EXHIBIT 10.18
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WORLDWIDE WIRELESS NETWORKS, INC.
SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT (the "Agreement"), is entered into as of the 23rd
day of April 2001, by and between WORLDWIDE WIRELESS NETWORKS, INC., a
corporation duly organized and validly existing under the laws of the state of
Nevada (the "Company") and XXXXXXXX, AUGUST & XXXXXXXXX LLP, a limited liability
partnership organized and existing under the state of California with its
principal place of business at 00000 XxxXxxxxx Xxxx., Xxxxx 000, Xxxxxx,
Xxxxxxxxxx 00000 (the "Investor" or the "Holder").
WHEREAS, the Company has authorized fifty million (50,000,000) shares of
capital common stock (the "Common Stock") with a par value of One-Tenth of One
Cent ($.001) per share;
WHEREAS, subject to the terms and conditions contained herein the Investor
desires to purchase, and the Company desires to sell, two hundred thousand
(200,000) shares of Common Stock (the "Shares") of the Company;
NOW, THEREFORE, in consideration of the foregoing premises and the
covenants and agreements set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. SHARE PURCHASE BY THE INVESTOR. Upon execution of this Agreement, the
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Investor irrevocably agrees to acquire, and the Company agrees to provide
to the Investor, the Shares, subject to and in accordance with this
Agreement. Such Shares, once delivered to the Investor against the payment
therefor as set forth herein, shall be validly issued, fully paid and
non-assessable, free and clear of any liens, encumbrances or defects of any
kind, and shall be recorded on the books and records of the Company as
issued to XXXXXXXX, AUGUST & XXXXXXXXX LLP.
2. CONSIDERATION FOR AND ISSUANCE OF THE SHARES. In full and complete
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consideration for the Shares, the Investor agrees to credit the amount of
Twenty Thousand Dollars ($20,000) (the "Purchase Price") against the
Company's outstanding accounts receivables which has accrued for legal
services previously rendered to the Company by the Investor. A current
statement evidencing the balance due and payable to the Investor as of the
most recent invoice date is attached hereto as Exhibit A. Upon receipt of
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this executed Share Purchase Agreement, the Company shall cause the
Investor to be issued a stock certificate in the manner set forth above,
evidencing the Investor's ownership of the Shares, and shall register the
Shares in accordance with the provisions of Section 3 hereof.
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3. REGISTRATION RIGHTS.
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(a) The Company shall amend its Form SB-2 (#333-57108), as amended and
currently under review by the Securities and Exchange Commission (the
"Registration Statement"), to effect the registration and sale of the
Shares for the account of the Holder.
(b) The Company shall furnish to the Holder of Shares a copy 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 Shares owned by such Holder.
(c) The Company shall use its best efforts to register or qualify such
Shares under such other securities or "Blue Sky Laws" of such
jurisdictions as the Holder 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 Shares owned by such seller; provided
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that the Company 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
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Company shall only be obligated to pay expenses in connection with
qualifying such Shares in no more than five (5) jurisdictions but
shall undertake to register the Shares 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 Company's legal counsel incurred in connection with
any such additional registrations.
(d) the Company shall use its reasonable efforts to cause the Shares
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 Company to
enable the seller or sellers thereof to consummate the disposition of
such Shares.
(e) the Company shall promptly and fully respond to any inquiry by or on
behalf of each Holder of Shares 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 Company will prepare a supplement or
amendment to such prospectus so that, as thereafter delivered to the
purchasers of such Shares, 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.
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(f) The Company may require each Holder of Shares as to which the
registration is being effected to furnish to the Company such
information regarding such Holder, and/or the proposed method of
distribution of such Shares as the Company may from time to time
reasonably request in writing.
(g) The Holders agree to indemnify and hold harmless the Company, and each
of its directors and officers who shall sign the Registration
Statement, and any person who controls the Company 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 Company by such Holder or
underwriter specifically for use in the preparation of the
Registration Statement, final prospectus, or amendment or supplement.
(h) Each Holder of Shares that desires to sell and distribute such Shares
over a period of time, or from time to time, at then prevailing market
prices, shall execute and deliver to the Company such written
undertakings as the Company 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.
(i) Each Holder of Shares agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section
3(e) hereof, such Holder will forthwith discontinue disposition of
Shares pursuant to the Registration Statement covering such Shares
until such Holder's receipt of the copies of the supplemented or
amended prospectus contemplated by Section 3(e) hereof, and, if so
directed by the Company, such Holder will deliver to the Company (at
the Company's expense) all copies, other than permanent file copies
then in such Holder's possession, of the prospectus covering such
Shares current at the time of receipt of such notice. In the event the
Company shall give any such notice, the Company shall extend the
period during which the Registration Statement shall be maintained
effective pursuant to this Agreement by the number of days during the
period from and including the date of the giving of such notice
pursuant to Section 3(e) hereof to and including the date when each
seller of Shares covered by the Registration Statement shall have
received the copies of the supplemented or amended prospectus
contemplated by Section 3(e) hereof.
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(j) After all or any portion of the Shares 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 Company registered for
sale hereunder, and all other shares of the Company owned of record or
beneficially by such Holder, sales of the Company's stock in the
public market within the following limitations only: (i) no more than
10,000 registered Shares shall be sold during any given trading day;
and (ii) no more than 50,000 registered Shares shall be sold during
any given trading week, in each case without the consent of the
Company, which consent will not be unreasonably withheld.
(k) Except as otherwise expressly provided herein, all expenses incident
to the Company's performance of or compliance with this Agreement,
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 Shares), 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 Company are then listed, and
fees and disbursements of counsel for the Company 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 Company
elects to obtain such insurance), the reasonable fees and expenses of
any special experts retained by the Company in connection with such
registration and fees and expenses of other Persons retained by the
Company (all such expenses being herein called "Registration
Expenses"), will be borne by the Company. Nothing contained in this
Agreement shall be deemed to require the Company to cause the Shares
to be rated by any rating agency or listed on any securities exchange.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
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represents and warrants to the Investor, as of the date hereof, the
following:
(a) the Company is a corporation duly organized and validly existing under
the laws of the State of Nevada, and has full power and authority to
enter into, execute and perform this Agreement, which Agreement, once
executed by the Company, shall be the valid and binding obligation of
such party, enforceable against such party by any court of competent
jurisdiction in accordance with its terms;
(b) the individuals signing this Agreement on behalf of the Company are
the duly elected executive officers of the Company so indicated, and
have full power and authority to enter into and execute this Agreement
for and on behalf of the Company;
(c) the Company is not bound by or subject to any contract, agreement,
court order or judgment, administrative ruling, law, regulation or any
other item which prohibits or restricts such party from entering into
and performing this Agreement in accordance with its terms, or
requiring the consent of any third party prior to the entry into or
performance of this Agreement in accordance with its terms by such
party; and
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(d) the Company has been advised to seek independent legal counsel with
respect to the sale of Shares herein.
5. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR. The Investor hereby
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represents and warrants to the Company, as of the date hereof, the
following:
(a) the Investor is a limited liability partnership duly organized and
validly existing under the laws of the State of California, and has
full power and authority to enter into, execute and perform this
Agreement, which Agreement, once executed by the Investor, shall be
the valid and binding obligation of such party, enforceable against
such party by any court of competent jurisdiction in accordance with
its terms;
(b) the individual signing this Agreement on behalf of the Investor is the
duly authorized managing partner of the Investor, and he has full
power and authority to enter into and execute this Agreement for and
on behalf of the Investor;
(c) the Investor hereby acknowledges that it has had a long-standing
professional relationship with the Company, and has had full access to
material concerning the Company's planned business and operations and
the Company has given the Investor the opportunity to ask any
questions and obtain all additional information desired in order to
verify or supplement such material; and
(d) the Investor is not bound by or subject to any contract, agreement,
court order or judgment, administrative ruling, law, regulation or any
other item which prohibits or restricts such party from entering into
and performing this Agreement in accordance with its terms, or
requiring the consent of any third party prior to the entry into or
performance of this Agreement in accordance with its terms by such
party. The Investor has sufficient knowledge and experience to
determine the relative risk of its investment in the Company, and the
suitability of such investment for the Investor.
6. DISCLOSURE OF POTENTIAL CONFLICTS OF INTEREST; WAIVER.
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As a result of agreeing to invest in, and become a shareholder of, the
Company under this Agreement, while at the same time continuing to provide
legal advices to the Company pursuant to our current Retention Agreement,
the Company is advised that it is possible that certain conflicts of
interest may develop in the future as to those matters which are in the
best interests of the Investor, as a shareholder in the Company, and those
that are in the best interests of the Company. While there are no apparent
conflicts at this time, such conflicts do arise in such situations from
time to time, and may arise with respect to our specific relationship in
the future. In any such event, we may be obligated by the rules of
professional conduct or otherwise to withdraw from our representation of
the Company. If that were to occur, we would undertake to assist the
Company to obtain competent replacement counsel, as necessary. By your
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execution of this agreement, and signing your initials in the places
indicated below, you represent and warrant that you have been advised of,
and understand, the potential conflict of interest issues involved in
connection with the dual relationships between corporation and shareholder,
on the one hand, and client and attorney, on the other hand, and the
Company hereby waives, and agrees to indemnify and hold the Investor
harmless from and against, any claim of conflict of interest which might
otherwise be available to the Company, or of any third party (including,
without limitation, any shareholder, director, officer or affiliate of the
Company), as a result of the existence of such dual relationship as
contemplated herein, or of our possible withdrawal from representation of
the Company in the future should any conflict actually arise.
/s/
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Xxxxx Xxxxxxx
(please initial)
7. MISCELLANEOUS PROVISIONS.
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(a) NOTICES. All notices, requests, demands and other communications to be
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given hereunder shall be in writing and shall be deemed to have been duly
given on the date of personal service or transmission by fax if such
transmission is received during the normal business hours of the addressee,
or on the first business day after sending the same by overnight courier
service or by telegram, or on the third business day after mailing the same
by first class mail, or on the day of receipt if sent by certified or
registered mail, addressed as set forth below, or at such other address as
any party may hereafter indicate by notice delivered as set forth in this
Section 7(a):
If to the Company: Worldwide Wireless Networks, Inc.
000 Xxx Xxxx Xxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxxx Xxxxxxx
President
If to the Investor: Xxxxxxxx, August & Xxxxxxxxx LLP
00000 XxxXxxxxx Xxxx., Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. August, Esq.
Partner
(b) BINDING AGREEMENT; ASSIGNMENT. This Agreement shall constitute the
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binding agreement of the parties hereto, enforceable against each of them
in accordance with its terms. This Agreement shall inure to the benefit of
each of the parties hereto, and their respective successors and permitted
assigns; provided, however, that this Agreement may not be assigned
(whether by contract or by operation of law) by the Investor without the
prior written consent of the Company.
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(c) ENTIRE AGREEMENT. This Agreement constitutes the entire and final
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agreement and understanding between the parties with respect to the subject
matter hereof and the transactions contemplated hereby, and supersedes any
and all prior oral or written agreements, statements, representations,
warranties or understandings between the parties, all of which are merged
herein and superseded hereby.
(d) WAIVER. No waiver of any provision of this Agreement shall be deemed to
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be or shall constitute a waiver of any other provision, whether or not
similar, nor shall any waiver constitute a continuing waiver. No waiver
shall be binding unless executed in writing by the party making the waiver.
(e) HEADINGS. The headings provided herein are for convenience only and
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shall have no force or effect upon the construction or interpretation of
any provision hereof.
(f) COUNTERPARTS. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(g) FURTHER DOCUMENTS AND ACTS. Each party agrees to execute such other and
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further documents and to perform such other and further acts as may be
reasonably necessary to carry out the purposes and provisions of this
Agreement.
(h) GOVERNING LAW. This Agreement shall be governed by and construed in
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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 Agreement, 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.
(i) SEVERABLE PROVISIONS. The provisions of this Agreement are severable,
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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.
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SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
THE COMPANY:
WORLDWIDE WIRELESS
NETWORKS, INC.: ATTEST:
By: /s/ By: /s/
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Xxxxx Xxxxxxx Xxxxxx Xxxx
President Secretary
THE INVESTOR:
XXXXXXXX, AUGUST
& XXXXXXXXX LLP WITNESS:
/s/ /s/
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Xxxxxx X. Xxxxxxxx, Esq. Xxxxxxx X. August, Esq.
Managing Partner Partner
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