EXHIBIT 10.17
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SETTLEMENT AGREEMENT
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AND
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MUTUAL AND GENERAL RELEASE
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This Settlement Agreement and Mutual and General Release (the "Settlement
Agreement") is made and entered into effective this 17th day of April, 2001, by
and between Plaintiffs, Pacific Industrial Partners, a California limited
liability company ("Plaintiff PIP" or "Pacific Industrial Partners"), BHIS,
Inc., a California corporation ("Plaintiff BHIS" or "BHIS"), Xxxxxx Xxxx, an
individual ("Plaintiff Xxxx" or "Xx. Xxxx"), Xxxx Xxxxxxxx, an individual
("Plaintiff Xxxxxxxx" or "Xx. Xxxxxxxx"), Xxxxx Xxxxx, an individual ("Plaintiff
Xxxxx" or "Xx. Xxxxx"), and Xxxxx Xxxxxxx, an individual ("Plaintiff Xxxxxxx" or
"Xx. Xxxxxxx") (collectively, "Plaintiffs"), and each of them, on the one part,
and Defendants, Worldwide Wireless Networks, Inc., a Nevada corporation, doing
business as Global Pacific Internet and formerly doing business as Pacific Link
Internet, Inc. ("Defendant WWN" or "Worldwide Wireless"), Xxxx Xxxxxxxxx, an
individual ("Defendant Xxxxxxxxx" or "Xx. Xxxxxxxxx"), Xxxxxx X. Xxxxxx, an
individual ("Defendant Xxxxxx" or "Xx. Xxxxxx"), Xxxxxxx "Xxxxx" Bream, an
individual ("Defendant Bream" or "Xx. Xxxxx"), Xxxxxx Xxxx, an individual
("Defendant Shen" or "Xx. Xxxx"), and Xxxx Xxxxxxx, an individual, doing
business as Mutual Ventures and as Principal Holdings ("Defendant Xxxxxxx" or
"Xx. Xxxxxxx") (collectively, "Defendants"), and each of them, on the other part
(Plaintiffs and Defendants are jointly referenced as the "Parties"), directly,
for and on behalf of their predecessors, agents, servants, employers, employees,
owners, shareholders, controlling persons, officers, directors, partners,
associates, attorneys, representatives, successors, assigns, heirs, spouses,
former spouses, non-marital partners, agencies, firms, brokers, appraisers,
associations, partnerships, limited liability partnerships, limited liability
companies and corporations, and insurers, and each and all of them, as
appropriate in context, and is based upon the following Recitals:
R E C I T A L S
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1. Plaintiffs constitute two separate groups of investors who, for
business purposes, jointly engaged in certain activities in contemplation of
entering into a definitive agreement with Defendant WWN to loan funds to
Defendant WWN and for a potential investment in the company. Plaintiffs BHIS
and Xxxxxxx ("BHIS/Xxxxxxx") comprise one separate investor group, and
Plaintiffs Xxxx, Xxxxxxxx and Xxxxx ("Xxxx/Xxxxxxxx/Xxxxx") comprise the members
of the second and separate investor group. Defendant WWN is a Nevada
corporation engaged in the business of wireless services. Defendants Tortorice,
Rotert, Bream and Shen are present or former directors of Defendant WWN, and
Defendant Xxxxxxx is a shareholder in Defendant WWN.
2. Disputes have arisen between the Plaintiffs and the Defendants
arising out of the negotiation of a contemplated convertible loan agreement, a
related letter of intent, and the proposed definitive final agreement for the
advancement of funds by Plaintiffs to Defendant WWN, including the right and
ability of Plaintiffs to obtain repayment of the convertible loan through the
acquisition of stock in Defendant WWN. Defendant WWN, with the approval and/or
authorization of the remaining Defendants (among others), terminated discussions
with Plaintiffs regarding the convertible loan agreement. Plaintiffs dispute
Defendants' entitlement to terminate the contemplated transaction, and claim to
have incurred monetary damages as a consequence of the Defendants' actions.
3. The disputes between the Parties have become the subject of a
pending lawsuit titled Pacific Industrial Partners, et al. v. Worldwide Wireless
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Networks, Inc., et al., Case No. 00CC08241, pending before the Superior Court of
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the State of California, County of Orange (the "Litigation"). In the
Litigation, Plaintiffs seek recovery of damages from the Defendants for breach
of contract, breach of the implied covenant of good faith and fair dealing,
promissory estoppel, intentional interference with existing contract, negligent
interference with existing contract and negligent misrepresentation.
Defendants, in turn, deny Plaintiffs' claims, and each of them, and the
Defendants have filed an Answer to the First Amended Complaint denying all
claims and causes of action of the Plaintiffs, and asserting Affirmative
Defenses to contest any entitlement of the Plaintiffs, or any one or more of
them, for relief from the Defendants. The Litigation is presently scheduled for
trial on May 29, 2001.
4. Notwithstanding the disputes, claims and defenses between the
Plaintiffs and the Defendants, the Parties have agreed to a negotiated
resolution of the Litigation, and of all claims and disputes between them, in
lieu of facing the time, expense and uncertainty of further civil litigation
proceedings. Without any admission by any party in the Litigation, Plaintiffs
and Defendants have agreed on certain specified consideration, as specifically
recited in this Settlement Agreement, for a resolution of all claims and
disputes, including those brought or which could have been brought in the
Litigation. In exchange and as further consideration, the Parties have also
agreed to extend to one another full and complete releases of all claims,
whether known or unknown, as between them. The Parties have elected to document
their settlement through one Settlement Agreement, notwithstanding the two
separate groups of Plaintiffs and the number of separate Defendants, for sake of
clarity and to assure the sufficiency of the Stipulated Judgment provided for
Defendants' performance.
NOW, THEREFORE, in consideration of the terms, conditions and covenants
recited, the Parties agree as follows:
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A G R E E M E N T
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1. Nature of Agreement
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This Settlement Agreement constitutes a fully executed settlement
instrument, and a release of all known and unknown claims by each of the
Plaintiffs against each of the Defendants, and by each of the Defendants against
each of the Plaintiffs, including the disputes, controversies, and allegations
referenced in the Recitals and in the Litigation. It is intended by the Parties,
and each of them, to reflect a global resolution, settlement and release of all
claims between Plaintiffs and Defendants, whether known or unknown, contingent
or pending, of any kind or description, with the exception of the Plaintiffs'
and Defendants' performance obligations under this Settlement Agreement.
2. Terms of Agreement and Release
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2.1 Consideration
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The Parties, and each of them, have agreed to the following
consideration for a full and complete settlement of the matters in dispute
between them, including (but not limited to) the matters referenced in the
Recitals and which were or could have been asserted in the Litigation. The
Parties have agreed to release their claims against each other relating to the
Litigation and the matters described, with the release of Plaintiffs' claims
against Defendants being subject to the condition that Defendants fully perform
on all payments and consideration, and the Plaintiffs' and Defendants' releases
of each other being subject to the condition that each of them fully comply with
all provisions of this Settlement Agreement. In regard to the subject matter of
the Recitals and Litigation, and all matters recited in this Settlement
Agreement, all further rights and interests of the Parties will be governed by
the terms of this Settlement Agreement.
2.1.a Monetary Consideration
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The principal sum of One Hundred and Fifteen Thousand
and No/100ths Dollars ($115,000.00) will be paid by Defendants to Plaintiffs as
part of the consideration for this Settlement Agreement. The sum will be paid as
follows: (1) at the time of full execution of this Settlement Agreement,
Defendants shall tender to Plaintiffs, through their attorneys of record in the
Litigation, the sum of Seventy Thousand and No/100ths Dollars ($70,000.00) by
check made payable to Paul, Hastings, Xxxxxxxx & Xxxxxx Trust Account, said sum
to be divided equally between the two separate investor groups comprising the
Plaintiffs in this proceeding or allocated in whatever fashion decided among the
Plaintiffs; and (2) a Promissory Note ("Note") for the balance of Forty-Five
Thousand and No/100ths Dollars ($45,000.00) shall, pursuant to Section 2.1.b, be
executed by Defendant WWN and tendered at the time of full execution of this
Settlement Agreement to Plaintiffs, through their attorneys of record in the
Litigation, which Note shall be secured by Stipulated Judgment in accordance
with Section 2.1.c.
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2.1.b Promissory Note
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Pursuant to Section 2.1.a, Defendant WWN shall execute
and tender to Plaintiffs, concurrently with the full execution of this
Settlement Agreement, an executed original Promissory Note ("Note"), a true and
correct copy of which is appended as Exhibit "A". The Note shall provide for
the payment of the $45,000.00 outstanding sum (as per Section 2.1.a) by
Defendant WWN within nine (9) months of the execution of the Settlement
Agreement, with interest to accrue at eight percent (8%) per annum, subject to
Defendant WWN's right to prepay the Note at any time within six (6) months of
execution for the reduced sum of Thirty-Five Thousand and No/100ths Dollars
($35,000.00) and to receive a discount of Ten Thousand Dollars and No/100ths
Dollars ($10,000.00) of the principal balance and of the accrued interest on the
discounted sum. The obligations of Defendant WWN pursuant to the Note shall be
secured through a Stipulation for Entry of Judgment pursuant to Section 2.1.c.
Plaintiffs agree to cancel and return the original Note marked as "paid in full"
to Defendant WWN after Defendants satisfy the Note.
2.1.c Stipulation for Entry of Judgment
-------------------------------------
As security for Defendants' performance in accordance
with Section 2.1.b, Defendants WWN, Tortorice, Rotert, Bream and Shen, and each
of them, will execute a Stipulation for Entry of Judgment ("Stipulation")
agreeing to pay the sum of $45,000.00 plus accrued interest then due and owing
upon any default by Defendant WWN, and if, following notice (pursuant to Section
2.1.f), Defendant WWN fails to timely cure the default thereunder. Attached as
Exhibit "B" is a true and correct copy of the Stipulation. Upon the occurrence
of the default, and following notice and the failure to timely cure referenced
above, Plaintiffs, and each of them, may file, enter and enforce this
Stipulation upon ex part notice and without the necessity of further notice, but
such entry and enforcement shall be limited to the extent of the deficiency in
the amount paid by Defendant WWN to Plaintiffs on the Note, including
then-outstanding principal, accrued but unpaid interest, and attorney's fees and
costs incurred in connection with such entry and enforcement. Once Defendants
have fully performed pursuant to the provisions of Sections 2.1.a and 2.1.b,
Plaintiffs shall return to Defendants, through their designated attorneys, the
original unfiled Stipulation.
2.1.d Share Consideration
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Defendants further covenant and agree to convey to
Plaintiffs, Four Hundred Thousand (400,000) shares of Defendant WWN common
stock, said shares to be freely tradeable and subject to no restrictions, said
shares to be issued as follows: (a) Two Hundred Thousand (200,000) shares to be
issued to Pacific Industrial Partners, a California limited liability company;
(b) Thirty-Three Thousand Three Hundred and Thirty-Three (33,333) shares to be
issued to Xxx Xxxxxx, individually; (c) Thirty-Three Thousand Three Hundred and
Thirty-Three (33,333) shares to be issued to Xxxx Xxxxxxx, individually; (d)
Thirty-Three Thousand Three Hundred and Thirty-Three (33,333) shares to be
issued to Xxx Xxxxxx, individually; (e) Eighty-Four Thousand and One (84,001)
shares to be issued to Misuma Investment, LLC; and (f) Sixteen Thousand (16,000)
shares to be issued to Xxx Xxxxx, individually. Plaintiffs, and each of them,
consent to the allocation of the share consideration pursuant to this
provisionSaid shares are to be conveyed by Defendants within ten (10) business
days following the full execution of the Settlement Agreement.
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2.1.e Warrant Consideration
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Defendant WWN will convey to Plaintiffs, through their
and in the name of their designees, warrants totaling One Million (1,000,000)
shares of the common stock of Defendant WWN, to be conveyed and priced as
follows: (a) 250,000 warrants to be conveyed at the time of the final execution
of this Settlement Agreement, the pricing of the warrants to be determined by
the average trading price over the ninety (90) day period preceding execution;
(b) thereafter, an additional 250,000 warrants every ninety (90) days for three
(3) quarters, with the pricing of each warrant to reflect the preceding 90-day
average trading price; and (c) each warrant certificate shall be required to be
exercised within eleven (11) months after issuance, absent which the warrant
will expire. The warrants shall be provided in four Warrant Certificates which
shall be in the form of Exhibit "C". The shares which are the subject of the
Warrant Certificates shall be registered by Defendant WWN as part of an
amendment to the recently filed SB-2, and Defendant WWN will exercise best
efforts to obtain approval of an amendment to the existing SB-2; alternatively,
said shares shall be registered as part of a further registration within nine
(9) months of the execution of this Settlement Agreement.
2.1.f Notice-and-Cure on Installments
---------------------------------
In the event consideration is not timely received by
Plaintiffs as recited in Sections 2.1.b and 2.1.c, a written Notice of Default
will be issued by facsimile to Defendants and their designated counsel in this
Settlement Agreement requiring a cure within ten (10) business days from the
date of receipt of the telecopied notice (the "Cure Period"). In the event
Defendants fail to timely cure the late installment within the Cure Period,
Plaintiffs may, at their election, declare the Settlement Agreement in default,
accelerate all sums due and exercise all remedies pursuant to this Settlement
Agreement, including filing of the Stipulation and entry of Judgment. This
notice-and-cure process will also be followed by Plaintiffs and Defendants as to
all other terms of the Settlement Agreement and a breach by Plaintiffs, or one
of them, or Defendants, or one of them.
2.1.g Dismissal of Litigation
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Plaintiffs agree and shall, following full execution of
this Settlement Agreement and receipt of the consideration (delivery of the cash
payment, Note, shares of Defendant WWN stock and Warrant Certificate referenced
above) from Defendants pursuant to Section 2.1, file and serve a Request for
Dismissal, with prejudice, of the Litigation.
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2.2 Representations and Warranties
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The Parties warrant that they have not assigned, conveyed or
transferred, or purported to assign, convey or transfer to any person, firm or
corporation, or entity of any other kind of description, either voluntarily or
involuntarily, any claim, cause of action, or right based on, or arising out of,
or in connection with any matter, fact, or anything described or referred to in
the Recitals or in the referenced Litigation. To the extent any party has
assigned or transferred any claim, cause of action, or right based on or arising
out of these matters, whether voluntarily or involuntarily, or otherwise
breached this warranty, said party agrees to defend, indemnify and hold harmless
each and all other Parties and their predecessors, successors, assigns,
representatives, trustees, directors, controlling persons, officers, spouses,
former spouses, agencies, shareholders, beneficiaries, agents, employees,
insurers, receivers, attorneys, and each of them, from and against any claim,
demand, debt, liability, account, obligation, cost, damage expense, lien, action
or cause of action (including payment of legal fees and costs) based on or
arising out of, or in connection with, any such transfer, conveyance or
assignment, or the purported or claimed transfer, conveyance or assignment.
2.3 Release of Claims
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In consideration for this Settlement Agreement and the terms
recited, Plaintiffs hereby release Defendants, and Defendants hereby release
Plaintiffs, and each releases their respective predecessors, agents, servants,
employers, employees, owners, shareholders, officers, directors, controlling
persons, partners, associates, attorneys, representatives, assigns, heirs,
spouses, former spouses, agencies, firms, brokers, appraisers, associations,
partnerships, limited liability partnerships, limited liability companies and
corporations, and their insurance companies, and each and all of them, of and
from any and all obligations, liability, guarantees, actions, causes of action,
damages, judgments, executions, debts, costs, expenses, attorney fees, taxes,
liens, notes, securities, stocks, bonds, investments, claims, and demands
whatsoever under the laws of the State of California, and of any other state of
the United States and/or the United States of America and the laws of any other
nation, country, territory or jurisdiction, for, from, upon, under, on account
of, growing or arising out of, or related to any and all acts, transactions, and
occurrences, including, but not limited to, all acts, transactions and
occurrences referenced in the Recitals and in the Litigation, and any and all
obligations, contracts, liabilities, guarantees, actions, causes of action,
arising by statute or otherwise, judgments, indemnification agreements, hold
harmless agreements, executions, debts, costs, expenses, attorney fees, damages,
taxes, liens, notes, securities, stocks, bonds, investments, claims, charges and
losses, of any kind, nature and character, now existing, known or unknown, or
later becoming known, accrued or later accruing, resulting directly or
indirectly, proximately or remotely, from any and all of the matters and things
arising prior to the date this Settlement Agreement is executed. The Parties
acknowledge a full compromise and settlement, and complete satisfaction thereof.
The Parties acknowledge that they may later discover facts different from or in
addition to those they now know or believe to be true with respect to the
claims, demands, causes of action, obligations, damages, and liabilities of any
nature that are the subject of this Settlement Agreement and release. The
Parties expressly agree that this Settlement Agreement, and the release recited,
shall be and remain effective in all respects regardless of such additional or
different facts.
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2.4 Civil Code Section 1542 Waiver
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It is further understood and agreed that Plaintiffs and
Defendants specifically and expressly waive any and all rights under Civil Code
section 1542, or any analogous (in whole or in part) federal, state or municipal
law, rule, regulation or ordinance. Section 1542 provides as follows:
[Certain Claims Not Affected By General Release]
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"A general release does not extend to claims which
the creditor does not know or suspect to exist in
his favor at the time of executing the Release,
which if known by him, must have materially
effected his settlement with the debtor."
2.5 No Admission of Liability
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This Settlement Agreement is entered into by the Parties solely
for the purpose of compromising and settling the Litigation and all matters in
dispute or potentially in dispute between them. It does not constitute, nor
shall it be construed to constitute, an admission by any of the Parties of the
truth or validity of the claims and/or defenses asserted or which may have been
asserted by one against the other.
2.6 Attorney's Fees and Costs
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The Parties agree that each will bear their own costs and
attorneys' fees incurred in connection with all matters resolved by this
Settlement Agreement except as provided in Section 3.
3. Remedies in the Event of a Breach
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In the event of a breach of this Settlement Agreement, all legal and
equitable remedies may be employed to enforce the terms including, but not
limited to, injunctive relief and/or filing of the Stipulation. The Parties
further agree that other than with regard to the filing of the Stipulation and
entry of a judgment thereon, any dispute arising out of this Settlement
Agreement, including its interpretation and enforcement, shall be resolved
through binding arbitration before the American Arbitration Association venued
in Orange County, California. In the event of a breach or violation of this
Settlement Agreement, the prevailing party will be entitled to recover from the
losing party the prevailing party's reasonable attorney's fees and costs.
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4. Successors
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This Settlement Agreement is binding upon and shall inure to the
benefit of the Parties and each party's respective successors, assigns, privies
in interest, heirs, spouses, principals, agents and personal representatives.
5. Interpretation
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The Parties acknowledge and agree that they have been given the
opportunity to independently review this Settlement Agreement with legal counsel
prior to acceptance and agreement to the particular language and provisions. In
the event of an ambiguity in, or dispute regarding the interpretation of same,
the interpretation of this Settlement Agreement shall not be resolved by any
rule of interpretation providing for interpretation against the party who causes
the uncertainty to exist or against the drafter.
6. Entire Agreement
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This Settlement Agreement contains the sole and entire agreement and
understanding of the Parties with respect to the entire subject matter, and any
and all prior discussions, negotiations, commitments and understandings related
hereto are merged herein. No representations, oral or otherwise, express or
implied other than those contained in this Agreement have been made by any
party. No other agreements not specifically referred to herein, oral or
otherwise, shall be deemed to exist or to bind any of the Parties.
7. Terms Mutually Independent
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Each provision of this Settlement Agreement is independent of each
other provision, except that this Settlement Agreement shall only be effective
upon full performance as to the recited consideration.
8. Waiver, Modification and Amendment
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No provisions of this Settlement Agreement may be waived unless in
writing and signed by all Parties. Waiver of any one provision shall not be
deemed to be a waiver of any other provision. This Settlement Agreement may be
modified or amended only by a later writing signed by all of the Parties.
9. Related Documents
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The Parties (and each of them) authorize, entrust and direct their
attorneys of record (if applicable) to execute all documents necessary and to
take all actions necessary to accomplish and carry out the terms of this
Settlement Agreement, and the Parties agree to execute all documents reasonably
required in order to effectuate the terms of this Settlement Agreement.
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10. Construction and Jurisdiction
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This Settlement Agreement and the Stipulated Judgment shall be
construed in accordance with the laws of the State of California. Any legal
proceeding to enforce this Settlement Agreement and for filing of the
Stipulation and entry of the Stipulated Judgment in the event of any uncured
breach of this Settlement Agreement, shall be brought in Orange County,
California.
11. Titles and Captions
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Paragraph titles and captions contained in this Agreement are inserted
only as a matter of convenience and for reference and in no way define, limit,
extend or describe the scope of this Settlement Agreement or the intent of any
provision.
12. Counterpart Signature Pages
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This Settlement Agreement may be executed by the parties (and signed
off on as having been reviewed and approved as to form by counsel of record)
through counterpart signature pages (and not as part of one document bearing all
signatures consecutively), all of which, when together, shall constitute
satisfaction of the signature requirements. Facsimile signature pages shall
also be acceptable as if they were signed originals.
13. Notices
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All notices required under this Settlement Agreement and the
Stipulated Judgment shall be deemed effective if served by telecopier or, in the
option of the sender, by Federal Express or other overnight delivery system, and
shall be forwarded to the Parties as follows:
A. If to Plaintiffs Pacific Industrial Partners, Xxxx,
Xxxxxxxx and Xxxxx, to them at 0000 Xxxxx Xxxxxx, Xxxxx
000, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000, Facsimile No.
(000) 000-0000, and if to Plaintiffs BHIS and Xxxxxxx,
to 000 Xxxxx Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx Xxxxx,
Xxxxxxxxxx 00000, Facsimile No. (000) 000-0000, with a
copy to Xxxxx X. Xxxxx, Esq., Paul, Hastings, Xxxxxxxx
& Xxxxxx, LLP, 000 Xxxx Xxxxxx Xxxxx, 00xx Xxxxx, Xxxxx
Xxxx, Xxxxxxxxxx 00000-0000, Facsimile No. (714)
979-1921.
B. If to Defendants WWN, Tortorice, Rotert, Bream and
Shen, to Xx. Xxxxx Xxxxxxx, President and Acting Chief
Executive Officer, Worldwide Wireless Networks, Inc.,
000 Xxx Xxxx Xxxxx Xxxxx, Xxxxx 0000, Xxxxxx,
Xxxxxxxxxx 00000, Facsimile No. (000) 000-0000, with a
copy to Xxxxxx X. Xxxxxxxx, Esq., Feldhake, August &
Xxxxxxxxx LLP, 00000 XxxXxxxxx Xxxx., Xxxxx 000,
Xxxxxx, Xxxxxxxxxx 00000, Facsimile No. (000) 000-0000.
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C. If to Defendant Xxxxxxx, to Xxxxxx Xxxxxxx, Esq., 000
Xxxxx 000 Xxxx, Xxxx Xxxx Xxxx, Xxxx 00000, Facsimile
No. (000) 000-0000.
Should addresses, facsimile numbers of other identified information change,
notice shall be given in accordance with this provision.
14. Authority
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The undersigned individuals and/or entities execute this Settlement
Agreement on behalf of their respective parties, and represent and warrant that
said individual and/or entities are authorized to enter into and execute this
Settlement Agreement on behalf of such Parties, that the appropriate corporate
resolutions or other consents have been passed and/or obtained (if necessary),
and that this Settlement Agreement shall be binding on the party on whose
benefit they are executing this Settlement Agreement.
PACIFIC INDUSTRIAL PARTNERS
Dated : April 19, 2001 By: /s/
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Title: C.F.O.
---------------------------------
Dated : April 18, 2001 By: /s/
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Title: Executive Vice President
---------------------------------
BHIS, INC.
Dated : April 17, 2001 By: /s/
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Title: President
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Dated : April 17, 2001 By: /s/
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Title: Secretary
---------------------------------
Dated : April 18, 2001 By: /s/
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Xxxxxx Xxxx, an individual
Dated : April 19, 2001 By: /s/
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Xxxx Xxxxxxxx, an individual
Dated : April 20, 2001 By: /s/
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Xxxxx Xxxxx, an individual
Dated : April 17, 2001 By: /s/
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Xxxxx Xxxxxxx, an individual
WORLDWIDE WIRELESS NETWORKS, INC.
Dated : April 17, 2001 By: /s/
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Title: Xxxxx Xxxxxxx, President
---------------------------------
Dated : April 17, 2001 By: /s/
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Title: Xxxxx Xxxxxx, Controller
---------------------------------
Dated : April 18, 2001 By: /s/
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Xxxx Xxxxxxxxx, an individual
Dated : April 18, 2001 By: /s/
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Xxxxxx X. Xxxxxx, an individual
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Dated : April 18, 2001 By: /s/
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Xxxxxxx "Cliff" Bream, an individual
Dated : April 18, 2001 By: /s/
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Xxxxxx Xxxx, an individual
Dated : April 19, 2001 By: /s/
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Xxxx Xxxxxxx, an individual
REVIEWED AND APPROVED AS TO FORM:
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PAUL, HASTINGS, XXXXXXXX & XXXXXX LLP
Dated : April 23, 2001 By: /s/
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Xxxxx X. Xxxxx, Esq.
Attorney for Plaintiffs, Pacific
Industrial Partners, BHIS, Inc.,
Xxxxxx Xxxx, Xxxx Xxxxxxxx, Xxxxx
Xxxxx and Xxxxx Xxxxxxx
XXXXXXXX, AUGUST & XXXXXXXXX, LLP
Dated : April 24, 2001 By: /s/
------------------------------------
Xxxxxx X. Xxxxxxxx, Esq.
Attorney for Defendants, Worldwide
Wireless Networks, Inc., Xxxx
Xxxxxxxxx, Xxxxxx X. Xxxxxx, Xxxxxxx
"Cliff" Bream, and Xxxxxx Xxxx
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XXXXXX XXXXXXX, ESQ.
Dated : April 19, 2001 By: /s/
------------------------------------
Xxxxxx Xxxxxxx, Esq.
Attorney for Defendant, Xxxx Xxxxxxx
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EXHIBIT A
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PROMISSORY NOTE
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$45,000.00 Irvine, California April 17, 2001
For value received and acknowledged, as recited in this document, Worldwide
Wireless Networks, Inc. (the "Maker"), promises to pay to Pacific Industrial
Partners, a California limited liability company organized and existing under
the laws of the State of California, and BHIS, Inc., a California corporation,
or their designee(s)(the "Holder"), care of Xxxxx X. Xxxxx, Esq., Paul,
Hastings, Xxxxxxxx & Xxxxxx, LLP, at 000 Xxxx Xxxxxx Xxxxx, 00xx Xxxxx, Xxxxx
Xxxx, Xxxxxxxxxx, or at such other place as the Holder may designate, the
principal sum of Forty-Five Thousand and No/100ths Dollars ($45,000.00) with
simple interest from this date forward on the unpaid principal at the rate of
eight percent (8%) per annum (the "Note"). Payment of the principal sum plus
all accrued interest shall be due nine (9) months after the date of this Note,
or on or before January 17, 2002.
Maker, on pre-paying to Holder or its designee the sum of Thirty-Five Thousand
and No/100ths Dollars ($35,000.00) and then accrued interest on such principal
sum within six (6) months of the execution of this Note, or on or before October
17, 2001, shall be deemed to have paid Holder in full for all obligations under
this Note. Holder covenants and agrees to reduce the principal obligation of
the Note from $45,000.00 to $35,000.00 if paid within six (6) months of
execution, or on or before October 17, 2001, and to waive all accrued but unpaid
interest on the $10,000.00 of principal so reduced, but shall not waive any
accrued but unpaid interest on the $35,000.00 of principal so prepaid, as well
as the remaining principal balance. Said prepayment shall also be deemed to
satisfy in full Maker's obligations pursuant to Section 2.1.b of the Settlement
Agreement, to which agreement this Note is appended and incorporated as Exhibit
"A".
This Note is intended to satisfy Maker's obligations pursuant to Section 2.1.b
of the Settlement Agreement and Mutual and General Release ("Settlement
Agreement") dated April 17, 2001. Maker, in executing this Note, acknowledges
the sum recited as being reasonable, due and owing by Maker to Holder pursuant
to the provisions of the Settlement Agreement. In further part, Maker waives
and relinquishes any defenses to payment of this Note, in whole or in part, or
any offsets against collection or recovery by Holder of any and all sums due
under this Note.
Initials: /s/
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Dated: 4/23/01
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EXHIBIT A
All or any part of the principal or interest of this Note may be prepaid by
Maker at any time and from time to time without premium or penalty. Each
payment shall first be credited against accrued and unpaid interest and the
remainder of any such payment shall then be credited against the unpaid
principal amount hereof; and interest shall thereupon cease upon the principal
so credited. Principal and interest shall be paid in lawful money of the United
States. At the option of the Holder, the whole sum of principal and interest
shall become immediately due and payable in the event that the Maker is not
current on its debts and obligations to Holder or is otherwise in breach of any
terms of this Note.
-2-
Initials: /s/
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Dated: 4/23/01
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EXHIBIT A
If this Note is not paid when due, the Maker agrees to pay all costs of
collection thereof, including reasonable attorney's fees, costs and expenses,
whether or not a suit or an action is commenced to enforce payment of this Note.
Maker hereby waives presentment, notice of dishonor and protest.
This Note is made in California and shall be governed by and construed in
accordance with the internal laws of the State of California applicable to the
enforcement and operation of such instruments in this State, without giving
effect to principles of conflicts of law applied thereby. Holder and Maker
agree that should a dispute arise in regard to this Note, it shall be
adjudicated through binding arbitration before the American Arbitration
Association in Orange County, State of California. In the event arbitration or
litigation is instituted between the Maker and Holder in connection with any
controversy or dispute arising from, under or related to this Note, the judgment
therein shall include a reasonable sum to be paid to the prevailing party for
and on account of attorneys' fees and costs incurred in such litigation, and
shall provide for post-judgment attorneys' fees incurred in such litigation
and/or in collecting the judgment. The provisions of this Agreement are
severable, and if any one or more provisions is determined to be illegal,
indefinite, invalid or otherwise unenforceable, in whole or in part, by any
court of competent jurisdiction, then the remaining provisions of this Agreement
and any partially unenforceable provisions to the extent enforceable in the
pertinent jurisdiction, shall continue in full force and effect and shall be
binding and enforceable on the parties.
The undersigned hereby represents and warrants to the Holder that he is the
authorized signatory of the Maker, with full power and authority to enter into
and execute this Note for and on behalf of the Maker, which instrument, once so
executed and delivered to Holder shall be the legal obligation of Maker,
enforceable against it by any Court of competent jurisdiction in accordance with
its terms.
WORLDWIDE WIRELESS NETWORKS, INC.
Dated : April 23, 2001 By: /s/
------------------------------------
Its: Xxxxx Xxxxxxx, President
-----------------------------------
State of California )
) ss:
County of Orange )
On April 23, 2001, before me, Xxxxxxx X. Xxxxx Przygodzki, a Notary Public
-- ---------------------------
in and for said State, personally appeared Xxxxx Xxxxxxx, (known to me) (or
-------------
proved to me on the basis of satisfactory evidence) to be the persons whose
names subscribed to the within instrument and acknowledged that executed the
same.
-3-
Initials: /s/
---------
Dated: 4/23/01
---------
EXHIBIT A
Witness my hand and official seal.
/s/
------------------------------------
NOTARY PUBLIC
My commission expires: April 22,2002
----------------
WORLDWIDE WIRELESS NETWORKS, INC.
Dated : April 23, 2001 By: /s/
------------------------------------
Its: Xxxxxx Xxxx, Secretary
-----------------------------------
State of California )
) ss:
County of Orange )
On April 23, 2001, before me, Xxxxxxx X. Xxxxx Przygodzki, a Notary Public
-- ---------------------------
in and for said State, personally appeared Xxxxxx Xxxx, (known to me) (or
-------------
proved to me on the basis of satisfactory evidence) to be the persons whose
names subscribed to the within instrument and acknowledged that executed the
same.
Witness my hand and official seal.
/s/
------------------------------------
NOTARY PUBLIC
My commission expires: April 22,2002
----------------
-4-
Initials: /s/
---------
Dated: 4/23/01
---------
EXHIBIT A
APPROVED AND AGREED TO BY THE HOLDER:
------------------------------------------
PACIFIC INDUSTRIAL PARTNERS,
a California Limited Liability Company
Dated : April ___, 2001 By:
------------------------------------
Its:
-----------------------------------
State of California )
) ss:
County of Orange )
On ______________, 2001, before me, __________________________, a Notary
Public in and for said State, personally appeared ___________________________,
(known to me) (or proved to me on the basis of satisfactory evidence) to be the
persons whose names subscribed to the within instrument and acknowledged that
executed the same.
Witness my hand and official seal.
------------------------------------
NOTARY PUBLIC
My commission expires: ______________________
PACIFIC INDUSTRIAL PARTNERS,
a California Limited Liability Company
Dated : April ___, 2001 By:
-------------------------------------
Its:
------------------------------------
-5-
Initials: /s/
---------
Dated: 4/23/01
---------
EXHIBIT A
State of California )
) ss:
County of Orange )
On ______________, 2001, before me, __________________________, a Notary
Public in and for said State, personally appeared ___________________________,
(known to me) (or proved to me on the basis of satisfactory evidence) to be the
persons whose names subscribed to the within instrument and acknowledged that
executed the same.
Witness my hand and official seal.
------------------------------------
NOTARY PUBLIC
My commission expires: ______________________
BHIS, INC., a California Corporation
Dated : April ___, 2001 By:
-------------------------------------
Its:
------------------------------------
State of California )
) ss:
County of Orange )
On ______________, 2001, before me, __________________________, a Notary
Public in and for said State, personally appeared ___________________________,
(known to me) (or proved to me on the basis of satisfactory evidence) to be the
persons whose names subscribed to the within instrument and acknowledged that
executed the same.
Witness my hand and official seal.
------------------------------------
NOTARY PUBLIC
My commission expires: ______________________
-6-
Initials: /s/
---------
Dated: 4/23/01
---------
EXHIBIT A
BHIS, INC., a California Corporation
Dated : April ___, 2001 By:
------------------------------------
Its:
-----------------------------------
State of California )
) ss:
County of Orange )
On ______________, 2001, before me, __________________________, a Notary
Public in and for said State, personally appeared ___________________________,
(known to me) (or proved to me on the basis of satisfactory evidence) to be the
persons whose names subscribed to the within instrument and acknowledged that
executed the same.
Witness my hand and official seal.
------------------------------------
NOTARY PUBLIC
My commission expires: ______________________
-7-
Initials: /s/
---------
Dated: 4/23/01
---------
EXHIBIT A
EXHIBIT B
---------
Xxxxxx X. Xxxxxxxx, Esq., (State Bar No. 107380)
Xxxxxxx X. Xxxxx, Esq., (State Bar No. 174347)
FELDHAKE, AUGUST & XXXXXXXXX LLP
Newport Gateway - Tower 2
00000 XxxXxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Telephone No. (000) 000-0000
Facsimile No. (000) 000-0000
Attorney for Defendants: Worldwide Wireless Networks, Inc.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF ORANGE, CENTRAL JUSTICE CENTER
PACIFIC INDUSTRIAL PARTNERS, a ) Case No. 00CC08241
California limited liability company; BHIS, )
INC., a California corporation; XXXXXX ) ASSIGNED FOR ALL PURPOSES TO THE
XXXX, an individual; XXXX XXXXXXXX, ) XXXXXXXXX XXXXXXX XXX NOMOTO
an individual; XXXXX XXXXX, an ) XXXXXXXX, DEPARTMENT C03
individual; and XXXXX XXXXXXX, an ) _________________________________
individual, )
) STIPULATION FOR ENTRY OF JUDGMENT
Plaintiffs, )
)
vs. )
)
WORLDWIDE WIRELESS NETWORKS, )
INC., a Nevada corporation, doing business )
as GLOBAL PACIFIC INTERNET, )
formerly doing business as PACIFIC LINK )
INTERNET, INC.; XXXX XXXXXXXXX, an )
individual; XXXXXX X. XXXXXX, an )
individual; XXXXXXX "CLIFF" BREAM, )
an individual; XXXXXX XXXX, an )
individual; XXXX XXXXXXX, an )
individual doing business as Mutual )
Ventures, doing business as Principal )
Holdings; and DOES 1-50, inclusive, )
)
Defendants )
___________________________________________ )
______________________________________________________________________________
Stipulation for Entry of Judgment
EXHIBIT "B"
IT IS HEREBY STIPULATED by and between the Plaintiffs, Pacific Industrial
Partners, BHIS, Inc., Xxxxxx Xxxx, Xxxx Xxxxxxxx, Xxxxx Xxxxx and Xxxxx Xxxxxxx
("Plaintiffs"), and the Defendants, Worldwide Wireless Networks, Inc., Xxxx
Xxxxxxxxx, Xxxxxx X. Xxxxxx, Xxxxxxx "Xxxxx" Bream and Xxxxxx Xxxx
("Defendants") (jointly, the "Parties"), that Judgment ("Stipulated Judgment")
be entered in favor of Plaintiffs and against Defendants in the amount of
$45,000.00 as follows:
1. On or about October 11, 2000, Plaintiffs filed the present Complaint
against Defendants for breach of contract, breach of the implied covenant of
good faith and fair dealing, promissory estoppel, intentional interference with
existing contract, negligent interference with existing contract and negligent
misrepresentation. Defendants have timely filed an Answer to the Complaint and
denied liability on the claims recited.
2. Plaintiffs and Defendants have settled and resolved their disputes.
As part of the settlement, Defendants stipulate to a Judgment against them and
agree to pay Plaintiffs the total sum of $45,000.00, or such lesser sum as may
be deemed owing pursuant to Section 2.1.b of the Settlement Agreement and Mutual
and General Release ("Settlement Agreement").
3. Upon Ex Parte Application by Plaintiffs supported by a Declaration
of Counsel reciting the default by Defendant Worldwide Wireless Networks, Inc.
("Defendant WWN") on a Promissory Note provided pursuant to Section 2.1.b of the
Settlement Agreement, notice is given of such default and the failure of
Defendant WWN to timely cure, Plaintiff shall be entitled to immediate entry and
enforcement of the Judgment provided for by this Stipulation, including issuance
of the requisite enforcement documents by the Court. Plaintiffs shall also be
entitled to reasonable attorney's fees and costs for any and all efforts
2
______________________________________________________________________________
Stipulation for Entry of Judgment
EXHIBIT "B"
undertaken to file this Stipulation, to obtain a Judgment, and to enforce the
appended Judgment (up to and including the date the Judgment is fully
satisfied). Defendants hereby waive any and all defenses that they have or
purport to have, or may have as to the filing, entry and enforcement of the
Judgment. Defendants covenant to provide Plaintiffs at all times with a current
address and telephone number where Plaintiffs' intention to enforce the Judgment
may be given. If notice is given to the last provided address of Defendants,
but is in fact not the current address, the Parties deem such notice to have in
fact been given in compliance with this Stipulation.
4. The Parties agree that this Stipulation is binding upon and shall
inure to the benefit of the Parties and each party's respective successors,
assigns, heirs, privies and personal representatives.
5. The Parties acknowledge and agree that they have been given the
opportunity to independently review this Stipulation with legal counsel and/or
had the requisite experience and sophistication to understand, interpret, and
agree to the language and provisions. In the event of an ambiguity in, or
dispute regarding the interpretation of same, the interpretation of this
Stipulation shall not be resolved by any rule of interpretation providing for
interpretation against the party who causes the uncertainty to exist.
3
_____________________________________________________________________________
Stipulation for Entry of Judgment
EXHIBIT "B"
PACIFIC INDUSTRIAL PARTNERS
Dated : April ___, 2001 By:
------------------------------------
Its:
-----------------------------------
Dated : April ___, 2001 By:
------------------------------------
Its:
-----------------------------------
BHIS, INC.
Dated : April ___, 2001 By:
------------------------------------
Its:
-----------------------------------
Dated : April ___, 2001 By:
------------------------------------
Its:
-----------------------------------
Dated : April ___, 2001 By:
------------------------------------
Xxxxxx Xxxx, an individual
4
_____________________________________________________________________________
Stipulation for Entry of Judgment
EXHIBIT "B"
Dated : April ___, 2001 By:
------------------------------------
Xxxx Xxxxxxxx, an individual
Dated : April ___, 2001 By:
------------------------------------
Xxxxx Xxxxx, an individual
Dated : April ___, 2001 By:
------------------------------------
Xxxxx Xxxxxxx, an individual
WORLDWIDE WIRELESS NETWORKS, INC.
Dated : April 17, 2001 By: /s/
------------------------------------
Its: Xxxxx Xxxxxxx, President
------------------------------------
Dated : April 17, 2001 By: /s/
------------------------------------
Its: Xxxxx Xxxxxx, Controller
------------------------------------
Dated : April 18, 2001 By: /s/
------------------------------------
Xxxx Xxxxxxxxx, an individual
Dated : April 18, 2001 By: /s/
------------------------------------
Xxxxxx X. Xxxxxx, an individual
Dated : April 18, 2001 By: /s/
------------------------------------
Xxxxxxx "Xxxxx" Bream, an individual
5
_____________________________________________________________________________
Stipulation for Entry of Judgment
EXHIBIT "B"
Dated : April ___, 2001 By: /s/
------------------------------------
Xxxxxx Xxxx, an individual
6
_____________________________________________________________________________
Stipulation for Entry of Judgment
EXHIBIT "B"
EXHIBIT C
---------
WARRANT CERTIFICATE
-------------------
April 17, 2001 250,000
--------------------------------------------------------------------------------
Warrants
--------
THE WARRANTS REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, NOR REGISTERED NOR QUALIFIED UNDER ANY STATE SECURITIES
LAWS. SUCH WARRANTS MAY NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE,
TRANSFERRED, PLEDGED, OR HYPOTHECATED UNLESS QUALIFIED AND REGISTERED UNDER
APPLICABLE STATE AND FEDERAL SECURITIES LAWS OR UNLESS, IN THE OPINION OF
COUNSEL SATISFACTORY TO WORLDWIDE WIRELESS NETWORKS, INC., SUCH QUALIFICATION
AND REGISTRATION IS NOT REQUIRED PURSUANT TO AN EXEMPTION THEREFROM. NO
TRANSFER OF ANY SUCH WARRANT SHALL BE VALID OR EFFECTIVE UNTIL SUCH CONDITIONS
HAVE BEEN FULFILLED.
WARRANTS FOR
PURCHASE OF COMMON STOCK
THIS CERTIFIES THAT, FOR VALUE RECEIVED, the Holder(s) listed in the attached
Schedule A are the owners of the indicated number of warrants specified above
-----------
(the "Warrants") issued by WORLDWIDE WIRELESS NETWORKS, INC., a corporation
organized and existing under the laws of the State of Nevada (the
"Corporation"). The Warrants represented hereby entitle the Holder(s) to
purchase, subject to the terms and conditions set forth in this instrument (the
"Warrant Certificate"), two hundred fifty thousand (250,000) shares of
validly-issued, fully-paid and non-assessable common stock of the Corporation,
having a par value of $0.01 per share (the "Common Stock"). Such purchase may
be made at any time, and from time to time, prior to or on the Expiration Date
(as hereinafter defined), upon the presentation and surrender of this Warrant
Certificate with a written notice signed by the Holder or Holders, as
applicable, stating the number of shares of Common Stock with respect to which
such exercise is being made, at the principal corporate address of the
Corporation, accompanied by the applicable Purchase Price (as hereinafter
defined) for each Warrant exercised in the manner prescribed herein.
SECTION 1. DEFINITIONS. As used herein, the following terms shall have the
-----------
following meanings, unless the context shall otherwise require:
(a) "Commission" means the United States Securities and Exchange
Commission, or any successor agency thereto.
(b) "Common Stock" shall mean the common stock of the Corporation,
which has the right to participate in the distribution of
earnings and assets of the Corporation without limit as to amount
or percentage.
(c) "Corporate Office" shall mean the office of the Corporation at
which, at any particular time, its principal business shall be
administered, which office is currently located at 000 Xxx Xxxx
Xxxxx, Xxxxx 0000, Xxxxxx, XX 00000.
(d) "Exercise Date" shall mean, as to any Warrant, the date on which
the Corporation shall have received both (a) this Warrant
Certificate, together with a written notice of exercise in
accordance herewith, duly executed by the Holder or Holders, as
applicable, and indicating that the Holder(s) is (are) thereby
exercising such Warrant, and (b) payment in cash, or by official
bank or certified check made payable to the Corporation, of an
amount in lawful money of the United States of America equal to
the applicable Purchase Price.
(e) "Expiration Date" shall mean 5:00 P.M. (Pacific Standard Time) on
the date which is eleven (11) months from the issue date of this
Warrant Certificate. If such date shall be a holiday or a day on
which banks are authorized to close in the State of California,
then the Expiration Date shall mean 5:00 P.M. (Pacific Standard
Time) of the next consecutive banking business day in the State
of California.
(f) "Holder", or "Holders" shall mean, as to any Warrant and as of
any particular date, the persons listed in Schedule A attached to
----------
this Warrant and in whose name the Warrant Certificate
representing such Warrant shall be registered as of that date on
the books maintained by the Corporation.
(g) "Purchase Price" shall mean the purchase price to be paid upon
exercise of each Warrant hereunder in accordance with the terms
hereof, which price shall be the average trading price of the
ninety (90) day period preceding the date of issuance of this
Warrant, which is April 17, 2001.
(h) "Registrable Securities" means any and all securities entitled to
be registered for public sale with the Commission pursuant to
Section 6 of this Warrant Certificate.
(i) "Registration Statement" shall mean the Form SB-2 (#333-57108),
as amended and currently under review by the Securities and
Exchange Commission.
(j) "Securities Act" shall mean the Securities Act of 1933, and any
amendments or modifications, or successor legislation, thereto
adopted, and all regulations, rules or other laws enacted
thereunder.
-2-
EXHIBIT "C"
(k) "Warrants" shall mean the warrants represented by this Warrant
Certificate.
(l) "Warrant Certificate" shall mean any certificate (including this
certificate) representing Warrants.
SECTION 2. EXERCISE OF WARRANTS.
----------------------
(a) Each Warrant evidenced hereby may be exercised by the Holder(s) at any
time on the Exercise Date, upon the terms and subject to the
conditions set forth herein. A Warrant shall be deemed to have
been exercised immediately prior to the close of business on the
Exercise Date, and the person(s) entitled to receive the
securities deliverable upon such exercise shall be treated for
all purposes as the Holder(s) of those securities upon the
exercise of the Warrant as of the close of business on the
Exercise Date. Promptly following, and in any event within ten
(10) business days after the date on which the Corporation first
receives clearance of all funds received in payment of the
Purchase Price pursuant to this Warrant Certificate, the
Corporation shall cause to be issued and delivered to the person
or persons entitled to receive the same, a certificate or
certificates for the securities deliverable upon such exercise
(plus a Warrant Certificate for any remaining issued but
unexercised Warrants of the Holders). The obligation to deliver
such certificates shall arise only upon completion of
registration requirements as set forth in Section 6 and at such
time as the Corporation may lawfully do so.
(b) Upon the exercise of the Warrants represented hereby, if the
Corporation so requests, the Holder(s) shall certify to the
Corporation that they are not exercising such Warrants with a
view to distribute the Common Stock received pursuant to such
exercise in violation of any state or federal securities law or
regulation including, without limitation, the Securities Act.
SECTION 3. RESERVATION OF SHARES; LISTING; PAYMENT OF TAXES; ETC.
------------------------------------------------------------
(a) The Corporation covenants that it will at all times reserve and
keep available out of its authorized Common Stock, solely for the
purpose of issue upon the valid exercise of Warrants, such number
of shares of Common Stock as shall then be issuable upon the
exercise of all outstanding Warrants. The Corporation covenants
that all shares of Common Stock which shall be issuable upon
exercise of the Warrants shall, at the time of delivery, be duly
and validly issued, fully-paid, non-assessable and free from all
taxes, liens and charges with respect to the issuance thereof
(other than those which the Corporation shall promptly pay or
discharge).
-3-
EXHIBIT "C"
(b) The Corporation shall not be obligated to deliver any securities
pursuant to the exercise of the Warrants represented hereby
unless and until the Registration Statement with respect to such
securities is effective, or an exemption from such registration
is available to the Corporation at the time of such exercise. The
Corporation covenants that if any securities to be reserved for
the purpose of exercise of Warrants hereunder require
registration with, or approval of, any governmental authority
under any federal or state securities law before such securities
may be validly issued or delivered upon such exercise, then the
Corporation will in good faith and as expeditiously as reasonably
possible, endeavor to secure such registration or approval.
However, in the event that this Warrant Certificate represents
Warrants which have been transferred by an initial holder
thereof, the Warrants represented hereby may not be exercised by,
nor shares of Common Stock issued to, the Holders hereof in any
state in which such exercise and issuance would be unlawful.
(c) The Corporation shall pay all documentary, stamp or similar taxes
and other governmental charges that may be imposed with respect
to the issuance of the Warrants, or the issuance or delivery of
any shares of Common Stock upon exercise of the Warrants;
provided, however, that if the shares of Common Stock are to be
delivered in a name other than the name of the Holders hereof,
then no such delivery shall be made unless the person requesting
the same has paid to the Corporation the amount of transfer taxes
or charges incident thereto, if any.
SECTION 4. LOSS OR MUTILATION. Upon receipt by the Corporation of evidence
------------------
satisfactory to it of the ownership of, and loss, theft,
destruction or mutilation of, this Warrant Certificate and (in case
of loss, theft or destruction) of indemnity satisfactory to the
Corporation, and (in the case of mutilation) upon surrender and
cancellation thereof, the Corporation shall execute and deliver to
the Holder(s) in lieu thereof a new Warrant Certificate of like
tenor representing an equal aggregate number of Warrants. Each
Holder requesting a substitute Warrant Certificate due to loss,
theft or destruction shall, prior to receiving such substitute
certificate, provide an Affidavit to the Corporation in the form
prescribed thereby and signed by such Holder. Applicants for a
substitute Warrant Certificate shall comply with such other
reasonable regulations and pay such other reasonable charges as the
Corporation may prescribe.
SECTION 5. RESTRICTIVE LEGEND. Except as otherwise provided in this Section
------------------
5, each certificate for Common Stock initially issued upon the
exercise of any Warrant, and each certificate for Common Stock
issued to any subsequent transferee of any such certificate, shall
be stamped or otherwise imprinted with a legend in substantially
the following form:
-4-
EXHIBIT "C"
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, NOR
REGISTERED NOR QUALIFIED UNDER ANY STATE SECURITIES LAWS. SUCH
SHARES MAY NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE,
TRANSFERRED, PLEDGED, OR HYPOTHECATED UNLESS QUALIFIED AND
REGISTERED UNDER APPLICABLE STATE AND FEDERAL SECURITIES LAWS OR
UNLESS, IN THE OPINION OF COUNSEL SATISFACTORY TO WORLDWIDE
WIRELESS NETWORKS, INC., SUCH QUALIFICATION AND REGISTRATION IS
NOT REQUIRED. NO TRANSFER OF ANY SUCH SHARE SHALL BE VALID OR
EFFECTIVE UNTIL SUCH CONDITIONS HAVE BEEN FULFILLED."
(a) Except as otherwise provided in this Section 5, each Warrant
Certificate shall be stamped or otherwise imprinted with a legend in
substantially the following form:
"THE WARRANTS REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, NOR REGISTERED NOR
QUALIFIED UNDER ANY STATE SECURITIES LAWS. SUCH WARRANTS MAY NOT
BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED,
PLEDGED, OR HYPOTHECATED UNLESS QUALIFIED AND REGISTERED UNDER
APPLICABLE STATE AND FEDERAL SECURITIES LAWS OR UNLESS, IN THE
WRITTEN OPINION OF COUNSEL SATISFACTORY TO WORLDWIDE WIRELESS
NETWORKS, INC., SUCH QUALIFICATION AND REGISTRATION IS NOT
REQUIRED. NO TRANSFER OF ANY SUCH WARRANT SHALL BE VALID OR
EFFECTIVE UNTIL SUCH CONDITIONS HAVE BEEN FULFILLED."
-5-
EXHIBIT "C"
(b) The legend requirements of Sections 5 above shall terminate as to any
particular Warrant or share of Common Stock: (i) when and so long as
such security shall have been effectively registered under the
Securities Act and disposed of pursuant to any registration statement
made effective by the Commission; or (ii) when the Corporation shall
have received an opinion of counsel reasonably satisfactory to it that
such shares may be sold to the public without registration thereof
under the Securities Act. Whenever the legend requirements imposed by
this Section 5 shall terminate as to any share of Common Stock
purchased pursuant to a Warrant represented hereby, and provided that
the Corporation may then lawfully do so, the Holder(s) hereof shall be
entitled to receive from the Corporation, at the Corporation's
expense, a new certificate representing such Common Stock not bearing
the restrictive legend set forth in this Section 5.
SECTION 6. REGISTRATION RIGHTS.
--------------------
(a) The Corporation shall, as quickly as practicable, amend its
Registration Statement to effect the registration and sale of
Registrable Securities for the account of the Holder.
-6-
EXHIBIT "C"
(b) The Corporation shall:
(1) furnish to each Holder of Registrable Securities copies of
the filed Registration Statement and each amendment and
supplement thereto (in each case including all exhibits
thereto), the prospectus included in such registration
statement(s) (including each preliminary prospectus) and
such other documents as the Holder may reasonably request in
order to facilitate the disposition of the Registrable
Securities owned by such Holder;
(2) use its best efforts to register or qualify such Registrable
Securities under such other securities or "Blue Sky Laws" of
such jurisdictions as all Holders, collectively, may
reasonably request, and do any and all other acts and things
which are customarily taken by registrants in similar
situations and which may be reasonably necessary or
advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable
Securities owned by such seller; provided that the
Corporation will not be required to (i) qualify generally to
do business in any jurisdiction where it would not otherwise
be required to qualify but for this paragraph (d), and/or
(ii) subject itself to taxation in any such jurisdiction;
and provided, further, that the Corporation shall only be
obligated to pay expenses in connection with qualifying such
Registrable Securities in no more than five (5)
jurisdictions but shall undertake to register the
Registrable Securities in such additional jurisdictions as
may be reasonably requested by any Holder, so long as such
Holder shall pay for the expenses of registration in such
additional jurisdictions, including, without limitation, the
fees and expenses of the Corporation's legal counsel
incurred in connection with any such additional
registrations.
(3) use its reasonable efforts to cause the Registrable
Securities covered by the Registration Statement to be
registered with or approved by such other governmental
agencies or authorities as may be necessary by virtue of the
business and operations of the Corporation to enable the
seller or sellers thereof to consummate the disposition of
such Registrable Securities; and
(4) promptly and fully respond to any inquiry by or on behalf of
each Holder of Registrable Securities at any time when a
prospectus relating thereto is required to be delivered
under the Act, concerning the happening of any event as a
result of which the prospectus included in the Registration
Statement contains an untrue statement of a material fact or
omits to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading (including a business combination or contemplated
business combination as a result of which the information
contained in such prospectus is required to be amended), and
the Corporation will prepare a supplement or amendment to
such prospectus so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus
will not contain an untrue statement of a material fact or
omit to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading.
-7-
EXHIBIT "C"
(c) The Corporation may require each Holder of Registrable Securities
as to which the registration is being effected to furnish to the
Corporation such information regarding such Holder, and/or the
proposed method of distribution of such Registrable Securities as
the Corporation may from time to time reasonably request in
writing.
(d) The Holders agree to indemnify and hold harmless the Corporation,
and each of its directors and officers who shall sign the
Registration Statement, and any person who controls the
Corporation within the meaning of the Securities Act, with
respect to any untrue statement or omission of a material fact
from such Registration Statement, any preliminary prospectus or
final prospectus contained therein, or any amendment or
supplement thereto, if such untrue statement or omission of a
material fact was made in reliance upon and in conformity with
written information furnished to the Corporation by such Holder
or underwriter specifically for use in the preparation of the
Registration Statement, final prospectus, or amendment or
supplement.
(d) Each Holder of Registrable Securities that desires to sell and
distribute such Registrable Securities over a period of time, or
from time to time, at then prevailing market prices, shall
execute and deliver to the Corporation such written undertakings
as the Corporation and its counsel may reasonably require in
order to assure full compliance with the relevant provisions of
the Act including, without limitation, Regulation M promulgated
thereunder.
(e) Each Holder of Registrable Securities agrees that, upon receipt
of any notice from the Corporation of the happening of any event
of the kind described in Section 6(b)(4) hereof, such Holder will
forthwith discontinue disposition of Registrable Securities
pursuant to the Registration Statement covering such Registrable
Securities until such Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section
6(b)(4) hereof, and, if so directed by the Corporation, such
Holder will deliver to the Corporation (at the Corporation's
expense) all copies, other than permanent file copies then in
such Holder's possession, of the prospectus covering such
Registrable Securities current at the time of receipt of such
notice. In the event the Corporation shall give any such notice,
the Corporation shall extend the period during which the
Registration Statement shall be maintained effective pursuant to
this Warrant Certificate by the number of days during the period
from and including the date of the giving of such notice pursuant
to Section 6(b)(4) hereof to and including the date when each
seller of Registrable Securities covered by the Registration
Statement shall have received the copies of the supplemented or
amended prospectus contemplated by Section 6(b)(4) hereof.
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EXHIBIT "C"
(f) After all or any portion of the Registrable Securities have been
registered pursuant to the Registration Statement that is
declared effective by the Commission, each selling Holder agrees
that it shall effect, or cause to be effected, in respect of all
shares of the Corporation registered for sale hereunder, and all
other shares of the Corporation owned of record or beneficially
by such Holder, sales of the Corporation's stock in the public
market within the following limitations only: (i) no more than
15,000 registered shares shall be sold during any given trading
day; and (ii) no more than 60,000 registered shares shall be sold
during any given trading week.
(g) Except as otherwise expressly provided herein, all expenses
incident to the Corporation's performance of or compliance with
this Warrant Certificate, including without limitation all
registration and filing fees, fees and expenses of compliance
with securities or "Blue Sky Laws" (including reasonable fees and
disbursements of counsel in connection with "Blue Sky"
qualifications of the Registrable Securities), printing expenses,
messenger and delivery expenses, internal expenses (including,
without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), to the extent
the securities are listed, the fees and expenses incurred in
connection with the listing of the securities to be registered on
each securities exchange on which similar securities issued by
the Corporation are then listed, and fees and disbursements of
counsel for the Corporation and its independent certified public
accountants (including the expenses of any special audit or
"comfort" letters required by or incident to such performance),
securities acts liability insurance (if the Corporation elects to
obtain such insurance), the reasonable fees and expenses of any
special experts retained by the Corporation in connection with
such registration and fees and expenses of other Persons retained
by the Corporation (all such expenses being herein called
"Registration Expenses"), will be borne by the Corporation.
Nothing contained in this Warrant Certificate shall be deemed to
require the Corporation to cause the Registrable Securities to be
rated by any rating agency or listed on any securities exchange.
SECTION 7. RIGHTS OF ACTION. All rights of action with respect to the
------------------
Warrants are vested in the Holder(s) of the Warrants, and any
such Holder may, without the consent of the Holder of any other
Warrant, in such Holder's own behalf and for such Holder's own
benefit, enforce against the Corporation such Holder's right to
exercise the Warrants for the purchase of shares of Common Stock
in the manner provided in this Warrant Certificate.
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EXHIBIT "C"
SECTION 8. AGREEMENT OF WARRANT HOLDERS. Every Holder of a Warrant, by such
----------------------------
Holder's acceptance thereof, consents and agrees with the
Corporation and every other Holder of a Warrant that:
(a) the Warrants may not be transferred except with the written consent of the
Corporation, and upon presentation to the Corporation, if requested, of an
opinion of counsel to the transferring Holder (at such Holder's expense)
that any such proposed transfer will not be in violation of any applicable
federal or state securities law or regulation, and on the registry books of
the Corporation by each Holder thereof in person or by such Holder's
attorney duly authorized in writing and only if the Warrant Certificates
representing such Warrants are surrendered at the Corporate Office of the
Corporation, duly endorsed or accompanied by a proper instrument of
transfer satisfactory to the Corporation in its sole discretion, together
with payment of any applicable transfer taxes; and
(b) the Corporation may deem and treat the person in whose name the
Warrant Certificate is registered as the holder, and as the absolute,
true and lawful owner, of the Warrants represented thereby for all
purposes, and the Corporation shall not be affected by any notice or
knowledge to the contrary, except as otherwise expressly provided in
Section 8(a) hereof.
SECTION 9. MODIFICATION OF WARRANTS. This Warrant Certificate may be modified,
------------------------
supplemented or altered in any respect only with the consent in
writing of the Corporation and Holders of Warrants representing not
less than 51% of the Warrants then outstanding; provided, that no
change in the number or nature of the securities purchasable upon the
exercise of any Warrant, or the acceleration of the Exercise Date,
shall be made without the consent in writing of the Holders of the
Warrant Certificate representing such Warrant, other than such changes
as are specifically prescribed by this Warrant Certificate as
originally executed or are made in compliance with applicable law.
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EXHIBIT "C"
SECTION 10. NOTICES. All notices, requests, consents and other communications
-------
hereunder shall be in writing and shall be deemed to have been made
when delivered or mailed first class registered or certified mail,
postage prepaid as follows: if to the Holder of a Warrant Certificate,
at the address of such holder as shown on Schedule A attached hereto;
----------
if to the Corporation, at 000 Xxx Xxxx Xxxxx, Xxxxx 0000, Xxxxxx, XX
00000, Attention: Xx. Xxxxx Xxxxxxx, or at such other address as may
have been furnished to the Holders in writing by the Corporation
(together with a copy, which shall not constitute notice, sent to
Xxxxxxxx, August & Xxxxxxxxx LLP, 00000 XxxXxxxxx Xxxx., Xxxxx 000,
Xxxxxx, XX 00000, Attn: Xxxxxxx X. August, Esq.).
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EXHIBIT "C"
SECTION 11. GOVERNING LAW. This Warrant shall be governed by and construed in
-------------
accordance with the internal laws of the State of California
applicable to the performance and enforcement of contracts made within
such state, without giving effect to the law of conflicts of laws
applied thereby. In the event that any dispute shall occur between the
parties arising out of or resulting from the construction,
interpretation, enforcement or any other aspect of this Warrant, the
parties hereby agree to accept the exclusive jurisdiction of the
Courts of the State of California sitting in and for the County of
Orange. In the event either party shall be forced to bring any legal
action to protect or defend its rights hereunder, then the prevailing
party in such proceeding shall be entitled to reimbursement from the
non-prevailing party of all fees, costs and other expenses (including,
without limitation, the reasonable expenses of its attorneys) in
bringing or defending against such action
SECTION 12. ENTIRE AGREEMENT. This Warrant contains the entire understanding
-----------------
between the parties relating to the subject matter and merges all
prior discussions, negotiations and agreements, if any between them.
Neither of the parties to this agreement shall be bound by an y
representations, warranties, covenants, or other understandings
relating to the subject matter, other than as expressly provided or
referred to herein.
IN WITNESS WHEREOF, the Corporation has caused this Warrant Certificate to
be duly executed, manually or in facsimile, by two of its officers thereunto
duly authorized, as of the date set forth below.
WORLDWIDE WIRELESS
NETWORKS, INC. ATTEST:
BY: /s/ /s/
--------------------------- ---------------------------
Xxxxx Xxxxxxx Xxxxxx Xxxx
--------------------------- ---------------------------
President Secretary
Date: 4/20/01
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EXHIBIT "C"
SCHEDULE A
LIST OF HOLDERS
---------------
Name of Holder Number of Warrants
-------------- ------------------
Pacific Industrial Partners, LLC 125,000
Address:
Xxx Xxxxxx 20,875
Address:
Xxxx Xxxxxxx 20,875
Address:
Xxx Xxxxxx 20,875
Address:
Misuma Investment, LLC 52,375
Address:
Xxx Xxxxx 10,000
Address:
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EXHIBIT "C"
