EX-10.1
GUARANTOR AGREEMENT
GUARANTOR AGREEMENT
This Guarantor Agreement ("Agreement") is made effective this 25th
day of May, 2006, by and among XX Xxxx ("AL"), on the one hand, and 5G
Wireless Communications, Inc. ("5G Wireless"), on the other hand. AL and
5G Wireless are sometimes referred to hereafter as a "Party" or
collectively as the "Parties".
RECITALS
AL has provided the guarantee on the rental of the facility at 4136
Del Rey Ave, Marina Del Rey, California.
5G Wireless is willing to provide AL with certain consideration for
being the guarantor.
The Parties also wish to recognize that AL will maintain this
guarantee on an ongoing basis.
NOW, THEREFORE, for good and valuable consideration, the
sufficiency and receipt of which is hereby acknowledged, AL and 5G
Wireless, intending to be legally bound, hereby agree as follows:
1. Current Compensation Within five (5) business days following the
full execution of this Agreement, 5G Wireless shall deliver or cause
to be delivered to AL, restricted shares of the companies Common
Stock for a value equal to $29,937 (which represents 15% of the
Security deposit provided by the guarantor), per year until October
30, 2006. The shares to be issued at a ten percent (10%) discount
to the closing price as of the effective date of this Agreement
("Registrable Securities").
2. Future Compensation: For each subsequent year after October 30,
2006, AL will receive restricted shares of 5G Wireless Common Stock
for a value equal to $9,979 (which represents 15% of the Security
deposit) each year. The shares to be price at a ten percent (10%)
discount to the closing price on October 30th of each year.
3. Registrable Securities: From and after the date that is thirty
(30) days after the date of this Agreement and until the fifth
anniversary of the date of this Agreement, for so long as any of
the Registrable Securities are outstanding and are not the
subject of an effective registration statement, if 5G Wireless
contemplates making an offering of its common stock (or other
equity securities convertible into or exchangeable for common
stock) registered for sale under the Securities Act of 1933 or
proposes to file a registration statement covering any of its
securities other than (i) a registration on Form S-8 or S-4, or
any successor or similar forms; and (ii) a shelf registration
under Rule 415 for the sole purpose of registering shares to be
issued in connection with the acquisition of assets, the Company
will at each such time give prompt written notice to the Lender
of its intention to do so. Upon the written request within
thirty (30) days after the receipt of any such notice (which
request shall specify the Registrable Securities intended to be
disposed of and the intended method of disposition thereof), 5G
Wireless shall use its best efforts to effect the registration
of all Registrable Securities which 5G Wireless has been so
requested to register, to the extent requisite to permit the
disposition (in accordance with the intended methods of
disposition) of the Registrable Securities, by inclusion of such
Registrable Securities in the registration statement which
covers the securities which 5G Wireless proposes to register;
provided, that if, at any time after giving written notice of
its intention to register any Registrable Securities and prior
to the effective date of the registration statement filed in
connection with such registration, 5G Wireless shall determine
for any reason either not to register or to delay registration
of such Registrable Securities, 5G Wireless may, at its
election, give written notice of such determination to the
Lender and, thereupon, (i) in the case of a determination not to
register, 5G Wireless shall be relieved of its obligation to
register any Registrable Securities in connection with such
registration (but not from its obligation to pay the expenses of
registration in connection therewith), and (ii) in the case of a
determination to delay registering such Registrable Securities,
shall be permitted to delay registering any Registrable
Securities, for the same period as the delay in registering such
other securities.
4. 5G Wireless understands and believes that this transaction
complies with the usury laws of the State of California.
5. This Agreement shall be governed by and construed in accordance
with the laws of the State of California, except where such law
is preempted by the laws and regulations of the United States.
6. If any provision hereof shall, for any reason and to any extent,
be invalid or unenforceable, then the remainder of this
Agreement shall not be affected thereby but instead shall be
enforceable to the maximum extent permitted by law.
7. All notices provided for herein shall be in writing and shall be
(a) personally delivered or delivered by courier service (e.g.,
Federal Express) to the party being notified if an individual,
or (b) transmitted by certified or registered mail, return
receipt -requested, addressed to all parties hereto at the
address designated for each party. Notice shall be deemed
effective and received upon: (i) the date of receipt if
delivered by courier or by personal delivery, or (ii) five (5)
days after the deposit of same in a letter box or other means
provided for the posting of mail, postage prepaid as provided above.
8. This Agreement shall be binding upon and inure to the benefit of
the Parties hereto and their successors and assigns.
9. This Agreement between AL and 5G Wireless with respect to the
matters contained herein and all prior or contemporaneous agreement
or understanding, oral or written, pertaining to any such matters
are merged herein and shall not be effective for any purpose. No
provision of this Agreement may be amended or added to except by an
agreement in writing which is signed by the Parties or their
respective successors in interest and indicated that it is an
amendment of this Agreement.
10. This Agreement is made and entered into in the State of California
and shall in all respects be interpreted, enforced and governed
under the laws of the State of California. The language in all
parts of this Agreement shall be in all cases construed as a whole
according to their fair meaning and not strictly for or against
either AL or 5G Wireless. Any rule of contract interpretation to the
effect that ambiguities or uncertainties are to be interpreted
against the drafting party, or the party that caused it to exist,
shall not be employed in the interpretation of this Agreement or
any document executed in connection with the Agreement.
11. If any term, provision, condition or covenant to this Agreement or
its application to any party or circumstance shall be held, to any
extent, invalid or unenforceable, then the remainder of this
Agreement, or the application of such term, provision, condition or
covenant to any party or circumstances other than those as to whom
or which it is held invalid or unenforceable, shall not be effected
and shall be valid and enforceable to the fullest extent permitted
by law.
12. Each of the covenants, agreement, representations, warranties and
indemnifications contained in this Agreement shall survive the
execution of this Agreement.
13. Each of the Parties to this Agreement shall execute and deliver any
and all additional papers, documents or other assurances, and shall
do any and all acts and things reasonably necessary in connection
with the performance of their obligations under this Agreement and
to carry out the intent and agreements of the parties to this Agreement.
14. Neither Party nor their respective Related Persons shall cause or
permit any of the terms and condition of this Agreement to be
disclosed to any person whatsoever subject to paragraph 6.9.2 below.
Except as set forth in paragraph 5.9.2 below, if any Party receives
an inquiry pertaining to any and all allegations in the Complaint,
such Party shall limit their response to the following: "the dispute
has been amicably resolved by the parties."
15. Notwithstanding the provisions of paragraph 5.9.1 above, each Party
and its Related Persons may disclose this Agreement: (i) to their
attorneys and to the Court as necessary to enforce the provisions of
this Agreement; (ii) to their accountants, and to the Internal
Revenue Service and the Franchise Tax Board as necessary to prepare
for their federal and state tax returns; (iii) in accordance with
the Parties' respective disclosure obligation under state and
federal securities law including, without limitation, the Securities
Exchange Act of 1933 and/or 1934; and (iv) to such persons as
required by law or court order.
16. Non-Disparagement. The Parties agree not to intentionally disclose,
publish, or otherwise disseminate (or cause or permit to be
disclosed, published or otherwise disseminated, whether themselves
or through one or more third parties), either orally or in writing,
to any third party, any information, thoughts, suppositions,
opinions, or other statements or comments which may be derogatory,
disparaging or defamatory to the other in any manner whatsoever. The
Parties agree that damages from the violation of this provision
would be difficult to ascertain and therefore that, among other
relief, injunctive relief is appropriate to enforce the terms
hereof, in addition to whatever other remedies the non-breaching
party would be entitled to in the event of breach.
17. Notices. All notices, requests, demands and other communications
given or required to be given hereunder shall be in writing and
personally delivered or sent by United States registered or
certified mail, return receipt requested, or sent by a nationally
recognized courier service such as Federal Express, duly addressed
to the Parties as follows:
5G Wireless Communications, Inc.
Attn: Xxxxx Xxx, CEO
0000 Xxx Xxx Xxx.
Xxxxxx Xxx Xxx, XX 00000
Xx Xxxx
000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxxxxxxx 00000.
18. Delivery of any notice or other communication hereunder shall be
deemed made on the date of actual delivery thereof to the address of
the addressee, if personally delivered, and on the dated indicated
in the return receipt or courier's records as the date of delivery
or as the date of first attempted delivery to the address of the
addressee, if sent by mail or courier service (such as Federal
Express). Notice may also be given by telecopier to any party having
a telecopier machine compatible with the telecopier machine of the
party sending the notice. The transmittal confirmation receipt
produced by the telecopier machine of the sending party shall be
prima facie evidence of such receipt. Any party may change its
address or telecopier number for purposes of this paragraph by
giving notice to the other party. After transmittal of any notice
via telecopier, a hard copy of the notice will also be sent via
first class mail to the recipient.
19. In executing this Agreement each of the Parties hereby specifically
acknowledge that they have consulted with and have had the advice
and counsel of attorneys of their own choice who is/are duly
licensed to practice law in all the courts of the State of
California and that they have executed this Agreement after
independent investigation and without fraud, duress, coercion or
undue influence.
20. This Agreement may be executed via facsimile in any number of
counterparts, each of which shall be an original, but all of which
shall, together, constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of
the date and year first written above.
SO AGREED: XX XXXX
Dated: May 26, 2006 /s/ Xx Xxxx
5G WIRELESS COMMUNICATIONS, INC.
Dated: May 26, 2006 By: /s/ Xxxxx Xxx
Xxxxx Xxx, Chief Executive Officer
