EXHIBIT 99.1
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COMMON STOCK PURCHASE AGREEMENT
between
Paradon Capital, Inc.,
Mr. Xxxxx Xxxxxxx,
Global Wireless Satellite Networks (USA), Inc.
and
Xxxxxxxxx Corporate Ventures, S. A.
dated as of July 27, 2004
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COMMON STOCK PURCHASE AGREEMENT
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THIS COMMON STOCK PURCHASE AGREEMENT, dated as of July ___, 2004 (the
"Agreement"), between Xxxxxxxxx Corporate Ventures, S. A., a corporation
organized and existing under the laws of the British Virgin Islands (referred to
as the "Purchaser"), Paradon Capital, Inc., a corporation organized and existing
under the laws of Barbados ("Paradon"), Mr. Xxxxx Xxxxxxx, residing at 000
Xxxxxx Xxxx, Xxxxxxxxx X.X.X. 0000, Xxxxxxxxx ("Xxxxxxx") Global Wireless
Satellite Networks (USA), Inc., a corporation organized and existing under the
laws of the State of Delaware (the "Company"). Collectively, Purchaser, Paradon,
Xxxxxxx and Company shall be referred to as the "Parties".
WHEREAS, the Parties desire that, upon the terms and subject to the
conditions contained herein, Paradon shall sell to the Purchaser all shares of
Company common stock held by Paradon which equals 726,600 shares or 69% of the
outstanding shares on a fully diluted basis ("Shares") pursuant to the terms set
forth herein; and
NOW, THEREFORE, the Parties agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
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Section 1.1 "BUSINESS DAY" means any day except Saturday, Sunday and
any day which shall be a Federal legal holiday or a day on which banking
institutions in the State of New York are authorized or required by law or other
government actions to close.
Section 1.2 "CAPITAL SHARES" shall mean the Common Stock and any shares
of any other class of Common Stock whether now or hereafter authorized, having
the right to participate in the distribution of earnings and assets of the
Company.
Section 1.3 "CAPITAL SHARES EQUIVALENTS" shall mean any securities,
rights, or obligations that are convertible into or exchangeable for, or giving
any right to, subscribe for any Capital Shares of the Company or any warrants,
options or other rights to subscribe for or purchase Capital Shares or any such
convertible or exchangeable securities.
Section 1.4 "CLOSING" shall mean the closing of the purchase and sale
of the Common Stock pursuant to Article II below.
Section 1.5 "CLOSING DATE" shall mean the date the closing of the
purchase and sale of the Common Stock occurs pursuant to Article II below.
Section 1.6 "COMMON STOCK" shall mean the Company's common stock, $.001
par value per share.
Section 1.7 "DAMAGES" shall mean any loss, claim, damage, liability,
costs and expenses which shall include, but not be limited to, reasonable
attorney's fees, disbursements, costs and expenses of expert witnesses and
investigation.
Section 1.8 "EXCHANGE ACT" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
Section 1.9 "LEGEND" shall have the meaning set forth in Article V
below.
Section 1.10 "NASD" shall mean the National Association of Securities
Dealers, Inc.
Section 1.11 "OUTSTANDING" when used with reference to shares of Common
Stock, or Capital Shares (collectively the "Shares"), shall mean, at any date as
of which the number of such Shares is to be determined, all issued and
outstanding Shares, and shall include all such Shares issuable in respect of
outstanding scrip or any certificates representing fractional interests in such
Shares; provided, however, that Outstanding shall not mean any such Shares then
directly or indirectly owned or held by or for the account of the Company.
Section 1.12 "PURCHASE PRICE" shall mean $550,000.
Section 1.13 "SEC" shall mean the Securities and Exchange Commission.
Section 1.14 "SECURITIES" shall mean the Shares.
Section 1.15 "SECURITIES ACT" shall mean the United States Securities
Act of 1933, as amended.
Section 1.16 "SEC DOCUMENTS" shall mean the Company's latest Form
10-KSB (and all amendments thereto), all Form 10-QSB's, 8-Ks, and the Proxy
Statement for its latest fiscal year as of the time in question.
ARTICLE II
PURCHASE AND SALE OF THE COMMON STOCK
-------------------------------------
Section 2.1 Closing. Paradon will sell, and the Purchaser will buy, on
the Closing Date the Shares in exchange for the Purchase Price. Each party
hereto shall also deliver the respective items found in Article VI to this
Agreement.
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Section 2.2 Form of Payment. Subject to the following and Section 2.3
of this Agreement, at Closing, upon receipt of the certificate evidencing the
Shares, the Purchaser shall pay the Purchase Price by delivering good funds in
United States Dollars by wire transfer pursuant to the instructions found in
Exhibit 2.2. All wire transfer fees incurred by such counsel will be borne
equally by the parties hereto. In the event that there is a dispute as to the
delivery of the funds or the Shares pursuant to this Section only, the parties
hereto agree to hold Rubin, Bailin, Ortoli LLP harmless from any claims and or
damages resulting therefrom, so long as Rubin, Bailin, Ortoli LLP acted in good
faith. It is acknowledged by all Parties, that EuroPacific Consulting Inc. shall
be paid directly by Rubin, Bailin, Ortoli LLP at the Closing without further
instructions from any Party. The Parties acknowledge that: (i) Mr. Xxxx Xxxxxx
has served in a capacity as a finder and will receive a fee of Fifteen Thousand
($15,000) Dollars at Closing; and (ii) EuroPacific Consultanting Inc. has served
in a capacity as a finder and will receive a fee of Eighty Thousand ($80,000)
Dollars at Closing Both of the aforementioned finders' fees shall be paid
directly by Rubin, Bailin, Ortoli LLP pursuant to wire instructions received by
it by the respective Finders.
Section 2.3 Escrow Agreement. Two Hundred Twenty Thousand Eight Hundred
Sixty-Four Dollars and Nineteen Cents ($220,864.19) all be held in the Rubin,
Bailin, Ortoli LLP escrow account pursuant to the terms of the Escrow Agreement
attached hereto as Exhibit 2.3.
Section 2.4 Subsequent Merger Transaction. It is contemplated that the
Purchaser intends to introduce an operating company to the Company for the
purposes of merging such into the Company in exchange for up to One Hundred
Million (100,000,000) shares of the Company's common stock ("Merger Transaction"
and "Merger Shares", respectively) depending upon the valuation of such assets
being transferred to the Company. In the event that the Merger Transaction
occurs, Xxxxxxx has the right to receive one percent (1%) of any shares issued
pursuant to the Merger Transaction with the registration rights enumerated in
this Section 2.4 ("Xxxxxxx Shares"). For a period of twelve months following the
date of the Merger Transaction, Xxxxxxx shall have customary anti-dilution
rights to the extent the Company sells or issues shares of common stock for per
share value less than the per share value determined in the Merger Transaction.
If the Company at any time subsequent to the one year anniversary of this
Agreement, proposes to register any of its securities under the Securities Act,
on any form other than Form S-4 or any similar form then in effect, it shall
each such time give written notice to Xxxxxxx of its intention so to do and,
upon the written request of Xxxxxxx given within 20 days after the giving of any
such notice the Company shall use its best efforts to cause all such shares of
common stock to be included under the proposed registration for disposition by
Xxxxxxx. The Company shall use its best efforts to maintain the effectiveness of
such registration statement for a period of three years. Up to Five Million
(5,000,000) of the Merger Shares may be registered with the Securities and
Exchange Commission pursuant to Form S-8 (or any similar form then in effect).
It is agreed by the Parties, that pursuant to the consulting agreement between
the Company and Mr. Xxxxx Xxxxxxx attached hereto as Exhibit 2.4 that Xx.
Xxxxxxx shall have the right to register that number of Xxxxxxx Shares equal to
Fifteen Percent (15%) of the total shares issued pursuant to Form S-8 so long as
such a registration statement is filed prior to the one year anniversary of this
Agreement. Xx. Xxxxxxx has no rights to collect remuneration in any form and to
any extent other than what is enumerated in this Section 2.4.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
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The Purchaser represents and warrants to Paradon and Xxxxxxx that:
Section 3.1 Intent. The Purchaser is entering into this Agreement for
its own account and has no present arrangement (whether or not legally binding)
at any time to sell the Common Stock to or through any person or entity;
provided, however, that by making the representations herein, the Purchaser does
not agree to hold the Common Stock for any minimum or other specific term and
reserve the right to dispose of the Common Stock at any time in accordance with
federal and state securities laws applicable to such disposition.
Section 3.2 Authority. This Agreement has been duly authorized and
validly executed and delivered by the Purchaser and is a valid and binding
agreement of the Purchaser enforceable against it in accordance with its terms,
subject to applicable bankruptcy, insolvency, or similar laws relating to, or
affecting generally the enforcement of, creditors' rights and remedies or by
other equitable principles of general application.
Section 3.3 Absence of Conflicts. The execution and delivery of this
Agreement and any other document or instrument executed in connection herewith,
and the consummation of the transactions contemplated thereby, and compliance
with the requirements thereof, will not violate any law, rule, regulation,
order, writ, judgment, injunction, decree or award binding on Purchaser, or, to
the Purchaser's knowledge, (a) violate any provision of any indenture,
instrument or agreement to which the Purchaser is a party or are subject, or by
which the Purchaser or any of its assets is bound; (b) conflict with or
constitute a material default thereunder; (c) result in the creation or
imposition of any lien pursuant to the terms of any such indenture, instrument
or agreement, or constitute a breach of any fiduciary duty owed by Purchaser to
any third party; or (d) require the approval of any third-party (which has not
been obtained) pursuant to any material contract, agreement, instrument,
relationship or legal obligation to which any of the Purchasers is subject or to
which any of their assets, operations or management may be subject.
Section 3.6 Disclosure; Access to Information. The Purchaser has
received all documents, records, books and other information pertaining to
Purchaser's investment in the Company that have been requested by Purchaser,
including the opportunity to ask questions and receive answers. The Company is
subject to the periodic reporting requirements of the Exchange Act as they apply
to foreign issuers, and the Purchaser has reviewed or received copies of any
such reports that have been requested by it. The Purchaser represents that it
has reviewed the Company's, Form 10-KSB for the year ended December 31, 2003 and
Form 10-QSB for the quarter ended March 31, 2004.
Section 3.7 Manner of Sale. At no time was the Purchaser presented with
or solicited by or through any leaflet, public promotional meeting, television
advertisement or any other form of general solicitation or advertising.
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Section 3.8 Registration or Exemption Requirements. The Purchaser
further acknowledges and understands that the Securities may not be transferred,
resold or otherwise disposed of except in a transaction registered under the
Securities Act and any applicable state securities laws, or unless an exemption
from such registration is available. The Purchaser understands that the
certificate(s) evidencing the Shares will be imprinted with a legend that
prohibits the transfer of these securities unless (i) they are registered or
such registration is not required, and (ii) if the transfer is pursuant to an
exemption from registration.
Section 3.9 No Legal, Tax or Investment Advice. The Purchaser
understands that nothing in this Agreement or any other materials presented to
the Purchaser in connection with the purchase and sale of the Shares constitutes
legal, tax or investment advice. The Purchaser has relied on, and has consulted
with, such legal, tax and investment advisors as they, in their sole discretion,
have deemed necessary or appropriate in connection with their purchase of the
Shares.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS OF EACH OF PARADON,
XXXXXXX AND THE COMPANY
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Each of Paradon, Xxxxxxx and the Company represents and warrants to the
Purchaser that:
Section 4.1 Organization of the Company. The Company is a corporation
duly incorporated and validly existing under the laws of the State of Delaware.
Section 4.2 Authority. (i) The Company has the requisite corporate
power and authority to enter into and perform its obligations under this
Agreement, and all Exhibits annexed hereto, and to issue the Shares, (ii) the
execution, issuance and delivery of this Agreement, and all Exhibits annexed
hereto, by the Company and the consummation by it of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
and no further consent or authorization of the Company, its Board of Directors
or its shareholders is required, and (iii) this Agreement, and all Exhibits
annexed hereto, have been duly executed and delivered by the Company and
constitute valid and binding obligations of the Company enforceable against the
Company in accordance with their terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, or similar laws relating to, or
affecting generally the enforcement of, creditors' rights and remedies or by
other equitable principles of general application. Upon their issuance and
delivery pursuant to this Agreement, the Shares will be validly issued, fully
paid and nonassessable and will be free of any liens or encumbrances other than
those created hereunder or by the actions of the Purchaser; provided, however,
that the Shares are subject to restrictions on transfer under state and/or
federal securities laws. The issuance and sale of the Shares hereunder will not
give rise to any preemptive right or right of first refusal or right of
participation on behalf of any person. Further, no shareholder approval is
required to issue the Shares and the Company did not procure such.
Section 4.3 Capitalization. The authorized capital stock of the Company
consists of 90,000,000 shares of Common Stock, $.001 par value per share, of
which 1,054,344 shares are issued and outstanding. The Company also has
10,000,000 shares of Preferred Stock authorized, but none outstanding. All of
the outstanding shares of Common Stock of the Company have been duly and validly
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authorized and issued and are fully paid and nonassessable. No shares of Common
Stock are entitled to preemptive or similar rights. There are no outstanding
options, warrants, rights to subscribe to, calls or commitments of any character
whatsoever relating to, or rights or obligations convertible into or
exchangeable for, or giving any Person any right to subscribe for or acquire,
any shares of Common Stock, or contracts, commitments, understandings, or
arrangements by which the Company is or may become bound to issue additional
shares of Common Stock or securities or rights convertible or exchangeable into
shares of Common Stock.
Section 4.4 Common Stock. The Company has registered its Common Stock
pursuant to Section 12(g) of the Exchange Act and is in full compliance with all
reporting requirements of the Exchange Act, and such Common Stock is currently
listed or quoted on the OTC Bulletin Board.
Section 4.5 SEC Documents. The Company has delivered or made available
to the Purchaser true and complete copies of the SEC Documents filed by the
Company with the SEC during the twelve (12) months immediately preceding the
Closing Date and has timely filed all required reports during such time period.
Such documents are accurate and complete and contain no material
misrepresentations therein. The Company has not provided to the Purchaser any
information that, according to applicable law, rule or regulation, should have
been disclosed publicly prior to the date hereof by the Company, but which has
not been so disclosed.
Section 4.6 No General Solicitation or Advertising in Regard to this
Transaction. Neither the Company nor any of its affiliates nor any distributor
or any person acting on its or their behalf (i) has conducted or will conduct
any general solicitation (as that term is used in Rule 502(c) of Regulation D)
or general advertising with respect to any of the Shares or (ii) made any offers
or sales of any security or solicited any offers to buy any security under any
circumstances that would require registration of the Shares under the Securities
Act.
Section 4.7 Existing Employment Arrangements. Other than Xx. Xxxxx
Xxxxxxx remaining on the Board of Directors at a nomimal fee until such time
that new directors are elected, to the extent they exist, all employment
agreements, arrangements or understandings between the Company and any other
party shall be terminated as of the Closing. The Company does not have any labor
or collective bargaining agreements or employee benefit or welfare plans. All
vacation pay, if any, due to employees of the Company has been fully paid by the
Company. No employees of the Company are entitled to any sick pay or days or
"employees benefit plan" (as that term is defined in ERISA) and no retirement
plans exist. The Company has terminated the employment (and shall indemnify the
Purchaser pursuant to this Agreement from any and all obligations associated
with such termination) of any and all employees of the Company.
Section 4.8 Full Disclosure. The Company does not have knowledge of any
facts pertaining to the Company which could have a material adverse effect and
which have not been disclosed in this Agreement. No representation or warranty
of the Company in this Agreement or any related document contains or will
contain any untrue statement of a material fact, or omits or will omit to state
a material fact necessary to make the statements contained herein or therein not
misleading.
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Section 4.9 Corporate Documents. The Company has furnished or made
available to the Purchaser true and correct copies of the Company's Articles of
Incorporation, as amended and in effect on the date hereof, and the Company's
by-laws, as amended and in effect on the date hereof (the "By-Laws").
Section 4.10 Litigation and Other Proceedings. There are no lawsuits or
proceedings pending or to the knowledge of the Company threatened, against the
Company, nor has the Company received any written or oral notice of any such
action, suit, proceeding or investigation, which would reasonably be expected to
have a material adverse effect. No judgment, order, writ, injunction or decree
or award has been issued by or, so far as is known by the Company, requested of
any court, arbitrator or governmental agency which would be reasonably expected
to result in a material adverse effect.
Section 4.11 Taxes. All federal, provincial, city and other tax
returns, reports and declarations required to be filed by or on behalf of the
Company have been filed and such returns are complete and accurate and disclose
all taxes (whether based upon income, operations, purchases, sales, payroll,
licenses, compensation, business, capital, properties or assets or otherwise)
required to be paid in the periods covered thereby.
Section 4.12 Material Contracts. Except as set forth in the SEC
Documents, the agreements to which the Company is a party described in the SEC
Documents are valid agreements, in full force and effect.
Section 4.13 Use of Proceeds Shall Satisfy all Liabilities. Subject to
the terms of the Escrow Agreement found attached hereto as Exhibit 2.3, the
proceeds from the sale of the Shares shall be used, in a prompt manner, to
satisfy all of the liabilities of the Company in the denominations found in
Exhibit 4.13. There shall be no material liabilities after such payments are
made.
Section 4.14 No Actions Without Notice and Consent of Purchaser. As the
Chairman of the Company's Board of Directors and President of the Company Xx.
Xxxxx Xxxxxxx acknowledges that no actions shall be taken subsequent to the
Closing, material or otherwise, without written notice to and consent from the
Purchaser.
ARTICLE V
LEGENDS
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Section 5.1 Legends. The Purchaser agrees to the imprinting, of the
following legend (or such substantially similar legend) on the securities:
THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR
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PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS.
Section 5.2 No Other Legend or Stock Transfer Restrictions. No legend
other than the one specified in this Article has been or shall be placed on the
share certificates representing the Common Stock, and no instructions or "stop
transfer orders," so called, "stock transfer restrictions," or other
restrictions have been or shall be given to the Company's transfer agent with
respect thereto other than as expressly set forth in this Article.
Section 5.3 Purchaser's Compliance. Nothing in this Article shall
affect in any way the Purchaser's obligations under any agreement to comply with
all applicable securities laws upon resale of the Common Stock.
ARTICLE VI
DELIVERIES AT CLOSING
---------------------
Section 6.1 Paradon, Xxxxxxx and the Company collectively
(a) Opinion of Counsel in the form attached hereto as
Exhibit 6.1.
(b) Certified shareholder list of the Company dated within
3 business days prior to the Closing.
(c) Certificate of Good Standing of the Company, dated
within 5 business days of the date of this Agreement.
(d) Duly endorsed with a form of signature guarantee
acceptable to the Company's transfer agent,
Computershare, evidencing the Shares.
(e) Duly Executed Escrow Agreement in the form attached
hereto as Exhibit 2.3
(f) Certificate of Paradon Secretary as to the authority to
enter into this Agreement as well as the transfer of
the Shares.
Section 6.2 Purchaser
(a) Purchase Price.
(b) Duly Executed Escrow Agreement in the form attached
hereto as Exhibit 2.3
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ARTICLE VII
SUBSEQUENT EVENTS
-----------------
Section 7.1 For a nominal fee to be agreed upon between the Purchaser
and Xx. Xxxxx Xxxxxxx, Xx. Xxxxxxx shall remain as the Company's sole officer
and director for a maximum period of 30 days subsequent to this Agreement for
the sole purpose of preparing the Company's financial statements for the filing
of the Quarterly Report on Form 10-QSB for the period ending June 30, 2004.
ARTICLE VIII
CHOICE OF LAW
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Section 8.1 Choice of Law; Venue; Jurisdiction. This Agreement will be
construed and enforced in accordance with and exclusively governed by the laws
of the State of Delaware, except for matters arising under the Securities Act,
without reference to principles of conflicts of law. Each of the parties
consents to the exclusive jurisdiction of the U.S. District Court sitting in the
State of New York in connection with any dispute arising under this Agreement
and hereby waives, to the maximum extent permitted by law, any objection,
including any objection based on forum non conveniens, to the bringing of any
such proceeding in such jurisdictions. Each party waives its right to a trial by
jury.
ARTICLE IX
NOTICES
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Section 9.1 Notices. All notices, demands, requests, consents,
approvals, and other communications required or permitted hereunder shall be in
writing and, unless otherwise specified herein, shall be (i) personally served,
(ii) deposited in the mail, registered or certified, return receipt requested,
postage prepaid, (iii) delivered by reputable air courier service with charges
prepaid, or (iv) transmitted by hand delivery, telegram, or facsimile, addressed
as set forth below or to such other address as such party shall have specified
most recently by written notice. Any notice or other communication required or
permitted to be given hereunder shall be deemed effective (a) upon hand delivery
or delivery by facsimile, with accurate confirmation generated by the
transmitting facsimile machine, at the address or number designated below (if
delivered on a Business Day during normal business hours where such notice is to
be received), or the first Business Day following such delivery (if delivered
other than on a Business Day during normal business hours where such notice is
to be received), or (b) on the second Business Day following the date of mailing
by reputable courier service, fully prepaid, addressed to such address, or upon
actual receipt of such mailing, whichever shall first occur. The addresses for
such communications shall be:
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If to Paradon: Paradon Capital, Inc.
00X Xxxxx Xxxxxxx Xxxxxxx
Xxxxxxxxx, Xx. Xxxxx
Barbados, S10-West Indies
If to Xxxxxxx: Xxxxx Xxxxxxx
c/o Xxxxx Xxxxxxx
00 Xxxxxxxxx Xxxxxx, #000
Xxxxxxxxx, X.X. X0X 0X0
If to Xxxxx Xxxxxxx: Xxxxx Kustiak
00 Xxxxxxxxx Xxxxxx, #000
Xxxxxxxxx, X.X. X0X 0X0
If to the Company: Global Wireless Satellite Networks (USA), Inc.
c/o Xxxxx Xxxxxxx
00 Xxxxxxxxx Xxxxxx, #000
Xxxxxxxxx, X.X. X0X 0X0
with a copy to: Xxxxxxx X. Xxxxxxxxx, Esq
00000 Xxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
If to the Purchaser: Xxxxxxxxx Corporate Ventures, S. A.
x/x Xxxxxxxx Xxxxxxxx
00 Xxxxxxxxxxxxx
Xxxxxx, XX
XX0X
with a copy to: Rubin, Bailin, Ortoli LLP
000 Xxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxxx, Esq.
Either party hereto may from time to time change its address or
facsimile number for notices under this Section 9.1 by giving at least ten
calendar days' prior written notice of such changed address or facsimile number
to the other party hereto.
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ARTICLE X
INDEMNIFICATION
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Section 10.1 Indemnification of the Company.
(a) Subject to the terms and conditions of this Article, Purchaser
hereby agrees to indemnify, defend and hold Paradon and Xxxxxxx
and each their respective officers, directors, agents, attorneys
and affiliates harmless from and against all losses, obligations,
assessments, penalties, liabilities, costs, damages, reasonable
attorneys' fees and expenses (collectively, "Damages") asserted
against or incurred by either or such identified persons by
reason of or resulting from (i) a representation or warranty made
by the Purchaser herein being incorrect or untrue, (ii) a breach
by the Purchaser of any covenant contained herein or in any of
the agreements executed pursuant hereto or (iii) a breach by
either Paradon or Xxxxxxx of any covenant contained herein to be
performed after the Closing.
(b) Each of Paradon and Xxxxxxx agrees to cooperate with the
Purchaser in the event of any settlement negotiated by the
Purchaser with regard to the indemnification provided herein.
Section 10.2 Indemnification of the Purchaser.
(a) Subject to the terms and conditions of this Article, the Paradon
and Xxxxxxx, jointly and severally, hereby agree to indemnify,
defend and hold the Purchaser and its agents, attorneys and
affiliates harmless from and against all Damages asserted against
or incurred by the Purchaser or such indemnified persons by
reason of or resulting from a representation or warranty made by
the Company herein being incorrect or untrue.
(b) The Purchaser agrees to cooperate with Paradon and/or Xxxxxxx, as
the case may be, in the event of any settlement negotiated by
either of them with regard to the indemnification provided
herein.
Section 10.3 Assertion and Resolution of Indemnification Claim Any
permitted indemnitee under Sections 10.1 and 10.2 hereof (an "Indemnified
Party") shall give notice to the person responsible for indemnification (an
"Indemnifying Party") of any claim as to which indemnification may be sought as
soon as possible after the Indemnified Party has actual knowledge thereof and
the amount thereof, if known. The Indemnified Party shall supply to the
Indemnifying Party any other information in the possession of the Indemnified
Party regarding such claim, and will permit the Indemnifying Party (at its
expense) to assume the defense of any third party claim and any litigation
resulting therefrom, provided that counsel for the Indemnifying Party who shall
conduct the defense of such claim or litigation shall be reasonably satisfactory
to the Indemnified Party, and provided further that the failure by the
Indemnified Party to give notice as provided herein will not relieve the
Indemnifying Party of its indemnification obligations hereunder except to the
extent that the Indemnifying Party is damaged as a result of the failure to give
notice. If the Indemnifying Party has assumed the defense of a third party
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claim, the Indemnifying Party shall not be entitled to settle such third party
claim without the prior written consent of the Indemnified Party, which consent
shall not be unreasonably withheld, provided that such consent shall not be
required if such settlement involves only the payment of money and the claimant
provides to the Indemnified Party, in form and substance reasonably satisfactory
to such Indemnified Party, a release from all liability in respect of such third
party claim. The Indemnified Party shall have the right at all times to
participate in the defense, settlement, negotiations or litigation relating to
any third party claim or demand at its own expense. If the Indemnifying Party
does not assume the defense of any matter as above provided, then the
Indemnified Party shall have the right to defend any such third party claim or
demand, and will be entitled to settle any such claim or demand in its
discretion for the account or benefit of the Indemnified Party. In any event,
the Indemnified Party will cooperate in the defense of any such action at the
expense of the Indemnifying Party and the records of each party shall be
available to the other with respect to such defense.
Section 10.4 Indemnification of Negligence of Indemnitee. The
indemnification provided in this Article shall be applicable whether or not
negligence of the Indemnified Party is alleged or proven.
ARTICLE XI
MISCELLANEOUS
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Section 11.1 Counterparts; Facsimile; Amendments. This Agreement may be
executed in multiple counterparts, each of which may be executed by less than
all of the parties and shall be deemed to be an original instrument which shall
be enforceable against the parties actually executing such counterparts and all
of which together shall constitute one and the same instrument. Except as
otherwise stated herein, in lieu of the original documents, a facsimile
transmission or copy of the original documents shall be as effective and
enforceable as the original. This Agreement may be amended only by a writing
executed by the Company on the one hand, and the Purchaser, on the other hand.
Section 11.2 Entire Agreement. This Agreement, the Exhibits or
Attachments hereto, set forth the entire agreement and understanding of the
parties relating to the subject matter hereof and supersedes all prior and
contemporaneous agreements, negotiations and understandings between the parties,
both oral and written relating to the subject matter hereof. The terms and
conditions of all Exhibits and Attachments to this Agreement are incorporated
herein by this reference and shall constitute part of this Agreement as if fully
set forth herein.
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Section 11.3 Currency. All references to currency in this Agreement and
all Exhibits annexed hereto shall be in United States currency.
IN WITNESS WHEREOF, the parties hereto have caused this Common Stock
Purchase Agreement to be executed by the undersigned, thereunto duly authorized,
as of the date first set forth above.
XXXXXXXXX CORPORATE VENTURES, S. A.
By: /s/ Xxxxxxxx XxXxx
---------------------------------------
Name: Xxxxxxxx XxXxx
Title: President
PARADON CAPITAL, INC.
By: /s/ Xxxxx Xxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxx
Title: President
/s/ Xxxxx Xxxxxxx
-----------------------------------------
Xxxxx Xxxxxxx
GLOBAL WIRELESS SATELLITE NETWORKS (USA),
INC.
By: Xxxxx Xxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxx
Title: President
/s/ Xxxxx Xxxxxxx
-----------------------------------------
Xxxxx Xxxxxxx
(solely with respect to Section 7.1)
RUBIN, BAILIN, ORTOLI LLP
(solely with respect to Section 2.2)
By: /s/ Xxxxxxx X. Xxxxxxxxxx
---------------------------------------
13
EXHIBIT 2.2
WIRE TRANSFER INSTRUCTIONS
Paradon Capital, Inc.
---------------------
U.S. Correspondent Bank:
Chase Manhattan Bank - New York
Swift: XXXX US 33
ABA: 021 000 021
Canadian Correspondent Bank:
Xxxxx Xxxx xx Xxxxxx - Xxxxxxx, XX
Swift: ROYC CA T2
For Credit To: Credit Union Central of BC - Vancouver, BC
Account: 0010 400 2143
For further credit to:
VanCity Savings Credit Union
Transit No: 16150
Branch Name: Branch No. 5, 0000 Xxxxxx Xxxxx, Xxxx Xxxxxxxxx, XX
Payee's Name and Account No: Xxxxxxx & Company, In Trust, 610309518 US$ Chequing
Account
EXHIBIT 2.3
ESCROW AGREEMENT
ESCROW AGREEMENT
ESCROW AGREEMENT (this "Agreement"), made and entered into as of the
_________ day of July 2004 by and among each of the between Xxxxxxxxx Corporate
Ventures, S. A. (referred to as the "Purchaser"), Paradon Capital, Inc., a
corporation organized and existing under the laws of Barbados ("Paradon"), Xxxxx
Xxxxxxx, residing at 000 Xxxxxx Xxxx, Xxxxxxxxx, X.X.X. 0000, Xxxxxxxxx
("Xxxxxxx"), Global Wireless Satellite Networks (USA), Inc., a corporation
organized and existing under the laws of the State of Delaware (the "Company")
and Rubin, Bailin, Ortoli LLP (the "Escrow Agent").
WITNESSETH:
WHEREAS, pursuant to the provisions of a certain Stock Purchase
Agreement to be entered into concurrently herewith (as amended, supplemented,
restated or otherwise modified from time to time, the "Agreement") by Purchaser,
Paradon and the Company, Paradon has sold 726,600 shares of the Company and the
Company wwill be delivered without assets or liabilities upon satisfaction of
those liabilities found in Exhibit 4.13 to the Agreement.
WHEREAS, as a condition precedent to the consummation by the Purchaser
of the transactions contemplated by the Agreement, Paradon is required to agree
that the aggregate amount of Two Hundred Twenty Thousand Eight Hundred
Sixty-Four Dollars and Nineteen Cents ($220,864.19) be placed in escrow with the
Escrow Agent ("Escrowed Funds").
WHEREAS, the Agreement contemplates that the Escrow Agent shall hold
and disburse the Escrowed Funds as provided hereinafter defined; and
WHEREAS, the parties hereto (other than the Escrow Agent) desire that
the Escrow Agent act as escrow agent hereunder, and the Escrow Agent is willing
to act as escrow agent hereunder;
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements hereinafter set forth and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. CERTAIN DEFINITIONS AND RULES OF CONSTRUCTION.
1.1 Terms Defined Herein. As used herein, the following terms shall
have the following respective meanings, unless the context otherwise requires:
"ESCROWED FUNDS" shall refer to the Two Hundred Twenty Thousand Eight
Hundred Sixty-Four Dollars and Nineteen Cents ($220,864.19) deposited by the
Purchaser with the Escrow Agent.
1
1.2 References to "Hereof." Use of the term "hereof," "herein" or
"hereunder" and other words of similar import shall be deemed references to this
Agreement as a whole and not to any particular Article, Section, paragraph or
other subdivision of this Escrow Agreement. Except as otherwise provided herein,
references to any Article, Section, Exhibit or Schedule shall be deemed a
reference to such Article, Section, Exhibit or Schedule of this Agreement.
1.3 Use of Pronouns. The use of any masculine, feminine or neuter
pronoun shall be deemed to include the use of each other form of pronoun, and
unless the context otherwise requires, the use of the singular form of any
defined term shall include the plural form thereof, and vice versa.
1.4 Use of Including. The use of the term "including" shall be deemed
used in the broadest, most inclusive sense and the equivalent to including,
without limitation.
2. APPOINTMENT OF ESCROW AGENT. Purchaser, Paradon and Xxxxxxx hereby
designate and appoint Rubin, Bailin, Ortoli LLP to act as Escrow Agent
hereunder, and hereby accepts such designation and appointment and, upon the
conditions and subject to the terms set forth herein, agrees to act as escrow
agent hereunder.
3. DEPOSIT BY SELLERS.
Purchaser hereby delivers to, and deposit in escrow hereunder with the
Escrow Agent, the Escrowed Funds.
4. ACKNOWLEDGMENT OF RECEIPT OF ESCROWED FUNDS. Escrow Agent
acknowledges receipt of the Escrowed Funds.
5. AGREEMENT AND ARRANGEMENT BETWEEN PURCHASER, PARADON AND THE
COMPANY. The Escrow Agent shall have no obligation or responsibility with
respect to the Agreement or any other agreement between Purchaser, Paradon and
Xxxxxxx. Escrow Agent's sole obligation is to perform the obligations hereunder.
6. DELIVERIES BY ESCROW AGENT; CONTEMPORANEOUS OBLIGATIONS OF PURCHASER
AND PARADON.
6.1 General Restriction. The Escrow Agent shall make all disbursements
of the Escrowed Funds in accordance with the terms of this Escrow Agreement.
6.2 Deliveries. Upon receipt of a General Release in the form attached
hereto as Exhibit 6.2, from an entity listed on Exhibit 4.13 to the Agreement,
the full amount of the related liability to that party as enumerated on that
Exhibit shall be released to Paradon via wire transfer, less a bank fee of
Twenty ($20.00) Dollars for each wire transfer.
2
If any liabilities found on Exhibit 4.13 to the Agreement remain unpaid
for 10 business days subsequent to the date of the Agreement, the Escrow Agent
shall immediately contact those unpaid creditors and remit payment to each in
the amounts indicated in that Exhibit without further notice to Paradon or
Xxxxxxx.
7. PROVISIONS REGARDING ESCROW AGENT.
7.1 Liability of Escrow Agent. In performing any duty or obligation
under this Agreement, the Escrow Agent shall not be liable to any party for
damages, losses or expenses. The Escrow Agent shall not incur any liability for
(i) any act or failure to act made or omitted in good faith or (ii) any action
taken or omitted in reliance upon any instrument, including any affidavit or
other written statement provided for in, or contemplated by this Agreement that
the Escrow Agent shall in good faith believe to be genuine, nor will the Escrow
Agent be liable of responsible for forgeries, fraud or impersonations or for
determining the scope of any representative authority. In addition, the Escrow
Agent may consult with legal counsel in connection with the Escrow Agent's
duties under this Agreement and shall be fully protected in any act taken,
suffered or permitted by it in good faith in accordance with the advice of
counsel. The Escrow Agent may act on any notice, resolution, telegram, request,
consent, waiver, certificate, statement, affidavit or other paper or document
that it in good faith believes to be genuine and to have been passed upon or
signed by the proper Persons or to have been prepared and furnished pursuant to
any of the provisions hereof. The Escrow Agent shall be under no duty to make
any investigations as to any statement contained in any instrument, nor shall it
be responsible for determining or verifying the authority of any Person acting
or purporting to act on behalf of any party to this Agreement. Without limiting
the scope or generality of the foregoing, the Escrow Agent shall be fully
protected in relying and acting upon (a) certification provided for in of this
Agreement and shall be entitled to assume the truth, accuracy and completeness
of any and all statements made therein and any (b) certificate or other document
that, on its fact, appears to have been executed or delivered by the Person
hereunder contemplated to execute or deliver the same.
7.2 Fees and Expenses. All disbursements shall be shared equally by
Purchaser and Paradon. All costs and expenses (collectively, "expenses")
including, without limitation, any cost or expenses incurred in connection with
consulting with any legal counsel as contemplated by Section 7.1 above, incurred
by the Escrow Agent through it in connection with the performance of its duties
and obligations hereunder shall be the responsibility of Paradon. If any
Expenses are incurred by the Escrow Agent in connection with the performance of
any duties or obligations after the disbursement the same shall be promptly paid
by Paradon to the Escrow Agent upon demand therefor.
7.3 Controversies. If any controversy arises between or among any of
the parties to this Agreement, or with any other party, concerning the subject
matter of this Agreement, its terms or conditions or the disbursement or
distribution of any funds, documents or other property held in escrow hereunder,
the Escrow Agent will not be required to determine the controversy or to take
any action regarding it. The Escrow Agent may hold all funds, documents and
other property delivered to it and/or placed in escrow hereunder and may wait
for settlement of any such controversy by final arbitration or other
determination. In such event, the Escrow Agent will not be liable for any
3
interest or other damage or loss. The Escrow Agent is further authorized to
deposit with any court all funds, documents and other property held in escrow or
otherwise delivered to it hereunder. The parties hereto jointly and severally
agree to indemnify and hold harmless the Escrow Agent from and against any and
all costs, expenses, charges and reasonable attorneys' fees incurred by the
Escrow Agent due or related to any arbitration, deposit or other proceeding
contemplated by the foregoing including any action with respect to such deposit.
Upon initiating such arbitration or any other proceeding, the Escrow Agent shall
be fully released and discharged of and from all obligations and liabilities
imposed by the terms of this Agreement or otherwise imposed by law.
7.4 Indemnification of Escrow Agent. The parties hereto and their
respective successors and permitted assigns agree jointly and severally to
indemnify and hold harmless the Escrow Agent from and against any and all
losses, claims, charges, damages, liabilities, and expenses, including
reasonable costs of investigation, counsel fees and disbursements, that may be
imposed on the Escrow Agent or incurred by the Escrow Agent in connection with
the performance of its duties and obligations under this Agreement, including,
but not limited to, any litigation or arbitration arising from this Agreement or
involving its subject matter.
7.5 Resignation of Escrow Agent. The Escrow Agent may resign at any
time upon giving at least five (5) days prior written notice to each of the then
parties hereto of its intention to do so. The parties shall use their best
efforts to mutually agree on a successor escrow agent within five (5) days after
receiving such resignation notice from the Escrow Agent. If the parties fail to
agree on a successor escrow agent within such time, the Escrow Agent shall have
the right to apply to any court of competent jurisdiction for the appointment of
a successor escrow agent, and such court may thereupon, after such notice, if
any, as it shall deem proper, appoint a successor escrow agent. Any successor
escrow agent shall execute and deliver a valid and binding written instrument
accepting such appointment, and it shall, without further acts, be vested with
all the estates, properties, rights, powers and duties of the predecessor escrow
agent as if originally named as such. Upon resignation, the Escrow Agent shall
be discharged from all further duties, obligations and liabilities under this
Agreement and shall transfer the Escrowed Funds to the predecessor escrow agent.
7.6 Conflict of Interest. The parties hereto acknowledge that the
Escrow Agent has served as counsel to Purchaser, with respect to the Agreement
and the transactions contemplated thereby and hereby, and that the Escrow Agent
may continue to so serve as counsel to Purchaser and the Company, following the
consummation of such transactions. The parties hereto hereby agree that no
conflict of interest shall exist as a consequence of the Escrow Agent serving as
escrow agent hereunder and also serving as counsel to Purchaser and the Company
any time hereafter. The parties hereto hereby waive any claim with respect to
any actual or potential conflict of interest, or of any breach of any alleged
fiduciary or similar duty, arising from or regarding any action or inaction by
the Escrow Agent, as the escrow agent hereunder, regardless of any relationship,
now or in the future, between any party hereto and the Escrow Agent as counsel
for such party or any other party hereto.
7.7 Notices. All notices hereunder shall be in writing and shall be
deemed to have been given or made when personally delivered, sent by recognized
overnight courier, deposited in the mails, postage pre-paid, or sent by
facsimile transmission and addressed as set forth in the Agreement.
4
8. AMENDMENTS. This Agreement shall not be altered or amended except in
writing, executed by all parties hereto.
Headings. The headings of the several sections of this Agreement are
included for ease of reference only and shall not form a part of this Agreement.
Governing Law. This Agreement shall be construed and enforced in
accordance with the internal laws of the State of New York applicable to
contracts executed and to be wholly performed within such State, without giving
effect to the choice or conflict of laws principles thereof.
Successors and Assigns. This Agreement shall be binding upon an inure
to the benefit of the parties hereto and each of their respective heirs,
administrators, personal representatives, successors and assigns. Nothing
contained in this Agreement, express or implied, is intended to confer upon any
person (other than the parties hereto and their respective heirs,
administrators, personal representatives, successors and assigns as aforesaid
and the Buyers and Sellers and both their respective heirs, administrators,
legal representatives, successors and assigns) any rights or remedies under or
by reason of this Agreement.
Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
5
IN WITNESS WHEREOF, the parties hereto have executed this Escrow
Agreement or have caused this Agreement to be executed as of the day and year
first above written.
Rubin, Bailin, Ortoli LLP
as Escrow Agent
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx, Esq.
XXXXXXXXX CORPORATE VENTURES, S. A.
By: /s/ Xxxxxxxx XxXxx
-------------------------------------
Name: Xxxxxxxx XxXxx
Title: President
PARADON CAPITAL, INC.
By: /s/ Xxxxx Xxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxx
Title: President
/s/ Xxxxx Xxxxxxx
---------------------------------------
Xxxxx Xxxxxxx
GLOBAL WIRELESS SATELLITE NETWORKS
(USA), INC.
By: /s/ Xxxxx Kustiok
-------------------------------------
Name: Xxxxx Kustiok
Title: President
6
EXHIBIT 2.4(b)
XXXXX XXXXXXX CONSULTING AGREEMENT
INDEPENDENT CONTRACTOR AGREEMENT
This Independent Contractor Agreement ("Agreement") is made and
effective this _____ day of July 2004, by and between Xxxxx Xxxxxxx
("Consultant") and Global Wireless Satellite Networks (USA), Inc., a Delaware
corporation ("Company")
WHEREAS, Company desires to engage Consultant to perform certain
services for the Company, pursuant to the terms and conditions stated in this
Agreement, and
WHEREAS, Consultant desires to perform certain services for Company,
pursuant to the terms and conditions stated herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises and covenants herein contained, the parties agree as follows:
1. Services to be Performed. Company desires that Consultant perform, and
Consultant agrees to perform the following services for the Company in the
indicated capacities:
o Actively attempt to locate a suitable merger candidate as well as analyze
and perform proper due diligence functions through consummation of such
transaction. In the event that Company identifies such a candidate,
Consultant shall assist Company in the foregoing functions, at no
additional expense to the Company, in order to consummate such merger.
Consultant shall spend no less than 10 hours per month performing the
duties enumerated herein.
2. Consultant's Performance. All work done by Consultant shall be of the highest
professional standard and shall be performed to Company's reasonable
satisfaction.
3. Status. Consultant's status under this Agreement shall be that of an
independent consultant, and not that of an agent or employee. Consultant
warrants and represents that he has complied with all federal, state and local
laws regarding business permits and licenses that may be required for him to
perform the work as set forth in this Agreement.
4. Terms of Compensation. In the event Consultant successfully performs all
services found in Section 1 of this Agreement, Company shall compensate
Consultant by issuing him One Percent (1%) of all shares issued as a result of
the potential merger transaction found in Section 1 of this Agreement ("Merger
Transaction") with a maximum of One Million (1,000,000) restricted shares
("Shares"). For a period of twelve months following the date of the Merger
Transaction, Consultant shall have customary anti-dilution rights to the extent
the Company sells or issues shares of common stock for per share value less than
the per share value determined in the Merger Transaction. If the Company at any
time subsequent to the one year anniversary of this Agreement, proposes to
register any of its securities under the Securities Act, on any form other than
Form S-4 or any similar form then in effect, it shall each such time give
written notice to Consultant of its intention so to do and, upon the written
request of Consultant given within 20 days after the giving of any such notice
the Company shall use its best efforts to cause all such shares of common stock
to be included under the proposed registration for disposition by Consultant.
The Company shall use its best efforts to maintain the effectiveness of such
registration statement for a period of three years. Further, in the event that
Company files a registration statement on Form S-8 prior to July 23, 2005,
Consultant shall have the right to register that number of Shares equal to
Fifteen Percent (15%) of the total shares issued pursuant to that registration
statement.
5. Reimbursement of Expenses. Company shall reimburse Consultant for reasonable
monthly expenses provided the expenses are documented in writing by Consultant
to the satisfaction of the Company.
6. Termination. This Agreement may be terminated at anytime by Consultant during
the term hereof with 90 days written notice. Further, this Agreement may be
terminated by the Company for Cause (as that term is defined below) with 90 days
written notice. In the event Company dismisses Consultant for Cause then
Company's obligations to Consultant shall be limited to the compensation earned
up to the date of Consultant's termination for Cause.
(a) Definition of Cause. "Cause" shall mean:
(i) any action by Consultant which constitutes dishonesty relating to
Company, a willful violation of law (other than traffic offenses and
similar minor offenses) or a fraud against Company;
(ii) Consultant is charged by indictment for, is convicted of or
pleads guilty to a felony or other crime;
(iii) misappropriation of Company's funds or assets by Consultant for
his personal gain;
(iv) willful misconduct by Consultant relating to Company, including,
without limitation, willful failure to perform stated duties or to
follow legitimate directions of his superiors;
(v) the continual or frequent possession by Consultant of an illegal
substance or abuse by Consultant of a controlled substance or alcohol
resulting in a pattern of behavior disruptive to the business
operations of Company;
(vi) failure by Consultant to perform Consultant's duties and
responsibilities to Company in a competent manner;
2
(vii) any material violation by Consultant of any covenant contained
in this Agreement, including covenants related to confidentiality; and
(viii) any other willful misconduct which materially injures Company.
Subject to this Section 6, in the event that the Company terminates this
Agreement for any reason other than "For Cause", Consultant shall receive
all benefits pursuant to Section 4 of this Agreement as if Consultant
satisfactorily performed all required duties during the Term of this
Agreement.
7. Federal, State and Local Payroll Taxes. Company will not withhold or pay on
behalf of Consultant or any of its employees: (a) federal, state or local income
taxes; or (b) any other payroll tax of any kind. In accordance with the terms of
this Agreement and the understanding of the parties herein, Consultant shall not
be treated as an employee with respect to the services performed hereunder for
federal, state or local tax purposes.
8. Fringe Benefits. Because Consultant is engaged in its own independent
consulting business, it is not eligible for, nor entitled to, and shall not
participate in, any of Company's pension, health or other fringe benefit plans,
if any such plans exist. Such participation in these fringe benefits plans is
limited solely to Company's employees.
9. Notice to Consultant Regarding Tax Liability. Consultant understands that he
is responsible to pay his income tax in accordance with federal, state and local
law. Consultant further understands that he is liable for Social Security,
("FICA") tax, to be paid in accordance with all applicable laws.
10. Term. This Agreement's term shall begin on the date hereof and shall remain
in force until July 22, 2005. Unless both parties mutually agree to terminate
this Agreement.
11. Confidentiality. During the term of this Agreement, and thereafter in
perpetuity, Consultant shall not, without the prior written consent of Company,
disclose to anyone any Confidential Information. "Confidential Information" for
the purposes of this Agreement shall include Company's proprietary and
confidential information such as, but not limited to, customer lists, business
plans, marketing plans, financial information, designs, drawing, specifications,
models, software, source codes and object codes. Confidential Information shall
not include any information that: (a) is disclosed by Company without
restriction; (b) becomes publicly available through no act of Consultant; or (c)
is rightfully received by Consultant.
12. Controlling Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
13. Headings. The headings in this Agreement are inserted for convenience only
and shall not be used to define, limit or describe the scope of this Agreement
or any of the obligations herein.
3
14. Final Agreement. This Agreement constitutes the final understanding and
agreement between the parties with respect to the subject matter hereof and
supersedes all prior negotiations, understandings and agreements between the
parties, whether written or oral. This Agreement may be amended, supplemented or
changed only by an agreement in writing signed by both of the parties.
15. Notice. Any notice required to be given or otherwise given pursuant to this
Agreement shall be in writing and shall be hand delivered, mailed by certified
mail, return receipt requested or sent by recognized overnight courier service
as follows:
If to Consultant:
Xxxxx Xxxxxxx
x/x Xxxxx Xxxxxxx
000-00 Xxxxxxxxx
X0X 0X0 Xxxxxx
4
It to Company:
Global Wireless Satellite Networks (USA), Inc.
c/o Rubin, Bailin, Ortoli LLP
000 Xxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Attn: Xxxxxxx X. Xxxxxxxxxx
Such Notice shall be deemed given when actually delivered.
16. Severability. If any term of this Agreement is held by a court of competent
jurisdiction to be invalid or unenforceable, then this Agreement, including all
of the remaining terms, will remain in full force and effect as if such invalid
or unenforceable term had never been included.
17. Restrictions on Assignment. Consultant may not assign or otherwise transfer
his rights or delegate its obligations created hereunder to any third party
without the prior written consent of the Company. Notwithstanding the foregoing,
this Agreement shall bind and inure to the benefit of the successors and assigns
of the parties.
IN WITNESS WHEREOF, this Agreement has been executed by the parties as
of this the_____ day of July, 2004.
GLOBAL WIRELESS SATELLITE NETWORKS
(USA), INC.
By: /s/ Xxxxx Xxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxx
Title: President
/s/ Xxxxx Xxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxx
5
EXHIBIT 6.2 TO THE ESCROW AGREEMENT
FORM OF GENERAL RELEASE
G E N E R A L R E L E A S E
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN,
Know that _____________________________, having an office at
______________________________________ ("RELEASOR"), in consideration of the sum
of TEN AND NO/100 DOLLARS ($10.00) and other good and valuable consideration,
receipt and sufficiency whereof is hereby acknowledged, hereby releases and
discharges GLOBAL WIRELESS SATELLITE NETWORKS (USA), INC., a Delaware company
and its successors and assigns (collectively, "RELEASEES"), and RELEASEES'
officers, managers, members, employees, agents, consultants, accountants and
lawyers from any and all actions, causes of action, suits, debts, dues, sums of
money, accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages, judgments,
extents, executions, claims, and demands whatsoever, in law, admiralty or
equity; which against the RELEASEES, their officers, managers, members,
employees, agents, consultants, accountants, lawyers, their respective
successors and assigns, the RELEASOR, its officers, directors, shareholders,
employees, successors and assigns ever had, now have or hereafter can, shall or
may, have for, upon, or by reason of any matter, cause or thing whatsoever from
the beginning of the world to the day of the date of this RELEASE.
Whenever the text hereof requires, the use of singular number shall
include the appropriate plural number as the text of the within instrument may
require.
This RELEASE may not be changed orally.
In Witness Whereof, the RELEASOR has caused this RELEASE to be executed
by its duly authorized officer.
By:____________________________________
President
STATE OF )
) ss.:
COUNTY OF )
On the ____ day of July in the year 2004 before me, the undersigned,
personally appeared ________________, with the title of President of
____________________, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed
to the within instrument and acknowledged to me that he/she/they executed the
same in his/her/their capacity(ies), and that by his/her/their signature(s) on
the instrument, the individual(s), or the person upon behalf of which the
individual(s) acted, executed the instrument.
_______________________________________
Notary Public
EXHIBIT 4.13
USE OF PROCEEDS
Business Wire $ 120.00
Calnetix 35,790.00
Capital Printing Systems Inc. 1,955.25
Computershare 692.47
CUSIP Service Bureau 108.00
Xxxxx Agent Filing Services Inc. 152.29
Xxxxxxx & Xxxxx 1,413.39
J. Xxxxxxx Xxxxx, Attorney at Law 5.21
KMZ Rosenman 122,296.51
Nationwide Information Services Inc. 165.00
NCO Financial Systems 855.37
Xxxxxxx Xxxx Seidenwurm and Xxxxx 13,533.69
Standard & Poor's 1,075.00
Xxxxxx, Xxxxx, Xxxxxx & Associates, P. A 10,603.49
Varian Vacuum Technologies 473.48
Xxxxxx X. Xxxxxxx, A Professional Corp. 75.00
Xxxx Xxxxxxx 9,050.04
Xxxxxx X. Xxxxxx 2,500.00
Paradon Capital, Inc. (subject to $200 (50%)
holdback for wire fees) 234,135.81
EuroPacific Consulting Inc. 80,000.00
Xxxxxxx Xxxxxxxxx, Esq 20,000.00
Xxxx Xxxxxx 15,000.00
===========
$ 550,000
===========
EXHIBIT 6.1
[REDACTED]