EXHIBIT 4.41
AGREEMENT
THIS AGREEMENT (the "Agreement") is entered into as of February 28,
2002 by and between Xxxxx & Xxxxxx, LLP ("Creditor"), a California limited
liability partnership with its principal place of business at 000 Xxxxx
Xxxxxxxxx, Xxxxx 0000, Xxxxx Xxxx, Xxxxxxxxxx 00000, and Xxxxxxxxx Wireless
("Xxxxxxxxx"), a Nevada corporation, having its principal place of business at
0000 Xxxxxx Xxxxxxxxx, Xxxxx X-0, Xxxxx Xxxx, Xxxxxxxxxx 00000.
R E C I T A L S:
A. As of the date hereof, Xxxxxxxxx is indebted to Creditor in the
amount of $263,800 as a result of services provided by Creditor to Xxxxxxxxx.
X. Xxxxxxxxx and Creditor wish to agree upon a payment mechanism that
would permit Xxxxxxxxx to pay in full such debt.
NOW, THEREFORE, in consideration of the mutual promises contained
herein, it is hereby agreed:
1. ACKNOWLEDGMENT OF DEBT. The parties hereby agree that, as of the
date of this Agreement, the total amount due and owing by Kanakaris to Creditor
is equal to Two Hundred Sixty Three Thousand Eight Hundred Dollars ($263,800)
(such sum being hereafter referred to as the "Liquidated Debt"). Xxxxxxxxx
agrees to pay the Liquidated Debt to Creditor pursuant to the terms and
conditions set forth in this Agreement.
2. ISSUANCE OF CONVERTIBLE NOTE.
2.1 CONVERTIBLE NOTE. Simultaneously with the execution of
this Agreement, Kanakaris shall issue to Creditor a 6% Convertible Promissory
Note Due 2002 (the "Convertible Note") in the principal amount of the Liquidated
Debt. The Liquidated Debt, together with any accrued and unpaid interest thereon
shall be convertible into shares (the "Shares") of common stock of Xxxxxxxxx at
the option of Creditor pursuant to the terms of the Convertible Note.
2.2 REGISTRATION OF SHARES. Xxxxxxxxx agrees that when it next
files a Registration Statement (the "Registration Statement") with the
Securities and Exchange Commission (the "SEC") to register the resale of shares
of its common stock under the Securities Act of 1933, as amended (the
"Securities Act"), it will include in such Registration Statement, for the
benefit of Creditor, that number of shares of common stock which equals two
times the number of Shares issuable by Kanakaris if Creditor were to exercise
its conversion rights under the Convertible Note on the date immediately
preceding the date of the filing of the Registration Statement with the SEC.
2.3 INDEMNIFICATION. Xxxxxxxxx agrees to indemnify and hold
harmless Creditor and its agents, partners and any person who may be deemed to
control Creditor under the Securities Act or the Securities Exchange Act of
1934, as amended, to the fullest extent permitted by law, from and against any
and all losses, claims, damages, liabilities, costs and expenses (including
without limitation attorneys' fees), as incurred, arising out or relating to any
untrue or alleged untrue statement of a material fact contained in the
Registration Statement or the prospectus contained therein, or arising out of or
relating to any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except to the extent, but only to the extent, that such untrue statements or
omissions are based solely upon information regarding Creditor furnished in
writing by Creditor to Xxxxxxxxx expressly for use therein.
3. REPRESENTATIONS AND WARRANTIES OF KANAKARIS.
Xxxxxxxxx hereby represents and warrants to Creditor as
follows:
3.1 CORPORATE QUALIFICATIONS. Xxxxxxxxx is a Nevada
corporation in good standing, is qualified to do business in the State of
California, and is subject to no legal disability which would prevent it from
entering into this Agreement.
3.2 CORPORATE APPROVALS. Xxxxxxxxx has received all approvals
of shareholders, officers and directors required by its Articles, Bylaws, and
applicable law in order to enter into this Agreement and to issue the
Convertible Note and the Shares. Upon issuance, the Shares shall be duly and
validly authorized, fully paid and nonassessable.
4. REPRESENTATIONS AND WARRANTIES OF CREDITOR.
Creditor hereby represents and warrants to Kanakaris as
follows:
4.1 CORPORATE QUALIFICATIONS. Creditor is a limited liability
partnership in good standing, is qualified to do business in the State of
California, and is subject to no legal disability which would prevent it from
entering into this Agreement.
4.2 CORPORATE APPROVALS. Creditor has received all approvals
of partners required by its partnership agreement and applicable law and any
other understandings among its partners in order to enter into this Agreement.
4.3 KNOWLEDGE OF, AND CAPACITY TO ASSUME, ECONOMIC RISK.
Creditor acknowledges and represents that:
(a) Creditor is an "accredited investor" as defined
in the Securities Act.
(b) Creditor has received and reviewed Xxxxxxxxx'
Annual Report on Form 10--KSB for the fiscal year ended September 30, 2000, and
its quarterly reports on Form 10--QSB for the quarters ended December 31, 2000,
March 31, 2001 and June 30, 2001.
(c) To the extent Creditor exercises its conversion
rights under the Convertible Note, Creditor is in a financial position to hold
the Shares for an indefinite period of time, is able to bear the economic risk
of an investment in the Shares and is able to withstand a complete loss of its
investment in the Shares.
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(d) To the extent Creditor exercises its conversion
rights under the Convertible Note, Creditor has such knowledge and experience in
business and financial matters that make it capable of evaluating the merits and
risks of an investment in the Shares.
(e) Creditor understands that an investment in the
Convertible Note and the Shares is highly speculative and involves a high degree
of risk but believes that an investment in the Convertible Note and the Shares
is suitable based upon its investment objectives and financial needs, and that
it has adequate means to undertake the risk and to provide for its current
financial needs and has no need for liquidity of investment with respect to the
Shares.
(f) Creditor has had the opportunity to ask questions
of, and receive answers from, representatives of Xxxxxxxxx, for the purpose of
obtaining any additional information to the extent reasonably available that is
necessary to verify the information provided.
(g) To the extent Creditor exercises its conversion
rights under the Convertible Note, Creditor understands that the Shares may be
resold by it only (i) upon registration of the Shares pursuant to the Act or
(ii) in a transaction that is exempt from registration under the Act. Creditor
understands that until the resale of the Shares is registered under the
Securities Act, the certificates representing the Shares will bear a legend
restricting the sale or other disposition thereof.
(h) To the extent Creditor exercises its conversion
rights under the Convertible Note, Creditor is acquiring the Shares for purposes
of investment, and without a view to the distribution or resale thereof except
where such distribution or resale is registered under the Act or otherwise
permitted by applicable securities laws.
(i) Creditor is a resident of or domiciled in the
state set forth under its name in Section 4.1 hereof.
5. MISCELLANEOUS.
5.1 NOTICE. Whenever notice is permitted or required by this
Agreement, it shall be deemed given as of the date of receipt if sent by
facsimile transmission to the numbers shown below, or by a nationally recognized
overnight courier, signature required, and addressed to the party at such
address shown below, or at such other address or facsimile numbers as the party
may time to time give by written notice.
For notice to Xxxxxxxxx:
Xxxxxxxxx Wireless
Attn: Xxxx Xxxxxxxxx
0000 Xxxxxx Xxxxxxxxx
Xxxxx X-0
Xxxxx Xxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
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For notice to Creditor:
Xxxxx & Xxxxxx, LLP
000 Xxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
Any notice or other communication or deliveries hereunder
shall be deemed given and effective on the earliest of (i) the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile telephone number specified in this subparagraph prior to 4:00 p.m.
(California time), (ii) the date after the date of transmission, if such notice
or communication is delivered via facsimile at the facsimile telephone number
specified in this Section later than 4:00 p.m. (California time) on any date and
earlier than 11:59 p.m. (California time) on such date, (iii) the Business Day
following the date of sending, if sent by a nationally recognized overnight
courier service, or (iv) upon actual receipt by the party to whom such notice is
required to be given.
5.2 ASSIGNMENT. This Agreement may not be assigned in whole or
part by either party without the prior written approval by the other party.
5.3 ENTIRE AGREEMENT. This Agreement and the Shares referred
to herein constitutes the entire agreement among the parties with respect to the
subject matter hereof. In addition, this Agreement may not be modified except by
a subsequent writing duly executed by all parties.
5.4 GOVERNING LAW. The internal law of the State of
California, without regard to conflicts of laws principles, will govern all
questions concerning the construction, validity and interpretation of this
Agreement and the performance of the obligations imposed by this Agreement.
5.5 COUNTERPARTS. This Agreement may be executed in
counterparts with any two counterparts signed by each party having the full
force, effect and authority of an original document signed by all parties.
5.6 NO WAIVER. No failure or delay by any party in the
exercise of any of its rights hereunder will be deemed to be a waiver of any of
its rights.
5.7 SEVERANCE. In the event that any provision or provisions
are found by any tribunal of competent jurisdiction to be null or void, such
provisions will be deemed to be severed from this Agreement and the remainder of
the Agreement will remain in full force and effect.
5.8 HEADINGS. The headings contained in this Agreement are for
reference only and shall not be used to resolve any questions of interpretation
or construction.
5.9 ATTORNEYS' FEES. If either party commences litigation to
enforce or interpret this Agreement or the Shares, the nonprevailing party in
such litigation shall reimburse the prevailing party for the prevailing party's
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expenses in connection with such litigation, including without limitation the
prevailing party's attorneys' fees.
5.10 WAIVER OF CONFLICT OF INTEREST. XXXXXXXXX ACKNOWLEDGES
THAT THE CREDITOR IS ITS LEGAL COUNSEL, AND THAT AS A RESULT THE CREDITOR HAS A
CONFLICT OF INTEREST INSOFAR AS IT HAS PARTICIPATED IN THE NEGOTIATION AND
PREPARATION OF THIS AGREEMENT, THE CONVERTIBLE NOTE AND ANY OTHER RELATED
AGREEMENTS. XXXXXXXXX IRREVOCABLY AND PERMANENTLY WAIVES ANY SUCH CONFLICT OF
INTEREST ON THE PART OF CREDITOR, AND ACKNOWLEDGES THAT IT HAS BEEN ADVISED TO
OBTAIN SEPARATE LEGAL REPRESENTATION IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, the undersigned officers of the party, having been
duly authorized to bind their respective parties, have executed this Agreement
on behalf of their respective parties as of the date last below written.
XXXXX & XXXXXX, LLP XXXXXXXXX WIRELESS
By: /S/ XXXXX X. XXXXXXX By: /S/ XXXX XXXXXXXXX
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Xxxxx X. Xxxxxxx, Partner Xxxx Xxxxxxxxx, President
and Chief Executive Officer
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