EXHIBIT 99.1
SHARE EXCHANGE AGREEMENT
THIS AGREEMENT is made the 19th day of September, 2003.
BETWEEN:
XXXXXX X. XXXXXXXX, of Xxxxxx, Saskatchewan, with offices at
0000 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxx, X0X 0X0 (the
"VENDOR")
AND:
1588102 ONTARIO INC., a company incorporated pursuant to the
laws of the Province of Nova Scotia with its principal office
at 00000 Xxxx Xx., Xxxx Xxxx, Xxxxxxx, X0X 0X0 ("EXCHANGECO")
AND:
WIRELESS AGE COMMUNICATIONS, INC., a corporation incorporated
under the laws of the State of Nevada, having its principal
office at 0000 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxx, X0X 0X0
("WACI")
WHEREAS the Vendor is the registered holder and beneficial owner of 50
Class B shares in the capital of Wireless Source Distribution Ltd. (the
"Company") as set out in Schedule "A" hereto (the "Purchased Shares");
AND WHEREAS Exchangeco is a wholly-owned subsidiary of WACI;
AND WHEREAS the Vendor has agreed to sell and Exchangeco has agreed to
purchase all of the Purchased Shares on the terms and conditions set out in this
Agreement;
NOW THEREFORE THIS AGREEMENT WITNESSES THAT, in consideration of the
premises, covenants, terms, conditions representations and warranties
hereinafter set forth, the Parties agree each with the other as follows:
ARTICLE 1 - PURCHASE AND SALE OF SHARES
1.1 PURCHASE AND SALE. Subject to the conditions and upon the terms hereinafter
set forth, Exchangeco agrees to purchase and the Vendor agrees to sell to
Exchangeco all of his right, title and interest in and to the Purchased Shares.
1.2 PURCHASE PRICE. The purchase price for the Purchased Shares shall consist
of an aggregate of 1,000,000 Exchangeable Shares to be issued to the Vendor as
set out in Schedule "B" hereto.
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1.3 SUPPORT AGREEMENT. On or before Closing, WACI and Exchangeco shall enter
into the Support Agreement in the form attached hereto as Schedule "E".
1.4 ACCOUNTING CONSEQUENCES. It is intended by the parties hereto that the
purchase and sale of the Purchased Shares under this Agreement shall qualify for
accounting treatment as a purchase under U.S. generally-accepted accounting
principles.
1.5 TAX TREATMENT.
(a) It is intended that the transactions contemplated in this Agreement shall
generally constitute (i) a taxable exchange for United States federal
income tax purposes (not qualifying under Sections 368 or 351 of the United
States Internal Revenue Code of 1986, as amended) to persons who are
otherwise subject to taxation in the United States on the sale or exchange
of Purchased Shares, and (ii) a tax deferred reorganization for Canadian
federal income tax purposes for owners of Purchased Shares who are
residents of Canada for Canadian federal income tax purposes who receive
Exchangeable Shares as a consequence of the purchase and sale of the
Purchased Shares. At the option of each Vendor who is resident in Canada,
Exchangeco covenants and agrees to elect, jointly with such Vendor if
applicable (referred to in this section as the "Electing Vendor"), in
accordance with the provisions of subsection 85(1) of the Tax Act (and the
corresponding provisions of any applicable provincial tax legislation) in
the prescribed form and within the prescribed time for the purposes of the
Tax Act, and shall therein agree to elect in respect of the Purchased
Shares of the Electing Vendor such amount as the Vendor's proceeds of
disposition thereof as the Electing Vendor may determine, subject to the
provisions of subsection 85(1) of the Tax Act. The Electing Vendor and
Exchangeco agree to execute all such documents and forms to make the
election contemplated in this section.
(b) The Vendor, with his professional advisors, has made a BONA FIDE
determination that the Purchased Shares are shares of a "qualified small
business corporation" as defined in subsection 110.6(1) of the Tax Act as
of the date hereof. Based on such determination, it is the desire and
intention of the Vendor and Exchangeco that the "agreed amount" for the
transfer of the Vendor's portion of the Purchased Shares (the "Vendor
Shares") be the lesser of the fair market value of the Vendor Shares and
the aggregate of the Vendor's adjusted cost base thereof plus an amount
equal to 1/2 of the Vendor's unused capital gain deduction as provided in
subsection 110.6(2) of the Tax Act. However, it is agreed between the
Vendor and Exchangeco that should any competent taxing authority at any
time issue or propose to issue any assessment or assessments that would
impose any liability for tax (other than the alternative minimum tax
provided for in section 127.5 of the Tax Act) on the basis that the Vendor
Shares are not "qualified small business shares", or that the capital gain
of the Vendor resulting from the within transaction is not otherwise
eligible for the exemption pursuant to subsection 110.6(2) of the Tax Act,
and if all appeals requested by the Vendor have been exhausted, then the
"agreed amount" shall be adjusted NUNC PRO TUNC pursuant to
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the provisions of this paragraph to be such amount as will eliminate such
liability for tax (except for the alternative minimum tax as provided for
section 127.5 of the Tax Act), provided that such adjustment shall not
result in any additional Exchangeable Shares being issued to the Vendor.
1.6 SECURITIES LAW EXEMPTIONS AND RESALE RESTRICTIONS. The sale of the
Purchased Shares and the issuance of the Exchangeable Shares to the Vendor shall
be made in reliance on the exemptions from registration and prospectus filing
requirements contained in sections 39(q), 39(r), 81(j) and 81(k) of the
SECURITIES ACT (Saskatchewan) and the corresponding provisions of any other
applicable Canadian Securities Law. The issuance of the WACI Shares to the
Vendor on the exchange of his Exchangeable Shares shall be made in reliance on
an exemption order from the relevant Canadian Securities Regulators (if
necessary) and the exemption from the registration requirements of U.S.
Securities Law contained in Regulation S under the SECURITIES ACT OF 1933. The
Vendor hereby acknowledges that as a result:
(a) any Exchangeable Shares or WACI Shares that they receive pursuant to this
Agreement will be subject to resale restrictions in accordance with
applicable Canadian Securities Law and U.S. Securities Law and that as a
result:
(i) the certificates representing such Exchangeable Shares or WACI Shares
will be affixed with legends describing such restrictions; and
(ii) such Exchangeable Shares and the WACI Shares cannot be sold, pledged,
transferred or otherwise dealt with other than pursuant to a
prospectus or registration statement filed with the relevant Canadian
Securities Regulators or the SEC, or pursuant to an exemption
therefrom provided under applicable Canadian Securities Law and U.S.
Securities Law, as amended;
(b) in some provinces of Canada, the Exchangeable Shares cannot be exchanged
for the WACI Shares unless an appropriate exemption from the prospectus
requirements in Canadian Securities Law is available or the relevant
Canadian Securities Regulators issue a discretionary relief order
permitting the exchange;
(c) the resale exemptions provided under Canadian Securities Law and U.S.
Securities Law may not be generally available because of the conditions and
limitations of such exemptions, and that Exchangeco and WACI are under no
obligation to take any action to make any of said exemptions available to
the Vendor; and
(d) only WACI can register the WACI Shares or file a prospectus or registration
statement to qualify the WACI Shares for immediate resale and WACI has not
made any representations to the Vendor that it will do so.
1.7 SECURITIES LAW COMPLIANCE. The Vendor hereby agrees that he shall not sell,
pledge, transfer or otherwise deal with the Exchangeable Shares or the WACI
Shares without obtaining a favourable opinion of counsel or such other evidence
as may be
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required by Exchangeco or WACI, that the proposed dealing will not be in
violation of Canadian Securities Law, U.S. Securities Law or any other
applicable securities laws.
ARTICLE 2 - CLOSING MATTERS
2.1 DATE, TIME AND PLACE OF CLOSING. The Closing shall take place at the
Closing Time on the Closing Date at the offices of WACI or such place as the
Parties may agree on.
2.2 MUTUAL CONDITIONS OF CLOSING. The Parties shall be obliged to complete the
purchase and sale of the Purchased Shares only if each of the conditions
precedent set out in Part 1 of Schedule "C" hereto have been satisfied in full
at or before the Closing Time. Each of such conditions precedent is for the
benefit of each of the Parties, and the Parties may by mutual consent waive any
of them in whole or in part in writing.
2.3 CONDITIONS FOR WACI'S AND EXCHANGECO'S BENEFIT. WACI and Exchangeco shall
not be obliged to complete the purchase of the Purchased Shares or the issuance
of the WACI Shares and Exchangeable Shares unless each of the conditions set out
in Part 2 of Schedule "C" shall have been satisfied on or before the Closing
Date. Each of such conditions precedent is for the exclusive benefit of WACI and
Exchangeco and they may waive any of such conditions in whole or in part in
writing.
2.4 CONDITIONS FOR THE VENDOR'S BENEFIT. The Vendor shall not be obliged to
complete the sale of the Purchased Shares unless each of the conditions set out
in Part 3 of Schedule "C" shall have been satisfied on or before the Closing
Date. Each of such conditions precedent is for the exclusive benefit of the
Vendor and the Vendor may waive any of them in whole or in part in writing.
2.5 FAILURE TO SATISFY CONDITION. If any condition set forth in Schedule "C" is
not satisfied at the Closing Time, or if it becomes apparent that any such
condition cannot be satisfied at the Closing Time, any Party entitled to the
benefit of such condition (the "First Party") may terminate this Agreement by
notice in writing to the other Parties and in such event:
(a) unless the other Parties can show that the condition or conditions which
have not been satisfied and for which the First Party has terminated this
Agreement are reasonably capable of being performed or caused to be
performed by the First Party or have not been satisfied by reason of a
default by the First Party hereunder, the First Party shall be released
from all obligations hereunder; and
(b) unless the First Party can show that the condition or conditions which have
not been satisfied and for which the First Party has terminated this
Agreement are reasonably capable of being performed or caused to be
performed by the other Party or have not been satisfied by reason of a
default by the other Party hereunder, then the other Party shall also be
released from all obligations hereunder.
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2.7 DELIVERIES ON CLOSING. On the Closing Date:
(a) Exchangeco will deliver to or to the direction of the Vendor certificates
representing the Exchangeable Shares in accordance with section 2.2. above;
(b) the Vendor will deliver to or to the direction of Exchangeco certificates
representing his Purchased Shares duly signed off for transfer, together
with all other documentation required to transfer title to his Purchased
Shares to or to the direction of Exchangeco, provided that if there are no
certificates representing the Purchased Shares, the Vendor shall deliver to
Exchangeco, or as directed by Exchangeco, an executed stock power of
attorney or other document evidencing the transfer of the Purchased Shares
from the Vendor to or to the direction of Exchangeco; and
(c) WACI and Exchangeco shall execute and deliver an executed Support
Agreement.
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES
3.1 REPRESENTATIONS AND WARRANTIES OF THE VENDOR. The Vendor hereby represents
and warrants to Exchangeco and WACI as set out in Part 1 of Schedule "D" and
acknowledges that Exchangeco and WACI are relying on these representations and
warranties in entering into this Agreement and performing their obligations
under the same.
3.2 REPRESENTATIONS AND WARRANTIES OF WACI. WACI represents and warrants to the
Vendor as set out in Part 2 of Schedule "D" and acknowledges that the Vendor is
relying on these representations and warranties in entering into this Agreement
and performing his obligations under the same.
3.3 REPRESENTATIONS AND WARRANTIES OF EXCHANGECO. Exchangeco represents and
warrants to the Vendor as set out in Part 3 of Schedule "D" and acknowledges
that the Vendor is relying on these representations and warranties in entering
into this Agreement and performing thisheir obligations under the same.
3.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties contained in this Agreement shall survive the Closing for a period of
one (1) year from the Closing Date, after which time, if no claim shall have
been made against a Party with respect to any incorrectness in or breach of any
representation or warranty, that Party shall have no further liability under
this Agreement with respect to that representation or warranty.
3.5 CERTIFICATES AND INSTRUMENTS INCLUDED. All statements contained in any
certificate or any instrument delivered by or on behalf of a Party pursuant to
or in connection with the transactions contemplated by this Agreement shall be
deemed to be made by such Party under this Agreement.
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ARTICLE 4 - INDEMNIFICATION
4.1 MUTUAL INDEMNIFICATION FOR BREACHES OF COVENANT OR WARRANTY. Subject to the
limitation period set out in section 3.4, above, each of WACI and Exchangeco
hereby covenant and agree with the Vendor and the Vendor hereby covenants and
agrees with WACI and Exchangeco (the parties covenanting and agreeing to
indemnify another party under this Article 4 are hereinafter individually
referred to as "Indemnifying Party" and the parties that are being indemnified
by another Party under this Article 4 are hereinafter individually referred to
as the "Indemnified Party") to indemnify and save harmless the Indemnified
Party, effective as and from the Closing Time, from and against any Claims which
may be made or brought against the Indemnified Party and/or which it may suffer
or incur as a result of, or arising out of any non-fulfillment of any covenant,
obligation or agreement on the part of the Indemnifying Party under this
Agreement or any incorrectness in or breach of any representation or warranty of
the Indemnifying Party contained in this Agreement.
ARTICLE 5 - INTERPRETATION AND GENERAL
5.1 DEFINITIONS. Where used in this Agreement and the recitals and any
schedules hereto, each of the following words will have the meanings ascribed to
them in Schedule "A" hereto.
5.2 INTERPRETATION. In this Agreement, except as otherwise expressly provided:
(a) all references in this Agreement to a designated "paragraph" or other
subdivision or to a Schedule is to the designated paragraph or other
subdivision of, or Schedule, to this Agreement;
(b) the words "herein", "hereof" and "hereunder" and other words of similar
import refer to this Agreement as a whole and not to any particular
paragraph or other subdivision or Schedule;
(c) the headings are for convenience only and do not form a part of this
Agreement and are not intended to interpret, define, or limit the scope,
extent or intent of this Agreement or any provision hereof;
(d) the singular of any term includes the plural, and vice versa, the use of
any term is equally applicable to any gender and, where applicable, a body
corporate, the word "or" is not exclusive and the word "including" is not
limited (whether or not non-limited language, such as "without limitation"
or "but not limited" or words of similar import, are used with reference
thereto);
(e) any accounting term not otherwise defined has the meanings assigned to it
in accordance with generally accepted accounting principles applicable to
the United States of America;
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(f) any reference to a statute includes and is a reference to that statute and
to the regulations made pursuant thereto, with all amendments made thereto
and in force from time to time, and to any statute or regulations that may
be passed which has the effect of supplementing or superseding that statute
or regulations; and
(g) any other term defined within the text of this Agreement has the meaning so
ascribed.
5.3 SCHEDULES. The following are the Schedules to this Agreement:
SCHEDULE DESCRIPTION
-------- -----------
A Definitions
B Shareholdings
C Conditions of Closing
D Representations and Warranties
E Support Agreement
5.4 ENTIRE AGREEMENT. This Agreement, together with this Agreement and other
documents to be delivered pursuant to this Agreement, constitutes the entire
agreement between the Parties pertaining to the matters contemplated herein and
supersedes all prior agreements, understandings, negotiations and discussions,
whether oral or written, and there are no warranties, representations and other
agreements between the Parties in connection with the subject matter hereof
except as specifically set forth in this Agreement or any other agreement or
document to be delivered pursuant to this Agreement.
5.5 NOTICES. All notices, requests, demands and other communications hereunder
must be made in writing and will be deemed to have been duly given if delivered
personally or by courier to the addressee at the address appearing on the first
page hereof or to such other address as may be given in writing by the Party.
Any notice given by personal delivery shall be deemed to be received on the date
of delivery. Any notice sent by courier shall be deemed to be received on the
next Business Day following the deposit of the communication with the courier
service.
5.6 TIME OF ESSENCE. Time shall be of the essence in all respects of this
Agreement.
5.7 FURTHER ASSURANCES. The Parties shall with reasonable diligence do all
things and provide all reasonable assurances as may be required to complete the
transactions contemplated by this Agreement, and each Party shall provide such
further documents or instruments required by any other Party as may be
reasonably necessary or desirable to give effect to this Agreement and carry out
its provisions.
5.8 TRANSACTION EXPENSES. Each Party to this Agreement will bear all costs and
expenses incurred by it in negotiating this Agreement and in closing and
carrying out the transactions contemplated by this Agreement. All costs and
expenses related to satisfying
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any condition or fulfilling any covenant contained in this Agreement will be
borne by the party whose responsibility it is to satisfy the condition or fulfil
the covenant in question.
5.9 AMENDMENT. No supplement, modification, waiver or termination of this
Agreement shall be binding unless executed in writing by both Parties.
5.10 WAIVER. No waiver of any of the provisions of this Agreement shall
constitute a waiver of any other provision (whether or not similar) nor shall
such waiver constitute a continuing waiver unless otherwise expressly provided.
5.11 ASSIGNMENT. This Agreement and the rights or obligations hereunder or
thereunder may not be assigned by either Party without the prior written consent
of the other Parties.
5.12 ENUREMENT. This Agreement shall be binding on and enure to the benefit of
both Parties and their respective successors and permitted assigns. In addition
all obligations of the Parties under this Agreement shall also be binding upon
any and all directors, officers, employees, consultants, advisors and agents of
each Party as well as all parent corporations, subsidiaries, related and
affiliated companies thereof.
5.13 GOVERNING LAW. This agreement shall be governed by and interpreted in
accordance with the laws of the Province of Ontario and the federal laws of
Canada applicable therein. Each Party irrevocably submits to the non-exclusive
jurisdiction of the courts of the Province of Ontario with respect to any matter
arising hereunder or related hereto.
5.14 SEVERABILITY. If any provision of this Agreement is determined to be
prohibited, void or unenforceable in whole or in part, such void or
unenforceable provision shall not affect or impair the validity of any other
provision of this Agreement and shall be severable from this Agreement. Any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
5.15 INDEPENDENT LEGAL ADVICE. The Vendor acknowledges that (i) he has been
advised to seek independent legal counsel in respect of this Agreement and the
other agreements and documents referred to herein and the matters contemplated
herein and therein and (ii) Fasken Xxxxxxxxx XxXxxxxx LLP has acted as counsel
solely on behalf of WACI and Exchangeco in connection therewith. To the extent
that the Vendor declines to receive independent legal counsel in respect of this
Agreement, the Vendor hereby waives the right, should a dispute later develop,
to rely on its lack of independent legal counsel to avoid its obligations, to
seek indulgences from the other Parties hereto, or to otherwise attack, in whole
or in part, the integrity of this Agreement and the documents related thereto.
5.16 COUNTERPARTS. This Agreement may be executed by the Parties in one or more
counterparts by facsimile, each of which when so executed and delivered shall be
an original and such counterparts shall together constitute one and the same
instrument.
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IN WITNESS WHEREOF the parties have duly executed this Agreement on the day and
year first above written.
WIRELESS AGE COMMUNICATIONS, INC. WIRELESS SOURCE DISTRIBUTION LTD.
By: By:
-------------------------------- ------------------------------------
Name: Name:
Title: Title:
)
)
)
--------------------------------- ) --------------------------------------
Witness ) XXXXXX X. XXXXXXXX
)
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SCHEDULE "A"
DEFINITIONS
Where used in this Agreement and the recitals and any schedules hereto, each of
the following words will have the following meanings:
(a) "Agreement" means this agreement, including the preamble and the
schedules hereto, as it may from time to time be supplemented or
amended in effect;
(b) "Bulletin Board" means the Over-the-Counter Bulletin Board, an
over-the-counter securities market operated by the National Association
of Securities Dealers.
(c) "Business Day" means a day other than a Saturday or Sunday, on which
Canadian chartered banks are open for the transaction of domestic
business in Toronto, Ontario and Regina, Saskatchewan;
(d) "Canadian Securities Law" means the securities laws of any province or
territory of Canada in which recipients of any shares issued or
transferred under this Agreement may reside, and the regulations, rules
and policies promulgated thereunder, both as amended from time to time.
(e) "Canadian Securities Regulators" means the securities commissions or
other Governmental Authorities authorized to administer and enforce
securities laws in any province or territory of Canada.
(f) "Claim" means any claims, demands, actions, causes of action, damages,
losses, costs, fines, penalties, interest, liabilities and expenses,
including, without limitation, reasonable legal fees and other expenses
reasonably incurred in connection with any of the foregoing.
(g) "Closing" means the completion of the purchase of the Purchased Shares
by Exchangeco in accordance with the terms and conditions of this
Agreement.
(h) "Closing Date" means the date hereof, or such earlier or later date as
the Parties may agree on.
(i) "Closing Time" means 2:00 p.m. (Toronto time) on the Closing Date, or
such earlier or later time on the Closing Date as the Parties may agree
to.
(j) "Company" means Wireless Source Distribution Ltd., a corporation
incorporated under the laws of the Province of Saskatchewan.
(k) "Constating Documents" means (i) the articles or certificate of
incorporation and the bylaws of a corporation; (ii) any charter or
similar
document adopted or filed in connection with the creation, formation,
or organization of a Person and (iii) any amendment to any of the
foregoing.
(l) "Encumbrance" means any mortgage, charge, pledge, hypothecation,
debenture, lien, security interest, encumbrance, claim, option, right
of first refusal, community of property or restriction of any kind,
including any restriction on the use, voting, transfer, receipt of
income, or exercise of any other attribute of ownership, regardless of
form and whether consensual or arising by operation of law.
(m) "Exchangeable Shares" means Class B Shares of Exchangeco bearing the
rights, privileges and restrictions described in Schedule "A" to the
Support Agreement.
(n) "Exchangeco" means 1588102 Ontario Inc.
(o) "Governmental Authority" means any applicable Canadian or U.S. federal,
provincial, state or municipal government, agency, ministry,
commission, crown corporation, department, inspector, official or body
of any kind exercising or entitled to exercise any administrative,
executive, judicial, legislative, police, regulatory or taxing
authority or power of any nature.
(p) "material" means, when used with respect to an obligation, contract,
liability or any other matter, that the obligation, contract, liability
or such other matter is of such a nature as to be substantially likely
to be considered important to a reasonable investor in making an
investment decision, including a decision to purchase, hold or sell
securities of the Person in question.
(q) "Material Adverse Change" a material adverse change in or a material
adverse effect on the businesses, assets, operations, results of
operations or financial condition of a Person and its subsidiaries (if
any) taken as a whole, provided that any adverse effects arising from
or relating to the following matters (individually and in the
aggregate) shall be excluded in determining whether such a material
adverse effect has occurred: (i) general economic conditions or
conditions (including conditions in financial markets) generally
prevailing in the industry or market segment in which the corporate
entity and its subsidiaries conduct their respective businesses, (ii)
the announcement or pendency of the transactions contemplated in this
Agreement or the closing or pendency of any transaction of the Parties
which was publicly announced as of the date of this Agreement; and
(iii) the taking by any Party of any action (or omission by any Party
to take any action) at the request of or with the permission of the
other Parties; provided, further, that a decline in the public trading
price of WACI Shares shall not by itself constitute a Material Adverse
Change.
(r) "Ordinary Course of Business", with respect to an action taken by a
Person, means:
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(i) an action consistent with the past practices of such Person
and taken in the ordinary course of the normal operations of
such Person;
(ii) an action not required to be authorized by the board of
directors of such Person (or by any Person or group of Persons
exercising similar authority) and not required to be
specifically authorized by the parent company (if any) of such
Person; and
(iii) an action similar in nature and magnitude to actions
customarily taken, without any authorization by the board of
directors (or by any Person or group of Persons exercising
similar authority), in the ordinary course of the normal
day-to-day operations of other Persons that are in the same
line of business as such Person.
(s) "Parties" means the parties to this Agreement and "Party" means any one
of them.
(t) "Person" means any individual, corporation (including any non-profit
corporation), body corporate, partnership, limited partnership, limited
liability company, joint venture, society, association, trust,
unincorporated organization, Governmental Authority or other entity, or
any trustee, executor, administrator, or other legal representative.
(u) "Purchased Shares" means Class B shares of the Company held by the
Vendor as set out in Schedule "A" hereto.
(v) "SEC" means the U.S. Securities and Exchange Commission;
(w) "Support Agreement" means the exchangeable share support agreement to
be entered into by WACI and Exchangeco on or before Closing.
(x) "Tax Act" means the INCOME TAX ACT (Canada), as amended from time to
time.
(y) "U.S. Securities Law" means the United States SECURITIES ACT OF 1933
and the United States SECURITIES EXCHANGE ACT OF 1934, the securities
laws of any State of the United States of America, and the regulations,
rules and policies promulgated thereunder, all as amended from time to
time.
(z) "WACI" means Wireless Age Communications, Inc.
(aa) "WACI Shares" means shares in the common stock of WACI.
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SCHEDULE "B"
SHAREHOLDINGS
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NAME AND ADDRESS NUMBER OF NUMBER OF EXCHANGEABLE SHARES TO BE
OF SHAREHOLDER PURCHASED SHARES HELD RECEIVED
--------------------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxxxxx
0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxx 50 1,000,000
X0X 0X0
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SCHEDULE "C"
CONDITIONS OF CLOSING
1. MUTUAL CONDITIONS OF CLOSING. The Parties shall be obliged to complete the
purchase and sale of the Purchased Shares only if each of the following
conditions precedent have been satisfied in full at or before the Closing Time:
(a) CONSENTS, AUTHORIZATIONS AND REGISTRATIONS - All consents, approvals,
orders and authorizations of, from or notifications to any Persons or
Governmental Authorities required (if any) in connection with the
completion of any of the transactions contemplated by this Agreement,
the execution of this Agreement, the Closing or the performance of any
of the terms and conditions of this Agreement shall have been obtained
on or before the Closing Date.
(b) NO CLAIMS - There shall be no injunction or order issued preventing,
and no pending or threatened claim, action, litigation or proceeding,
judicial or administrative, or investigation against any Party by any
Governmental Authority or Person for the purpose of enjoining or
preventing the consummation of this Agreement, or otherwise claiming
that this Agreement or the consummation thereof is improper or would
give rise to proceedings under any statute or rule of law.
2. CONDITIONS FOR WACI'S AND EXCHANGECO'S BENEFIT. WACI and Exchangeco shall not
be obliged to complete the purchase of the Purchased Shares or the issuance of
the WACI Shares and Exchangeable Shares unless each of the following conditions
shall have been satisfied or waived on or before the Closing Time:
(a) ACCURACY OF REPRESENTATIONS - The representations and warranties of the
Vendor set forth in section 3.1 of this Agreement and Part 1 of
Schedule "D" thereto shall be true and correct as of the Closing Time.
(b) PERFORMANCE OF OBLIGATIONS - The Vendor shall have performed all of the
obligations hereunder to be performed by him at or prior to the
Closing, and shall not be in breach of any provision of this Agreement.
(c) NO MATERIAL CHANGES - There shall have been no Material Adverse Change
in the business, assets, liabilities, prospects, operations of the
Company, and the Company shall not have sold or pledged any assets,
issued any shares or entered into any transactions outside the Ordinary
Course of Business.
3. CONDITIONS FOR THE VENDOR'S BENEFIT. The Vendor shall not be obliged to
complete the sale of the Purchased Shares unless each of the following
conditions shall have been satisfied or waived on or before the Closing Time:
(a) ACCURACY OF REPRESENTATIONS - The representations and warranties of
WACI and Exchangeco set forth in sections 3.2 and 3.3 of this Agreement
and Parts 2 and 3 of Schedule "D" thereto shall be true and correct as
of the Closing Time.
(b) PERFORMANCE OF OBLIGATIONS - WACI and Exchangeco shall have performed
all of the obligations hereunder to be performed by them at or prior to
the Closing, and shall not be in breach of any provision of this
Agreement.
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SCHEDULE "D"
REPRESENTATIONS AND WARRANTIES
PART 1. REPRESENTATIONS AND WARRANTIES OF THE VENDOR. The Vendor hereby
severally represents and warrants to Exchangeco and WACI as follows, and
acknowledges that Exchangeco and WACI are relying on these representations and
warranties in entering into this Agreement and performing their obligations
under the same:
(a) CAPACITY AND AUTHORITY - If the Vendor is a corporation, the Vendor
(i) has been duly formed and is a valid and subsisting corporation,
(ii) has the necessary corporate capacity and authority to own the
Purchased Shares, to execute and deliver this Agreement and to observe
and perform its covenants and obligations hereunder, (iii) has taken
all necessary corporate action in respect and (iv) the individual
signing this Agreement on behalf of the Vendor has the authority to do
so and to bind the Vendor by his signature. If the Vendor is a natural
person, he or she has attained the age of majority, is legally
competent and has the capacity to (i) own the Purchased Shares and
(ii) execute this Agreement and to take all actions required pursuant
thereto.
(b) TITLE TO PURCHASED SHARES - The Vendor is the sole legal and
beneficial owner of the Purchased Shares set out opposite his name in
Schedule "A" hereto with good and marketable title thereto, free and
clear of any Encumbrances.
(c) NO OPTION - No Person has any agreement, warrant, option or right, or
a right capable of becoming an agreement for, the purchase of the
Purchased Shares, or the purchase of any other securities of the
Company.
(d) ABSENCE OF CONFLICT - The Vendor is not a party to, bound or affected
by any agreement which would be violated, breached or terminated by,
or which would result in creation or imposition of any Encumbrance
upon any of the Purchased Shares as a consequence of the execution and
delivery of this Agreement or the consummation of the transactions
contemplated in this Agreement. The consummation of transactions
contemplated herein do not and will not conflict with, or result in a
breach of, or constitute a default under the terms or conditions of
any Constating Documents of the Vendor (if not an individual), any
court or administrative order or process, any agreement or instrument
to which the Vendor is party or by which it is bound.
(e) RESIDENCE - Each Vendor is a resident, within the meaning of the Tax
Act, of the jurisdiction set out under his name in Schedule "B"
hereto.
(f) BINDING AGREEMENT - This Agreement constitutes a legal, valid and
binding obligation of the Vendor enforceable against the Vendor in
accordance with its terms except as may be limited by laws of general
application affecting the rights of creditors.
(g) BANKRUPTCY / LIQUIDATION - No proceedings have been taken, are pending
or have been authorized, and no receiver or trustee has been appointed
for the Vendor by the Vendor or by any other person in respect to the
bankruptcy, insolvency, liquidation, dissolution or winding up of the
Vendor.
(h) LITIGATION - There are no judgements, decrees, injunctions, rulings or
orders of any court, arbitrator, federal, provincial, state, municipal
or other governmental authority, department, commission, board, bureau
or agency, or any actions, suits, grievances or proceedings (whether
or not on behalf of the Vendor) commenced, pending or threatened
against or relating to the Vendor which may result in the imposition
of a Encumbrance on the Purchased Shares or which may prevent, delay,
make illegal or otherwise interfere with the consummation of the
transactions contemplated in this Agreement.
(i) DUE INCORPORATION OF THE COMPANY - The Company is a corporation duly
incorporated and validly existing under the laws of its jurisdiction
of incorporation.
(j) SHARE CAPITAL OF THE COMPANY - The only issued and outstanding shares
of the Company are 100 Class B shares and the Purchased Shares are all
validly issued and outstanding as fully paid and non-assessable
shares.
(k) SHAREHOLDERS OF THE COMPANY - Schedule "B" hereto contains a complete
and accurate list of each registered holder of issued and outstanding
Purchased Shares and sets out the residence or principal place of
business of each holder. The Vendor is the sole registered holder and
beneficial owner of all of the issued and outstanding Class B shares
of the Company set out in Schedule "B" hereto.
(l) PURCHASED SHARES VALIDLY ISSUED - The Purchased Shares have been
validly issued and are outstanding as fully paid and non-assessable.
PART 2. REPRESENTATIONS AND WARRANTIES OF WACI. WACI represents and warrants to
the Vendor as follows and acknowledges that the Vendor is relying on these
representations and warranties in entering into this Agreement and performing
his obligations under the same:
(a) DUE INCORPORATION - WACI is a corporation duly incorporated and
validly existing under the laws of the State of Nevada.
(b) CAPACITY AND AUTHORITY - WACI has the power and capacity and good and
sufficient right and authority to enter into this Agreement on the
terms and conditions herein set forth, to perform its obligations
under this Agreement. The execution and delivery of this Agreement and
the completion of the transaction contemplated herein has been duly
and validly authorized by all necessary corporate action on the part
of WACI.
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(c) BINDING AGREEMENT - This Agreement constitutes a legal, valid and
binding obligation of WACI and the Vendor enforceable against WACI and
the Vendor in accordance with its terms except as may be limited by
laws of general application affecting the rights of creditors.
(d) ABSENCE OF CONFLICT - WACI is not a party to, bound or affected by any
agreement which would be violated, breached or terminated by, or which
would result in creation or imposition of any Encumbrance upon any of
the Purchased Shares or WACI Shares as a consequence of the execution
and delivery of this Agreement or the consummation of the transactions
contemplated in this Agreement. The consummation of transactions
contemplated herein do not and will not conflict with, or result in a
breach of, or constitute a default under the terms or conditions of
any Constating Documents of WACI, any court or administrative order or
process, any agreement or instrument to which WACI is party or by
which it is bound.
(e) BANKRUPTCY / LIQUIDATION - No proceedings have been taken, are pending
or have been authorized, and no receiver or trustee has been appointed
for WACI by WACI or by any other person in respect to the bankruptcy,
insolvency, liquidation, dissolution or winding up of WACI.
(f) LITIGATION - There are no judgements, decrees, injunctions, rulings or
orders of any court, arbitrator, federal, provincial, state, municipal
or other governmental authority, department, commission, board, bureau
or agency, or any actions, suits, grievances or proceedings (whether
or not on behalf of WACI) commenced, pending or threatened against or
relating to WACI which may result in the imposition of a Encumbrance
on the Exchangeable Shares or the WACI Shares or which may prevent,
delay, make illegal or otherwise interfere with the consummation of
the transactions contemplated in this Agreement.
PART 3. REPRESENTATIONS AND WARRANTIES OF EXCHANGECO. Exchangeco represents and
warrants to the Vendor as follows and acknowledges that the Vendor is relying on
these representations and warranties in entering into this Agreement and
performing his obligations under the same:
(a) DUE INCORPORATION - Exchangeco is a corporation duly incorporated and
validly existing under the laws of its jurisdiction of incorporation.
(b) CAPACITY AND AUTHORITY - Exchangeco has the power and capacity and
good and sufficient right and authority to enter into this Agreement
on the terms and conditions herein set forth, to perform its
obligations under this Agreement. The execution and delivery of this
Agreement and the completion of the transaction contemplated herein
has been duly and validly authorized by all necessary corporate action
on the part of Exchangeco.
(c) BINDING OBLIGATION - This Agreement has been duly executed and
delivered by Exchangeco and constitutes a valid and binding obligation
on its part.
-3-
(d) ABSENCE OF CONFLICT - Exchangeco is not a party to, bound or affected
by any agreement which would be violated, breached or terminated by,
or which would result in creation or imposition of any Encumbrance
upon any of the Exchangeable Shares as a consequence of the execution
and delivery of this Agreement or the consummation of the transactions
contemplated in this Agreement. Exchangeco's execution of this
Agreement and the consummation of transactions contemplated herein do
not and will not conflict with, or result in a breach of, or
constitute a default under the terms or conditions of any Constating
Documents Exchangeco, any court or administrative order or process,
any agreement or instrument to which Exchangeco is party or by which
it is bound.
(e) BANKRUPTCY / LIQUIDATION - No proceedings have been taken, are pending
or have been authorized, and no receiver or trustee has been appointed
for Exchangeco by Exchangeco or by any other person in respect to the
bankruptcy, insolvency, liquidation, dissolution or winding up of
Exchangeco.
(f) LITIGATION - There are no judgements, decrees, injunctions, rulings or
orders of any court, arbitrator, federal, provincial, state, municipal
or other governmental authority, department, commission, board, bureau
or agency, or any actions, suits, grievances or proceedings (whether
or not on behalf of Exchangeco) commenced, pending or threatened
against or relating to Exchangeco which may result in the imposition
of a Encumbrance on the Exchangeable Shares or which may prevent,
delay, make illegal or otherwise interfere with the consummation of
the transactions contemplated in this Agreement.
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SCHEDULE "E"
SUPPORT AGREEMENT
See attached.
