SHARE EXCHANGE AGREEMENT
THIS
SHARE EXCHANGE AGREEMENT
(this
“Agreement”)
dated
this 17th day of April, 2007, by and among
CENTRAL WIRELESS, INC., a
Utah
corporation (“Central
Wireless”),
XXXXXXX
X. BRAND,
an
individual and principal shareholder of Central Wireless (“Mr.
Brand”),
SUMMIT
MEDICAL TECHNOLOGIES, INC., a
New Hampshire corporation (the “Company”)
and
the shareholders of the Company listed on Exhibit A
attached
hereto (the “Company
Shareholders”).
RECITALS:
WHEREAS,
the
Company Shareholders own all of the outstanding capital stock of the Company
as
set forth in Exhibit A;
WHEREAS,
the
authorized capital stock of the Company consists of Forty Million (40,000,000)
shares of common stock, no par value per share (“Company
Common Stock”),
and
Twenty Million (20,000,000) shares of preferred stock, no par value per share
(“Company
Preferred Stock”),
of
which Nineteen Million Five Hundred Thousand One Hundred Sixty (19,500,160)
shares of Company Common Stock are issued and outstanding and Nine Million
Seven
Hundred Fifty Thousand (9,750,000) shares of Company Preferred Stock are issued
and outstanding (collectively the “Company
Outstanding Stock”);
WHEREAS,
the
shareholders of Central Wireless set forth on the Central Wireless Shareholder
List attached hereto as Exhibit
B
own all
of the outstanding capital stock of Central Wireless;
WHEREAS,
the
authorized capital stock of Central Wireless consists of Two
Billion (2,000,000,000) shares of common stock, par value $0.001 per
share (the “CWIR
Common Stock”),
of
which One Billion Nine Hundred Fifty-Four Million One Hundred Ninety-Two
Thousand Four Hundred Fifty-One (1,954,192,451) shares
are issued and outstanding, Nine Million Nine Hundred Ninety-Nine Thousand
Nine
Hundred (9,999,900) shares of undesignated preferred stock, of which no shares
are issued and outstanding, par value $0.01 per share, and One Hundred (100)
shares of Series A Convertible Preferred Stock, par value $0.01 per share,
of
which no shares are issued and outstanding;
WHEREAS,
the
Company Shareholders desire to transfer to Central Wireless Nineteen Million
Five Hundred Thousand One Hundred Sixty (19,500,160) shares of Company Common
Stock, which such shares represent all the issued and outstanding shares of
the
Company Common Stock, in exchange for One Hundred (100) shares of Central
Wireless Series A Convertible Preferred Stock, par value $0.01 per share, which
is convertible into that number of shares of CWIR Common Stock equal to
eighty-five percent (85%) of the total issued and outstanding capital stock
of
Central Wireless (the “CWIR
Exchange Shares”)
upon
the twentieth (20) day after the mailing of a Definitive Schedule 14C
Information Statement to the Central Wireless Shareholders pursuant to the
terms
and conditions set forth herein; and
WHEREAS,
Central
Wireless and the Company intend that for United States federal income tax
purposes, the transactions contemplated hereby shall qualify as a tax-free
reorganization under Section 368 of the Internal Revenue Code of 1986, as
amended (together with all rules and regulations issued thereunder, the
“Code”)
and
that this Agreement shall be adopted as a plan of reorganization for purposes
of
Section 368 of the Code.
NOW,
THEREFORE,
in
consideration of the mutual promises set forth herein and certain other good
and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
AGREEMENT:
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1.
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THE
SHARE EXCHANGE AND RELATED TRANSACTIONS.
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1.1. Share
Exchange.
In
accordance with the provisions of this Agreement, the Utah Revised Statutes
(the
“URS”)
and
other applicable law, on the Closing Date (as defined below), the Escrow Agent
(as defined below) shall deliver to Central Wireless, the Company Common Stock,
and in exchange therefore, the Escrow Agent shall deliver to the Company
Shareholders in the denominations set forth opposite the name of each Company
Shareholder on Schedule A
attached
hereto, the CWIR Exchange Shares. The share exchange transaction is referred
to
herein as the “Share
Exchange”.
Upon
the execution of this Agreement, and as partial consideration for the CWIR
Exchange Shares: (a) the Company shall pay and discharge the outstanding
balances owed to the entities and persons as set forth on Schedule B
and (b)
the Company shall issue a secured convertible promissory note to Mr. Brand
in
the principal amount of Fifty-Five Thousand Dollars ($55,000) substantially
in
the form of Exhibit
C
attached
hereto and a warrant to purchase One Million Three Hundred Nine Thousand Five
Hundred Twenty-Four (1,309,524) shares substantially in the form of Exhibit
I
attached
hereto.
1.2
Escrow
Closing.
Upon
the execution of this Agreement, Central Wireless shall deposit the CWIR
Exchange Shares, and the Company Shareholders shall deposit the Company Common
Stock with Xxxxxxx Savage LLP, attorneys for the Company, which shall serve
as
escrow agent (the “Escrow
Agent”)
pursuant to and on the terms set forth in that certain escrow agreement, of
even
date herewith, attached hereto as Exhibit
D,
to
release the CWIR Exchange Shares and the Company Common Stock not earlier than
the twentieth (20th)
calendar day following the mailing of a Definitive Schedule 14C Information
Statement (the “Schedule 14C”)
with
the U.S. Securities and Exchange Commission (the “SEC”).
1.3. Closing.
The
parties to this Agreement shall file Articles of Exchange (as defined
below) pursuant to the URS, cause the Share Exchange to become effective
and consummate the other transactions contemplated by this Agreement (the
“Closing”) on
such date which shall be the twentieth (20th)
calendar day following the mailing of the Schedule 14C with the SEC,
provided
that
in no
event shall the Closing occur prior to the satisfaction of the conditions
precedent set forth in Sections 6, 7 and 8 hereof. The date of the Closing
is
referred to herein as the “Closing
Date”.
The
Closing shall take place at the offices of counsel to Central Wireless, or
at
such other place as may be mutually agreed upon by the parties. The parties
hereto acknowledge and agree that the Schedule 14C shall be prepared by Xxxxxxx
Xxxxxx LLP. On the Closing Date: (i) the Escrow Agent shall deliver to
Central Wireless the original stock certificates representing the Company Common
Stock, together with stock powers duly executed in blank; and (ii) the
Escrow Agent shall deliver to the Company Shareholders stock certificates
representing the CWIR Exchange Shares.
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1.4. Plan
of Exchange; Articles of Share Exchange.
Central
Wireless and the Company shall enter into a plan of exchange on the date hereof,
substantially in the form attached hereto as Exhibit E
(the
“Plan
of Exchange”),
and,
on the Closing Date, Central Wireless and the Company shall execute the Articles
of Exchange, substantially in the form attached hereto as Exhibit F
(the
“Articles
of Exchange”).
The
Articles of Exchange shall be filed with the Secretary of State of the State
of
Utah on or shortly after the Closing Date in accordance with the
URS.
1.5. Approval
of Share Exchange.
By
execution of this Agreement, the Company Shareholders hereby ratify, approve
and
adopt the Share Exchange and the Plan of Exchange for all purposes under the
URS
and duplicate laws of the Company’s state of incorporation. On or before the
execution of this Agreement, the respective Boards of Directors of Central
Wireless and the Company shall have approved this Agreement, the Plan of
Exchange and the transactions contemplated hereby and thereby. On or before
the
execution of this Agreement, Central Wireless shall provide to the Company
the
consent of at least fifty-one percent (51%) of the shareholders of Central
Wireless approving this Agreement and the transactions contemplated hereby.
The
parties hereto hereby acknowledge and agree that an Information Statement on
Schedule 14C is required to be filed with the SEC, and to be mailed to all
shareholders of record of Central Wireless, not less than twenty (20) days
prior
to Closing, which such Schedule 14C shall, among other things, set forth the
intent of the requisite number of shareholders of Central Wireless to approve
this Agreement and the transactions contemplated hereby. All parties to this
Agreement agree to vote in favor of the Share Exchange to the extent such party
is a holder of shares of CWIR Common Stock on the record date.
1.6. Increase
of Authorized Shares; Reverse Stock Split.
The
parties to this Agreement acknowledge that as of the date hereof, Central
Wireless has an insufficient number of shares of CWIR Common Stock available
to
complete the Share Exchange. The parties hereto acknowledge and agree that
Central Wireless must file a Schedule 14C in order to effect, among other
things, an increase of its authorized shares of CWIR Common Stock to Twenty
Billion (20,000,000,000) shares (“Share
Increase”),
that
such Schedule 14C must be mailed to all shareholders of record of Central
Wireless and that the Closing cannot occur until such date which is at least
twenty (20) calendar days following the date such Schedule 14C is mailed to
the
shareholders of Central Wireless. The parties hereto further acknowledge that
such Schedule 14C will include the intent of the requisite number of
shareholders under the URS to approve a proposal for Central Wireless to
undertake a reverse stock split of CWIR Common Stock (the “Reverse
Split”).
1.7. Brand
Escrow.
On the
Closing Date, and subject to and in accordance with the provisions of Section
9
herein, Mr. Brand will cause to be deposited with the Escrow Agent a certificate
or certificates evidencing twenty percent (20%) of the number of shares of
CWIR
Common Stock owed by Mr. Brand as of the Closing Date (the “Brand
Escrow Shares”).
All
such certificates deposited with the Escrow Agent will be registered in the
name
of the Escrow Agent as nominee, and such Escrow Agent will retain such shares
in
accordance with an escrow agreement (the “Brand
Escrow Agreement”)
substantially in the form attached hereto as Exhibit
G.
Mr.
Brand will beneficially own such Brand Escrow Shares and be entitled to vote
such Brand Escrow Shares. The Brand Escrow Shares will be held in escrow and
will be available to compensate the Company Shareholders for certain of the
damages as provided in Section 9 herein. To the extent that they are not used
for such purpose, the Brand Escrow Shares will be held for twelve (12) months
and will be released on the first anniversary of the Closing Date.
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2.
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ADDITIONAL
AGREEMENTS.
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2.1. Access
and Inspection, Etc.
Each
party to this Agreement has allowed and shall allow the other party and its
authorized representatives full access during normal business hours from and
after the date hereof and prior to the Closing Date to all of its properties,
books, contracts, commitments and records for the purpose of making such
investigations as the other party may reasonably request in connection with
the
transactions contemplated hereby, and shall cause the other party to furnish
such information concerning its affairs as reasonably requested. Each party
to
this Agreement has caused and shall cause its personnel to assist the other
party in making such investigation and shall use his best efforts to cause
its
counsel, accountants, and other non-employee representatives to be reasonably
available to the other party for such purposes.
2.2. Confidential
Treatment of Information.
From
and after the date hereof, the parties hereto shall and shall cause their
representatives to hold in confidence all data and information obtained with
respect to the other parties or their business, except such data or information
as is published or is a matter of public record, or as compelled by legal
process. In the event this Agreement is terminated pursuant to Section 10
hereof, each party shall promptly return to the other(s) any statements,
documents, schedules, exhibits or other written information obtained from them
in connection with this Agreement, and shall not retain any copies
thereof.
2.3. Public
Announcements.
After
the date hereof and prior to the Closing, none of the parties hereto shall
make
any press release, statement to employees or other disclosure of this Agreement
or the transactions contemplated hereby without the prior written consent of
the
other parties, except as may be required by law. Neither the Company, the
Company Shareholders, nor Central Wireless shall make any such disclosure unless
each party shall have received prior notice of the contemplated disclosure
and
has had adequate time and opportunity to comment on such disclosure, which
shall
be satisfactory in form and content to each party and its counsel.
2.4. Securities
Law Compliance.
The
issuance of the CWIR Exchange Shares to the Company Shareholders hereunder
shall
not be registered under the Securities Act of 1933, as amended, by reason of
the
exemption provided by Section 4(2) thereof, and such shares may not be
further transferred unless such transfer is registered under applicable
securities laws or, in the opinion of counsel of Central Wireless, such transfer
complies with an exemption from such registration. All certificates evidencing
the CWIR Exchange Shares to be issued to the Company Shareholders shall be
legended to reflect the foregoing restriction.
2.5. Best
Efforts.
Subject
to the terms and conditions provided in this Agreement, each of the parties
shall use its best efforts in good faith to take or cause to be taken as
promptly as practicable all reasonable actions that are within its power to
cause to be fulfilled those conditions precedent to its obligations or the
obligations of the other parties to consummate the transactions contemplated
by
this Agreement that are dependent upon its actions.
2.6. Further
Assurances.
The
parties shall deliver any and all other instruments or documents required to
be
delivered pursuant to, or necessary or proper in order to give effect to, the
provisions of this Agreement, including, without limitation, all necessary
stock
powers and such other instruments of transfer as may be necessary or desirable
to transfer ownership of the Company Common Stock and to consummate the
transactions contemplated by this Agreement.
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2.7. Certain
Tax Matters.
(a) Cooperation
on Tax Matters.
(i) Central
Wireless, the Company and the Company Shareholders shall cooperate fully, as
and
to the extent reasonably requested by the other party, in connection with the
filing of tax returns pursuant to this Section 2.7 and any audit,
litigation or other proceeding with respect to taxes. Such cooperation shall
include the retention and (upon the other party’s request) the provision of
records and information which are reasonably relevant to any such audit,
litigation or other proceeding and making employees available on a mutually
convenient basis to provide additional information and explanation of any
material provided hereunder. The Company and the Company Shareholders agree
(A) to retain all books and records with respect to tax matters pertinent
to the Company relating to any taxable period beginning before the Closing
Date
until the expiration of the statute of limitations (and, to the extent notified
by Central Wireless or the Company Shareholders, any extensions thereof) of
the respective taxable periods, and to abide by all record retention agreements
entered into with any taxing authority, and (B) to give the other party
reasonable written notice prior to transferring, destroying or discarding any
such books and records and, if the other party so requests, the Company or
the
Company Shareholders, as the case may be, shall allow the other party to take
possession of such books and records.
(ii) Central
Wireless and the Company Shareholders further agree, upon request, to use their
commercially reasonable efforts to obtain any certificate or other document
from
any governmental authority or any other person as may be necessary to mitigate,
reduce or eliminate any tax that could be imposed (including, but not limited
to, with respect to the transactions contemplated hereby).
2.9 No-Shop.
From
the date hereof until the termination of this Agreement, neither the Company
nor
any Company Shareholder shall, directly or indirectly, make, solicit, initiate
or encourage submission of proposals or offers from any persons (including
any
of their employees or officers) relating to an Acquisition Proposal (as
defined below). As used herein, “Acquisition
Proposal”
means
any proposal or offer involving a liquidation, dissolution, recapitalization,
merger, consolidation or acquisition or purchase of all or substantially all
of
the assets of, or equity interest in, the Company or other similar transaction
or business combination involving the Company. Each of the Company and each
Shareholder shall immediately cease and cause to be terminated all discussions
or negotiations with third parties with respect to any Acquisition Proposal,
if
any, exiting on the date hereof.
2.10. Schedule 14F-1
Filing.
Upon
the consummation of this Agreement, Central Wireless shall file with the SEC
an
Information Statement on Schedule 14F-1 (the “Schedule 14F-1”)
or
such other documents as may be required, as soon as practicable, disclosing
the
resignation of Mr. Brand in a form that will satisfy the requirements of
law. The parties hereto agree to cooperate in the preparation and filing of
such
report or any other filings to be filed with the SEC.
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2.11 Approval
of Schedule 14C.
in the
event that the Schedule 14C is not approved by the Securities Exchange
Commission, this transaction will be unwound and Central Wireless will be solely
responsible for returning $141,003.00 to the NIR Group, an entity which is
providing financing for this transaction and the Company shall be solely
responsible for $278,997 to the NIR Group.
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3.
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REPRESENTATIONS,
COVENANTS AND WARRANTIES OF THE COMPANY AND THE COMPANY
SHAREHOLDERS.
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To
induce
Central Wireless to enter into this Agreement and to consummate the transactions
contemplated hereby, the Company, and the Company Shareholders jointly and
severally represent and warrant to and covenant with Central Wireless as
follows:
3.1. Organization;
Compliance.
The
Company is a corporation duly organized, validly existing and in good standing
under the laws of New Hampshire. The Company is: (a) entitled to own or
lease its properties and to carry on its business as and in the places where
such business is now conducted, and (b) duly licensed, in good standing and
qualified in all jurisdictions where the character of the property owned by
it
or the nature of the business transacted by it makes such license or
qualification necessary, except where the failure to do so would not result
in a
material adverse effect on the Company. Schedule 3.1
lists
all locations where the Company has an office or place of business and the
nature of the ownership interest in such property (fee, lease, or
other).
3.2. Capitalization
and Related Matters of the Company.
(a) The
authorized capital stock of the Company consists of Forty Million (40,000,000)
shares of Company Common Stock and Twenty Million (20,000,000) shares of Company
Preferred Stock, of which Nineteen Million Five Hundred Thousand One Hundred
Sixty (19,500,160) shares of Company Common Stock are issued and outstanding
and
Nine Million Seven Hundred Fifty Thousand (9,750,000) shares of Company
Preferred Stock are issued and outstanding. No shares of the Company Outstanding
Stock (i) were issued in violation of the preemptive rights of any
shareholder, or (ii) are held as treasury stock. The Company Common Stock
to be delivered under the terms of this Agreement are owned of record, legally
and beneficially by the Company Shareholders. The shares of the Company Common
Stock are free and clear of any and all security interests, encumbrances, and
rights of any kind or nature whatsoever (collectively, “Encumbrances”),
and
upon delivery of the Company Common Stock hereunder, Central Wireless and its
assigns will acquire title thereto, free and clear of any and all Encumbrances.
Other than voting rights, redemption rights and such other rights conferred
by
the Company’s charter documents and by applicable New Hampshire statutes,
there exist no Securities Rights (as defined herein) with respect to the
Company Common Stock. All rights and powers to vote the shares of the Company
Common Stock are held exclusively by the Company Shareholders. All of the
Company Common Stock is validly issued, fully paid and nonassessable, were
not
issued in violation of the terms of any agreement or other understanding, and
were issued in compliance with all applicable federal and state securities
or
“blue sky” laws and regulations. The certificates representing the Company
Common Stock to be delivered to Central Wireless at the Closing are, and the
signatures and endorsements thereof or stock powers relating thereto will be,
valid and genuine. For the purposes of this section, “Securities
Rights”
means,
with respect to the Company Common Stock (whether issued or unissued) or
any other securities convertible into or exchangeable for the Company Common,
and includes all written or unwritten contractual rights relating to the
issuance, sale, assignment, transfer, purchase, redemption, conversion,
exchange, registration or voting of the Company Common Stock and all rights
conferred by the Company’s governing documents and by any applicable
agreement.
6
(b) There
are
not outstanding any securities convertible into capital stock of the Company
nor
any rights to subscribe for or to purchase, or any options for the purchase
of,
or any agreements providing for the issuance (contingent or otherwise) of,
or any calls, commitments or claims of any character relating to, such capital
stock or securities convertible into such capital stock. The Company:
(i) is not subject to any obligation (contingent or otherwise) to
repurchase or otherwise acquire or retire any of its capital stock; or
(ii) has no liability for dividends or other distributions declared or
accrued, but unpaid, with respect to any capital stock.
3.3. Subsidiaries.
The
Company owns (a) no shares of capital stock of any other corporation,
including any joint stock company, and (b) no other proprietary interest in
any company, partnership, trust or other entity, including any limited liability
company.
3.4 Execution;
No Inconsistent Agreements; Etc.
(a) This
Agreement is a valid and binding agreement of the Company and the Company
Shareholders, enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy or similar laws affecting the
enforcement of creditors’ rights generally, and the availability of equitable
remedies. The Company and the Company Shareholders have the absolute and
unrestricted right, power, authority, and capacity to execute and deliver this
Agreement and the documents to be delivered by them in connection with the
Closing and to perform their obligations under this Agreement.
(b) The
execution and delivery of this Agreement by the Company and the Company
Shareholders does not, and the consummation of the transactions contemplated
hereby will not, constitute a breach or violation of the charter or bylaws
of
the Company, or a default under any of the terms, conditions or provisions
of
(or an act or omission that would give rise to any right of termination,
cancellation or acceleration under) any note, bond, mortgage, lease,
indenture, agreement or obligation to which the Company or the Company
Shareholders is a party, pursuant to which the Company and or the Company
Shareholders otherwise receives benefits, or to which any of the properties
of
the Company or the Company Shareholders is subject, or violate any judgment,
order, decree, statute or regulation applicable to the Company or the Company
Shareholders or by which any of them may be subject.
3.5. Articles
of Incorporation and By-Laws.
The
Company has heretofore made available and delivered to Central Wireless a
complete and correct copy of the Articles of Incorporation and its By-Laws.
Such
Articles of Incorporation and By-Laws are in full force and effect and have
not
been amended or modified.
3.6. Corporate
Records.
The
statutory records, including the stock register and minute books of the Company
fully reflects all issuances, transfers and redemptions of its capital stock,
currently show and will correctly show the total number of shares of its capital
stock issued and outstanding on the date hereof and on the Closing Date, the
charter or other organizational documents and all amendments thereto, the bylaws
as amended and currently in force. To the knowledge of the Company Shareholders,
the books of account, minute books, stock record, books, and other records
of
the Company, all of which have been made available to Central Wireless, are
complete and correct and have been maintained in accordance with sound business
practices. The minute books of the Company contain accurate and complete records
of all meetings held of, and corporate action taken by, the Company
Shareholders, the Board of Directors, and committees of the Boards of Directors
of the Company, and no meeting of any such Company Shareholders, Board of
Directors, or committee has been held for which minutes have not been prepared
and are not contained in such minute books. At the Closing, all of those books
and records will be in the possession of the Company.
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3.7. Financial
Statements.
(a) The
Company and the Company Shareholders have delivered to Central Wireless the
Company’s balance sheet as of December 31, 2006 (the “Balance
Sheet”)
and
the related statements of income, shareholders’ equity and cash flows for the
fiscal year ended December 31, 2006. All of the financial statements referenced
in this Section 3.7 are referred to herein collectively as the
“Financial
Statements”.
(b) The
Financial Statements have been and will be prepared in accordance with
applicable GAAP throughout the periods involved, subject, in the case of interim
financial statements, to normal recurring year-end adjustments (the effect
of
which will not, individually or in the aggregate, be materially
adverse) and the absence of notes (that, if presented, would not
differ materially from those included in the Balance Sheet), applied on a
consistent basis, and fairly reflect and will reflect in all material respects
the financial condition of the Company as at the dates thereof and the results
of the operations of the Company for the periods then ended, and are true and
complete and are consistent with the books and records of the Company
.
3.8. Liabilities.
Except
as set forth on Schedule 3.8,
the
Company has no debt, liability or obligation of any kind, whether accrued,
absolute, contingent or otherwise, except: (a) those reflected on the
Balance Sheets, including the notes thereto, and (b) liabilities incurred
in the ordinary course of business since September 30, 2006, none of which
have
had or will have a material adverse effect on the financial condition of the
Company.
3.9. Absence
of Changes.
Except
as disclosed on Schedule 3.9,
from
September 30, 2006, to the date of this Agreement:
(a) there
has
not been any adverse change in the business, assets, liabilities, results of
operations or financial condition of the Company; and
(b) there
has
not been any: (i) change in the Company’s authorized or issued capital
stock; (ii) a declaration or payment of any dividend or other distribution
or payment in respect of shares of capital stock; or (iii) amendment to the
Articles of Incorporation or Bylaws of the Company.
3.10. Title
to Properties.
The
Company has good and marketable title to all of its properties and assets,
real
and personal, free and clear of all encumbrances, liens or charges of any kind
or character.
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3.11. Compliance
With Law.
The
business and activities of the Company have at all times been conducted in
accordance with its Articles of Incorporation and Bylaws and any applicable
law,
regulation, ordinance, order, License (as defined in Section 3.18), permit,
rule, injunction or other restriction or ruling of any court or administrative
or governmental agency, ministry, or body, except where the failure to do so
would not result in a material adverse effect on the Company.
3.12. Taxes.
Except
as stated on Schedule 3.12,
the
Company has duly filed all federal, provincial, and material local and foreign
tax returns and reports, and all returns and reports of all other governmental
units having jurisdiction with respect to taxes imposed on it or on its income,
properties, sales, franchises, operations or employee benefit plans or trusts,
all such returns were complete and accurate when filed, and all taxes and
assessments payable by the Company have been paid to the extent that such taxes
have become due. All taxes accrued or payable by the Company for all periods
through December 31, 2006, have been accrued or paid in full, whether or not
due
and payable and whether or not disputed. The Company has withheld or collected
and paid over to the appropriate governmental authorities (or is properly
holding for such payment) all Taxes required by law to be withheld or
collected, except for amounts which would not, individually or in the aggregate,
have a material adverse effect on the Company. For purposes of this Agreement,
“Tax”
or
“Taxes”
means
any and all taxes, fees, levies, duties, tariffs, imposts and other charges
of
any kind (together with any and all interest, penalties, additions to tax and
additional amounts imposed with respect thereto) imposed by any government
or taxing authority, including, without limitation: taxes or other charges
on or
with respect to income, franchises, windfall or other profits, gross receipts,
property, sales, use, capital stock, payroll, employment, social security,
workers’ compensation, unemployment compensation, or net worth; taxes or other
charges in the nature or excise, withholding, ad
valorem,
stamp,
transfer, value added or gains taxes, license, registration and documentation
fees, and custom duties, tariffs and similar charges.
3.13. Assets.
(a) The
Company owns, leases or has the right to use all the properties and assets,
including, without limitation, the real property and personal property, used
in
the conduct of its business or otherwise owned, leased, or used, and, with
respect to contract rights, is a party to and enjoys the right to the benefits
of all contracts, agreements and other arrangements used or intended to be
used
by the Company or in or relating to the conduct of its business (all such
properties, assets and contract rights being the “Assets”).
The
Company has good and marketable title to, or, in the case of leased or subleased
Assets, valid and subsisting leasehold interests in, all the Assets, free and
clear of all encumbrances.
(b) The
Assets constitute all the properties, assets and rights forming a part of,
used
or held in, and all such properties, assets and rights used in the conduct
of,
the business of the Company as it is currently conducted. All of the Assets
are
in good operating condition and repair, normal wear and tear
excepted.
3.14. Leases
of Real Property.
All
leases pursuant to which the Company is a lessee of any real property (the
“Leases”) are
listed in Schedule 3.14
and are
valid and enforceable in accordance with their terms. There is not under any
of
such Leases any material default or any claimed material default or any event
of
default or event which with notice or lapse of time, or both, would constitute
a
material default by the Company.
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3.15. Contingencies.
Except
as disclosed on Schedule 3.15,
there
are no actions, suits, claims or proceedings pending, or to the knowledge of
the
Company Shareholders threatened against, by or affecting, the Company in any
court or before any arbitrator or governmental agency that may have a material
adverse effect on the Company which could materially and adversely affect the
right or ability of the Company Shareholders to consummate the transactions
contemplated hereby. To the knowledge of the Company Shareholders and the
current management of the Company, there is no valid basis upon which any such
action, suit, claim, or proceeding may be commenced or asserted against the
Company. There are no unsatisfied judgments against the Company and no consent
decrees or similar agreements to which the Company is subject and which could
have a material adverse effect on the Company.
3.16. Employee
Benefit Matters.
There
are no employee benefit plans (as defined in Section 3(3) of
ERISA), bonus, stock option, stock purchase, restricted stock, incentive,
deferred compensation, retiree medical or life insurance, supplemental
retirement, severance or other benefit plans, programs or arrangements to which
the Company is a party, with respect to which the Company has any obligation,
or
which are maintained, contributed to, or sponsored by the Company for the
benefit of any current or former employee, officer, or director of the Company.
3.17. Intellectual
Property.
The
Company has: (a) the exclusive right to use the name Summit Medical
Technologies, Inc., and the use of such name does not conflict with or infringe
upon the rights of any other person, and (b) made all material filings and
publications required to register and perfect such exclusive right. The Company
is not, and will not be, subject to any liability, direct or indirect, for
infringement damages, royalties, or otherwise, by reason of (a) the use of
the name ‘Summit Technologies, Inc.’ in the United States or (b) the
business operations of the Company, at any time prior to the Closing Date.
The
Company has not registered the name “Summit Technologies, Inc.” for trademark or
use rights with any state or federal agency for exclusive use. The state of
New
Hampshire granted incorporation under the name “Summit Technologies,
Inc.”.
3.18. Possession
of Franchises, Licenses, Etc.
The
Company: (a) possesses all material franchises, certificates, licenses,
permits and other authorizations (collectively, the “Licenses”) from
governmental authorities, political subdivisions or regulatory authorities
that
are necessary for the ownership, maintenance and operation of its business
in
the manner presently conducted; (b) is not in violation of any provisions
thereof; and (c) has maintained and amended, as necessary, all Licenses and
duly completed all filings and notifications in connection therewith.
Schedule 3.18
sets
forth a list of all of the Company’s Licenses.
3.19 Litigation.
Except
as disclosed on Schedule
3.19,
there
is no suit, action or proceeding pending, and no person has overtly-threatened
in a writing delivered to the Company or the Company Shareholders to commence
any suit, action or proceeding, against or affecting the Company, nor is there
any judgment, decree, injunction, or order of any governmental entity or
arbitrator outstanding against, or, to the knowledge of the Company, pending
investigation by any governmental entity involving the Company or the Company
Shareholders.
3.20. Material
Contracts.
Schedule 3.20
contains
a complete list of all contracts of the Company, which involve consideration
in
excess of the equivalent of Ten Thousand Dollars ($10,000) or have a term of
one
(1) year or more (the “Material
Contracts”).
The
Company has delivered to Central Wireless a true, correct and complete copy
of
each of the written contracts, and a summary of each oral contract, listed
on
Schedule 3.20.
Except
as disclosed in Schedule 3.20:
(a) the Company has performed all material obligations to be performed by
it under all such contracts, and is not in material default thereof, and
(b) no condition exists or has occurred which with the giving of notice or
the lapse of time, or both, would constitute a material default or accelerate
the maturity of, or otherwise modify, any such contract, and (c) all such
contracts are in full force and effect. No material default by any other party
to any of such contracts is known or claimed by the Company or any Company
Shareholders to exist.
10
3.21. Employment
and Labor Matters.
Schedule 3.21
sets
forth the name, position, employment date, and current compensation (base and
bonus) of each employee of the Company. The Company is not a party to any
collective bargaining agreement or agreement of any kind with any union or
labor
organization.
3.22. Environmental
Matters.
Except
as set forth on Schedule 3.22,
the
Company is not in violation, in any material respect, of any Environmental
Law
(as defined herein); the Company has received all permits and approvals with
respect to emissions into the environment and the proper collection, storage,
transport, distribution or disposal of Wastes (as defined herein) and other
materials required for the operation of its business at present operating
levels; and they are not liable or responsible for any clean up, fines,
liability or expense arising under any Environmental Law, as a result of the
disposal of Wastes or other materials in or on the property of the Company
(whether owned or leased), or in or on any other property, including property
no
longer owned, leased or used by the Company. As used herein,
(a) “Environmental
Laws”
means,
collectively, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, the Superfund Amendments and Reauthorization
Act of 1986, the Resource Conservation and Recovery Act, the Toxic Substances
Control Act, as amended, the Clean Air Act, as amended, the Clean Water Act,
as
amended, any other “Superfund”
or
“Superlien”
law
or
any other federal, or applicable state or local statute, law, ordinance, code,
rule, regulation, order or decree (foreign or domestic) regulating,
relating to, or imposing liability or standards of conduct concerning, Wastes,
or the environment; and (b) “Wastes”
means
and includes any hazardous, toxic or dangerous waste, liquid, substance or
material (including petroleum products and derivatives), the generation,
handling, storage, disposal, treatment or emission of which is subject to any
Environmental Law.
3.23. Full
Disclosure.
No
representation or warranty of the Company Shareholders contained in this
Agreement, and none of the statements or information concerning the Company
or
contained in this Agreement and the Schedules, contains or will contain as
of
the date hereof and as of the Closing Date any untrue statement of a material
fact nor will such representations, warranties, covenants or statements taken
as
a whole omit 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.
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4.
|
REPRESENTATIONS
AND WARRANTIES OF CENTRAL WIRELESS.
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To
induce
the Company Shareholders to enter into this Agreement and to consummate the
transactions contemplated hereby, Central Wireless represents and warrants
to
and covenants with the Company and the Company Shareholders as
follows:
4.1. Organization.
Central
Wireless is a corporation duly organized, validly existing and in good standing
under the laws of the State of Utah. Central Wireless is entitled to own or
lease its properties and to carry on its business as and in the places where
such business is now conducted, and Central Wireless is duly licensed and
qualified in all jurisdictions where the character of the property owned by
it
or the nature of the business transacted by it makes such license or
qualification necessary, except where such failure would not result in a
material adverse effect on Central Wireless.
11
4.2. Capitalization
and Related Matters.
(a) Central
Wireless has an authorized capital stock consisting of Two
Billion (2,000,000,000) shares of CWIR Common Stock, of which One Billion
Nine Hundred Fifty-Four Million One Hundred Ninety-Two Thousand Four Hundred
Fifty-One (1,954,192,451) shares
are issued and outstanding, Nine Million Nine Hundred Ninety-Nine Thousand
Nine
Hundred (9,999,900) shares of undesignated preferred stock, of which no shares
are issued and outstanding, par value $0.01 per share, and One Hundred (100)
shares of Series A Convertible Preferred Stock, par value $0.01 per share,
of
which no shares are issued and outstanding. Except as disclosed in documents
filed by Central Wireless with the SEC, Central Wireless does not have
outstanding any securities convertible into capital stock, nor any rights to
subscribe for or to purchase, or any options for the purchase of, or any
agreements providing for the issuance (contingent or otherwise) of, or
any calls, commitments or claims of any character relating to, its capital
stock
or securities convertible into its capital stock.
4.3. Execution;
No Inconsistent Agreements; Etc.
(a) The
execution and delivery of this Agreement and the performance of the transactions
contemplated hereby have been duly and validly authorized and approved by
Central Wireless and this Agreement is a valid and binding agreement of Central
Wireless enforceable against Central Wireless in accordance with its terms,
except as such enforcement may be limited by bankruptcy or similar laws
affecting the enforcement of creditors’ rights generally, and the availability
of equitable remedies.
(b) The
execution and delivery of this Agreement by Central Wireless does not, and
the
consummation of the transactions contemplated hereby will not, constitute a
breach or violation of the charter or bylaws of Central Wireless or a default
under any of the terms, conditions or provisions of (or an act or omission
that
would give rise to any right of termination, cancellation or acceleration
under) any material note, bond, mortgage, lease, indenture, agreement or
obligation to which Central Wireless is a party, pursuant to which any of them
otherwise receive benefits, or by which any of their properties may be
bound.
4.4. Financial
Statements.
Central
Wireless has delivered to the Company the consolidated audited balance sheets
of
Central Wireless as of December 31, 2005, the consolidated audited statement
of
income for the fiscal year ended December 31, 2005 and the consolidated
unaudited balance sheet as of September 30, 2006 (collectively, the
“CWIR
Financial Statements”).
The
CWIR Financial Statements have been prepared in accordance with GAAP, applied
on
a consistent basis (except that the unaudited statements do not contain all
the
disclosures required by GAAP), and fairly reflect in all material respects
the
consolidated financial condition of Central Wireless as at the dates thereof
and
the consolidated results of Central Wireless’s operations for the periods then
ended.
12
4.5 Articles
of Incorporation and By-Laws.
Central
Wireless has heretofore made available and delivered to the Company a complete
and correct copy of the Articles of Incorporation and its By-Laws. Such Articles
of Incorporation and By-Laws are in full force and effect and have not been
amended or modified.
4.6. Liabilities.
Except
as disclosed in the SEC public filings, Central Wireless does not have any
material debt, liability or obligation of any kind, whether accrued, absolute,
contingent or otherwise, except (a) those reflected on the CWIR Financial
Statements, including the notes thereto, and (b) liabilities incurred in
the ordinary course of business since September 30, 2006, none of which have
had
or will have a material adverse affect on the financial condition of Central
Wireless taken as a whole. As of the Closing Date, Central Wireless is not
in
default on any material obligations to other third parties.
4.7. Contingencies.
Except
as disclosed in the SEC public filings, there are no actions, suits, claims
or
proceedings pending or, to the knowledge of the management of Central Wireless,
threatened against, by or affecting it in any court or before any arbitrator
or
governmental agency which could have a material adverse effect on Central
Wireless or which could materially and adversely affect the right or ability
of
Central Wireless to consummate the transactions contemplated hereby. To the
knowledge of Central Wireless there is no valid basis upon which any such
action, suit, claim or proceeding may be commenced or asserted against Central
Wireless. There are no unsatisfied judgments against Central Wireless and no
consent decrees or similar agreements to which Central Wireless is subject
and
which could have a material adverse effect on Central Wireless or which could
materially and adversely affect the right or ability of Central Wireless to
consummate the transactions contemplated hereby.
4.8 Full
Disclosure.
No
representation or warranty of Central Wireless contained in this Agreement,
and
none of the statements or information concerning Central Wireless contained
in
this Agreement and the Schedules, contains or will contain as of the date hereof
and as of the Closing Date any untrue statement of a material fact nor will
such
representations, warranties, covenants or statements taken as a whole omit
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.
4.9 No
Delisting Proceedings.
To the
knowledge of Central Wireless, there are no delisting proceedings known,
threatened or pending against Central Wireless by the exchange on which it
currently trades.
4.10. No
Operations.
As of
the Closing Date, Central Wireless is non-operational. As of June 30, 2005,
Central Wireless has not entered or executed any material contracts under which
it may have financial or other outstanding obligations.
4.11 SEC
Filings.
Central
Wireless has filed with the SEC its Annual Report on Form 10-KSB for the
fiscal year ended December 31, 2005, and all the quarterly reports for the
each
fiscal quarter in 2006.
4.12. Absence
of Changes.
Except
as disclosed on Schedule 4.12,
from
September 30, 2006, to the date of this Agreement:
(a) there
has
not been any adverse change in the business, assets, liabilities, results of
operations or financial condition of Central Wireless; and
13
(b) there
has
not been any: (i) change in authorized or issued capital stock of Central
Wireless; (ii) a declaration or payment of any dividend or other
distribution or payment in respect of shares of capital stock; or
(iii) amendment to the Articles of Incorporation or Bylaws of Central
Wireless.
4.13. Litigation.
Except
as disclosed in the SEC public filings, there is no suit, action or proceeding
pending, and no person has overtly-threatened in a writing delivered to Central
Wireless or the Central Wireless Shareholders to commence any suit, action
or
proceeding, against or affecting Central Wireless, nor is there any judgment,
decree, injunction, or order of any governmental entity or arbitrator
outstanding against, or, to the knowledge of Central Wireless, pending
investigation by any governmental entity involving, Central Wireless, or the
Central Wireless Shareholders.
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5.
|
[INTENTIONALLY
NOT USED]
|
|
6.
|
CONDITIONS
TO OBLIGATIONS OF ALL PARTIES.
|
The
obligation of the Company, the Company Shareholders and Central Wireless to
consummate the transactions contemplated by this Agreement are subject to the
satisfaction, on or before the Closing, of each of the following conditions;
any
or all of which may be waived in whole or in part by the joint agreement of
Central Wireless the Company and the Company Shareholders:
6.1. Absence
of Actions.
No
action or proceeding shall have been brought or threatened before any court
or
administrative agency to prevent the consummation or to seek damages in a
material amount by reason of the transactions contemplated hereby, and no
governmental authority shall have asserted that the within transactions (or
any
other pending transaction involving Central Wireless, the Company Shareholders
or the Company when considered in light of the effect of the within
transactions) shall constitute a violation of law or give rise to material
liability on the part of the Company Shareholders, the Company or Central
Wireless.
6.2. Consents.
The
parties shall have received from any suppliers, lessors, lenders, lien holders
or governmental authorities, bodies or agencies having jurisdiction over the
transactions contemplated by this Agreement, or any part hereof, such consents,
authorizations and approvals as are necessary for the consummation hereof,
including, without limitation, the consents listed on Schedule 6.2.
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7.
|
CONDITIONS
TO OBLIGATIONS OF CENTRAL WIRELESS.
|
All
obligations of Central Wireless to consummate the transactions contemplated
by
this Agreement are subject to the fulfillment and satisfaction of each and
every
of the following conditions on or prior to the Closing, any or all of which
may
be waived in whole or in part by Central Wireless:
7.1. Representations
and Warranties.
The
representations and warranties contained in Section 3 of this Agreement and
in any certificate, instrument, schedule, agreement or other writing delivered
by or on behalf of the Company Shareholders in connection with the transactions
contemplated by this Agreement shall be true, correct and complete in all
material respects (except for representations and warranties which are by
their terms qualified by materiality, which shall be true, correct and complete
in all respects) as of the date when made and shall be deemed to be made
again at and as of the Closing Date and shall be true, correct and complete
at
and as of such time in all material respects (except for representations and
warranties which are by their terms qualified by materiality, which shall be
true, correct and complete in all respects).
14
7.2. Compliance
with Agreements and Conditions.
The
Company Shareholders and the Company shall have performed and complied with
all
material agreements and conditions required by this Agreement to be performed
or
complied with by them and/or by the Company prior to or on the Closing Date.
7.3. Absence
of Material Adverse Changes.
No
material adverse change in the business, assets, financial condition, or
prospects of the Company shall have occurred, and no event shall have occurred
which has had or will have a material adverse effect on the business, assets,
financial condition or prospects of the Company.
7.4. Certificate
of the Company Shareholders.
The
Company Shareholders shall have executed and delivered, or caused to be executed
and delivered, to Central Wireless one (1) or more certificates, dated the
Closing Date, certifying in such detail as Central Wireless may reasonably
request to the fulfillment and satisfaction of the conditions specified in
Sections 7.1 through 7.3 above.
7.5. Obligations
To Be Paid At Signing.
As
partial consideration for the CWIR Exchange Shares, the Company, via additional
funding from NIR or any of its affiliates (collectively, “NIR”),
which
funding shall be added to the Note (as defined below), shall have paid and
shall
have discharged upon the execution of this Agreement the outstanding balances
owed to the entities and persons as set forth on Schedule B.
7.6. Financing.
Central
Wireless shall have completed a financing transaction with NIR relating to
the
issuance of an 8% Callable Secured Convertible Note (the “Note”),
made
by Central Wireless to NIR, subject to the terms and conditions set forth in
the
Term Sheet attached hereto as Exhibit H.
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8.
|
CONDITIONS
TO OBLIGATIONS OF THE COMPANY SHAREHOLDERS.
|
All
of
the obligations of the Company Shareholders to consummate the transactions
contemplated by this Agreement are subject to the fulfillment and satisfaction
of each and every one of the following conditions on or prior to the Closing,
any or all of which may be waived in whole or in part by the Company
Shareholders:
8.1. Representations
and Warranties.
The
representations and warranties contained in Section 4 of this Agreement and
in any certificate, instrument, schedule, agreement or other writing delivered
by or on behalf of Central Wireless in connection with the transactions
contemplated by this Agreement shall be true and correct in all material
respects (except for representations and warranties which are by their terms
qualified by materiality, which shall be true, correct and complete in all
respects) when made and shall be deemed to be made again at and as of the
Closing Date and shall be true at and as of such time in all material respects
(except for representations and warranties which are by their terms qualified
by
materiality, which shall be true, correct and complete in all
respects).
15
8.2. Compliance
with Agreements and Conditions.
Central
Wireless shall have performed and complied with all material agreements and
conditions required by this Agreement to be performed or complied with by
Central Wireless prior to or on the Closing Date.
8.3. Absence
of Material Adverse Changes.
No
material adverse change in the assets or financial condition of Central Wireless
shall have occurred and no event shall have occurred which has had, or will
have
a material adverse effect on the assets or financial condition of Central
Wireless, taken as a whole.
8.4 SEC
Filings.
Central
Wireless shall have filed with the SEC its Annual Report on Form 10-KSB for
the
fiscal years ended December 31, 2005 and December 31, 2006.
8.5. Board
Approval.
This
Agreement and the transactions contemplated hereby shall have been approved
by
the Board of Directors of Central Wireless.
8.6. Shareholder
Approval.
This
Agreement and the transactions contemplated hereby shall have been approved
by
at least fifty-one percent (51%) of the shareholders of Central
Wireless.
8.7 Certificate
of Central Wireless.
Central
Wireless shall have delivered to the Company Shareholders a certificate,
executed by an executive officer and dated the Closing Date, certifying to
the
fulfillment and satisfaction of the conditions specified in Sections 8.1 through
8.6 above.
8.8 Special
Board Meeting.
Central
Wireless shall cause a special meeting of the Board of Directors, currently
consisting of Mr. Brand as sole Director, to be held on or shortly after
the Closing Date. At such meeting, nominees designated by the Company shall
be
appointed as new directors of Central Wireless, and all resignations of officers
tendered on the meeting shall be accepted. Mr. Brand shall also submit his
resignation as sole Director of Central Wireless which shall become effective
upon the effectiveness of Schedule 14F-1.
8.9 Schedule
14C.
Central
Wireless shall have filed a Schedule 14C with the SEC and shall have mailed
the
same to each of the shareholders of Central Wireless not less than twenty (20)
days prior to the Closing, which such Schedule 14C shall set forth the intent
of
the requisite number of shareholders, in accordance with applicable law, to
approve (a) this Agreement and the transactions contemplated hereby in
accordance with Section 1.5 herein, (b) the Share Increase in accordance with
Section 1.6 herein and (c) the Reverse Split in accordance with Section 1.6
herein.
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9.
|
INDEMNITY.
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9.1. Brand
Escrow Fund.
At
Closing, the Brand Escrow Shares will be registered in the name of, and
deposited with, the Escrow Agent, and such deposit shall constitute the escrow
fund (the “Brand
Escrow Fund”)
and
shall be governed by the terms set forth in that certain Brand Escrow Agreement.
The Brand Escrow Fund will be available to compensate the Company and the
Company Shareholders pursuant to the indemnification obligations of Central
Wireless.
16
9.2 Indemnification
by Company Shareholders.
Subject
to Section 9.5, the Company Shareholders (hereinafter, collectively, called
the
“Shareholder
Indemnitors”) shall
jointly and severally defend, indemnify and hold harmless Central Wireless
and
its direct and indirect Subsidiaries (including the Company after
Closing) and affiliates, their officers, directors, employees and agents
(hereinafter, collectively, called “CWIR
Indemnitees”) against
and in respect of any and all loss, damage, liability, fine, penalty, cost
and
expense, including reasonable attorneys’ fees and amounts paid in settlement
(collectively, “CWIR
Losses”),
suffered or incurred by any CWIR Indemnitee by reason of, or arising out of:
(a) any
misrepresentation, breach of warranty or breach or non-fulfillment of any
agreement of the Company Shareholders contained in this Agreement or in any
certificate, schedule, instrument or document delivered to Central Wireless
by
or on behalf of the Company Shareholders or the Company pursuant to the
provisions of this Agreement (without regard to materiality thresholds contained
therein); and
(b) any
liabilities of the Company or of any nature whatsoever (including tax
liability, penalties and interest), whether accrued, absolute, contingent or
otherwise, (i) existing as of the date of the Balance Sheet, and required
to be shown therein in accordance with applicable GAAP, to the extent not
reflected or reserved against in full in the Balance Sheet; or (ii) arising
or occurring between September 30, 2006 and the Closing Date, except for
liabilities arising in the ordinary course of business, none of which shall
have
a material adverse effect on the Company.
9.3. Indemnification
by Central Wireless.
Subject
to Section 9.5, Central Wireless (hereinafter called the “CWIR
Indemnitor”) shall
jointly and severally defend, indemnify and hold harmless the Company
Shareholders (hereinafter called “Shareholder
Indemnitees”) against
and in respect of any and all loss, damage, liability, fine, penalty, cost
and
expense, including reasonable attorneys’ fees and amounts paid in settlement
(collectively, “Shareholder
Losses”),
suffered or incurred by any Shareholder Indemnitees by reason of, or arising
out
of:
(a) any
misrepresentation, breach of warranty or breach or non-fulfillment of any
material agreement of Central Wireless contained in this Agreement or in any
other certificate, schedule, instrument or document delivered to the Company
Shareholders by or on behalf of Central Wireless pursuant to the provisions
of
this Agreement (without regard to materiality thresholds contained therein);
and
(b) for
a
period of one (1) year after Closing, any liabilities of Central Wireless of
any
nature whatsoever (including tax liability, penalties and interest),
whether accrued, absolute, contingent or otherwise, arising from the ownership
of Central Wireless or the operation of Central Wireless after Closing, but
only
so long as such liability is not the result of an act or omission of Central
Wireless occurring prior to the Closing. CWIR Losses and Shareholder Losses
are
sometimes collectively referred to as “Indemnifiable
Losses”.
17
9.4. Defense
of Claims.
(a) Each
party seeking indemnification hereunder (an “Indemnitee”):
(i) shall provide the other party or parties (the “Indemnitor”) written
notice of any claim or action by a third party arising after the Closing Date
for which an Indemnitor may be liable under the terms of this Agreement, within
ten (10) days after such claim or action arises and is known to Indemnitee,
and (ii) shall give the Indemnitor a reasonable opportunity to participate
in any proceedings and to settle or defend any such claim or action. The
expenses of all proceedings, contests or lawsuits with respect to such claims
or
actions shall be borne by the Indemnitor. If the Indemnitor wishes to assume
the
defense of such claim or action, the Indemnitor shall give written notice to
the
Indemnitee within ten (10) days after notice from the Indemnitee of such
claim or action, and the Indemnitor shall thereafter assume the defense of
any
such claim or liability, through counsel reasonably satisfactory to the
Indemnitee, provided that Indemnitee may participate in such defense at their
own expense, and the Indemnitor shall, in any event, have the right to control
the defense of the claim or action.
(b) If
the
Indemnitor shall not assume the defense of, or if after so assuming it shall
fail to defend, any such claim or action, the Indemnitee may defend against
any
such claim or action in such manner as they may deem appropriate and the
Indemnitees may settle such claim or litigation on such terms as they may deem
appropriate but subject to the Indemnitor’s approval, such approval not to be
unreasonably withheld; provided, however, that any such settlement shall be
deemed approved by the Indemnitor if the Indemnitor fails to object thereto,
by
written notice to the Indemnitee, within fifteen (15) days after the
Indemnitor’s receipt of a written summary of such settlement. The Indemnitor
shall promptly reimburse the Indemnitee for the amount of all expenses, legal
and otherwise, incurred by the Indemnitee in connection with the defense and
settlement of such claim or action.
(c) If
a
non-appealable judgment is rendered against any Indemnitee in any action covered
by the indemnification hereunder, or any lien attaches to any of the assets
of
any of the Indemnitee, the Indemnitor shall immediately upon such entry or
attachment pay such judgment in full or discharge such lien unless, at the
expense and direction of the Indemnitor, an appeal is taken under which the
execution of the judgment or satisfaction of the lien is stayed. If and when
a
final judgment is rendered in any such action, the Indemnitor shall forthwith
pay such judgment or discharge such lien before any Indemnitee is compelled
to
do so.
9.5. Waiver.
The
failure of any Indemnitee to give any notice or to take any action hereunder
shall not be deemed a waiver of any of the rights of such Indemnitee hereunder,
except to the extent that Indemnitor is actually prejudiced by such
failure.
9.6. Limitations
on Indemnification.
Notwithstanding anything to the contrary contained in this
Agreement:
9.6.1. Time
Limitation.
No
party shall be responsible hereunder for any Indemnifiable Loss unless the
Indemnitee shall have provided such party with written notice containing a
reasonable description of the claim, action or circumstances giving rise to
such
Indemnifiable Loss within three (3) years after the Closing Date (the
“Indemnity
Notice Period”);
provided, however, that:
(a) with
respect to any Indemnifiable Loss resulting or arising from any breach of a
representation or warranty of the Company Shareholders relating to taxes, or
any
tax liability of the Company arising or relating to periods prior to the Closing
Date, the Indemnity Notice Period shall extend for the full duration of the
statute of limitations; and
18
(b) there
shall be no limit on the Indemnity Notice Period for indemnity claims:
(i) against the Company Shareholders for Indemnifiable Losses arising or
resulting from a breach of a representation or warranty relating to
Environmental Laws, or any liability which relates to the handling or disposal
of Wastes or the failure to comply with any Environmental Law; and
(ii) against any party based on fraud or intentional breach or
misrepresentation.
9.6.2. Basket.
No
party shall have any liability hereunder for Indemnifiable Losses after the
Closing, with respect to a breach of the representations and warranties
contained herein, until the aggregate of all Indemnifiable Losses for which
the
Company Shareholder or Central Wireless as applicable, are responsible under
this Agreement exceeds Ten Thousand Dollars ($10,000) (the
“Basket”);
provided that once such Basket is exceeded for the Company Shareholders or
Central Wireless as applicable, the responsible party or parties shall be
responsible for all Indemnifiable Losses, from the first dollar as if such
Basket never existed; and further provided that this Section 9.6.2 shall
not limit in any respect indemnity claims: (a) based upon fraud or
intentional breach or intentional misrepresentation; (b) arising from a
breach by the CWIR Indemnitor of any covenant contained in this Agreement;
(c) arising from a breach by the Company Shareholders of any representation
or warranty contained in Section 3.2 hereof; or (d) related to any tax
or tax liability of the Company for periods prior to the Closing
Date.
9.7. Calculation
of Value of Escrow Shares.
For the
purposes of determining the number of shares of the Escrow Shares to be
delivered in satisfaction of an indemnification obligation under this Section
9
(to the extent payment is made by the Escrow Shares), the price per share shall
be equal to the Fair Market Value (defined below) at the time the loss was
discovered (or reasonably should have been known) or on the date an
indemnification notice is given, whichever is greater. Strictly for purposes
of
this Section 9, “Fair
Market Value”
of
an
Escrow Share as of a particular date means: (i) the average of the closing
prices over the ten (10) day period ending immediately before the applicable
date of valuation, if the Escrow Shares are then traded in the over-the-counter
market (including trading on the Nasdaq OTC Bulletin Board); (ii) the
average of the closing prices of the Escrow Shares over the five (5) business
days ending immediately before the applicable date of valuation, if the Escrow
Shares are then traded on a securities exchange or the Nasdaq National Market
or
Nasdaq Small Cap Market; and (iii) as determined in good faith by an
independent third-party appraiser upon a review of relevant factors, if no
active public market exists for the Escrow Shares.
|
10.
|
TERMINATION.
|
10.1. Termination.
This
Agreement may be terminated at any time on or prior to the Closing:
(a) By
mutual
consent of Central Wireless and the Company Shareholders; or
(b) At
the
election of Central Wireless if: (i) the Company Shareholders have breached
or failed to perform or comply with any of their representations, warranties,
covenants or obligations under this Agreement; or (ii) any of the
conditions precedent set forth in Sections 6 or 7 is not satisfied as
and when required by this Agreement; or (iii) the Closing has not been
consummated by the Outside Date.
19
(c) At
the
election of the Company Shareholders if: (i) Central Wireless has breached
or failed to perform or comply with any of its representations, warranties,
covenants or obligations under this Agreement; or (ii) any of the
conditions precedent set forth in Sections 6 or 8 is not satisfied as and
when required by this Agreement; or (iii) the Closing has not been
consummated by the Outside Date.
10.2. Manner
and Effect of Termination.
Written
notice of any termination (“Termination
Notice”) pursuant
to this Section 10 shall be given by the party electing termination of this
Agreement (“Terminating
Party”) to
the other party or parties (collectively, the “Terminated
Party”),
and
such notice shall state the reason for termination. The party or parties
receiving Termination Notice shall have a period of ten (10) days
after receipt of Termination Notice to cure the matters giving rise to such
termination to the reasonable satisfaction of the Terminating Party. If the
matters giving rise to termination are not cured as required hereby, this
Agreement shall be terminated effective as of the close of business on the
tenth
(10th) day following the Terminated Party’s receipt of Termination Notice.
Upon termination of this Agreement prior to the consummation of the Closing
and
in accordance with the terms hereof, this Agreement shall become void and of
no
effect, and none of the parties shall have any liability to the others, except
that nothing contained herein shall relieve any party from: (a) its
obligations under Sections 2.2 and 2.3; or (b) liability for its
intentional breach of any representation, warranty or covenant contained herein,
or its intentional failure to comply with the terms and conditions of this
Agreement or to perform its obligations hereunder.
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11.
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MISCELLANEOUS.
|
11.1. Notices.
(a) All
notices, requests, demands, or other communications required or permitted
hereunder shall be in writing and shall be deemed to have been duly given upon
receipt if delivered in person, or upon the expiration of four (4) days
after the date sent, if sent by federal express (or similar overnight courier
service) to the parties at the following addresses:
|
(i)
|
If
to Central Wireless:
|
Central
Wireless, Inc.
|
|
0000
Xxxxxxx Xxxx
|
||
|
Xxxxxxxx,
Xxxxxxx 00000
|
||
|
Attention:
Xxxxxxx X. Brand
|
||
|
Fax:
000-000-0000
|
||
|
with
a copy to:
|
Xxxxxxxxxxx
& Xxxxxxxx Xxxxxxx Xxxxx Xxxxx LLP
|
|
|
000
Xxxxx Xxxxxxxx Xxxx.
|
||
|
Xxxxx
0000, Xxxxx Xxxxxx
|
||
|
Xxxxx,
Xxxxxxx 00000-0000
|
||
|
Attention:
Xxxxxxx X. Xxxxxx, Esq.
|
||
|
Fax:
000-000-0000
|
20
|
(ii)
|
If
to the Company:
|
Summit
Medical Technologies, Inc.
|
|
X.X.
Xxx 0000
|
||
|
Xxxxxxx,
Xxx Xxxxxxxxx 00000
|
||
|
Attention:
Xxxxxxx Xxxxxxxx
|
||
|
Fax:
000-000-0000
|
||
|
(iii)
|
with
a copy to:
|
Xxxxxxx
Xxxxxx LLP
|
|
000
Xxxxxxxxx Xxxxxx
|
||
|
Xxx
Xxxx, Xxx Xxxx 00000
|
||
|
Attention:
Xxx Xxxxxxxxx, Esq.
|
||
|
Telephone:
000-000-0000
|
||
|
Fax:
000-000-0000
|
||
|
(iv)
|
If
to Company
|
|
|
Shareholders:
|
See
the names and addresses listed on
|
|
|
Exhibit A
attached hereto.
|
||
(b) Notices
may also be given in any other manner permitted by law, effective upon actual
receipt. Any party may change the address to which notices, requests, demands
or
other communications to such party shall be delivered or mailed by giving notice
thereof to the other parties hereto in the manner provided herein.
11.2. Survival.
Except
as provided in the next sentence, the representations, warranties, agreements
and indemnifications of the parties contained in this Agreement or in any
writing delivered pursuant to the provisions of this Agreement shall survive
any
investigation heretofore or hereafter made by the parties and the consummation
of the transactions contemplated herein and shall continue in full force and
effect after the Closing, subject to the limitations of Section 9.5. The
representations, warranties and agreements of the Company contained in this
Agreement shall not survive the Closing.
11.3. Counterparts;
Interpretation.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original, and all of which shall constitute one and the same
instrument. This Agreement supersedes all prior discussions and agreements
between the parties with respect to the subject matter hereof, and this
Agreement contains the sole and entire agreement among the parties with respect
to the matters covered hereby. All Schedules hereto shall be deemed a part
of
this Agreement. This Agreement shall not be altered or amended except by an
instrument in writing signed by or on behalf of all of the parties hereto.
No
ambiguity in any provision hereof shall be construed against a party by reason
of the fact it was drafted by such party or its counsel. For purposes of this
Agreement: “herein”, “hereby”, “hereunder”, “herewith”, “hereafter” and
“hereinafter” refer to this Agreement in its entirety, and not to any particular
section or paragraph. References to “including”
means
including without limiting the generality of any description preceding such
term. Nothing expressed or implied in this Agreement is intended, or shall
be
construed, to confer upon or give any person other than the parties hereto
any
rights or remedies under or by reason of this Agreement.
11.4. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Utah, without reference to its conflict of law rules. The parties
hereto agree that any claim, suit, action or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby shall be
submitted for adjudication exclusively in any state or federal court sitting
in
New Hampshire, and each party hereto expressly agrees to be bound by such
selection of jurisdiction and venue for purposes of such adjudication. Each
party (a) waives any objection which it may have that such court is not a
convenient forum for any such adjudication, (b) agrees and consents to the
personal jurisdiction of such court with respect to any claim or dispute arising
out of or relating to this Agreement or the transactions contemplated hereby
and
(c) agrees that process issued out of such court or in accordance with the
rules
of practice of such court shall be properly served if served personally or
served by certified mail or other form of substituted service, as provided
under
the rules of practice of such court.
21
11.5. Successors
and Assigns; Assignment.
This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective heirs, executors, legal representatives, and
successors; provided, however, that no Company Shareholder may assign this
Agreement or any rights hereunder, in whole or in part.
11.6. Partial
Invalidity and Severability.
All
rights and restrictions contained herein may be exercised and shall be
applicable and binding only to the extent that they do not violate any
applicable laws and are intended to be limited to the extent necessary to render
this Agreement legal, valid and enforceable. If any terms of this Agreement
not
essential to the commercial purpose of this Agreement shall be held to be
illegal, invalid or unenforceable by a court of competent jurisdiction, it
is
the intention of the parties that the remaining terms hereof shall constitute
their agreement with respect to the subject matter hereof and all such remaining
terms shall remain in full force and effect. To the extent legally permissible,
any illegal, invalid or unenforceable provision of this Agreement shall be
replaced by a valid provision which will implement the commercial purpose of
the
illegal, invalid or unenforceable provision.
11.7. Waiver.
Any
term or condition of this Agreement may be waived at any time by the party
which
is entitled to the benefit thereof, but only if such waiver is evidenced by
a
writing signed by such party. No failure on the part of a party hereto to
exercise, and no delay in exercising, any right, power or remedy created
hereunder, shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or remedy by any such party preclude any other
future exercise thereof or the exercise of any other right, power or remedy.
No
waiver by any party hereto to any breach of or default in any term or condition
of this Agreement shall constitute a waiver of or assent to any succeeding
breach of or default in the same or any other term or condition
hereof.
11.8. Headings.
The
headings as to contents of particular paragraphs of this Agreement are inserted
for convenience only and shall not be construed as a part of this Agreement
or
as a limitation on the scope of any terms or provisions of this
Agreement.
11.9. Expenses.
Except
as otherwise expressly provided herein, all legal and other costs and expenses
incurred in connection with this Agreement and the transactions contemplated
hereby shall be paid by Central Wireless or the Company Shareholders as each
party incurs such expenses, and none of such expenses shall be charged to or
paid by the Company.
11.10. Finder’s
Fees.
Central
Wireless represents to the Company Shareholders that no broker, agent, finder
or
other party has been retained by it in connection with the transactions
contemplated hereby and that no other fee or commission has been agreed by
Central Wireless to be paid for or on account of the transactions contemplated
hereby. The Company Shareholders represent to Central Wireless that no broker,
agent, finder or other party has been retained by Company Shareholders or the
Company in connection with the transactions contemplated hereby and that no
other fee or commission has been agreed by the Company Shareholders or the
Company to be paid for or on account of the transactions contemplated
hereby.
22
11.11. Gender.
Where
the context requires, the use of the singular form herein shall include the
plural, the use of the plural shall include the singular, and the use of any
gender shall include any and all genders.
11.12. Acceptance
by Fax.
This
Agreement shall be accepted, effective and binding, for all purposes, when
the
parties shall have signed and transmitted to each other, by telecopier or
otherwise, copies of the signature pages hereto.
11.13. Attorneys’
Fees.
In the
event of any litigation arising under the terms of this Agreement, the
prevailing party or parties shall be entitled to recover its or their reasonable
attorneys’ fees and court costs from the other party or parties.
11.14. Opportunity
to Hire Counsel; Role of Xxxxxxxxxxx
& Xxxxxxxx Xxxxxxx Xxxxx Xxxxx LLP.
The
Company and the Company Shareholders acknowledge that they have been advised
and
have been given an opportunity to hire counsel with respect to this Agreement
and the transactions contemplated hereby. The Company Shareholders further
acknowledge that the law firm of Xxxxxxxxxxx & Xxxxxxxx Xxxxxxx Xxxxx Xxxxx
LLP did not provide them any legal advice, including any tax advice with respect
to the transactions contemplated by this Agreement. The Company Shareholders
further acknowledge that the law firm of Xxxxxxxxxxx & Xxxxxxxx Xxxxxxx
Xxxxx Xxxxx LLP has solely represented Central Wireless in connection with
this
Agreement and the transactions contemplated hereby and no other
person.
11.15. Time
is of the Essence.
It is
understood and agreed among the parties hereto that time is of the essence
in
this Agreement and this applies to all terms and conditions contained
herein.
11.16. NO
JURY TRIAL.
THE
PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT ANY
OF
THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON
OR
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT AND ANY DOCUMENT
CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY
PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES’ ACCEPTANCE OF
THIS AGREEMENT.
[REMAINDER
OF THE PAGE INTENTIONALLY LEFT BLANK]
23
[THIS
PAGE WAS INTENTIONALLY LEFT BLANK]
24
IN
WITNESS WHEREOF,
the
parties have executed this Share Exchange Agreement to be duly executed by
their
duly authorized officers as of the day and year first above
written.
|
CENTRAL
WIRELESS, INC.,
|
|
|
a
Utah corporation
|
|
|
By:
/s/
Xxxxxxx X. Brand
Name: Xxxxxxx
X. Brand
|
|
|
Title: CEO
|
|
|
XXXXXXX
X. BRAND, an individual:
|
|
|
By:
/s/ Xxxxxxx X. Brand
Name: Xxxxxxx
X. Brand
|
25
|
THE
COMPANY:
|
|
|
SUMMIT
MEDICAL TECHNOLOGIES, INC.,
|
|
|
a
New Hampshire corporation
|
|
|
By:
/s/ Xxxxxxx
Xxxxxxxx
Name: Xxxxxxx
Xxxxxxxx
|
|
|
Title: President
|
|
|
COMPANY
SHAREHOLDERS:
|
|
|
By:
/s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx
Xxxxxxxx
|
|
|
Title: Sole
Shareholder
|
26
