the right (but not an obligation) to make a one-time
request of additional shares of Common Stock from the Company within five (5) days of the Valuation Date in the event that the
Shares, including the Shares which have been sold prior to the Valuation Date, shall have an aggregate value on the Valuation
Date which is less than the Value Amount. The difference between the Value Amount and aggregate value of the Shares (as calculated
by the Company using the volume weighted average price (“VWAP”) of the Shares over the twenty (20) Trading
Day period immediately prior to the Valuation Date) and the previously sold Shares (at the price received by the Investor therefor,
net of commissions, brokerage fees, costs of clearing the Shares, including legal opinions and related charges, and other related
expenses) shall be referred to herein as the “True-Up Value”. In the event that the aggregate value of the
Shares and the previously sold Shares are valued for less than the Value Amount on the Valuation Date, the Company shall thereafter
issue additional shares of Common Stock to the Investor in the amount of the True-Up Value (such shares, the “True-Up
Shares”). In the event that the Investor disagrees with the Company’s calculations of the True-Up Value or the
amount of shares of Common Stock to be issued in connection with this section, the Investor shall have two (2) Trading Days to
contest the calculation of the Company upon delivery of written notice to the Company, which such written notice shall include
the Investor’s proposed calculation of the amount of the True-Up Shares. If the Parties cannot thereafter agree upon the
amount of True-Up Shares to issue to the Investor, the Investor and the Company shall each agree upon a neutral third-party whom
shall determine the number of True-Up Shares to be issued, which such determination shall be binding upon the Company and the
Investor absent manifest error.


 


5.
Miscellaneous.


 


5.1.
Successors and Assigns. Except as otherwise provided herein, the terms and conditions of this Agreement shall inure to
the benefit of and be binding upon the parties hereto and the respective successors and permitted assigns of the parties. Nothing
in this Agreement, express or implied, is intended to confer upon any party, other than the parties hereto or their respective
successors and permitted assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement, except
as expressly provided in this Agreement. The Investor may assign some or all of his rights hereunder without the consent of the
Company provided that any such assignee shall sign a counterpart to this Agreement and be an “accredited investor”
as that term is defined in Rule 501(a) of Regulation D under the Securities Act, in which event such assignee shall be deemed
to be the Investor with respect to such assigned rights and have made the representations to the Company made in Article III hereof.


 


5.2.
Governing Law; Exclusive Jurisdiction; Waiver of Jury Trial. All questions concerning the construction, validity, enforcement
and interpretation of this Agreement shall be governed by the internal laws of the State of New York, without giving effect to
any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdictions) that would
cause the application of the laws of any jurisdictions other than the State of New York. Each party hereby irrevocably submits
to the exclusive jurisdiction of the state or federal courts sitting in the City of New York, Borough of Manhattan, for the adjudication
of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, 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 brought in an inconvenient forum or that the venue
of such suit, action or proceeding is improper. Each of the parties hereby waives any objection to such exclusive jurisdiction
and that such courts represent an inconvenient forum. Each party hereby irrevocably waives personal service of process and consents
to process being served in any such suit, action or proceeding by mailing a copy thereof to such party at the address for such
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 HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF
ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.


 




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5.3.
Notices. All notices, consents or other communications required or permitted under this Agreement shall be in writing and
shall be deemed to have been delivered: (i) upon receipt when delivered personally; (ii) upon receipt when sent by email (provided
confirmation of transmission is mechanically or electronically generated and kept on file by the sending party); or (iii) one
(1) business day after deposit with a nationally recognized overnight delivery service, in each case properly addressed to the
party to receive the same at the address as provided for on the signature page to this Agreement.


 


5.4.
Amendments and Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may
be waived (either generally or in a particular instance and either retroactively or prospectively) only with the written consent
of the Company and the Investor.


 


5.5.
Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, such provision
shall be excluded from this Agreement and the balance of the Agreement shall be interpreted as if such provision were so excluded
and shall be enforceable in accordance with its terms so long as this Agreement as so modified continues to express, without material
change, the original intentions of the parties as to the subject matter hereof and the prohibited nature, invalidity or unenforceability
of the provision(s) in question does not substantially impair the respective expectations or reciprocal obligations of the parties
or the practical realization of the benefits that would otherwise be conferred upon the parties. The parties will endeavor in
good faith negotiations to replace the prohibited, invalid or unenforceable provision(s) with a valid provision(s), the effect
of which comes as close as possible to that of the prohibited, invalid or unenforceable provision(s).


 


5.6.
Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.


 


5.7.
Survival. The representations, warranties and covenants of the Company and the Investor contained herein shall survive
the Closing.


 


6.
Definitions. For purposes of this Agreement, the following words and terms shall have the following meanings:


 


6.1.
“Affiliate” means, with respect to any Person, any other Person that directly or indirectly controls, is controlled
by, or is under common control with, such Person, it being understood for purposes of this definition that “control”
of a Person means the power directly or indirectly either to vote 10% or more of the stock having ordinary voting power for the
election of directors of such Person or direct or cause the direction of the management and policies of such Person whether by
contract or otherwise.


 


6.2.
“Current Subsidiary” means any Person in which the Company on the Effective Date, directly or indirectly, (i)
owns any of the outstanding capital stock or holds any equity or similar interest of such Person or (ii) controls or operates
all or any part of the business, operations or administration of such Person, and all of the foregoing, collectively, “Current
Subsidiaries.”


 


6.3.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.


 


6.4.
“New Subsidiary” means, as of any date of determination, any Person in which the Company after the Effective
Date, directly or indirectly, (i) owns or acquires any of the outstanding capital stock or holds any equity or similar interest
of such Person or (ii) controls or operates all or any part of the business, operations or administration of such Person, and
all of the foregoing, collectively, “New Subsidiaries.”


 




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6.5.
“Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a
trust, an unincorporated organization, any other entity or a government or any department or agency thereof.


 


6.6.
“Principal Market” means the NYSE American (or any nationally recognized successor thereto); provided, however,
that in the event the Common Stock is ever listed or traded on the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq
Global Select Market, the New York Stock Exchange, the OTC Bulletin Board, the OTCQX, OTCQB, OTC Pink or any other market operated
by the OTC Markets Group, Inc. (or any nationally recognized successor to any of the foregoing), then the “Principal Market”
shall mean such other market or exchange on which the Common Stock is then listed or traded.


 


6.7.
“SEC” means the U.S. Securities and Exchange Commission.


 


6.8.
“Securities Act” means the Securities Act of 1933, as amended.


 


6.9.
“Short Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange
Act.


 


6.10.
“Subsidiaries” means, as of any date of determination, collectively, all Current Subsidiaries and all New Subsidiaries,
and each of the foregoing, individually, a “Subsidiary.”


 


6.11.
“Trading Day” means, as applicable, (x) with respect to all price or trading volume determinations relating
to the Common Stock, any day on which the Common Stock is traded on the Principal Market, or, if the Principal Market is not the
principal trading market for the Common Stock, then on the principal securities exchange or securities market on which the Common
Stock is then traded, provided that “Trading Day” shall not include any day on which the Common Stock is scheduled
to trade on such exchange or market for less than 4.5 hours or any day that the Common Stock is suspended from trading during
the final hour of trading on such exchange or market (or if such exchange or market does not designate in advance the closing
time of trading on such exchange or market, then during the hour ending at 4:00 p.m., New York time) unless such day is otherwise
designated as a Trading Day in writing by the Investor or (y) with respect to all determinations other than price determinations
relating to the Common Stock, any day on which The New York Stock Exchange (or any successor thereto) is open for trading of securities.


 


6.12.
“Transfer Agent” means Vstock Transfer, LLC, and any successor transfer agent of the Company.


 


[SIGNATURES
ON THE FOLLOWING PAGE]


 




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IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered as of the date provided above.


 


	 	COMPANY: 
	 	 
	 	SURGE HOLDINGS, INC. 
	 	 
	 	By: 	 
	 	Name:	Brian Cox 
	 	Title:	Chief Executive Officer 
	 	 
	 	Address for Notices: 
	 	 
	 	3124 Brother Blvd.
	 	Suite 104 
	 	Bartlett, TN 38133 
	 	Tel: (901) 302-9587
	 	Email: 
	 	 
	 	INVESTOR:
	 	 
	 	GLEN EAGLES ACQUISITION LP
	 	 
	 	By: 	 
	 	Name:	 
	 	Title:	 
	 	 
	 	Address
    for Notices:
	 	 


 


[signature
page follows]


 




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THE
UNDERSIGNED ASSIGNOR HEREBY AGREES TO THE TERMS AND CONDITIONS PROVIDED IN THE EXCHANGE AGREEMENT AND HEREBY IRREVOCABLY IMMEDIATELY
TRANSFERS AND ASSIGNS 2,500,000 SHARES OF COMMON STOCK OF SURGE HOLDINGS, INC. TO GLEN EAGLES ACQUISITION LP.


 





	 	ASSIGNOR:
	 	 
	 	ALTCORP
    TRADING LLC
	 	 
	 	By:	 
	 	Name:	 
	 	Title:	 
	 	 
	 	CONSENTED
    AND AGREED:
	 	 
	 	GBT TECHNOLOGIES, INC. 
	 	 	                         
	 	By: 	 
	 	Name:	 
	 	Title:	 


 


	 	Address
    for Notices:
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 


 




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