STOCK PURCHASE AGREEMENT
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THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made and entered
into as of July 12, 2001, by and among USWEBAUCTIONS, INC., f/k/a August Project
1 Corp., a Florida corporation ("USWA"), A1 CELLULAR, a North Carolina
corporation ("A1"), XXXX X. XXXXXXXXXX, a Florida resident ("Ingarfield"), XXXXX
XXXXXX, a South Carolina resident ("Xxxxxx") and XXXXXXX X. XXXXXX, a South
Carolina resident ("X. Xxxxxx").
RECITALS:
X. Xxxxxx owns 160 shares of the outstanding common stock, par value
$1.00 per share of X0 (xxx "X0 Xxxxxx Xxxxx") and X. Xxxxxx owns 40 shares of
the A1 Common Stock which together constitutes all of the issued and outstanding
capital stock of A1.
X. Xxxxxxxxxx owns all of the issued and outstanding capital stock of
Lido Capital Corporation, a Florida corporation ("Lido Capital"), and Ingarfield
and Lido Capital own twenty-three and one-tenth percent (23.1%) of the issued
and outstanding capital stock of USWA. Ingarfield is entering into this
Agreement for the benefits he will receive as a shareholder of USWA.
X. Xxxxxx and X. Xxxxxx desire to exchange the A1 Common Stock for
newly-issued shares of common stock, par value $0.001 per share of USWA (the
"USWA Common Stock") on the terms and conditions set forth herein. This
transaction is intended to be tax-free under the Internal Revenue Code of 1986,
as amended (the "Code").
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual agreements, covenants
and premises set forth herein for certain other good and valuable consideration,
the receipt and adequacy which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. STOCK EXCHANGE AND RELATED TRANSACTIONS.
1.1. PREAMBLE AND RECITALS. The preamble and recitals hereinabove set
forth are incorporated herein and made a part hereof.
1.2. STOCK EXCHANGE. USWA shall acquire and Xxxxxx and X. Xxxxxx shall
transfer to USWA one hundred percent (100%) of the capital stock of A1 in
exchange for the issuance of the number of shares of USWA Common Stock as set
forth in Section 1.3 hereof.
1.3. EXCHANGE CONSIDERATION. USWA shall issue newly-issued shares of
USWA Common Stock to Xxxxxx and X. Xxxxxx in exchange for all of the A1 Common
Stock. The total number of shares of USWA Common Stock to be issued to Xxxxxx
shall be eight million six hundred forty thousand (8,640,000) shares and to be
issued to X. Xxxxxx shall be two million one hundred sixty thousand (2,160,000)
shares (the "Exchange Consideration").
1.4. CLOSING AND EFFECTIVE DATE. The closing shall occur as soon as
practicable after the satisfaction of the conditions precedent set forth in
Sections 6, 7 and 8 hereof, but in no event later than ninety (90) days after
the date of this Agreement (the "Closing"). The date of Closing is referred to
herein as the "Closing Date." The Closing shall take place at a location and
time as may be mutually agreed upon by USWA and Xxxxxx.
1.5. REGISTRATION.
1.5.1. MANDATORY REGISTRATION. Prior to the Closing Date, USWA
shall prepare, file with and have declared effective by the Securities and
Exchange Commission (the "SEC") a registration statement covering the resale of
all of the shares of USWA Common Stock held by the entities as set forth in
Schedule 1.5 attached hereto in such amounts as set forth opposite such
entities' names (the "Investor Shares"). In the event that Form S-3 is
unavailable for such registration, USWA shall use such other form as is
available for such a registration. USWA shall use its best efforts to have such
registration statement declared effective as son as reasonably possible after
filing with the SEC.
1.5.2. EXPENSES OF REGISTRATION. All expenses incurred in connection
with registrations, filings or qualifications pursuant to Section 1.5.1,
including, without limitation, all registration, listing and qualification fees,
printers, legal and accounting fees shall be paid by Ingarfield and either paid
or escrowed prior to Closing under terms acceptable to Xxxxxx.
1.6. FEES AND EXPENSES. Prior to the Closing, USWA shall pay all fees
and expenses of Xxxxxxxxxxx & Xxxxxxxx LLP and HJ & Associates, LLC incurred by
USWA through the Closing Date. An estimate of said fees and the basis of
computation is attached hereto as Schedule 1.6.
1.7 AUDIT. After Closing, USWA shall reimburse A1 for all fees, costs
and expenses paid by it for the audit of A1 as described in Section 3.6 hereof.
2. ADDITIONAL AGREEMENTS.
2.1. ACCESS AND INSPECTION. Each party hereto has allowed, and shall
continue to allow the other parties (as applicable) and their authorized
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representatives full access to all of the properties, books, contracts,
commitments and records of the other party for the purpose of making such
investigations as each party has or will reasonably requested in connection with
the transactions contemplated hereby.
2.2. CONFIDENTIAL TREATMENT OF INFORMATION. From and after the date
hereof, the parties hereto shall and shall cause their representatives to hold
in confidence this Agreement (including the Schedules hereto), all matters
relating hereto and all data and information obtained with respect to the other
parties or their business, except such data or information as is published or is
a matter of public record, or as compelled by legal process. In the event this
Agreement is terminated pursuant to Section 10 hereof, each party shall promptly
return to the other(s) any statements, documents, schedules, exhibits or other
written information obtained from them in connection with this Agreement, and
shall not retain any copies thereof.
2.3. CONFIDENTIALITY.
2.3.1. CONFIDENTIAL INFORMATION. Upon the termination of this
Agreement, A1 and Xxxxxx shall return to USWA and USWA and Ingarfield shall
return to A1 any such property or documents which are in their possession,
custody or control, but each party's obligation of confidentiality shall survive
such termination and unless any confidential and secret information which is a
competitive asset of USWA or A1("Confidential Information") shall have become,
through no fault of A1 or Xxxxxx with respect to USWA and through no fault of
USWA or Ingarfield with respect to A1, generally known to the trade. The
obligations of each party under this subsection are in addition to, and not in
limitation or preemption of, all other obligations of confidentiality which each
party may have under general legal or equitable principles or under an
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employment agreement (as hereinafter defined).
2.3.2. NO SOLICITATION OF COMPETING TRANSACTIONS. From and after
the date hereof until the earlier of the Closing Date or the termination of this
Agreement, A1, Xxxxxx, USWA, and Ingarfield will not, directly or indirectly,
and will instruct their respective representatives not to, directly or
indirectly, solicit or initiate (including by way of furnishing non-public
information), or take any other action knowingly to facilitate, any inquiries or
the making of any proposal or offer that constitutes: (a) a merger,
consolidation, share exchange, business combination or other similar
transaction; (b) a sale, lease, exchange, transfer or other disposition of any
significant assets of A1 or USWA, other than in the ordinary course of business
or sales of obsolete materials; or (c) an acquisition of any A1 capital stock or
USWA capital stock (collectively, a "Competing Transaction"), or enter into or
maintain or continue discussions or negotiate with any person or entity in
furtherance of such inquiries or to obtain a Competing Transaction, or agree to
or endorse any Competing Transaction, or authorize or permit any of their
representatives to take any such action. A1 and USWA immediately shall cease and
cause to be terminated all existing discussions or negotiations with any parties
conducted with respect to a Competing Transaction.
2.3.3. REMEDIES. It is expressly agreed by A1, Xxxxxx, USWA and
Ingarfield that the provisions in this Section 2 are reasonable for purposes of
preserving for A1 and USWA their respective businesses, goodwill and
Confidential Information. It is also agreed that if any provision is found by a
court having jurisdiction to be unreasonable because of scope, area or time,
then that provision shall be amended to correspond in scope, area and time to
that considered reasonable by a court and as amended shall be enforced and the
remaining provisions shall remain effective. In the event any breach, actual or
threatened, of these provisions by any party hereto, the parties recognize and
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acknowledge that a remedy at law will be inadequate and the other parties may
suffer irreparable injury. Each party hereto consents to injunctive and other
appropriate equitable relief without the posting of a bond upon the institution
of proceedings therefor by the other parties in order to protect the other
parties' rights. Such relief shall be in addition to any other relief to which
each party may be entitled at law, in equity, or under any other agreement. The
provisions of this Section 2.3 (including the subsections) shall survive the
termination of this Agreement.
2.4. PUBLIC ANNOUNCEMENTS. The parties will consult with each other
before issuing any press releases or otherwise making any public statement with
respect to this Agreement or any of the transactions contemplated hereby and no
party will issue any such press release or make any such public statement
without the prior written consent of the other parties, except as may be
required by law or by the rules and regulations of any governmental authority or
securities exchange.
2.5. SECURITIES LAW MATTERS.
2.5.1. PRIVATE PLACEMENT. The issuance of the shares of USWA
Common Stock to Xxxxxx and X. Xxxxxx hereunder shall not be registered under the
Securities Act of 1933, as amended, (the "Securities Act") by reason of the
exemption provided by Section 4(2) thereof, and such shares may not be further
transferred unless such transfer is registered under applicable securities laws
or, in the opinion of USWA's or Xxxxxx'x counsel, such transfer complies with an
exemption from such registration. All certificates evidencing the Exchange
Consideration to be issued to Xxxxxx and X. Xxxxxx shall be legended to reflect
the foregoing restriction.
2.6. FURTHER ASSURANCES. The parties shall deliver any and all other
instruments or documents required to be delivered pursuant to, or necessary or
proper in order to give effect to, the provisions of this Agreement, including,
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without limitation, all necessary stock powers and such other instruments of
transfer as may be necessary or desirable to transfer ownership of the A1 Common
Stock to USWA and to consummate the transactions contemplated by this Agreement.
2.7. EMPLOYMENT AGREEMENTS. At the Closing, Xxxxxx shall execute and
deliver an employment agreement (the "Employment Agreement") with USWA or A1 in
the form attached hereto as Schedule 2.7.
2.8. CONSISTENT TAX FILING POSITION. Each of the parties hereto shall
file all federal income tax returns in a manner consistent with the intended
tax-free nature of this transaction.
2.9. USWA'S FINANCIAL CONDITION AT CLOSING. Prior to the Closing, USWA
shall take such action to transfer all of the assets out of USWA and pay all
liabilities of USWA so that effective as of the Closing, USWA shall not have any
assets or liabilities whatsoever.
2.10. DISTRIBUTIONS BY A1. A1 has elected to be taxed as an "S"
Corporation under the Code. Prior to the Closing, A1 shall distribute to Xxxxxx
and X. Xxxxxx assets of A1 equal to A1's accumulated, but undistributed,
earnings and profits as determined by the Internal Revenue Code.
2.11. SEC FILINGS. Prior to the Closing, USWA shall timely make all
appropriate filings with the Securities and Exchange Commission.
2.12. DIRECTORS AND OFFICERS. At the Closing, the then-current officers
and directors of USWA shall resign effective as of the Closing Date. The parties
hereto agree to take the necessary action to elect new officers and directors of
USWA as nominated by Xxxxxx.
2.13. HGB FEE. After the Closing, USWA shall pay the $100,000
consulting fee due to HGB Financial Group, LLC, a South Carolina limited
liability company, ("HGB") pursuant to the Consulting Agreement dated February
1, 2001 between HGB and A1, as amended.
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3. REPRESENTATIONS, COVENANTS AND WARRANTIES OF XXXXXX AND A1. To further induce
USWA and Ingarfield to enter into this Agreement and to consummate the
transactions contemplated hereby, A1 and Xxxxxx each hereby jointly and
severally represent and warrant to and covenant with USWA as follows:
3.1. ORGANIZATION AND QUALIFICATION; ABSENCE OF SUBSIDIARIES. A1 is a
corporation duly organized and validly existing and in good standing under the
laws of the State of North Carolina and has the requisite power and authority to
own, lease and operate its properties and to carry on its business as it is
currently being conducted. A1 is duly qualified or licensed and is in good
standing, in each jurisdiction where the character of the properties owned,
leased or operated by it or the nature of its business makes such qualification
or licensing necessary, except for such failures to be so qualified or licensed
and in good standing that would not, individually or in the aggregate, have a
material adverse effect on the business, properties, assets, financial
condition, prospects or future business of A1 (collectively, an "A1 Material
Adverse Effect"). Except as set forth on Schedule 3.1, A1 does not have any
subsidiaries nor an equity interest in any partnerships or joint venture
arrangements or other business entity.
3.2. CAPITALIZATION AND RELATED MATTERS.
3.2.1. Shares; Capitalization. The authorized capital stock of A1
consists solely of 100,000 shares of common stock $1.00 par value per share, of
which two hundred (200) shares are issued and outstanding and none are held in
its treasury. All of the shares of A1 Common Stock are owned of record, legally
and beneficially by Xxxxxx and X. Xxxxxx. The shares of A1 Common Stock are free
and clear of any and all security interests, encumbrances, and rights of any
kind or nature whatsoever (collectively, "Encumbrances"), and upon delivery of
the A1 Common Stock hereunder, USWA will acquire title thereto, free and clear
of any and all Encumbrances. Other than voting rights, redemption rights and
such other rights conferred by A1's charter documents and by applicable North
Carolina statutes, there exist no Securities Rights (as defined herein) with
respect to the A1 Common Stock. All rights and powers to vote the shares of A1
Common Stock are held exclusively by Xxxxxx and X. Xxxxxx. All of the A1 Common
Stock are validly issued, fully paid and nonassessable, were not issued in
violation of the terms of any agreement or other understanding, and were issued
in compliance with all applicable federal and state securities or "blue sky"
laws and regulations. The certificates representing the A1 Shares to be
delivered to USWA at the Closing are, and the signatures and endorsements
thereof or stock powers relating thereto will be, valid and genuine. For the
purposes of this section, "Securities Rights" means, with respect to the A1
Common Stock (whether issued or unissued) or any other securities convertible
into or exchangeable for A1 Common Stock, and includes all written or unwritten
contractual rights relating to the issuance, sale, assignment, transfer,
purchase, redemption, conversion, exchange, registration or voting of the A1
Common Stock and all rights conferred by A1's governing documents and by any
applicable agreement.
3.2.2. LIABILITIES AND OBLIGATIONS. A1 has no material debt,
obligation or liability, absolute, fixed, contingent or otherwise, of any nature
whatsoever, whether due or to become due, including any unasserted claim,
whether incurred directly or by any predecessor thereto, and whether arising out
of any act, omission, transaction, circumstance, sale of goods or services,
state of facts or other condition, which individually or in the aggregate would
have an A1 Material Adverse Effect except: (i) those reflected or reserved
against on the A1 Financial Statements (as defined herein) in the amounts shown
therein; (ii) those that have arisen in the ordinary course of business of A1
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after the Balance Sheet Date (as defined herein) through the Closing Date, none
of which, individually or in the aggregate, has had or will have an A1 Material
Adverse Effect on the business or financial condition of A1; and (iii) those set
forth in Schedule 3.2.
3.3. Articles of Incorporation and By-Laws. Attached hereto as Schedule
3.3 are complete and correct copies of the articles of incorporation and the
by-laws of A1. Such Articles of Incorporation and By-Laws are in full force and
effect and have not been amended or modified.
3.4. Authority Relative to This Agreement. A1 and Xxxxxx have all
necessary corporate power and authority to execute and deliver this Agreement,
to perform their obligations hereunder and to consummate the transactions
contemplated by this Agreement. Xxxxxx has full right and capacity to enter into
this Agreement and to carry out his obligations hereunder. The execution and
deliver of this Agreement by A1 and Xxxxxx, the performance by Xxxxxx of his
obligations hereunder and the consummation by A1 of the transactions
contemplated by this Agreement have been duly authorized by all necessary action
on the part of A1 or Xxxxxx as are necessary to authorize this Agreement or to
consummate the transactions contemplated by this Agreement. This Agreement has
been duly and validly executed and delivered by A1 and Xxxxxx and constitutes
the legal, valid and binding obligations of A1 and Xxxxxx, enforceable against
A1 and Xxxxxx in accordance with its terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency, reorganization or other similar laws
of general application affecting the enforcement of creditors' rights generally.
3.5. Permits and Licenses; Compliance. To the best knowledge of
Xxxxxx and A1, A1 is in possession of all permits and licenses necessary for the
conduct of its business and, as of the date hereof, no suspension or
cancellation of any such permits or licenses is pending or, to the knowledge of
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Xxxxxx and A1 after reasonable investigation, threatened, except where the
failure to possess, or the suspension or cancellation of, any such permits or
licenses would not, individually or in the aggregate, have an A1 Material
Adverse Effect. A1 is not in conflict with, or in default or violation of, (a)
any law applicable to A1 or by which any property or asset of A1 is bound or (b)
any permit or license, other than conflicts or violations which, individually or
in the aggregate, would not have an A1 Material Adverse Effect.
3.6. FINANCIAL STATEMENTS. True and complete copies of (a) the audited
balance sheet of A1 for the fiscal periods ended as of December 31, 1999 and
2000 and the related audited statements of income, retained earnings and cash
flow for the periods ending as of December 31, 1999 and 2000 with all related
notes and schedules thereto, accompanied by the reports thereon by A1's
Accountants (collectively referred to herein as the "A1 Audited Financial
Statements") and (b) the unaudited balance sheets of A1 for May 2001 and the
related statements of income of A1 (collectively referred to herein as the "A1
Interim Financial Statements and together with the A1 Audited Financial
Statements are collectively referred to as the "A1 Financial Statements") are
attached hereto as Schedule 3.6. The A1 Financial Statements (i) were prepared
in accordance with the books of account and other financial records of A1, (ii)
present fairly the financial condition and results of operations of A1 as of the
dates thereof or for the periods covered thereby in all material respects, (iii)
have been prepared in accordance with U.S. GAAP (except as may be indicated in
the notes thereto) applied on a basis consistent with the past practices of A1
and (iv) include all adjustments (consisting only of normal recurring accruals)
that are necessary for a fair presentation of the financial condition of A1 and
the results of the operations of A1 as of the dates thereof or for the periods
covered thereby (subject, in the case of A1 Interim Financial Statement, to
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normal recurring year-end adjustments).
3.7. ABSENCE OF LITIGATION. There is no legal or administrative action
or proceeding pending or, to the knowledge of A1 or Xxxxxx after reasonable
investigation, threatened against A1 or any property or asset of A1.
3.8. EMPLOYEE BENEFIT MATTERS.
3.8.1. BENEFIT PLANS. Except as set forth in Schedule 3.8, there
are no employee benefit plans (as defined in Section 3(3) of ERISA), bonus,
stock option, stock purchase, restricted stock, incentive, deferred
compensation, retiree medical or life insurance, supplemental retirement,
severance or other benefit plans, programs or arrangements to which A1 is a
party, with respect to which A1 has any obligation, or which are maintained,
contributed to, or sponsored by A1 for the benefit of any current or former
employee, officer, or director of A1.
3.9. INTELLECTUAL PROPERTY.
3.9.1. Set forth on Exhibit 3.9 hereto is a list of customers,
products, product know-how and technology used by A1 in the conduct of its
business (the "A1 Intellectual Property").
3.9.2. No claim has been asserted to the best knowledge of Xxxxxx
and A1 that the use of A1 Intellectual Property or the conduct of the business
of A1 does or may infringe upon such rights of any third party.
3.9.3. Subject to ordinary software licenses, A1 is the owner of
the entire, title and interest in and to the Intellectual Property, free and
clear of all Encumbrances, and has the right to use, all A1 Intellectual
Property in the continued operations of A1.
3.9.4. The A1 Intellectual Property has not been adjudged invalid
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or unenforceable in whole or part by any governmental authority.
3.9.5. To the best knowledge of A1 and Xxxxxx, no person or entity
is engaging in any activity that infringes upon A1 Intellectual Property or upon
the rights of A1 therein. The consummation of the transactions contemplated by
this Agreement will not result in the termination or impairment of any of A1
Intellectual Property.
3.9.6. Except as set forth on Schedule 3.9, A1 has not granted to,
nor received from, any third party any license or sublicense of intellectual
property.
3.10. TAXES. A1 has (a) filed all federal, state, local and foreign Tax
(as defined herein) returns required to be filed by it prior to the date of this
Agreement (taking into account extensions), (b) paid or accrued all Taxes shown
to be due on such returns and paid all applicable ad valorem and value added
Taxes as are due, and (c) paid or accrued all Taxes for which a notice of
assessment or collection has been received (other than amounts being contested
in good faith by appropriate proceedings), except in the case of clause (a), (b)
or (c) for such filings, payments or accruals which would not, individually or
in the aggregate, have an A1 Material Adverse Effect. A1 has not received from
any governmental authority any written notice of proposed adjustment, deficiency
or underpayment of any Taxes, which notice has not been satisfied by payment or
been withdrawn, and there are no material claims that have been asserted or
threatened relating to such Taxes against A1. A1 has withheld or collected and
paid over to the appropriate governmental authorities (or is properly holding
for such payment) all Taxes required by law to be withheld or collected, except
for amounts which would not, individually or in the aggregate, have an A1
Material Adverse Effect. For purposes of this Agreement, "Tax" or "Taxes" means
any and all taxes, fees, levies, duties, tariffs, imposts and other charges of
any kind (together with any and all interest, penalties, additions to tax and
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additional amounts imposed with respect thereto) imposed by any government or
taxing authority, including, without limitation: taxes or other charges on or
with respect to income, franchises, windfall or other profits, gross receipts,
property, sales, use, capital stock, payroll, employment, social security,
workers' compensation, unemployment compensation, or net worth; taxes or other
charges in the nature or excise, withholding, ad valorem, stamp, transfer, value
added or gains taxes, license, registration and documentation fees, and custom
duties, tariffs and similar charges.
3.11. ASSETS.
3.11.1. Except as disclosed in Schedule 3.11, A1 owns, leases or
has the right to use all the properties and assets, including, without
limitation, the real property and personal property, used in the conduct of its
business or otherwise owned, leased, or used by A1 and, with respect to contract
rights, is a party to and enjoys the right to the benefits of all contracts,
agreements and other arrangements used or intended to be used by A1 or in or
relating to the conduct of its business (all such properties, assets and
contract rights being the "Assets"). A1 has good and marketable title to, or, in
the case of leased or subleased Assets, valid and subsisting leasehold interests
in, all the Assets, free and clear of all Encumbrances, except as set forth in
the A1 Financial Statements.
3.11.2. The Assets constitute all the properties, assets and
rights forming a part of, used or held in, and all such properties, assets and
rights used in the conduct of, the business of A1 as it is currently conducted.
A1 has caused the Assets to be maintained in accordance with good business
practice, and all the Assets are in good operating condition and repair, normal
wear and tear excepted.
3.12. Execution; No Inconsistent Agreements; Etc. Except as disclosed
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in Schedule 3.12, the execution and delivery of this Agreement by Xxxxxx and A1
does not, and the consummation of the transactions contemplated hereby will not,
constitute a breach or violation of the charter or by-laws of A1, or a default
under any of the terms, conditions or provisions of (or an act or omission that
would give rise to any right of termination, cancellation or acceleration under)
any material note, bond, mortgage, lease, indenture, agreement or obligation to
which A1 or Xxxxxx is a party, pursuant to which A1 or Xxxxxx otherwise receives
benefits, or to which any of the properties of A1 or Xxxxxx is subject.
3.13. CORPORATE RECORDS. The statutory records, including the
stock register and minute books of A1, fully reflect all issuances, transfers
and redemptions of its capital stock, correctly show and will correctly show the
total number of shares of its capital stock issued and outstanding on the date
hereof and on the Closing Date, the charter or other organizational documents
and all amendments thereto, and its by-laws as amended and currently in force.
3.14. ABSENCE OF CHANGES. Except as described in Schedule 3.14, from
December 31, 2000 (the "Balance Sheet Date") to the date of this Agreement:
3.14.1. there has been no material adverse change in the business,
assets, liabilities, results of operations or financial condition of A1 or its
relationships with suppliers, customers, employees, lessors or others; and
3.14.2. A1 has materially complied with the covenants and
restrictions set forth in Section 5 to the same extent as if this Agreement had
been executed on, and had been in effect since the Balance Sheet Date.
3.15. COMPLIANCE WITH LAW. The business and activities of A1 have at
all times been conducted in accordance with its Articles of Incorporation and
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by-laws, any applicable law, regulation, ordinance, order, license, permit,
rule, injunction or other restriction or ruling of any court or administrative
or governmental agency, ministry, or body.
3.16. CONTINGENCIES. There are no actions, suits, claims or proceedings
pending, or, to the knowledge of A1 and Xxxxxx after reasonable investigation,
threatened against, by or affecting A1 or Xxxxxx in any court or before any
arbitrator or governmental agency that may have an A1 Material Adverse Effect or
which could adversely affect the right or ability of A1 or Xxxxxx to consummate
the transactions contemplated hereby. To the best knowledge of A1 and Xxxxxx,
there is no valid basis upon which any such action, suit, claim, or proceeding
may be commenced or asserted against A1. There are no unsatisfied judgments
against A1 and no consent decrees or similar agreements to which A1 is subject.
3.17. MATERIAL CONTRACTS. Except as set forth on Schedule 3.17, there
are no contracts of A1 which involve consideration in excess of the equivalent
of $10,000.00 or have a term of one (1) year or more (collectively, the
"Material Contracts").
3.18. INSURANCE. Schedule 3.18 contains a complete list of all policies
of insurance presently maintained by A1, all of which are, and will be
maintained through the Closing Date, in full force and effect, and all premiums
due thereon have been paid. A1 has received no notices of cancellation with
respect thereto.
3.19. EMPLOYMENT AND LABOR MATTERS. Schedule 3.19 sets forth the name,
position, employment date, and current compensation (base and bonus) of each
employee of A1. A1 is not a party to any collective bargaining agreement or
agreement of any kind with any union or labor organization. There has not been
any attempt by any union or other labor organization to organize the employees
of A1 at any time.
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3.20. ENVIRONMENTAL MATTERS. A1 is not in violation, in any material
respect, of any Environmental Law (as defined herein); A1 has received all
permits and approvals with respect to emissions into the environment and the
proper collection, storage, transport, distribution or disposal of Wastes (as
defined herein) and other materials required for the operation of its business
at present operating levels; and A1 is not liable or responsible for any clean
up, fines, liability or expense arising under any Environmental Law, as a result
of the disposal of Wastes or other materials in or on the property of A1
(whether owned or leased), or in or on any other property, including property no
longer owned, leased or used by A1. As used herein, (a) "Environmental Laws"
means, collectively, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, the Superfund Amendments and Reauthorization
Act of 1986, the Resource Conservation and Recovery Act, the Toxic Substances
Control Act, as amended, the Clean Air Act, as amended, the Clean Water Act, as
amended, any other "Superfund" or "Superlien" law or any other federal, or
applicable state or local statute, law, ordinance, code, rule, regulation, order
or decree (foreign or domestic) regulating, relating to, or imposing liability
or standards of conduct concerning, Wastes, or the environment; and (b) "Wastes"
means and includes any hazardous, toxic or dangerous waste, liquid, substance or
material (including petroleum products and derivatives), the generation,
handling, storage, disposal, treatment or emission of which is subject to any
Environmental Law.
3.21. INVENTORIES. The amounts stated as inventories of A1 on the A1
Financial Statements reflect fairly the products, materials and supplies and
spare parts held by it on each respective date for its use or for sale to
customers. The inventory shown on the A1 Financial Statements (i) represents
items of a quality and quantity usable and saleable in the ordinary course of
business, and (ii) conforms in all material respects to customary trade
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standards for such inventory in A1's current markets. The quantity and quality
of the inventory of A1 as of the Closing Date shall be the same as that existing
as of the Balance Sheet Date, except for changes occurring in the ordinary
course of business, none of which shall have an A1 Material Adverse Effect. A1
has not given and shall not give, prior to the Closing Date, any express written
warranty with respect to any goods or products sold except standard
manufacturer's warranties.
3.22. RECEIVABLES. To the knowledge of A1 and Xxxxxx, all notes
receivable and accounts receivable shown on the A1 Financial Statements and all
such receivables now held by A1 were and are valid and collectible obligations
of the respective makers thereof and were not and are not subject to any offset
or counterclaim; except for a portion of such receivables, not to exceed the
amount, if any, shown as the allowance for bad debt on the A1 Financial
Statements, which may prove not to be collectible.
3.23. Agreements and Transactions with Related Parties. Except as set
forth in Schedule 3.23, A1 is not, and since the date of the A1 Balance Sheet
has not been, a party to any material contract, agreement, lease or transaction
with, or any other commitment to, (i) a Shareholder, (ii) any person related by
blood, adoption or marriage to a Shareholder, (iii) any director or officer of
A1, (iv) any corporation or other entity in which any of the foregoing parties
has, directly or indirectly, at least five percent (5.0%) beneficial interest in
the capital stock or other type of equity interest in such corporation or other
entity, or (v) any partnership in which any such party is a general partner or a
limited partner having a five percent (5%) or more interest therein (any or all
of the foregoing being herein referred to as a "Related Party" and collectively
as the "Related Parties"). Except as set forth on Schedule 3.23 and without
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limiting the generality of the foregoing, (A) no Related Party, directly or
indirectly, owns or controls any assets or properties which are or have since
the date of the A1 Balance Sheet been used in the business of A1, and (B) no
Related Party, directly or indirectly, engages in or has any significant
interest in or connection with any business: (1) which is or which, since
inception of A1, has been a competitor, customer or supplier of, or has done
business with, A1, or (2) which as of the date hereof sells or distributes
products or provides services which are similar or related to the products or
services of A1.
3.24. FULL DISCLOSURE. No representation or warranty of A1 or Xxxxxx
contained in this Agreement, and none of the statements or information
concerning A1 contained in this Agreement and the Exhibits and Schedules hereto,
contains or will contain any untrue statement of a material fact nor will such
representations, warranties, covenants or statements taken as a whole omit a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. 3.25. ____ Acknowledgment of Receipt of Disclosure Materials.
Xxxxxx has received and reviewed copies of the following disclosure documents
filed by USWA with the Securities and Exchange Commission (collectively, the
"SEC Documents"): (1) Reports on Form 10-QSB for the three month period ended
March 31, 2000, June 30, 2000, September 30, 2000 and March 31, 2001; (2) Report
on Form 10-KSB for the year ended December 31, 2000; and (3) Registration
Statement on Form 10-SB, filed on February 24, 2000.
4. REPRESENTATIONS AND WARRANTIES OF USWA AND INGARFIELD. To induce A1 and
Xxxxxx to enter into this Agreement and to consummate the transactions
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contemplated hereby, USWA and Ingarfield each hereby jointly and severally
represent and warrant to and covenant with A1 and Xxxxxx as follows:
4.1. ORGANIZATION AND QUALIFICATION; ABSENCE OF SUBSIDIARIES.
USWA is a corporation duly organized and validly existing and in good standing
under the laws of the State of Florida and has the requisite power and authority
to own, lease and operate its properties and to carry on its business as it is
currently being conducted. USWA is duly qualified or licensed and is in good
standing, in each jurisdiction where the character of the properties owned,
leased or operated by it or the nature of its business makes such qualification
or licensing necessary, except for such failures to be so qualified or licensed
and in good standing that would not, individually or in the aggregate, have a
material adverse effect on the business, properties, assets, financial
condition, prospects or future business of USWA (collectively, an "USWA Material
Adverse Effect"). Except as set forth on Schedule 4.1, USWA does not have any
subsidiaries nor an equity interest in any partnerships or joint venture
arrangements or other business entity.
4.2. CAPITALIZATION AND RELATED MATTERS.
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4.2.1. Shares; Capitalization. The authorized capital stock of
USWA consists of 50,000,000 shares of common stock, of which 9,680,000 shares
are issued and outstanding and 10,000,000 shares of preferred stock, none of
which is outstanding. As of the Closing Date, USWA shall have effected a reverse
stock split which shall result in USWA having an aggregate of 2,000,000 shares
of common stock issued and outstanding. The USWA Common Stock will be, as of the
Closing Date, duly and validly authorized and issued, fully paid and
non-assessable, and will be issued to Xxxxxx and X. Xxxxxx free of all
Encumbrances, claims and liens whatsoever. As of the Closing, USWA will have
12,800,000 issued and outstanding shares of common stock of which 10,800,000
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shall be issued to Xxxxxx and X. Xxxxxx. Other than voting rights, redemption
rights and such other rights conferred by USWA's charter documents and by
applicable Florida statutes, there exist no Securities Rights (as defined
herein) with respect to the USWA Common Stock. None of the USWA Common Stock was
issued in violation of the terms of any agreement or other understanding, and
were issued in compliance with applicable securities laws and regulations. For
the purposes of this section "Securities Rights" means, with respect to the USWA
Common Stock (whether issued or unissued) or any other securities convertible in
to or exchangeable for USWA Common Stock, and includes all written or unwritten
contractual rights relating to the issuance, sale, assignment, transfer,
purchase, redemption, conversion, exchange, registration or voting of the USWA
Common Stock and all rights conferred by USWA's governing documents and by any
applicable agreement.
4.2.2. LIABILITIES AND OBLIGATIONS. USWA has no material debt,
obligation or liability, absolute, fixed, contingent or otherwise, of any nature
whatsoever, whether due or to become due, including any unasserted claim,
whether incurred directly or by any predecessor thereto, and whether arising out
of any act, omission, transaction, circumstance, sale of goods or services,
state of facts or other condition, which individually or in the aggregate would
have an USWA Material Adverse Effect except: (i) those reflected or reserved
against on the USWA Financial Statements (as defined herein) in the amounts
shown therein; (ii) those that have arisen in the ordinary course of business of
USWA after the Balance Sheet Date (as defined herein) through the Closing Date,
none of which, individually or in the aggregate, has had or will have an USWA
Material Adverse Effect on the business or financial condition of USWA; and
(iii) those set forth in Schedule 4.2.
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4.3. ARTICLES OF INCORPORATION AND BY-LAWS. Attached hereto as Schedule
4.3 are complete and correct copies of the articles of incorporation and the
by-laws of USWA. Such Articles of Incorporation and By-Laws are in full force
and effect and have not been amended or modified.
4.4. AUTHORITY RELATIVE TO THIS AGREEMENT. USWA has all necessary
corporate power and authority to execute and deliver this Agreement, to perform
its obligations hereunder and to consummate the transactions contemplated by
this Agreement. Ingarfield has full right and capacity to enter into this
Agreement and to carry out his obligations hereunder. The execution and delivery
of this Agreement by USWA and Ingarfield, the performance by Ingarfield of his
obligations hereunder and the consummation by USWA of the transactions
contemplated by this Agreement have been duly authorized by all necessary action
on the part of USWA or Ingarfield as are necessary to authorize this Agreement
or to consummate the transactions contemplated by this Agreement. This Agreement
has been duly and validly executed and delivered by USWA and Ingarfield and
constitutes the legal, valid and binding obligations of USWA and Ingarfield,
enforceable against USWA and Ingarfield in accordance with its terms, except as
the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization or other similar laws of general application affecting the
enforcement of creditors' rights generally.
4.5. PERMITS AND LICENSES; COMPLIANCE. To the knowledge of USWA and
Ingarfield, USWA is in possession of all permits and licenses necessary for the
conduct of its business and, as of the date hereof, no suspension or
cancellation of any such permits or licenses is pending or, to the knowledge of
USWA and Ingarfield after reasonable investigation, threatened, except where the
failure to possess, or the suspension or cancellation of, any such permits or
licenses would not, individually or in the aggregate, have an XXXX Xxxxxxxx
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Xxxxxxx Xxxxxx. USWA is not in conflict with, or in default or violation of, (a)
any law applicable to USWA or by which any property or asset of USWA is bound or
(b) any permit or license, other than conflicts or violations which,
individually or in the aggregate, would not have an USWA Material Adverse
Effect.
4.6. Financial Statements. True and complete copies of (a) the audited
balance sheet of USWA for the fiscal periods ended as of December 31, 2000 and
the related audited statements of income, retained earnings and cash flow for
the periods ending as of December 31, 2000 with all related notes and schedules
thereto, accompanied by the reports thereon by USWA's Accountants (collectively
referred to herein as the "USWA Audited Financial Statements") and (b) the
unaudited balance sheet of USWA as of May 30, 2001 and the related statements of
income of USWA (collectively referred to herein as the "USWA Interim Financial
Statements and together with the USWA Audited Financial Statements are
collectively referred to as the "USWA Financial Statements") have been delivered
by USWA to A1 and Xxxxxx and are attached hereto as Schedule 4.6. The USWA
Financial Statements (i) were prepared in accordance with the books of account
and other financial records of USWA, (ii) present fairly the financial condition
and results of operations of USWA as of the dates thereof or for the periods
covered thereby in all material respects, (iii) have been prepared in accordance
with U.S. GAAP (except as may be indicated in the notes thereto) applied on a
basis consistent with the past practices of USWA and (iv) include all
adjustments (consisting only of normal recurring accruals) that are necessary
for a fair presentation of the financial condition of USWA and the results of
the operations of USWA as of the dates thereof or for the periods covered
thereby (subject, in the case of USWA Interim Financial Statement, to normal
recurring year-end adjustments).
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4.7. ABSENCE OF LITIGATION. There is no legal or administrative action
or proceeding pending or, to the knowledge of USWA or Ingarfield after
reasonable investigation, threatened against USWA or any property or asset of
USWA.
4.8. EMPLOYEE BENEFIT MATTERS.
4.8.1. BENEFIT PLANS. Except as set forth in Schedule 4.8, there
are no employee benefit plans (as defined in Section 3(3) of ERISA), bonus,
stock option, stock purchase, restricted stock, incentive, deferred
compensation, retiree medical or life insurance, supplemental retirement,
severance or other benefit plans, programs or arrangements to which USWA is a
party, with respect to which USWA has any obligation, or which are maintained,
contributed to, or sponsored by USWA for the benefit of any current or former
employee, officer, or director of USWA.
4.9. INTELLECTUAL PROPERTY.
4.9.1. Set forth on Exhibit 4.9 hereto is a list of the customers,
products, product know-how and technology used by USWA in the conduct of its
business (the "USWA Intellectual Property").
4.9.2. No claim has been asserted to the best knowledge of
Ingarfield and USWA that the use of the USWA Intellectual Property or the
conduct of the business of USWA does or may infringe upon such rights of any
third party.
4.9.3. Subject to ordinary software licenses, USWA is the owner of
the entire, title and interest in and to the Intellectual Property, free and
clear of all Encumbrances, and has the right to use, all USWA Intellectual
Property in the continued operations of USWA.
4.9.4. The USWA Intellectual Property has not been adjudged
invalid or unenforceable in whole or part by any governmental authority.
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4.9.5. To the best knowledge of USWA and Ingarfield, no person or
entity is engaging in any activity that infringes upon USWA Intellectual
Property or upon the rights of USWA therein. The consummation of the
transactions contemplated by this Agreement will not result in the termination
or impairment of any of USWA Intellectual Property.
4.9.6. Except as set forth on Schedule 4.9, USWA has not granted
to, nor received from, any third party any license or sublicense of intellectual
property.
4.10. TAXES. USWA has (a) filed all federal, state, local and foreign
Tax (as defined herein) returns required to be filed by it prior to the date of
this Agreement (taking into account extensions), (b) paid or accrued all Taxes
shown to be due on such returns and paid all applicable ad valorem and value
added Taxes as are due, and (c) paid or accrued all Taxes for which a notice of
assessment or collection has been received (other than amounts being contested
in good faith by appropriate proceedings), except in the case of clause (a), (b)
or (c) for such filings, payments or accruals which would not, individually or
in the aggregate, have an USWA Material Adverse Effect. USWA has not received
from any governmental authority any written notice of proposed adjustment,
deficiency or underpayment of any Taxes, which notice has not been satisfied by
payment or been withdrawn, and there are no material claims that have been
asserted or threatened relating to such Taxes against USWA. USWA has withheld or
collected and paid over to the appropriate governmental authorities (or is
properly holding for such payment) all Taxes required by law to be withheld or
collected, except for amounts which would not, individually or in the aggregate,
have an USWA Material Adverse Effect. For purposes of this Agreement, "Tax" or
"Taxes" means any and all taxes, fees, levies, duties, tariffs, imposts and
other charges of any kind (together with any and all interest, penalties,
additions to tax and additional amounts imposed with respect thereto) imposed by
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any government or taxing authority, including, without limitation: taxes or
other charges on or with respect to income, franchises, windfall or other
profits, gross receipts, property, sales, use, capital stock, payroll,
employment, social security, workers' compensation, unemployment compensation,
or net worth; taxes or other charges in the nature or excise, withholding, ad
valorem, stamp, transfer, value added or gains taxes, license, registration and
documentation fees, and custom duties, tariffs and similar charges.
4.11. ASSETS.
4.11.1. Except as disclosed in Schedule 4.11, USWA owns, leases or
has the right to use all the properties and assets, including, without
limitation, the real property and personal property, used in the conduct of its
business or otherwise owned, leased, or used by USWA and, with respect to
contract rights, is a party to and enjoys the right to the benefits of all
contracts, agreements and other arrangements used or intended to be used by USWA
or in or relating to the conduct of its business (all such properties, assets
and contract rights being the "Assets"). USWA has good and marketable title to,
or, in the case of leased or subleased Assets, valid and subsisting leasehold
interests in, all the Assets, free and clear of all Encumbrances, except as set
forth in the USWA Financial Statements.
4.11.2. The Assets constitute all the properties, assets and
rights forming a part of, used or held in, and all such properties, assets and
rights used in the conduct of, the business of USWA as it is currently
conducted. USWA has caused the Assets to be maintained in accordance with good
business practice, and all the Assets are in good operating condition and
repair, normal wear and tear excepted.
4.12. EXECUTION; NO INCONSISTENT AGREEMENTS; ETC. The execution and
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delivery of this Agreement by USWA and Ingarfield does not, and the consummation
of the transactions contemplated hereby will not, constitute a breach or
violation of the charter or by-laws of USWA, or a default under any of the
terms, conditions or provisions of (or an act or omission that would give rise
to any right of termination, cancellation or acceleration under) any material
note, bond, mortgage, lease, indenture, agreement or obligation to which USWA or
Ingarfield is a party, pursuant to which USWA or Ingarfield otherwise receives
benefits, or to which any of the properties of USWA or Ingarfield is subject.
4.13. CORPORATE RECORDS. The statutory records, including the stock
register and minute books of USWA, fully reflect all issuances, transfers and
redemptions of its capital stock, correctly show and will correctly show the
total number of shares of its capital stock issued and outstanding on the date
hereof and on the Closing Date, the charter or other organizational documents
and all amendments thereto, and its by-laws as amended and currently in force.
4.14. ABSENCE OF CHANGES. Except as described in Schedule 4.14, from
December 31, 2000 (the "USWA Balance Sheet Date") to the date of this Agreement:
4.14.1. there has been no material adverse change in the business,
assets, liabilities, results of operations or financial condition of USWA or its
relationships with suppliers, customers, employees, lessors or others; and
4.14.2. USWA has materially complied with the covenants and
restrictions set forth in Section 5 to the same extent as if this Agreement had
been executed on, and had been in effect since the USWA Balance Sheet Date.
4.15. COMPLIANCE WITH LAW. The business and activities of USWA have at
all times been conducted in accordance with its Articles of Incorporation and
by-laws, any applicable law, regulation, ordinance, order, license, permit,
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rule, injunction or other restriction or ruling of any court or administrative
or governmental agency, ministry, or body.
4.16. CONTINGENCIES. There are no actions, suits, claims or proceedings
pending, or, to the knowledge of USWA and Ingarfield after reasonable
investigation, threatened against, by or affecting USWA or Ingarfield in any
court or before any arbitrator or governmental agency that may have an USWA
Material Adverse Effect or which could adversely affect the right or ability of
USWA or Ingarfield to consummate the transactions contemplated hereby. To the
best knowledge of USWA and Ingarfield, there is no valid basis upon which any
such action, suit, claim, or proceeding may be commenced or asserted against
USWA. There are no unsatisfied judgments against USWA and no consent decrees or
similar agreements to which USWA is subject.
4.17. MATERIAL CONTRACTS. Except as set forth on Schedule 4.17, there
are no contracts of USWA which involve consideration in excess of the equivalent
of $10,000.00 or have a term of one (1) year or more (collectively, the
"Material Contracts").
4.18. INSURANCE. Schedule 4.18 contains a complete list of all policies
of insurance presently maintained by USWA, all of which are, and will be
maintained through the Closing Date, in full force and effect, and all premiums
due thereon have been paid. USWA has received no notices of cancellation with
respect thereto. USWA has heretofore delivered to A1 and Xxxxxx or their
representatives a true, correct and complete copy of each such insurance policy.
4.19. EMPLOYMENT AND LABOR MATTERS. Schedule 4.19 sets forth the name,
position, employment date, and current compensation (base and bonus) of each
employee of USWA. USWA is not a party to any collective bargaining agreement or
agreement of any kind with any union or labor organization. There has not been
any attempt by any union or other labor organization to organize the employees
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of USWA at any time.
4.20. ENVIRONMENTAL MATTERS. USWA is not in violation, in any material
respect, of any Environmental Law (as defined herein); USWA has received all
permits and approvals with respect to emissions into the environment and the
proper collection, storage, transport, distribution or disposal of Wastes (as
defined herein) and other materials required for the operation of its business
at present operating levels; and USWA is not liable or responsible for any clean
up, fines, liability or expense arising under any Environmental Law, as a result
of the disposal of Wastes or other materials in or on the property of USWA
(whether owned or leased), or in or on any other property, including property no
longer owned, leased or used by USWA.
4.21. AGREEMENTS AND TRANSACTIONS WITH RELATED PARTIES. Except as set
forth in Schedule 4.21, USWA is not, and since the date of the USWA Balance
Sheet has not been, a party to any contract, agreement, lease or transaction
with, or any other commitment to, (i) a shareholder, (ii) any person related by
blood, adoption or marriage to a shareholder, (iii) any director or officer of
USWA, (iv) any corporation or other entity in which any of the foregoing parties
has, directly or indirectly, at least five percent (5.0%) beneficial interest in
the capital stock or other type of equity interest in such corporation or other
entity, or (v) any partnership in which any such party is a general partner or a
limited partner having a five percent (5%) or more interest therein (any or all
of the foregoing being herein referred to as a "Related Party" and collectively
as the "Related Parties"). Except as set forth on Schedule 4.21 and without
limiting the generality of the foregoing, (A) no Related Party, directly or
indirectly, owns or controls any assets or properties which are or have since
the date of the A1 Balance Sheet been used in the business of USWA, and (B) no
Related Party, directly or indirectly, engages in or has any significant
interest in or connection with any business: (1) which is or which, since
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inception of USWA, has been a competitor, customer or supplier of, or has done
business with, USWA, or (2) which as of the date hereof sells or distributes
products or provides services which are similar or related to the products or
services of USWA.
4.22. FULL DISCLOSURE. No representation or warranty of USWA or
Ingarfield contained in this Agreement, and none of the statements or
information concerning USWA contained in this Agreement and the Exhibits and
Schedules hereto, contains or will contain any untrue statement of a material
fact nor will such representations, warranties, covenants or statements taken as
a whole omit a material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading.
5. CONDUCT OF BUSINESSES OF A1 AND USWA PENDING CLOSING.
5.1. BUSINESS IN THE ORDINARY COURSE. From the date hereof until the
Closing, and except as set forth on Schedule 5.1, the businesses of A1 and USWA
shall be conducted only in the ordinary course, and consistent with past
practice. Without limiting the generality of the foregoing:
(a) neither A1 nor USWA shall enter into any contract, agreement
or other arrangement which would constitute a Material Contract, except
for contracts to sell or supply goods or services to customers in the
ordinary course of business at prices and on terms substantially
consistent with the prior operating practices of such parties;
(b) except for sales of personal property in the ordinary course
of their businesses, neither A1 nor USWA shall assign, transfer,
mortgage, convey, encumber or otherwise dispose of, or cause the sale,
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assignment, transfer, mortgage, conveyance, encumbrance or other
disposition of any of the assets or properties of such parties or any
interest therein;
(c) neither A1 nor USWA shall acquire any material assets, except
expenditures made in the ordinary course of business as reasonably
necessary to enable such parties to conduct its normal business
operations and to maintain their normal inventory of goods and
materials, at prices and on terms substantially consistent with current
market conditions and prior operating practices;
(d) A1 and USWA shall maintain in full force and effect all
insurance policies referred to in Sections 3.18 and 4.18 hereof or
other insurance equivalent thereto;
(e) the books, records and accounts of A1 and USWA shall be
maintained in the usual, regular and ordinary course of business on a
basis consistent with prior practices and in accordance with GAAP;
(f) A1 and USWA shall use their best efforts to preserve their
business organizations, to preserve the good will of their suppliers,
customers and others having business relations with A1 and USWA; and to
retain the services of key employees and agents of A1 after the Closing
Date on terms reasonably satisfactory to USWA;
(g) except as they may terminate in accordance with their terms or
in accordance with the terms of this Agreement, A1 and USWA shall keep
in full force and effect, and not cause a default of any of its
obligations under, each of their contracts and commitments;
(h) A1 and USWA shall duly comply in all material aspects with all
laws applicable to them and to the conduct of their business;
(i) neither A1 and USWA shall create, incur or assume any
liability or indebtedness, except in the ordinary course of business
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consistent with past practices;
(j) neither A1 and USWA shall make or commit to make or commit to
make any capital expenditures in excess of ten thousand dollars
($10,000) in the aggregate;
(k) other than as contemplated in this Agreement, neither A1 and
USWA shall apply any of their assets to the direct or indirect payment,
discharge, satisfaction or reduction of any amount payable directly or
indirectly to or for the benefit of any shareholder or any Related
Party; and
(l) neither A1, USWA, Ingarfield nor Xxxxxx shall take or omit to
take any action which would render any of the parties' representations
or warranties untrue or misleading, or which would be a breach of any
of the parties' covenants.
5.2. No Material Changes. Except as set forth in this Agreement,
neither A1 nor USWA shall materially alter its organization, capitalization, or
financial structure, practices or operations. Without limiting the generality of
the foregoing:
(a) no change shall be made in the Articles of Incorporation or
by-laws of A1 or USWA;
(b) no change shall be made in the authorized or issued capital
stock of A1 or USWA;
(c) neither A1 nor USWA shall issue or grant any right or option
to purchase or otherwise acquire any of its capital stock or other
securities;
(d) no dividend or other distribution or payment shall be declared
or made with respect to any of the capital stock of A1 (except tax
distributions to Xxxxxx and X. Xxxxxx) or USWA; and
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(e) no change shall be made which affects A1's banking
arrangements.
5.3. COMPENSATION. No increase shall be made in the compensation or
employee benefits payable or to become payable to any director, officer,
employee or agent of A1 or USWA, and no bonus or profit-share payment or other
arrangement (whether current or deferred) shall be made to or with any such
director, officer, employee or agent, except in the ordinary course of business
and consistent with prior practices.
5.4. NOTIFICATION. Each party to this Agreement shall promptly notify
the other parties in writing of the occurrence, or threatened occurrence, of any
event that would constitute a breach or violation of this Agreement by any party
or that would cause any representation or warranty made by the notifying party
in this Agreement to be false or misleading in any respect. Xxxxxx and
Ingarfield shall promptly notify all parties of any event of which Xxxxxx or
Ingarfield obtains knowledge which could have an A1 Material Adverse Effect or a
USWA Material Adverse Effect.
6. CONDITIONS TO OBLIGATIONS OF ALL PARTIES. The obligation of the parties
hereto to consummate the transactions contemplated by this Agreement are subject
to the satisfaction, on or before the Closing, of each of the following
conditions; any or all of which may be waived in whole or in part by the joint
agreement of the parties hereto:
6.1. EFFECTIVE REGISTRATION STATEMENT. USWA shall prepare, file with
and have declared effective by the SEC a registration statement covering the
resale of shares of USWA Common Stock as set forth in Section 1.5 hereof.
6.2. ABSENCE OF ACTIONS. No action or proceeding shall have been
brought or threatened before any court or administrative agency to prevent the
consummation or to seek damages in a material amount by reason of the
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transactions contemplated hereby, and no governmental authority shall have
asserted that the within transactions (or any other pending transaction
involving USWA, Xxxxxx or A1 when considered in light of the effect of the
within transactions) shall constitute a violation of law or give rise to
material liability on the part of USWA, Xxxxxx or A1.
6.3. CONSENTS. The parties shall have received from any suppliers,
lessors, lenders, lien holders or governmental authorities, bodies or agencies
having jurisdiction over the transactions contemplated by this Agreement, or any
part hereof, such consents, authorizations and approvals as are necessary for
the consummation hereof, including, without limitation, the consents listed on
Schedule 6.3.
7. CONDITIONS TO OBLIGATIONS OF USWA. All obligations of USWA to consummate the
transactions contemplated by this Agreement are subject to the fulfillment and
satisfaction of each and every of the following conditions on or prior to the
Closing, any or all of which may be waived in whole or in part by USWA:
7.1. REPRESENTATIONS AND WARRANTIES. The representations and warranties
contained in Section 3 of this Agreement and in any certificate, instrument,
schedule, agreement or other writing delivered by or on behalf of A1 or Xxxxxx
in connection with the transactions contemplated by this Agreement shall be
true, correct and complete in all material respects (except for representations
and warranties which are by their terms qualified by materiality, which shall be
true, correct and complete in all respects) as of the date when made and shall
be deemed to be made again at and as of the Closing Date and shall be true,
correct and complete at and as of such time in all material respects (except for
representations and warranties which are by their terms qualified by
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materiality, which shall be true, correct and complete in all respects).
7.2. COMPLIANCE WITH AGREEMENTS AND CONDITIONS. A1 and Xxxxxx shall
have performed and complied with all agreements and conditions required by this
Agreement to be performed or complied with by them prior to or on the Closing
Date.
7.3. ABSENCE OF MATERIAL ADVERSE CHANGES. No material adverse change in
the business, assets, financial condition, or prospects of A1 shall have
occurred, no substantial part of the assets of A1 not substantially covered by
insurance shall have been destroyed due to fire or other casualty, and no event
shall have occurred which has had or will have an A1 Material Adverse Effect.
7.4. CERTIFICATE OF A1 AND XXXXXX. A1 and Xxxxxx shall have executed
and delivered, or caused to be executed and delivered, to USWA one or more
certificates, dated the Closing Date, certifying in such detail as USWA may
reasonably request to the fulfillment and satisfaction of the conditions
specified in Sections 7.1 through 7.3 above.
7.5 OPINION OF XXXXXX'X COUNSEL. USWA shall have received a written
opinion of counsel for Xxxxxx to the effect that:
(a) A1 is a corporation duly organized, validly existing and in
good standing under the laws of the State of North Carolina and has
full corporate power and authority to conduct its business and to own
or lease its properties as and in the places where such business is
being conducted and where such properties are now owned, maintained,
leased or operated.
(b) All requisite corporate action on the part of A1, its
respective directors, Xxxxxx and X. Xxxxxx necessary for the
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authorization, execution and delivery of this Agreement and all of the
other agreements referenced herein and for the performance of all
obligations thereunder and the consummation of the transactions
contemplated hereby have been duly and validly taken.
8. CONDITIONS TO OBLIGATIONS OF XXXXXX. All of the obligations of Xxxxxx and X.
Xxxxxx to consummate the transactions contemplated by this Agreement are subject
to the fulfillment and satisfaction of each and every of the following
conditions on or prior to the Closing, any or all of which may be waived in
whole or in part, by Xxxxxx:
8.1. REPRESENTATIONS AND WARRANTIES. The representations and warranties
contained in Section 4 of this Agreement and in any certificate, instrument,
schedule, agreement or other writing delivered by or on behalf of USWA or
Ingarfield in connection with the transactions contemplated by this Agreement
shall be true and correct in all material respects (except for representations
and warranties which are by their terms qualified by materiality, which shall be
true, correct and complete in all respects) when made and shall be deemed to be
made again at and as of the Closing Date and shall be true at and as of such
time in all material respects (except for representations and warranties which
are by their terms qualified by materiality, which shall be true, correct and
complete in all respects).
8.2. COMPLIANCE WITH AGREEMENTS AND CONDITIONS. USWA and Ingarfield
shall have performed and complied with all agreements and conditions required by
this Agreement to be performed or complied with by USWA and Ingarfield prior to
or on the Closing Date.
8.3. ABSENCE OF MATERIAL ADVERSE CHANGES. No material adverse change in
the business, assets, financial condition, or prospects of USWA, taken as a
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whole, shall have occurred, no substantial part of the assets of USWA, taken as
a whole, shall have been destroyed due to fire or other casualty, and no event
shall have occurred which has had, or will have a material adverse effect on the
business, assets, financial condition or prospects of USWA.
8.4. COMPLIANCE WITH SECTION 3.25. USWA shall have delivered to Xxxxxx
copies of documents set forth in Section 3.25 hereof.
8.5. CERTIFICATE OF USWA. USWA and Ingarfield shall have
delivered to Xxxxxx one or more certificates, dated as of the Closing Date,
certifying in such detail as Xxxxxx may reasonably request to the fulfillment
and satisfaction of the conditions specified in Sections 8.1 through 8.4 above.
8.6 OPINION OF USWA'S COUNSEL. Xxxxxx shall have received a written
opinion of counsel for USWA to the effect that:
(a) USWA is a corporation duly organized, validly existing and in
good standing under the laws of the State of Florida and has full
corporate power and authority to conduct its business and to own or
lease its properties as and in the places where such business is being
conducted and where such properties are now owned, maintained, leased
or operated.
(b) All requisite corporate action on the part of USWA, its
respective directors and officers necessary for the authorization,
execution and delivery of this Agreement and all of the other
agreements referenced herein and for the performance of all obligations
thereunder and the consummation of the transactions contemplated hereby
have been duly and validly taken.
8.7. PRIVATE PLACEMENT PROCEEDS. HGB Financial Services LLC ("HGB")
shall have raised One Million Five Hundred Seventy-Five Thousand Dollars
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($1,575,000) in net proceeds after all commissions and expenses (the "Private
Placement Proceeds") in a private placement on behalf of USWA (the "Private
Placement") pursuant to that certain Consulting Agreement, dated February 1,
2001, as amended, by and between A1 and HGB (the "Consulting Agreement") and
such Private Placement Proceeds shall have been deposited in an escrow account
prior to Closing under terms acceptable to Xxxxxx and HGB. In addition, HGB
shall have delivered copies of all subscription documents completed by
subscribers in the Private Placement to the Escrow Agent and delivered copies
thereof to House Law Firm PLLC and Xxxxxxxxxxx & Xxxxxxxx LLP. All costs and
expenses related to the Private Placement shall be paid out of escrow at
Closing.
8.8. PRIVATE PLACEMENT PROCEEDS. Prior to the Closing, A1, USWA and
Xxxxxx shall enter into an agreement with the legal entity that is to raise and
hold the Private Placement Proceeds whereby the Private Placement Proceeds shall
be transferred to USWA in exchange for a maximum of 500,000 shares of USWA
Common Stock. The agreement shall include mutually acceptable representations,
warranties, and indemnification for compliance with all securities laws from the
entity raising the Private Placement Proceeds.
8.9. AMENDMENT OF CONSULTING AGREEMENT. Prior to the Closing, A1,
Xxxxxx and HGB shall amend the Consulting Agreement to reflect the issuance of
USWA Common Stock to HGB for consulting services rendered to A1 and USWA and to
contain mutually acceptable representation, warranties and indemnification from
HGB and its principals relating to HGB's compliance with all federal and stock
securities laws with respect to its involvement in raising the Private Placement
Proceeds and other terms acceptable to A1, Xxxxxx and HGB in their sole
discretion.
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9. INDEMNIFICATION.
9.1. Indemnification by Xxxxxx and A1. Subject to Section 9.5, Xxxxxx
and A1 (hereinafter collectively called the "Indemnitor") shall jointly and
severally defend, indemnify and hold harmless USWA, its direct and indirect
parent corporations, subsidiaries (including A1 after Closing) and affiliates,
their officers, directors, employees, agents and Ingarfield (hereinafter
collectively called "Indemnitees") against and in respect of any and all loss,
damage, liability, fine, penalty, cost and expense, including reasonable
attorneys' fees and amounts paid in settlement (collectively, "Indemnified
Losses"), suffered or incurred by any Indemnitee by reason of, or arising out
of:
(a) any misrepresentation, breach of warranty or breach or
non-fulfillment of any agreement of Xxxxxx or A1 contained in this
Agreement or in any certificate, schedule, instrument or document
delivered to USWA by or on behalf of Xxxxxx or A1 pursuant to the
provisions of this Agreement; and
(b) any liabilities of A1 of any nature whatsoever (including tax
liability, penalties and interest), whether accrued, absolute,
contingent or otherwise, (i) existing as of the dates of each of the A1
Financial Statements, and required to be shown therein in accordance
with GAAP, to the extent not reflected or reserved against in full in
the A1 Financial Statements; (ii) arising or occurring not in the
ordinary course of business between the A1 Balance Sheet Date and the
Closing Date; and (iii) not disclosed in this Agreement or the
Schedules hereto.
9.2. INDEMNIFICATION BY INGARFIELD. Subject to Section 9.5, Ingarfield
(hereinafter called the "Indemnitor") shall defend, indemnify and hold harmless
Xxxxxx and A1 (hereinafter collectively called "Indemnitees") against and in
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respect of any and all loss, damage, liability, cost and expense, including
reasonable attorneys' fees and amounts paid in settlement (collectively,
"Indemnified Losses"), suffered or incurred by the Indemnitees by reason of or
arising out of:
(a) any misrepresentation, breach of warranty or breach or
non-fulfillment of any agreement of USWA or Ingarfield contained in
this Agreement or in any other certificate, schedule, instrument or
document delivered to A1 or Xxxxxx by or on behalf of USWA or
Ingarfield pursuant to the provisions of this Agreement; and
(b) any liabilities of USWA of any nature whatsoever (including
tax liability, penalties and interest), whether accrued, absolute,
contingent or otherwise: (i) existing on the dates of each of the USWA
Financial Statements; (ii) arising or occurring not in the ordinary
course of business between the USWA Balance Sheet Date and the Closing
Date; (iii) not disclosed in this Agreement or the Schedules hereto;
and (iv) existing on the Closing Date.
9.3. DEFENSE OF CLAIMS.
9.3.1. Should any claim or action by a third party arise after the
Closing Date for which an Indemnitor is liable under the terms of this
Agreement, the Indemnitee shall notify the Indemnitor within ten (10) days after
such claim or action arises and is known to Indemnitee, and shall give the
Indemnitor a reasonable opportunity to participate in any proceedings and to
settle or defend any such claim or action. The expenses of all proceedings,
contests or lawsuits with respect to such claims or actions shall be borne by
the Indemnitor. If the Indemnitor wishes to assume the defense of such claim or
action, the Indemnitor shall give written notice to the Indemnitees within ten
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(10) days after notice from the Indemnitees of such claim or action, and the
Indemnitor shall thereafter assume the defense of any such claim or liability,
through counsel reasonably satisfactory to the Indemnitees, provided that
Indemnitees may participate in such defense at their own expense, and the
Indemnitor shall, in any event, have the right to control the defense of the
claim or action.
9.3.2. If the Indemnitor shall not assume the defense of, or if
after so assuming it shall fail to defend, any such claim or action, the
Indemnitees may defend against any such claim or action in such manner as they
may deem appropriate and the Indemnitees may settle such claim or litigation on
such terms as they may deem appropriate but subject to the Indemnitor's
approval, such approval not to be unreasonably withheld; provided, however, that
any such settlement shall be deemed approved by the Indemnitor if the Indemnitor
fails to object thereto, by written notice to the Indemnitees, within fifteen
(15) days after the Indemnitor's receipt of a written summary of such
settlement. The Indemnitor shall promptly reimburse the Indemnitees for the
amount of all expenses, legal and otherwise, incurred by the Indemnitees in
connection with the defense and settlement of such claim or action.
9.3.3. If a non-appealable judgment is rendered against any of the
Indemnitees in any action covered by the indemnification hereunder, or any lien
attaches to any of the assets of any of the Indemnitees, the Indemnitor shall
immediately upon such entry or attachment pay such judgment in full or discharge
such lien unless, at the expense and direction of the Indemnitor, an appeal is
taken under which the execution of the judgment or satisfaction of the lien is
stayed. If and when a final judgment is rendered in any such action, the
Indemnitor shall forthwith pay such judgment or discharge such lien before any
of the Indemnitees is compelled to do so.
9.4. WAIVER. The failure of any Indemnitee to give any notice or to
take any action hereunder shall not be deemed a waiver of any of the rights of
such Indemnitee hereunder, except to the extent that Indemnitor is actually
prejudiced by such failure.
9.5. LIMITATIONS ON INDEMNIFICATION. Notwithstanding anything to the
contrary contained in this Agreement:
9.5.1. TIME LIMITATION. No party shall be responsible hereunder
for any Indemnified Loss unless the Indemnitee shall have provided such party
with written notice containing a reasonable description of the claim, action or
circumstances giving rise to such Indemnified Loss within three (3) years after
the Closing Date (the "Indemnity Notice Period"); provided, however, that:
(a) there shall be no limit on the Indemnity Notice Period for
indemnity claims: (i) against Xxxxxx or Ingarfield for Indemnified
Losses arising or resulting from a breach of a representation or
warranty of Xxxxxx or Ingarfield relating to Section 3.8, Environmental
Laws, Taxes or any liability of A1 or USWA arising prior to the Closing
and relating to the handling or disposal of Wastes or the failure to
comply with any Environmental Law; and (ii) against any party based on
fraud, intentional breach or misrepresentation.
9.5.2. INDEMNIFICATION BASKET. No party shall have any liability
hereunder for Indemnified Losses after Closing, with respect to a breach of the
representations and warranties contained herein, until the aggregate of all
Indemnified Losses for which Xxxxxx and A1 as a group or Ingarfield, as
applicable, are responsible under this Agreement exceeds Ten Thousand Dollars
($10,000) (the "Basket"); provided that once this Basket amount is exceeded for
Xxxxxx and A1 as a group or Ingarfield, as applicable, the responsible party or
parties shall be responsible for all Indemnified Losses, from the first dollar
as if such Basket never existed; and further provided that this Section 9.5.2
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shall not limit in any respect indemnity claims: (i) based upon fraud,
intentional breach or misrepresentation; (ii) arising from a breach by the
Indemnitor of any covenant contained in Sections 2.2 and 2.3 hereof; or (iii)
arising from a breach by Xxxxxx or Ingarfield of any representation or warranty
contained in Sections 3.2 and 4.2 hereto.
10. TERMINATION.
10.1. TERMINATION. This Agreement may be terminated at any time on or
prior to the Closing:
(a) By mutual consent of the parties hereto; or
(b) At the election of USWA if: (i) Xxxxxx or A1 has breached or
failed to perform or comply with any of their representations,
warranties, covenants or obligations under this Agreement; or (ii) any
of the conditions precedent set forth in Section 6 or 7 is not
satisfied as and when required by this Agreement; or (iii) the Closing
has not been consummated by ninety (90) days after the date hereof; or
(c) At the election of Xxxxxx if: (i) USWA or Ingarfield has
breached or failed to perform or comply with any of its
representations, warranties, covenants or obligations under this
Agreement; or (ii) any of the conditions precedent set forth in Section
6 or 8 is not satisfied as and when required by this Agreement; or
(iii) if the Closing has not been consummated by ninety (90) days after
the date hereof.
10.2. MANNER AND EFFECT OF TERMINATION. Written notice of any
termination ("Termination Notice") pursuant to this Section 10 shall be given by
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the party electing termination of this Agreement ("Terminating Party") to the
other party or parties (collectively, the "Terminated Party"), and such notice
shall state the reason for termination. The party or parties receiving
Termination Notice shall have a period of ten (10) days after receipt of
Termination Notice to cure the matters giving rise to such termination to the
reasonable satisfaction of the Terminating Party. If the matters giving rise to
termination are not cured as required hereby, at the election of the Terminating
Party this Agreement shall be terminated effective as of the close of business
on the tenth (10th) day following the Terminated Party's receipt of Termination
Notice. Upon termination of this Agreement prior to the consummation of the
Closing and in accordance with the terms hereof, this Agreement shall become
void and of no effect, and none of the parties shall have any liability to the
others, except that nothing contained herein shall relieve any party from: (i)
its obligations under Sections 2.2 and 2.3; or (ii) liability for its
intentional breach of any representation, warranty or covenant contained herein,
or its intentional failure to comply with the terms and conditions of this
Agreement or to perform its obligations hereunder.
11. MISCELLANEOUS.
11.1. NOTICES.
11.1.1. All notices, requests, demands, or other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given upon delivery if delivered in person, sent by Federal Express
(or similar recognized overnight courier service) or telecopied to the parties
at the following addresses:
If to A1 or Xxxxxx: Xxxxx Xxxxxx
A1 Cellular, Inc.
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxxx Xxxxx, Xxxxx Xxxxxxxx 00000
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With a copy to: Don R. House, Esq.
House Law Firm, PLLC
0000 Xxxxx Xxxxx
Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx 00000
If to USWA or Ingarfield: Xxxx X. Xxxxxxxxxx
USWEBAUCTIONS, Inc.
00 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
With a copy to: Xxxxxxx X. Xxxxxx, Esq.
Xxxxxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 0000 Xxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
11.1.2. Notices may also be given in any other manner permitted by
law, effective upon actual receipt. Any party may change the address to which
notices, requests, demands or other communications to such party shall be
delivered or mailed by giving notice thereof to the other parties hereto in the
manner provided herein.
11.2. SURVIVAL. The representations, warranties, agreements and
indemnifications of the parties contained in this Agreement or in any writing
delivered pursuant to the provisions of this Agreement shall survive any
investigation heretofore or hereafter made by the parties and the consummation
of the transactions contemplated herein and shall continue in full force and
effect and survive after the Closing, subject to the limitations of Section 9.5.
11.3. COUNTERPARTS; INTERPRETATION. This Agreement may be executed in
any number of counterparts, each of which shall be deemed an original, and all
of which shall constitute one instrument. This Agreement supersedes all prior
discussions and agreements between the parties with respect to the subject
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matter hereof, and this Agreement contains the sole and entire agreement among
the parties with respect to the matters covered hereby. All Schedules hereto
shall be deemed a part of this Agreement. This Agreement shall not be altered or
amended except by a written instrument signed by or on behalf of all of the
parties hereto. No ambiguity in any provision hereof shall be construed against
a party by reason of the fact it was drafted by such party or its counsel. For
purposes of this Agreement "herein," "hereby," "hereof," "hereunder,"
"herewith," "hereafter" and "hereinafter" and similar words refer to this
Agreement in its entirety, and not to any particular subsection or paragraph.
References to "including" means including without limiting the generality of any
description preceding such term. Nothing expressed or implied in this Agreement
is intended, or shall be construed, to confer upon or give any person other than
the parties hereto any rights or remedies under or by reason of this Agreement.
11.4. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
11.5. PARTIAL INVALIDITY AND SEVERABILITY. All rights and restrictions
contained herein may be exercised and shall be applicable and binding only to
the extent that they do not violate any applicable laws and are intended to be
limited to the extent necessary to render this Agreement legal, valid and
enforceable. If any terms of this Agreement not essential to the commercial
purpose of this Agreement shall be held to be illegal, invalid or unenforceable
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by a court of competent jurisdiction, it is the intention of the parties that
the remaining terms hereof shall constitute their agreement with respect to the
subject matter hereof and all such remaining terms shall remain in full force
and effect. To the extent legally permissible, any illegal, invalid or
unenforceable provision of this Agreement shall be replaced by a valid provision
which will implement the commercial purpose of the illegal, invalid or
unenforceable provision.
11.6. WAIVER. Any term or condition of this Agreement may be waived at
any time by the party which is entitled to the benefit thereof, but only if such
waiver is evidenced by a writing signed by such party. No failure on the part of
a party hereto to exercise, and no delay in exercising, any right, power or
remedy created hereunder, shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, power or remedy by any such party
preclude any other future exercise thereof or the exercise of any other right,
power or remedy. No waiver by any party hereto to any breach of or default in
any term or condition of this Agreement shall constitute a waiver of or assent
to any succeeding breach of or default in the same or any other term or
condition hereof.
11.7. HEADINGS. The headings as to contents of particular paragraphs of
this Agreement are inserted for convenience only and shall not be construed as a
part of this Agreement or as a limitation on the scope of any terms or
provisions of this Agreement.
11.8. EXPENSES. Except as otherwise expressly provided herein, all
legal and other costs and expenses incurred in connection with this Agreement
and the transactions contemplated hereby shall be paid by USWA or A1 as each
party incurs such expenses but prior to Closing.
11.9. FINDER'S FEES. USWA represents to Xxxxxx that no broker, agent,
finder or other party has been retained by it in connection with the
transactions contemplated hereby and that no other fee or commission has been
agreed by the USWA to be paid for or on account of the transactions contemplated
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hereby. Except as set forth in this Agreement, Xxxxxx represents to USWA that no
broker, agent, finder or other party has been retained by Xxxxxx or A1 in
connection with the transactions contemplated hereby and that no other fee or
commission has been agreed by Xxxxxx or A1 to be paid for or on account of the
transactions contemplated hereby.
11.10. GENDER. Where the context requires, the use of the singular form
herein shall include the plural, the use of the plural shall include the
singular, and the use of any gender shall include any and all genders. 11.11.
Acceptance by Fax. This Agreement shall be accepted, effective and binding, for
all purposes, when the parties shall have signed and transmitted to each other,
by telecopier or otherwise, copies of the signature pages hereto.
11.12. ATTORNEYS' FEES. In the event of any litigation or other
proceeding arising out of or in connection with this Agreement, the prevailing
party or parties shall be entitled to recover its or their reasonable attorneys'
fees and court costs from the other party or parties.
11.13. NO JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT ANY OF THEM MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON OR ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT AND ANY DOCUMENT CONTEMPLATED TO BE EXECUTED IN
CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE PARTIES' ACCEPTANCE OF THIS AGREEMENT.
IN WITNESS WHEREOF, the parties have executed this Agreement or caused
this Agreement to be duly executed by their duly authorized officers as of the
date first above written.
USWEBAUCTIONS, INC.:
By:________________________________
Name: _____________________________
Title: ____________________________
[Signatures continued on following page.]
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A1 CELLULAR, INC.:
By:____________________________________
Name: _________________________________
Title: ________________________________
SHAREHOLDERS:
_________________________________(SEAL)
Xxxxx Xxxxxx
_________________________________(SEAL)
Xxxxxxx X. Xxxxxx
_________________________________(SEAL)
Xxxx X. Xxxxxxxxxx
