SECURITIES PURCHASE AGREEMENT This Securities Purchase Agreement is entered into as of February 20, 2001, by and between USURF America, Inc., a Nevada corporation ("USURF"), and Claymore Asset Management Ltd., a Turks and Caicos Islands, British West...
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EXHIBIT 10.113
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This Securities Purchase Agreement is entered into as of February 20, 2001,
by and between USURF America, Inc., a Nevada corporation ("USURF"), and
Claymore Asset Management Ltd., a Turks and Caicos Islands, British West
Indies, corporation ("Claymore"), in light of the following facts:
WHEREAS, USURF is a provider of Fixed-Wireless Internet access, as well as
dial-up Internet access whose common stock is traded on the American Stock
Exchange (symbol: UAX);
WHEREAS, Claymore desires to acquire shares of common stock and common
stock purchase warrants (the common stock and common stock purchase
warrants being referred to collectively as the "Units") of USURF; and
WHEREAS, USURF desires to issue shares of its common stock and common stock
purchase warrants to Claymore on the terms and conditions set forth in this
Agreement.
WITNESSETH:
THEREFORE, the Agreement of the parties, the promises of each being
consideration for the promises of the other:
I. DEFINITIONS
Whenever used in this Agreement, the following terms shall have the
meanings set forth below, including the exhibit hereto or amendments hereof.
(a) "Agreement" shall mean this Securities Purchase Agreement and all
exhibits hereto or amendments hereof.
(b) "Claymore" shall mean Claymore Asset Management Ltd., a Turks and
Caicos Islands, British West Indies, corporation.
(c) "Knowledge of USURF" or matters "known to USURF" shall mean matters
actually known to the Board of Directors or officers of USURF, or which
reasonably should be or should have been known by them upon reasonable
investigation.
(d) "Securities Act" shall mean the Securities Act of 1933, as amended,
and includes the rules and regulations of the Securities and Exchange
Commission ("SEC") promulgated thereunder, as such shall then be in effect.
(e) "USURF" shall mean USURF America, Inc., a Nevada corporation,
including its subsidiaries. Any term used herein to which a special
meaning has been ascribed shall be construed in accordance with either (1)
the context in which such term is used, or (2) the definition provided for
such terms in the place in this Agreement at which such term is first used.
II. DISCLOSURES
Claymore hereby acknowledges that it has examined, or has had the
opportunity to examine, all of USURF's periodic filings made with the SEC
pursuant to the Securities Exchange Act of 1934, as well as Pre-effective
Amendment No. 3 to USURF's Registration Statement on Form S-1 (the
"Registration Statement"), a copy of which is attached hereto as Exhibit
"A" and incorporated herein by this reference. Further, Claymore hereby
acknowledges that it has had the opportunity to ask questions of, and
receive answers from, the principals of USURF regarding the periodic
filings and the Registration Statement of USURF and otherwise investigate
the matters contained therein.
III. PURCHASE AND SALE
USURF hereby sells to Claymore and Claymore hereby buys from USURF the
following securities (the Units):
(a) 840,000 shares of the $.0001 par value common stock of USURF; and
(b) 840,000 warrants to purchase a like number of shares of common stock
of USURF, at an exercise price of $.15 per share, all as more fully set
forth in the form of warrant attached hereto as Exhibit "B" and
incorporated herein by this reference.
The Units shall be sold to Claymore at the price and subject to all of the
terms and conditions set forth herein.
It is agreed by the parties that none of the purchase price for the Units
described herein shall be allocated to the common stock purchase warrants.
IV. PURCHASE PRICE - PAYMENT
Claymore shall deliver to USURF the sum of $126,000 in payment of the
840,000 shares of USURF common stock and 840,000 common stock purchase
warrants (the Units) purchased by Claymore hereunder, a per Unit price of
$.15, which payment shall be delivered as provided in paragraph VI
hereinbelow.
V. ISSUANCE OF THE UNITS
USURF shall cause the 840,000 shares of its common stock and 840,000 common
stock purchase warrants purchased and sold hereunder to be issued.
In addition, USURF shall cause (1) all 840,000 shares of common stock and
(2) all 840,000 shares of common stock underlying the common stock purchase
warrants to be issued to Claymore hereunder to be registered, at USURF's
expense, pursuant to the Registration Statement. Claymore shall be named
as a selling shareholder in the Registration Statement.
VI. THE EXCHANGE
USURF shall deliver to Claymore, upon receipt of the $126,000 required by
paragraph IV, a stock certificate representing 840,000 shares of its common
stock and a warrant in the form of Exhibit "B" attached hereto. Claymore
agrees that it shall deliver forthwith the sum of $126,000 required to be
delivered pursuant to paragraph IV.
VII. REPRESENTATIONS AND WARRANTIES OF USURF
USURF represents and warrants to Claymore:
(a) Organization and Corporate Authority. USURF is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Nevada and is qualified to do business as a foreign corporation in
all jurisdictions where the ownership of property or maintenance of an
office would require qualification. USURF has all requisite corporate
power and authority, governmental permits, consents, authorizations,
registrations, licenses and memberships necessary to own its property and
to carry on its business in the places where such properties are now owned
and operated or such business is being conducted.
(b) Subsidiaries. USURF America, Inc., the issuer of the securities sold
hereunder, has the following subsidiary corporations: (1) CyberHighway,
Inc., an Idaho corporation; (2) Santa Fe Wireless Internet, Inc., a New
Mexico corporation; (3) USURF America Internet Design, Inc., a Louisiana
corporation; (4) USURF Wireless, Inc., a Louisiana corporation; and (5)
Missouri Cable TV Corp., a Louisiana corporation.
(c) Options, Warrants and Rights. USURF has those outstanding options,
warrants or rights, conversion rights or other agreements for the purchase
or acquisition from USURF of any shares of its capital stock as are
described in the Registration Statement.
(d) Issuance of the Units. The shares of common stock of USURF, when
issued and delivered in accordance with this Agreement, will be duly and
validly issued, fully paid and non-assessable, and will be free and clear
of any liens or encumbrances and, to the knowledge of USURF, will be issued
in compliance with applicable state and federal laws. The common stock
purchase warrants of USURF, when issued and delivered in accordance with
this Agreement, will be duly and validly issued and will be free and clear
of any liens or encumbrances and, to the knowledge of USURF, will be issued
in compliance with applicable state and federal laws. The shares of common
stock of USURF underlying the common stock purchase warrants, when issued
and delivered in accordance with this Agreement and the warrant agreement,
will be duly and validly issued, fully paid and non-assessable, and will be
free and clear of any liens or encumbrances and, to the knowledge of USURF,
will be issued in compliance with applicable state and federal laws.
(e) Financial Condition; Use of Proceeds. USURF is a development stage
company without significant revenues and has, since inception, operated at
a loss and is substantially illiquid. USURF requires substantial
additional capital with which to implement its business plan with respect
to its Wireless Internet access products. There is no assurance that USURF
will obtain such needed capital or that its business plan, when
implemented, will prove to be successful. The funds derived under this
Agreement will be utilized for the payment of professional fees
(approximately $50,000) and for working capital.
(f) Undisclosed or Contingent Liabilities. To the best knowledge of USURF
and to its officers and directors, USURF has no material liabilities not
reflected in its periodic filings with the SEC and the Registration
Statement, and, to the best knowledge of the officers and directors of
USURF, USURF has no contingent liabilities.
(g) Litigation. Except as described in USURF's periodic filings with the
SEC and the Registration Statement, USURF is not a party to any suit,
action, proceeding, investigation or labor dispute (collectively "actions")
pending or currently threatened against it other than administrative
matters arising in the ordinary course of business and which, if determined
against USURF would result in a materially adverse effect.
(h) Compliance with Agreements. The execution and performance of this
Agreement will not result in any violation or be in conflict with any
agreement to which USURF is a party.
(i) Title to Property and Assets. USURF has good and marketable title to
its properties and assets free and clear of all mortgages, liens, security
interests and encumbrances.
(j) Franchises, Permits, etc. To the knowledge of USURF, it has all
franchises, permits, licenses, orders and approvals of any federal, state,
local or foreign government of self regulatory body (collectively, the
"Permits") that are material to or necessary for the conduct of its business.
(k) Governmental Consents. To the knowledge of USURF, no consent,
approval, order or authorization of, or registration, qualification,
designation, declaration or filing with, any governmental authority on the
part of USURF is required in connection with the valid execution, delivery
and performance of this Agreement.
(l) Authorization. All corporate action on the part of USURF and its
officers, directors and shareholders necessary for the authorization,
execution and delivery of this Agreement, for the performance of USURF's
obligations hereunder and for the issuance and delivery of the Units has
been taken. This Agreement, when executed and delivered, shall constitute
a legal, valid and binding obligation of USURF.
VIII. REPRESENTATIONS AND WARRANTIES OF CLAYMORE
(a) Organization and Corporate Authority. Claymore is a corporation duly
organized, validly existing and in good standing under the laws of the
Turks and Caicos Islands, British West Indies, and is qualified to do
business in all jurisdictions where it is required to do so. Claymore has
all requisite corporate power and authority, governmental permits,
consents, authorizations, registrations, licenses and memberships necessary
to own its property and to carry on its business in the places where such
properties are now owned and operated or such business is being conducted.
Claymore is not a "U.S. person", as that term is defined in the securities
laws and regulations of the United States.
(b) Claymore represents and warrants that it does not have a place of
business within the United States.
(c) Claymore represents and warrants that it is an "accredited investor"
within the meaning of that term as used in Rule 501 of Regulation D of the
Rules and Regulations of the SEC and is capable, through experience and
financial strength, to make and understand an investment decision leading
to the purchase of the Units of USURF contemplated herein.
(d) Claymore represents and warrants that the Units are being purchased by
it solely for its own account for investment purposes only and not for the
account of any other person and not for distribution, assignment or resale
to others.
(e) Claymore further consents to the placement of the following legend, or
a legend similar thereto, on the certificates representing shares of common
stock and the common stock purchase warrants comprising the Units:
THESE SECURITIES, AND THE SECURITIES INTO WHICH THEY MAY BE CONVERTED, HAVE
BEEN ISSUED IN RELIANCE UPON THE EXEMPTION FROM REGISTRATION AFFORDED BY
REGULATION S PROMULGATED UNDER SECURITIES ACT OF 1933, AS AMENDED, AND MAY
NOT BE TRANSFERRED WITHOUT AN OPINION OF COUNSEL SATISFACTORY TO THE
CORPORATION TO THE EFFECT THAT ANY SUCH PROPOSED TRANSFER IS IN ACCORDANCE
WITH ALL APPLICABLE LAWS, RULES AND REGULATIONS.
IX. MISCELLANEOUS
Survival of Covenants. Unless otherwise waived as provided herein, all
covenants agreements, representations and warranties of the parties made in
this Agreement and in the financial statements or other written information
delivered or furnished in connection therewith and herewith shall survive
the Exchange hereunder, and shall be binding upon, and inure to the benefit
of, the parties and their respective successors and assigns.
Arbitration. In the event of a dispute between the parties hereto that
arises out of this Agreement, the parties hereby agree to submit such
dispute to arbitration before the American Arbitration Association (the
"Association") at its Dallas, Texas, offices, in accordance with the
then-current rules of the Association; the award given by the arbitrators
shall be binding and a judgment can be obtained on any such award in any
court of competent jurisdiction. It is expressly agreed that the
arbitrators, as part of their award, can award attorneys fees to the
prevailing party.
Governing Law. This Agreement shall be deemed to be a contract made under,
governed by and construed in accordance with the substantive laws of the
State of Louisiana.
Counterparts. This Agreement may be executed simultaneously in
counterparts, each of which when so executed and delivered shall be taken
to be an original; but such counterparts shall together constitute but one
and the same documents.
Successors and Assigns. Except as otherwise expressly provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns and administrators of the parties hereto.
Entire Agreement. This Agreement, the other agreements and the other
documents delivered pursuant hereto and thereto constitute the full and
entire understanding and agreement between the parties with regard to the
subjects hereof and thereof.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the day
and year first above written.
"USURF":
USURF AMERICA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
"CLAYMORE":
CLAYMORE ASSET MANAGEMENT LTD.
By: /s/
Managing Director