Exhibit 10.1
PURCHASE AND SALE AGREEMENT
PURCHASE AND SALE AGREEMENT, dated as of February 16, 2000, by
and among the stockholders of Unwire AB (publ), org. no. 556522-7617, a
corporation organized under the laws of Sweden (the "Company") listed on
Schedule I attached hereto (each a "Seller", and collectively, the "Sellers"),
CELLPOINT INC., a corporation organized under the laws of the State of Nevada
("CellPoint"), and CELLPOINT SWEDISH HOLDINGS LTD., a corporation organized
under the laws of England and Wales and a wholly-owned subsidiary of CellPoint
(the "Purchaser Sub"; CellPoint and the Purchaser Sub are hereinafter
collectively referred to as the "Purchaser").
W I T N E S S E T H:
WHEREAS, the Sellers own, of record and beneficially, all of
the outstanding equity securities and securities convertible into or exercisable
for the equity securities of the Company;
WHEREAS, the Purchaser desires to purchase from the Sellers,
and the Sellers desire to sell to the Purchaser, all of such securities, on the
terms and subject to the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
promises contained herein, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.01 DEFINITIONS. Unless otherwise defined herein,
all capitalized terms used herein shall have the meanings assigned to them
below:
"Affiliate" of any particular Person means any other Person
controlling, controlled by or under common control with such particular Person,
where "control" means the possession, directly or indirectly, of the power to
direct the management and policies of a Person, whether through the ownership of
voting securities, contract or otherwise.
"Agreed Value" means U.S.$62.00 per CellPoint Share.
"Agreement" means this Agreement, as the same may be amended,
supplemented or modified in accordance with the terms hereof.
"Authorizations" means any authorization, approval, order,
license, permit, waiver, variance, franchise, grant or consent of, declaration
to, or filing or registration with, any court or governmental authority, and any
consent of any other party.
"CellPoint Common Stock" has the meaning set forth in Section
2.02.
"CellPoint Material Agreements" has the meaning set forth in
Section 5.14.
"CellPoint Shares" has the meaning set forth in Section 2.02.
"Closing" has the meaning set forth in Section 2.03.
"Closing Date" has the meaning set forth in Section 2.03.
"Escrow Agent" means the escrow agent as set forth in the
Escrow Agreement.
"Escrow Agreement" means the Escrow Agreement with respect to
the Escrow Shares in connection with Article X hereof, as to which the Sellers
and the Purchaser shall have mutually agreed prior to the Closing Date, which
agreement reflects the agreements of the parties set forth herein as to the
deposit into escrow and the distribution of the Escrow Shares.
"Escrow Shares" has the meaning set forth in Section 2.03(b).
"Governmental Authority" means any Federal, state, local,
foreign, regional or other governmental, administrative, judicial or regulatory
authority or instrumentality.
"Indebtedness" means at a particular time, without
duplication, (i) any indebtedness for borrowed money or issued in substitution
for or exchange of indebtedness for borrowed money, (ii) any indebtedness
evidenced by any note, bond, debenture or other debt security, (iii) any
indebtedness for the deferred purchase price of property or services with
respect to which a Person is liable, contingently or otherwise, as obligor or
otherwise (other than trade payables and other current liabilities incurred in
the ordinary course of business which are not more than three months past due),
(iv) any commitment by which a Person assures a creditor against loss
(including, without limitation, contingent reimbursement obligations with
respect to letters of credit), (v) any indebtedness guaranteed in any manner by
a Person (including, without limitation, guarantees in the form of an agreement
to repurchase or reimburse), (vi) any obligations under capitalized leases with
respect to which a Person is liable, contingently or otherwise, as obligor,
guarantor or otherwise, or with respect to which obligations a Person assures a
creditor against loss, (vii) any indebtedness secured by a Lien on a Person's
assets and (viii) any unsatisfied obligation for "withdrawal liability" to any
benefit plan.
"Intellectual Property" means all patents, patent
applications, patent disclosures and inventions (whether or not patentable and
whether or not reduced to practice); all trademarks, service marks, trade dress,
trade names and corporate names and all goodwill associated therewith; all
copyrights; all registrations, applications and renewals for any of the
foregoing; all product formulations, trade secrets, confidential information,
ideas, know-how, production processes and techniques, research information,
drawings, specifications, designs, plans, improvements, technical and computer
data, documentation and software, financial,
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business and marketing plans, customer and supplier lists and related
information and all other proprietary rights; and all copies and tangible
embodiments of the foregoing.
"Lien" means any lien, pledge, mortgage, deed of trust,
security interest, claim, lease, assessment, charge, option, right of
pre-emption, floating charges, right of first refusal, easement, servitude,
transfer restriction under any shareholder or similar agreement, encumbrance or
any other restriction or limitation of any kind or nature whatsoever.
"Losses" has the meaning set forth in Section 10.01.
"Material Adverse Effect" means, with respect to any Person, a
material adverse effect on the financial condition or business of such Person,
or a material adverse effect on the ability of such Person to perform such
Person's obligations pursuant to this Agreement and the other Transaction
Documents or, with respect to any Seller or all of the Sellers, on the ability
of such Seller to sell and deliver to the Purchaser the Unwire Securities, free
and clear of all Liens.
"Person" means an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Purchaser Escrow Shares" has the meaning set forth in Section
2.03(b).
"Registration Rights Agreement" means the Registration Rights
Agreement, to be effective as of the Closing Date and substantially in the form
of Exhibit A attached hereto, by and among the Purchaser and the Sellers.
"SEC Documents" has the meaning set forth in Section 5.11(a).
"Securities Act" means the United States Securities Act of
1933, as amended, and including the rules and regulations thereunder as in
effect from time to time.
"Seller Escrow Shares" has the meaning set forth in Section
2.03(b).
"Subsidiary" means Unwire Positioning AB, org. no.
556534-7399.
"Swedish GAAP" means generally accepted accounting principles
in Sweden.
"Tax" or "Taxes" means any (A) federal, state, local or
foreign income, gross receipt, franchise, estimated, alternative minimum,
add-on-minimum, property, sales, use, transfer, registration, value added,
excise, natural resources, severance, stamp, occupation, premium, windfall
profit, environmental, disability, payroll, license, employment or other
withholding, or other taxes, levies, imports, duties, license and registration
fees, charges, assessments or withholdings of any kind whatsoever, including any
interest, penalties or additions to tax or additional amounts in respect of the
foregoing; and (B) liability for the payment of any amounts of the type
described in clause (A) as a result of any express or implied obligation to
indemnify or otherwise assume or succeed to the liability of any other Person.
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"Tax Returns" means returns, declarations, reports, claims for
refund, information returns or other documents (including any related or
supporting schedules, statements or information) filed or required to be filed
in connection with the determination, assessment or collection of Taxes of any
party or the administration of any laws, regulations or administrative
requirements relating to any Taxes.
"Transaction Documents" means, collectively, this Agreement,
the Registration Rights Agreement, the Escrow Agreement and the other
agreements, instruments and documents executed and delivered in connection with
the consummation of the transactions contemplated hereby.
"United States Dollar" and "$" means the lawful currency of
the United States of America.
"Unwire Convertible Securities" means, collectively,
(i) 5,000 convertible debt instruments in
the aggregate principal amount of SEK5,000,000, which debt
instruments (A) are outstanding, though evidence of such debt
instruments will be issued prior to the Closing Date, (B) are
convertible into 500,000 shares in the Company, and (C) have
been requested by the holders thereof to be converted into
500,000 shares in the Company, though the shares have not yet
been distributed or recorded in the share register of the
Company; and
(ii) two debt instruments in the aggregate
principal amount of SEK200,000, and six separated subscription
right certificates giving rights to subscribe for an aggregate
of 21,000 shares in the Company (collectively, the "Unwire
Subscription Rights");
and in each case, including all rights pertaining thereto.
"Unwire Financial Statements" has the meaning set forth in
Section 4.07(a).
"Unwire Material Agreements" has the meaning set forth in
Section 4.10(a).
"Unwire Securities" means, collectively, the Unwire Shares and
the Unwire Convertible Securities.
"Unwire Shares" means, collectively, (i) 1,000,000 registered
shares, par value SEK0.65 per share, in the Company, and (ii) 805,900 shares,
par value SEK 0.65 per share, in the Company, which have been subscribed and
paid for but which have not been distributed or recorded in the Company's share
register.
"U.S. GAAP" means United States generally accepted accounting
principles.
"Year 2000 Compliant" means the ability of the software and
other information processing capabilities of a Person correctly to interpret and
process all data in whatever form so
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as to avoid errors that may otherwise occur because of the inability of software
or other information processing to recognize accurately the year 2000 or
subsequent dates.
SECTION 1.02 TERMS GENERALLY. The definitions set forth herein
apply equally to both the singular and the plural forms thereof. All references
to Articles, Sections, Exhibits and Schedules will be deemed references to the
Articles, Sections, Exhibits and Schedules to this Agreement, in each case
unless the context shall otherwise require.
ARTICLE II.
PURCHASE AND SALE
SECTION 2.01 PURCHASE OF UNWIRE SECURITIES. Subject to the
terms and conditions of this Agreement and in reliance upon the representations,
warranties and agreements set forth herein, on the Closing Date: the Sellers
shall sell, convey, assign, transfer and deliver to the Purchaser Sub, and the
Purchaser Sub shall, purchase from the Sellers, the Unwire Securities. Each of
the Sellers shall sell, convey, assign, transfer and deliver to the Purchaser
Sub the Unwire Securities set forth after such Seller's name on Schedule I.
SECTION 2.02 PURCHASE PRICE. As consideration for the sale,
conveyance, assignment, transfer and delivery to the Purchaser Sub of the Unwire
Securities pursuant to this Agreement, CellPoint shall deliver to the Sellers
aggregate consideration consisting of an aggregate of 1,075,000 shares (the
"CellPoint Shares") of the common stock, par value US$0.001 per share (the
"CellPoint Common Stock"), of CellPoint. The CellPoint Shares shall be allocated
among the Sellers proportionately as set forth on Schedule I attached hereto.
SECTION 2.03 CLOSING; ESCROW.
(a) At the Closing, the Sellers shall deliver to the Purchaser
Sub the Unwire Securities and all share certificates, subscription
rights certificates, debt instruments and interim or other
certificates, if any, evidencing the Unwire Securities to be sold to
the Purchaser Sub pursuant to this Agreement, in each case duly
endorsed in blank or accompanied by duly executed instruments of
transfer in blank, if applicable, and the share register of the
Company, setting forth the Purchaser Sub as the owner of all Unwire
Securities representing shares in the Company, together, in each case,
with all necessary documentary or stock transfer stamps affixed and
accompanied by such other assignments, certificates of authority,
consents to transfer instruments and evidence of title to such shares
as may be reasonably requested by counsel to the Purchaser in order
that all right, title and interest in and to the Unwire Securities pass
to the Purchaser Sub from the Sellers.
(b) At the Closing, in consideration for the Sellers' delivery
of the Unwire Securities to the Purchaser Sub, CellPoint shall deliver
or cause to be delivered to (i) the Sellers, stock certificates
evidencing 1,021,250 CellPoint Shares (constituting 95% of the
aggregate CellPoint Shares to be issued hereunder), registered in the
names of the Sellers (or their respective designees as the Sellers
shall have notified the Purchaser prior to the
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Closing) as to the actual registered owners and the number of shares,
and (ii) the Escrow Agent, to be held by the Escrow Agent pursuant to,
and in accordance with, Article X hereof and the Escrow Agreement:
A) stock certificates evidencing 53,750 CellPoint
Shares (constituting 5% of the aggregate CellPoint Shares to
be issued hereunder), which are to be held in escrow pending
determination of any indemnification obligations of the
Sellers pursuant to Article X hereof (the "Seller Escrow
Shares"); and
B) 53,750 shares of CellPoint Common Stock, which are
to be held in escrow pending determination of any
indemnification obligations of the Purchaser pursuant to
Article X hereof (the "Purchaser Escrow Shares").
The Seller Escrow Shares and the Purchaser Escrow Shares are
collectively referred to as the "Escrow Shares". The share certificates
evidencing the Escrow Shares deposited in escrow with the Escrow Agent
shall be accompanied by duly endorsed stock powers which are also to be
held in escrow.
SECTION 2.04 CLOSING. The consummation of the purchase and
sale of the Unwire Securities pursuant to this Agreement (the "Closing") shall
take place at the offices of Xxxxxxxx & Danielsson Advokatbyra AB in Stockholm,
Sweden, or such other place as the Sellers and the Purchaser may agree, on or
before February 29, 2000, at such time or on such other date as the Sellers and
the Purchaser may agree (the "Closing Date").
SECTION 2.05 POOLING-OF-INTERESTS. Each of the Sellers and the
Purchaser agree to cooperate and use their best efforts to structure the
transactions contemplated hereby so as to qualify for a pooling-of-interests
treatment under U.S. GAAP; PROVIDED, HOWEVER, that such qualification shall not
be a condition precedent to any party's obligations hereunder to consummate the
transactions contemplated hereby.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
Each of the Sellers, severally and not jointly, hereby
represents and warrants as of the date hereof and as of the Closing Date, to the
Purchaser, as follows:
SECTION 3.01 THE SELLERS.
(a) If such Seller is an individual, such Seller is legally
competent and has full power and authority to execute and deliver this
Agreement and the other Transaction Documents and to perform its
respective obligations hereunder and thereunder and to consummate the
transactions contemplated hereby and thereby.
(b) If such Seller is a corporation or other legal entity,
such Seller has full power and authority to execute and deliver this
Agreement and the other Transaction
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Documents, and to perform its respective obligations hereunder and
thereunder, and to consummate the transactions contemplated hereby and
thereby. Each such Seller has taken all necessary corporate or other
action to duly and validly authorize the execution, delivery and
performance of this Agreement and the other Transaction Documents by
such Seller and the consummation by such Seller of the transactions
contemplated hereby and thereby.
SECTION 3.02 BINDING OBLIGATION. Each of this Agreement and
the other Transaction Documents has been duly executed and delivered by each
Seller and (and assuming the execution and delivery of this Agreement and the
other Transaction Documents by the Purchaser) constitutes, and each of the other
agreements, instruments, documents and certificates contemplated hereby and
thereby when executed and delivered for value, will constitute, the legal, valid
and binding obligation of each Seller, enforceable against such Seller in
accordance with their respective terms, except to the extent that (i)
enforcement may be limited by or subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or limiting
creditor's rights generally and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief are subject to certain equitable
defenses and to the discretion of the court or other similar entity before which
any proceeding therefor may be brought.
SECTION 3.03 APPROVALS. No authorizations, approvals, consents
of, and no filings or registrations with, any Governmental Authority are
necessary for the execution, delivery or performance of this Agreement or the
Transaction Documents by any of the Sellers or the Company.
SECTION 3.04 NO CONFLICTS. The execution and delivery of this
Agreement and the other Transaction Documents, the consummation of the
transactions contemplated hereby or thereby, and the compliance by each of the
Sellers with the terms and provisions hereof or thereof will not (a) conflict
with or result in a breach of, or require any consent or vote of any Person
under, the respective Articles of Association or other organizational documents
or by-laws, if any, of the Sellers or any note, mortgage, indenture, contract,
or any other agreement to which any Seller is a party or by which any Seller or
any of their respective properties is subject, (b) violate any applicable law,
regulation, order, writ, injunction or decree of any Governmental Authority, or
(c) constitute or result in a breach or violation of or a default under, or
result in the imposition of any Lien on any of the assets of the Company, the
Subsidiary or any Seller, including the Unwire Securities owned by each Seller.
SECTION 3.05 LITIGATION. Except as disclosed in Schedule 3.05
hereto, there is no action, proceeding or investigation to which any Seller is a
party or to which any Seller or any of their respective properties may be
subject by or before any Governmental Authority, pending or to the knowledge of
any Seller threatened, which, if adversely determined, could have, individually
or in the aggregate, a material adverse effect on the ability of the Sellers to
execute, deliver and perform this Agreement (including, without limitation, to
deliver title to the Unwire Securities free and clear of all Liens) or the
Transaction Documents.
SECTION 3.06 PRIVATE SALE OF CELLPOINT SHARES. Each Seller
acknowledges and agrees that:
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(a) the CellPoint Shares have not been registered under the
Securities Act, and accordingly, the CellPoint Shares are "restricted
securities";
(b) the certificates evidencing the CellPoint Shares shall
bear a legend to the effect that such shares are "restricted
securities";
(c) the CellPoint Shares may not be resold except pursuant to
a registration statement filed with the United States Securities and
Exchange Commission under the Securities Act or pursuant to an
exemption from such registration; and
(d) such Seller is acquiring the CellPoint Shares to be issued
to it for its own account and not with a view to the distribution
thereof.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF THE SELLERS REGARDING THE COMPANY
Each of the Sellers, severally and not jointly, hereby
represents and warrants as of the date hereof, except as otherwise stated, and
as of the Closing Date to the Purchaser, as follows (it being understood that
all references to the "Company" in this Article IV shall be deemed to refer to
the Company and the Subsidiary, as applicable, or except as otherwise
indicated):
SECTION 4.01 ORGANIZATION. The Company (a) is a corporation,
duly organized, validly existing and in good standing under the laws of Sweden,
(b) has all requisite power necessary to own its assets and carry on its
business as currently being conducted, and (c) is qualified to do business in
all foreign jurisdictions in which the nature of the business conducted by it
and the properties owned or operated by it make such qualification necessary and
where the failure to so qualify would, individually or in the aggregate, have a
Material Adverse Effect on the Company. Attached as Schedule 4.01 hereto are
true and correct copies of the Certificate of Registration of the Company and
the Articles of Association of each of the Company and the Subsidiary. The
Company and the Subsidiary are in compliance with their respective Articles of
Association.
SECTION 4.02 CAPITALIZATION OF THE COMPANY AND THE SUBSIDIARY.
(a) The Company has a registered share capital of SEK 650,000,
divided into 1,000,000 shares, each with a nominal value of SEK 0.65.
The Company has issued: (i) 1,000,000 registered shares in the Company
and (ii) the Unwire Convertible Securities. In addition, 805,900 shares
in the Company, each with a nominal value of SEK0.65, have been
subscribed for and paid for with SEK5,375,353, but have not been
distributed or recorded in the Company's share register or with the
Swedish Patent and Registration Office. The Sellers constitute all of
the holders of the Unwire Securities (i.e., holders of all registered
and unregistered shares, convertible debt instruments, debt instruments
with subscription rights for new shares and subscription rights for new
shares). Each Seller
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has good and marketable title to its Unwire Securities and all rights
pertaining thereto, and each Seller owns its Unwire Securities free and
clear of all Liens. The Sellers are the owners of, and have good and
marketable title to, all rights against the Company in case the
registration of the unregistered Unwire Shares and the Unwire
Securities or the execution and conversion thereof into shares should
not be registered by the Swedish Patent and Registration Office, free
and clear of all Liens. The Unwire Securities constitute all issued and
outstanding securities of the Company. Except as set forth in this
Section 4.02(a), neither the Company nor any Seller has resolved to
issue, granted or issued to any Person any option or right to acquire
any shares in the Company or any security convertible into or
exchangeable for and giving a right to purchase any Unwire Securities
or any other shares in the Company or securities of the Company. All
Unwire Securities have been paid in full. No Person has, nor will any
Person have on the Closing Date, any right or claim with respect to any
Unwire Securities or any shares in the Company, whether registered or
unregistered. No Seller and no other Person has, or will claim, any
right whatsoever to any payment from the Company, including payment of
principal and/or interest, on the Unwire Convertible Securities and no
such payments have been made since December 31, 1999, with the
exception of one or more payments in an aggregate amount not exceeding
the annual interest rate on the Unwire Subscription Rights of six
percent.
(b) The Subsidiary has a registered share capital of SEK
100,000, divided into 1,000 shares, each with a nominal value of
SEK100. The Company is the sole stockholder of the outstanding shares
of the Subsidiary, and the Company owns such shares free and clear of
all Liens. All shares in the Subsidiary have been fully paid. Neither
the Subsidiary nor the Company has resolved to issue, granted or issued
to any Person any option or right to acquire any shares in the
Subsidiary or any security convertible into or exchangeable for and
giving a right to purchase any shares in the Subsidiary or any other
security of the Subsidiary.
SECTION 4.03 APPROVALS. Neither the execution nor delivery of
this Agreement nor the consummation of the transactions contemplated hereby
requires the consent of any Person.
SECTION 4.04 NO CONFLICTS. Except as set forth in Schedule
4.04, neither the execution nor delivery of this Agreement or the other
Transaction Documents nor the consummation of the transactions contemplated
hereby or thereby will (a) conflict with or result in a breach of, or require
any consent or vote of any Person under or give the right to terminate, any
note, mortgage, indenture, contract, collective bargaining agreement or any
other agreement to which the Company or the Subsidiary is a party or by which
the Company, the Subsidiary or any of their respective properties is subject,
(b) violate any applicable law, regulation, order, writ, injunction or decree of
any Governmental Authority, or (c) constitute or result in a breach or violation
of or a default under, or result in the imposition of any Lien on any of the
assets of the Company or the Subsidiary or the Unwire Securities owned by any
Seller, except for those consents or approvals the failure of which to obtain
prior to the Closing would not have a Material Adverse Effect on the Company.
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SECTION 4.05 LITIGATION. Except as disclosed in Schedule 4.05
hereto, (a) there is no claim, dispute, action, suit, proceeding or
investigation pending or, to the best knowledge of the Sellers , threatened,
against or affecting the Company, the Subsidiary or the Company's business or
the Subsidiary's business or any of the Company's officers, at law or in equity
before any Governmental Authority which, if adversely determined, would, singly
or in the aggregate, have a Material Adverse Effect on the Company; (b) there is
no outstanding judgment, order, writ, ruling, injunction, stipulation or decree
of any Governmental Authority, against or materially affecting the Company or
the Company's business; (c) the Company has not violated and is not in default
with respect to, any judgment, order, writ, ruling, injunction, stipulation or
decree listed in Schedule 4.05; and (d) neither the Company nor the Subsidiary
nor any of their respective officers or directors has received any written or
verbal inquiry from any Governmental Authority concerning the possible violation
of any law, rule or regulation in respect of the Company or the Company's
business. Set forth in Schedule 4.05 is a list of all claims, actions, suits and
proceedings instituted by the Company.
SECTION 4.06 SUBSIDIARIES; JOINT VENTURES. Except for the
Subsidiary, the Company does not have any subsidiaries nor does it own, directly
or indirectly, any capital stock or equity interest in any corporation,
partnership, joint venture, limited liability company or other entity.
SECTION 4.07 FINANCIAL STATEMENTS.
(a) The Sellers have furnished to the Purchaser (i) the
Company's financial statements for the year ended December 31, 1999,
including the notes thereto, as audited by Xxxxxxx Xxxxxxxx
(collectively, the "Financial Statements"), a copy of which is attached
hereto as part of Schedule 4.07, and (ii) the financial statements of
the Subsidiary for the year ended December 31, 1998 (collectively, the
"Subsidiary Financial Statements"), a copy of which is attached as part
of Schedule 4.07).
(b) The Financial Statements and the Subsidiary Financial
Statements have been prepared in accordance with Swedish law and
Swedish GAAP, applied on a basis consistent throughout all periods
presented; such statements are correct and complete in all material
respects, are reconcilable to the books and records of the Company and
the Subsidiary, as the case may be, and present fairly in all material
respects the financial position of the Company and the Subsidiary, as
the case may be, as of the dates, and the results of operations, cash
flows and changes in financial position of the Company and the
Subsidiary, as the case may be, for the periods, indicated. The books
of account and other financial records of the Company and the
Subsidiary have been maintained in accordance with good business
practices.
(c) As of December 31, 1999, the Company had no material
liabilities or obligations, whether secured or unsecured, accrued,
determined, absolute or contingent, asserted or unasserted or
otherwise, which are required to be reflected or reserved in a balance
sheet or the notes thereto in accordance with Swedish law and Swedish
GAAP, but which are not reflected in the Financial Statements. Since
December 31, 1998, the Subsidiary has not incurred any material
liabilities.
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(d) The Company has not granted any guarantees or provided any
other security not reflected in Schedule 4.07 and the Financial
Statements.
(e) All accounts receivable (other than those accounts
receivable noted as doubtful) reflected in the Financial Statements
have been, or will be, collected in accordance with their respective
terms by the Company itself, or through factoring, in the ordinary
course of business.
(f) As of the date hereof, in the commercially reasonable
judgment of the Sellers, the Company has sufficient cash to operate its
business in the ordinary course through March 31, 2000, including the
payment on a timely basis of accounts payable, trade obligations and
other liabilities as such obligations become due without extension or
waiver, excluding, however, (i) the Company's rent for the period from
April 1, 2000 through June 30, 2000 of SEK157,000, which rent payment
is due on March 31, 2000, and (ii) the amortization of SEK150,000 on
the loan extended by Almi Foretagspartner Stockholm AB, which payment
is due on March 31, 2000.
SECTION 4.08 EMPLOYEE MATTERS.
(a) Schedule 4.08 sets forth (i) the name of each director,
officer, employee and independent sales representative of the Company;
(ii) each oral or written employment agreement, consulting agreement,
deferred compensation agreement, covenant not to compete,
confidentiality agreement or agreement with each person named in
Schedule 4.08 pursuant to clause (i) hereof, a commission salesman or
other agent to which the Company is a party; and (iii) any collective
bargaining agreement or any other contract or arrangement with any
labor organization to which the Company is a party or which has been
requested or under discussion during the previous 24 months.
(b) Except as set forth in Schedule 4.08, (i) the Company is
not liable for any accrued bonus compensation, vacation pay, severance
pay or arrears of wages; (ii) the Company has satisfactory relations
with its employees in the aggregate; (iii) the Company is not involved
in any labor dispute, proceeding, work stoppage or disturbance, other
than routine grievances which are not material; and (iv) the Company
has not violated in any material respect any law or regulation
governing employers and the conditions of employees' employment,
including those regulating wages, hours, discrimination, civil rights
and employment of foreign nationals, in each of (i), (ii) and (iv), the
effect of which would, singly or in the aggregate, have a Material
Adverse Effect on the Company.
(c) To the knowledge of the Sellers, there is no threatened
(i) claim by any current or former director, officer or employee of the
Company or the Subsidiary against the Company or the Subsidiary, or
(ii) labor or union litigation in respect of the Company or the
Subsidiary.
(d) Schedule 4.08 lists every material employee benefit plan
in which the Company's employees are participating.
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(e) Only the persons marked "Employee" in Schedule 4.08, and
no one else (including, but not limited to, consultants hired by the
Company) are employees of the Company.
(f) There are no former employees of the Company that have a
right of re-employment by the Company.
(g) All of the Company's pension commitments are duly reserved
for or covered by insurance.
SECTION 4.09 TAXES. Except as indicated in Schedule 4.09, the
Company has filed all Tax Returns which were required to be filed prior to the
date hereof (after giving effect to all extensions of filing deadlines obtained)
in respect of all Taxes and has paid all Taxes which have become due pursuant to
such Tax Returns or pursuant to any assessment which has become payable, or, to
the extent its liability for any Taxes which have become due has not been fully
discharged, the same have been properly reflected as a liability on the
Company's books and records and adequate reserves therefor have been
established. All such Tax Returns have been properly prepared and are complete.
Except as indicated in Schedule 4.09, no extension for the filing of any such
Tax Return is currently in effect. Except as set forth on Schedule 4.09, no Tax
Return or Tax Return liability of the Company is presently under audit or, to
the best knowledge of the Sellers, proposed to be audited. Except as indicated
in Schedule 4.09, the Company has not given or been requested to give waivers of
any statute of limitations relating to the payment of any Taxes. Except as set
forth on Schedule 4.09, there are no claims pending or, to the best knowledge of
the Sellers, threatened, against the Company for past due Taxes. All payments
for withholding Taxes, social security expenses, special employer contributions,
unemployment insurance and other amounts required to be paid for periods prior
to the date hereof to any Governmental Authority in respect of the Company's
employment obligations, have been paid or shall be paid prior to Closing, except
for payments for which the failure to pay would, singly or in the aggregate, not
have a Material Adverse Effect on the Company. Such amounts have been duly
provided for on the books and records of the Company. No claim has been made by
a taxing authority in a jurisdiction where the Company does not file a Tax
Return that the Company is or may be subject to Taxes assessed by such
jurisdiction.
SECTION 4.10 MATERIAL AGREEMENTS; NO DEFAULTS.
(a) Schedule 4.10 sets forth a complete and correct list of
all material instruments, agreements, indentures, mortgages,
guarantees, notes, commitments, accommodations, letters of credit or
other arrangements or understandings, whether oral or written, to which
the Company or the Subsidiary is a party or pursuant to which the
Company or the Subsidiary is obligated (the "Unwire Material
Agreements"). The Unwire Material Agreements constitute all of the
contracts, agreements, understandings and arrangements required for the
operation of the Company's business as currently conducted or which
have a material effect thereon. Copies of all such Unwire Material
Agreements have previously been made available to the Purchaser, and
such copies are complete and correct as of the date hereof. The failure
to obtain a consent or waiver under any Unwire Material Agreement with
respect to the transactions contemplated in this Agreement, will not
(i) result in the payment of any damages or penalties by the Company or
in the
12
acceleration of any obligations of the Company, or (ii) singly or in
the aggregate, have a Material Adverse Effect on the Company; provided,
HOWEVER, that the Purchaser and the Sellers agree that the Company's
failure to obtain a consent or waiver with respect to those agreements
considered to be "framework agreements" pursuant to which the Company's
counterparties have no obligation to pay or perform shall not, in and
of itself, be deemed to have a Material Adverse Effect on the Company.
(b) Each of the Unwire Material Agreements was entered into in
the ordinary course of the Company's business, is in full force and
effect on the date hereof and is valid, binding and enforceable in
accordance with its terms. Except as disclosed in Schedule 4.10,
neither the Company or the Subsidiary, nor, to the Sellers' knowledge,
any other person or entity is in breach of, or in default under, any
Unwire Material Agreement, and no event or action has occurred, is
pending or, to the Sellers' knowledge is threatened, which, after the
giving of notice, passage of time or otherwise, would constitute or
result in such a breach or default by the Company or the Subsidiary or,
to the best knowledge of the Sellers, any other person or entity party
to an Unwire Material Agreement, the effect of which, singly or in the
aggregate, would have a Material Adverse Effect on the Company. The
Company has not received any notice of default under any Unwire
Material Agreement, which default has not been cured to the
satisfaction of, or duly waived by, the party claiming such default on
or before the date hereof.
(c) Except as set forth in Schedule 4.10, none of the Sellers
or the Company has taken or omitted to take any action which has
resulted in, or will result in, the Company being or becoming a party
to or bound by, any agreement, arrangement or understanding to which
the Company will remain obligated or bound following the Closing,
relating to the acquisition by the Company of any entity or all or
substantially all of the assets of any Person.
(d) With respect to the contract between the Company and Point
Transaction System AB, as described in Schedule 4.10, Point Transaction
System AB is not in possession of any products of the Company, and
accordingly, there is no potential liability of the Company for return
of products pursuant to such contract.
SECTION 4.11 TANGIBLE PERSONAL PROPERTY. Except as set forth
in Schedule 4.11, the Company has good and marketable title to all of its
tangible personal property and assets which is used in and, individually or in
the aggregate with such other property, is material to the business of the
Company, free and clear of all Liens, except for any Lien for current Taxes not
yet due and payable ("Permitted Tax Liens"). Except as set forth in Schedule
4.11, all material items of the tangible personal property and assets owned or
leased by the Company are in adequate condition to conduct the Company's
business as now conducted or proposed to be conducted.
SECTION 4.12 REAL PROPERTY.
(a) The Company does not own, and has never owned, any real
property.
13
(b) Schedule 4.12 sets forth a true and complete list of all
leases, subleases, licenses and other agreements (collectively, the
"Real Property Leases") under which the Company uses or occupies, has
the right to use or occupy, or leases the right to use or occupy, now
or in the future, any real property (the land, buildings, and other
improvements covered by the Real Property Leases being herein called
the "Leased Real Property"). The Company is not obligated as a tenant,
sub-tenant or guarantor of any such obligation under any lease,
sublease, license or other agreement except the Real Property Leases.
The Sellers have heretofore delivered to the Purchaser complete and
correct copies of all Real Property Leases (including all modifications
thereof and all amendments and supplements thereto). Each Real Property
Lease is valid, binding and in full force and effect with respect to
the Company and, to the best knowledge of the Sellers, all other
parties thereto; all rent and other sums and charges payable by tenants
thereunder are current; no notice of default or termination under any
Real Property Lease is outstanding; no termination event or condition
or uncured default on the part of the Company or, to the best knowledge
of the Sellers, any other party thereto, exists under any Real Property
Lease, and no event has occurred and no condition exists which, with
the giving of notice or the lapse of time or both, would constitute
such a default or termination event or condition with respect to the
Company or, to the best knowledge of the Sellers, any other party
thereto, the effect of which would result in a Material Adverse Effect
on the Company. The Company holds the leasehold estate under, and any
other interest in, each Real Property Lease, free and clear of all
Liens except as set forth in Schedule 4.12.
SECTION 4.13 PERMITS AND LICENSES. The Company has all
Authorizations which are reasonably necessary to conduct the Company's business
and to own, lease, use, operate and occupy the Company's assets at the places
and in the manner now conducted and operated, except those the absence of which
would not have a Material Adverse Effect on the Company. The Company has not
received any notice or claim pertaining to the failure to obtain any material
Authorization, the failure of which to obtain would have a Material Adverse
Effect on the Company. The Sellers have no knowledge of any basis for such
claim.
SECTION 4.14 COMPLIANCE WITH LAW. The Company is not
conducting its business or affairs in material violation of any applicable law,
ordinance, rule, regulation, court or administrative order, decree or process,
except for such violations which, individually or in the aggregate, would not
have a Material Adverse Effect on the Company. The Company has not received any
notice of violation or claimed violation of any law, ordinance, rule,
regulation, order, decree, process or requirement applicable to it.
SECTION 4.15 INTELLECTUAL PROPERTY. Schedule 4.15 sets forth a
list of all patents, patent applications, patent disclosures and inventions
(whether or not patentable and whether or not reduced to practice); all
trademarks, service marks, trade names and corporate names and all goodwill
associated therewith; all copyrights; all registrations, applications and
renewals for any of the foregoing owned or used by the Company or the
Subsidiary. Except as set forth in Schedule 4.15, the Company owns or has valid
and enforceable rights with respect to all the Intellectual Property that are
necessary to conduct the Company's business as presently conducted. Except as
set forth on Schedule 4.15, the conduct of the Company's business as currently
being conducted does not and will not infringe or misappropriate any rights held
or
14
asserted by any Person, and there is no claim by any Person pending or, to the
knowledge of the Sellers threatened, contesting the validity, enforceability,
ownership or use of any of the Intellectual Property owned or used by the
Company. Except as set forth in Schedule 4.15, none of the Intellectual Property
is the subject of a pending or threatened action for opposition, cancellation,
declaration of invalidity, unenforceability or misappropriation or like claim,
action or proceeding. The Company holds the Intellectual Property free and clear
of all Liens, except any imposed by applicable law or regulations and any that
are not material and other than any rights held by licensors and by those
licensees of the Company listed in Schedule 4.15. Except as set forth in
Schedule 4.15, no payments presently are, or will in the future be, required for
the continued use by the Company of the Intellectual Property. All of the
Company's software, hardware and other Intellectual Property are Year 2000
Compliant.
SECTION 4.16 ORDINARY COURSE. Since December 31, 1999, the
Company has conducted its business, maintained its assets and kept its books of
account, records and files, substantially in the same manner as previously
conducted, maintained or kept and solely in the ordinary course. Since December
31, 1999, the Company has not incurred any material liabilities, sold or
otherwise transferred any material assets, waived or cancelled any material
rights or incurred any material commitments except in the ordinary course of
business.
SECTION 4.17 NO ADVERSE CHANGES. Except as otherwise
contemplated hereby, since December 31, 1999, there has not been (a) any
material adverse change in the Company's business, financial condition, or
assets or liabilities, as reflected in the Financial Statements, (b) any
material loss sustained by the Company on account of theft, fire, flood,
explosion, accident or other calamity, whether or not insured, which has
materially and adversely interfered, or may materially and adversely interfere,
with the operation of the Company's business, (c) to the best knowledge of the
Sellers, any actions by a competitor (other than the Purchaser) to the Company's
business which would adversely affect the financial position or market share of
the Company, or (d) to the best knowledge of the Sellers, any event, condition
or state of facts, including, without limitation, the enactment, adoption or
promulgation of any law, rule or regulation, the occurrence of which materially
and adversely does or would affect the results of operations or the business or
financial condition of the Company.
SECTION 4.18 INSURANCE. Set forth on Schedule 4.18 is a list
of the Company's material insurance polices. With respect to such insurance
policies:
(a) The Company's assets and properties (whether owned or
leased) are adequately insured against fire, damage and loss.
(b) The Company maintains normal liability insurance.
(c) The Company maintains normal insurance against operational
interruption.
(d) The insurance policies referred to in paragraphs (a), (b)
and (c) of this Section 4.18 have been validly in effect since 1997,
and such policies will be in full force and effect for no less than one
month following the Closing Date.
(e) All insurance premiums due have been paid by the Company.
15
SECTION 4.19 MISCELLANEOUS. The representations and warranties
made by the Sellers in this Agreement and the statements made by or on behalf of
the Sellers in any certificate, document, exhibit or schedule furnished in
connection with the transactions contemplated hereby, do not contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make such representations or warranties or other such statements not
false or misleading.
SECTION 4.20 BROKERS. None of the Sellers nor the Company has
entered into, and none will enter into, any agreement, arrangement or
understanding with any Person that will result in the obligation of the Sellers
or the Company to pay any finder's fee, brokerage commission or similar payment
in connection with the transactions contemplated hereby.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to each of the Sellers
as of the date hereof and as of the Closing Date (it being understood that all
references to the "Purchaser" in this Article V shall be deemed to refer to the
Purchaser and its subsidiaries (including, without limitation, the Purchaser
Sub), as applicable, or except as otherwise indicated) as follows:
SECTION 5.01 DUE ORGANIZATION.
(a) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada.
The Purchaser has full corporate power and authority to own, lease and
operate its assets and to carry on its business in the places and in
the manner currently conducted or proposed to be conducted. The
Purchaser is qualified to do business in all foreign jurisdictions in
which the nature of the business conducted by it and the assets owned
or operated by it make such qualification necessary, and where the
failure to so qualify would not, individually or in the aggregate, have
a Material Adverse Effect on the Purchaser. Attached hereto as Schedule
5.01 are the Articles of Incorporation, as amended, of the Purchaser.
The Purchaser is in compliance with its Articles of Incorporation.
(b) The Purchaser Sub is a corporation duly organized, validly
existing and in good standing under the laws of England and Wales. The
Purchaser Sub has full corporate power and authority to own, lease and
operate its assets and to carry on its business in the places and in
the manner currently conducted or proposed to be conducted.
(c) Each other subsidiary of the Purchaser is a corporation
duly organized, validly existing and in good standing under the laws of
its respective jurisdiction of organization. Each subsidiary of the
Purchaser has full corporate power and authority to own, lease and
operate its assets and to carry on its business in the places and in
the manner currently conducted or proposed to be conducted.
16
SECTION 5.02 DUE AUTHORIZATION; VALID OBLIGATION. The
Purchaser has all requisite corporate power and authority to execute and deliver
this Agreement and the other Transaction Documents and to consummate the
transactions contemplated hereby and thereby. The Purchaser has taken all
corporate action necessary to authorize it to execute and deliver this Agreement
and the other Transaction Documents, to perform its obligations hereunder and
thereunder and to consummate the transactions contemplated hereby and thereby,
and this Agreement constitutes, and the other Transaction Documents upon their
execution will constitute, the valid and binding obligations of the Purchaser
enforceable in accordance with their respective terms.
SECTION 5.03 BINDING OBLIGATION. Each of this Agreement and
the other Transaction Documents to which the Purchaser is a party has been duly
executed and delivered by the Purchaser and (and assuming the execution and
delivery of this Agreement and the other Transaction Documents by the Sellers)
constitutes, and each of the other agreements, instruments, documents and
certificates contemplated hereby and thereby when executed and delivered for
value, will constitute, the legal, valid and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with their respective
terms, except to the extent that (i) enforcement may be limited by or subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or limiting creditor's rights generally and (ii) the remedy of
specific performance and injunctive and other forms of equitable relief are
subject to certain equitable defenses and to the discretion of the court or
other similar entity before which any proceeding therefor may be brought.
SECTION 5.04 APPROVALS. No authorizations, approvals, consents
of, and no filings or registrations with, any Governmental Authority are
necessary for the execution, delivery or performance of this Agreement or the
Transaction Documents by the Purchaser, except for a filing pursuant to
Regulation D under the Securities Act which reports the issuance and the sale of
the CellPoint Shares.
SECTION 5.05 NO CONFLICTS. The execution and delivery of this
Agreement and the other Transaction Documents, the consummation of the
transactions contemplated hereby or thereby, and the compliance by the Purchaser
with the terms and provisions hereof or thereof will not (a) conflict with or
result in a breach of, or require any consent or vote of any Person under, the
Articles of Incorporation or By-Laws of the Purchaser or any note, mortgage,
indenture, contract, or any other agreement to which the Purchaser is a party or
by which the Purchaser or any of its properties is subject, (b) violate any
applicable law, regulation, order, writ, injunction or decree of any
Governmental Authority, or (c) constitute or result in a breach or violation of
or a default under, or result in the imposition of any Lien on any of the assets
of the Purchaser.
SECTION 5.06 AUTHORIZATIONS. Any authorization from any court
or Governmental Authority or any other person or entity which is not a party to
this Agreement which is required in connection with the execution, delivery and
performance of the Transaction Documents by the Purchaser has been obtained or
shall be obtained prior to or as of the Closing Date. There is no pending or, to
the knowledge of the Purchaser threatened, claim, action, suit, investigation or
proceeding against the Purchaser before any court, arbitrator or Governmental
Authority which, if determined adversely to the Purchaser, would have a material
adverse effect
17
on the ability of the Purchaser to perform its obligations under the Transaction
Documents to which it is a party.
SECTION 5.07 CAPITALIZATION OF THE PURCHASER. The Purchaser
has authorized capital consisting of 22,000,000 shares of CellPoint Common
Stock, par value $0.001 per share, and 3,000,000 shares of preferred stock, par
value $0.001 per share. As of the date hereof, 9,390,000 shares of CellPoint
Common Stock are issued and outstanding and no shares of preferred stock of the
Purchaser are issued and outstanding. All of the issued and outstanding shares
of CellPoint Common Stock are, and all shares reserved for issuance will be,
upon issuance in accordance with the terms specified in the instruments or
agreements pursuant to which they are issuable, duly authorized, validly issued,
fully paid and nonassessable. Except for what is set forth in Schedule 5.07, the
Purchaser has not granted to any Person, or issued, any option or right to
acquire any shares of capital stock or any security convertible into or
exchangeable for and giving a right to purchase, or subscribe for, any shares of
the CellPoint Common Stock or the preferred stock of the Purchaser (including,
but not limited to, convertible debt instruments and debt instruments with
subscription rights for new shares).
SECTION 5.08 VALIDITY OF THE CELLPOINT SHARES. At the Closing
Date and upon receipt by the Purchaser of the consideration recited in this
Agreement, the CellPoint Shares to be issued to the Sellers pursuant to this
Agreement will be duly authorized, validly issued, fully paid and nonassessable,
and free and clear of all Liens, and upon issuance such CellPoint Shares will be
securities of a class that are traded on the OTC Bulletin Board service operated
by broker/dealers admitted to membership in the National Association of
Securities Dealers, Inc.
SECTION 5.09 LITIGATION. Except as disclosed in the SEC
Documents (as defined below) or in Schedule 5.09 hereto, (a) there is no claim,
dispute, action, suit, proceeding or investigation pending or, to the best
knowledge of the Purchaser threatened, against or affecting the Purchaser or the
Purchaser's business or any of the Purchaser's officers, before any Governmental
Authority which, if adversely determined, would, singly or in the aggregate,
have a Material Adverse Effect on the Purchaser or the ability of the Purchaser
to perform its obligations under this Agreement or the Transaction Documents or
which would challenge the validity or propriety of the transactions contemplated
hereby or thereby; (b) there is no outstanding judgment, order, writ, ruling,
injunction, stipulation or decree of any Governmental Authority against or
materially affecting the Purchaser or the Purchaser's business; (c) the
Purchaser has not violated and is not in default with respect to, any judgment,
order, writ, ruling, injunction, stipulation or decree listed in Schedule 5.09;
and (d) neither the Purchaser nor any of its officers has received any written
or verbal inquiry from any Governmental Authority concerning the possible
violation of any law, rule or regulation or any matter disclosed in Schedule
5.09 in respect of the Purchaser or the Purchaser's business. Set forth in
Schedule 5.09 is a list of all claims, actions, suits and proceedings instituted
by the Purchaser.
SECTION 5.10 SUBSIDIARIES; JOINT VENTURES. Except as disclosed
in the SEC Documents or in Schedule 5.10 hereto, the Purchaser does not have any
subsidiaries nor does it own, directly or indirectly, any capital stock or
equity interest in any corporation, partnership, joint venture, limited
liability company or other entity.
SECTION 5.11 SEC REPORTS AND FINANCIAL STATEMENTS.
18
(a) The Purchaser has filed with the United States Securities
and Exchange Commission (the "SEC") all forms, reports, schedules,
statements and other documents required to be filed by it since March
1999 under the United States Securities Exchange Act of 1934, as
amended (the "Exchange Act") (such documents as filed and, where
applicable, as amended, are collectively, the "SEC Documents"). Copies
of all such documents have been made available to the Sellers.
(b) The SEC Documents, including without limitation any
financial statements or schedules included therein, at the time filed
(i) did not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances
under which they were made, not misleading and (ii) complied in all
material respects with the applicable requirements of the Exchange Act,
and the applicable rules and regulations of the SEC thereunder.
(c) Except as publicly disclosed by the Purchaser, the
financial statements of the Purchaser, and the related notes thereto,
included in the SEC Documents comply as to form in all material
respects with applicable accounting requirements and with the published
rules and regulation of the SEC with respect thereto, have been
prepared in accordance with U.S. GAAP, applied on a basis consistent
throughout all periods presented; such statements are reconcilable to
the books and records of the Purchaser, and present fairly in all
material respects the financial position of the Purchaser as of the
dates indicated, and the results of operations, cash flows and changes
in financial position of the Purchaser for the periods, indicated,
except in the case of interim financial statements, for the omission of
footnotes and for year-end review adjustments which are not expected to
be, singly or in the aggregate, material in amount and as are permitted
by the requirements of the rules and regulations under the Exchange
Act.
(d) The books of account and other financial records of the
Purchaser have been maintained in accordance with good business
practices.
(e) As of December 31, 1999, the Purchaser has no material
liabilities or obligations, whether secured or unsecured, accrued,
determined, absolute or contingent, asserted or unasserted or
otherwise, which are, in accordance with U.S. GAAP, required to be
reflected or reserved in a balance sheet or the notes thereto, but
which are not reflected in the SEC Documents.
(f) The Purchaser has not granted any guarantees or provided
any other security not reflected in the SEC Documents.
SECTION 5.12 EMPLOYEE MATTERS.
(a) Schedule 5.12 sets forth (i) the name of each director and
executive officer of CellPoint; (ii) each oral or written employment
agreement, consulting agreement, deferred compensation agreement,
covenant not to compete, confidentiality agreement or agreement with
each person named in Schedule 5.12 pursuant to clause (i) hereof which
agreements are not otherwise filed as an exhibit to the SEC Documents,
and (iii) any
19
collective bargaining agreement or any other contract or arrangement
with any labor organization to which the Purchaser is a party or which
has been requested or under discussion during the previous 24 months.
(b) Except as set forth in the SEC Documents or in Schedule
5.12, (i) the Purchaser is not liable for any accrued bonus
compensation, vacation pay, severance pay or arrears of wages; (ii) the
Purchaser has satisfactory relations with its employees in the
aggregate; (iii) the Purchaser is not involved in any labor dispute,
proceeding, work stoppage or disturbance, other than routine grievances
which are not material; and (iv) the Purchaser has not violated in any
material respect any law or regulation governing employers and the
conditions of employees' employment, including those regulating wages,
hours, discrimination, civil rights and employment of foreign
nationals, in each of (i), (ii) and (iv), the effect of which would,
singly or in the aggregate, have a Material Adverse Effect on the
Purchaser.
(c) There is no threatened (i) claim by any current or former
director, officer or employee of the Purchaser against the Purchaser,
or (ii) labor or union litigation in respect of Purchaser.
(d) Schedule 5.12 lists every material employee benefit plan
in which the Purchaser's employees are participating.
(e) There are no former employees of the Purchaser that have a
right of re-employment by the Purchaser.
SECTION 5.13 TAXES. Except as set forth in the SEC Documents
or as indicated on Schedule 5.13, the Purchaser has filed all Tax
Returns which were required to be filed prior to the date hereof
(after giving effect to all extensions of filing deadlines obtained)
in respect of all Taxes and has paid all Taxes which have become due
pursuant to such Tax Returns or pursuant to any assessment which has
become payable, or, to the extent its liability for any Taxes which
have become due has not been fully discharged, the same have been
properly reflected as a liability on the Purchaser's books and records
and adequate reserves therefor have been established. All such Tax
Returns have been properly prepared and are complete. Except as
indicated in Schedule 5.13, no extension for the filing of any such
Tax Return is currently in effect. No Tax Return or Tax Return
liability of the Purchaser is presently under audit or, to the best
knowledge of the Purchaser, proposed to be audited. Except as
indicated in Schedule 5.13, the Purchaser has not given or been
requested to give waivers of any statute of limitations relating to
the payment of any Taxes. There are no claims pending or, to the best
knowledge of the Purchaser, threatened, against the Purchaser for past
due Taxes. All payments for withholding Taxes, unemployment insurance
and other amounts required to be paid for periods prior to the date
hereof to any Governmental Authority in respect of the Purchaser's
employment obligations, have been paid or shall be paid prior to
Closing, except for payments of which the failure to pay would not,
singly or in the aggregate, have a Material Adverse Effect on the
Purchaser. Such amounts have been duly provided for on the books and
records of the Purchaser. The Purchaser has not received any claim by
a taxing authority in a jurisdiction where the Purchaser does not file
a Tax Return that the Purchaser is or may be subject to Taxes assessed
by such jurisdiction.
20
SECTION 5.14 MATERIAL AGREEMENTS; NO DEFAULTS.
(a) The material contracts attached to the SEC Documents as
exhibits constitute all of the instruments, agreements, indentures,
mortgages, guarantees, notes, commitments, accommodations, letters of
credit or other arrangements or understandings, whether oral or
written, to which the Purchaser is a party or pursuant to which the
Purchaser is obligated (the "CellPoint Material Agreements"). The
CellPoint Material Agreements constitute all of the contracts,
agreements, understandings and arrangements required for the operation
of the Purchaser's business as currently conducted or which have a
material effect thereon.
(b) Each of the CellPoint Material Agreements was entered
into in the ordinary course of the Purchaser's business, is in full
force and effect on the date hereof and is valid, binding and
enforceable in accordance with its terms. Neither the Purchaser nor,
to the Purchaser's best knowledge, any other person or entity is in
breach of, or in default under, any CellPoint Material Agreement, and
no event or action has occurred, is pending or is threatened, which,
after the giving of notice, passage of time or otherwise, would
constitute or result in such a breach or default by the Purchaser or,
to the best knowledge of the Purchaser, any other person or entity
party to a CellPoint Material Agreement. The Purchaser has not
received any notice of default under any CellPoint Material Agreement,
which default has not been cured to the satisfaction of, or duly
waived by, the party claiming such default on or before the date
hereof.
SECTION 5.15 PERMITS AND LICENSES. The Purchaser has all
Authorizations which are reasonably necessary to conduct the Purchaser's
business and to own, lease, use, operate and occupy the Purchaser's assets at
the places and in the manner now conducted and operated, except those the
absence of which would not materially adversely affect the Purchaser's business.
The Purchaser has not received any notice or claim pertaining to the failure to
obtain any material Authorization, the failure of which to obtain would result
in a Material Adverse Effect on the Purchaser, and the Purchaser does not know
of any basis for such claim.
SECTION 5.16 COMPLIANCE WITH LAW.The Purchaser is not
conducting its business or affairs in material violation of any applicable law,
ordinance, rule, regulation, court or administrative order, decree or process,
the effect of which would, singly or in the aggregate, have a Material Adverse
Effect on the Purchaser. The Purchaser has not received any notice of violation
or claimed violation of any law, ordinance, rule, regulation, order, decree,
process or requirement applicable to it.
SECTION 5.17 INTELLECTUAL PROPERTY. The Purchaser owns or
has valid and enforceable rights with respect to all the Intellectual Property
that are necessary to conduct the Purchaser's business as presently conducted.
The conduct of the Purchaser's business as presently conducted does not and will
not infringe or misappropriate any rights held or asserted by any Person. None
of the Intellectual Property is the subject of a pending or threatened action
for opposition, cancellation, declaration of invalidity, unenforceability or
misappropriation or like claim, action or proceeding. The Purchaser holds the
Intellectual Property free and clear of all Liens, except any imposed by
applicable law or regulations and any that are not material. No
21
payments presently are, or will in the future be, required for the continued use
by the Purchaser of the Intellectual Property.
SECTION 5.18 TANGIBLE PERSONAL PROPERTY. The Purchaser has
good and marketable title to all of its tangible personal property and assets
which is used in and, individually or in the aggregate with such other property,
is material to the business of the Purchaser, free and clear of all Liens,
except for any Permitted Tax Lien. All material items of the tangible personal
property and assets owned or leased by the Purchaser are in adequate condition
to conduct the Purchaser's business as now conducted or proposed to be
conducted.
SECTION 5.19 ORDINARY COURSE. Since June 30, 1999, the
Purchaser has conducted its business, maintained its assets and kept its books
of account, records and files, substantially in the same manner as previously
conducted, maintained or kept and solely in the ordinary course. Since June 30,
1999, the Purchaser has not incurred any material liabilities, sold or otherwise
transferred any material assets, waived or cancelled any material rights or
incurred any material commitments except in the ordinary course of business.
SECTION 5.20 NO ADVERSE CHANGES. Except as disclosed in the
SEC Documents, since June 30, 1999, there has not been (a) any material adverse
change in the Purchaser's business, financial condition, or assets or
liabilities, as reflected in the SEC Documents, (b) any material loss sustained
by the Purchaser on account of theft, fire, flood, explosion, accident or other
calamity, whether or not insured, which has materially and adversely interfered,
or may materially and adversely interfere, with the operation of the Company's
business, (c) to the best knowledge of the Purchaser, any actions by a
competitor (other than the Company) to the Purchaser's business which would
adversely affect the financial position or market share of the Purchaser, or (d)
to the best knowledge of the Purchaser, any event, condition or state of facts,
including, without limitation, the enactment, adoption or promulgation of any
law, rule or regulation, the occurrence of which materially and adversely does
or would affect the results of operations or the business or financial condition
of the Purchaser.
SECTION 5.21 INSURANCE. Set forth on Schedule 5.21 is a list
of the Purchaser's material insurance polices. With respect to such insurance
policies
(a) The Purchaser's assets and properties (whether owned or
leased) are adequately insured against fire, damage and loss;
(b) The Purchaser maintains liability insurance of a type
and in amounts customary for companies in its industry;
(c) The Purchaser maintains normal insurance against
operational interruption.
(d) The insurance policies under (a) through (c) above are
validly in effect and such policies will be in full force and effect
for at least one month after the Closing Date.
All insurance premiums due have been paid by the Purchaser.
SECTION 5.22 INVESTMENT REPRESENTATION. The Purchaser is
acquiring the Unwire Securities for its own account for investment and not with
a view to the distribution thereof and
22
the Purchaser will not effect any transfer or disposition of the Unwire
Securities in violation of any applicable securities or blue sky laws or
regulations, including but not limited to, the Securities Act.
SECTION 5.23 BROKERS. Except as set forth in Schedule 5.23,
the Purchaser has not entered into and will not enter into any agreement,
arrangement or understanding with any person or firm that will result in the
obligation of the Purchaser to pay any finder's fee, brokerage commission or
similar payment in connection with the transactions contemplated hereby.
SECTION 5.24 MISCELLANEOUS. The representations and
warranties made by the Purchaser in this Agreement and the statements made by or
on behalf of the Purchaser in any certificate, document, exhibit or schedule
furnished in connection with the transactions contemplated hereby, do not
contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make such representations or warranties or other such
statements not false or misleading.
ARTICLE VI.
CONDITIONS TO THE OBLIGATIONS OF THE PURCHASER
The obligations of the Purchaser under this Agreement are
subject to the satisfaction, on or prior to the Closing Date, of the following
conditions, any of which may be waived in whole or in part by the Purchaser, in
its sole discretion:
SECTION 6.01 DUE PERFORMANCE; ACCURACY OF REPRESENTATIONS
AND WARRANTIES.
(a) The Sellers shall have fully performed and complied in
all material respects with all agreements and conditions required by
this Agreement to be performed or complied with by them on or prior to
the Closing Date;
(b) All representations and warranties of the Sellers set
forth in this Agreement shall be true and correct in all material
respects, on and as of the Closing Date, as though made on and as of
the Closing Date; and
(c) Each Seller shall deliver a certificate certifying that
the statements in paragraphs (a) and (b) are true and correct on and
as of the Closing Date.
SECTION 6.02 REGISTRATION OF UNWIRE SHARES AND CONVERSION
AND REGISTRATION OF UNWIRE CONVERTIBLE SECURITIES.
(a) 805,900 shares in the Company, which have been
subscribed for, but which, on the date hereof, have not been
distributed or recorded in the Company's share register, shall have
been registered with the Swedish Patent and Registration Office, or if
such shares have not been so registered as of the Closing Date, the
Sellers shall deliver interim certificates evidencing such shares; and
23
(b) all of the Unwire Convertible Securities shall have
been registered with the Swedish Patent and Registration Office and
(with the exception of the Unwire Subscription Rights) converted into
shares in the Company, and such shares shall have been registered with
the Swedish Patent and Registration Office, or if such Unwire
Convertible Securities have not been converted or such shares have not
been so registered as of the Closing Date, the Sellers shall deliver
to the Purchaser interim certificates evidencing such shares.
SECTION 6.03 TRANSFER OF UNWIRE SECURITIES. The Sellers
shall deliver to the Purchaser Sub (i) share certificates representing the
Unwire Shares (or to the extent such shares shall not have been registered with
the Swedish Patent and Registration Office, interim certificates evidencing such
Unwire Shares), and (ii) all subscription rights certificates, debt instruments
and certificates evidencing the Unwire Convertible Securities, and to the extent
the Unwire Convertible Securities have been converted into shares and such
shares have been registered with the Swedish Patent and Registration Office,
share certificates representing such shares, or, if such shares have not been
registered, interim certificates evidencing such shares, in each case duly
endorsed in blank or accompanied by duly executed instruments of transfer in
blank, if applicable, together with all necessary documentary or stock transfer
stamps affixed and accompanied by such other assignments, certificates of
authority, consents to transfer instruments and evidence of title to the Unwire
Securities as may be reasonably requested by counsel to the Purchaser in order
that all right, title and interest in and to such securities pass to the
Purchaser from the Sellers free and clear of all Liens. In addition, the Sellers
shall deliver to the Purchaser the share register of the Company setting forth
that the Purchaser is the registered owner of the Unwire Shares and the shares
in the Company to be issued and registered because of the conversion into shares
of the Unwire Convertible Securities (other than the Unwire Subscription
Rights). Further, the Sellers shall deliver to the Purchaser such statement from
an accountant as is referred to in Chapter 5, Section 14, second paragraph of
the Swedish Companies Act (1975:1385).
SECTION 6.04 TRANSACTION DOCUMENTS.
(a) The other Transaction Documents to which each Seller is
a party shall have been executed and delivered to the Purchaser.
(b) The Escrow Shares shall have been deposited with the
Escrow Agent and the Escrow Agent shall have acknowledged receipt
thereof.
SECTION 6.05 CORPORATE DOCUMENTS. The Sellers shall have
delivered or caused to be delivered to the Purchaser:
(a) a copy of the Articles of Association of the Company,
as amended through the Closing Date, certified by the president of the
Company;
(b) certificates of the Secretary or Assistant Secretary,
or such other authorized officer, of each Seller (other than a Seller
who is an individual) including (i) duly enacted resolutions of such
Seller's board of directors or other necessary corporate actions
approving this Agreement and the transactions contemplated hereby and
authorizing
24
officers of such Seller to execute and deliver instruments required to
be delivered hereunder as a condition precedent to the Closing, (ii)
the Articles of Association and By-Laws of such Seller, and (iii)
specimen signatures of the officers of such Seller authorized to sign
such instruments if necessary to determine whether the Agreement has
been properly executed and authorized by such Seller;
SECTION 6.06 NO CLAIMS. No claim, action, suit,
investigation or proceeding shall be pending or threatened against any of the
parties hereto or any of their respective Affiliates which, if adversely
determined, would (a) prevent or hinder consummation of the transactions
contemplated by this Agreement, the Transaction Documents or any of the
agreements attached hereto as Exhibits, (b) result in the payment by the Company
or the Purchaser of substantial damages as a result of the transactions
contemplated hereby, (c) materially and adversely affect the Company's business,
or (d) materially affect the Purchaser's rights with respect to the Unwire
Securities subsequent to the Closing Date. No party to this Agreement shall have
received written notice from any court or other Governmental Authority of its
intention to institute any action or proceeding to restrain, enjoin, nullify or
render ineffective this Agreement or any of the agreements attached hereto as
Exhibits or the transactions contemplated hereby or thereby, if consummated.
SECTION 6.07 AUTHORIZATIONS. The Purchaser shall have
received all Authorizations of all relevant Governmental Authorities required in
connection with the consummation of the transactions contemplated hereby or to
preserve the Company's and the Subsidiary's business and the Company's and the
Subsidiary's rights under any material agreements, without the imposition of any
materially burdensome expense, conditions or restrictions, and all of which
shall be in full force and effect on the Closing Date.
SECTION 6.08 RESIGNATION OF DIRECTORS. Concurrently with the
Closing, the Sellers shall, to the extent required by the Purchaser, deliver to
the Purchaser, effective written resignation letters of the directors and deputy
directors, if any, and the President of the Company and the Subsidiary,
respectively, containing in each case a confirmation that such directors, deputy
directors and President have no claim of whatever nature against the Company or
the Subsidiary, as the case may be.
SECTION 6.09 SATISFACTION OF COUNSEL. All actions,
proceedings, instruments, documents and other relevant legal matters in
connection with the transactions contemplated by this Agreement or any of the
agreements attached hereto as Exhibits, shall be reasonably satisfactory in all
respects to counsel for the Purchaser, including, without limitation, that this
Agreement has been duly authorized and executed by each Seller.
ARTICLE VII.
CONDITIONS TO OBLIGATIONS OF THE SELLERS
The obligations of the Sellers under this Agreement are
subject to the satisfaction, on or prior to the Closing Date, of the following
conditions, any of which may be waived in whole or in part by all of the Sellers
in their sole discretion:
25
SECTION 7.01 DUE PERFORMANCE; ACCURACY OF REPRESENTATIONS
AND WARRANTIES.
(a) The Purchaser shall have fully performed and complied
in all material respects with all of their respective agreements and
conditions required by this Agreement to be performed or complied with
by it on or prior to the Closing Date.
(b) All representations and warranties of the Purchaser set
forth in this Agreement shall be true and correct in all material
respects, on and as of the Closing Date as though made on and as of
the Closing Date.
(c) The Sellers shall have received a certificate
certifying that the statements in paragraphs (a) and (b) above are
correct, executed by the officers of the Purchaser.
SECTION 7.02 CONSIDERATION. The Purchaser shall deliver to
the Sellers the CellPoint Shares registered in such names and in such amounts as
are set forth on Schedule I attached hereto, except to the extent that a portion
of the CellPoint Shares shall be delivered to the Escrow Agent pursuant to
Section 2.03 hereof and the Escrow Agreement.
SECTION 7.03 TRANSACTION DOCUMENTS.
(a) The other Transaction Documents shall have been
executed and delivered to the Sellers.
(b) The Escrow Shares shall have been deposited with the
Escrow Agent and the Escrow Agent shall have acknowledged receipt
thereof.
SECTION 7.04 CORPORATE DOCUMENTS. The Purchaser shall have
delivered or caused to be delivered to the Sellers:
(a) a copy of the Purchaser's Articles of Incorporation, as
amended through the Closing Date, and certified by the Secretary of
the Purchaser;
(b) a copy of the Articles of Association of the Purchaser
Sub, as amended through the Closing Date, and certified by the
secretary of the Purchaser Sub;
(c) certificates of the Secretary or Assistant Secretary,
or such other authorized officer, of CellPoint including (i) duly
enacted resolutions of CellPoint's board of directors approving this
Agreement and the Transaction Documents and the transactions
contemplated hereby and thereby, and authorizing the officers of
CellPoint to execute and deliver instruments required to be delivered
hereunder and thereunder as a condition precedent to the Closing, and
(ii) specimen signatures of the officers of CellPoint authorized to
sign such instruments; and
(d) certificates of the Secretary or Assistant Secretary,
or such other authorized officer, of the Purchaser Sub including (i)
duly enacted resolutions of the Purchaser Sub's board of directors
approving this Agreement and the transactions contemplated hereby and
authorizing the officers of the Purchaser Sub to execute and deliver
instruments required to be delivered hereunder as a condition
precedent to the Closing, and (ii)
26
specimen signatures of the officers of the Purchaser Sub authorized to
sign such instruments
SECTION 7.05 NO CLAIMS. No claim, action, suit,
investigation or proceeding shall be pending or threatened against any of the
parties hereto or any of their respective Affiliates which, if adversely
determined, would (a) prevent or hinder consummation of the transactions
contemplated by this Agreement, the other Transaction Documents or any of the
agreements attached hereto as Exhibits, (b) result in the payment by the Sellers
of substantial damages (other than Taxes) as a result of the transactions
contemplated hereby, or (c) would otherwise have a Material Adverse Effect on
the Purchaser. No party to this Agreement shall have received written notice
from any court or other Governmental Authority of its intention to institute any
action or proceeding to restrain, enjoin, nullify or render ineffective this
Agreement, the other Transaction Documents or any of the agreements attached
hereto as Exhibits or the transactions contemplated hereby or thereby, if
consummated.
SECTION 7.06 CONSENTS AND GOVERNMENTAL APPROVALS. The
Sellers shall have received all Authorizations of all relevant Governmental
Authorities, required in connection with the consummation of the transactions
contemplated hereby and by the other Transaction Documents, all of which shall
be in full force and effect on the Closing Date.
SECTION 7.07 OPINION OF COUNSEL. The Sellers shall have
received an opinion of Salans Xxxxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxx, counsel for
the Purchaser, with respect to the due authorization, issuance and validity of
the CellPoint Shares.
SECTION 7.08 SATISFACTION OF COUNSEL. All actions,
proceedings, instruments, documents and other relevant legal matters in
connection with the transactions contemplated by this Agreement or any of the
agreements attached hereto as Exhibits, shall be reasonably satisfactory in all
respects to counsel for the Sellers.
ARTICLE VIII.
CONDUCT OF BUSINESS OF THE COMPANY PRIOR TO THE CLOSING DATE
SECTION 8.01 CONDUCT OF BUSINESS.
(a) Between the date of this Agreement and the Closing
Date, the Sellers shall use their best efforts to cause the Company to
preserve substantially intact the Company's business organization,
keep available the services of the Company's present officers and
employees involved in the Company's business and preserve the
Company's present relationships with persons having significant
business relations therewith and shall conduct the Company's business
only in the ordinary course, except as otherwise contemplated hereby
or disclosed in the Schedules attached to this Agreement. Without
limiting the generality of the foregoing, the Sellers shall not
without the prior written consent of the Purchaser, except as
specifically required by this Agreement, permit the Company or the
Subsidiary to (i) issue or commit to issue any securities or interests
convertible into or exchangeable for securities of the Company or the
Subsidiary
27
(including convertible debt instruments and debt instruments with
subscription rights for new shares), except as contemplated by Section
6.02 hereof, (ii) grant or commit to grant any options, warrants or
other rights to subscribe for or purchase or otherwise acquire any
securities of the Company or the Subsidiary, (iii) declare, set aside,
or pay any dividend or make any distribution with respect to shares in
the Company, (iv) directly or indirectly redeem, purchase or otherwise
acquire or commit to acquire any capital stock or other ownership
interest of any person, (v) effect a split or reclassification of its
membership interests, (vi) amend its Articles of Association or other
governing instrument, (vii) borrow or agree to borrow any funds,
except in the ordinary course of business or repay any Indebtedness
except scheduled installments which become due in the ordinary course
of business, (viii) waive or commit to waive any rights of substantial
value or grant any discount or allowance with respect to any of its
receivables or agree to make any allowances to, any customer, except
in accordance with the Company's standard allowance policies, (ix)
sell, exchange, or otherwise dispose of, or cause or suffer the sale,
exchange or other disposition of any significant part of its assets,
except in the ordinary course of business, (x) mortgage, pledge or
subject (or suffer to be subjected) any of its assets to any Lien,
other than immaterial Liens which are contested by the Company, (xi)
create any receivable (including, without limitation, accounts
receivable, notes, advances and receivables due from Affiliates)
except in BONA FIDE transactions in the ordinary course of business,
(xii) acquire (by purchase of assets or stock, merger, consolidation
or otherwise) or sell, transfer or otherwise dispose of, any assets in
excess of an aggregate amount of US$50,000, or cancel any debts or
claims in excess of such aggregate amount, except in the ordinary
course of business, (xiii) sell, assign, license or transfer any
right, title or interest in or to any Intellectual Property, (xiv)
grant any general increase in wage or salary rates or in benefits for
its employees, or grant any increase in salary or in benefits to any
employee employed by it and earning more than US$50,000 per year,
except pursuant to its established policies and practices, or adopt or
modify (except to the extent required by law) any bonus, pension,
profit-sharing or other compensation plan, or grant any bonus to any
person, (xv) make any material change in the accounting methods or
practices currently employed by the Company, (xvi) manage the
Company's working capital other than in the ordinary course or (xvii)
modify the Company's insurance coverage.
(b) Between the date of this Agreement and the Closing
Date, the Sellers shall cause the Company to pay on a timely basis its
accounts payable, trade obligations and other liabilities as such
obligations become due without extension or waiver.
SECTION 8.02 PRESERVE ACCURACY OF REPRESENTATIONS AND
WARRANTIES.
(a) Between the date of this Agreement and the Closing
Date, the Sellers shall refrain from taking, and shall cause the
Company or the Subsidiary to refrain from taking, without the prior
written consent of the Purchaser, any action which would render any of
the representations or warranties made by the Sellers in this
Agreement and the other Transaction Documents materially inaccurate as
of the Closing Date. The Sellers shall notify the Purchaser promptly
of the occurrence of any matter, event or change in circumstances
after the date hereof that would have been required to be disclosed in
the
28
Schedules to this Agreement if it had occurred prior to the date
hereof, but such notification shall not affect any of the Purchaser's
rights under this Agreement.
(b) Between the date of this Agreement and the Closing
Date, the Purchaser shall refrain from taking, without the prior
written consent of the Sellers, any action which would render any of
the representations or warranties made by the Purchaser in this
Agreement and the other Transaction Documents materially inaccurate as
of the Closing Date. The Purchaser shall notify the Sellers promptly
of the occurrence of any matter, event or change in circumstances
after the date hereof that would have been required to be disclosed in
the Schedules to this Agreement if it had occurred prior to the date
hereof, but such notification shall not affect any of the Sellers'
rights under this Agreement.
SECTION 8.03 CONSENTS AND WAIVERS. The parties hereto shall
cooperate with each other and use best efforts to obtain all consents and
waivers to the transactions contemplated hereby and by the other Transaction
Documents required under all agreements, mortgages, indentures, contracts,
licenses, franchises, permits, leases or other instruments, the withholding of
which consents or waivers would have a Material Adverse Effect on the Company or
the Purchaser, as the case may be.
SECTION 8.04 NO OTHER NEGOTIATIONS. Between the date of this
Agreement and the Closing Date or the earlier termination of this Agreement, the
Sellers shall not, and shall not permit any of the officers, directors or
representatives of the Company to, directly or indirectly, encourage, solicit,
initiate, conduct or continue discussions with, or provide information to, any
entity or Person other than the Purchaser and its representatives concerning the
sale of the Unwire Securities, the Company's business or assets or any portion
thereof. This Section 8.04 shall not prevent the Company from taking the actions
set forth in (and subject to the provisions of) Section 8.01.
ARTICLE IX.
ADDITIONAL AGREEMENTS OF THE SELLERS
SECTION 9.01 NON-COMPETITION. Each of the Sellers agrees
that, for a period of one (1) year following the Closing, it shall not commence
any business or acquire an interest in any business which is competitive with
the business of the Company as conducted for the two (2) years preceding the
Closing; PROVIDED, HOWEVER, that, the foregoing restriction shall not prohibit a
Seller from (a) investing in securities of any entity, solely for investment
purposes and without participating in the business thereof, if (i) such
securities are traded on any national securities exchange or the National
Association of Securities Dealers, Inc. Automated Quotation System, (ii) such
Seller is not a controlling person of, or a member of a group which controls,
such entity and (iii) such Seller does not, directly or indirectly, own 5% or
more of any class of securities of such entity, and (b) investing in venture
capital funds that have interests in a business that is competitive with the
Company, solely for investment purposes so long as such Seller is not a
controlling person or manager of, or a member of a group which controls or
manages, such entity; provided further however that, the foregoing restriction
shall not prohibit any Seller from
29
investing in the area of mobile telephony in circumstances where the principal
business of the company in which such investment is made is not in the global
positioning business.
SECTION 9.02 RESTRICTIONS ON TRANSFER. The Sellers shall not
sell, transfer, pledge, hypothecate or otherwise dispose of the CellPoint
Shares, except:
(a) in connection with the distribution of the CellPoint
Shares in accordance with the Escrow Agreement and Article X hereof;
or
(b) pursuant to an effective registration statement on the
appropriate form filed by the Purchaser under the Securities Act, and
any applicable state securities laws covering the proposed transfer,
or if the Purchaser has been furnished with an opinion of United
States counsel satisfactory to the Purchaser, to the effect that such
transfer is exempt from the registration provisions of the Securities
Act and any applicable state securities laws.
SECTION 9.03 REGISTRATION OF UNWIRE SECURITIES; WAIVER OF
CLAIMS REGARDING UNWIRE SECURITIES.
(a) The Sellers covenant and agree that they will file with
the Swedish Patent and Registration Office prior to the Closing all
possible and necessary applications for registration of the Unwire
Shares and the Unwire Convertible Securities which have not previously
been so registered.
(b) The Sellers have disclosed to the Purchaser that the
issue of 805,900 shares in the Company as well as the issue of the
Unwire Convertible Securities and the conversion thereof to shares in
the Company have not yet been registered with the Swedish Patent and
Registration Office. Each Seller hereby covenants and agrees that it
will not challenge or raise any objections to such registrations and
conversion to shares in the Company and that it will cause the Company
to pursue such registration as promptly as practicable.
(c) Each Seller hereby transfers to the Purchaser, and such
Seller hereby otherwise waives, any claim it now has or may in the
future have against the Company for a repayment of its capital
contributions to the Company and any other claims it may have with
respect to:
(i) the subscription and payment for unregistered
Unwire Shares to the extent that any such claim exists or
may hereafter arise as a result of the failure of such
Unwire Shares to be registered with the Swedish Patent and
Registration Office for any reason whatsoever; and
(ii) the subscription and payment for Unwire
Convertible Securities to the extent that such claim exists
or may hereafter arise as a result of the failure of such
Unwire Convertible Securities to be registered with the
Swedish Patent and Registration Office or converted into
shares in the Company, and if so converted or exchanged, the
failure of such shares in the Company to be registered with
the Swedish Patent and Registration Office for any reason
whatsoever.
30
The agreements of the Sellers contained in this Section 9.03 shall survive the
Closing until such time as all of the Unwire Shares have been registered with
the Swedish Patent and Registration Office and all of the Unwire Convertible
Securities have been converted into shares in the Company and such shares have
been registered with the Swedish Patent and Registration Office.
ARTICLE X.
INDEMNIFICATION
SECTION 10.01 INDEMNIFICATION OBLIGATIONS OF THE PARTIES.
(a) Subject to Section 10.05, each of the Sellers, severally and
not jointly, agrees to defend, indemnify and hold harmless the
Purchaser (which for the purposes of this Section 10.01(a) shall
include the Purchaser's respective affiliates, directors, officers,
employees, agents, advisors and representatives) from and against, and
to reimburse the Purchaser with respect to, all liabilities, losses,
costs and expenses, including, without limitation, reasonable
attorneys' fees and disbursements ("Losses"), asserted against or
incurred by the Purchaser by reason of, arising out of, or in
connection with:
(i) any breach of any representation, warranty, covenant or
agreement contained in this Agreement made by the Sellers or in
any document or certificate delivered by the Sellers to the
Purchaser pursuant to the provisions of this Agreement;
(ii) any claim, demand, action, suit, proceeding or
investigation involving the Company arising at any time and not
disclosed in the Schedules to this Agreement relating to a state
of facts, action or omission to act arising on or prior to the
Closing Date or the allegation by any third party of the
existence of any state of facts which, if existing, would
constitute a breach of any representation or warranty referred to
in clause (i) of this Section 10.01(a);
(iii) the failure of any Unwire Shares, the Unwire
Convertible Securities or shares in the Company issuable upon
exercise or conversion of the Unwire Convertible Securities to be
registered with the Swedish Patent and Registration Office;
(iv) any Taxes incurred by the Company or the Sellers which
arise as a result of or in connection with the transactions
contemplated hereby (including, without limitation, any federal,
state, local or foreign documentary, transfer or other Taxes
which are required to be paid in connection with the sale,
transfer, exchange, conveyance, assignment and delivery of the
Unwire Securities to the Purchaser hereunder); and
(v) any damages or claims by or on behalf of MobilSafe
pursuant to the agreement between the Company and MobilSafe,
which damages or claims
31
become payable as a result of a change in control of the Company
(as such term is used in such MobilSafe agreement).
(b) Subject to Section 10.05, the Purchaser agrees to defend,
indemnify and hold harmless the Sellers (which for the purposes of
this Section 10.01(b) shall include the Sellers' respective
affiliates, directors, officers, employees, agents, advisors and
representatives) from and against, and to reimburse the Sellers with
respect to, all Losses, asserted against or incurred by the Sellers by
reason of, arising out of, or in connection with:
(i) any breach of any representation, warranty, covenant or
agreement contained in this Agreement made by the Purchaser or in
any document or certificate delivered by the Purchaser to the
Sellers pursuant to the provisions of this Agreement; and
(ii) any claim, demand, action, suit, proceeding or
investigation involving the Purchaser arising at any time and not
disclosed in the Schedules to this Agreement relating to a state
of facts, action or omission to act arising on or prior to the
Closing Date or the allegation by any third party of the
existence of any state of facts which, if existing, would
constitute a breach of any representation or warranty referred to
in clause (i) of this Section 10.01(b)
(c) Notwithstanding anything to the contrary in this Article X,
no indemnified party shall be entitled to recover any payments or
contributions pursuant to this Section 10.01 unless and until the
aggregate amount of the Losses to the Purchaser, on the one hand, or
the Sellers collectively, on the other hand, from all claims finally
determined to arise under this Article X, exceeds U.S.$60,000 (the
"DEDUCTIBLE"), in which event the entire Loss will be payable by the
indemnifying party in accordance with the terms hereof.
Furthermore, except as hereinafter provided, the maximum payment or
contribution recoverable by an indemnified party pursuant to this
Article X will not, in the aggregate, exceed the aggregate Agreed
Value of 107,500 CellPoint Shares. Notwithstanding the foregoing, (i)
no Deductible shall apply to any Losses arising out of the
circumstances described in Sections 10.01(a)(iii) or 10.01(a)(v)
hereof; and (ii) any Losses arising out of the circumstances described
in Section 10.01(a)(v) shall be subject to a maximum indemnification
by the Sellers of SEK3 million.
(d) In addition, Unium AB, Kaj Gellberg, Xxxxxx Xxxxxxxxx, and
Lykke Xxxxxx, severally and not jointly, agree to defend, indemnify
and hold harmless the Purchaser (which for the purposes of this
Section 10.01(d) shall include the Purchaser's respective affiliates,
directors, officers, employees, agents, advisors and representatives)
from and against, and to reimburse the Purchaser with respect to, any
Losses arising out of claims by the former shareholders of SGS Systems
AB, as more fully described in Schedules 3.05 and 4.05 hereto. The
indemnification obligations of Unium AB, Kaj Gellberg, Xxxxxx
Xxxxxxxxx, and Lykke Xxxxxx pursuant to this paragraph (d) shall not
be subject to any Deductible or any limit on the maximum
indemnification set forth in Section 10.01(c).
SECTION 10.02 INDEMNIFICATION PROCEDURE.
32
(a) In the case of a claim pursuant to Section 10.01, the
indemnified party shall give notice to the indemnifying party and the
Escrow Agent as promptly as practicable of (i) the allegation by it of
any breach or failure referred to in Section 10.01(a)(i) or (b)(i), as
applicable, setting forth to the extent known the amount of
indemnification claimed, (ii) the allegation by any third party of the
existence of any matter or state of facts referred to in Section
10.01(a)(ii) or (b)(ii), as applicable, or (iii) the incurrence of any
Losses referred to in Section 10.01(a)(iii) or any Taxes referred to
in Section 10.01(a)(iv); PROVIDED that the rights of the indemnified
party shall not be affected by any delay in providing such notice
except to the extent that the indemnifying party is actually
prejudiced thereby.
(b) Upon receipt of notice pursuant to Section 10.02(a), the
indemnifying party shall have 10 days in which to dispute the claim
asserted by sending written notice thereof to the indemnified party (a
"Dispute Notice") and to the Escrow Agent. The indemnifying party
shall not be entitled to dispute a claim based on a final judgment or
order of a court of competent jurisdiction. If no Dispute Notice is
received prior to the expiration of the 10-day period, the indemnified
party shall be entitled to receive full payment of the amount of the
claim. If a Dispute Notice is received prior to the expiration of the
10-day period, the parties shall negotiate in good faith to resolve
the dispute. If the parties are unable to resolve the dispute within
30 days of the receipt of the Dispute Notice, the dispute shall be
submitted to arbitration. Such arbitration shall be conducted in
accordance with Section 11.07.
(c) All payments and contributions to be made by an indemnifying
party to an indemnified party pursuant to this Article X shall be made
by delivery of shares of CellPoint Common Stock, equal to the
determined United Stated Dollar amount of the applicable Loss divided
by the Agreed Value.
(d) All notices to the Escrow Agent shall be sent as set forth
in the Escrow Agreement.
(e) The Swedish Sale of Goods Act (1990:931) shall not apply to
this Agreement and the other Transaction Documents.
SECTION 10.03 APPLICATION OF ESCROW SHARES. The Purchaser and the
Sellers agree that:
(a) the Escrow Shares shall be deposited with the Escrow Agent
as required by Section 2.03(b);
(b) subject to Section 10.01(c), for claims under this Article X
asserted by either party during the first twelve months following the
Closing Date, the Purchaser shall have recourse first to the Seller
Escrow Shares and the Sellers shall have recourse first to the
Purchaser Escrow Shares to satisfy any payments or contributions to be
paid by the indemnifying party pursuant to this Article X;
(c) subject to Section 10.01(c), after the respective Escrow
Shares have been used to satisfy any payment or contribution
obligations by the indemnifying party pursuant to
33
this Article X, the indemnified party shall have recourse to all
available remedies under this Agreement, at law or in equity to
satisfy payments or contributions to be paid by the indemnifying party
under this Article X; and
(d) if no claims have been asserted by the Purchaser prior to
the end of twelve months from the Closing Date, then the Seller Escrow
Shares shall be released by the Escrow Agent to the Seller, and if no
claims have been asserted by the Seller prior to the end of twelve
months from the Closing date, then the Purchaser Escrow Shares shall
be returned to the Purchaser for cancellation.
SECTION 10.04 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties and statements made by the Sellers and the
Purchaser in this Agreement or in any document or certificate delivered pursuant
hereto shall survive the Closing Date and for a period of one year from the
Closing Date, and in each case shall be unaffected by any investigation made by
or on behalf of any party hereto, by knowledge obtained as a result thereof or
otherwise or by any notice of breach of, or failure to perform under, this
Agreement which is not effectively waived in accordance herewith; PROVIDED,
HOWEVER, that to the extent that Dispute Notice with respect to a breach of a
representation or warranty has been given prior to the end of the one-year
period, such representation or warranty shall survive to the extent of the
Dispute Notice only, until the matters set forth in the Dispute Notice are
resolved; and PROVIDED FURTHER, that the representations and warranties
contained in (a) Sections 3.01, 3.02, 3.03 and 3.04 by the Sellers in respect of
themselves, (b) Sections 4.01, 4.02, 4.03 and 4.04 by the Sellers in respect of
the Company, and (c) Sections 5.01, 5.02, 5.0.3, 5.04, 5.05, 5.06, 5.07 and 5.08
by the Purchaser in respect of the Purchaser, in each case will survive
indefinitely; and PROVIDED FURTHER, that the representations and warranties
contained in (x) Section 4.09 by the Sellers in respect of the Company, and (y)
Section 5.13 by the Purchaser in respect of the Purchaser will survive until
such time as the applicable statute of limitations for such matters expires.
Notwithstanding the foregoing, to the extent that any breach of a representation
or warranty contained in this Agreement would reasonably be expected to
discovered in an audit of the financial statements of CellPoint containing
combined operations of CellPoint and the Company for the fiscal year in which
the Closing occurs, such representations and warranties shall survive until the
date CellPoint's independent certified public accountants issue their final
report and opinion on such audit.
ARTICLE XI.
MISCELLANEOUS
SECTION 11.01 EXPENSES. Each of the parties hereto shall bear and
pay all costs, expenses and fees incurred by it on its behalf incident to the
preparation, execution and delivery of this Agreement, the other Transaction
Documents, any agreements contemplated hereby, including those attached as
Exhibits and Schedules hereto, and the performance of such party's obligations
hereunder or thereunder, whether or not the transactions contemplated by this
Agreement and the other Transaction Documents are consummated, including,
without limitation, any broker's or finder's fees, costs incident to the
transfer of any securities and the
34
fees and disbursements of attorneys, accountants and consultants (including
investment banking advisors) employed by such party,
SECTION 11.02 FURTHER ASSURANCES. From time to time after the
date of this Agreement, each of the parties hereto, at the request of the other,
and without further consideration, shall execute and deliver such further
documents or instruments and shall take such other actions as the requesting
party may reasonably request in order to effect complete consummation of the
transactions contemplated by this Agreement.
SECTION 11.03 NOTICES. All communications, notices, requests,
consents or demands given or required under this Agreement shall be in writing
and shall be deemed to have been duly given when delivered to, sent by facsimile
with acknowledged receipt or recognized courier service with acknowledged
receipt, or five (5) days after being mailed by prepaid registered or certified
mail addressed to, the party for whom intended, as follows, or to such other
address as may be furnished by such party by notice in the manner provided
herein:
(a) If to the Sellers:
To their respective addresses set forth
on Schedule I attached hereto:
with a copy to:
Xxxxxxxx Chance Limited Liability Partnership
000 Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Attention: Xxxx Xxxxxxxx, Esq.
Fax: 00 000 000-0000
(b) If to CellPoint or the Purchaser Sub:
CellPoint Inc.
Xxxxxxxxxxxxxxx 0
Xxxxxxxxxx X 000 00
Xxxxxx
Fax: 000-000-00000
35
with a copy to:
Salans Xxxxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxx
Attention: Xxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000 or (000) 000-0000
SECTION 11.04 ENTIRE AGREEMENT. This Agreement, together with the
Schedules and Exhibits hereto, the other Transaction Documents and the
instruments and agreements to be executed pursuant to this Agreement, sets forth
the entire understanding of the parties hereto with respect to its subject
matter, merges and supersedes all prior and contemporaneous understandings with
respect to its subject matter and may not be waived or modified, in whole or in
part, except by a writing signed by each of the parties hereto. No waiver of any
provision of this Agreement in any instance shall be deemed to be a waiver of
the same or any other provision in any other instance. Failure of any party to
enforce any provision of this Agreement shall not be construed as a waiver of
its rights under such provision.
SECTION 11.05 SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon, enforceable against and inure to the benefit of, the parties
hereto and their respective heirs, administrators, executors, personal
representatives, successors and assigns, and nothing herein is intended to
confer any right, remedy or benefit upon any other person. This Agreement may
not be assigned by any party hereto except with the prior written consent of all
the other parties, which consent shall not be unreasonably withheld.
SECTION 11.06 GOVERNING LAW. This Agreement shall in all respects
be governed by and construed in accordance with the laws of Sweden; PROVIDED,
HOWEVER, that (a) any issues under this Agreement related to the CellPoint
Shares which is required by the Nevada Revised Statutes to be governed by the
laws of the State of Nevada shall be so governed by and construed in accordance
with the laws of the State of Nevada, and (b) any issues under this Agreement
relating to the offer, registration, sale or resale of the CellPoint Shares
shall also be governed by and construed in accordance with the United States
Federal and state securities laws.
SECTION 11.07 ARBITRATION; SPECIFIC PERFOMANCE.
(a) Any dispute, controversy or claim arising out of or in
connection with this Agreement or the breach, termination or
invalidity hereof, shall be exclusively and finally settled by
arbitration in accordance with the Rules of the Arbitration Institute
of the Stockholm Chamber of Commerce. The arbitral tribunal shall be
composed of three arbitrators. The place of arbitration shall be
Stockholm, Sweden. The arbitration procedures shall be held in the
English language.
(b) Subject to the provisions of Section 11.07(a), each party to
this Agreement agrees the remedy at law, including monetary damages,
for breach of such party's covenants, agreements or obligations
hereunder, may be inadequate compensation for any
36
loss, and that any defense in any action for specific performance that
a remedy at law would be adequate is hereby waived. The rights and
remedies herein expressly provided are cumulative and not exclusive of
any other rights or remedies which any party would otherwise have
pursuant to any Transaction Document, at law, in equity, by statute or
otherwise.
SECTION 11.08 COUNTERPARTS. This Agreement may be executed in
multiple counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
SECTION 11.09 CONSTRUCTION. Headings contained in this Agreement
are for convenience only and shall not be used in the interpretation of this
Agreement. References herein to Articles, Sections, Schedules and Exhibits are
to the articles, sections, schedules and exhibits, respectively, of this
Agreement. The Schedules and all Exhibits to this Agreement are hereby
incorporated herein by reference and made a part of this Agreement. As used
herein, the singular includes the plural, and the masculine, feminine and neuter
gender each includes the others where the context so indicates. Each of the
parties hereto has been represented by counsel and the language set forth herein
reflects the intentions of the parties hereto. Accordingly, none of the language
shall be construed adversely to a party because such party drafted the language.
SECTION 11.10 SEVERABILITY. If any provision of this Agreement is
held to be invalid or unenforceable by a court of competent jurisdiction, this
Agreement shall be interpreted and enforceable as if such provision were severed
or limited, but only to the extent necessary to render such provision and this
Agreement enforceable.
SECTION 11.11 PUBLIC ANNOUNCEMENT. The Sellers, the Company and
the Purchaser agree to cooperate in making any public announcement of the
transactions contemplated by this Agreement and that any such public
announcement shall require the prior approval of both the Purchaser and a
majority of the Sellers, subject to the Purchaser's obligations under the United
States federal securities laws to make such announcements and filings at the
times and in the manner deemed by the Purchaser to be appropriate for its
compliance with such securities laws.
SECTION 11.12 ASSIGNMENT. The Purchaser may, by written notice to
the Sellers prior to the Closing, assign its rights to purchase the Unwire
Securities to a wholly-owned subsidiary or subsidiaries of the Purchaser for
purposes of its strategic, financial and tax planning, but no such assignment
shall relieve the Purchaser of its obligations hereunder, including without
limitation, the obligations to issue the CellPoint Shares, the representations
and warranties of the Purchaser contained herein and the indemnification
obligations of the Purchaser pursuant to Article X hereof.
SECTION 11.13 NO THIRD PARTY BENEFICIARIES. Except as
specifically set forth or referred to herein, nothing herein is intended or
shall be construed to confer upon any person or entity other than the parties
hereto and their successors or assigns, any rights or remedies under or by
reason of this Agreement.
37
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of the date first set forth above.
THE PURCHASER:
Address: CELLPOINT INC.
Sofielundsvagen 0
X 000 00 Sollentuna
Sweden By /s/ Xxxxx Xxxxxxxxxx
--------------------
Xxxxx Xxxxxxxxxx, President
Address: CELLPOINT SWEDISH HOLDINGS LTD.
Sofielundsvagen 0
X 000 00 Sollentuna
Sweden By /s/ Xxxxx Xxxxxxxxxx
--------------------
Xxxxx Xxxxxxxxxx, President
THE SELLERS:
Address: PROCURITAS INVESTMENT PARTNERS
(PIP) BV
Skeppsbron20
000 00 Xxxxxxxxx
Xxxxxx By /s/ Mats Xxxxxxx
--------------------
Name: Mats Xxxxxxx
Address: NORRA BROFASTET I SUNDSVALL AB
Xxxxxxxxxx 00
0000 00 Xxxxxxxxx
Xxxxxx By /s/ Per Borjesson
-------------------
Name: Per Borjesson
Address: ERASMUS MANAGEMENT AB
Xxxxxxxxxx 0
000 00 Xxxxxxxxxxx
Xxxxxx By /s/ Xxxxxx Xxxxxxx
-------------------
Name: Xxxxxx Xxxxxxx
Address: FORETAGSPARTNER IBP INVEST AB
Xxxxxxxxxx 00
000 00 Xxxxxxxxx
Xxxxxx By /s/ Per Borjesson
-------------------
Name: Per Borjesson
38
Address: XXXX XXXXXXXX XX
Xxxxx Xxxxxxxxxx 00
000 00 Xxxxxxxx
Xxxxxx By /s/ Per Xxxxxxxx
-----------------
Name: Per Xxxxxxxx
Address: LEDSTIERNAN INVESTMENT LTD.
c/o CBS, Xxx Xx Xxxxxxx 0
X.X. 000, XX-0000 Xxxxxxxx
Xxxxxxxxxxx
By /s/ Per Xxxxxxxx
-----------------
Name: Per Xxxxxxxx
Address: XXXXXX XXXXX
Xxxxxxxxxxxxxxxxx 0
000 00 Xxxxxxxxx
Xxxxxx By /s/ Per Xxxxxxxx
-----------------
Name: Per Xxxxxxxx
Address: LEDSTIERNAN KAPITALFORVALTNING XX
Xxxxxx Xxxxxxxxxx 00
000 00 Xxxxxxxxx
Xxxxxx By /s/ Per Xxxxxxxx
-----------------
Name: Per Xxxxxxxx
Address: LEDSTIERNAN BUSINESS
Kevingestrand 35 DEVELOPMENT LTD
182 57 Danderyd
Sweden By /s/ Per Xxxxxxxx
-----------------
Name: Per Xxxxxxxx
39
Address: LEDSTIERNAN BV
Box 75215
0000XX Xxxxxxxxx
Holland By /s/ Per Xxxxxxxx
-----------------
Name: Per Xxxxxxxx
Address: XX XXXXX
Xxxxxxxxxx
000 00 Xxxxxx
Xxxxxx By /s/ Per Xxxxxxxx
-----------------
Name: Per Xxxxxxxx
Address:
9 Xxxxxxxxxxxx 00 0 xx
000 00 Xxxxxxxxx
Xxxxxx /s/ Per Xxxxxxxx
-------------
PER XXXXXXXX
Address: XXXXX XXXXXXXX
Xxxxxxxxxx 00
000 00 Xxxxxxxxx
Xxxxxx By /s/ Per Xxxxxxxx
-----------------
Attorney-in-fact
Address: XXXX XXXXXX
Xxxxxxxxx 00
000 00 Xxxxxxxxx
Xxxxxx By /s/ Per Xxxxxxxx
-----------------
Attorney-in-fact
Address: XXXX XXXXXXXX
Xxxxxxxxxxx 00
000 00 Xxxxxxxxx
Xxxxxx By /s/ Per Xxxxxxxx
-----------------
Attorney-in-fact
Address: XXXXXXX XXXXXXXX
Xxxxxxxxxx 00
000 00 Xxxxxxx Xxx
Xxxxxx By /s/ Per Xxxxxxxx
-----------------
Attorney-in-fact
40
Address:
Xxxxxxxxxx 00
000 00 Xxxxxxxxxx
Xxxxxx /s/ Per Jundin
---------------
PER JUNDIN
Address: XXXXX JUNDIN
Xxxxxxxxxx 00
000 00 Xxxxxxxxxx
Xxxxxx By /s/ Per Jundin
---------------
Attorney-in-fact
Address: XXXXXXXXXXX JUNDIN
Xxxxxxxxxx 00
000 00 Xxxxxxxxxx
Xxxxxx By /s/ Per Jundin
---------------
Attorney-in-fact
Address: XXXX XXXXXXXXX
Xxxxxxxxxxx 00
000 00 Xxxxxxxxxx
Xxxxxx By /s/ Per Jundin
---------------
Attorney-in-fact
Address: UNIUM AB
Xxxxxxxxx 0
000 00 Xxxxxxxxx
Xxxxxx By /s/ Xxxxxxx Xxxxxx
-------------------
Name: Xxxxxxx Xxxxxx
41
Address:
Soldatvagen 12c
192 73 Sollentuna /s/ Xxxxxxx Xxxxxx
Sweden ---------------
XXXXXXX XXXXXX
Address: XXXXXX XXXXXXX
Xxxxxxxxx 0
000 00 Xxxxxxxxx
Xxxxxx By /s/ Xxxxxxx Xxxxxx
-------------------
Attorney-in-fact
Address: KAJ GELLBERG
Xxxxxxxxxxxxxxx 00
000 00 Xxxxx
Xxxxxx By /s/ Xxxxxxx Xxxxxx
-------------------
Attorney-in-fact
Address: XXXXX XXXXXXXXX
Xxxxxxxxxxxxxxxxxxx 00x
000 00 Xxxxxxxx
Xxxxxx By /s/ Xxxxxxx Xxxxxx
-------------------
Attorney-in-fact
Address: XXXXXX XXXXXXXXX
Xxxxxxxxxxxx 0
000 00 Xxxxxx
Xxxxxx By /s/ Xxxxxxx Xxxxxx
-------------------
Attorney-in-fact
Address: LYKKE XXXXXX
Xxxxxxxxx 0
000 00 Xxxxxxxx
Xxxxxx By /s/ Xxxxxxx Xxxxxx
-------------------
Attorney-in-fact
Address: XXXXXXX XXXXXX
Xxxxxxxxx 0
000 00 Xxxxxxxx
Xxxxxx By /s/ Xxxxxxx Xxxxxx
-------------------
Attorney-in-fact
42
Address: MATS LJUNG
Xxxxxxxxxx 00
000 00 Xxxxxxx Xxx
Xxxxxx By /s/ Xxxxxxx Xxxxxx
-------------------
Attorney-in-fact
Address: XXXXX XXXXXXXX
Xxxxxxxxxxxxx 00
000 00 Xxxxxxxx
Xxxxxx By /s/ Xxxxxxx Xxxxxx
-------------------
Attorney-in-fact
Address: XXXX XXXXXXXXXX
Xxxxxxxxxx
000 00 Xxxxxx
Xxxxxx By /s/ Per Xxxxxxxx
-----------------
Attorney-in-fact
43
