Exhibit 10.1 Acquisition Agreement
ACQUISITION AGREEMENT
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Acquisition Agreement, made this 11th day of January, 2002 among:
INTERNATIONAL WIRELESS, INC.
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▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
a Maryland corporation
("Buyer")
and
MITIGO INC.
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▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
a Delaware corporation
(the "Company")
and
▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇, and
▇▇▇▇▇ ▇▇▇▇
(the "Sellers")
WHEREAS;
A. Buyer, directly and through one or more subsidiaries, intends to engage
in the development of Internet-enabled phones and PDAs, m-commerce as a commerce
platform, and the development of higher speed advanced generation cellular
network and the "Smart Phone" technology.
B. Company, is engaged in the development of software for
Internet-enabled phones and PDAs, to enable m-commerce.
C. The parties hereto deem it to be in the best interest of each of them
that Buyer purchase 100 percent of the issued and outstanding capital stock of
the Company, and generally succeed to the business of the Company, all pursuant
to such terms, provisions and conditions as the parties hereto shall agree.
NOW, THEREFORE, WITNESSETH, that for and in consideration of the premises
and of the mutual promises and covenants hereinafter set forth, the parties
hereto agree as follows:
A. PURCHASE AND PAYMENT
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1. Purchase and Sale of Stock.
1.1 Buyer agrees to purchase from Sellers and Sellers agree to
sell, assign, transfer and deliver to Buyer 100 percent of the issued and
outstanding stock of the Company owned by Sellers as described in Schedule A
annexed hereto and made a part hereof (collectively, the "Stock").
1.2 The purchase and payment for the Stock by Buyer shall take
place at the time and in the manner hereinafter provided, and the sale,
assignment, transfer and delivery of the Stock by Sellers, shall take place on
the Closing Date at the Closing as those terms are hereinafter defined, subject
to the fulfillment of the conditions hereinafter provided.
2. Purchase Price.
2.1 The aggregate purchase price of the Stock (the "Purchase
Price"), shall be four million three hundred ninety eight thousand (4,398,000)
shares of the common stock of the Buyer (the "Purchase Shares").
2.2 An aggregate of two million nine hundred ninety-eight thousand
six (2,998,006) of the Purchase Shares (the "Closing Shares"), will be issued
and delivered to the Sellers at the Closing as described in Schedule A.
2.3 The remaining one million three hundred ninety-nine thousand
nine hundred ninety-four (1,399,994) shares (the "Escrow Shares") will be
separately issued to the Sellers in the amounts set forth in Schedule A at the
Closing and immediately delivered to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, as escrow agent, pursuant
to, and subject to the terms of, the Escrow Agreement to be executed and
delivered by the parties at the Closing, which Escrow Agreement will be in the
form attached as Schedule B. The Escrow Shares shall be released to the Sellers
as follows:
(1) Upon the determination of the Company's net income for 2002,
if the Company's net income for 2002 exceeds $419,399, each Seller shall be
immediately entitled to the release from escrow of such number of Escrow Shares
registered in the Seller's name, rounded up to the nearest whole share, as shall
be determined by (i) dividing the Company's 2002 net income by 3,275,000, and
then (ii) multiplying the resulting quotient by the total number of Escrow
Shares held in Seller's name. If the Company's net income for 2002 is at or
below $419,399, the Escrow Shares that would otherwise have been released from
escrow as determined by the formula above but for the fact that the Company's
2002 net income fell below $419,400 shall be referred to as the "Holdover
Shares".
(2) Upon the determination of the net income for 2003, if the sum
of the Net Income for 2003 and Net Income for 2002 exceeds $419,400, each Seller
shall immediately be entitled to the release from escrow of (i) the Holdover
Shares and (ii) such number of remaining Escrow Shares registered in the
Seller's name, rounded up to the nearest whole share, as shall be determined by
(a) dividing the Company's 2003 net income by the amount determined by
subtracting the Company's 2002 net income from 3,275,000, (b) then multiplying
the resulting quotient by the total number of remaining Escrow Shares registered
in Seller's name and still held in escrow, other than the Holdover Shares.
2.4 The term net income as used in Paragraph 2.3 above and
Paragraph 2.5 below shall mean the gross revenues of the Company for the
applicable calendar year less all expenses of the Company for that year
including Buyer's overhead expenses allocated to the Company. Net income shall
not include federal and state income taxes on the net income of the Company.
2.5 The Company will finally determine its net income for the
years 2002 and 2003 within sixty (60) days of the end of each such calendar
year. To the extent that the Sellers are entitled under Section 2.3 to all or a
portion of the Escrow Shares as a result of such net income for 2002 and 2003,
the Buyer shall immediately direct the escrow agent holding the Escrow Shares,
in accordance with the notice provisions of the Escrow Agreement, to deliver to
the Sellers all or such portion of the Escrow Shares to which the Sellers are
then entitled. After the net income for the calendar year 2003 has been finally
determined, and (ii) all Escrow Shares due to be released from escrow and
delivered to Sellers pursuant to Section 2.3 have been so released and
delivered, the Buyer will notify the escrow agent, in accordance with the notice
provisions of the Escrow Agreement, that all Escrow Shares remaining in escrow,
if any, shall be delivered to the Buyer, and any further rights associated with
said remaining shares by the Sellers shall forever terminate.
B. REPRESENTATIONS AND WARRANTIES OF BUYER
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Buyer hereby warrants and represents to Company and Sellers that, as of the date
hereof, the following statements are true and correct:
1. Corporate Existence; Authority.
The Buyer is a corporation duly organized, validly existing and in
good standing under the laws of the State of Maryland, and has full corporate
power and authority to enter into this Agreement and the other agreements
contemplated by this Agreement to which it is a party (collectively with this
Agreement, the "Buyer Agreements") and to perform its obligations hereunder and
thereunder.
2. Corporate Approval; Binding Effect
The Buyer has obtained all necessary authorizations and approvals from
its Board of Directors and stockholders required for the execution and delivery
of the Buyer Agreements, the consummation of the transactions contemplated
hereby and the issuance of the Purchase Shares. The Buyer Agreements have been
duly executed and delivered by the Buyer and each constitutes the legal, valid
and binding obligation of the Buyer, enforceable against the Buyer in accordance
with its terms, except as enforceability thereof may be limited by any
applicable bankruptcy, reorganization, insolvency or other laws affecting
creditors' rights generally or by general principles of equity.
3. Non-Contravention.
The execution and delivery by the Buyer of the Buyer Agreements and
the consummation by the Buyer of the transactions contemplated hereby and
thereby will not (a) violate or conflict with any provisions of the Certificate
of Incorporation (or similar charter document) or By-Laws of the Buyer, each as
amended to date; or (b) constitute a violation of, or be in conflict with,
constitute or create a default under, or result in the creation or imposition of
any lien upon any property of the Buyer pursuant to (i) any agreement or
instrument to which the Buyer is a party or by which the Buyer or any of its
properties is bound or to which the Buyer or any of its properties is subject,
or (ii) any statute, judgment, decree, order, regulation or rule of any court or
governmental authority to which the Buyer is subject.
4. Government Consents.
NO CONSENT, APPROVAL OR AUTHORIZATION OF, OR REGISTRATION,
QUALIFICATION OR FILING WITH, ANY GOVERNMENTAL AGENCY OR AUTHORITY IS REQUIRED
FOR THE EXECUTION AND DELIVERY BY THE BUYER OF THE BUYER AGREEMENTS OR FOR THE
CONSUMMATION BY THE BUYER OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
5. Capital Structure.
The authorized capital of the Buyer consists of (i) fifty million
(50,000,000) shares of common stock , ten million nine hundred thirty six
thousand one hundred thirty eight (10,936,138) shares of which are issued and
outstanding on the date hereof, exclusive of the Purchase Shares and (ii) five
million (5,000,000) shares of preferred stock, none of which are issued and
outstanding on the date hereof. Additionally, on the date hereof, there are (i)
outstanding stock purchase warrants to purchase one million six hundred
sixty-four thousand four hundred eighty-two (1,664,482) shares of the Buyer's
common stock and (ii) outstanding stock options to purchase five hundred fifty
thousand (550,000) shares of common stock. Upon consummation of the transactions
contemplated hereby, the Purchase Shares will be issued and outstanding, fully
paid and non-assessable. Except for the Purchase Shares, and the outstanding
shares, options and warrants described above, there are no commitments for the
purchase or sale of, and no options, warrants or other rights to subscribe for
or purchase, any securities of the Buyer.
6. Litigation.
The Buyer is not a party to any pending or to its knowledge threatened
suit, action, proceeding, prosecution or litigation which might materially
adversely affect the financial condition, business, assets, properties,
certificates, rights, authorities, franchises or authorizations of the Buyer, or
materially interfere therewith, nor to the knowledge of the Buyer is there any
threatened or pending governmental investigation involving the Buyer or any of
its operations, including inquiries, citations or complaints by any federal,
state or local administration or agency, which would materially adversely affect
the financial condition, business, assets or properties of the Buyer; and there
are no outstanding, existing or pending judgments, orders, decrees, rulings,
directives, stipulations or other mandates of any court or any public or
quasi-public agency, body or official which have been in any way violated as
they relate to or affect the Buyer or any of the Buyer's properties, businesses,
operations, affairs or activities.
7. Tax Returns.
All returns for federal, state and other governmental income taxes,
surtaxes, excess profits taxes, franchise taxes, sales and use taxes, real and
personal property taxes and any and all other taxes to which the Buyer, or its
assets, operations or income may be subject, due as of the date hereof, have
been duly prepared and filed in good faith and all taxes shown thereon have been
paid or are accrued on the books of the Buyer.
8. Compliance with Law.
To the best of the Buyer's knowledge, the Buyer has complied in all
material respects with and is in compliance in all material respects with all
laws, statutes, governmental regulations and all judicial or administrative
tribunal orders, judgments, writs, injunctions, decrees or similar commands
applicable to the Buyer or any of its properties (including, without limitation,
any labor, occupational health, zoning or other law, regulation or ordinance).
The Buyer has not committed, been charged with, or been under investigation with
respect to, nor does there exist, any violation of any provision of any federal,
state or local law or administrative regulation in respect of the Buyer or any
of its properties.
9. Infringements.
The Buyer has never been charged with infringement or violation of any
adversely held patent, trademark, trade name, or copyright, with claims reading
on operations of the Buyer or on apparatus or methods employed by the Buyer in
effecting the same, which would materially adversely affect any operation of the
Buyer, nor is the Buyer using or in any way making use of any confidential
information or trade secrets, of any former employer or any present or past
employee of the Buyer except as a result of the acquisition of the business of
such former employer.
10. Truth of Representation.
No representation by the Buyer made in this Agreement and no statement
made in any certificate or schedule furnished in connection with the transaction
herein contemplated contains or will contain any knowingly untrue statement of a
material fact or knowingly omits or will omit to state any material fact
reasonably necessary to make any such representation or any such statement not
misleading to a prospective purchaser of the Stock.
C. REPRESENTATIONS AND WARRANTIES OF SELLERS AND THE COMPANY
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Sellers and the Company hereby warrant and represent to Buyer that, as of the
date hereof, the following statements are true and correct.
1. Corporate Existence; Authority.
The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, and has full corporate
power and authority to enter into this Agreement and the other agreement
contemplated by this Agreement to which it is a party (collectively with this
Agreement, the "Company Agreements") and to perform its obligations hereunder
and thereunder.
2. Corporate Approval; Binding Effect
The Company has obtained all necessary authorizations and approvals
from its Board of Directors and stockholders required for the execution and
delivery of the Company Agreements to which it is a party and the consummation
of the transactions contemplated hereby. This Company Agreements has been duly
executed and delivered by the Company and each constitutes the legal, valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms, except as enforceability thereof may be limited by any
applicable bankruptcy, reorganization, insolvency or other laws affecting
creditors' rights generally or by general principles of equity.
3. Non-Contravention
The execution and delivery by the Company of the Company Agreements
and the consummation by the Company of the transactions contemplated hereby and
thereby will not (a) violate or conflict with any provisions of the Certificate
of Incorporation or By-Laws of the Company, each as amended to date; or (b)
constitute a violation of, or be in conflict with, constitute or create a
default under, or result in the creation or imposition of any lien upon any
property of the Company pursuant to (i) any agreement or instrument to which the
Company is a party or by which the Company or any of its properties is bound or
to which the Company or any of its properties is subject, or (ii) any statute,
judgment, decree, order, regulation or rule of any court or governmental
authority to which the Company is subject.
4. Government Consents
NO CONSENT, APPROVAL OR AUTHORIZATION OF, OR REGISTRATION,
QUALIFICATION OR FILING WITH, ANY GOVERNMENTAL AGENCY OR AUTHORITY IS REQUIRED
FOR THE EXECUTION AND DELIVERY BY THE COMPANY OF THIS AGREEMENT AND THE OTHER
ACQUISITION AGREEMENTS TO WHICH IT IS A PARTY OR FOR THE CONSUMMATION BY THE
COMPANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
5. Capital Structure.
The authorized capital of the Company consists of three thousand
(3,000) shares of common stock, two thousand nine hundred ninety-eight (2,998)
shares of which are issued and outstanding on the date hereof. There are no
commitments for the purchase or sale of, and no options, warrants or other
rights to subscribe for or purchase, any securities of the Company.
6. Litigation.
The Company is not a party to any pending or to its knowledge
threatened suit, action, proceeding, prosecution or litigation which might
materially adversely affect the financial condition, business, assets,
properties, certificates, rights, authorities, franchises or authorizations of
the Company, or materially interfere therewith, nor to the knowledge of the
Company is there any threatened or pending governmental investigation involving
the Company or any of its operations, including inquiries, citations or
complaints by any federal, state or local administration or agency, which would
materially adversely affect the financial condition, business, assets or
properties of the Company; and there are no outstanding, existing or pending
judgments, orders, decrees, rulings, directives, stipulations or other mandates
of any court or any public or quasi-public agency, body or official which have
been in any way violated as they relate to or affect the Company or any of the
Company's properties, businesses, operations, affairs or activities.
7. Tax Returns.
All returns for federal, state and other governmental income taxes,
surtaxes, excess profits taxes, franchise taxes, sales and use taxes, real and
personal property taxes and any and all other taxes to which the Company, or its
assets, operations or income may be subject, due as of the date hereof, have
been duly prepared and filed in good faith and all taxes shown thereon have been
paid or are accrued on the books of the Company.
8. Compliance with Law.
To the best of the Company's knowledge, the Company has complied in
all material respects with and is in compliance in all material respects with
all laws, statutes, governmental regulations and all judicial or administrative
tribunal orders, judgments, writs, injunctions, decrees or similar commands
applicable to the Company or any of its properties (including, without
limitation, any labor, occupational health, zoning or other law, regulation or
ordinance). The Company has not committed, been charged with, or been under
investigation with respect to, nor does there exist, any violation of any
provision of any federal, state or local law or administrative regulation in
respect of the Company or any of its properties.
9. Infringements.
The Company has never been charged with infringement or violation of
any adversely held patent, trademark, trade name, or copyright, with claims
reading on operations of the Company or on apparatus or methods employed by the
Company in effecting the same, which would materially adversely affect any
operation of the Company, nor is the Company using or in any way making use of
any confidential information or trade secrets, of any former employer or any
present or past employee of the Company except as a result of the acquisition of
the business of such former employer.
10. Financial Statements.
At or prior to the date of this Agreement, the Company has delivered
to Buyer internal financial statements as of November 30, 2001, and said
internal financial statements, including the related notes and explanatory
notes, present fairly the financial position of the Company at the date thereof
and the results of its operations for the periods therein indicated, in
conformity with generally accepted accounting principals applied on a basis
consistent in each case with that of the preceding year. From the date of the
most recent reviewed internal balance sheet included in the Company's
financials, the Company has:
(i) Not suffered any material adverse change in its financial
condition, assets, liabilities or business;
(ii) Not affirmatively waived, canceled or compromised any of its
rights, debts or claims of substantial value;
(iii) Not made any distribution to its shareholders, as
shareholders, of any assets, by way of dividends, purchase of shares or
otherwise, except as disclosed hereto;
(iv) Not mortgaged, pledged or granted a lien or encumbrance on any
of its properties or assets, except with respect to equipment purchased by the
Company during such period;
(v) Not sold or transferred any of its assets, tangible or
intangible, except motor vehicles and except inventory and other assets sold or
disposed of in the ordinary and usual course of business;
(vi) Not incurred any extraordinary losses, within the meaning of
generally accepted accounting principles, and/or incurred or become liable for
any obligations or liabilities except current liabilities, within the meaning of
generally accepted accounting principles, incurred in the ordinary and usual
course of business, or made any extraordinary expenditures, within the meaning
of generally accepted accounting principles, other than for the purchase of
motor vehicles and for additions and betterments to existing plant, equipment
and facilities;
(vii) Not increased the rate of compensation for any of its officers
or directors nor for any executive employees, except as may be in accord with
past practices and in the usual and ordinary course of business of the Company;
(viii) Not experienced any material adverse effect on its business,
properties and assets as the result of any fire, explosion, earthquake, flood,
drought, windstorm, accident, strike, embargo, confiscation of vital equipment,
material or inventory, cancellation of contracts by any domestic or foreign
government, or any agency thereof, or customer whose business with seller
represents 5% or more of sellers gross revenue, riot, activities of armed
forces, or acts of God or the public enemy;
(ix) To the best knowledge of Sellers, has not incurred any
liabilities, contingent or otherwise, except those stated in the balance sheet
of the Company as of November 30, 2001, and current liabilities incurred in the
ordinary and usual course of business since the date of the said balance sheet.
11. Ownership of Stock.
All of the issued and outstanding shares of capital stock of the
Company are owned by the individuals set forth in Schedule A. Sellers own
beneficially and of record the number of shares set forth in Schedule A hereto
opposite Seller's name. Sellers holds such stock free and clear of all liens,
claims, debts, encumbrances and assessments, and any and all restrictions as to
sale, assignment or transferability thereof. Sellers have full right, power and
authority to sell, transfer and deliver all of the shares of Stock owned by said
Seller and the certificates therefor, sold hereunder, to Buyer in accordance
with the terms of this Agreement, and otherwise to consummate and close the
transaction provided for in this Agreement in the manner and upon the terms
herein specified.
12. Title to Technology.
The Company has good and marketable title to all of its assets,
including the rights to the technology as evidenced by a an executed
Intellectual Property Agreement with Cobblestone Software, Inc. dated January
__, 2002 as set forth on Schedule C hereto, which grants to the Company certain
exclusive rights to the technology described in the Intellectual Property
Agreement.
13. Peaceable Possession of Assets.
The ownership and possession of all of the assets of the Company have
been peaceable and undisturbed and the title thereto has never been disputed or
questioned to the knowledge of the Company; nor does the Company know of any
facts by reason of which the possession or title thereof by the Company might be
disturbed or questioned or by reason of which any claim to its assets might
arise or be set up adverse to the Company.
14. Truth of Representation.
No representation by the Company made in this Agreement and no
statement made in any certificate or schedule furnished in connection with the
transaction herein contemplated contains or will contain any knowingly untrue
statement of a material fact or knowingly omits or will omit to state any
material fact reasonably necessary to make any such representation or any such
statement not misleading to a prospective purchaser of the Stock.
D. POST-CLOSING COVENANTS
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Sellers and Buyer hereby covenant as follows:
1. Maintenance of Company Existence
In order to determine the disposition of the Escrow Shares pursuant to
Section 2 of this Agreement, the Buyer covenants that it will maintain the
separate existence of the Company as a subsidiary of the Buyer through the
earlier of (i) the date all Escrow Shares have been released to the Sellers or
(ii) December 31, 2003. In the event that the Company mergers or consolidates
with or into another entity, or in the event that the Buyer sells or directs the
sale of all or substantially all of the stock or assets of the Company at any
time prior to December 31, 2003, the Buyer agrees to direct the escrow agent
holding the Escrow Shares to release all remaining Escrow Shares to the Sellers,
notwithstanding any provision to the contrary in Section 2 of this Agreement.
2. Securities Filings
The Buyer agrees that at the request of any of the Sellers, it will
prepare and file, at the Buyer's expense, any and all federal and state
securities filings required to be filed by any of the Sellers as a result of the
transactions contemplated hereby.
3. Publicity.
All notices to third parties other than Sellers and all other
publicity concerning the transactions contemplated by this Agreement shall be
planned and coordinated by Buyer.
E. CONDITIONS PRECEDENT TO CLOSING
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All obligations of each party under this Agreement and the obligation of each
party to consummate the Closing, are subject to the satisfaction, on or before
closing, of each of the following conditions:
1. Effectiveness of Warranties.
Each and every one of the warranties and representations of the other
parties set forth in this Agreement shall be true at and as of the Closing Date
as though such representations were made at and as of such time.
2. Deliverables
The other parties shall have delivered all of the Seller Deliverables
or Buyer Deliverables, as applicable, described in Section F of this Agreement.
In the event any of the foregoing conditions shall not be fulfilled by
the responsible party at or prior to the Closing, unless caused by any action or
failure to act on the part of the counter party, the counter party shall have
the right to terminate the Agreement by notice thereof in writing to the
responsible party, and the parties hereto shall be restored as far as possible
to status quo, whereupon the parties hereto shall have no further obligations or
liabilities hereunder, one against the other, except for the obligations of the
parties under Section I hereof which shall survive a termination of this
Agreement.
CLOSING
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1. Time and Place.
The closing under this Agreement (the "Closing") and all deliveries
hereunder shall take place at the offices of ▇▇▇▇▇▇, ▇'▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ on January 11, 2002 or such
other date as shall be agreed upon by all the parties ("the Closing Date").
2. Deliverables
(a) At the Closing, Buyer shall deliver to the Sellers and the Company
items (i) through (iv) below and to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, as escrow agent under the
Escrow Agreement, item (v) below (collectively, the "Buyer Deliverables"):
(i) this Acquisition Agreement, duly executed by the Buyer;
(ii) the Escrow Agreement duly executed by the Buyer and ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, as escrow agent;
(iii) the Registration Rights Agreement, in the form attached as
Schedule D (the "Registration Rights Agreement"), duly executed by Buyer;
(iv) the Closing Shares; and
(v) the Escrow Shares.
(b) At the Closing, Sellers and Company shall deliver to Buyer:
(i) this Acquisition Agreement, duly executed by Sellers and
Company;
(ii) the Escrow Agreement, duly executed by the Sellers;
(iii) the Registration Rights Agreement, duly executed by the
Sellers;
(iv) the original stock certificates representing all of the
Stock; and
(v) stock powers, executed by the Sellers, with respect to the
transfer of the Stock to Buyer.
G. INDEMNIFICATION
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1. Sellers and the Company shall indemnify and hold harmless the Buyer from
and against any losses, damages or expenses which may be suffered or incurred by
Buyer arising from or by reason of the inaccuracy of any statement,
representation or warranty of Sellers or the Company made herein or, in any
schedule hereto or certificate delivered in connection herewith, or the failure
of Sellers or the Company to perform any agreement made by them herein. Buyer
shall give Seller prior written notice of any claim, demand, suit or action with
respect to which indemnity may be sought pursuant to this Section. Sellers, in
every such case, shall have the right at his sole expense and cost to
participate in contesting the validity or the amount of any such claim, demand,
suit or action. In the event Buyer suffers loss, damage or expense and is
entitled to indemnification under this Section, the amount of any such loss,
damage or expense shall be assessed against and shall be paid by Sellers subject
to the provisions of this Section G(1). Sellers shall have no liability under
this Section unless a claim for indemnification is made by the Buyer prior to
the Six (6) month anniversary of the Closing. The liability of any single
Seller under this provision shall not exceed the amount determined by
multiplying the fair market value of the Buyer's common stock on the date hereof
by the number of shares of Buyer's common stock delivered to such Seller on the
Closing Date pursuant to Section 2.2 of this Agreement. Notwithstanding
anything herein to the contrary, Sellers shall have no liability under this
Section for any loss, damage, expense or amount suffered or incurred by Buyer or
the Company (a) as a result of any election made by the Buyer or the Company
subsequent to the Closing under Section 338 of the Internal Revenue Code of
1954, as amended, or (b) which is covered by insurance maintained by the Company
on the Closing Date.
2. The Buyer shall indemnify the Company and Sellers and shall hold the
Company and Sellers harmless, on demand, from and against any losses, damages or
expenses which may be suffered or incurred by the Company or Seller arising from
or by reason of the inaccuracy of any statement, representation or warranty of
the Buyer made herein or in any document or instrument delivered by Buyer to
Sellers or the Company in connection with the transactions herein contemplated,
or the failure of Buyer to perform any agreement or covenant made by it herein
or in any document or instrument delivered by Buyer to Sellers or the Company in
connection with the transactions herein contemplated.
H. CONFIDENTIALITY
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All information and documentation provided or to be provided by the Company or
Sellers to Buyer in connection with this Agreement and the transactions
contemplated hereby has been and shall be provided in the strictest confidence.
Pending the Closing, Buyer covenants and agrees not to use any of such
information or documentation in or for the benefit of any business engaged in
directly or indirectly by Buyer and not to furnish or disclose any of such
information or documentation to any person or company. If the transactions
contemplated by this Agreement are not consummated, Buyer covenants and agrees
to return all such information and documentation to the Company and not retain
any copies thereof, and Buyer further covenants and agrees to maintain the
confidentiality of such information and documentation and to neither use any of
it in or for the benefit of any business engaged in directly or indirectly by
the Buyer nor furnish or disclose any of it to any person or company.
I. GENERAL PROVISIONS
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1. Survival of Representations, Warranties and Covenants.
Except as expressly provided herein, the representations, warranties,
covenants, indemnities and other agreements herein contained shall be deemed to
be continuing and shall survive the consummation of the transactions
contemplated by this Agreement.
2. Diligence.
The parties hereto agree that each shall with reasonable diligence
proceed to take all action which may be reasonably required to consummate the
transaction herein contemplated.
3. Waivers.
Each party hereto may:
3.1 Extend the time for performance of any of the obligations of
the other party;
3.2 Waive in writing any inaccuracies in representations and
warranties made to it contained in this Agreement or any schedule hereto or any
certificate or certificates delivered by any of the other parties pursuant to
this Agreement; and
3.3 Waive in writing the failure of performance of any of the
agreements, covenants, obligations or conditions of the other parties herein set
forth, or alternatively terminate this Agreement for such failure.
4. Non-Waiver.
The waiver by any party hereto of any breach, default, inaccuracy or
failure by another party with respect to any provision in this Agreement or any
schedule hereto shall not operate or be construed as a waiver of any other
provision thereof or of any subsequent breach thereof.
5. Further Assurances.
Each party hereto agrees to execute such further documents or
instruments, requested by the other party, as may be reasonably necessary or
desirable to effect the purposes of this Agreement and to carry out its
provisions, at the expense of the party requesting the same.
6. Entire Agreement.
This Agreement constitutes a complete statement of all the
arrangements, understandings and agreements between the parties. There are no
representations, warranties, covenants, conditions or other agreements among the
parties except as herein specifically set forth, and none of the parties hereto
shall rely on any statement by or on behalf of the other parties which is not
contained in this Agreement.
7. Governing Law.
Irrespective of the place of execution or performance of this
Agreement, it shall be governed by and construed in accordance with the laws of
the State of Massachusetts applicable to contracts made and to be performed in
the State of Massachusetts, and cannot be changed, modified, amended or
terminated except in writing, signed by the parties hereto.
8. Benefit and Assignability.
This Agreement shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns, provided, however, that this
Agreement cannot be assigned by any party except by or with the written consent
of the others. Nothing herein expressed or implied is intended or shall be
construed to confer upon or to give any person, firm or corporation other than
the parties hereto and their respective legal representatives, successors and
assigns any rights or benefits under or by reason of this Agreement.
9. Approval of Counsel.
The form of all legal proceedings and of all papers and documents used
or delivered hereunder, shall be subject to the approval of counsels to Buyer
and Sellers.
10. Costs.
The Buyer shall bear its own costs and expenses of the transaction.
The costs and expenses of Sellers in connection with this Agreement and the
transactions contemplated hereby shall be borne and paid by the Sellers.
11. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same Agreement.
12. Notices.
Any notices and other communications under this Agreement shall be in
writing and shall be considered given if delivered personally or mailed by
certified mail to the party, for whom such notice is intended, at the address
indicated at the outset hereof (or at such other address as such party may
specify by notice to the other parties hereto).
13. Headings.
The headings in this Agreement are intended solely for convenience of
reference and shall be given no effect in the construction or interpretation of
this Agreement.
14. Further Action.
Any further action required or permitted to be taken under this
Agreement, including giving notices, executing documents, waiving conditions,
and agreeing to amendments or modifications, may be taken on behalf of a party
by its Board of Directors, its President or any other person designated by its
Board of Directors, and when so taken shall be deemed the action of such party.
[INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have respectively executed this
Agreement the day and year first above written.
BUYER
-----
INTERNATIONAL WIRELESS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇, Chairman
SELLERS
-------
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
▇▇▇ ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
▇▇▇▇ ▇▇▇▇▇▇
By: /s/ ▇▇▇ ▇▇▇▇▇▇
-----------------------------
▇▇▇ ▇▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
▇▇▇▇ ▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇▇▇▇
-----------------------------
▇▇▇▇▇ ▇▇▇▇
THE COMPANY
-----------
MITIGO INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------
▇▇▇▇▇ ▇▇▇▇▇, President
SCHEDULE A
MITIGO OWNERSHIP OF STOCK AND ALLOCATION OF PURCHASE SHARES
Name Mitigo Allocation Buyer's Buyer's Shares
Shares of Purchase Shares to be subject to
Owned Shares received at escrow
closing provisions
-------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇ 1,000 1,466,978 1,000,001 466,977
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 750 1,100,233 750,000 350,233
▇▇▇ ▇▇▇▇▇▇▇▇▇ 500 733,489 500,001 233,488
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 500 733,489 500,001 233,488
▇▇▇▇ ▇▇▇▇▇▇ 2 2,934 2,001 933
▇▇▇ ▇▇▇▇▇▇ 1 1,467 1,001 466
▇▇▇▇ ▇▇▇▇▇▇ 225 330,070 225,000 105,070
▇▇▇▇▇ ▇▇▇▇ 20 29,340 20,001 9,339
----------- ------------ ------------ --------------
- -
Total: 2,998 4,398,000 2,998,006 1,399,994
SCHEDULE B
ESCROW AGREEMENT
ESCROW AGREEMENT, dated as of January 11th, 2002 (the "Escrow Agreement"),
by and among International Wireless, Inc., a Maryland corporation ("IWI"), the
individuals whose signatures appear on the signature page hereof (individually a
"Stockholder" and collectively, the "Stockholders"), ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, in his
capacity as representative of the Stockholders (the "Stockholders'
Representative") and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq., as escrow agent (the "Escrow
Agent"). All capitalized terms used herein without definition shall have the
meaning ascribed to them in the Acquisition Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, IWI, Mitigo, Inc., a Delaware corporation, and the Stockholders
have entered into an Acquisition Agreement (the "Acquisition Agreement"), dated
as of January 11, 2002; and
WHEREAS, this Escrow Agreement is being entered into by the parties
pursuant to the Acquisition Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, IWI, the Stockholders, the Stockholder's Representative and the
Escrow Agent agree as follows:
ARTICLE I. ESCROWED PROPERTY
1.01 Each of the Stockholders agrees to deliver to Escrow Agent
certificates representing the number of outstanding shares of common stock (the
"Common Stock") of IWI set forth next to such stockholder's name on the
signature page hereof (the "Escrow Certificates"). The Escrow Certificates
delivered to the Escrow Agent are hereinafter referred to collectively as the
"Escrowed Property."
1.02 The Escrow Agent agrees to hold or dispose of the Escrowed
Property in accordance with the terms of this Escrow Agreement.
1.03 All dividends and other distributions (whether of cash, securities
or other property) upon or in respect of any of the Escrowed Property and all
property receivable in substitution or exchange therefor shall be included with
and constitute part of the Escrowed Property.
1.04 All shares of Common Stock included in the Escrowed Property shall
be voted in accordance with the instructions of the Stockholders.
ARTICLE II. APPLICATION OF ESCROWED PROPERTY
2.01 The Escrow Agent will hold the Escrowed Property in its possession
under the provisions of this Escrow Agreement until authorized hereunder to
deliver the Escrowed Property or any specified portion thereof as set forth in
Section 2.02 or Section 2.04.
2.02 The Escrow Agent shall distribute the amounts deposited as
Escrowed Property:
(i) promptly upon delivery of and in accordance with a joint written
notice (a "Joint Notice") of IWI and the Stockholders' Representative providing
instructions therein;
(ii) if the Escrow Agent receives a written notice (a "Unilateral
Notice") from IWI or the Stockholders' Representative providing instructions to
release Escrowed Property, the Escrow Agent shall promptly after receipt of such
Unilateral Notice deliver a copy of such Unilateral Notice to the other party.
If during the ten (10) business day period following delivery to the other party
of such copy of the Unilateral Notice, the Escrow Agent has not received from
the other party a written objection to such release, then the Escrow Agent shall
release such Escrowed Property in accordance with the instructions in the
Unilateral Notice to the extent not objected to by the other party. If and to
the extent an objection to such release of Escrowed Property has been received
by the Escrow Agent from the other party within ten (10) business days after
delivery of the Unilateral Notice to such other party, distribution of any of
the disputed Escrowed Property shall be made only in accordance with clause (i)
above or clause (iii) below; or
(iii) promptly upon delivery of and in accordance with written notice
of IWI or the Stockholders' Representative providing instructions therein and
certifying that the dispute with respect to any Escrowed Property has been
determined and resolved by entry of a final non-appealable order, decree or
judgment by a court of competent jurisdiction in the Commonwealth of
Massachusetts (the time for appeal therefrom having expired and no appeal having
been perfected), or consent to entry of any judgment concerning a claim, which
notice shall be accompanied by a copy of any such order, decree or judgment
certified by the clerk of such court.
2.03 In the event that the Escrow Agent has not received notice
pursuant to the provisions of Section 2.02 on or prior to the date that is two
years and six months after the Closing Date (the "Termination Date"), the Escrow
Agent shall distribute the Escrowed Property to the Stockholders.
ARTICLE III. RELATED PROVISIONS
3.01 Upon the release and delivery of any amount of the Escrowed
Property to any party pursuant to this Escrow Agreement, the Escrow Agent shall
also release and deliver to such party any dividends or distributions held as
part of the Escrowed Property that are attributable to such amount of Escrowed
Property being so released and delivered.
3.02 In connection with the delivery of written notices to the Escrow
Agent by IWI, the Stockholders' Representative, or both such parties, each such
written notice shall accurately set forth in each case:
(a) the number of shares of Common Stock that the Escrow Agent is
thereby directed to distribute out of the Escrowed Property;
(b) the party to whom the Escrow Agent is thereby directed to
distribute such amount; and
(c) the date upon which the Escrow Agent is directed to distribute such
amount; and such officer of IWI or the Stockholders' Representative, or both, as
the case may be, shall certify as to the compliance of such notice with the
provisions hereof.
The Escrow Agent may rely fully on the provisions set forth in any such written
notice which on its face complies with the provisions of Article II and this
Section 3.02.
ARTICLE IV. SETTLEMENT OF DISPUTES
4.01 Any dispute which may arise between IWI and the Stockholders'
Representative under this Escrow Agreement with respect to (a) the delivery,
ownership and/or right to possession of the Escrowed Property or any portion
thereof, (b) the facts upon which the Escrow Agent's determinations hereunder
are based, (c) the duties of the Escrow Agent hereunder or (d) any other
questions arising under this Escrow Agreement, shall be settled either by (i) a
joint written notice of IWI and the Stockholders' Representative providing
instructions to the Escrow Agent therein or (ii) by entry of a final order,
decree or judgment by a court of competent jurisdiction in the Commonwealth of
Massachusetts (the time for appeal therefrom having expired and no appeal having
been perfected).
4.02 The Escrow Agent shall be under no duty to institute or defend any
such proceedings and none of the costs and expenses of any such proceeding shall
be borne by the Escrow Agent. In the event the terms of a settlement of a
dispute hereunder increase the duties or liabilities of the Escrow Agent
hereunder and the Escrow Agent has not participated in such settlement so as to
be bound thereby, then such settlement shall be effective as to the Escrow Agent
in respect of such increase in its duties or liabilities only upon the Escrow
Agent's written assent thereto. Prior to the settlement of any disputes as
provided in this Article IV, the Escrow Agent is authorized and directed to
retain in its possession, without liability to anyone, such portion of the
Escrowed Property which is the subject of or involved in the dispute.
ARTICLE V. CONCERNING THE ESCROW AGENT.
5.01 The Escrow Agent shall be entitled to reasonable compensation for
its services hereunder and shall be reimbursed for all reasonable expenses,
disbursements and advances (including reasonable attorneys' fees and expenses)
incurred or made by it in performance of its duties hereunder. Such reasonable
compensation, disbursement, expenses and advances shall be borne by IWI and
shall be paid promptly upon request by the Escrow Agent.
5.02 The Escrow Agent may resign and be discharged from its duties
hereunder at any time by giving notice (a "Resignation Notice") of such
resignation to IWI and Stockholders' Representative specifying a date (not less
than 30 days after the giving of such notice) when such resignation shall take
effect. Promptly after such Resignation Notice, IWI and Stockholders'
Representative shall appoint a mutually agreeable successor Escrow Agent, such
successor Escrow Agent to become Escrow Agent hereunder upon the resignation
date specified in such notice. If IWI and Stockholders' Representative are
unable to agree upon a successor Escrow Agent within 30 days after such notice,
the Escrow Agent shall have the right to petition a court of competent
jurisdiction to appoint a successor, and the Escrow Agent shall continue to
serve until its successor accepts the escrow and receives the Escrowed Property.
5.03 The Escrow Agent undertakes to perform only such duties as are
specifically set forth herein. The Escrow Agent acting or refraining from
acting in good faith shall not be liable for any mistake of fact or error of
judgment by it or for any acts or omissions by it of any kind unless caused by
negligence or willful misconduct, and shall be entitled to rely, and shall be
protected in doing so, upon (a) any written notice, instrument or signature
believed by it to be genuine and to have been signed or presented by the proper
party or parties duly authorized to do so, and (b) the advice of counsel (which
may be of the Escrow Agent's own choosing). The Escrow Agent shall have no
responsibility for the contents of any writing submitted to it hereunder and
shall be entitled in good faith to rely without any liability upon the contents
thereof. The Escrow Agent has no responsibilities under, and shall be deemed to
have no knowledge of, the provisions of the Acquisition Agreement.
5.04 IWI and the Stockholders, jointly and severally, agree to
indemnify the Escrow Agent and hold it harmless against any and all liabilities
incurred by it hereunder as a consequence of such indemnifying party's action,
and IWI and the Stockholders, jointly and severally, further agree to indemnify
the Escrow Agent and hold it harmless against any and all losses, costs, fees
and expenses incurred by the Escrow Agent except, in either case for liabilities
incurred by the Escrow Agent resulting from its own gross negligence or willful
misconduct. The indemnification provided pursuant to this section shall survive
the resignation of the Escrow Agent or the termination of this Escrow Agreement.
5.05 In the event the Escrow Agent becomes involved in any litigation
or dispute by reason hereof, it is hereby authorized to deposit with the clerk
of a court of competent jurisdiction the Escrowed Property held by it pursuant
hereto and, thereupon, shall stand fully relieved and discharged of any further
duties hereunder. Also, in the event the Escrow Agent is threatened with
litigation by reason hereof, it is hereby authorized to interplead all
interested parties in any court of competent jurisdiction and to deposit with
the clerk of such court the Escrowed Property held by it pursuant hereto and,
thereupon, shall stand fully relieved and discharged of any further duties
hereunder.
ARTICLE VI. STOCKHOLDERS' REPRESENTATIVE
6.01 The Stockholders, and each of them, hereby appoint the
Stockholders' Representative as their agent to (i) represent, act for and on
behalf of, and bind each of the Stockholders in the performance of all of their
obligations arising from or relating to this Escrow Agreement, including,
without limitation (a) the execution and delivery of any document, certificate
or agreement required under this Escrow Agreement to be delivered by the
Stockholders; (b) the negotiation and settlement of claims of IWI in respect of
the Escrowed Property and the making of any objection to such claims; and (c)
the representation of the Stockholders at any arbitration or litigation in
respect of the foregoing; (ii) give and receive notices and receive service of
process under or pursuant to this Escrow Agreement; and (iii) to represent, act
for, and bind each of the Stockholders in the performance of all of their
obligations arising from or related to this Escrow Agreement. The Stockholders'
Representative hereby accepts such appointment.
6.02 In the event that the Stockholders' Representative shall resign or
otherwise be unable to fulfill its duties hereunder, a successor Stockholders'
Representative shall be selected by the Stockholders entitled to a majority of
the Escrowed Property as soon as reasonably practicable thereafter. If the
Stockholders desire to remove or replace the Stockholders' Representative for
any reason, any such Stockholders' Representative may be so removed or replaced
by the Stockholders entitled to receive a majority of such Escrowed Property.
Any decision, act, consent or instruction of the Stockholders' Representative
shall constitute a decision of the Stockholders and shall be conclusive and
binding upon the Stockholders, and IWI and the Escrow Agent may rely upon any
such decision, act, consent or instruction of the Stockholders' Representative
as being the decision, act, consent or instruction of the Stockholders.
ARTICLE VII. MISCELLANEOUS
7.01 This Escrow Agreement will be binding upon, inure to the benefit
of, and be enforceable by the respective successors and assigns of the parties
hereto, but neither this Escrow Agreement, nor any of the rights, interest or
obligations hereunder shall be assigned by any of the parties hereto without the
prior written consent of the other parties, except with respect to the Escrow
Agent as provided in Article V hereof.
7.02 This Escrow Agreement contains the entire understanding of the
parties with respect to this subject matter, and may be amended only by a
written instrument duly executed by IWI, the Escrow Agent and the Stockholders'
Representative.
7.03 All notices, consents, requests, instructions, approvals and other
communications provided for herein and all legal process in regard hereto shall
be validly given, made or served, if in writing and delivered personally or sent
by registered or certified mail (return receipt requested), postage prepaid,
recognized national or international overnight delivery service or by facsimile
transmission electronically confirmed:
if to IWI:
International Wireless, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
if to the Stockholders'
Representative, to ▇▇▇▇▇ ▇▇▇▇▇:
Mitigo, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
if to the Escrow Agent:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or, in each case, at such other address as may be specified in writing to the
other parties. Each such notice, demand, request or other communication shall
be deemed given (i) on the date of such delivery by hand or facsimile
transmission electronically confirmed, (ii) on the first business day following
the date of such delivery to an overnight delivery service, or (iii) three
business days following certified mailing.
7.04 This Escrow Agreement shall be governed by, and construed and
enforced in accordance with the laws of the Commonwealth of Massachusetts,
without regard to its conflicts of law rules.
7.05 This Escrow Agreement may be executed simultaneously in
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
7.06 This Escrow Agreement shall remain in full force and effect until
the Escrow Agent shall have delivered all of the Escrowed Property in its
possession in accordance with the terms hereof.
7.07 Article headings contained herein are for reference purposes only
and shall not in any way affect the meaning or interpretation of this Escrow
Agreement.
IN WITNESS WHEREOF, this Escrow Agreement has been duly executed and
delivered by IWI, the Stockholders and the Escrow Agent on the date first above
written.
INTERNATIONAL WIRELESS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: CEO
Number of Shares of STOCKHOLDERS:
Common Stock
Placed in Escrow
466,977 /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------
▇▇▇▇▇ ▇▇▇▇▇
350,233 /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
233,488 /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇
233,488 /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
9,339 /s/ ▇▇▇▇▇ ▇▇▇▇
--------------------------
▇▇▇▇▇ ▇▇▇▇
933 /s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------
▇▇▇▇ ▇▇▇▇▇▇
466 /s/ ▇▇▇ ▇▇▇▇▇▇
--------------------------
▇▇▇ ▇▇▇▇▇▇
105,070 /s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------
▇▇▇▇ ▇▇▇▇▇▇
STOCKHOLDERS' REPRESENTATIVE:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
ESCROW AGENT:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
[ATTACH SCHEDULE C]
SCHEDULE D
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of January 11, 2002, between
International Wireless, Inc., a Delaware corporation (the "Company"), and each
of the stockholders of the Company set forth on Exhibit A hereto (the
"Stockholders").
WHEREAS, this Agreement has been entered into in connection with an
Acquisition Agreement, dated as of January 11, 2002 (the "Acquisition
Agreement"), among the Company, Mitigo, Inc., a Delaware corporation and the
Stockholders.
NOW, THEREFORE, it is agreed as follows:
1. Defined Terms. Each of the following terms shall have the following
meanings (such definitions to be applicable to both the plural and singular of
the terms defined):
(a) Registerable Securities. The term "Registerable Securities" shall
mean the shares of common stock of the Company ("Common Stock") listed on
Exhibit A received by the Stockholders pursuant to the Acquisition Agreement,
and any other securities received in connection with any stock split, stock
dividend, merger, reorganization, recapitalization, reclassification or other
distribution payable or issuable upon such shares of Common Stock. For the
purposes of this Agreement, securities will cease to be Registerable Securities
when (A) a registration statement under the Securities Act of 1933, as amended
(the "Securities Act"), covering such Registerable Securities has been declared
effective by the Securities and Exchange Commission and such registration
statement has been continuously effective for a period of nine (9) months, (B)
such Registerable Securities are distributed to the public pursuant to the
Securities Act or pursuant to an exemption from the registration requirements of
the Securities Act, including, but not limited to, Rules 144 and 145 promulgated
under the Securities Act, or (C) such Registerable Securities have been
otherwise transferred and the Company, in accordance with applicable law and
regulations, has delivered new certificates or other evidences of ownership for
such securities which are not subject to any stop transfer order or other
restriction on transfer.
(b) Rightsholders. The term "Rightsholders" shall include the
Stockholders, all successors and assigns of the Stockholders, and all
transferees of Registerable Securities where such transfer affirmatively
includes the transfer and assignment of the rights and obligations of the
transferor Rightsholder under this Agreement with respect to the transferred
Registerable Securities.
(c) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and subsection, paragraph,
clause, schedule and exhibit references are to this Agreement unless otherwise
specified.
(d) Capitalized terms used herein but not otherwise defined shall have the
meanings given to them in the Acquisition Agreement.
2. Registration Rights.
(i) Right to Piggy-Back Registration. If at any time on or after the
Closing Date the Company proposes to file a registration statement under the
Securities Act with respect to an offering by the Company or any other party of
any class of equity security similar to any Registerable Securities (other than
a registration statement on Form S-4 or S-8 or any successor form or a
registration statement filed solely in connection with an exchange offer, a
business combination transaction or pursuant to any employee benefit plans of
the Company), then the Company, on each such occasion, shall give written notice
(each, a "Company Piggy-Back Notice") of such proposed filing to all of the
Rightsholders owning Registerable Securities at least 20 days before the
anticipated filing date of such registration statement, and such Company
Piggy-Back Notice also shall be required to offer to such Rightsholders the
opportunity to register such aggregate number of Registerable Securities as each
such Rightsholder may request. Each such Rightsholder shall have the right,
exercisable for the 10 days immediately following the giving of the Company
Piggy-Back Notice, to request, by written notice (each, a "Holder Notice") to
the Company, the inclusion of all or any portion of the Registerable Securities
of such Rightsholders in such registration statement. The Company shall use
reasonable efforts to cause the managing underwriter(s) of a proposed
underwritten offering to permit the inclusion of the Registerable Securities
which were the subject of all Holder Notices in such underwritten offering on
the same terms and conditions as any similar securities of the Company included
therein. Notwithstanding anything to the contrary contained in this Paragraph
2(b), if the managing underwriter(s) of such underwritten offering or any
proposed underwritten offering delivers a written opinion to the Rightsholders
of Registerable Securities which were the subject of all Holder Notices that the
total amount and kind of securities which they, the Company and any other person
intend to include in such offering is such as to materially and adversely affect
the success of such offering, then the amount of securities to be offered for
the accounts of such Rightsholders and persons other than the Company shall be
eliminated or reduced pro rata (based on the amount of securities owned by such
Rightsholders and other persons which carry registration rights) to the extent
necessary to reduce the total amount of securities to be included in such
offering to the amount recommended by such managing underwriter(s) in its
written opinion.
(ii) Expenses. Subject to the provisions of Section 4 hereof, the
Company will pay all Registration Expenses in connection with any registration
of Registerable Securities effected pursuant to this Section 2, but the Company
shall not be responsible for the payment of any underwriter's discount,
commission or selling concession in connection therewith.
(iii) Withdrawal or Suspension of Registration Statement.
Notwithstanding anything contained to the contrary in this Section 2(b), the
Company shall have the absolute right, whether before or after the giving of a
Company Piggy-Back Notice or Holder Notice, to determine not to file a
registration statement to which the Rightsholders shall have the right to
include their Registerable Securities therein pursuant to this Section 2(b), to
withdraw such registration statement or to delay or suspend pursuing the
effectiveness of such registration statement. In the event of such a
determination after the giving of a Company Piggy-Back Notice, the Company shall
give notice of such determination to all Rightsholders and, thereupon, (i) in
the case of a determination not to register or to withdraw such registration
statement, the Company shall be relieved of its obligation under this Section 2
to register any of the Registerable Securities in connection with such
registration and (ii) in the case of a determination to delay the registration,
the Company shall be permitted to delay or suspend the registration of
Registerable Securities pursuant to this Section 2 for the same period as the
delay in the registration of such other securities. No registration effected
under this Section 2(b) shall relieve the Company of its obligation to effect
any registration upon demand otherwise granted to a Rightsholder under any other
agreement with the Company.
3. Registration Procedures.
(a) Obligations of the Company. The Company will, in connection with
the registration pursuant to Section 2 hereof:
(i) Prepare and file with the Commission a registration
statement under the Securities Act on any appropriate form chosen by the
Company, in its sole discretion, which shall be available for the sale of all
Registerable Securities to be included for sale in accordance with the intended
method(s) of distribution thereof and use its commercially reasonable efforts to
cause such registration statement to become effective as soon thereafter as
reasonably practicable; provided, that after such filing, the Company shall, as
diligently as practicable, provide to each Rightsholder such number of copies of
such registration statement, each amendment and supplement thereto, the
prospectus included in such registration statement (including each preliminary
prospectus), all exhibits thereto and documents incorporated by reference
therein and such other documents as such Rightsholder may reasonably request in
order to facilitate the disposition of the Registerable Securities owned by such
Rightsholder and included in such registration statement.
(ii) prepare and file with the Commission such amendments and
post-effective amendments to a registration statement as may be necessary to
keep such registration statement effective for up to nine months; and cause the
related prospectus to be supplemented by any required prospectus supplement, and
as so supplemented to be filed to the extent required pursuant to Rule 424
promulgated under the Securities Act, during such nine-month period; and
otherwise comply with the provisions of the Securities Act with respect to the
disposition of all Registerable Securities covered by such registration
statement during the applicable period in accordance with the intended method(s)
of disposition of such Registerable Securities set forth in such registration
statement, prospectus or supplement to such prospectus;
(iii) notify the Rightsholders whose Registerable Securities
are included in such registration statement and the managing underwriter(s), if
any, of an underwritten offering of any of the Registerable Securities included
in such registration statement, and confirm such advice in writing, (A) when a
prospectus or any prospectus supplement or post-effective amendment has been
filed, and, with respect to a registration statement or any post-effective
amendment, when the same has become effective, (B) of any request by the
Commission for amendments or supplements to a registration statement or related
prospectus or for additional information, (C) of the issuance by the Commission
of any stop order suspending the effectiveness of a registration statement or
the initiation of any proceedings for that purpose, (D) if at any time the
representations and warranties of the Company contemplated by clause (A) of
Paragraph 3(a)(viii) hereof cease to be true and correct, (E) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of any of the Registerable Securities for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose and (F) of
the happening of any event which makes any statement made in the registration
statement, the prospectus or any document incorporated therein by reference
untrue or which requires the making of any changes in the registration statement
or prospectus so that such registration statement, prospectus or document
incorporated by reference will not contain any untrue statement of material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading;
(iv) make reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of such registration statement at the
earliest possible moment and to prevent the entry of such an order;
(v) use reasonable efforts to register or qualify the
Registerable Securities included in such registration statement under such other
securities or blue sky laws of such jurisdictions as any Rightsholder whose
Registerable Securities are included in such registration statement reasonably
requests in writing and do any and all other acts and things which may be
necessary or advisable to enable such Rightsholder to consummate the disposition
in such jurisdictions of such Registerable Securities; provided, that the
Company will not be required to (A) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
Paragraph 3(a)(v), (B) subject itself to taxation in any such jurisdiction or
(C) take any action which would subject it to general service of process in any
such jurisdiction;
(vi) cooperate with the Rightsholder whose Registerable
Securities are included in such registration statement and the managing
underwriter(s), if any, to facilitate the timely preparation and delivery of
certificates representing Registerable Securities to be sold thereunder, and
enable such Registerable Securities to be in such denominations and registered
in such names as such Rightsholder or any managing underwriter(s) may reasonably
request at least two business days prior to any sale of Registerable Securities;
(vii) comply with all applicable rules and regulations of the
Commission and promptly make generally available to its security holders an
earnings statement covering a period of twelve months commencing, (A) in an
underwritten offering, at the end of any fiscal quarter in which Registerable
Securities are sold to underwriter(s), or (B) in a non-underwritten offering,
with the first month of the Company's first fiscal quarter beginning after the
effective date of such registration statement, which earnings statement in each
case shall satisfy the provisions of Section 11(a) of the Securities Act;
(viii) enter into such customary agreements (including an
underwriting agreement in customary form) and take all such other actions
reasonably requested by the Rightsholders holding a majority of the Registerable
Securities included in such registration statement or the managing
underwriter(s) in order to expedite and facilitate the disposition of such
Registerable Securities and in such connection, if an underwriting agreement is
entered into and if the registration is an underwritten registration, (A) make
such representations and warranties, if any, to any underwriter(s) with respect
to the registration statement, prospectus and documents incorporated by
reference, if any, in form, substance and scope as are customarily made by
issuers to underwriter(s) in underwritten offerings and confirm the same if and
when requested, (B) obtain opinions of counsel to the Company and updates
thereof addressed to each such underwriter(s), if any, with respect to the
registration statement, prospectus and documents incorporated by reference, if
any, covering the matters customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably requested by
such underwriter(s), (C) obtain a "cold comfort" letter and updates thereof from
the Company's independent certified public accountants addressed to the
underwriter(s), if any, which letters shall be in customary form and cover
matters of the type customarily covered in "cold comfort" letters by accountants
in connection with underwritten offerings, and (D) deliver such documents and
certificates as may be reasonably requested by the managing underwriter(s), if
any, to evidence compliance with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company; each such
action required by this Paragraph 3(a)(viii) shall be done at each closing under
such underwriting or similar agreement or as and to the extent required
thereunder; and
(ix) if requested by the holders of a majority of the
Registerable Securities included in such registration statement, use its
commercially reasonable best efforts to cause all Registerable Securities which
are included in such registration statement to be listed, subject to notice of
issuance, by the date of the first sale of such Registerable Securities pursuant
to such registration statement, on each securities exchange, if any, on which
securities similar to the Registered Securities are listed.
(b) Obligations of Rightsholders. In connection with any
registration of Registerable Securities of a Rightsholder pursuant to Section 2
hereof:
(i) The Company may require that each Rightsholder whose
Registerable Securities are included in such registration statement furnish to
the Company such information regarding the distribution of such Registerable
Securities and such Rightsholder as the Company may from time to time reasonably
request in writing; and
(ii) Each Rightsholder, upon receipt of any notice from the
Company of the happening of any event of the kind described in clauses (B), (C),
(E) and (F) of Paragraph 3(a)(iii) hereof, shall forthwith discontinue
disposition of Registerable Securities pursuant to the registration statement
covering such Registerable Securities until such Rightsholder's receipt of the
copies of the supplemented or amended prospectus contemplated by clause (A) of
Paragraph 3(a)(iii) hereof, or until such Rightsholder is advised in writing
(the "Advice") by the Company that the use of the applicable prospectus may be
resumed, and until such Rightsholder has received copies of any additional or
supplemental filings which are incorporated by reference in or to be attached to
or included with such prospectus, and, if so directed by the Company, such
Rightsholder will deliver to the Company (at the expense of the Company) all
copies, other than permanent file copies then in the possession of such
Rightsholder, of the current prospectus covering such Registerable Securities at
the time of receipt of such notice; the Company shall have the right to demand
that such Rightsholder or other holder verify its agreement to the provisions of
this Paragraph 3(b)(ii) in a document executed by the Rightsholder.
4. Registration Expenses. All expenses incident to the performance of
or compliance with this Agreement by the Company, including, without imitation,
all registration and filing fees of the Commission, National Association of
Securities Dealers, Inc. and other agencies, fees and expenses of compliance
with securities or blue sky laws (including reasonable fees and disbursements of
counsel in connection with blue sky qualifications of the Registerable
Securities), rating agency fees, printing expenses, messenger and delivery
expenses, internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties),
the fees and expenses incurred in connection with the listing, if any, of the
Registerable Securities on any securities exchange or market and fees and
disbursements of counsel for the Company and the Company's independent certified
public accountants (including the expenses of any special audit or "cold
comfort" letters required by or incidental to such performance), Securities Act
or other liability insurance (if the Company elects to obtain such insurance),
the fees and expenses of any special experts retained by the Company in
connection with such registration and the fees and expenses of any other person
retained by the Company (but not including any underwriting discounts or
commissions attributable to the sale of Registerable Securities or other
out-of-pocket expenses of the Rightsholders, or the agents who act on their
behalf, unless reimbursement is specifically approved by the Company) will be
borne by the Company. All such expenses are herein referred to as "Registration
Expenses."
5. Indemnification: Contribution.
(a) Indemnification by the Company. The Company agrees to indemnify
and hold harmless, to the full extent permitted by law, each Rightsholder, its
officers and directors, and its legal counsel, accountants, and underwriters,
and each person who controls such Rightsholder (within the meaning of the
Securities Act), if any, and any agent thereof, against all losses, claims,
damages, liabilities and expenses (including reasonable attorney's fees and
expenses of investigation) incurred by such party pursuant to any actual or
threatened suit, action, proceeding or investigation to which they may be
subject under the Securities Act or any other federal or any state securities
laws, arising out of or based upon (i) any untrue or alleged untrue statement of
a material fact contained in any registration statement, prospectus or
preliminary prospectus, (ii) any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except insofar as the same arise out of or are based upon, any such
untrue statement or omission based upon information with respect to such
Rightsholder furnished in writing to the Company by such Rightsholder expressly
for use therein or (iii) any violation or alleged violation by the Company of
the Securities Act, the Exchange Act, any state securities laws or any rule or
regulation promulgated under the Securities Act, the Exchange Act or any state
securities laws relating to the Registration Statement.
(b) Indemnification by Rightsholder. In connection with any
registration statement in which a Rightsholder is participating, each such
Rightsholder will be required to furnish to the Company in writing such
information with respect to such Rightsholder as the Company reasonably requests
for use in connection with any such registration statement or prospectus, and
each Rightsholder agrees to the extent it is such a holder of Registerable
Securities included in such registration statement, and each other such holder
of Registerable Securities included in such Registration Statement will be
required to agree, to indemnify, to the full extent permitted by law, the
Company, the directors and officers of the Company and each person who controls
the Company (within the meaning of the Securities Act) any agent thereof, its
legal counsel, accountants and underwriters, against any losses, claims,
damages, liabilities and expenses (including reasonable attorney's fees and
expenses of investigation) incurred by such party pursuant to any actual or
threatened suit, action, proceeding or investigation to which they may be
subject under the Securities Act or any other federal or any state securities
laws, arising out of or based upon (i) any untrue or alleged untrue statement of
a material fact or any omission or alleged omission of a material fact
necessary, to make the statements contained in any registration statement,
prospectus, or preliminary prospectus (in the case of a prospectus, in the light
of the circumstances under which they are made) not misleading, to the extent,
but only to the extent, that such untrue statement or omission is based upon
information relating to such Rightsholder or other holder furnished in writing
to the Company expressly for use therein or (ii) any violation or alleged
violation by such Rightsholder of the Securities Act, the Exchange Act, any
state securities laws or any rule or regulation promulgated under the Securities
Act, the Exchange Act or any state securities laws relating to the Registration
Statement.
(c) Conduct of Indemnification Proceedings. Promptly after receipt by
an indemnified party under this Section 5 of written notice of the commencement
of any action, proceeding, suit or investigation or threat thereof made in
writing for which such indemnified party may claim indemnification or
contribution pursuant to this Agreement, such indemnified party shall notify in
writing the indemnifying party of such commencement or threat; but the omission
so to notify the indemnifying party shall not relieve the indemnifying party
from any liability which the indemnifying party may have to any indemnified
party (i) hereunder, unless the indemnifying party is actually prejudiced
thereby, or (ii) otherwise than under this Section 5. In case any such action,
suit or proceeding shall be brought against any indemnified party, and the
indemnified party shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and the
indemnifying party shall assume the defense thereof, with counsel reasonably
satisfactory to the indemnified party, and the obligation to pay all expenses
relating thereto. The indemnified party shall have the right to employ separate
counsel in any such action, suit or proceeding and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party has agreed to pay such
fees and expenses, (ii) the indemnifying party shall have failed to assume the
defense of such action, suit or proceeding or to employ counsel reasonably
satisfactory to the indemnified party therein or to pay all expenses relating
thereto or (iii) the named parties to any such action or proceeding (including
any impleaded parties) include both the indemnified party and the indemnifying
party and the indemnified party shall have been advised by counsel that there
may be one or more legal defenses available to the indemnified party which are
different from or additional to those available to the indemnifying party and
which may result in a conflict between the indemnifying party and such
indemnified party (in which case, if the indemnified party notifies the
indemnifying party in writing that the indemnified party elects to employ
separate counsel at the expense of the indemnifying party, the indemnifying
party shall not have the right to assume the defense of such action or
proceeding on behalf of the indemnified party; it being understood, however,
that the indemnifying party shall not, in connection with any one such action,
suit or proceeding or separate but substantially similar or related actions,
suits or proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys at any time for all indemnified parties, which
firm shall be designated in writing by the indemnified party).
(d) Contribution. If the indemnification provided for in this Section
5 from the indemnifying party is unavailable to an indemnified party hereunder
in respect of any losses, claims, damages, liabilities or expenses referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits received by the indemnifying party on the one hand and the
indemnified party on the other but also the relative fault of the indemnifying
party and indemnified party, as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and the
indemnified parties shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
indemnified parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include, subject to the
limitation set forth in Section 5(e), any legal or other fees or expenses
reasonably incurred by such party in connection with any investigation or
proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Paragraph 5(d) were determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to in clauses (i) and (ii) of the
immediately preceding paragraph. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) Limitation. Anything to the contrary contained in this Section
5(e) notwithstanding, no holder of Registerable Securities shall be liable for
indemnification and contribution payments aggregating an amount in excess of the
maximum amount received by such holder in connection with any sale of
Registerable Securities as contemplated herein.
(f) Survival. The obligations of the Company and the
Rightsholders under this Section 5 shall survive the completion of any offering
of Registerable Securities in a registration statement under this Agreement.
6. Participation in Underwritten Registration. No Rightsholder may
participate in any underwritten registration hereunder unless such Rightsholder
(i) agrees to sell such Rightsholder's securities on the basis provided in any
underwriting arrangements approved by the persons entitled hereunder to approve
such arrangements and to comply with Regulation M under the Exchange Act and
(ii) completes and executes all questionnaires, appropriate and limited powers
of attorney, escrow agreements, indemnities, underwriting agreements and other
documents reasonably required under the terms of such underwriting arrangement;
provided, that all such documents shall be consistent with the provisions of
Section 3 hereof.
7. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
8. Entire Agreement . This Agreement and the documents and instruments
and other agreements among the parties hereto as contemplated by or referred to
herein, (a) constitute the entire agreement among the parties with respect to
the subject matter hereof and supersede all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter
hereof and (b) are not intended to confer upon any other person any rights or
remedies hereunder, except as set forth herein.
9. Severability . In the event that any provision of this Agreement or
the application thereof becomes or is declared by a court of competent
jurisdiction to be illegal, void or unenforceable, the remainder of this
Agreement will continue in full force and effect and the application of such
provision to other persons or circumstances will be interpreted so as reasonably
to effect the intent of the parties hereto. The parties further agree to
replace such void or unenforceable provision of this Agreement with a valid and
enforceable provision that will achieve, to the extent possible, the economic,
business and other purposes of such void or unenforceable provision.
10. Governing Law . This Agreement shall be governed by and construed
in accordance with the laws of the Commonwealth of Massachusetts, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
law thereof. Each of the parties hereto irrevocably consents to the exclusive
jurisdiction of any state or federal court within the Commonwealth of
Massachusetts, in connection with any matter based upon or arising out of this
Agreement or the matters contemplated herein, agrees that process may be served
upon them in any manner authorized by the laws of the Commonwealth of
Massachusetts for such persons and waives and covenants not to assert or plead
any objection which they might otherwise have to such jurisdiction and such
process.
11. Assignment . No party may assign either this Agreement or any of
its rights, interests, or obligations hereunder without the prior written
approval of the other parties. Notwithstanding the foregoing, the rights to
cause the Company to register Registerable Securities pursuant to Section 2 may
be assigned (but only with all related obligations) by a Rightsholder to a
transferee or assignee of such securities that (i) is a subsidiary, parent,
partner, limited partner, retired partner or stockholder of a Rightsholder, (ii)
is a Rightsholder's spouse or member of such Rightsholder's immediate family, or
a custodian, trustee (including a trustee of a voting trust), executor or other
fiduciary for the account of the Rightsholder's spouse or members of the
Rightsholder's immediate family, a trust for the Rightsholder's own self, a
charitable remainder trust or an entity that is controlled by one or more of the
Rightsholder's immediate family, or (iii) after such assignment or transfer,
holds at least 25,000 shares of Registerable Securities (subject to appropriate
adjustment for stock splits, stock dividends, combinations and other
recapitalizations), provided; (a) the Company is, within a reasonable time after
such transfer, furnished with written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being assigned; (b) such transferee or assignee agrees
in writing to be bound by and subject to the terms and conditions of this
Agreement, including without limitation the provisions of Section 2; and (c)
such assignment shall be effective only if immediately following such transfer
the further disposition of such securities by the transferee or assignee is
restricted under the Securities Act.
12. Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may not be amended, modified or supplemented
without the written consent of each of the parties hereto. Any of the
Stockholders or the Company may, by written notice to the others, (i) waive any
of the conditions to its obligations hereunder or extend the time for the
performance of any of the obligations or actions of the other, (ii) waive any
inaccuracies in the representations of the other contained in this Agreement or
in any documents delivered pursuant to this Agreement, (iii) waive compliance
with any of the covenants of the other contained in this Agreement and (iv)
waive or modify performance of any of the obligations of the other. No action
taken pursuant to this Agreement, including, without limitation, any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action or compliance with any representation,
warranty, condition or agreement contained herein. Waiver of the breach of any
one or more provisions of this Agreement shall not be deemed or construed to be
a waiver of other breaches or subsequent breaches of the same provisions.
13. Notices. All notices, demands, requests, demands and other
communications required or otherwise given under this Agreement shall be in
writing and shall be deemed to have been duly given if: (a) delivered by hand
against written receipt therefor, (b) forwarded by a third party company or
governmental entity providing delivery services in the ordinary course of
business which guarantees delivery the following business day, (c) mailed by
registered or certified mail, return receipt requested, postage prepaid, or (d)
transmitted by facsimile transmission electronically confirmed for receipt, in
full, by the other party no later than 5:00 p.m., local time, on the date of
transmission, addressed as follows (i) If to the Company, to International
Wireless, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇;
Attention: President; and (ii) if to the Stockholders, to the respective address
set forth on the signature pages hereof, or (iii) in the case of any of the
parties hereto, at such other address as such party shall have furnished to each
of the other parties hereto in accordance with this Section 13. Each such
notice, demand, request or other communication shall be deemed given (i) on the
date of such delivery by hand, (ii) on the first business day following the date
of such delivery to the overnight delivery service or facsimile transmission or
(iii) three business days following such mailing.
14. Other Remedies. Except as otherwise provided herein, any and all
remedies herein expressly conferred upon a party will be deemed cumulative with
and not exclusive of any other remedy conferred hereby, or by law or equity upon
such party, and the exercise by a party of any one remedy will not preclude the
exercise of any other remedy.
15. Further Assurances. Each party hereto covenants and agrees with
all other parties hereto to promptly execute, deliver, file and/or record such
agreements, instruments, certificates and other documents and to do and perform
such other and further acts and things as any other party hereto may reasonably
request or as may otherwise be necessary or proper to consummate and perfect the
transactions contemplated hereby.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by themselves or their duly authorized respective officers, all as of the
date first written above.
INTERNATIONAL WIRELESS, INC.
By:
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Name:
Title:
[SEE ATTACHED STOCKHOLDER COUNTERPART SIGNATURE PAGES]
Exhibit A
Stockholder Number of Shares
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[COMPLETE]
------------
Total Shares
Counterpart Signature Page for Stockholders
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The undersigned hereby agrees to become a party to that certain
Registration Rights Agreement dated as of January _____, 2002 between
International Wireless, Inc. and each of the parties listed on Exhibit A who
have executed a Counterpart Signature Page to the Registration Rights Agreement.
------------------------------------------
Name (printed):
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Address:
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