5G Wireless Communications, Inc a Nevada Corporation ("Company), and The May Davis Group, Inc, a Maryland corporation (the "Agent)
Communications, Inc a Nevada Corporation ("Company), and The May Xxxxx Group,
Inc, a Maryland corporation (the "Agent)
RECITALS
The Company proposes to enter into a Private Equity Subscription Agreement (the
"Subscription Agreement) dated as of the date hereof between the Company and
the investor named xxxxxxx (the "Inventor)
The Company proposes to enter into a Securities Purchase Agreement (the "Purchase
Agreement, and collectively with the Subscription Agreement, the "Primary
Agreements) dated as of the date hereof among the Company and the buyers named
therein (the "Buyers, and collectively with the Investor, the "Inventors)
The Agent has introduced the Company to the Investors, and in compensation for such
past and continuing services, the Company desires to compensate the Agent as provided herein
Capitalized terms used but not defined herein shall have the meanings ascribed to them in
the Subscription Agreement or the Purchase Agreement, as the case may be
:NOW, THEREFORE, in consideration of the premises and the mutual promises,
conditions and covenants herein contained, the parties hereto do hereby agree as follows:
Engagement of Agent The Company hereby ratifies its appointment of the Agent
to assist the Company in its search for the Investors named above This appointment shall be
irrevocable for the period commencing as of the date hereof and ending as further
described in Section 8, which period may be extended by the consent of the Company and
the Agent Representations and Warranties of the Company In order to induce the Agent to
enter into this Agreement, the Company hereby represents and warrants to and agrees with
the Agent as follows:
Organization and Qualification The Company and its subsidiaries are corporations
duly organized, validly existing and in good standing under the laws of the
jurisdictions in which they are incorporated, and have the requisite corporate
power to own or lease their properties and to carry on their business as now
being conducted Each of the Company and its subsidiaries is duly qualified as
a foreign corporation to do business and is in good standing in every
jurisdiction in which the nature of the business conducted by it makes such
qualification necessary, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on
the Company and its subsidiaries taken as a who Authorization
Enforcement Compliance with Other Instruments The Company has the
requisite corporate power and authority to enter into and perform this
Agreement This Agreement has been duly authorized by the Company's Board of
Directors and no further consent or authorization is required by the Company,
its Board of Directors or its stockholders This Agreement constitutes the
valid and binding obligations of the Company enforceable against the Company
in accordance with its terms, except as such enforceability may be limited by
general principles of equity or applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally, the enforcement of creditors' rights and remedies no
Conflicts The execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby will not (i) result in a violation of the
Certificate of Incorporation, any Certificate of Designations, Preferences, and
Rights of any outstanding series of preferred stock of the Company or By-laws
or (ii) conflict with or constitute a default (or an event which with notice or
lapse of time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, any
agreement, indenture or instrument to which the Company or any of its
subsidiaries is a party, or, to the best of the Company's knowledge, result in
a violation of any law, rule, regulation, order, judgment or decree (including
federal and state securities laws and regulations and the rules and regulations
of The Nasdaq Stock Market, Inc's OTC Bulletin Board on which the common stock
of the Company, par value $0001 per share (the "Common Stock), is quoted)
applicable to the Company or any of its subsidiaries or by which any property
or asset of the Company or any of its subsidiaries is bound or affected
Neither the Company nor any of its subsidiaries is in violation of any term of
or in default under its Certificate of Incorporation or By-laws or any material
contract, agreement, mortgage, indebtedness, indenture, instrument, judgment,
decree or order or any statute, rule or regulation applicable to the Company
or
its subsidiaries To the best knowledge of the Company, the business of the
Company and its subsidiaries is not being conducted, and the Company shall use
its best efforts to assure that it shall not be conducted in violation of any
law, ordinance, regulation of any governmental entity Except as specifically
contemplated by this Agreement and as required under the Securities and
Exchange Act of 1933, as amended (the "Act) and any applicable state
securities laws, the Company is not required to obtain any consent,
authorization or order of, or make any filing or registration with, any court
or governmental agency in order for it to execute, deliver or perform any
of its obligations under or contemplated by this Agreement in accordance with the
terms hereof or thereof All consents, authorizations, orders, filings and
registrations which the Company is required to obtain pursuant to the preceding
sentence have been obtained or effected on or prior to the date hereof The
Company and its subsidiaries are unaware of any facts or circumstances, which
might give rise to any of the foregoing SEC Documents; Financial Statements Since the filing of
the Company's last Form 10-K, the Company has filed all reports, schedules, forms, statements
and other documents required to be filed by it with the Securities and Exchange
Commission ("SEC) pursuant to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the "1934 Act) (all of the foregoing filed
prior to the date hereof and all exhibits included therein and financial
statements and schedules thereto and documents incorporated by reference
therein, including such Form 10-K, being hereinafter referred to as the "SEC
Documents) The Company has delivered to the Agent or its representative, or
made available through the SEC's electronic web site, true and complete copies
of the SEC Documents As of their respective dates, the financial statements of
the Company disclosed in the SEC Documents (the "Financial Statements) complied
as to form in all material respects with applicable accounting requirements and
the published rules and regulations of the SEC with respect thereto Such
financial statements have been prepared in accordance with generally accepted
accounting principles, consistently applied, during the periods involved
(except (i) as may be otherwise indicated in such financial statements or the
notes thereto, or (ii) in the case of unaudited interim statements, to the
extent they may exclude footnotes or may be condensed or summary statements)
and fairly present in all material respects the financial position of the
Company as of the dates thereof and the results of its operations and cash
flows for the periods then ended (subject, in the case of unaudited statements,
to normal year-end audit adjustments) No other information provided by or on
behalf of the Company to the Buyer which is not included in the SEC Documents,
including, without limitation, information referred to in Section 26 of this
Agreement, contains any untrue statement of a material fact or omits to state
any material fact necessary in order to make the statements therein, in the
light of the circumstance under which they are or were made, not misleading absence
of Litigation There is no action, suit, proceeding, inquiry or
investigation before or by any court, public board, government agency,
self-regulatory organization or body pending or, to the knowledge of the
Company or any of its subsidiaries, threatened against or affecting the Company,
any of the Company's securities or any of the Company's subsidiaries, wherein
an unfavorable decision, ruling or finding would (i) have a material adverse
effect on the transactions contemplated hereby, (ii) adversely affect the
validity or enforceability of, or the authority or ability of the Company to
perform its obligations under, this Agreement or the Primary Agreements, or
(iii) except as expressly disclosed in the SEC Documents, have a material
adverse effect on the business, operations, properties, financial condition or
results of operation of the Company and its subsidiaries taken as a whole no
Materially Adverse Contracts Etc Except as set forth in the
SEC Documents, neither the Company nor any of its subsidiaries is subject to
any charter, corporate or other legal restriction, or any judgment, decree,
order, rule or regulation which in the judgment of the Xxxxxxx'x officers has
or is expected in the future to have a material adverse effect on the business,
properties, operations, financial condition, results of operations or prospects
of the Company or its subsidiaries Neither the Company nor any of its
subsidiaries is a party to any contract or agreement which in the judgment of
the Xxxxxxx'x officers has or is expected to have a material adverse effect on
the business, properties, operations, financial condition, results of
operations or prospects of the Company or its subsidiaries.
Issue Sale and Delivery of the Securities Deliveries of Securities Certificates representing the
Registrable Securities and Warrants (as defined in Section 32), subject to applicable transfer
restrictions as described in the Primary Agreements, shall be delivered by the
Company to First Union National Bank, Xxx Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxx
York, New York 10048 (the "Escrow Agent), with copies made available to the
Agent for review at least one full business day prior to initial closing
scheduled pursuant to the Purchase Agreement (the "Closing, and such day, the
"Closing Date), it being understood that any requisite directions from the
Agent to the Company shall be given at least two full business days prior to
the Closing Date The certificates for the Registrable Securities and Warrants
shall be delivered at the Closing
Agent's Compensation
(a) The Company shall:
(i) pay the Agent a commission of five percent (5%) of the gross subscription proceeds received
by the Company in respect of the issuance of Common Stock pursuant to the Subscription
Agreement, at the Closing and at each subsequent Closing in respect of the exercise of a Put by
the Company pursuant to the Subscription Agreement, to be paid in immediately available funds
(ii) issue on the Subscription Date such number of shares of Common Stock (the
"Commitment Fee Shares) to and in the name of the Agent as determined pursuant to Section
21 of the Subscription Agreement, based on an Investment Amount equal to five
(5%) percent of the Maximum Commitment Amount The value of the Commitment Fee
Shares shall not be counted toward the Maximum Commitment Amount and such
shares shall be in addition to the Put Shares to which the Investor is entitled
pursuant to Article II of the Subscription Agreement
(iii) pay the Agent a commission often percent (10%) of the aggregate principal amount received
by the Company in respect of the issuance of Notes pursuant to the Purchase Agreement on the
Subscription Date, to be paid in immediately available funds on the
Subscription Date
(iv) issue on the Subscription Date 300,000 warrants (the "Warrants) to the Agent, each Warrant
representing the right to purchase one share of Common Stock at a price of $0 143 per share
The Warrants shall be exercisable at the option of the Holder thereof at any
time prior to the Maturity Date of the Notes The Warrants shall have cashless
exercise provisions
(b) The Commitment Fee Shares, the Warrants and the shares of Common Stock issuable upon
exercise of the Warrants (collectively, the "May Xxxxx Securities) shall be deemed to be
Registrable Securities under the Registration Rights Agreement related to the Purchase
Agreement, it being understood that, if the SEC requires removal of the May Xxxxx Securities
from any Registration Statement in which the May Xxxxx Securities have a right
pursuant hereto to be included, the removal of the May Xxxxx Securities shall
not constitute a breach of contract by the Company, and the Company will use
best efforts to include the May Xxxxx Securities (or underlying shares of
Common Stock, if applicable) in a Registration Statement in a manner acceptable
to the SEC Except as set forth in the immediately preceding sentence, it is
expressly agreed by the Company that the Company must register the Commitment
Fee Shares or the shares of Common Stock underlying the Warrants for the Agent
in the same Registration Statement described in such Registration Rights
Agreement.\
(c) The Agent may assign this Agreement, the Transaction Documents, the rights contained
herein and therein, and the May Xxxxx Securities to any subsidiary or affiliate of the Agent until
the filing of the Registration Statements related to the Primary Agreements
4 Sale of the Securities by the Company
4.1 In introducing the Company to the Investors to facilitate the transactions
contemplated by the Primary Agreements, the Agent shall be acting solely as an
agent for the Company, and such transactions shall be made upon the terms and
subject to the conditions set forth in the Primary Agreements
5 Non-Circumvention The Company hereby agrees as follows:
The Company agrees to maintain the confidentiality of the Agent's clients, except
as required by applicable law Such clients shall be those entities which
invest or have been offered an opportunity to invest by the Agent in the
Offering (the "Clients) For a period of two years from the Closing, the
Company will not solicit or enter into any financing transaction with the
Clients without the written consent of the Agent and payment to Agent of
compensation no less than the compensation to be paid to the Agent hereunder
for raising a like amount.
5.2 In the event that Company breaches Section 51 of this Agreement, the
shall be entitled to receive compensation in the same proportion to the
financing done without the Agent's of participation as the compensation to the Agent under
this bears to the financing raised pursuant to the Subscription Agreement and
Agreement
6 Covenants of the Company
The Company covenants and agrees with the Agent that:
6.1 After the date hereof, the Company will not at any time prepare and distribute any
amendment or supplement to the Primary Agreements, of which any such amendment the Agent
shall not previously have been advised and the Agent and its counsel furnished with a copy
within a reasonable time period prior to the proposed adoption thereof, or to which the
Agent shall have reasonably objected in writing on the ground that it is not in
compliance with the Act or the rules and regulations under the Act (if applicable)
The Company will pay, whether or not the
transactions contemplated hereunder are consummated or this Agreement is
prevented from becoming effective or is terminated, all costs and expenses
incident to the performance of its obligations under this Agreement, including
all expenses incident to the authorization of the Registrable Securities and
their issue and delivery to the purchasers, any original issue taxes in
connection therewith, all transfer taxes, if any, incident to the sale of the
Registrable Securities, the fees and expenses of the Xxxxxxx'x counsel and
Agent's counsel as set forth in Section 35 (except as provided below) and
accountants, the cost of reproduction and furnishing to the Agent copies of
the Primary Agreements as herein provided prior to the Closing Date, and during the
normal business hours, the Company will cooperate with the Agent in such
investigation as it may make or cause to be made of all of the properties,
business and operations of the Company in connection with the Offerings of the
Securities The Company will make available to it in connection therewith such
information in its possession as the Agent may reasonably request and will
make available to the Agent such persons as the Agent shall deem reasonably
necessary and appropriate in order to verify or substantiate any such
information so supplied
The Company shall be responsible for making any and all filings required by the blue sky
authorities and filings required by the laws of the jurisdictions in which the purchasers of
Registrable Securities are located, if any The Agent shall assist Company in
this respect, but such filings shall be the responsibility of Company
Corporation Condition
The Xxxxxxx'x condition is as described in the Primary Agreements and the SEC Documents
referred to therein, except for changes in the ordinary course of business and
normal year-end adjustments that are not individually or in the aggregate
materially adverse to the Company
No Material Adverse Change
Except as may be reflected in or contemplated by the Primary Agreements
prior to the Closing, there shall not have been any material adverse change in
the condition, financial, or otherwise, or in the results of operations of the
Company or in its business taken as a whole
7 Indemnification
7.1
The Company agrees to indemnify and hold harmless the Agent, each person who controls the
Agent within the meaning of Section 15 of the Act and the Agent's employees, accountants,
attorneys and agents (the "Agent's Indemnitees") against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the Act or any other statute or at common law for any legal or
other expenses (including the costs of any investigation and preparation)
incurred by them in connection with any litigation, whether or not resulting in
any liability, but only insofar as such losses, claims, damages, liabilities
and litigation arise out of or are based upon any untrue statement of material
fact contained in the Primary Agreements or any amendment thereto or any
application or other document filed in any state or jurisdiction in order to
qualify the Registrable Securities under the blue sky or securities laws
thereof, or the omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, under the circumstances
under which they were made, not misleading, all as of the date of the Primary
Agreements or of such amendment thereto as the case may be; provided
however, that the indemnity agreement contained in this Section 7.1 shall
not apply to amounts paid in settlement of any such litigation, if such
settlements are made without the consent of the Company, nor shall it apply to
the Agent's Indemnitees in respect to any such losses, claims, damages or
liabilities arising our of or based upon any such untrue statement or any such
omission, if such statement or omission was made solely in reliance upon
information furnished in writing to the Company by the Agent specifically for
use in connection with the preparation of the Primary Agreements or any such
amendment thereto or any application or other document filed in any state or
jurisdiction in order to qualify the Securities under the Blue Sky or
securities law thereof This indemnity agreement is in addition to any other
liability, which the Company may otherwise have to the Agent's Indemnitees The
Agent's Indemnitees agree, within ten (10) days after the receipt by them of
written notice of the commencement of any action against them in respect to
which indemnity may be sought from the Company under this Section 71, to
notify the Company in writing of the commencement of such action; provided,
however, that the failure of the Agent's Indemnitees to notify the Company of
any such action shall not relieve the Company from any liability which it may
have to the Agent's Indemnitees on account of the indemnity agreement contained
in this Section 71, and further shall not relieve the Company from any other
liability which it may have to the Agent's Indemnitees, and if the Agent's
Indemnitees shall notify the Company of the commencement thereof, the Company
shall be entitled to participate in (and, to the extent that the Company shall
wish, to direct) the defense thereof at its own expense, but such defense shall
be conducted by counsel of recognized standing and reasonably satisfactory to
the Agent's Indemnitees, defendant or defendants, in such litigation The
Company agrees to notify the Agent's Indemnitees promptly of the commencement
of any litigation or proceedings against the Company or any of the Xxxxxxx'x
officers or directors of which the Company may be advised in connection with
the issue and sale of any of the Registrable Securities and to furnish to the
Agent's Indemnitees, at their request, to provide copies of all pleadings
therein and to permit the Xxxxxxx'x Indemnitees to be observers therein and
apprise the Agent's Indemnitees of all developments therein, all at the
Xxxxxxx'x expense.
7.2
The Agent agrees, in the same manner and to the same extent as set forth in Section 7.1 above,
to indemnify and hold harmless the Company, and the Xxxxxxx'x employees, accountants,
attorneys and agents (the "Xxxxxxx'x Indemnitees") with respect to (i) any statement in or
omission from the Primary Agreements or any amendment thereto or any
application or other document filed in any state or jurisdiction in order to
qualify the Registrable Securities under the blue sky or securities laws
thereof, or any information furnished pursuant to Section 32 hereof, if such
statement or omission was made solely in reliance upon information furnished in
writing to the Company by the Agent on its behalf specifically for use in
connection with the preparation thereof or supplement thereto, or (ii) any
untrue statement of a material fact made by the Agent or its agents not based
on statements in the Primary Agreements or authorized in writing by the
Company, or with respect to any misleading statement made by the Agent or its
agents resulting from the omission of material facts which misleading statement
is not based upon the Primary Agreements, or information furnished in writing
by the Company or, (iii) any breach of any representation, warranty or covenant
made by the Agent in this Agreement The Agent's liability hereunder shall be
limited to the amount received by it for acting as Agent hereunder The Agent
shall not be liable for amounts paid in settlement of any such litigation if
such settlement was effected without its consent In case of the commencement
of any action in respect of which indemnity may be sought from the Agent, the
Xxxxxxx'x Indemnitees shall have the same obligation to give notice as set
forth in Section 7.1 above, subject to the same loss of indemnity in the event
such notice is not given, and the Agent shall have the same right to
participate in (and, to the extent that it shall wish, to direct) the defense
of such action at its own expense, but such defense shall be conducted by
counsel of recognized standing reasonably satisfactory to the Company The
Agent agrees to notify the Xxxxxxx'x Indemnitees and, at their request, to
provide copies of all pleadings therein and to permit the Xxxxxxx'x Indemnitees
to be observers therein and apprise them of all the developments therein, all
at the Agent's expense.
8 Effectiveness of Agreements
This Agreement shall become effective upon the date of the execution hereof and shall remain
in full force and effect until (i) all puts have been exercised by the Company
pursuant to the Primary Agreements and (ii) all shares of common stock
underlying the Warrants have been registered under the Act.
Agent's obligations to act as agent of the Company hereunder shall be subject
to the accuracy, as of the Closing Date, of the representations and warranties
on the part of the Company herein contained, to the fulfillment of or
compliance by the Company with all covenants and conditions hereof, and to the
following additional conditions:
9.1
Counsel to the Agent shall not have objected or shall not have failed to give its consent to the
Primary Agreements (which objection or failure to give consent shall not have been done
unreasonably)
9.2
The Agent shall not have disclosed to the Company that the Primary Agreements, or any
amendment thereof, contains an untrue statement of fact, which, in the opinion of counsel to the
Agent, is material, or omits to state a fact, which, in the opinion of such counsel, is
material and is required to be stated therein, or is necessary to make the
statements therein, under the circumstances in which they were made, not misleading
9.3
Between the date hereof and the Closing Date, the Company shall not have sustained any loss on
account of fire, explosion, flood, accident, calamity or any other cause of such character as
would materially adversely affect its business or property considered as an
entire entity, whether or not such loss is covered by insurance
9.4
Between the date hereof and the Closing Date, there shall be no litigation instituted or threatened
against the Company, and there shall be no proceeding instituted or threatened against the
Company before or by any federal or state commission, regulatory body or
administrative agency or other governmental body, domestic or foreign, wherein
an unfavorable ruling, decision or finding would materially adversely affect
the business, franchise, license, permits, operations or financial condition or
income of the Company
9.5 Except as contemplated herein or as set forth in the Primary Agreements, during the period
subsequent to the most recent financial statements referred to in the Primary Agreements, if any,
and prior to the Closing Date, the Company (i) shall have conducted its business
in the usual and ordinary manner as the same is being conducted as of the date
hereof and (ii) except in the ordinary course of business, the Company shall
not have incurred any liabilities or obligations (direct or contingent) or
disposed of any assets, or entered into any material transaction or suffered or
experienced any substantially adverse change in its condition, financial or
otherwise At the Closing Date, the equity account of the Company shall be
substantially the same as reflected in the most recent balance sheet referred
to in the Primary Agreements without considering the proceeds from the sale of
the Registrable Securities.
9.6
The authorization of the Registrable Securities by the Company and all proceedings and other
legal matters incident thereto and to this Agreement shall be reasonably satisfactory in all
respects to the Agent
97
The Company shall have furnished to the Agent an opinions, dated the Subscription Date and
upon the date of issuance of shares of Common Stock upon the exercise of a Warrant, addressed
to the Agent from counsel to the Company substantially in the form as Exhibit A hereto
9.8
The Company shall have furnished to the Agent a certificate of the Chief Executive Officer and
the Chief Financial Officer of the Company, dated as of the Closing Date, to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct in
all material respects at and as of the Closing Date (other than representations and warranties
which by their terms are specifically limited to a date other than the Closing Date),
and the Company has complied with all the agreements and has satisfied all the
conditions on its part to be performed or satisfied at or prior to the Closing
Date; and (ii) the respective signers have each carefully examined the Primary Agreements, and
any amendments thereto, and, to the best of their knowledge, all statements contained in the
Primary Agreements are true and correct, and neither the Primary Agreements, nor any
amendment thereto, includes any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein, under the circumstances in which they were made, not misleading; except
as set forth in the Primary Agreements, since the respective dates as of which
or the periods for which the information is given in the Primary Agreements and
prior to the date of such certificate, (a) there has not been any substantially
adverse change, financial and otherwise, in the affairs of condition in the
Company, and (b) the Company has not incurred any material liabilities, direct
or contingent, or entered into any material adverse transactions, otherwise
than in the ordinary course of business
10 Termination
10.1 This Agreement may be terminated by the Agent by written notice to the Company in the
event that the Company shall have failed or been unable to comply with any of the terms,
conditions or provisions of this Agreement on the part of the Company to be performed,
complied with or fulfilled within the respective times, if any, herein provided for, unless
compliance therewith or performance or satisfaction thereof shall have been expressly waived by
the Agent in writing.
10.2
This Agreement may be terminated by the Company by written notice to the Agent in the event
that the Agent shall have failed or been unable to comply with any of the terms, conditions or
provisions of this Agreement on the part of the "gent to be performed, complied with or
fulfilled within the respective times, if any, herein provided for, unless
compliance therewith or performance or satisfaction thereof shall have been
expressly waived by the Company in writing
10.3
Any termination of this Agreement pursuant to this Section shall be without liability of any
character (including, but not limited to, loss of anticipated profits or consequential damages) on
the part of any party thereto, except that the Company shall remain obligated to pay
the costs and expenses provided to be paid by it specified in Section 32; and the
Company and the "gent shall be obligated to pay, respectively, all losses,
claims, damages or liabilities, joint or several, under Section 71 in the case
of the Company and Section 72 in the case of the "gent
11 Notices Except as otherwise expressly provided in this Agreement:
11.1 Whenever notice is required by the provision of this Agreement to be given to the
Company, such notice shall be in writing, addressed to the Company, at:
If to the
Company:
5G Wireless Communications, Inc
2921 N Tenaya
Xxx, Xxxxx 000
Las Vegas, NV89128
Attn: Chief Financial Officer
Telephone No: 000-000-0000
Telecopier No: 604-207-0565
with a copy by fax (which shall not constitute notice) to:
Xxxxxxx Xxx, Esq
Xxxxxxx Xxx Law Office
0000 Xxxxxx Xxx Xxx
Telephone No: 000-000-0000
Telecopier No:000-000-0000
Whenever notice is required by the provisions of this Agreement to be given to
the Agent, such notice shall be given in writing, addressed to the Agent, at:
If to the Agent:
May Xxxxx Group, Inc
1 World Trade Center
NewYork, NY 10048
Attention: Xxxxxx Xxxxxx
11.3 Any notice instructing the Escrow Agent to distribute monies or Registrable Securities held
in escrow must be signed by authorized agents of both the Company and the Agent in order to be
valid.
12. Miscellaneous
12.1 Benefit
This Agreement is made solely for the benefit of the Agent and the Company, their respective
officers and directors and any controlling person referred to in Section 15 of
the Act and their respective successors and assigns, and no other person may
acquire or have any right under or by virtue of this Agreement, including,
without limitation, the holders of any Registrable Securities The term
"successor"; or the term "successors and assigns"; as used in this Agreement
shall not include any purchasers, as such, of any of the Registrable Securities
12.2
Survival The respective indemnities, agreements, representations, warranties, covenants and
other statements of the Company and the Agent, or the officers, directors or controlling persons
of the Company and the Agent as set forth in or made pursuant to this Agreement and
the indemnity agreements of the Company and the Agent contained in Section 7
hereof shall survive and remain in full force and effect, regardless of (i) any
investigation made by or on behalf of the Company or the Agent or any such
officer, director or controlling person of the Company or of the Agent; (ii)
delivery of or payment for the Securities; or (iii) the Closing Date, and any
successor of the Company or the Agent or any controlling person, officer or
director thereof, as the case may be, shall be entitled to the benefits hereof
12.3 Governing Law
The validity, interpretation, and construction of this Agreement will be governed
by the laws of the State of New York The parties further agree that any action
between them shall be heard in New York County, New York, and expressly consent
to the jurisdiction and venue of the Supreme Court of the State of New York,
New York County, and the United States District Court for the Southern District
of New York for the adjudication of any civil action asserted pursuant to this Paragraph
12.4 Counterparts
This Agreement may be executed in any number of counterparts, each of which may be deemed
an original and all of which together will constitute one and the same instrument.
12.5 Confidential Information
All confidential financial or business information (except publicly available or
freely usable material otherwise obtained from another source) respecting
either party will be used solely by the other party in connection with the
within transactions, be revealed only to employees or contractors of such other
party who are necessary to the conduct of such transactions, and be otherwise
held in strict confidence
12.6 Public Announcements.
Prior to the Closing Date, neither party hereto will issue any public announcement
concerning the within transactions without the approval of the other party, except
as may be required by applicable securities or other laws
12.7 Finders
The parties acknowledge that no other person has acted as a finder in connection with the
transactions contemplated herein and each will agree to indemnify the other with respect to
any other claim for any other finder's fee in connection with the offering
12.8 Financial Advisers
The parties acknowledge that the Company has or may retain financial and other advisers in
connection with this transaction (the "Advisers";), and the Company agrees to
indemnify and hold the Agent harmless for any fees and expenses of the Advisers
12.9 Recitals
The recitals to this Agreement are a material part hereof, and each recital is incorporated into
this Agreement by reference and made a part of this Agreement
12.10 Entire Agreement
This Agreement constitutes the entire agreement between the parties with regard to the
subject matter hereof and supersedes all prior agreements or understandings between the parties.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have duly caused this Agreement to be executed as
of the day and year first above written
5G WIRELESS COMMUNICATIONS, INC
By:
Name:
Title:
THE MAY XXXXX GROUP, INC
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Managing Director
