ACQUISITION AGREEMENT
Exhibit
2.3
THIS
ACQUISITION AGREEMENT (this “Agreement”)
is
entered into as of the 20th day of October, 2006, by and between ▇▇▇▇▇▇ ▇▇▇▇,
a
Florida resident, (hereinafter “▇▇▇▇”)
and
Wireless Holdings, Inc., a Florida corporation (hereinafter referred to as
“Holdings”).
Capitalized terms used and not defined herein shall have the respective meanings
set forth in the Agreement of Merger and Plan of Reorganization dated as of
October 17, 2006 (the “Merger
Agreement”)
among
the Purchaser, Wireless Acquisition Holdings Corp., and H2Diesel,
Inc.
RECITALS
WHEREAS,
Holdings owns 100% of Action Wireless, Inc., a Florida corporation (the
”Subsidiary”),
and
with respect to which Holdings has certain assets and liabilities as described
in Exhibit
A
hereto
and various rights under written and oral agreements listed in Exhibit
B
hereto
(the “Rights”).
WHEREAS,
it is the intention of the parties hereto that ▇▇▇▇ acquires 100% of issued
and
outstanding shares of the Subsidiary and all of Holdings’ rights to the
Rights.
NOW,
THEREFORE, for the mutual consideration set out herein, the parties agree as
follows:
AGREEMENT
1. Purchase
and Sale.
| (a) |
Holdings
agrees to sell to ▇▇▇▇, and ▇▇▇▇ agrees to purchase from Holdings
(i)
1,000 shares of common stock, par value $.001 per share (the “Shares”)
of the Subsidiary and (ii) all of Holdings’ right, title and interest in
the Rights (including all rights to receive distributions with respect
to
the Shares and the Rights) at the Closing (as hereinafter defined)
on the
terms and subject to the conditions set forth in this
Agreement.
|
| (b) |
▇▇▇▇
agrees to (i) assume all duties, liabilities, responsibilities and
obligations of Holdings with respect to the Subsidiary in respect
of all
periods prior to or after the date hereof (other than liabilities
arising
under the Merger Agreement) and (ii) indemnify Holdings for its
liabilities, responsibilities and obligations with respect to the
Subsidiary in accordance with terms of Section 7(b)
hereof.
|
2. Representations
of Holdings.
Holdings hereby represents and warrants that, with respect to the Subsidiary
and
the Rights to be transferred, effective this date and the Closing Date, the
representations listed below are true and correct, to the best of its knowledge,
information and belief. Said representations are meant and intended by all
parties to apply to the Subsidiary and the Rights.
| (a) |
Holdings
is duly authorized to execute this Agreement and has taken all actions
required by law to properly and legally execute this Agreement.
|
| This Agreement has been, or upon execution and delivery thereof will be, duly executed and delivered by Holdings. Upon execution, this Agreement will be, a valid and binding obligation of Holdings, enforceable against Holdings in accordance with its terms, except to the extent that enforcement of the rights and remedies created hereby is subject to bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting the rights and remedies of creditors and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law). |
| (b) |
As
of the Closing Date, there will be issued and outstanding 1,000 shares
in
the Subsidiary, all of which are owned by Holdings. Holdings has
good and
marketable title to all of the Shares, and there exists no liens,
claims,
options, proxies, voting agreements, charges, security interests,
or
encumbrances of whatever nature (“Liens”)
affecting such Shares.
|
| (c) |
Holdings
does not have any outstanding option, warrant or other right to acquire,
directly or indirectly, any securities of the Subsidiary which are
or may
by their terms become entitled to vote or any securities which are
convertible or exchangeable into or exercisable for any securities
of the
Subsidiary which are or may by their terms become entitled to vote,
and
Holdings is not subject to any offer, contract, arrangement, understanding
or relationship (whether or not legally enforceable) which allows
or
obligates Holdings to vote, dispose of or acquire any securities
of the
Subsidiary.
|
| (d) |
Holdings
is the sole owner of the Subsidiary and the Rights and has the unqualified
right to transfer and dispose of the Subsidiary and the Rights as
of the
Closing Date.
|
| (e) |
There
are no liabilities, either fixed or contingent against the Subsidiary
or
the Rights not reflected on Exhibit
C
hereto other than contracts or obligations in the ordinary and usual
course of business; and no such contracts or obligations in the usual
course of business constitute liens or other liabilities which, if
disclosed, would alter substantially the financial condition of the
Subsidiary or the Rights, unless disclosed in Exhibit
C
hereto.
|
| (f) |
Prior
to the Closing Date there will not be any negative material changes
in the
Subsidiary or in the financial position of the Rights, except changes
arising in the ordinary course of business, which changes will in
no event
adversely affect the financial position of said Subsidiary or
Rights.
|
| (g) |
There
is no suit, claim, action, proceeding or investigation pending or,
to the
knowledge of Holdings, threatened against Holdings or the Subsidiary
that
could reasonably be expected to adversely affect Holdings performance
under this Agreement or prevent or materially delay the
|
2
| Closing. Neither Holdings nor the Subsidiary is subject to any outstanding order, writ, injunction or decree that could reasonably be expected to affect Holding’s performance under this Agreement. |
| (h) |
The
execution of this Agreement will not violate or breach any agreement,
contract, or commitment to which Holdings is a
party.
|
3. Representations
of ▇▇▇▇:
▇▇▇▇ hereby represents and warrants as follows:
| (a) |
▇▇▇▇
is a natural person, residing at the address set forth in Section
11
hereof.
|
| (b) |
▇▇▇▇
is duly authorized to execute this Agreement and has taken all actions
required by law to properly and legally execute this Agreement. This
Agreement has been, or upon execution and delivery thereof will be,
duly
executed and delivered by ▇▇▇▇. Upon execution, this Agreement will
be, a
valid and binding obligation of ▇▇▇▇, enforceable against ▇▇▇▇ in
accordance with its terms, except to the extent that enforcement
of the
rights and remedies created hereby is subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting
the rights and remedies of creditors and to general principles of
equity
(regardless of whether enforceability is considered in a proceeding
in
equity or at law).
|
| (c) |
The
execution of this Agreement will not violate or breach any agreement,
contract, or commitment to which ▇▇▇▇ is a
party.
|
| (d) |
There
is no suit, claim, action, proceeding or investigation pending or,
to the
knowledge of ▇▇▇▇, threatened against ▇▇▇▇ that could reasonably
be
expected to adversely affect ▇▇▇▇’ performance under this Agreement or
prevent or materially delay the Closing. ▇▇▇▇ is not subject to any
outstanding order, writ, injunction or decree that could reasonably
be
expected to affect ▇▇▇▇’ performance under this
Agreement.
|
| (e) |
▇▇▇▇
acknowledges his understanding that the sale of the Shares is intended
to
be exempt from registration under the Securities Act of 1933, as
amended
(the “Securities
Act”),
by virtue of Section 4(2) of the Securities Act and the provisions
of
Regulation D promulgated thereunder (“Regulation
D”).
In furtherance thereof, ▇▇▇▇ represents and warrants to Holdings
as
follows:
|
| (i) |
▇▇▇▇
realizes that the basis for the exemption from registration may not
be
available if, notwithstanding ▇▇▇▇’ representations contained herein, ▇▇▇▇
is merely acquiring the Shares for a fixed or determinable period
in the
future, or for a market rise, or for sale if the market does not
rise.
▇▇▇▇ does not have any such
intention.
|
3
| (ii) |
▇▇▇▇
is acquiring the Shares solely for ▇▇▇▇’ own beneficial account, for
investment purposes, and not with view to, or resale in connection
with,
any distribution of the Shares.
|
| (iii) |
▇▇▇▇
has the financial ability to bear the economic risk of his investment,
has
adequate means for providing for his current needs and contingencies,
and
has no need for liquidity with respect to the investment in the
Subsidiary.
|
| (iv) |
▇▇▇▇
and ▇▇▇▇’ attorney, accountant, purchaser representative and/or tax
advisor, if any (collectively, “Advisors”),
have received this Agreement, together with all exhibits hereto,
and all
other documents provided by Holdings pursuant to the requests of
the
Subscriber or its Advisors, if any, and have carefully reviewed them
and
they understand the information contained therein, prior to the execution
of this Agreement.
|
| (v) |
▇▇▇▇
(together with his, her or its Advisors, if any) has such knowledge
and
experience in financial and business matters as to be capable of
evaluating the merits and risks of the prospective investment in
the
Subsidiary.
|
|
(vi)
|
▇▇▇▇
is an accredited investor as defined in Rule 501(a) of Regulation
D
promulgated under the Securities
Act.
|
4. Closing.
The closing of the transactions contemplated by this Agreement (the
“Closing”)
shall
take place at the offices of ▇▇▇▇▇▇▇▇▇ Traurig, P.A., ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, on the date on which the obligations set forth herein
shall have been satisfied or waived, or such other date as the parties may
mutually agree. The date on which the Closing actually occurs shall be referred
to herein as the “Closing
Date”.
5. Conditions
Precedent to the Obligations of Holdings.
All obligations of Holdings under this Agreement are subject to the fulfillment,
prior to or as of the Closing Date, of each of the following
conditions:
| (a) |
The
representations and warranties of ▇▇▇▇ contained in this Agreement
shall
be accurate and complete in all material respects on and as of the
Closing
Date and shall not contain any untrue statement of material fact
or omit
to state any material fact necessary in order to make the statements
and
information of ▇▇▇▇ contained in Section 3
herein not misleading, and ▇▇▇▇ shall have performed and complied
in all
respects with all covenants and agreements and conditions required
to be
performed, satisfied or complied with by it hereunder on or prior
to the
Closing.
|
| (b) |
No
action, suit or other proceedings shall be pending before any governmental
authority seeking or threatening to restrain or prohibit the consummation
of the transactions contemplated by this Agreement, or seeking to
obtain
damages in respect thereof, or involving a claim that
|
4
| consummation thereof would result in the violation of any law, decree or regulation of any governmental authority having appropriate jurisdiction. |
| (c) |
The
merger contemplated by the Merger Agreement shall have been
consummated.
|
| (d) |
Holdings
and ▇▇▇▇ shall have entered into the Purchase and Repayment Agreement
dated as of October 20, 2006 (“Purchase
Agreement”)
and ▇▇▇▇ shall have performed all of his obligations set forth in
the
Purchase Agreement.
|
| (e) |
All
instruments and documents delivered to Holdings pursuant to the provisions
hereof shall be reasonably satisfactory to
Holdings.
|
6. Conditions
Precedent to the Obligations of ▇▇▇▇.
All obligations of ▇▇▇▇ under this Agreement are subject to the fulfillment,
prior to or as of the Closing Date, of each of the following
conditions:
| (a) |
The
representations and warranties of Holdings contained in this Agreement
shall be accurate and complete in all material respects on and as
of the
Closing Date and shall not contain any untrue statement of material
fact
or omit to state any material fact necessary in order to make the
statements and information of Holdings contained in Section 2
herein not misleading, and Holdings shall have performed and complied
in
all respects with all covenants and agreements and conditions required
to
be performed, satisfied or complied with by it hereunder on or prior
to
the Closing.
|
| (b) |
No
action, suit or other proceedings shall be pending before any governmental
authority seeking or threatening to restrain or prohibit the consummation
of the transactions contemplated by this Agreement, or seeking to
obtain
damages in respect thereof, or involving a claim that consummation
thereof
would result in the violation of any law, decree or regulation of
any
governmental authority having appropriate
jurisdiction.
|
| (c) |
Holdings
shall have performed and complied with all covenants, agreements,
and
conditions required by this Agreement to be performed or complied
with by
it prior to or at the Closing.
|
| (d) |
(i)
Holdings shall have delivered to ▇▇▇▇ all stock certificates representing
all of the shares of common stock of the Subsidiary held by Holdings,
duly
endorsed in blank or accompanied by assignments separate from the
certificate duly executed in blank and (ii) any other documents that
are
necessary to transfer to ▇▇▇▇ good, valid and marketable title to
the all
of the Shares.
|
5
| (e) |
The
merger contemplated by the Merger Agreement shall have been
consummated.
|
| (f) |
Holdings
and ▇▇▇▇ shall have entered into the Purchase Agreement and Holdings
shall
have performed all of its obligations set forth in the Purchase
Agreement.
|
7. Indemnification.
| (a) |
For
a two year period, each party shall indemnify and hold harmless the
other
at all times after the date of this Agreement against and in respect
of
any liability, damage or deficiency, all actions, suits, proceedings,
demands, assessments, judgments, costs and expenses including attorney’s
fees incident to any of the foregoing, resulting from any
misrepresentations, breach of covenant or warranty or non-fulfillment
of
any agreement on the part of such party under this Agreement or from
any
misrepresentation in or omission from any certificate furnished or
to be
furnished to a party hereunder. Subject to the terms of this Agreement,
the defaulting party shall reimburse the other party or parties on
demand,
for any reasonable payment made by said parties at any time after
the
Closing, in respect of any liability or claim to which the foregoing
indemnity relates, if such payment is made after reasonable notice
to the
other party to defend or satisfy the same and such party failed to
defend
or satisfy the same.
|
| (b) |
In
addition, ▇▇▇▇ and the Subsidiary, jointly and severally, shall indemnify
and hold harmless Holdings at all times after the date of this Agreement
against and in respect of any liability, damage or deficiency, all
actions, suits, proceedings, demands, assessments, judgments, costs and
expenses including attorney’s fees incident to any of the foregoing,
resulting from any claims, liabilities or non-fulfillment of any
agreement
with respect to the Subsidiary and the Rights. Subject to the terms
of
this Agreement, ▇▇▇▇ and the Subsidiary, jointly and severally, shall
reimburse Holdings on demand, for any reasonable payment made by
said
parties at any time after the Closing, in respect of any liability
or
claim to which the foregoing indemnity relates, if such payment is
made
after reasonable notice to ▇▇▇▇ to defend or satisfy the same and
▇▇▇▇
failed to defend or satisfy the same in a timely
manner.
|
8. Nature
and Survival of Representations.
All representations, warranties and covenants made by any party in this
Agreement shall survive the Closing hereunder and the consummation of the
transactions contemplated hereby for two years from the date hereof. All of
the
parties hereto are executing and carrying out the provisions of this Agreement
in reliance solely on the representations, warranties and covenants and
agreements contained in this Agreement or at the Closing of the transactions
herein provided for and not upon any investigation upon which it might have
made
or any representations, warranty, agreement,
6
promise
or information, written or oral, made by the
other party or any other person other than as specifically set forth
herein.
9. Documents
at Closing.
Between the date hereof and the date of Closing, the following transactions
shall occur, all of such transactions being deemed to occur
simultaneously:
| (a) |
Holdings
will deliver, or cause to be delivered, to ▇▇▇▇ the
following:
|
| (1) |
such
executed documents as required by this
Agreement.
|
| (2) |
certified
copies of resolutions by Holdings’ Board of Directors authorizing Holdings
to enter into this Agreement and the transactions contemplated
hereby.
|
| (3) |
such
other instruments, documents and certificates, if any, as are required
to
be delivered pursuant to the provisions of this Agreement or which
may be
reasonably requested in furtherance of the provisions of this
Agreement.
|
| (b) |
▇▇▇▇
will deliver or cause to be delivered to Holdings such other instruments
and documents as are required to be delivered pursuant to the provisions
of this Agreement.
|
10. Termination
of Agreement.
This Agreement may be terminated and the transactions contemplated hereby may
be
abandoned, at any time prior to the Closing Date:
(a) by
the
mutual consent of Holdings and ▇▇▇▇;
|
(b)
|
by
▇▇▇▇, by written notice to Holdings, if Holdings breaches in any
material
respect any of its representations, warranties, covenants or agreements
contained in this Agreement;
|
|
(c)
|
by
Holdings, by written notice to ▇▇▇▇, if ▇▇▇▇ breaches in any material
respect any of its representations, warranties, covenants or agreements
contained in this Agreement; or
|
|
(d)
|
by
either party if the Closing has not been consummated on or prior
to sixty
(60) days from the date hereof.
|
11. Miscellaneous.
| (a) |
Further
Assurances.
At any time, and from time to time, after the effective date, each
party
will execute such additional instruments and take such action as
may be
reasonably requested by the other party to confirm or perfect title
to the
Subsidiary or any Rights transferred hereunder or otherwise to carry
out
the intent and purposes of this
Agreement.
|
7
| (b) |
Waiver.
Any waiver by any party of a breach of any provision of this Agreement
shall not operate as or be construed to be a waiver of any other
breach of
such provision or of any breach of any other provision of this Agreement.
The failure of a party to insist upon strict adherence to any term
of this
Agreement or one or more sections shall not be considered a waiver
or
deprive that party of the right thereafter to insist upon strict
adherence
to that term or any other terms of this Agreement.
|
| (c) |
Notices.
All notices and other communications under this Agreement shall be
in
writing and delivery thereof shall be deemed to have been made when
transmitted by hand delivery, commercial overnight delivery service,
telegram, telex, telecopier or facsimile transmission, when confirmed,
to
the party entitled to receive the same at the address indicated below
or
at such other address as such party shall have specified by written
notice
to the other parties hereto given in accordance
herewith:
|
| (i) |
if
to ▇▇▇▇, addressed to:
|
▇▇.
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with
a
copy to:
▇▇▇▇▇▇
& Jaclin, LLP
▇▇▇
▇▇▇▇▇
▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
| (ii) |
if
to Holdings, addressed to:
|
Wireless
Holdings, Inc.
▇▇▇
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇▇▇▇, President
with
a
copy to:
H2Diesel,
Inc.
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇
▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
▇▇▇ ▇. ▇▇▇▇▇, President
8
with
an
additional copy to:
▇▇▇▇▇▇▇▇▇
Traurig, P.A.
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
| (d) |
Headings.
The section and subsection headings in this Agreement are inserted
for
convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
|
| (e) |
Counterparts.
This Agreement may be executed simultaneously in two or more counterparts,
each of which shall be deemed an original, but all of which together
shall
constitute one and the same
instrument.
|
| (f) |
Governing
Law.
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Florida, without reference
to the
conflict of laws principles thereof that would cause the laws of
another
jurisdiction to apply. Holdings and ▇▇▇▇ consent to the exclusive
jurisdiction and venue of the Courts of the State of Florida located
in
Palm Beach County and the United States District Court of the Southern
District of Florida in connection with any claim or controversy arising
out of or relating to this
Agreement.
|
| (g) |
Binding
Effect and Assignment.
This Agreement shall be binding upon the parties hereto and inure
to the
benefit of the parties, their respective heirs, administrators, executors,
successors and assigns. This Agreement may be assigned by either
party;
provided, however, that the appropriate permission has been given
by those
governmental entities whose permission may be necessary to effect
the
performance of this Agreement.
|
| (h) |
Time.
Time is of the essence with respect to the obligations of the parties
under this Agreement.
|
| (i) |
Assignment.
This Agreement shall inure to the benefit of and be binding upon
the
parties hereto and their respective directors, officers, heirs, legal
representatives, attorneys, successors and
assigns.
|
| (j) |
Severability.
If any part of this Agreement is deemed to be unenforceable the balance
of
the Agreement shall remain in full force and
effect.
|
| (k) |
Entire
Agreement.
This Agreement constitutes the entire agreement and supersedes all
prior
agreements and understandings, whether oral or written, between the
parties hereto with respect to the subject matter hereof. This Agreement
may not be amended orally, but only by an instrument in writing signed
by
each of the parties to this
Agreement.
|
9
IN
WITNESS WHEREOF, the parties have executed this Agreement the day and year
first
above written.
SELLER:
WIRELESS
HOLDINGS, INC.
By: /s/
▇▇▇▇▇▇ ▇. ▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇
Title:
President
▇▇▇▇:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇
▇.
▇▇▇▇
SUBSIDIARY:
Accepted
and agreed to by the Subsidiary
(solely
with respect to Section 7(b)
hereof):
ACTION
WIRELESS, INC.
By: ▇▇▇▇▇▇
▇. ▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇
Title:
President
10
EXHIBIT
A
ASSETS
AND LIABILITIES OF ACTION WIRELESS, INC.
ASSETS
None.
LIABILITIES
None.
11
EXHIBIT
B
RIGHTS
OF ACTION WIRELESS, INC.
Rights
to
be transferred pursuant to this Agreement:
The
right
to use the Name “Action Wireless, Inc.”
All
agreements, both written and oral entered into prior to the date hereof of
Holdings relating to the Subsidiary’s business.
12
EXHIBIT
C
LIABILITIES
None.