PURCHASE AND REPAYMENT AGREEMENT
Exhibit
2.2
PURCHASE
AND REPAYMENT AGREEMENT, dated as of October 20, 2006 (this “Agreement”),
by
and among Wireless Holdings, Inc., a Florida corporation (the “Purchaser”),
and
▇▇▇▇▇▇ ▇▇▇▇, having an address at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇
(the “Seller”).
Capitalized terms used and not defined herein shall have the respective meanings
set forth in the Agreement of Merger and Plan of Reorganization dated as of
October 17, 2006 (the “Merger
Agreement”)
among
the Purchaser, Wireless Acquisition Holdings Corp., and H2Diesel,
Inc.
This
Agreement sets forth the terms and conditions upon which the Seller is conveying
to the Purchaser and the Purchaser is redeeming from the Seller an aggregate
of
29,075,000 shares of common stock, par value $.001 per share, of the Purchaser
(the “Shares”)
and
Purchaser is repaying all indebtedness owed by the Purchaser to the Seller
(the
“Debt”).
In
consideration of the mutual agreements contained herein, the parties agree
as
follows:
1. Purchase
and Sale of Shares; Repayment of Debt.
Subject to the terms and conditions of this Agreement, and in reliance on the
respective representations, warranties and covenants contained herein, at and
immediately following the Closing (as defined in Section 2 hereof):
(a) the
Seller will sell, assign, transfer and convey to the Purchaser free and clear
of
all Liens (as hereinafter defined) and the Purchaser will purchase and redeem
from the Seller, all of the Shares for a purchase price equal to (i) $300,000
minus the outstanding balance of the Debt as of the date of the Closing (the
“Cash Purchase Price”) and (ii) the Purchaser’s agreement to sell its direct
wholly-owned subsidiary, Action Wireless, Inc., a Florida corporation to the
Seller pursuant to an Acquisition Agreement to be entered into in accordance
with the terms of the Merger Agreement; and
(b) the
Purchaser shall repay the Debt (such amount being referred to as the “Debt
Payment”), it being understood that the aggregate amounts to be paid pursuant to
clause (a)(i) above and this clause (b) shall not exceed $300,000.
2. Deliveries
at the Closing.
(a) At the closing of the sale and redemption of the Shares contemplated by
Section 1 hereof (the “Closing”), to occur substantially simultaneously with the
closing under the Merger Agreement (such closing, the “Merger Closing”), (i) the
Seller (or Escrow Agent, as hereinafter defined) shall deliver to the Purchaser
(A) the stock certificates representing the Shares, duly endorsed in blank
or
accompanied by assignments separate from certificate duly endorsed in blank,
(B)
any other documents that are necessary to transfer to the Purchaser good, valid
and marketable title to the Shares, and (C) originals of all promissory notes
and instruments (the “Debt Instruments”), each marked cancelled, evidencing all
of the Debt and (ii) the Purchaser shall deliver to the Seller (or Escrow Agent)
the Cash Purchase Price for Shares (minus $50,000 which has already been
delivered to the Seller) and the Debt Payment, each by wire transfer of
immediately available funds to a bank
account
or accounts previously designated to the Purchaser by the Seller (or Escrow
Agent). The Closing shall be held at the offices of ▇▇▇▇▇▇▇▇▇ Traurig, P.A.,
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, substantially simultaneously
with
the Merger Closing. The Purchaser will furnish advance notice to the Seller
(or
Escrow Agent) of the time and date of the Closing.
(b) If
the
Closing has not occurred within 60 days after the date this Agreement is signed
by both parties (the “Escrow
Period”),
either party may terminate this Agreement upon written notice to the other
party. Neither party shall incur any obligation to the other party as a result
of such termination, unless such failure to close is the result of a breach
by a
party of its obligations hereunder, in which case the other party shall be
entitled to pursue remedies at law or in equity.
3. Escrow
of Shares and Debt Instruments.
Concurrently with the execution of this Agreement, Seller shall deliver to
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, P.A., as escrow agent (the “Escrow Agent”), stock
certificates representing the Shares and the Debt Instruments, duly endorsed
in
blank or accompanied by assignments separate therefrom duly endorsed in blank,
to be held in escrow pending the Closing or the termination of this Agreement,
whichever occurs first. Seller hereby irrevocably appoints and instructs the
Escrow Agent as its attorney-in-fact to deliver the Shares and the Debt
Instruments to the Purchaser at the Closing against payment therefor or to
return the Shares and Debt Instruments to the Seller upon the termination of
this Agreement, as the case may be.
4. Representations
and Warranties of the Seller.
The
Seller represents and warrants to the Purchaser both on the date hereof and
on
the date of the Closing as follows:
(a) The
Seller has the requisite power and authority to execute, deliver and carry
out
the terms and provisions of this Agreement and to consummate the transactions
contemplated hereby, and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement;
(b) The
Seller is a natural person, residing at the address indicated in the first
paragraph of this Agreement;
(c) The
Seller is the sole record and beneficial owner (within the meaning of Rule
13d-3
under the Securities Exchange Act of 1934, as amended) of the Shares, has good
and marketable title to all of the Shares, and there exists no liens, claims,
options, proxies, voting agreements, charges, security interests, or
encumbrances of whatever nature (“Liens”)
affecting such Shares;
(d) Upon
transfer to the Purchaser by the Seller of all or any of its Shares, the
Purchaser will have good and marketable title to the Shares so transferred
free
and clear of all Liens;
(e) The
Seller does not have any outstanding option, warrant or other right to acquire,
directly or indirectly, any securities of the Purchaser which are or may by
their terms become entitled to vote or any securities which are convertible
or
exchangeable into or exercisable for any securities of the Purchaser which
are
or may by their terms become entitled to vote, and such Seller is not subject
to
any offer, contract, arrangement, understanding or
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relationship
(whether or not legally enforceable) which allows or obligates the Seller
to
vote, dispose of or acquire any securities of the Purchaser;
(f) The
execution of this Agreement by the Seller does not, and the performance by
the
Seller of its obligations hereunder will not, constitute a violation of,
conflict with or result in a default under any contract, commitment, agreement,
understanding, arrangement or restriction of any kind to which the Seller is
a
party or by which the Seller is bound or any judgment, decree or order
applicable to the Seller;
(g) Neither
the execution and delivery of this Agreement nor the performance by the Seller
of its obligations hereunder will violate any provision of law applicable to
the
Seller or require any consent or approval of, or filing with or notice to any
public body or authority under any provision of law applicable to the Seller
other than notices or filings pursuant to the federal securities laws;
and
(h) Upon
the
payment of the Debt Payment, the Purchaser will not have any obligations or
liabilities (whether accrued, absolute, contingent, liquidated or otherwise,
whether due or to become due) to the Seller or any other Person other than
those
arising under the Merger Agreement.
5. Representations
and Warranties of the Purchaser.
The
Purchaser represents and warrants to the Seller both on the date hereof and
on
the date of the Closing as follows:
(a) The
Purchaser is duly organized and validly existing and in good standing under
the
laws of the State of Florida, has the requisite corporate power and authority
to
execute, deliver and to consummate the transactions contemplated hereby, and
has
taken all necessary corporate action to authorize the execution, delivery and
performance of this Agreement;
(b) The
execution of this Agreement by the Purchaser does not, and the performance
by
the Purchaser of its obligations hereunder will not, constitute a violation
of,
conflict with or result in a default under any contract, commitment, agreement,
understanding, arrangement or restriction of any kind to which the Purchaser
is
a party or by which the Purchaser is bound or any judgment, decree or order
applicable to the Purchaser; and
(c) Neither
the execution and delivery of this Agreement nor the performance by the
Purchaser of its obligations hereunder will violate any provision of law
applicable to the Purchaser or require any consent or approval of, or filing
with or notice to any public body or authority under, any provision of law
applicable to the Purchaser other than notice or filings pursuant to the federal
securities laws.
6. Releases.
Effective upon Closing, the Seller, for himself and his affiliates and
successors and assigns, hereby releases and discharges the Purchaser and its
directors and officers, affiliates, representatives, attorneys, agents,
successors and assigns from all suits, claims, charges, liabilities and causes
of action, whatsoever, whether known or unknown, in law or equity or otherwise,
which the Seller or his affiliates, successors and assigns have or may have
against any or all of them arising out of, relating to, or in connection with
any occurrences or events whatsoever occurring up to the Closing, but excluding
obligations under this Agreement.
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7. Specific
Performance.
Each of
the Purchaser and the Seller acknowledges and agrees that in the event of any
breach of this Agreement, the non-breaching party would be irreparably harmed
and would not be made whole by monetary damages. It is accordingly agreed that
the Purchaser and the Seller, in addition to any other remedy to which they
may
be entitled at law or in equity, shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and/or to compel specific
performance of this Agreement in any action instituted in any court of the
United States or any state thereof having personal and/or subject matter
jurisdiction.
8. Expenses.
All
fees and expenses incurred by any of the parties hereto shall be borne by the
party incurring such fees and expenses and all sales, transfer or other similar
taxes payable in connection with this Agreement (including, but not limited
to,
any transfer taxes payable in connection with the sale of the Shares), will
be
borne by the party incurring such taxes.
9. Brokerage.
Each of
the Purchaser and the Seller represents and warrants to the other that the
negotiations relevant to this Agreement have been carried on by each of the
Purchaser, on the one hand, and the Seller, on the other hand, directly with
the
other, and that there are no claims for finder’s fees or brokerage commissions
or other like payments in connection with this Agreement.
10. Indemnity
(a) In
addition to his other obligations hereunder, the Seller agrees to indemnify
and
hold harmless the Purchaser from and against any and all claims, liabilities,
costs and expenses (including reasonable attorneys’ fees) arising out of, based
upon or related to (A) any breach by the Seller in the performance of his
obligations under this Agreement and (B) any breach of a representation
contained herein.
(b) The
Purchaser agrees to indemnify and hold harmless the Seller from and against
any
and all liabilities, damages, costs and expenses (including reasonable
attorneys’ fees, which shall be paid by the Purchaser on a monthly basis)
arising out of, based upon or related to (i) any breach by the Purchaser in
the
performance of its obligations under this Agreement, and (ii) any breach of
a
representation contained herein.
(c) Neither
the Seller nor the Purchaser shall be entitled to indemnity under this Section
with respect to any claim, action or proceeding asserted by any party not
signatory hereto, which it settles, terminates or compromises without the prior
consent of the indemnifying party which consent shall not be unreasonably
withheld or delayed.
(d) In
any
such claim, action or proceeding, the Seller and the Purchaser shall, to the
extent reasonably requested by the Seller or the Purchaser, respectfully,
cooperate in the defense thereof, including without limitation, by providing
non-privileged documents and making available to the Seller or the Purchaser,
respectfully, personnel of the Seller or the Purchaser, respectfully, for
interviews, depositions and proceedings.
11. Certain
Agreements by the Seller During the Escrow Period. The
Seller agrees that, during the Escrow Period, neither he nor any of his
affiliates will in any manner seek to change the current composition of the
Board of Directors of the Purchaser. The Seller also
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agrees,
during the Escrow Period, to vote or cause to be voted all of its Shares
at any
meeting of the shareholders of the Purchaser in favor of this Agreement and
the
transactions contemplated hereby and by the Merger Agreement.
12. Duties
and Fees of the Escrow Agent.
Unless
otherwise herein expressly provided, the Escrow Agent shall:
(a) not
be
held liable for any action it takes or omits to take under this Agreement,
so
long as it shall have acted in good faith and without negligence;
(b) have
no
responsibility to inquire into or determine the genuineness, authenticity or
sufficiency of any checks or other documents or instruments submitted to it
in
connection with its duties hereunder;
(c) be
entitled to deem the signatories of any documents or instruments submitted
to it
hereunder as being those purported to be authorized to sign such documents
or
instruments on behalf of the parties and shall be entitled to rely upon the
genuineness of the signatures of such signatories without inquiry and without
requiring substantiating evidence of any kind;
(d) be
entitled to refrain from taking any action contemplated by this Agreement if
it
becomes aware of any disagreement between the parties hereto as to any material
facts, or as to the happening of any contemplated event, prior to such
action;
(e) be,
and
hereby is, indemnified and saved harmless, by the Seller and the Purchaser,
jointly and severally, from all losses, costs and expenses which may be incurred
by it as a result of its involvement in any litigation arising from performance
of its duties hereunder, provided that such litigation shall not result from
any
action taken or omitted by the Escrow Agent and for which it shall have been
adjudged grossly negligent or to have acted or failed to act other than in
good
faith; and such indemnification shall survive termination of this Agreement
until extinguished by any applicable statute of limitations;
(f) in
the
event any dispute shall arise between the parties with respect to the
disposition or disbursement of any portion of the Shares held hereunder, be
permitted to interplead the Shares held hereunder into a court of competent
jurisdiction, and thereafter be fully relieved from any and all liability or
obligation with respect to such interpleaded amount;
(g) have
only
those duties as are specifically provided herein, which shall be deemed purely
ministerial in nature. The Escrow Agent shall neither be responsible for, nor
chargeable with, knowledge of the terms and conditions of any other agreement,
instrument or document between the other parties, and the Escrow Agent shall
be
required to act only pursuant to the terms and provisions of this Agreement
and
shall not be deemed to be a trustee or fiduciary. This Agreement sets forth
all
matters pertinent to the escrow contemplated hereunder, and no additional
obligations of the Escrow Agent shall be inferred from the terms of this
Agreement or any other agreement;
(h) be
responsible for the preparation and/or filing of any tax return with respect
to
any income earned on the Shares; and
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(i) be
entitled to receive from the Purchaser compensation for its services hereunder
and for reimbursement of its out-of-pocket expenses, provided, however, that
such compensation and reimbursement shall not be paid from the
Shares.
The
bankruptcy or insolvency of the Seller shall not affect or prevent performance
by the Escrow Agent of its obligations and instructions hereunder.
13. Resignation
or Removal of Escrow Agent.
The
Escrow Agent may resign as such following the giving of at least 15 days’ prior
written notice to the Seller and the Purchaser. In such event, the duties of
the
Escrow Agent shall terminate 15 days after the date of such notice (or as of
such earlier date as may be mutually agreed); and the Escrow Agent shall then
deliver the Shares then in its possession to a successor escrow agent as shall
be appointed by the parties hereto. If the parties hereto are unable to agree
upon a successor or shall have failed to appoint a successor prior to the
expiration of 15 days following the date of the notice of resignation or
removal, the then-acting Escrow Agent may petition any court of competent
jurisdiction for the appointment of a successor escrow agent or other
appropriate relief; and any such resulting appointment shall be binding upon
all
of the parties hereto. Upon acknowledgment by any successor escrow agent of
the
receipt of the then-remaining balance of the Shares, the then-acting Escrow
Agent shall be fully released and relieved of all duties, responsibilities,
and
obligations under this Agreement, except as provided to the contrary
herein.
14. Miscellaneous.
(a) This
Agreement constitutes the entire agreement and supersedes all prior agreements
and understandings, whether oral or written, between the parties hereto with
respect to the subject matter hereof. This Agreement may not be amended orally,
but only by an instrument in writing signed by each of the parties to this
Agreement.
(b) This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective directors, officers, heirs, legal representatives,
attorneys, successors and assigns, including any person who may succeed to
the
assets or business of the Purchaser by way of a consolidation, merger, sale
of
substantially all of the Purchaser’s assets or purchase of substantially all of
the Purchaser’s stock.
(c) All
representations, warranties and covenants shall survive the
Closing.
(d) This
Agreement shall be governed by and construed and enforced in accordance with
the
laws of the State of Florida, without reference to the conflict of laws
principles thereof that would cause the laws of another jurisdiction to apply.
The Purchaser and the Seller consent to the exclusive jurisdiction and venue
of
the Courts of the State of Florida and the United States District Court of
the
Southern District of Florida in connection with any claim or controversy arising
out of or relating to this Agreement.
(e) All
notices and other communications under this Agreement shall be in writing and
delivery thereof shall be deemed to have been made when transmitted by hand
delivery, commercial overnight delivery service, telegram, telex, telecopier
or
facsimile transmission, when confirmed, to the party entitled to receive the
same at the address indicated below or at such other address as such party
shall
have specified by written notice to the other
6
parties
hereto given in accordance herewith:
(i) if
to the
Seller, addressed to:
▇▇.
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with
a
copy to:
▇▇▇▇▇▇
& Jaclin, LLP
▇▇▇
▇▇▇▇▇
▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
(ii) if
to the
Purchaser, addressed to:
Wireless
Holdings, Inc.
▇▇▇
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇▇▇▇, President
with
a
copy to:
H2Diesel,
Inc.
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇
▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
▇▇▇ ▇. ▇▇▇▇▇, President
with
an
additional copy to:
▇▇▇▇▇▇▇▇▇
Traurig, P.A.
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
(iii) if
to the
Escrow Agent, addressed to:
▇▇▇▇▇▇▇▇▇
Traurig, P.A.
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
(f) Any
waiver by any party of a breach of any provision of this Agreement shall not
operate as or be construed to be a waiver of any other breach of such provision
or of any breach of any other provision of this Agreement. The failure of a
party to insist upon strict adherence to any term of this Agreement or one
or
more sections shall not be considered a waiver or deprive that party of the
right thereafter to insist upon strict adherence to
7
that
term
or any other terms of this Agreement. This Agreement may be executed in
counterparts.
[Remainder
of the page intentionally left blank]
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(g) Time
is
of the essence with respect to the obligations of the parties under this
Agreement.
IN
WITNESS WHEREOF, and intending to be legally bound hereby, the parties hereto
have executed this Agreement on the date first above written.
PURCHASER:
WIRELESS
HOLDINGS, INC.
By: /s/
▇▇▇▇▇▇ ▇. ▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇
Title:
President
SELLER:
/s/▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇
ESCROW
AGENT:
Accepted
and agreed to by the Escrow Agent
(solely
with respect to Sections 3, 12, 13 and 14 hereof):
▇▇▇▇▇▇▇▇▇
TRAURIG, P.A.
By: /s/
▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇
▇. ▇▇▇▇▇▇
Title:
Shareholder