EXECUTION COPY
ASSIGNMENT OF OPTION AGREEMENT
THIS ASSIGNMENT, made and effective as of the 13th day of September,
1999, is from Xxxx X. Xxxxx Consulting, Inc. ("Assignor") to Xxxx Xxxxxxx
("Assignee"), and is consented to by Telecom Wireless Corporation ("Company").
RECITALS. The Company and Assignor entered into a "Common Stock
Purchase Option" dated as of June 1, 1998, and amended as of May 4, 1999 (the
"Option Agreement"), a copy of which is attached hereto and by this reference
made a part hereof. The Option Agreement (as adjusted for the Company's
one-for-five reverse stock split effected on or about May 4, 1999) grants the
Assignor the right to acquire 80,000 Option Shares (as such term is defined
in the Option Agreement) at an exercise price of $2.50 per share (of which
75,000 Option Shares have been exercised by Assignor), an additional 80,000
Option Shares at an exercise price of $3.75 per Option Share and an
additional 100,000 Option Shares at an exercise price of $5.00 per Option
Share. Assignor wishes to assign all of its rights under the Option
Agreement to Assignee and Company wishes to consent to such assignment.
For and in consideration of the premises and the mutual covenants made
herein the parties agree as follows:
1. ASSIGNMENT BY ASSIGNOR. For and in consideration of the sum of $225,000
for the 185,000 Option Shares issuable upon full exercise of the Option
Agreement assigned hereby, paid to Assignor by Assignee, the receipt and
sufficiency of which is hereby acknowledged, Assignor hereby assigns,
transfers, sells and conveys to Assignee all of Assignor's right, title
and interest in and pursuant to the Option Agreement, including the right
to acquire the Option Shares as provided therein.
2. ACCEPTANCE BY ASSIGNEE. By his signature, Assignee hereby accepts such
assignment and expressly assumes and agrees to be bound by the terms of
the Option Agreement and affirms the representations and other provisions
contained Option Agreement as though he were the Assignor.
3, REPRESENTATIONS AND WARRANTIES OF ASSIGNEE. Assignee represents and
warrants to Assignor and the Company, which representations and
warranties shall survive the assignment of the Option Agreement to
Assignee, as follows:
a. The Option (as such term is defined in the Option Agreement) and
the Option Shares issuable upon exercise thereof (collectively,
the "Securities") will be acquired as an investment for Assignee's
own account, not as nominee or agent, and not with a view to the
sale or distribution of any part thereof.
b. Assignee has such knowledge and experience in business and
financial matters as to be capable of evaluating the merits and
risks of the investment
in the Securities, that Assignee has sufficient financial
strength to hold the Securities as an investment and to bear the
economic risks of such investment (including possible complete
loss of such investment) for an indefinite period of time; and
that, during the negotiations of the transactions contemplated
herein, Assignee and Assignee's legal counsel and investment
advisers, if any, have been afforded full and free access to
corporate books, financial statements, records, contracts,
documents, and other information concerning the Company to the
extent such items exist, and to the Company's office and
facilities, and have been afforded an opportunity to ask such
questions of the Company's officers, employees, agents,
accountants, and representatives concerning the Company's
business, operations, financial condition, assets, liabilities,
and other relevant matters as they have deemed necessary or
desirable, and have been given all such information as has been
requested, in order to evaluate the merits and risks of the
prospective investment contemplated herein.
c. Assignee understands that the Option Shares will be, when issued,
restricted securities within the meaning of Rule 144 promulgated
pursuant to the Securities Act of 1933 (the "Securities Act");
that the Option Shares will not be registered and must be held
indefinitely unless they are subsequently registered under the
Securities Act and any applicable state and foreign securities
laws, or unless an exemption from registration is available
thereunder for any proposed transfer thereof.
d. Assignee acknowledges and understands that any and all
certificates representing the Securities and any and all
securities issued in replacement thereof or in exchange therefor
shall bear the following legend, or one substantially similar
thereto, which the Assignee has read and understands:
The shares represented by this Certificate
have not been registered under the Securities
Act of 1933 (the "Act") and are "restricted
securities" as that term is defined in Rule
144 under the Act. The shares may not be
offered for sale, sold or otherwise
transferred except pursuant to an effective
registration statement under the Act or
pursuant to an exemption from registration
under the Act, the availability of which is
to be established to the satisfaction of the
Company.
The Assignee further acknowledges that the Company shall have the
right to give stop transfer instructions to its transfer agent, if
any, or to note stop transfer instructions in its stockholder
records, and acknowledges that the Company has informed the
Assignee of its intention to issue such instructions.
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4. REPRESENTATIONS AND WARRANTIES OF ASSIGNOR. Assignor and Marc L, Xxxxx
jointly and severally represent and warrant to the Assignee and the
Company, which representations and warranties shall survive the
assignment of the Option Agreement to Assignee, that:
a. Assignor has full and valid title to all rights, title and
interests pursuant to the Option Agreement, free and clear of all
claims, liens, encumbrances, security interests, charges, options,
restrictions, preferential rights of purchase or other legal or
equitable encumbrances, limitations or restrictions, and defects
of title of any kind, with full right and power to sell, assign,
and transfer the Option Agreement to the Assignee as provided in
this Agreement.
b. Assignor owns the Option to purchase 5,000 Option Shares at an
exercise price of $2.50 per Option Share, 80,000 Option Shares at
an exercise price of $3.75 per Option Share and 100,000 Option
Shares at an exercise price of $5.00 per Option Share pursuant to
the Option Agreement, which are the only Option Shares remaining
under the Option Agreement as of the date hereof.
c. No event has occurred or failed to occur which, with or without
notice or the passage of time, would or may constitute a default
under or breach of the Option Agreement, which is enforceable in
accordance with its terms. The execution and delivery of this
Agreement and the consummation by the Assignor of the transactions
herein contemplated and the fulfillment by the Assignor of the
terms hereof will not require any consent, approval, authorization
or other order of any entity, court, regulatory body or other
governmental body, other than the Company,
d. Assignor has full right, power, legal capacity, and authority to
execute this Agreement and sell, transfer, and assign to the
Assignee all of its rights, title and interests pursuant to the
Option Agreement, and to perform or observe all of Assignor's
obligations under this Agreement. The Assignor has taken all
action necessary for the authorization, execution, delivery, and
performance of this Agreement and its obligations hereunder, and,
upon execution and delivery by the Assignee, this Agreement shall
constitute the valid and binding obligation of the Assignor,
enforceable against the Assignor in accordance with its terms.
e. In connection with the offer and sale of the Securities and the
assignment of the Option Agreement to Assignee, Assignor has not
made any untrue statement or omitted to state a material fact
necessary in order to make the statements made, in the light of
the circumstances under which they were made, not misleading.
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f, Xxxx X. Xxxxx is the duly elected president of Assignor and is
duly authorized and empowered by Assignor to execute and deliver
this Agreement and to cause Assignor to consummate all
transactions contemplated hereby.
5. CONSENT BY COMPANY. Company hereby irrevocably consents to the
assignment of the Option Agreement pursuant to this Assignment and by
giving such consent shall not be deemed to be a party to this Agreement
for any other purpose.
6. INDEMNIFICATION.
a. Assignor and Xxxx X. Xxxxx, jointly and severally, agree to
indemnify Assignee and the Company and its officers, directors,
affiliates, controlling persons, shareholders, employees, and
agents and the heirs, personal representatives, successors and
assigns of the foregoing (all of whom are hereinafter referred to
as the "Indemnified Persons") and to hold the Indemnified Persons
harmless from and against any and all loss, damage or liability
(including attorney's fees and disbursements) due to or arising
out of a breach of any representation, warranty, acknowledgment or
agreement made by the indemnifying party, or the consent by the
Company to the assignment of the Option Agreement as provided
herein.
b. Assignee agrees to indemnify Assignor, the Company and the
Company's Indemnified Persons and to hold Assignor, the Company
and the Company's Indemnified Persons harmless from and against
any damages arising directly out of a breach of any representation
or warranty made by Assignee as provided herein.
7. MISCELLANEOUS. Except as set forth herein, the Option Agreement shall
remain unchanged and in effect in accordance with its terms, subject to
exercise of a portion of the options by Assignor referred to herein.
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IN WITNESS WHEREOF, each of the Company and Assignor have caused this
Assignment to be executed on its behalf by its officers thereunto duly
authorized and Assignee has executed, all as on the date first above written.
ASSIGNOR:
XXXX X. XXXXX CONSULTING, INC.
By: /s/ Xxxx X. Xxxxx
---------------------------------
Xxxx X. Xxxxx, President
ASSIGNEE:
/s/ Xxxx Xxxxxxx
-------------------------------------
Xxxx Xxxxxxx
Agreed to and acknowledged by:
TELECOM WIRELESS CORPORATION
By: /s/ Xxx X. Xxxxxx
---------------------------------
Name: Xxx X. Xxxxxx
Title: General Counsel
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EXECUTION COPY
ADDENDUM TO
TELECOM WIRELESS CORPORATION
COMMON STOCK PURCHASE OPTION
This agreement is an addendum (the "Addendum") dated as of May 4, 1999
to the Telecom Wireless Corporation Common Stock Purchase Option dated as of
June 1, 1998 (the "Option Agreement") between Xxxx X. Xxxxx Consulting, Inc.
(the "Holder") and Telecom Wireless Corporation (the "Company"). The terms of
this Addendum are supplemental to the Option Agreement, and the Option
Agreement shall be deemed amended as appropriate. The defined terms used
herein shall, unless the context otherwise requires, have the same meanings
as used in the Option Agreement.
WHEREAS, the Company effected a one-for-five stock split on or about
May 4, 1999.
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein, it is hereby agreed as follows:
1. Section 1(A) of the Option Agreement shall be deleted and
replaced in its entirety by the following:
"(A) TIME AND PRICE. The Holder of the Option, or Holder's designees,
may exercise the Option as follows: with respect to 5,000 Option Shares (the
"First Option"), which shall be exercisable at an exercise price of $2.50 per
Option Share provided that the bid price shall be at least $5.00 per share at
the date of exercise of the First Option, commencing on the date first set
forth above and expiring after three years at the end of business on June 1,
2001 (the "Option Period"); with respect to 80,000 Option Shares (the "Second
Option"), which shall be exercisable at an exercise price of $3.75 per Option
Share provided that the bid price shall be at least $7.50 per share at the
date of exercise of the Second Option, commencing on the date first set forth
above and expiring at the end of the Option Period; and with respect to
100,000 Option Shares (the "Third Option"), which shall be exercisable at an
exercise price of $5.00 per Option Share provided that the bid price shall be
at least $10.00 per share at the date of exercise of the Third Option,
commencing on the date first set forth above and expiring at the end of the
Option Period. The Options granted hereunder shall be deemed exercised in
whole or in part when the Holder shall indicate its decision to do so in
writing to the Company and tender payment by check payable to the Company for
the number of Option Shares being exercised from time to time, as provided
hereinbelow."
2. Section 1(c) of the Option Agreement, "Additional Rights of
Holder," is hereby deleted in its entirety as the provisions thereof have
been performed by the parties. 3. Section 4 of the Option Agreement
shall be deleted and replaced in its entirety by the following:
4. OPTION SHARES NOT REGISTERED.
The certificates representing Option Shares issued upon exercise of the
Option, unless and until the Option shares shall be registered on a Form S-1
Registration Statement or such other form as may be appropriate under the Act
or pursuant to an exemption from the registration provisions under the Act,
shall bear the following legend:
The shares represented by this Certificate have not
been registered under the Securities Act of 1933
(the "Act") and are "restricted securities" as that
term is defined in Rule 144 under the Act. The
shares may not be offered for sale, sold or
otherwise transferred except pursuant to an
effective registration statement under the Act or
pursuant to an exemption from registration under the
Act, the availability of which is to be established
to the satisfaction of the Company."
4. Section 7 of the Agreement shall be modified as follows:
"If to the Company, to:
Telecom Wireless Corporation
0000 XXX Xxxx., 00xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xx. Xxxxx X. Xxxxxxx, Chief Executive Officer
Xxx X. Xxxxxx, General Counsel"
5. In the event this Addendum is found void or unenforceable, the
Option Agreement shall be deemed canceled and the Option described therein
shall be reissued to the Holder by the Company in accordance with the terms
contained herein and the balance of the Option Agreement.
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This Addendum may be executed in one or more counterparts, each of
which shall be deemed an original. If you are in agreement with the
foregoing terms, please so indicate by signing and returning one copy of this
Addendum, whereupon this Addendum will constitute the agreement of the
Company and the Holder with respect to the subject matter hereof.
TELECOM WIRELESS CORPORATION
By: /s/ Xxx X. Xxxxxx
------------------------------------
Name: Xxx X. Xxxxxx
Title: General Counsel
Authorized Signatory
XXXX X. XXXXX CONSULTING, INC.
By:
------------------------------------
Name: Xxxx X. Xxxxx
Title: President
Authorized Signatory
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This Addendum may be executed in one or more counterparts, each of
which shall be deemed an original. If you are in agreement with the
foregoing terms, please so indicate by signing and returning one copy of this
Addendum, whereupon this Addendum will constitute the agreement of the
Company and the Holder with respect to the subject matter hereof.
TELECOM WIRELESS CORPORATION
By:
------------------------------------
Name:
Title:
Authorized Signatory
XXXX X. XXXXX CONSULTING, INC.
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: President
Authorized Signatory
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THE COMMON STOCK PURCHASE OPTION REPRESENTED BY THIS AGREEMENT (THE "OPTION")
AND THE SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE OF THE OPTION (THE
"OPTION SHARES") HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"), AND THEREFORE MAY BE SOLD, TRANSFERRED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF ONLY IN ACCORDANCE WITH THE ACT,
INCLUDING THE REGISTRATION PROVISIONS THEREIN CONTAINED OR PROVIDED AN
EXEMPTION FROM REGISTRATION IS AVAILABLE UNDER THE ACT, AND SUBJECT TO THE
OPINION OF XXXXXX X. XXXXX, XX., ESQ., COUNSEL TO TELECOM WIRELESS
CORPORATION.
TELECOM WIRELESS CORPORATION
COMMON STOCK PURCHASE OPTION
THIS IRREVOCABLE COMMON STOCK PURCHASE OPTION (the "Option") dated as
of this 1st day of June, 1998, is exercisable for an aggregate of 1,300,000
shares of common stock (the "Option Shares") of Telecom Wireless Corporation
(the "Company"), and is hereby granted to Xxxx X. Xxxxx Consulting, Inc. (the
"Holder"), at the prices and subject to the terms and conditions contained
herein. This Option is in addition to those rights and agreements by and
between the Company and Holder, including but not limited to a Consulting
Agreement dated as of June 1, 1998, an Agreement and Plan of Merger dated as
of Mav 22, 1998, and the additional consideration and rights of Holder
provided herein and in such other documents and agreements as the parties may
execute.
1. EXERCISE OF OPTION.
(A) TIME AND PRICE: The Holder of the Option, or Holder's designees,
may exercise the Option as follows: with respect to 400,000 Option Shares
(the "First Option"), which shall be exercisable at an exercise price of $.50
per Option Share, provided that the bid price of the Shares shall be at least
$l.00 per Share at the date of exercise of the First Option, commencing on
the date first set forth above and expiring after three years at the end of
business on June 1, 2001 (the "Option Period"); with respect to 400,000
Option Shares (the "Second Option"), which shall be exercisable at an
exercise price of $.75 per Option Share, provided that the bid price of the
Shares shall be at least $1.50 per Share at the date of exercise of the
Second Option, commencing on the date first set forth above and expiring at
the end of the Option Period; and with respect to 500,000 Option Shares (the
"Third Option"), which shall be exercisable at an exercise price of $1.00 per
Option Share, provided that the bid price of the Shares shall be at least
$2.00 per Share at the date of exercise of the Third Option, commencing on
the date first set forth above and expiring at the end of the Option Period.
The Options granted hereunder shall be deemed exercised in whole or in part
when the Holder shall indicate its decision to do so in writing to the
Company and tender payment by check payable to the Company for the number of
Option Shares being exercised from time to time, as provided hereinbelow.
(B) METHOD OF EXERCISE: The Option shall be exercisable, in whole or
in part, by written notice to the Company, stating the name in whom the
Option Shares shall be registered, and shall provide payment of the Option
Shares by check payable to the Company.
(C) ADDITIONAL RIGHTS OF HOLDER: In addition to the rights of Holder
under this Option, and as a condition precedent to the consummation of the
merger between Telecom Wireless, Inc. and the Company (the "Condition
Precedent"), the Company, on or before June 2, 1998, upon payment by Holder
to the Company of $.05 per Share, shall cause its transfer agent to
immediately issue to Holder a certificate evidencing 350,000 Shares of the
Company's common stock, which certificate shall be issued without a
restrictive legend. The 350,000 Shares shall be issued pursuant to Rule 504,
Regulation D Offering on the part of the Company. The issuance of the 350,000
Shares provided herein and in the abovementioned Consulting Agreement is an
irrevocable right of Holder and a Condition Precedent to the Merger. The
parties hereto agree that as a Condition Precedent, the Company has
instructed Xxxxxx X. Xxxxx, Xx., Esq., corporate securities counsel to the
Company, to immediately issue an opinion of counsel to the Company's transfer
agent to issue on or before June 2, 1998, the certificate(s) without legend,
evidencing the 350,000 Shares in such denominations and in such names as
Holder shall direct. The Company acknowledges that in the event of any breach
of Holder's Additional Rights set forth herein, including breach of the
Condition Precedent, or any of Holder's rights under this Option and Option
Agreement, or under the Consulting Agreement, that Holder may not have an
adequate remedy at law and therefore, damages may be unascertainable.
Therefore, the Company agrees that Holder shall have the right and shall be
entitled to injunctive relief against Company and all other remedies at law
and in equity in the event of an alleged breach by the Company.
2. HOLDER'S OR SUCCESSOR'S RIGHTS AS STOCKHOLDERS.
Neither the Holder nor any successor shall be deemed to be a
stockholder of the Company until such time as it or he shall tender payment
for the Option Shares as provided hereinabove.
3. REVIEW AND EVALUATION OF INFORMATION REGARDING THE COMPANY.
The Holder warrants that it or he, as the case may be, has evaluated
the merits and risks associated with the investment in the Company as
represented by this Option, including review of the draft financial
statements prepared by or for the Company, and all other documentation that
Holder deems necessary. The Holder further represents that it or he
understands that neither this Option nor the
Option Shares are presently registered under the Act, nor is the Company
obligated to effect the registration of the Option Shares.
4. OPTION SHARES NOT REGISTERED.
The certificates representing Option Shares issued upon exercise of the
Options, unless and until the Option Shares shall be registered on a Form S-1
Registration Statement or such other form as may be appropriate under the
Act, or pursuant to an exemption from the registration provisions under the
Act, such as pursuant to Rule 504 promulgated pursuant to Regulation D, shall
bear the following legend: THE SHARES OF COMMON STOCK REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT") OR THE LAWS OF ANY OTHER JURISDICTION AND MAY NOT BE
SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF IN ANY
MANNER (1) WITHOUT REGISTRATION UNDER THE ACT AND IN COMPLIANCE WITH THE LAWS
OF ANY APPLICABLE JURISDICTION OR (2) AN OPINION OF XXXXXX X. XXXXX, XX.,
ESQ., COUNSEL TO THE COMPANY (IN FORM AND SUBSTANCE ACCEPTABLE TO COUNSEL TO
THE COMPANY) THAT REGISTRATION IS NOT REQUIRED.
5. REGISTRATION RIGHTS.
The Company hereby grants Consultant the right to cause to the Company
to include all of the Consultant's or its designees Option Shares in a
Registration Statement, to the maximum extent permissible, which shall the
Company undertakes to file with the SEC (the "Registration Rights"). It is
understood by the parties that Consultant's Option Shares shall be included
in a Registration Statement on Form S-1 or such other form as may be
appropriate under the Act, as soon as reasonably practicable, based upon the
Company's stock price and the business conditions, as determined by the
Company's board of directors. With respect to the Registration Rights, any
expense of such registration or qualification will be paid by the Company,
except commissions and legal fees of Consultant. Notwithstanding the
foregoing, Consultant may provide additional services to the Company, whether
pursuant to any existing agreements or some future agreements with the
Company, and the grant of Options and Option Shares provided herein, or the
issuance of any other Shares provided herein or in any other agreement shall
not preclude any additional consideration in whatever form, as the parties
may mutually agree in writing. The Registration Rights are in addition to
any rights of Holder to avail itself of the exemption from registration as
set forth in Rule 504, promulgated under Regulation D under the Act.
6. HOLDER'S FINANCIAL EXPERIENCE.
The Holder is sufficiently experienced in financial matters and matters
pertaining to securities to be capable of evaluating the merits and risks
associated with the acceptance of this Option, and has relied upon such
experience in so determining to accept this Option in partial consideration
for the services performed by Holder to the Company under a consulting
agreement between the Holder and the Company . The parties agree that this
Option is not the exclusive consideration granted or to be granted to Holder
for services heretofore provided or to be provided by Holder to the Company.
7. MISCELLANEOUS.
(A) AMENDMENT: This Agreement may not be amended or modified in any
respect except for the right of the Holder to transfer its interest in the
Option to persons or entities designated in writing to the Company and the
Company's stock transfer agent, with written notice to the Company.
(B) DESCRIPTIVE HEADINGS: The headings contained herein are for
convenience only and shall not control or affect the meaning or construction
of any provision of this Agreement.
(C) COUNTERPARTS: This Agreement may be executed in on or more
counterparts, and by the separate parties hereto in separate counterparts,
each of which shall be deemed to be one and the same instrument.
(D) NOTICES: All notices, consents, requests, instructions and
other communications provided herein shall be in writing and shall be deemed
to have been duly given when delivered by United states Mail, postage
prepaid, as follows:
If to the Company, to:
Telecom Wireless Corporation
Attn.: N. Xxxxxxx Xxxxxxxx, President
0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxx Xxxxx, XX 00000
If to Holder, to:
Xxxx X. Xxxxx Consulting, Inc.
0000 Xxxxx 00xx Xxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
(E) APPLICABLE LAW AND VENUE: This Agreement shall be construed and
enforced in accordance with and be governed by the laws of the State of
Florida. Venue for the purposes of this Option Agreement and the enforcement
of all remedies at law and in equity shall rest in the 15th Judicial Circuit
in and for Palm Beach County, Florida. THE PARTIES TO THIS AGREEMENT HAVE
READ THIS OPTION AND OPTION AGREEMENT, HAVE HAD OPPORTUNITY TO CONSULT WITH
COUNSEL OF THEIR OWN CHOICE, AND UNDERSTAND EACH OF THE PROVISIONS OF THIS
OPTION AND OPTION AGREEMENT.
Date of Grant: As of June 2, 1998
------------------
TELECOM WIRELESS CORPORATION
BY: /s/ N. Xxxxxxx Xxxxxxxx
------------------------------------
N. XXXXXXX XXXXXXXX, PRESIDENT
ACCEPTED BY
XXXX X. XXXXX CONSULTING, INC.
BY: /s/ Xxxx X. Xxxxx
------------------------------------
XXXX X. XXXXX, PRESIDENT
