Exhibit 10.15
PLACEMENT AGREEMENT NO. 2
This Placement Agreement No. 2, dated as of September 30, 2004 (this
"Agreement") by and among Wireless Age Communications, Inc. (the "Company") and
▇▇▇▇▇▇ ▇▇▇ ("Sim"), ▇▇▇▇▇▇▇▇ Sim ("Spouse") and 101016305 Saskatchewan Ltd.
("101016305 Saskatchewan" and collectively with Sim and Spouse, referred to
each, as a "Seller" and collectively, the "Sellers").
WHEREAS, the Company previously entered into a Placement Agreement with the
Sellers, dated as of June 30, 2004 (the "Placement Agreement No. 1");
WHEREAS, the Company and the Sellers desire to amend and restate Placement
Agreement No. 1 and provide for new terms and conditions as well as supplemental
dispositions;
WHEREAS, in connection with this Placement Agreement No. 2, the Company is also
entering into an Amendment No. 2 dated as of even date herewith, in connection
with that certain Note Purchase and Security Agreement dated as of December 31,
2003, as amended (the "Note Agreement") and the Notes issued pursuant thereto,
as amended (the "Notes");
NOW, THEREFORE, For good and valuable consideration, which is deemed adequate
and sufficient in all respects by the parties hereto, the Company and the
Sellers agree as follows:
1. Placements; Closings
1.1 Private Placements and Transactions
(a) The Company undertakes to place 500,000 Sellers' shares of
Company Common Stock, par value $.001 per share (each, a "Share" and
collectively, the "Sellers' Shares") in a private placement to prospective third
party investors, which shall close into the attorney escrow account of Company
counsel (the "escrow agent") on or before the close of business on October 22,
2004 (the "October Placement"). For purposes of clarity, default of the
foregoing shall constitute a triggering event with respect to default of the
Notes.
(b) Sim and ▇▇▇▇▇▇ Sim will each sell 18,750 shares of Wireless Age
Communications, Ltd. (the "Subsidiary") held in respective RSP Accounts for an
aggregate sale price of US $100,000 which shall be paid incrementally by the
Company into the escrow agent's trust account in six monthly installments
pursuant to the terms of a Note in such regard (the "RSP Note"), and upon
completion of such payments, the Subsidiary shares shall be delivered to the
escrow agent against payment to the bank holding the Subsidiary Shares in the
RSP accounts (the "RSP Transaction"). Sim and Spouse shall resign as directors
and officers of the Subsidiary effective upon delivery of the RSP Note.
(c) The Company undertakes to exercise good faith efforts to make a
private placement of up to 1,329,450 of Sellers' Shares at a purchase price of
$.70 per Share, which may close, in one or more tranches, on or before the close
of business on December 31, 2004 (the "Secondary Placements"). Notwithstanding
the foregoing, the Company shall not have any rights of exclusivity with respect
to such Secondary Placements and the Sellers may sell, transfer
Placement Agreement No. 2 September 30, 2004
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or dispose of any and all such shares at any time on any terms or conditions
they deem reasonable at their sole discretion.
(d) The Company shall acquire 30,000 shares of Subsidiary currently
held by Spouse, which shares were previously held by ▇▇▇▇▇▇▇ Capital (the
"▇▇▇▇▇▇▇ Shares"), in exchange for 61,200 restricted shares of the Company's
Common Stock (the "Exchange Shares"), which transaction shall be executed
through the escrow agent. Spouse undertakes to promptly deliver such ▇▇▇▇▇▇▇
Shares to escrow agent promptly after execution of this Agreement but in any
event no later than thirty days after the date hereof and the Exchange Shares
issued in consideration thereof shall be delivered to Spouse no later than ten
business days after tender of the ▇▇▇▇▇▇▇ Shares.
1.2 Option
The Company shall have an option, exercisable at its sole
discretion, to place up to an additional one million shares of Company Common
Stock, par value $.001 per share, owned by 101016305 Saskatchewan Ltd. (each, a
"Saskatchewan Share" and collectively, the "Saskatchewan Shares"), on or after
the completion of the Secondary Placements, at a purchase price of $.65 per
Saskatchewan Share (the "Option"). Notwithstanding the foregoing, the Company
shall not have any rights of exclusivity with respect to the placement of such
Saskatchewan Shares under the Option and 101016305 Saskatchewan Ltd. may sell,
transfer or dispose of any and all such Saskatchewan Shares at any time on any
terms or conditions it deems reasonable at its sole discretion.
1.3 Closings
(a) Each respective Seller shall continue to cause all the stock
certificates representing the Shares to remain in the custody of the escrow
agent (in trust) until December 31, 2004, and shall deliver validly executed
stock powers herewith, provided, however, that such Shares shall be promptly
released to the Sellers by the escrow agent in the event of any breach of this
Agreement or the Note Amendment No. 2. As soon as the Shares and Exchange Shares
first become eligible for resale under Rule 144, the escrow agent shall promptly
deliver such Shares and Exchange Shares as directed by the respective Seller.
The Company shall promptly request its counsel to prepare the any necessary
legal opinion with respect to the transfer of such shares, to the extent legally
permissible under Rule 144. The Company undertakes not to interfere with the
sale of any such shares which are sold or transferred under Rule 144 or any
other sales or transfers of persons, irrespective of whether or not affiliated
or unaffiliated with the Sellers.
(b) At the closing of the October Placement and each closing of the
Secondary Placements and upon exercise of the Option, the respective Sellers
shall sell, assign, transfer and deliver the respective number of Shares as set
forth above to one or more purchasers as directed at the sole discretion of the
Company (each, a "Purchaser" and collectively, the "Purchasers"), and each such
Purchaser shall purchase the Shares from the Sellers, on the terms and subject
to the conditions set forth in this Agreement (each, a "Closing").
(c) The Closing of the sale of the Shares to the Purchasers shall
take place at the offices of Wuersch & ▇▇▇▇▇▇ LLP no later than the close of
business (New York time) on
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Placement Agreement No. 2 September 30, 2004
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respective date specified for such Closing or at such other place or time as the
parties may jointly designate (each, a "Closing Date").
(d) At each Closing, each respective Seller shall deliver to the
Purchaser the stock certificates representing the Shares, duly endorsed (or
accompanied by duly executed stock powers) and with signatures guaranteed by a
commercial bank or other member of the medallion signature guarantee program,
all of which Shares shall be delivered free and clear of any and all
encumbrances. For purposes of this Agreement, "encumbrances" shall mean any
lien, pledge, hypothecation, charge, mortgage, security interest, encumbrance,
equity, trust, equitable interest, claim, preference, right of possession,
lease, tenancy, license, encroachment, covenant, infringement, interference,
order, proxy, option, right of first refusal, preemptive right, community
property interest, legend, defect, impediment, exception, reservation,
limitation, impairment, imperfection of title, condition or restriction of any
nature (including any restriction on the voting of any security, any restriction
on the transfer of any security or other asset, any restriction on the receipt
of any income derived from any asset, any restriction on the use of any asset
and any restriction on the possession, exercise or transfer of any other
attribute of ownership of any asset).
(e) [ Intentionally Omitted ].
(f) At each Closing, each respective Seller shall execute and
deliver to the Purchaser and the Company a certificate (each, a "Closing
Certificate") setting forth the Sellers' representations and warranties made by
respective Sellers in this Agreement was accurate in all respects as of the date
of this Agreement and each condition has been satisfied in all respects;
(g) Purchaser shall be entitled, but shall not be obligated, to
deduct and withhold from any consideration payable or otherwise deliverable to
any Seller pursuant to this Agreement such amounts as Purchaser may be required
to deduct or withhold therefrom under the Internal Revenue Code of 1986, as
amended (the "Code") or under any provision of state, local or foreign tax law.
In the event of any withholding, such funds shall be held in escrow by the
Company's counsel and promptly remitted to the applicable governmental body. To
the extent such amounts are so deducted or withheld, such amounts shall be
treated for all purposes under this Agreement as having been paid to the
respective Seller to whom such amounts would otherwise have been paid.
(h) At the Closing of the October Placement, the Company shall issue
a Note to Sim in respect of shareholder loans made by Sim to the Subsidiary, as
netted out against obligations owing by Sim to or from the Company and/or the
Subsidiary, which Note shall be paid in six monthly increments following the
date of this Agreement (the "Sim Shareholder Note") commencing on November 1,
2004.
2. Representations and Warranties of the Sellers
The Sellers jointly and severally represent and warrant, to and for the
benefit of the Company and the Purchasers, as follows:
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2.1 Due Authority and Binding Agreement
(a) Each Seller has the absolute and unrestricted right, power and
authority to enter into and to perform its obligations under this Agreement
(b) This Agreement constitutes the legal, valid and binding
obligation of each Seller, enforceable against each Seller in accordance with
its terms.
(c) With respect to 101016305 Saskatchewan Ltd. ("Saskatchewan
Corp."):
(i) this Agreement has been duly authorized by all necessary
action on the part of the Saskatchewan Corp. and its stockholders,
board of directors and officers.
(ii) Saskatchewan Corp. is duly organized, validly existing
and in good standing under the laws of the province of Saskatchewan
and has all necessary power and authority: (i) to conduct its
business in the manner in which its business is currently being
conducted and in the manner in which its business is proposed to be
conducted; (ii) to own and use its assets in the manner in which its
assets are currently owned and used and in the manner in which its
assets are proposed to be owned and used; and (iii) to perform its
obligations under all of its contracts.
(iii) Saskatchewan Corp. has never conducted any business
under or otherwise used, for any purpose or in any jurisdiction, any
fictitious name, assumed name, trade name or other name that could
cause an actual or contingent security interest to arise or exist
with respect to the Shares owned by Saskatchewan Corp.
(iv) Saskatchewan Corp. is not, and has never been, required
to be qualified, authorized, registered or licensed to do business
as a foreign corporation in any jurisdiction requiring registration
of the Shares as a security interest.
(v) Saskatchewan Corp. is in good standing as a foreign
corporation in each of the jurisdictions in which it is required to
do so under applicable laws.
(vi) Saskatchewan Corp. is in full compliance with each Legal
Requirement that is applicable to it or to the conduct of its
business or the ownership or use of any of its assets and has at all
times been in full compliance with each legal requirement that is or
was applicable to it or to the conduct of its business or the
ownership or use of any of its assets.
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2.3 No Conflicts
Neither the execution and delivery of this Agreement nor the
consummation or performance of any of the transactions contemplated hereby
(collectively, the "Transactions"), will directly or indirectly (with or without
notice or lapse of time):
(i) contravene, conflict with or result in a violation of (i)
any of the provisions of the Saskatchewan Corp.'s certificate of
incorporation or bylaws, or (ii) any resolution adopted by the
Saskatchewan Corp.'s stockholders, the Saskatchewan Corp.'s board of
directors or any committee of the Saskatchewan Corp.'s board of
directors;
(ii) contravene, conflict with or result in a violation of, or
give any governmental body or other person the right to challenge
any of the Transactions or to exercise any remedy or obtain any
relief under, any legal requirement or any order to which the
Saskatchewan Corp. or any of the Sellers, or any of the assets owned
or used by the Saskatchewan Corp., is subject;
2.4 Brokers.
Neither the Saskatchewan Corp. nor any of the Sellers has agreed or
become obligated to pay, or has taken any action that might result in any person
claiming to be entitled to receive, any brokerage commission, finder's fee or
similar commission or fee in connection with any of the Transactions.
2.5 General Representations
(a) The signatory party to this Agreement has not, at any time: (i)
made a general assignment for the benefit of creditors, (ii) filed, or had filed
against such Seller, any bankruptcy petition or similar filing, (iii) suffered
the attachment or other judicial seizure of all or a substantial portion of such
Seller's assets, or (v) taken or been the subject of any action that may have an
adverse effect on such Seller's ability to comply with or perform any of such
Seller's covenants or obligations under this Agreement.
(b) The signatory party to this Agreement is not subject to any
court or governmental order that may have an adverse effect on such Seller's
ability to comply with or perform any of such Seller's covenants or obligations
hereunder. There is no proceeding pending, and no person has threatened to
commence any proceeding, that may have an adverse effect on the ability of any
Seller to comply with or perform any of such Seller's covenants or obligations
hereunder. No event has occurred, and no claim, dispute or other condition or
circumstance exists, that might directly or indirectly give rise to or serve as
a basis for the commencement of any such proceeding.
(c) None of the representations hereunder contains or will contain
any untrue statement of fact; and none of the representations hereunder omits or
will omit to state any fact necessary to make any of the representations,
warranties or other statements or information contained therein not misleading.
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(d) There is no fact within the knowledge of the Saskatchewan Corp.
or any of the Sellers (other than publicly known facts relating exclusively to
political or economic matters of general applicability that will adversely
affect all comparable entities) that (i) may have an adverse effect on the
Saskatchewan Corp.'s business, condition, assets, liabilities, operations,
financial performance, net income or prospects (or on any aspect or portion
thereof) or on the ability of the Saskatchewan Corp. or any of the Sellers to
comply with or perform any covenant or obligation hereunder, or (ii) may have
the effect of preventing, delaying, making illegal or otherwise interfering with
any of the Transactions.
2.6 Special Representations and Appointment of Attorney-In-Fact
(a) The Sellers hereby irrevocably nominate, constitute and appoint
▇▇▇▇▇▇ ▇▇▇ (the "Agent") as their respective agent and true and lawful
attorney-in-fact of the Sellers, with full power of substitution, to act in the
name, place and stead of the Sellers for purposes of executing any documents and
taking any actions that the Agent may, in his sole discretion, determine to be
necessary, desirable or appropriate in connection with any of the Transactions
contemplated hereunder. Without limiting the foregoing, the Agent may execute
and deliver all such further agreements, amendments, instruments, deeds,
stock-powers, undertakings and/or other documents deemed reasonably necessary,
in his sole opinion, in order to consummate the Transactions contemplated
herein, including, without limitation, at each and every Closing to allocate
among the Sellers the amount and number of Seller's Shares to be delivered to
the Purchasers and proceeds therewith delivered to the Sellers at each
respective Closing, in similar or disparate amounts, which, which power is
coupled with an interest and shall survive the execution and performance of this
Agreement, and the Company, Company's counsel and each of the Purchasers may
definitively rely upon such actions and representations thereof as fully binding
upon the respective Seller for whom Agent purports to be acting.
(b) The Company and the Purchaser and their respective counsel and
agents shall be entitled to deal exclusively with such Agent on all matters
relating to the Shares and the respective Transactions, including, without
limitation, all matters relating to any notice to, or any consent to be given or
action to be taken by, any Seller.
3. Representations and Warranties of the Company
The Company represents and warrants, to and for the benefit of the Sellers , as
follows:
3.1 Due Organization. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada.
3.2 Authorization Binding Nature of Agreement. The execution, delivery and
performance of this Agreement have been duly authorized by all necessary action
on the part of Company and its board of directors. This Agreement will
constitute the legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms.
3.3 Brokers. The Company has not agreed or become obligated to pay, and
has not taken any action that might result in any Person claiming to be entitled
to receive, any brokerage
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commission, finder's fee or similar commission or fee in connection with any of
the Transactions, provided, however, the Company is expressly permitted to do so
in connection with any of the closings so long as any such brokerage is
permissible under applicable law and does not impair the respective sale prices
as set forth in Section 1 of this Agreement to be paid to any of the Sellers.
3.4 Withholding Taxes. Taxes withheld on interest payments made by the
Company to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ in respect of the Notes have been remitted to the
Internal Revenue Service.
4. Post Closing Covenants
4.1 Seller Assurances to Purchasers. Each Seller shall deliver to the
Company and/or the Purchaser such other documents and shall take such actions as
the Company and/or the Purchaser may reasonably and in good faith request for
the purpose of ensuring that the Purchaser is vested with complete beneficial
ownership and control of the Shares and facilitating the consummation or
performance of any of the Transactions.
4.2 Mutual Further Assurances. Each party hereto shall execute and/or
cause to be delivered to each other party hereto such instruments and other
documents, and shall take such other actions, as such other party may reasonably
request (prior to, at or after each Closing) for the purpose of carrying out or
evidencing any of the Transactions.
4.3 Company Undertakings to Seller. If one or more of the following events
occurs (each, a "Triggering Event" and collectively, the "Triggering Events"),
then the Company undertakes to promptly cause the return to the Agent of any and
all certificates representing unsold amounts of the Sellers' Shares and the
Company further undertakes to promptly take, or cause to be taken, any and all
such further actions as are reasonably necessary to permit the Sellers to sell
or otherwise transfer as of such date any and all amounts of Sellers' Shares and
the Exchange Shares as legally permissible under Rule 144 promulgated under the
Securities Act of 1933, as amended. For purposes of this Agreement, all actions
to be taken "promptly" shall require that such action be taken by the Company,
or written instruction given by the Company to the relevant third party
responsible for such action, within one (1) business day of the triggering event
applicable to such action and to diligently follow-up with respect to execution
of such instructions. A Triggering Event shall occur if (a) the Company is
unable to place some or all of the Secondary Placements before December 31, 2004
or Sellers request the return of Shares underlying the Secondary Placements for
purposes of other disposition; or (b) the Company materially breaches or
defaults on one or more of the following: (i) the Note Purchase and Security
Agreement, between the Company and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ("Note Purchaser"), dated
as of December 31, 2003, as amended (the "Note Agreement"); (ii) the Note
obligation to the Note Purchaser in the principal amount of $1,930,000 dated as
of even date therewith (the "First Note"); (iii) a second Note obligation to the
Note Purchaser in the principal amount of $400,000, dated as of January 21, 2004
(the "Second Note" and referred to collectively herein together with the Note
Agreement and the First Note as the "Note Obligations"); (iv) the Amendment of
the Note Obligations dated as of even date herewith; or (v) solely with respect
to the Saskatchewan Shares, expiration of the Option. Without limiting the
foregoing, the Company shall assist the Sellers and cause to be filed with the
U.S. Securities and Exchange
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Commission Forms 3, 4, or 5 and any and all other filings required in connection
with the transactions contemplated herein, as well as any such filings required
in connection with, or subsequent to, the return of the Sellers' Shares and/or
any Saskatchewan Shares pursuant to a Triggering Event or further dispositions
of such Sellers' Shares, the Exchange Shares and/or any Saskatchewan Shares by
the Sellers.
4.4 Ancillary Dispositions. The Company shall permit the sale of shares of
Company Common Stock owned by Sellers as well as non-affiliate adult family
members of Sellers. To the extent required, the Company shall provide reasonable
assistance in such regard, including, without limitation, provision of legal
opinions, if required in such regard, without charge to Sellers or such other
persons, as to which such legal opinions and other instruments shall be
delivered as and when legally permissible, unless and/or until such date as such
opinions are no longer required for such sales.
5. Closing Conditions.
All representations and warranties made by the Company and the Sellers in
this Agreement (considered collectively), and each of said representations and
warranties (considered individually), shall have been accurate in all material
respects as of the date of this Agreement, and shall be accurate in all material
respects as of the Closing Date as if made at the respective Closing Date.
No person shall have made or threatened any claim asserting that such
person, as to any Seller, (a) may be the holder or the beneficial owner of, or
may have the right to acquire or to obtain beneficial ownership of, any capital
stock or other securities of the Company, or (b) may be entitled to all or any
portion of the purchase price.
Neither the consummation nor the performance of any the Transactions will,
directly or indirectly (with or without notice or lapse of time), contravene or
conflict with or result in a violation of, or cause the Purchaser or any person
affiliated with a purchaser to suffer any adverse consequence under, (a) any
applicable legal requirement or order, or (b) any legal requirement or order
that has been proposed by or before any governmental body.
There shall not be in effect any third-party injunction or order of any
governmental regulatory authority that shall have been entered by a court of
competent jurisdiction since the date of this Agreement and that prohibits the
sale of the Shares by the Seller to the Purchaser.
Notwithstanding anything to the contrary herein, the undertakings by the
Company set forth in Section 4.3 above shall under all circumstances pertain and
be fully binding on the Company irrespective of whether or not any Closing is
executed.
6. Miscellaneous
6.1 Fees and Expenses. Each party shall pay all costs and expenses that it
incurs with respect to the negotiation, execution, delivery and performance of
this Agreement and the Transactions.
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6.2 Notices. Any notice or other communication required or permitted to be
delivered to any party under this Agreement shall be in writing and shall be
deemed properly delivered, given and received when delivered (by hand, by
registered mail, by courier or express delivery service or by facsimile) to the
address or facsimile number set forth beneath the name of such party below (or
to such other address or facsimile number as such party shall have specified in
a written notice given to the other parties hereto):
If to the Company:
Wireless Age Communications, Inc.
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇, CEO
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
with a copy to:
Wuersch & ▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
if to the Agent or any of the Sellers
▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
6.3 Headings. The underlined headings contained in this Agreement are for
convenience of reference only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction or
interpretation of this Agreement.
6.4 Waivers and Amendments. Any provision of this Agreement may be
amended, waived or modified upon the written consent of the Company and the
Sellers, as to which the Agent may bind all Sellers..
6.4 Governing Law. This Agreement and all actions arising out of or in
connection with this Agreement shall be governed by and construed in accordance
with the laws of the State of Nevada, without regard to the conflicts of law
provisions of the State of Nevada or of any other state.
6.5 Entire Agreement; Time of the Essence. This Agreement constitutes the
full and entire understanding and agreement between the parties with regard to
the subjects hereof and restates and amends the Placement Agreement No. 1 among
the parties. This Agreement may be incorporated by reference into the Notes
obligations referenced herein and into third party agreements. Time is of the
essence with respect to all matters set forth in this Agreement.
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6.6 Validity. If any provision of this Agreement or the Note shall be
judicially determined to be invalid, unlawful or unenforceable, the validity,
lawfulness and enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
6.7 Third Party Beneficiaries. This Agreement expressly contemplates that
it may be relied upon by the Purchasers but no other third party beneficiaries.
6.8 Disclosure. The Company may issue any and all press releases and/or
make any and all other announcements or filings with such persons and
authorities regarding this Agreement and/or any of the terms hereof, or any
amendment hereto, as may be required to satisfy the disclosure obligations of
the Company, which determinations shall be made at the sole and reasonable
discretion of the Company.
6.9 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall be deemed to constitute one instrument.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
date and year first written above.
WIRELESS AGE COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman and CEO
SELLERS:
/s/ ▇▇▇▇▇▇ ▇▇▇
--------------------------
▇▇▇▇▇▇ ▇▇▇:
/s/ ▇▇▇▇▇▇▇▇ Sim
--------------------------
▇▇▇▇▇▇▇▇ Sim
101016305 Saskatchewan Ltd.
By: /s/ ▇▇▇▇▇▇ ▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇▇▇
Title: President
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