September 18, 0000
Xxxx Xxxxx Financial, Ltd.
c/x Xxxxxxx Capital Corp.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
This letter sets forth the agreement of Pine Ridge
Financial, Ltd. (the "Purchaser") and Metawave Communications
Corporation (the "Company") regarding the purchase by the
Purchaser from the Company of shares of the Company's common
stock, $0.0001 par value (the "Common Stock"), on the date hereof
(the "Agreement"). The parties agree as follows:
1. This Agreement relates to the purchase by the Purchaser of
480,075 shares of Common Stock at a per share price of $2.09 for
an aggregate purchase price of $1,003,357.00, which purchase is
to be settled by the parties on Wednesday, September 19, 2001
(the "Settlement Date"). On the Settlement Date, the Company
will deliver the shares of Common Stock to be purchased pursuant
to the terms hereof to the Purchaser via DWAC to a DTC account
designated by the Purchaser and the Purchaser will wire to the
Company the aggregate purchase price therefor.
2. The Company represents and warrants that: (a) the Company is
a corporation duly incorporated, validly existing and in good
standing under the laws of Delaware, (b) the Company has the
requisite corporate power and authority to enter into and perform
this Agreement and to issue and sell the Common Stock in
accordance with the terms hereof, (c) the execution, delivery and
performance of this Agreement by the Company and the consummation
by it of the transactions contemplated hereby have been duly and
validly authorized by all necessary corporate action, (d) a copy
of the duly executed resolutions of the Board of Directors of the
Company is attached hereto as Exhibit "A," (e) this Agreement has
been duly executed and delivered on behalf of the Company by a
duly authorized officer and (f) this Agreement constitutes, or
shall constitute when executed and delivered, a valid and binding
obligation of the Company enforceable against the Company in
accordance with its terms
3. The Company represents and warrants that the Common Stock to
be issued under this Agreement has been duly authorized by all
necessary corporate action and, when paid for or issued in
accordance with the terms hereof, the Common Stock shall be
validly issued and outstanding, fully paid, nonassessable and
free and clear of all liens, encumbrances, rights of first
refusal and trading restrictions, and the Purchaser shall be
entitled to all rights accorded to a holder of Common Stock.
4. The Company represents and warrants that: (a) the shares of
Common Stock to be issued by the Company to the Purchaser
hereunder have been registered under the Securities Act of 1933,
as amended (the "Securities Act"), pursuant to a registration
statement on Form S-3, Commission File Number 333-61470 (the
"Registration Statement"); and (b) the Company has filed or will
file with the Securities an Exchange Commission (the
"Commission") a prospectus supplement to the Registration
Statement in connection with this transaction and on the
Settlement Date, the Company shall deliver to the Purchaser a
copy of such prospectus supplement.
5. The Company represents and warrants that the execution,
delivery and performance of this Agreement by the Company and the
consummation by the Company of the transaction contemplated
hereby does not and will not (i) conflict with or violate any
provision of the Company's certificate or articles of
incorporation, bylaws or other charter documents (each as amended
through the date hereof), or (ii) conflict with, or constitute a
default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation (with or
without notice, lapse of time or both) of, any agreement, credit
facility, debt or other instrument or other understanding to
which the Company is a party or by which any material property or
asset of the Company is bound or affected, or (iii) result in a
violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or govern
mental authority to which the Company is subject (including
federal and state securities laws and regulations).
6. Except for certain fees payable by the Company to Xxxxxxx
Capital Partners, Ltd. and Xxxxxxx Capital Markets, LLC, no fees
or commissions will be payable by the Company to any broker,
financial advisor or consultant, finder, placement agent,
investment banker, bank or other Person with respect to the
transactions contemplated by this Agreement. The Purchaser shall
have no obligation with respect to any fees or with respect to
any claims made by or on behalf of other persons for fees of a
type contemplated in this paragraph that may be due in connection
with the transactions contemplated by this Agreement. The
Company shall indemnify and hold harmless the Purchaser, its
employees, officers, directors, agents, partners and affiliates,
from and against all claims, losses, damages, costs (including
the costs of preparation and attorney's fees) and expenses
suffered in respect of any such claimed or existing fees, as such
fees and expenses are incurred.
7. The Company has taken or will take all action necessary on
its part to list the shares of Common Stock for trading on the
NASDAQ system or any relevant market or system, if applicable.
8. The Company will continue to take all action necessary to
continue the listing or trading of the Common Stock on the NASDAQ
National Market or any relevant market or system, if applicable,
and will comply in all respects with the Company's reporting,
listing (including, without limitation, the listing of the Common
Stock purchased by the Purchaser) or other obligations under the
rules of the NASDAQ National Market or any relevant market or
system.
9. The Company has delivered or made available to the Purchaser
true and complete copies of the filings filed with the Commission
since December 31, 2000 (collectively, the "Commission Filings").
The Company has not provided to the Purchaser any information
which, according to applicable law, rule or regulation, should
have been disclosed publicly by the Company but which has not
been so disclosed, other than with respect to the transactions
contemplated by this Agreement. As of their respective dates,
each of the Commission Filings complied in all material respects
with the requirements of the Securities Exchange Act of 1934 (the
"Exchange Act") and the rules and regulations of the Commission
promulgated thereunder and other federal, state and local laws,
rules and regulations applicable to such documents, and, as of
their respective dates, none of the Commission Filings referred
to above contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
The financial statements of the Company included in the
Commission Filings comply as to form in all material respects
with applicable accounting requirements and the published rules
and regulations of the Commission or other applicable rules and
regulations with respect thereto. No event or circumstance has
occurred or exists with respect to the Company or its
subsidiaries or their respective businesses, properties,
prospects, operations or financial condition, which, under
applicable law, rule or regulation, requires public disclosure or
announcement by the Company but which has not been so publicly
announced or disclosed.
10. The Company will promptly notify the Purchaser of: (a) any
stop order or other suspension of the effectiveness of the
Registration Statement and (b) the happening of any event as a
result of which the prospectus included in the Registration
Statement includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein, or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
11. The Company may not issue a press release or otherwise make
a public statement or announcement with respect to the completion
of the transaction contemplated hereby without the prior consent
of the Purchaser.
12. The Company will indemnify the Purchaser as provided in
Exhibit "B" attached hereto against liability with respect to the
Registration Statement (including, without limitation, the
prospectus supplement) relating to the shares of Common Stock
sold by the Company to the Purchaser hereunder. For purposes of
said Exhibit B, capitalized terms used therein without definition
shall have the same meanings therein as are ascribed to said
terms in this Agreement.
13. This Agreement and the legal relations between the parties
hereto with respect to any purchase of Common Stock by the
Purchaser hereunder shall be governed and construed in accordance
with the substantive laws of the State of New York without giving
effect to the conflicts of law principles thereunder. Each party
hereby irrevocably submits to the exclusive jurisdiction of the
state and federal courts sitting in the City of New York, borough
of Manhattan, for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby
or discussed herein (including with respect to the enforcement of
this Agreement), and hereby irrevocably waives, and agrees not to
assert in any suit, action or proceeding, any claim that it is
not personally subject to the jurisdiction of any such court,
that such suit, action or proceeding is improper. Each party
hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or
proceeding by mailing a copy thereof via registered or certified
mail or overnight delivery (with evidence of delivery) to such
party at the address in effect for notices to it under this
Agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to
serve process in any manner permitted by law.
14. The obligation of the Purchaser to acquire and pay for
shares of Common Stock under this Agreement on the Settlement
Date is conditioned upon the Registration being effective as to
all such shares and upon the Registration Statement not being
subject to any actual, pending or threatened stop order on the
Settlement Date.
15. The parties agree that the stock sale contemplated by their
agreement dated September 4, 2001 will not be consummated due to
the events of September 11, 2001 and the subsequent closure of
the NASDAQ.
Delivery of an executed copy of a signature page to this
Agreement by facsimile transmission shall be effective as
delivery of a manually executed copy of this Agreement and shall
be effective and enforceable as the original. Please execute a
copy of this Agreement which, when executed by the Purchaser,
will constitute an agreement between the Company and the
Purchaser.
Very truly yours,
METAWAVE COMMUNICATIONS CORPORATION
By: /s/Xxxxxxx Xxxxxx-Xxxxx
Name: Xxxxxxx Xxxxxx-Xxxxx
Title:VP, General Counsel &
Secretary
AGREED TO:
PINE RIDGE FINANCIAL, LTD.
By: /s/ Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Title: Attorney-in-Fact
