Exhibit 10.8
REGULATION S STOCK PURCHASE AGREEMENT
Dated October 22, 2003
For
CHINA WIRELESS COMMUNICATIONS, INC.'S
COMMON STOCK
TABLE OF CONTENTS
-----------------
PAGE
ARTICLE I. PURCHASE, SALE AND TERMS OF SHARES..............................2
1.1. The Shares..........................................................2
1.2. Payment of Purchase Price; Closing..................................2
1.3. Covenants of Best Efforts...........................................3
1.4. Representations by the Purchaser....................................3
1.5 Termination.........................................................6
ARTICLE II. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
2.1. Organization and Standing of the Company............................7
2.2. Corporate Action....................................................7
2.3. Governmental Approvals..............................................8
2.4. Litigation..........................................................8
2.5. Compliance with Other Instruments...................................8
2.6. Title to Assets; Intellectual Property Rights.......................8
2.7. Taxes ..............................................................9
2.8. Disclosure..........................................................9
2.9. Brokers or Finders.................................................10
2.10. Capitalization; Status of Capital Stock............................10
2.11. SEC Reports........................................................10
2.12. Books and Records..................................................10
2.13 Refusal of Registration ...........................................11
2.14. Registration Rights................................................11
ARTICLE III. MISCELLANEOUS
3.1. No Waiver; Cumulative Remedies.....................................11
3.2. Amendments; Waivers and Consents...................................11
3.3. Addresses for Notices..............................................11
3.4. Costs; Expenses and Taxes..........................................12
3.5. Effectiveness; Binding Effect; Assignment..........................12
3.6. Survival of Representations and Warranties.........................12
3.7. Prior Agreements...................................................12
3.8. Severability.......................................................12
3.9. Governing Law; Venue...............................................12
3.10. Headings...........................................................13
3.11. Counterparts.......................................................13
3.12. Further Assurances.................................................13
i
REGULATION S STOCK PURCHASE AGREEMENT, dated as of October 22, 2003 between
CHINA WIRELESS COMMUNICATIONS, INC., a Nevada corporation having offices at 0000
Xxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx, XX 00000-0000 (the "Company"), and Bellador
Advisory Services (Labuan) Ltd. a Malaysian international business company
licensed as a fund manager in Labuan, the registered address of which is 0xx
Xxxxx, Xxxx Xxxxx, Xxxxx Xxxxxxxx Dredging, Xxxxx Xxxxxx, 00000 Xxxxx Xxxxxx,
Xxxxxxxx the investment advisor of its clients (sometimes referred to as
"Purchasers' Advisor") who shall be purchasers of the securities.
ARTICLE I.
PURCHASE, SALE AND TERMS OF SHARES
1.1. THE SHARES. The Company agrees to issue and sell to the
clients of Purchasers' Advisor in an offshore transaction negotiated outside the
U.S. and to be consummated and closed outside the U.S. and, in consideration of
and in express reliance upon the representations, warranties, covenants, terms
and conditions of this Agreement, the Purchasers' Advisor agrees to recommend
that its clients evaluate the opportunity to purchase from the Company shares
(the "Shares") of the Company's Common Stock. The Company shall be paid 50% of
the bid price of the Company's shares of Common Stock as quoted on the OTC
Bulletin Board (the "OTCBB") (or on such other United States stock exchange or
public trading market on which the shares of the Company trade if, at the time
of purchase, they are not trading on the OTCBB) immediately preceding the date
(the "Call Date") the purchase order (the "Purchase Notice") is received by the
Company (the "Purchase Price"). Subject to the rights of each party to terminate
this agreement as provided in Section 1.5 below, Purchasers' Advisor agrees to
make a good faith effort to provide $3,500,000 of net funding to Company on or
before the end of July 2004 according to the following schedule: Purchaser shall
make a good faith effort to provide (1) $250,000 of net proceeds to Company by
the end of November 2003; (2) $400,000 of net proceeds to Company by December
31, 2004 and (3) $350,000 or more of net proceeds every 30 days to Company
beginning January 15, 2004, until the funds that Purchasers' Advisor has agreed
to raise have been delivered to Company.
1.1.1. The Purchasers' Advisor reserves the right to
terminate the contract in its sole discretion at any time during its funding of
Company. Such termination shall be effective upon sending of written notice by
facsimile transmission or international express mail to Company.
1.1.3. The Company, upon 15 business days' written notice by
facsimile or Federal Express to Bellador Advisory Services (Labuan) Ltd., at the
address given above, has the right to terminate the entire contract should the
Company determine that continued sales are not beneficial to the Company or its
shareholders, provided that all obligations of the Company and the Purchasers
and/or Purchasers' Advisor are fulfilled as outlined in section 1.5 of this
Agreement.
1.2. PAYMENT OF PURCHASE PRICE; CLOSING. The transaction will be
closed in Phoenix, Arizona, using the services of Arizona Escrow & Financial
Corporation ("Escrow Agent"), a licensed Arizona escrow company, and the
Purchaser will pay the purchase price by wire transfer of immediately available
funds and Company shall deliver the share certificate(s) to the Escrow Agent
according to the terms of the Escrow Agreement (a copy of which is attached
hereto as Exhibit A).
1.3 COVENANT OF BEST EFFORTS. The Purchasers' Advisor agrees to
use its best efforts to arrange for the purchase of the shares between now and
October 30, 2004.
1.4 REPRESENTATIONS BY THE PURCHASERS' ADVISOR. The Purchasers'
Advisor makes the following representations and warranties to the Company:
(a) ACCESS TO INFORMATION. The Purchaser, in making its
recommendation to prospective Purchasers regarding the decision to purchase the
Shares, has relied solely upon independent investigations made by it and/or its
representatives, if any. The Purchaser and/or its representatives during the
course of this transaction, and prior to the purchase of any Shares, will have
had the opportunity to ask questions of and receive answers from the management
of the Company concerning the terms and conditions of the offering of the Shares
and to receive any additional information, documents, records and books relative
to its business, assets, financial condition, results of operations and
liabilities (contingent or otherwise) of the Company.
(b) SOPHISTICATION AND KNOWLEDGE. The Purchaser and/or
its representatives have such knowledge and experience in financial and business
matters that Purchaser can represent himself/herself/itself and is capable of
evaluating the merits and risks of the purchase of the Shares. The Purchaser
will be instructed not to rely on the Company with respect to the tax and other
economic considerations of an investment in the Shares, and the Purchaser will
be instructed to rely on the advice of, or to consult with, only the Purchaser's
own advisor(s). The Purchasers shall be required to represent that he/she/it has
not been organized for the purpose of acquiring the Shares in a signed
Subscription Agreement.
(c) LACK OF LIQUIDITY. The Purchaser will acknowledge in
the Subscription Agreement that the purchase of the Shares involves a high
degree of risk and further acknowledges that it can bear the economic risk of
the purchase of the Shares, including the total loss of its investment. The
Purchaser will acknowledge in the Subscription Agreement that he/she/it has no
present need for liquidity in connection with its purchase of the Shares.
(d) NO PUBLIC SOLICITATION. The Purchaser will
acknowledge in the Subscription Agreement that he/she/it is not subscribing for
the Shares as a result of or subsequent to any advertisement, article, notice or
other communication published in any newspaper, magazine or similar media or
broadcast over television or radio, or presented at any seminar or meeting, or
any solicitation of a subscription by a person not previously known to the
Purchaser in connection with investments in securities generally. Neither the
company nor the Purchasers' Advisor has engaged or will engage in any `Directed
Selling Efforts in the U.S.' as defined in Regulation S promulgated by the SEC
under U.S. securities laws.
(e) AUTHORITY. The Purchasers' Advisor has full right and
power to enter into and perform pursuant to this Agreement and constitutes the
Purchasers' Advisor's valid and legally binding obligation, enforceable in
accordance with its terms. The Purchasers' Advisor is authorized, licensed and
otherwise duly qualified to give investment advice to its clients under the laws
of Labuan. Purchasers' Advisor agrees to comply with the laws of any
jurisdiction in which it contacts clients regarding this opportunity.
(f) REGULATION S EXEMPTION. The Purchasers' Advisor
understands and will require its clients to acknowledge in writing that the
Shares are being offered and sold to it in reliance on an exemption from the
registration requirements of United States federal and state securities laws
under Regulation S promulgated under the Securities Act and that the Company is
relying upon the truth and accuracy of the representations, warranties,
agreements, acknowledgments and understandings of the Purchasers' Advisor set
forth herein in order to determine the applicability of such exemptions and the
suitability of the Purchaser to acquire the Shares. In this regard, the
Purchasers' Advisor represents, warrants and agrees that:
(i) No Purchaser will be a U.S. Person (as
defined below) and will not be an affiliate (as defined in Rule 501(b) under the
Securities Act) of the Company. A U.S. Person means any one of the following:
(A) Any natural person residing in the
United States of America;
(B) Any partnership or corporation
organized or incorporated under the laws of the
United States of America;
(C) Any estate of which any executor or
administrator is a U.S. person;
(D) Any trust of which any trustee is a
U.S. person;
(D) Any agency or branch of a foreign
entity located in the United States of America;
(E) Any non-discretionary account or
similar account (other than an estate or trust) held
by a dealer or other fiduciary for the benefit or
account of a U.S. person;
(F) Any discretionary account or
similar account (other than an estate or trust) held
by a dealer or other fiduciary organized,
incorporated or (if an individual) resident in the
United States of America; and
(G) Any partnership or corporation if:
(1) Organized or incorporated
under the laws of an foreign jurisdiction;
and
(2) Formed by a U.S. person
principally for the purpose of investing in
securities not registered under the
Securities Act, unless it is organized or
incorporated, and owned, by accredited
investors (as defined in Rule 501(a) under
the Securities Act) who are not natural
persons, estates or trusts.
(ii) At the time of the origination of contact
concerning this Agreement and the date of the execution and delivery of this
Agreement, the Purchasers' Advisor was outside of the United States and has
agreed to limit its communications about the Shares to clients who are non-U. S.
Persons.
(iii) Each Purchaser will be required to agree in
writing that he/she/it shall not, during the period commencing on the date of
issuance of the Shares and ending on the first anniversary of such date, or such
shorter period as may be permitted by Regulation S or other applicable
securities law (the "Restricted Period"), offer, sell, pledge or otherwise
transfer the shares in the United States, or to a U.S. Person for the account or
benefit of a U.S. Person, or otherwise in a manner that is not in compliance
with Regulation S.
(iv) Each Purchaser will be required to agree in
writing that he/she/it shall, after expiration of the Restricted Period, offer,
sell, pledge or otherwise transfer the Shares only pursuant to registration
under the Securities Act or an available exemption there from and, in accordance
with all applicable state and foreign securities laws.
(v) Each Purchaser shall be required to
represent in writing that he/she/it has not in any jurisdiction, engaged in, and
prior to the expiration of the Restricted Period will not engage in, any short
selling of or any hedging transaction with respect to any of the shares of
Company's common stock, including without limitation, any put, call or other
option transaction, option writing or equity swap.
(vi) Each Purchaser shall be required to
represent in writing that neither he/she/it nor or any person acting on
his/her/its behalf has engaged, nor will engage, in any directed selling efforts
to U.S. Persons with respect to the Shares and the Purchaser and any person
acting on its behalf has and will comply with the "offering restrictions"
requirements of Regulation S under the Securities Act.
(vii) The transactions contemplated by this
Agreement have not been pre-arranged with a buyer located in the United States
or with a U.S. Person, and are not part of a plan or scheme to evade the
registration requirements of the Securities Act.
(viii) Neither the Purchasers' Advisor nor any
person acting on its behalf has undertaken or carried out any activity for the
purpose of, or that could reasonably be expected to have the effect of,
conditioning the market in the United States, its territories or possessions,
for any of the Shares. The Purchasers' Advisor agrees not to cause any
advertisement of the Shares to be published in any newspaper or periodical or
posted in any public place and not to issue any circular relating to the Shares
in the U.S. or its territories and only in compliance with any local applicable
securities laws.
(ix) Each certificate representing the Shares
shall be endorsed with the following legends:
(a) "THE SHARES ARE BEING OFFERED TO
INVESTORS WHO ARE NOT U.S. PERSONS (AS DEFINED IN
REGULATION S UNDER THE SECURITIES ACT OF 1933, AS
AMENDED ("THE SECURITIES ACT")) AND WITHOUT
REGISTRATION WITH THE UNITED STATES SECURITIES AND
EXCHANGE COMMISSION UNDER THE SECURITIES ACT IN
RELIANCE UPON REGULATION S PROMULGATED UNDER THE
SECURITIES ACT."
(b) "TRANSFER OF THESE SHARES IS
PROHIBITED, EXCEPT IN ACCORDANCE WITH THE PROVISIONS
OF REGULATION S, PURSUANT TO REGISTRATION UNDER THE
SECURITIES ACT, OR PURSUANT TO AVAILABLE EXEMPTION
FROM REGISTRATION. HEDGING TRANSACTIONS MAY NOT BE
CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES
ACT. THIS RESTRICTION SHALL NOT BE REMOVED WITHOUT AN
ATTORNEY'S OPINION LETTER REGARDING COMPLAINCE WITH
RULE 144."
(c) Any other legend required to be
placed thereon by applicable federal or state
securities laws.
(x) The Purchasers' Agent acknowledges that the
Company shall make a notation on its records or give instructions to any
transfer agent of the Company in order to implement the restrictions on transfer
of the Shares set forth in this Section 1.4.
1.5 TERMINATION. Either Purchasers' Advisor or Company may
terminate the agreement at any time by providing a 15-business day written
notification and sending it via Federal Express and facsimile to the registered
address of the counter-party. After the termination date, the Purchasers'
Advisor shall cease all further marketing efforts for the Shares and shall no
longer provide the Company with any new order to purchase the Shares. In the
event of termination by the Company, the following conditions would be
applicable: Acceptance by the Company of the shares ordered at any time from
receipt of the termination notice and up to the last day of the 15-business day
notification period.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants as follows:
2.1. ORGANIZATION AND STANDING OF THE COMPANY. The Company is a
duly organized and validly existing corporation in good standing under the laws
of the State of Nevada and has all requisite corporate power and authority for
the ownership and operation of its properties and for the carrying on of its
business as now conducted and as now proposed to be conducted and to execute and
deliver this Agreement and other instruments, agreements and documents
contemplated herein (together with this Agreement, the "Transaction Documents"),
to issue, sell and deliver the Shares and to perform its other obligations
pursuant hereto. The Company is duly licensed or qualified and in good standing
as a foreign corporation authorized to do business in the State of Colorado and
all other jurisdictions wherein the character of the property owned or leased or
the nature of the activities conducted by it makes such licensing or
qualification necessary, except where the failure to be so licensed or qualified
would not have a material adverse effect on the business, operations or
financial condition of the Company.
2.2. CORPORATE ACTION. The Transaction Documents have been duly
authorized, executed and delivered by the Company and constitute the legal,
valid and binding obligations of the Company, enforceable against the Company in
accordance with their respective terms. The Shares have been duly authorized.
The issuance, sale and delivery of the Shares have been duly authorized by all
required corporate action on the part of the Company. The Shares, when issued
and paid for in accordance with the Transaction Documents, will be validly
issued, fully paid and non-assessable and will be free and clear of all liens,
charges, restrictions, claims and encumbrances imposed by or through the
Company, except as expressly set forth in the Transaction Documents.
2.3. GOVERNMENTAL APPROVALS. No authorization, consent, approval,
license, exemption of or filing or registration with any court or governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, is or will be necessary for, or in connection with, the execution and
delivery by the Company of this Agreement, for the offer, issue, sale, execution
or delivery of the Shares, or for the performance by the Company of its
obligations under the Transaction Documents except for any filings required by
applicable securities laws.
2.4. LITIGATION. Except as set forth on Schedule 2.4, there is no
litigation or governmental proceeding or investigation pending or, to the
knowledge of the Company, threatened against the Company affecting any of its
properties or assets, nor, to the best knowledge of the Company, has there
occurred any event or does there exist any condition on the basis of which any
litigation, proceeding or investigation might properly be instituted. The
Company is not in default with respect to any order, writ, injunction, decree,
ruling or decision of any court, commission, board or other government agency,
which such default might have a material adverse effect on the business, assets,
liabilities, operations, Intellectual Property Rights, (as defined hereinafter)
management or financial condition of the Company. There are no actions or
proceedings pending or, to the Company's knowledge, threatened (or any basis
therefore known to the Company) against the Company which might result, either
in any case or in the aggregate, in any material adverse change in the business,
operations, Intellectual Property Rights, affairs or financial condition of the
Company or in any of its properties or assets, or which might call into question
the validity of any of the Transaction Documents, any of the Shares, or any
action taken or to be taken pursuant hereto or thereto.
2.5. COMPLIANCE WITH OTHER INSTRUMENTS. The Company is in
compliance in all material respects with its Certificate of Incorporation and
Bylaws, each as amended and/or restated to date, and in all respects with the
material terms and provisions of all mortgages, indentures, leases, agreements
and other instruments by which it is bound or to which it or any of its
properties or assets are subject. The Company is in compliance in all material
respects with all judgments, decrees, governmental orders, laws, statutes, rules
or regulations by which it is bound or to which it or any of its properties or
assets are subject. Neither the execution and delivery of the Transaction
Documents nor the issuance of the Shares, nor the consummation or performance of
any transaction contemplated hereby or thereby, has constituted or resulted in
or will constitute or result in a default or violation of, create a conflict
with, trigger any "change of control" or other right of any Person under, or
require any consent, waiver, release or approval under or with respect to, any
term or provision of any of the foregoing documents, instruments, judgments,
agreements, decrees, orders, statutes, rules and regulations.
2.6. TITLE TO ASSETS; INTELLECTUAL PROPERTY RIGHTS.
(a) The Company has good and marketable title in fee to
such of its fixed assets as are real property, and good and merchantable title
to all of its other assets, now carried on its books, free of any mortgages,
pledges, charges, liens, security interests or other encumbrances. The Company
enjoys peaceful and undisturbed possession under all leases and licenses under
which it is operating, and all said leases and licenses are valid and subsisting
and in full force and effect.
(b) The Company owns or has a valid right to use patents,
patent applications, patent right, trade secrets, confidential business
information, formula, processes, laboratory notebooks, algorithms, copyrights,
mask works, claims of infringement against third parties, licenses, permits,
license rights, contract rights with employees, consultants and third parties,
trademarks, trademark rights, inventions and discoveries, and all other
intellectual property, including, without limitation, all other such rights
generally classified as intangible, intellectual property assets in accordance
with GAAP (collectively the, "Intellectual Property Rights") being used to
conduct its business as now operated and as now proposed by the Company to be
operated and to the best of the Company's knowledge, the conduct of its business
as now operated and as now proposed to be operated does not and will not
conflict with or infringe upon the Intellectual Property Rights of others. To
the best of the Company's knowledge, no claim is pending or threatened against
the Company and/or its officers and employees to the effect that any such
Intellectual Property Right owned or licensed by the Company, or which the
Company otherwise has the right to use, is invalid or unenforceable by the
Company.
(c) The Company has taken all reasonable measures to
protect and preserve the security, confidentiality and value of its Intellectual
Property Rights, including its trade secrets and other confidential information.
The Company is and will be the exclusive owner of all right, title and interest
in its Intellectual Property Rights as purported to be owned by the Company, and
such Intellectual Property Rights are valid and in full force and effect. The
Company has not received notice of and, to the best of the Company's knowledge
there are no claims that the Company's Intellectual Property Rights or the use
or ownership thereof by the Company infringes, violates or conflicts with any
such right of any third party.
2.7. TAXES. Except as may be set forth on a Schedule attached to
this Agreement, the Company has accurately prepared and timely filed all
federal, state and other tax returns required by law to be filed by it, has paid
or made provision for the payment of all taxes shown to be due and all
additional assessments, and adequate provisions have been made and are reflected
in the Company's financial statements for all current taxes and other charges to
which the Company is subject and which are not currently due and payable.
2.8. DISCLOSURE. There is no fact within the knowledge of the
Company or any of its executive officers which has not been disclosed herein or
in writing by them to the Purchaser and which materially adversely affects, or
in the future in their opinion may, insofar as they can now foresee, materially
adversely affect the business, operations, properties, Intellectual Property
Rights, assets or condition, financial or other, of the Company. Without
limiting the foregoing, the Company has no knowledge that there exists, or there
is pending or planned, any patent, invention, device, application or principle
or any statute, rule, law, regulation, standard or code which would materially
adversely affect the business, operations, Intellectual Property Rights, affairs
or financial condition of the Company.
2.9. BROKERS OR FINDERS. No Person has or will have, as a result of
the transactions contemplated by this Agreement, any right, interest or valid
claim against or upon the Purchasers' Advisor for any commission, fee or other
compensation as a finder or broker because of any act or omission by the Company
or its respective agents.
2.10. CAPITALIZATION; STATUS OF CAPITAL STOCK. As of the date
hereof, the Company had a total authorized capitalization consisting of
100,000,000 shares of Common Stock, $0.001 par value. As of September 30, 2003,
23,670,459 shares of Common Stock were issued and outstanding. All the
outstanding shares of capital stock of the Company have been duly authorized,
and are validly issued, fully paid and non-assessable. None of the Company's
outstanding securities or authorized capital stock or the Shares is subject to
any rights of redemption, repurchase, rights of first refusal, preemptive rights
or other similar rights, whether contractual, statutory or otherwise, for the
benefit of the Company, any stockholder, or any other Person. There are no
restrictions on the transfer of shares of capital stock of the Company other
than those imposed by relevant federal and state securities laws and as
otherwise contemplated by this Agreement. There are no agreements,
understandings, trusts or other collaborative arrangements or understandings
concerning the voting or transfer of the capital stock of the Company to which
the Company is a party. The Company does not have outstanding, and has no
obligation to grant or issue, any "phantom stock" or other right measured by the
profits, revenues or results of operations of the Company or any portion
thereof; or any similar rights.
2.11. SEC REPORTS. The Company has furnished the Purchaser with true
and complete copies of its reports on Form S-8 filed October 16, 2003; Form NT
10-Q on August 14, 2003; and Form 10-QSB for the quarter ending June 30, 2003,
on August 19, 2003 (the "Current Reports") which constitute the only documents
that the Company was required to file with the SEC since July 1, 2003. As of
their respective filing dates, the Current Reports and all other filings made by
the Company under the Act or the Securities Exchange Act of 1934, as amended
(the "1934 Act") (collectively, the "SEC Reports"), complied with the
requirements of the Act or the 1934 Act, as the case may be, and none of such
filings contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
2.12. BOOKS AND RECORDS. The books of account, ledgers, order books,
records and documents of the Company accurately and completely reflect all
material information relating to the business of the Company, the location and
collection of its assets, and the nature of all transactions giving rise to the
obligations or accounts receivable of the Company.
2.13. REFUSAL OF REGISTRATION. The parties hereby acknowledge and
agree that the Company shall be required, as a term of this contract, to refuse
to register any transfer of the shares not made in accordance with the
provisions of Regulation S, or pursuant to Registration, or another exemption
from registration under the Securities Act.
2.14. APPROVAL OF LEGAL COUNSEL. Company acknowledges that each
client of Purchasers' Advisor will use the services of Xxxxx & Geotas, PLC, of
Phoenix, Arizona, as legal counsel to determine whether, after the required
holding period, each proposed sale of the shares purchased under this Agreement
may be sold in compliance with Rule 144 and, if so, to issue appropriate opinion
letters. Company irrevocably approves Xxxxx & Geotas, PLC to issue such letters
and approves of the non-affiliate Rule 144 opinion letter and the Rule 144(k)
opinion letter forms attached hereto as Exhibits 3 and 4. Company agrees to
instruct its stock transfer agent that the attorneys issuing such letters and
the forms of the Rule 144 letters attached hereto are acceptable to Company.
ARTICLE III.
MISCELLANEOUS
3.1. NO WAIVER; CUMULATIVE REMEDIES. No failure or delay on the
part of any party to this Agreement in exercising any right, power or remedy
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or remedy hereunder.
The remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
3.2. AMENDMENTS; WAIVERS AND CONSENTS. Any provision in the
Agreement to the contrary notwithstanding, and except as hereinafter provided,
changes in, termination or amendments of or additions to this Agreement may be
made, and compliance with any covenant or provision set forth herein may be
omitted or waived, if either Party shall obtain consent thereto in writing from
the other Party. Any waiver or consent may be given subject to satisfaction of
conditions stated therein and any waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
3.3. ADDRESSES FOR NOTICES. Any notice or other communication
required or permitted to be given hereunder shall be in writing and shall be
sent by Federal Express with a signed receipt by the recipient being required to
Company and/or to Purchasers' Advisor at the addresses for each set forth above.
Any notice or other communication given by certified mail shall be deemed given
at the time of certification thereof, except for a notice changing a party's
address which shall be deemed given at the time of receipt thereof.
3.4. COSTS; EXPENSES AND TAXES. Upon execution of this Agreement
and with each delivery of the Purchase Price as set forth in 1.3, the Company
shall pay no monies in the aggregate, to cover fees and disbursements of counsel
to the Purchaser or Purchaser's Advisor incurred in connection with the
negotiation, drafting and completion of the Transaction Documents and all
related matters. The Company shall pay any and all stamp, or other similar taxes
payable or determined to be payable in connection with the execution and
delivery of this Agreement, the issuance of any securities and the other
instruments and documents to be delivered hereunder or thereunder, and agrees to
save each Purchaser harmless from and against any and all liabilities with
respect to or resulting from any delay in paying or omission to pay such taxes.
3.5. EFFECTIVENESS; BINDING EFFECT; ASSIGNMENT. This Agreement
shall be binding upon and inure to the benefit of the Company, the Purchasers'
Advisor and the respective successors and assigns.
3.6. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made in the Transaction Documents, the Shares, or
any other instrument or document delivered in connection herewith or therewith,
shall survive the execution and delivery hereof or thereof.
3.7. PRIOR AGREEMENTS. The Transaction Documents executed and
delivered in connection herewith constitute the entire agreement between the
parties with respect to the subject matter set forth herein and supersede any
prior understandings or agreements concerning the subject matter hereof,
provided, however, that the Escrow Agreement attached hereto is incorporated by
reference and constitutes part of the agreement between the parties.
3.8. SEVERABILITY. The provisions of the Transaction Documents are
severable and, in the event that any court of competent jurisdiction shall
determine that any one or more of the provisions or part of a provision
contained therein shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision or part of a provision of such Transaction
Document and the terms of the Shares shall be reformed and construed as if such
invalid or illegal or unenforceable provision, or part of a provision, had never
been contained herein, and such provisions or part reformed so that it would be
valid, legal and enforceable to the maximum extent possible.
3.9. GOVERNING LAW; VENUE. This Agreement shall be enforced,
governed and construed in accordance with the laws of Arizona without giving
effect to choice of laws principles or conflict of laws provisions. Any suit,
action or proceeding pertaining to this Agreement or any transaction relating
hereto shall be brought to the state or federal courts located in Phoenix,
Arizona, United States of America, and the undersigned hereby irrevocably
consents and submits to the jurisdiction of such courts for the purpose of any
such suit, action, or proceeding. Purchaser acknowledges and agrees that venue
hereunder shall lie exclusively in Arizona, United States of America.
3.10. HEADINGS. Article, section and subsection headings in this
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose.
3.11. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
3.12. FURTHER ASSURANCES. From and after the date of this Agreement,
upon the request of the Purchasers' Advisor or the Company, the Company and the
Purchasers' Advisor shall execute and deliver such instruments, documents and
other writings as may be reasonably necessary or desirable to confirm and carry
out and to effectuate fully the intent and purposes of the Transaction Documents
and the Shares.
IN WITNESS WHEREOF, the parties hereto have caused this Stock Purchase
Agreement to be executed as of the date first above written.
CHINA WIRELESS COMMUNICATIONS, INC.
/s/ XXXX XXXXX
----------------------------------
By: Xxxx Xxxxx
Its: Chief Executive Officer
BELLADOR ADVISORY SERVICES (LABUAN) LTD.
/s/ XXXXX XXXXX
-----------------------------
By: Xxxxx Xxxxx
Its: Director
/s/ XXXXX XXXXXX
-----------------------------
By: Xxxxx Xxxxxx
Its: Director
