NET2WIRELESS CORPORATION
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT is made as of the 26th day of July, 2000, by
and among NET2WIRELESS CORPORATION, a Delaware corporation (the "Company"), and
NEXTEL FINANCE COMPANY, a Delaware corporation ("NFC")
WHEREAS, the Company desires to sell to NFC or to an indirect subsidiary of
Nextel Communications Inc. ("NCI") that is designated by NFC (NFC or such
designated subsidiary, the "Investor") and the Investor desires to purchase
shares of Series B Preferred Stock, par value $.01 per share, of the Company
(the "Series B Preferred Stock") upon the terms and conditions set forth in this
agreement;
W I T N E S S E T H:
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Stock.
(a) Purchase and Sale. Subject to the terms and conditions of this
Agreement, the parties hereby agree that, at the Closing (as defined below), the
Company will sell and issue to the Investor, and the Investor will purchase and
accept, one million (1,000,000) shares of Series B Preferred Stock (the
"Shares") at a purchase price per share of $32.00.
(b) Closing. The purchase and sale of the Shares contemplated hereby
shall take place at the offices of Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP, 0000
Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m. on October 15,
2000, or at such other time and place as the Company and the Investor mutually
agree (which time and place are designated as the "Closing"). At the Closing,
the Company shall deliver to the Investor certificate(s) representing the
Shares, and the Investor shall deliver to the Company the aggregate purchase
price of $32,000,000 by wire transfer of immediately available funds.
(c) Adjustments Upon Changes in Capitalization. (i) The number and class of
the Shares and the purchase price per share shall all be equitably adjusted to
reflect any change in the Series B Preferred Stock by reason of a stock split,
reverse stock split, stock dividend or like capital adjustment or to reflect a
conversion or exchange of the stock for other securities as a result of a
merger, consolidation or reorganization; and (ii) in the event of a mandatory
conversion of the Series B Preferred Stock to common stock of the Company, or
the merger pursuant to the Agreement between Sensar Corporation and the Company
dated December 8, 1999 is consummated, the earlier to occur, the purchase and
sale contemplated hereby shall be a purchase and sale for common stock of the
Company on the same terms as set forth in this Agreement for Series B Preferred
Stock. In the event of a mandatory conversion pursuant to the foregoing clause
(ii) the Company will deliver to the Investor a certificate detailing the
adjustment or the conversion as the case may be and the basis for any
calculations.
(d) Completion of Disclosure Schedules. The Investor agrees and
acknowledges that the Company's disclosure schedules attached hereto (the
"Schedules") are incomplete and the Company's representations and warranties set
forth in Section 2 below may be further qualified thereby and remain subject
thereto. Within thirty (30) days following the date hereof, the Company shall
furnish to the Investor a complete and final set of the Schedules, which, for
purposes of this Agreement and the transactions contemplated hereby, the parties
agree shall replace the Schedules originally attached hereto and be deemed to
have been delivered on the date hereof.
2. Representations and Warranties of the Company. The Company hereby
represents and warrants to the Investor that, except as set forth on the
Schedules identifying the relevant subparagraph hereof, which exceptions shall
be deemed to be representations and warranties as if made hereunder:
2.1 Organization, Good Standing and Qualification. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has all requisite corporate power and authority to
carry on its business as now conducted and as proposed to be conducted. The
Company is duly qualified to transact business and is in good standing in each
jurisdiction in which the failure to so qualify would have a material adverse
effect on its business or properties.
2.2 Capitalization and Voting Rights. The authorized capital of the
Company consists of:
(a) Preferred Stock. 10,000,000 shares of Preferred Stock, par value
$.01 (the "Preferred Stock"), of which 2,000,000 shares have been designated
Series A Preferred Stock, 1,041,140 of which are issued and outstanding.
Immediately prior to the Closing, 1,000,000 shares of Preferred will be
designated Series B Preferred Stock, which may be sold pursuant to this
Agreement. The rights, privileges and preferences of the Series B Preferred
Stock will be as stated in the form of the Company's Certificate of Designation
attached hereto as Exhibit A to be filed immediately prior to the Closing.
(b) Common Stock. 50,000,000 shares of common stock, par value $.01
per share ("Common Stock"), of which 17,253,920 shares are issued and
outstanding.
(c) The outstanding shares of Common Stock and Series A Preferred Stock are
owned by the persons and in the numbers specified on Schedule 2.2(c) hereof.
(d) The outstanding shares of Common Stock and Series A Preferred Stock are
all duly and validly authorized and issued, fully paid and nonassessable, and
were issued in accordance with the registration or qualification provisions of
the Securities Act of 1933, as amended (the "Act"), and any relevant state
securities laws, or pursuant to valid exemptions therefrom. No holder of any
capital stock of the Company has any put rescission or similar rights with
respect to his, her or its shares.
(e) The Company has reserved 14,766,649 shares of its Common Stock for
purchase upon exercise of options and warrants. The Company is not a party or
subject to any agreement or understanding, and, to the best of the Company's
knowledge, there is no agreement or understanding between any persons and/or
entities, which affects or relates to the voting or giving of written consents
with respect to any security or by a director of the Company, except as
specified on Schedule 2.2(e).
(f) Schedule 2.2(f) lists (i) all outstanding warrants, options,
agreements, convertible securities or other commitments or instruments pursuant
to which the Company is or may become obligated to issue or sell any shares of
its capital stock or other securities and (ii) the number of shares of capital
stock or other securities the Company may become obligated to issue or sell
thereunder.
2.3 Subsidiaries. Except for Net2Wireless Israel Ltd., Xxxxxxx.xxx,
Inc. and Vintage Global Inc., the Company does not presently own or control,
directly or indirectly, any interest in any other corporation, association, or
other business entity. The Company is not a participant in any joint venture,
partnership, or similar arrangement.
2.4 Authorization. All corporate action on the part of the Company,
its officers, directors and stockholders necessary for the authorization,
execution and delivery of this Agreement, the performance of all obligations of
the Company hereunder, and the authorization, issuance (or reservation for
issuance), sale and delivery of the Series B Preferred Stock that is the subject
of this Agreement and the Common Stock issuable upon conversion of the Series B
Preferred Stock, has been taken or will be taken prior to the Closing, if any,
of the purchase of the shares, and this Agreement constitutes the valid and
legally binding obligations of the Company, enforceable in accordance with its
terms, except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, and other laws of general application affecting
enforcement of creditors' rights generally, and (ii) as limited by laws relating
to the availability of specific performance, injunctive relief, or other
equitable remedies.
2.5 Valid Issuance of Common Stock. The Series B Preferred Stock that is
the subject of this Agreement, if issued, sold and delivered in accordance with
the terms of this Agreement for the consideration expressed herein, will be duly
and validly issued, fully paid, and nonassessable, and will be free of
restrictions on transfer other than under this Agreement and applicable state
and federal securities laws. The Common Stock issuable upon conversion of the
Series B Preferred Stock that may be purchased under this Agreement has been
duly and validly reserved for issuance and, upon issuance will be duly and
validly issued, fully paid, and nonassessable and will be free of restrictions
on transfer other than restrictions on transfer under this Agreement and under
applicable state and federal securities laws.
2.6 Consents. Except for the consent of the holders of the Series A
Preferred Stock, no consent, approval, order or authorization of, or
registration, qualification, designation, declaration or filing with, any
federal, state or local governmental authority or any third party on the part of
the Company is required in connection with the consummation of the transactions
contemplated by this Agreement, except any Blue Sky requirements or such other
post-closing filings as may be required. For avoidance of doubt, the parties
agree that the Company shall use its best efforts to obtain the consent required
under the Series A Investors' Rights Agreement for entering the Investor's
Rights Agreement, but failure to obtain that consent shall not constitute a
breach by the Company of any representation, warranty or covenant contained in
this Agreement.
2.7 Offering. Subject in part to the truth and accuracy of the Investor's
representations set forth in Section 3 of this Agreement, the offer, sale and
issuance of the Series B Preferred Stock as contemplated by this Agreement and
the Common Stock issuable upon conversion of the Series B Preferred Stock will
be exempt from the registration requirements of any applicable state and federal
securities laws, and neither the Company nor any authorized agent acting on its
behalf will take any action hereafter that would cause the loss of such
exemption.
2.8 Compliance with Other Instruments. The Company is not in violation or
default of any provision of its Certificate or Bylaws, or in any material
respect of any instrument,, order, writ, decree or contract to which it is a
party or by which it is bound, or, to the best of the Company's knowledge, of
any provision of any federal or state statute, rule or regulation applicable to
the Company. The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby will not result in any such
violation or be in conflict with or constitute, with or without the passage of
time and giving of notice, either a default under any such provision,
instrument, judgment, order, writ, decree or contract or an event that results
in the creation of any lien, charge or encumbrance upon any assets of the
Company or the suspension, revocation, impairment, forfeiture, or nonrenewal of
any material permit, license, authorization, or approval applicable to the
Company, its business or operations or any of its assets or properties.
2.9 Registration Rights. Except as contemplated by this Agreement and
provided in the agreements listed in Schedule 2.9, the Company has not granted
or agreed to grant any registration rights, including piggyback rights, to any
person or entity.
2.10 Corporate Documents. The Certificate of Incorporation and Bylaws
of the Company are in the form attached hereto as Exhibits C and D,
respectively.
2.11 Litigation. Except as set forth on Schedule 2.11, there is no
action, suit, proceeding or investigation pending or, to the Company's
knowledge, currently threatened against the Company that questions the validity
of this Agreement, or the right of the Company to enter into this Agreement, the
Investor's Rights Agreement (as defined below in Section 4(b)), or to consummate
the transactions contemplated hereby or that might result, either individually
or in the aggregate, in any material adverse changes in the assets, condition or
affairs of the Company, financially or otherwise, or any change in the current
equity ownership of the Company, nor is the Company aware that there is any
basis for the foregoing. The foregoing includes, without limitation, actions,
suits, proceedings or investigations pending or threatened (or any basis
therefor known to the Company) involving the prior employment of any of the
Company's employees, their use in connection with the Company's business of any
information or techniques allegedly proprietary to any of their former
employers, or their obligations under any agreements with prior employers. The
Company is not a party or subject to the provisions of any order, writ,
injunction, judgment or decree of any court or government agency or
instrumentality. There is no action, suit, proceeding or investigation by the
Company currently pending or that the Company intends to initiate.
2.12 Patents and Trademarks. Except as set forth on Schedule 2.12, the
Company or its subsidiaries has sufficient title and ownership of all
copyrights, trade secrets, information, proprietary rights and processes
necessary for its business as now conducted without any conflict with or
infringement of the rights of others. Except as set forth on Schedule 2.12,
there are no outstanding options, licenses, or agreements of any kind relating
to the foregoing, nor is the Company bound by or a party to any options,
licenses or agreements of any kind with respect to the copyrights, trade
secrets, licenses, information, proprietary rights and processes of any other
person or entity. The Company has not received any communications alleging that
the Company has violated any of the patents, trademarks, service marks, trade
names, copyrights or trade secrets or other proprietary rights of any other
person or entity. Neither the execution nor delivery of this Agreement and the
Investor's Rights Agreement nor the carrying on of the Company's business by the
employees of the Company, nor the conduct of the Company's business will, to the
Company's knowledge, conflict with or result in a breach of the terms,
conditions or provisions of, or constitute a default under, any contract,
covenant or instrument under which any of such employees is now obligated.
2.13 Agreements; Actions.
(a) Except as set forth on Schedule 2.13(a) and except for agreements
explicitly contemplated hereby, including the Investor's Rights Agreement, there
are no agreements, understandings or proposed transactions between the Company
and any of its officers, directors, affiliates, or any affiliate thereof;
(b) Except as set forth on Schedule 2.13(b), there are no agreements,
understandings, instruments, contracts, proposed transactions, judgments,
orders, writs or decrees to which the Company is a party or by which it is bound
that may involve obligations (contingent or otherwise) of, or payments to the
Company in excess of, $50,000.
(c) Except as set forth on Schedule 2.13(c), the Company has not (i)
declared or paid any dividends or authorized or made any distribution upon or
with respect to any class or series of its capital stock, (ii) incurred any
indebtedness for money borrowed or any other liabilities (other than trade
liabilities incurred in the ordinary course of business) individually in excess
of $100,000 or, in the case of indebtedness and/or liabilities individually less
than $100,000, in excess of $250,000 in the aggregate, (iii) made any loans or
advances to any person, or (iv) sold, exchanged or otherwise disposed of any of
its assets or rights except sales of inventory in the ordinary course of
business.
2.14 Related-Party Transactions. Except as set forth on Schedule 2.14,
no employee, officer, director or stockholder of the Company or member of his or
her immediate family or any entity controlled by any of them (each a "Related
Party") is indebted to the Company, nor is the Company indebted (or committed to
make loans or extend or guarantee credit) to any Related Party; no Related Party
has any direct or indirect ownership interest in any firm or corporation with
which the Company is affiliated or with which the Company has a business
relationship, or any firm or corporation that competes with the Company, and no
Related Party is directly or indirectly interested in any material contract with
the Company.
2.15 Permits. Except as set forth on Schedule 2.15, the Company has
all franchises, permits, licenses, and any similar authority necessary for the
conduct of its business as now being conducted by it, the lack of which could
materially and adversely affect the business, properties or financial condition
of the Company. The Company is not in default in any material respect under any
of such franchises, permits, licenses, or other similar authority.
2.16 Environmental and Safety Laws. The Company is not in material
violation of any applicable statute, law or regulation relating to the
environment or occupational health and safety, and no material expenditures are
or will be required in order to comply with any such existing statute, law or
regulation.
2.17 Title to Property and Assets. Except as set forth on Schedule 2.17,
the Company owns its property and assets free and clear of all mortgages, liens,
loans and encumbrances.
2.18 Employee Benefit Plans. Except as set forth on Schedule 2.18, the
Company does not currently maintain any "employee benefit plan," as defined in
the Employee Retirement Income Security Act of 1974.
2.19 Minute Books. The minutes of the Company contain a complete
summary of all meetings of directors and stockholders since the time of
incorporation and reflect all transactions referred to in such minutes
accurately in all material respects.
2.20 Disclosure. The Company has fully provided the Investor with all
the information that the Investor has requested in deciding whether to purchase
the Series B Preferred Stock. Neither this Agreement, the Investor's Rights
Agreement nor any other statements or certificates made or delivered in
connection herewith contains any untrue statement of a material fact or omits to
state a material fact necessary to make the statements herein or therein not
misleading in light of the circumstances under which they were made.
3. Representations and Warranties of the Investor. The Investor hereby
represents and warrants that:
3.1 Authorization. The Investor has full power and authority to enter
into this Agreement, and the Agreement constitutes its valid and legally binding
obligations, enforceable in accordance with its terms except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of
general application affecting enforcement of creditors' rights generally, and
(ii) as limited by laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies.
3.2 Purchase Entirely for Own Account. This Agreement is made with the
Investor in reliance upon its representation to the Company, which by the
Investor's execution of this Agreement it hereby confirms, that the Series B
Preferred Stock that to be purchased by the Investor and the Common Stock that
would be issuable upon conversion and exercise thereof (collectively
"Securities") would be acquired for the Investor's own account, not as a nominee
or agent, and not with a view to the resale or distribution of any part thereof,
and that the Investor has no present intention of selling, granting any
participation in, or otherwise distributing the same. By executing this
Agreement, the Investor further represents that it does not have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or grant
participation's to such person or to any third person, with respect to any of
the Securities.
3.3 Investment Experience. The Investor acknowledges that it is able to
fend for itself, can bear the economic risk of its investment, and has such
knowledge and experience in financial or business matters that it is capable of
evaluating the merits and risks of the investment in the Series B Preferred
Stock.
3.4 Accredited Investor. The Investor is an "Accredited Investor" within
the meaning of Securities and Exchange Commission ("SEC") Rule 501 of Regulation
D, as presently in effect.
3.5 Restricted Securities. The Investor understands that any Securities to
be purchased pursuant to this Agreement are characterized as "restricted
securities" under the federal securities laws inasmuch as they would be acquired
from the Company in a transaction not involving a public offering and that under
such laws and applicable regulations such securities may be resold without
registration under the Act only in certain limited circumstances. In this
connection, the Investor represents that it is familiar with SEC Rule 144, as
presently in effect, and understands the resale limitations imposed thereby and
by the Act.
3.6 Further Limitations on Disposition. Without in any way limiting the
representations set forth above, the Investor further agrees not to make any
disposition of all or any portion of the Securities unless and until the
transferee has agreed in writing for the benefit of the Company to be bound by
this Section 3 and provided and to the extent this Section and such Agreement
are then applicable, and:
(a) There is then in effect a registration statement under the Act
covering such proposed disposition and such disposition is made in accordance
with such registration statement; or
(b) (i) The Investor shall have notified the Company of the proposed
disposition and shall have furnished the Company with a detailed statement of
the circumstances surrounding the proposed disposition, and (ii) if reasonably
requested by the Company, the Investor shall have furnished the Company with an
opinion of counsel, reasonably satisfactory to the Company that such disposition
will not require registration of such shares under the Act. It is agreed that
the Company will not require opinions of counsel for transactions made pursuant
to Rule 144 except in unusual circumstances.
(c) Notwithstanding the provisions of Paragraphs (a) and (b) above, no such
registration statement or opinion of counsel shall be necessary for a transfer
by the Investor to an affiliate (as defined in the Act), if the transferee
agrees in writing to be subject to the terms hereof to the same extent as if he,
she or it were the Investor.
(d) Legends. It is understood that the certificates evidencing the
Securities that may be issued under this Agreement may bear the following
legends:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES
UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO RULE 144 OF SUCH ACT."
4. Conditions of Investor's Obligations at Closing. The obligations of
the Investor under this Agreement are subject to the fulfillment (or waiver by
the Investor) on or before the Closing of each of the following conditions:
(a) Representations and Warranties. The representations and warranties
of the Company contained in Section 2 shall be true on and as of the Closing
with the same effect as though such representations and warranties had been made
on and as of the date of the Closing. The Investor shall have received a
certificate executed by the Chief Executive Officer of the Company confirming
that the conditions set forth in the immediately preceding sentence have been
satisfied.
(b) Investor's Rights Agreement. The Company and the Investor shall
have entered into the Investor's Rights Agreement substantially in the form
attached as Exhibit B (the "Investor's Rights Agreement"), subject to the
Company having obtained the consent required under the Investors' Rights
Agreement dated March 20, 2000 (the "Series A Investors' Rights Agreement").
(c) Consents. All required stockholder consents or approvals shall be duly
obtained and effective as of the Closing. For avoidance of doubt, the parties
agree that the Company shall use its best efforts to obtain the consent required
under the Series A Investors' Rights Agreement for entering the Investor's
Rights Agreement, but failure to obtain that consent shall not constitute a
breach by the Company of any representation, warranty or covenant contained in
this Agreement.
(d) Due Diligence. The Investor shall have completed to its satisfaction
its business, legal and accounting due diligence concerning the Company. It is
hereby agreed and understood that, if the Investor is not satisfied with the
results of its due diligence efforts for any reason whatsoever, the Investor
may, in its sole discretion, determine not to consummate the transactions
contemplated hereby and such failure to consummate shall not constitute a breach
by the Investor of any provision of this Agreement. The Investor shall notify
the Company immediately of any determination not to consummate the transactions
contemplated hereby.
(e) If the merger pursuant to the Agreement between Sensar Corporation and
the Company dated December 8, 1999 is not yet consummated, the Company shall
have filed a Certificate of Designation for the Series B Preferred Stock in
substantially the form attached hereto as Exhibit A with the Office of the
Secretary of State of the State of Delaware.
5. Conditions of the Company's Obligations at Closing. The obligations
of the Company under this Agreement are subject to the fulfillment (or waiver by
the Company) on or before the Closing of each of the following conditions:
(a) Representations and Warranties. The representations and warranties
of the Investor contained in Section 3 shall be true on and as of the Closing
with the same effect as though such representations and warranties had been made
on and as of the date of the Closing. The Company shall have received a
certificate executed by a senior executive officer of the Investor confirming
that the conditions set forth in the immediately preceding sentence have been
satisfied.
(b) Consents. All required consents or approvals to be obtained by the
Investor will be duly obtained and effective as of the Closing.
6. Miscellaneous.
6.1 Indemnification.
(a) The Company shall indemnify, defend and hold the Investor and its
employees, officers, directors, shareholders, affiliates and agents harmless
against all liability, loss or damage, together with all reasonable costs and
expenses related thereto (including reasonable legal fees and expenses) relating
to or rising from the untruth, inaccuracy or breach of any of the
representations, warranties or agreements of the Company contained in this
Agreement.
(b) The Investor shall indemnify, defend and hold the Company and its
employees, officers, directors, shareholders, affiliates and agents harmless
against all liability, loss or damage, together with all reasonable costs and
expenses related thereto (including reasonable legal fees and expenses) relating
to or rising from the untruth, inaccuracy or breach of any of the
representations, warranties or agreements of the Investor contained in this
Agreement.
(c) The indemnification provided for under this Agreement will remain in
full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling person of the
indemnified party and will survive the transfer of securities.
6.2 Survival of Warranties. The warranties, representations and
covenants of the Company and of the Investor contained in or made pursuant to
this Agreement shall survive the execution and delivery of this Agreement for
twelve (12) months and shall in no way be affected by any investigation of the
subject matter thereof made by or on behalf of the Investor or the Company.
6.3 Successors and Assigns. Except as otherwise provided herein, the
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties (including
transferees of the Series B Preferred Stock or the Common Stock issued upon
conversion of the Series B Preferred Stock). Nothing in this Agreement, express
or implied, is intended to confer upon any party other than the parties hereto
or their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement. Notwithstanding any provision to the contrary and subject to
Section 3.6 hereof the Investor shall have the right to assign any or all of its
rights under this Agreement or transfer the securities to an "affiliate" as
defined in the Act.
6.4 Governing Law. This Agreement shall be governed by and construed
under the laws of the state of Delaware as applied to agreements among Delaware
residents entered into and to be performed entirely within Delaware.
6.5 Counterparts. This Agreement may be executed in two counterparts,
each of which shall be deemed an original, but both of which together shall
constitute one and the same instrument.
6.6 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
6.7 Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or upon
deposit with the United States Post Office, by registered or certified mail or
overnight courier, postage prepaid and addressed to the party to be notified at
the address indicated for such party on the signature page hereof, or at such
other address as such party may designate by ten (10) days' advance written
notice to the other parties.
6.8 Finder's Fee. Each party represents that it neither is nor will be
obligated for any finders' fee or commission in connection with this
transaction. The Investor agrees to indemnify and to hold harmless the Company
from any liability for any commission or compensation in the nature of a
finders' fee (and the costs and expenses of defending against such liability or
asserted liability) for which the Investor or any of its officers, partners,
employees, or representatives is responsible.
The Company agrees to indemnify and hold harmless the Investor from any
liability for any commission or compensation in the nature of a finders' fee
(and the costs and expenses of defending against such liability or asserted
liability), for which the Company or any of its officers, employees or
representatives is responsible.
6.9 Expenses. Each of the parties shall bear its respective costs
associated with this Agreement and the transactions contemplated hereby,
including legal fees, accounting fees, and other costs and expenses.
6.10 Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
6.11 Entire Agreement. This Agreement and the documents referred to
herein constitute the entire agreement among the parties and no party shall be
liable or bound to any other party in any manner by any warranties,
representations, or covenants except as specifically set forth herein or
therein.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
NET2WIRELESS CORPORATION
By: /s/
Title: Chief Executive Officer
Address:
INVESTOR:
NEXTEL FINANCE COMPANY
By: /s/
Title:
Address:
Exhibit A
Certificate of Designation
Exhibit B
Investor's Rights Agreement
Exhibit C
Certificate of Incorporation
Exhibit D
Bylaws
Schedule 2.2(c)
Name of Entity Number of Shares of
Common Stock
Cedar Investment Services Ltd. 5,428,127
Nova Business Services Corp. 515,608
Oryon BVI 4,286
Xxxxxxxx Xxxxx 4,286
Xxxx Xxxxxxxxx 4,286
Xxxxxx Xxxxxxxx 4,286
Xxxxxxx Xxxxxxxxx 1,071
Ben-Zion Weiner 6,429
Janon Holdings B.V. 2,857
Xxxxxx Xxxxxx 3,571
Xxxxxxxxx Xxxxxxxxx 4,179
Xxxxxxx Xxxxxxxxx 1,607
Xxxxx Xxxxxx 643
Meridian Trading Investment Ltd. 779,154
Ultimate Business Management Ltd. 78,010
Ring Trading Ltd. 337,798
Xxxxx Xxxxxxx 92,800
Silk Investments Ltd. 92,800
Xxxx Enterprises Inc. 680,533
Ednir Holdings Ltd. 185,600
Zetto Investments S.A. 123,733
Xxxxxx Xxxxxx 61,866
Acme Investments Ltd. 61,866
Xxxxxx Fan 123,733
Xxx Xxxx 123,733
Alexander/Xxxxxx LLC 1,862,249
NDBD LLC 1,862,249
Xxxxxxxx Xxxxxx on behalf of a
company in foundation 696,265
CYE 2000 LLC 130,665
Shor Yoshuv Institute 52,267
Xxxxx Xxxxxxx 26,133
Xxxxx Xxxxxx 26,133
Xxxxxx Xxxxxxxxx 26,133
S.A.C. Capital Associates, LLC 143,210
Aeneas Portfolio Company, L.P. 214,815
Elkanit Development Ltd.
(on behalf of itself and some
of its subsidiaries) 179,016
Orland Investment Inc. 53,704
Xxxxx Xxxxx & Xxxxx Xxxxxxx 35,802
Kairos Fund Limited 161,111
Janon Holdings B.V 71,605
Y.A.Z Investment Assets 12,889
Pinsk Assets 12,889
Xxxxxx Tzadik 12,889
Banque Multi Commerciale 38,667
Apex Investments 10,741
Menora Financial Corp. 15,307
Xxxxxxxxx Consulting & Development Co. 71,605
Xxxxxxx Xxxxxx 3,580
Xxxxxxx Xxxxxx 3,580
Schedule 2.2(e)
The Stockholders Agreement dated March 20, 2000;
The Investors' Rights Agreement dated March 20, 2000.
Schedule 2.9
(i) The Partner Agreement;
(ii) A warrant issued to ML Partners LLC;
(iii) An agreement signed on February 2, 2000, between the Company and Berkman
Wechsler-Limited Partnership, under which options for purchase of 68,741 shares
of Common Stock were granted;
(iv) The Agreement signed among the Company and some of its stockholders on
January 17, 2000;
(v) The Investors' Rights Agreement dated March 20, 2000
(vi) An option agreement signed on between the Company and Xx. Xxxxx Xxxxxx, the
Chairman of the Board of directors
(vii) An option agreement signed on March 20, 2000, between the Company and
Beneficial Investment Services Ltd., an entity controlled by Xx. Xxxx Xxxxxxxx,
director of the Company
(viii) An option agreement signed between the Company and Meridian Trading
Investment Ltd. on March 20, 2000
(ix) A Consultation Agreement signed between the Company and Mr. Xxx Xxxxx. on
April 1, 2000.
