SETTLEMENT AGREEMENT AND RELEASE
Exhibit
10.11
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:
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1.
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Terms of
Settlement.
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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.
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2.
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Representations and
Warranties of Newlook.
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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:
Newlook Industries
Corp.
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
Newlook Industries
Corp.
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.
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WIRELESS
AGE COMMUNICATIONS, INC.
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By:
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Name:
Title:
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NEWLOOK
INDUSTRIES CORP.
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By:
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Name:
Title:
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