SETTLEMENT AGREEMENT AND RELEASE
SETTLEMENT
AGREEMENT AND RELEASE
This
Settlement Agreement and Release
(this “Agreement”) is made and entered into on June 29, 2007 by
and among Newlook Industries Corp. (“Newlook”) and Wireless Age
Communications, Inc. (“Wireless Age,” and together with Newlook, each a
“Party” and collectively the “Parties”):
WHEREAS,
on August 3, 2006, Wireless Age entered into a Preferred Stock Purchase
Agreement (the “Xxxxxx Purchase Agreement”) with Xxxxxx Partners LP
(“Xxxxxx”), pursuant to which Xxxxxx acquired Series A Preferred Shares
and warrants to purchase shares of Wireless Age’s common stock; and
WHEREAS,
at the closing of the Xxxxxx Purchase Agreement on August 3, 2006 (the
“Closing”), Wireless Age received $1,000,000 cash from Xxxxxx and issued
7,142,900 Series A Convertible Preferred Shares, each convertible into one
share
of common stock (the “Series A Preferred Shares”) and warrants to
purchase 7,500,000 common shares at a purchase price of $0.25 per share (the
“Series A Warrant”) and 7,500,000 common shares at a purchase price of
$0.50 per share (the “Series B Warrant” and together with the Series A
Warrant, the “Warrants”); and
WHEREAS,
it was agreed pursuant to the Xxxxxx Purchase Agreement that the exercise prices
for the Warrants and the conversion price for the Series A Preferred Shares
would be subject to certain proportional and percentage adjustments, in respect
of Wireless Age’s earnings per share for the fiscal years ended 2006 and 2007;
and
WHEREAS,
on January 3, 2007, Xxxxxx converted 1,350,000 Series A Preferred
Shares to 1,350,000 common shares; and
WHEREAS,
on February 8, 2007, Xxxxxx converted 1,600,000 Series A Preferred Shares to
1,600,000 common shares; and
WHEREAS,
Wireless Age failed to meet certain pre-tax earnings per share targets during
the year ended December 31, 2006, and the conversion rate of the remaining
4,192,900 Series A Preferred Shares was amended so that they convert into
8,385,800 common shares, the exercise price on the Series A Warrants was reduced
from $0.25 to $0.125 per share and the exercise price of the Series B Warrants
was reduced from $0.50 to $0.25 per share; and
WHEREAS,
on April 30, 2007, Wireless Age was informed that Newlook exercised an option
to
acquire certain Wireless Age securities held by Xxxxxx, including (i) all of
Xxxxxx’x Series A Preferred Shares; (ii) Series A Warrants to purchase 5,000,000
shares of common stock; and (iii) Series B Warrants to purchase 5,000,000 shares
of common stock; and
WHEREAS,
it is anticipated that Wireless Age will fail to meet certain pre-tax earnings
per share targets during the year ended December 31, 2007, and the conversion
rate of the remaining 4,192,900 Series A Preferred Shares will be amended such
that they convert into 16,771,600 common shares, the exercise price on the
Series A Warrants be reduced from $0.125 to $0.0625 per share and the exercise
price of the Series B Warrants be reduced from $0.25 to $0.125 per share;
and
WHEREAS,
certain covenants contained in the Xxxxxx Purchase Agreement placed restrictions
on the composition of Wireless Age’s Board (the “Board”), including
requirements that (i) Wireless Age increase the membership of the Board to
five
persons; and (ii) a majority of the Board must be qualified independent
directors, with a majority of outside directors serving on the audit and
compensation committees of the Board, within 30 days of the Closing;
and
WHEREAS,
effective February 4, 2007 the aforementioned requirements regarding the Board’s
composition were breached; and
WHEREAS,
Wireless Age and Newlook wish
to resolve through agreement any claims that may have arisen or could arise
between those parties.
NOW,
THEREFORE, the Parties agree as
follows:
1. Terms
of Settlement.
Upon
the execution of this Agreement
(the “Effective Date”):
1.1 Issuance
of Common Stock. Wireless Age will issue to Newlook an
aggregate number of 26,638,267 shares of the common stock of Wireless Age,
as
set forth below (such shares are collectively referred to herein as the
“Settlement Shares”) as follows:
1.1.1 16,771,600
restricted shares of Wireless Age’s common stock shall be issued to Newlook in
exchange for, and in lieu of any and all rights to the 4,192,900 Series A
Preferred Shares currently held by Newlook.
1.1.2 6,666,667
restricted shares of Wireless Age’s common stock shall be issued to Newlook in
exchange for, and in lieu of any and all rights to (i) the Series A Warrants
to
purchase 5,000,000 shares of the common stock of Wireless Age; and (ii) the
Series B Warrants to purchase 5,000,000 shares of the common stock of Wireless
Age currently held by Newlook.
1.1.3 3,200,000
restricted shares of Wireless Age’s common stock shall be issued to Newlook in
settlement of any and all claims Newlook may have or make in connection with
the
composition of Wireless Age’s Board, pursuant to the Xxxxxx Purchase Agreement
or otherwise.
1.2 Board
of Directors. Upon execution hereof by the Parties, the
Board of Directors of Wireless Age shall appoint Xx. Xxxxx Xxxxxxx, the Chief
Financial Officer of Newlook, as a member of the Wireless Age Board
of Directors. Xx. Xxxxxxx shall serve on the Board with such rights
and powers as other members of the Board until the next Annual Meeting of the
Shareholders of Wireless Age. Xx. Xxxxxxx shall not be compensated
for service on, and rendered to, the Board.
1.3 Waiver. In
consideration for the provisions of Section 1.1 and 1.2 hereof, Newlook hereby
waives any all rights it may currently have or have possessed in the past in
the
securities or property of Wireless Age, or to any payments by Wireless Age,
including but not limited to any of Newlook’s rights pursuant to the Xxxxxx
Purchase Agreement, that certain Registration Rights Agreement between
Wireless Age and Xxxxxx Partners L.P. dated August 3, 2006, that certain Common
Stock Purchase Warrant “A” issued by Wireless Age Communication, Inc. to Xxxxxx
Partners L.P. dated August 3, 2006 or that certain Common Stock Purchase Warrant
“B” issued by Wireless Age Communication, Inc. to Xxxxxx Partners L.P. dated
August 3, 2006.
1.4 Release. In
consideration for the provisions of Section 1.1 and 1.2 hereof, Newlook hereby
covenants and agrees (on behalf of itself and all of its current and former
parents, subsidiaries, affiliated entities, predecessors, successors, officers,
directors, shareholders, partners, general partners, limited partners, members,
managers, agents, attorneys, insurers, and assigns) to fully release and
discharge Wireless Age (and its current and former parents, subsidiaries,
affiliated entities, predecessors, successors, officers, directors,
shareholders, partners, general partners, limited partners, members, managers,
employees, agents, attorneys, and assigns), of and from any and all liability,
claims, demands, actions, causes of action, suits, grievances, debts, sums
of
money, agreements, promises, damages, back and front pay, costs, expenses,
attorneys’ fees, and remedies of any nature, kind, type, and description,
whether known or unknown, suspected or unsuspected, that arose or may have
arisen through the Effective Date which relate to the relationship or dealings
between Wireless Age, on the one hand, and either Xxxxxx or Newlook, on the
other hand, including but not limited to any claims that were brought or could
have been brought in connection with any breach of the Xxxxxx Purchase
Agreement, that certain Registration Rights Agreement between Wireless Age
and Xxxxxx Partners L.P. dated August 3, 2006, that certain Common Stock
Purchase Warrant “A” issued by Wireless Age Communication, Inc. to Xxxxxx
Partners L.P. dated August 3, 2006 or that certain Common Stock Purchase Warrant
“B” issued by Wireless Age Communication, Inc. to Xxxxxx Partners L.P. dated
August 3, 2006.
1.5 The
waivers and releases contained in Sections 1.3 and 1.4 hereof are contractual
in
nature and also constitute covenants not to xxx on any matter waived or
released.
2. Representations
and Warranties of Newlook.
Newlook
represents and warrant to Wireless Age as follows:
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2.1
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Organization
and Good Standing of
Newlook.
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Newlook
is a corporation duly formed, validly existing and in good standing under the
laws of its jurisdiction of incorporation.
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2.2
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Authority
and Capacity.
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Newlook
possess all requisite legal right, power, authority and capacity to execute,
deliver and perform this Agreement, and each other agreement, instrument and
document to be executed and delivered to consummate the transactions
contemplated herein and therein.
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2.3
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Ownership
of Shares.
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Newlook
is sole beneficial and record owner of (i) the 4,192,900 Series A Preferred
Shares; (ii) the Series A Warrants to purchase 5,000,000 shares of the common
stock of Wireless Age; and (iii) the Series B Warrants to purchase 5,000,000
shares of the common stock to be transferred and cancelled hereby (the
“Newlook Securities”), and has good and marketable title to the Newlook
Securities, free and clear of all Liens. No other Person has any
right, title or interest in the Newlook Securities, contingent or otherwise,
or
any option or other right to acquire the Newlook Securities or claim any direct
or indirect interest in the Newlook Securities (including but not limited to
Xxxxxx). The Newlook Securities are not subject of any domestic
consent decree or domestic relations order.
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2.4
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Execution
and Delivery;
Enforceability.
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The
execution, delivery and performance of this Agreement has been duly authorized
by all requisite corporate action of Newlook. At the Effective Date,
this Agreement shall constitute the valid and binding obligations of Newlook
enforceable against Newlook in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation, conservatorship, receivership or
similar laws relating to, or affecting generally the enforcement of, creditors'
rights and remedies or by other equitable principles of general
application. Newlook is not a party to, subject to, or bound by any
order of any governmental authority, or any agreement which would prevent the
execution or delivery of this Agreement by Newlook or the transfer of the
Newlook Securities to Wireless Age.
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2.5
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Noncontravention.
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2.5.1 Newlook
is not required to submit any notice, report or other filing with any
governmental authority in connection with its execution, delivery or performance
of this Agreement or any other document, instrument or agreement to be executed
and delivered by Newlook in connection herewith, (ii) such execution, delivery
and performance will not result in a breach or violation of, or constitute
a
default (or an event that, with notice or lapse of time, or both, would
constitute a default) under, or give rise to a right of any party to accelerate,
amend, modify or terminate, or require payments under, or require the
authorization, consent or approval from any third party or result in the
creation of any lien upon such Newlook Securities, pursuant to any agreement
to
which Newlook is a party, and (iii) no consent, approval or authorization of
any
governmental authority or any other person is required to be obtained by Newlook
in connection with its execution, delivery and performance of this Agreement
or
any other document, instrument or agreement to be executed and delivered by
Newlook in connection herewith or the consummation of the transactions
contemplated hereby or thereby.
2.5.2 The
execution and delivery by Newlook of this Agreement and any other document,
instrument or agreement to be executed and delivered by Newlook in connection
herewith and the consummation by Newlook of the transactions contemplated hereby
and thereby will not conflict with or violate any laws applicable to Newlook
or
by which any of its properties or assets are bound or are subject.
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2.6
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Legal
Proceedings.
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There
is
no order and no action, suit, arbitration, proceeding, investigation or claim
of
any kind whatsoever, at law or in equity, pending or, to Newlook’s knowledge,
threatened against Newlook, which would give a third party the right to enjoin
or rescind the transactions contemplated by this Agreement or otherwise prevent
Newlook from complying with the terms and provisions of this
Agreement.
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2.7
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Accredited
Investor.
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Newlook
is an “accredited investor” as
such term is defined in Rule 501(a) of Regulation D promulgated under he
Securities Act of 1933, as amended (the “Securities Act”) and Wireless
Age may fully rely upon Rule 506 of Regulation D in such regard and for purposes
of construing the Acquisition as a Business Combination as such term is defined
in Rule 501(d) of Regulation D.
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2.8
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Representations
Regarding Settlement
Shares.
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2.8.1 Own
Account. Newlook is acquiring the Settlement Shares for its own
account as principal, and not as a nominee or agent; for investment purposes
only, and not with a view to, or for, resale, distribution or fractionalization
thereof in whole or in part; and no other person has a direct or indirect
beneficial interest in such Settlement Shares or any portion
thereof. Newlook has no contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant participations in the
Settlement Shares to such person or to any third person.
2.8.2 No
Advertisement. Newlook is not acquiring the Settlement
Shares as a result of or subsequent to any advertisement, article, notice or
other communication published in any newspaper, magazine or similar media or
broadcast over television or radio, or presented at any seminar or meeting,
or
pursuant to any solicitation of a subscription by a person not previously known
to Newlook in connection with investment securities generally.
2.8.3 No
Obligation to Register. Newlook understands that
Wireless Age is not under any obligation to register the Settlement Shares
under
the Securities Act, or to assist Newlook in complying with the Securities Act
or
the securities laws of any state of the United States or of any foreign
jurisdiction. Newlook understands that the Settlement Shares must be held
indefinitely unless such Settlement Shares are registered under the Securities
Act or an exemption from registration is available. Newlook
acknowledges that it is familiar with Rule 144 of the rules and regulations
of
the Commission, as amended, promulgated pursuant to the Securities Act ("Rule
144"), and that Newlook has been advised that Rule 144 permits resales only
under certain circumstances. Newlook understands that to the extent that Rule
144 is not available, Newlook will be unable to sell any Settlement Shares
without either registration under the Securities Act or the existence of another
exemption from such registration requirement.
2.8.4 Experience.
Newlook is (1) experienced in making investments of the kind described in this
Agreement and the related documents, (2) able, by reason of the business and
financial experience of its officers (if an entity) and professional advisors
(who are not affiliated with or compensated in any way by Wireless Age or any
of
its affiliates or selling agents), to protect its own interests in connection
with the transactions described in this Agreement, and the related documents,
and (3) able to afford the entire loss of its investment in the Settlement
Shares.
2.8.5 Exemption
from Registration. Newlook acknowledges its
understanding that the offering and sale of Settlement Shares is intended to
be
exempt from registration under the Securities Act. In furtherance
thereof, in addition to the other representations and warranties of Newlook
made
herein, Newlook further represent and warrant to and agree with Wireless Age
as
follows:
(i) Newlook
realizes that the basis for the exemption may not be present if, notwithstanding
such representations, Newlook is acquiring the Settlement Shares for a fixed
or
determinable period in the future, or for a market rise, or for sale if the
market does not rise. Newlook does not have any such
intention.
(ii) Newlook
has adequate means for providing for its current needs and personal
contingencies and has no need for liquidity with respect to the acquisition
of
the Settlement Shares.
(iii) Newlook
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
Settlement Shares.
(iv) Newlook
has been provided an opportunity for a reasonable period of time prior to the
date hereof to obtain all publicly available information concerning Wireless
Age.
2.8.6 No
General Solicitation or Advertising in Regard to this
Transaction. Newlook acknowledges that neither Wireless
Age, nor any of its affiliates nor any person acting on their behalf solicited
Newlook either (1) in connection with any general solicitation (as such term
is
used in Rule 502(c) of Regulation D) or general advertising with respect to
any
of the Settlement Shares, or (2) made any offers or sales of any security or
solicited any offers to buy any security under any circumstances that would
require registration of the Settlement Shares under the Securities
Act.
2.8.7 Private
Transaction. Newlook acknowledges that this Agreement and the
transactions contemplated hereby have been made pursuant to the exemption from
registration under Section 4(2) of the Securities Act, as a non-public
transaction that was privately negotiated by the parties hereto and their
respective legal and other professional advisors. Newlook hereby acknowledges
that no information regarding this Agreement or the offer and sale of the
Settlement Shares contemplated hereby has been disseminated by Newlook to any
third parties, other than Newlook’s legal counsel and/or professional business
advisors.
2.8.8 Risk.
Newlook understands that an investment in the Settlement Shares is a speculative
investment which involves a high degree of risk and the potential loss of its
entire investment.
2.8.9 SEC
Documents. Newlook has had an opportunity to review all of the SEC
Reports filed by Wireless Age under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") which are publicly available on the SEC’s
website at xxx.xxx.xxx.
2.8.10 Reliance.
Other than as set forth herein, Newlook is not relying upon any other
information, representation or warranty by Wireless Age, or any officer,
director, stockholder, agent or representative of Wireless Age in determining
to
invest in the Settlement Shares. Newlook has consulted, to the extent
deemed appropriate by Newlook, with Newlook’s own advisers as to the financial,
tax, legal and related matters concerning an investment in the Settlement Shares
and on that basis believes that its investment in the Settlement Shares is
suitable and appropriate for Newlook.
2.8.11 No
Governmental Review. Newlook is aware that no federal or
state agency has (1) made any finding or determination as to the fairness of
this investment, (2) made any recommendation or endorsement of the Settlement
Shares or Wireless Age or (3) guaranteed or insured any investment in the
Settlement Shares or any investment made by Wireless Age.
2.8.12 Full
Disclosure. No representation or warranty made by Newlook to
Wireless Age in this Agreement omits to state a material fact necessary to make
the statements herein, in light of the circumstances in which they were made,
not misleading. There is no fact known to Newlook that has specific application
to the Settlement Shares and that materially adversely affects or, as far as
can
be reasonably foreseen, materially threatens the Settlement Shares that has
not
been set forth in this Agreement.
2.8.13 Compliance
Undertakings. Newlook hereby acknowledges that it is acquainted
with the requirements of Section 16 and Section 13(d) of the Securities Exchange
Act of 1934 and the rules and regulations issued thereunder. Newlook
understands that, as a result of its acquisition of the Settlement Shares,
and
in order to comply with Section 16 and Section 13(d) and the rules and
regulations issued thereunder, Newlook may be required to file a report on
Form
3 and a Schedule 13D and Newlook hereby undertakes and agrees to make such
filing in a timely manner if so required.
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2.9
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Reliance
on Representations and
Warranties.
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The
representations and warranties of
Newlook contained herein do not contain any material false statements or
material omissions nor has Newlook or any officer, director, employee, agent,
counsel or accountant of Newlook made any material false statements or material
omissions of material information to any governmental
authority. Notwithstanding the scope of any due diligence on the part
of Wireless Age, Wireless Age may fully rely upon the representations and
warranties of Newlook contained herein as true and complete in all respects
except to the extent qualified by reference to schedules attached hereto or
to
the extent qualified by materiality, and any due diligence on the part of
Wireless Age shall not mitigate the full reliance of Wireless Age on the
representations and warranties contained herein.
3. Stock
Certificates and Legends.
Within
ten (10) days of the Effective Date, Wireless Age shall deliver to Newlook,
at
the address set forth herein, stock certificates for the Settlement
Shares. Each certificate representing the Settlement Shares shall be
stamped or otherwise imprinted with legends substantially in the following
form
(in addition to any legend required by applicable state securities or “blue sky”
laws):
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE (THE "SECURITIES") HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR ANY
STATE
SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT
(1)(A) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE ACT (IF AVAILABLE) OR ANOTHER THEN AVAILABLE EXEMPTION UNDER THE ACT AND
STATE SECURITIES LAWS, OR (B) IN A TRANSACTION THAT DOES NOT REQUIRE
REGISTRATION UNDER THE ACT OR ANY APPLICABLE STATE LAWS, AND WHEREIN WIRELESS
AGE COMMUNICATIONS, INC. SHALL HAVE RECEIVED AN OPINION OF COUNSEL THAT
REGISTRATION OF SUCH SECURITIES UNDER THE ACT AND UNDER THE PROVISIONS OF
APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED, OR (C) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE ACT (AND
WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER); AND (2) PRIOR
TO
ANY SUCH TRANSFER, IT WILL FURNISH TO WIRELESS AGE COMMUNICATIONS, INC. AND
THE
TRANSFER AGENT FOR THE COMMON STOCK SUCH CERTIFICATIONS, LEGAL OPINIONS, OR
OTHER INFORMATION AS WIRELESS AGE COMMUNICATIONS, INC. OR SUCH TRANSFER AGENT
MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT
TO
AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE ACT OR STATE SECURITIES LAWS; AND (3) IT WILL DELIVER TO
EACH PERSON TO WHOM THE SECURITIES EVIDENCED HEREBY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. FURTHERMORE, HEDGING
TRANSACTIONS INVOLVING THE SECURITIES EVIDENCED HEREBY MAY NOT BE CONDUCTED
UNLESS IN COMPLIANCE WITH THE ACT.
Wireless
Age agrees to reissue certificates representing any of the Settlement Shares
without the legend set forth above if at such time, prior to making any transfer
of any such Settlement Shares, such holder thereof shall give written notice
to
Wireless Age describing the manner and terms of such transfer and removal as
Wireless Age may reasonably request. Such proposed transfer and removal will
not
be effected until: (a) either (i) Wireless Age has received an opinion of
counsel reasonably satisfactory to Wireless Age, to the effect that the
registration of the Settlement Shares under the Securities Act is not required
in connection with such proposed transfer; (ii) a registration statement under
the Securities Act covering such proposed disposition has been filed by Wireless
Age with the Commission and has become effective under the Securities Act;
(iii)
Wireless Age has received other evidence reasonably satisfactory to Wireless
Age
that such registration and qualification under the Securities Act and state
securities laws are not required; or (iv) the holder provides Wireless Age
with
reasonable assurances that such security can be sold pursuant to Rule 144 under
the Securities Act; and (b) either (i) Wireless Age has received an opinion
of
counsel reasonably satisfactory to Wireless Age, to the effect that registration
or qualification under the securities or “blue sky” laws of any state is not
required in connection with such proposed disposition; or (ii) compliance with
applicable state securities or “blue sky” laws has been effected or a valid
exemption exists with respect thereto. Wireless Age will respond to any such
notice from a holder within five (5) business days. In the case of any proposed
transfer under this section, Wireless Age will use reasonable efforts to comply
with any such applicable state securities or “blue sky” laws, but shall in no
event be required, (x) to qualify to do business in any state where it is not
then qualified; (y) to take any action that would subject it to tax or to the
general service of process in any state where it is not then subject; or (z)
to
comply with state securities or “blue sky” laws of any state for which
registration by coordination is unavailable to Wireless Age. The restrictions
on
transfer contained in this section shall be in addition to, and not by way
of
limitation of, any other restrictions on transfer contained in any other section
of this Agreement. Whenever a certificate representing the Settlement Shares
is
required to be issued to Newlook without a legend, in lieu of delivering
physical certificates representing the Settlement Shares, provided Wireless
Age’s transfer agent is participating in the Depository Trust Company
(“DTC”) Fast Automated Securities Transfer program,
Wireless Age shall use its commercially reasonable efforts to cause its transfer
agent to electronically transmit the Settlement Shares to Newlook by crediting
the account of Newlook’s Prime Broker with DTC through its Deposit Withdrawal
Agent Commission (“DWAC”) system (to the extent not inconsistent with any
provisions of this Agreement).
4. No
Admission. This Agreement is not an
admission by any of the Parties that any action it has taken or has failed
to
take is or was wrongful, unlawful, in violation of any local, state, or federal
law, statute, or regulation, or susceptible of inflicting any damage or injury
on any of the Parties.
5. Agreement
Not Evidence. This Agreement, its
signing, and its implementation may not be introduced or admitted into evidence
in any proceeding except one brought by any of the Parties claiming that the
terms of this Agreement have been violated.
6. Entire
Agreement. This Agreement contains the
entire agreement and understanding among the Parties concerning the matters
described herein, and supersedes all of the Parties’ earlier agreements,
contracts, discussions, negotiations, understandings, and proposals concerning
such matters. The terms of this Agreement cannot be changed except in
a later document signed by an authorized representative of each of the Parties
which specifically states that it is changing this Agreement.
7. Interpretation. This
Agreement shall be interpreted in accordance with the plain meaning of its
terms
and not strictly for or against any of the Parties. The section
headings in this Agreement shall not affect its meaning.
8. Waiver. A
failure by any of the Parties to insist upon strict compliance with any
provision of this Agreement or to assert any right it may have hereunder will
not be deemed a waiver by that party of such provision or right or of any other
provision of or right under this Agreement.
9. Severability. Each
part of this Agreement shall be severable from the rest, and if a court of
competent jurisdiction finds that any part of this Agreement is invalid, void,
or unenforceable, every other part of this Agreement shall remain in full force
and effect and not in any way affected.
10.
Authority. Each of the Parties
represents and warrants that (a) its signatory to this Agreement has full legal
authority to bind that Party to all terms and conditions of this Agreement,
and
(b) it has not entered into any other agreement, and is not under any obligation
to take or refrain from taking any action, which is inconsistent with any part
of this Agreement or that would in any way limit its ability to perform all
of
its obligations hereunder.
11. Binding
Effect. This Agreement shall be binding
upon the Parties’ respective successors, heirs, assigns, administrators,
executors, and legal representatives.
12. Assignment. None
of the Parties may assign any of its rights or obligations hereunder without
the
prior written consent of all of the other Parties.
13. Governing
Law. All questions concerning the
construction, validity, interpretation, enforcement, or performance of this
Agreement shall be governed by and construed in accordance with the laws of
the
State of Nevada, without regard to any state’s principles of conflicts of
law.
14. Consent
to Jurisdiction and Venue. The parties
agree that any action or proceeding relating to or arising under this Agreement,
including but not limited to any action or proceeding to enforce any part of
this Agreement, shall be brought in the federal courts for the city and state
of
New York. Each of the Parties freely consents and submits to the
personal jurisdiction of those courts, acknowledges and agrees that such courts
are and shall be a proper and convenient forum for resolving any disputes
relating to or arising under this Agreement, and irrevocably waives its right
to
assert that personal jurisdiction is lacking or that venue is inappropriate
or
inconvenient in any such courts.
15. Waiver
of Jury Trial. EACH OF THE PARTIES
KNOWINGLY AND VOLUNTARILY WAIVES ITS RIGHT TO HAVE A JURY HEAR OR DECIDDE ANY
CLAIM RELATING TO OR ARISING UNDER THIS AGREEMENT, AND AGREE THAT ANY SUCH
ACTION OR PROCEEDING SHALL BE TRIED BEFORE A JUDGE AND NOT A JURY.
16. Notices.
16.1 Any
notice required or permitted under this Agreement must be in writing to be
effective, and shall be considered to have been properly given the same day
that
is personally delivered or one (1) business day after it is deposited with
a
nationally known, reputable private delivery service for delivery the earliest
possible next business day, in either case addressed as follows:
If
to
Newlook:
000
Xxxxx
Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxx, Xxxxxx X0X0X0
Attn:
Xxxxx Xxxxxxx, CFO
with
a
simultaneous copy delivered in the same manner to:
Xxxxxx
Xxx
Counsel
000
Xxxxx
Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxx, Xxxxxx X0X0X0
If
to
Wireless Age:
Xxxx
Xxxxxxxx
Chief
Financial Officer
Wireless
Age Communications, Inc.
0000
Xxxxxxxxx Xx., Xxxx 0
Xxxxxxxxxxx,
Xxxxxxx Xxxxxx X0X 0X0
with
a
simultaneous copy delivered in the same manner to:
Xxxxxx
Xxxxxx
Wuersch
& Xxxxxx LLP
000
Xxxx
Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
XX 00000
16.2 Any
of the Parties may change the address to which notices to it should be sent
by
giving notice to all of the other Parties in accordance with Section
23.1.
17. Knowing
and Voluntary Agreement. Each of the
Parties acknowledges that:
17.1 it
has carefully read this Agreement and fully understands its
meaning;
17.2 it
had full and adequate opportunity to review this Agreement with its freely
chosen attorney or attorneys before signing it, and has done so to the full
extent it believes necessary;
17.3 it
is signing this Agreement knowingly, voluntarily, and without any coercion
or
duress; and
17.4 everything
it is receiving for signing this Agreement is described herein, and no other
promises or representations have been made to cause it to sign this
Agreement.
18. Counterparts. This
Agreement may be executed in multiple counterparts, each of which shall be
an
original and all of which together shall constitute but one and the same
instrument.
IN
WITNESS WHEREOF, the Parties have executed and delivered this Agreement, or
have
caused this Agreement to be executed and delivered by their duly authorized
representatives, as of the date first written above.
|
WIRELESS
AGE COMMUNICATIONS, INC.
|
|
By:
|
|
Name:
Xxxx Xxxxxxxx
Title: CFO
|
|
|
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By:
|
|
Name:
Xxxxx Xxxxxxx
Title: CFO
|
