REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of June 30, 2000, between
the investor or investors signatory hereto (each an "Investor" and together the
"Investors"), and Worldwide Wireless Networks, Inc., a Nevada corporation (the
"Company").
WHEREAS, simultaneously with the execution and delivery of this
Agreement, the Investors are purchasing from the Company, pursuant to a
Convertible Debentures and Warrants Purchase Agreement dated the date hereof
(the "Purchase Agreement"), $1,000,000 principal amount of 7% Convertible
Debentures and Warrants to purchase shares of the Company's Common Stock
(capitalized terms not defined herein shall have the meanings ascribed to them
in the Purchase Agreement); and
WHEREAS, the Company desires to grant to the Investors the
registration rights set forth herein with respect to the Conversion Shares of
Common Stock issuable upon conversion of or as interest upon the Convertible
Debentures and shares of Common Stock issuable upon exercise of the Warrants
purchased pursuant to the Purchase Agreement (hereinafter referred to as the
"Stock" or "Securities" of the Company).
NOW, THEREFORE, the parties hereto mutually agree as follows:
Section 1. Registrable Securities. As used herein the term
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"Registrable Security" means the Securities until (i) the Registration Statement
has been declared effective by the Commission, and all Securities have been
disposed of pursuant to the Registration Statement, (ii) all Securities have
been sold under circumstances under which all of the applicable conditions of
Rule 144 (or any similar provision then in force) under the Securities Act
("Rule 144") are met, (iii) all Securities have been otherwise transferred to
holders who may trade such Securities without restriction under the Securities
Act, and the Company has delivered a new certificate or other evidence of
ownership for such Securities not bearing a restrictive legend or (iv) such time
as, in the opinion of counsel to the Company, all Securities may be sold without
any time, volume or manner limitations pursuant to Rule 144(k) (or any similar
provision then in effect) under the Securities Act. The term "Registrable
Securities" means any and/or all of the securities falling within the foregoing
definition of a "Registrable Security." In the event of any merger,
reorganization, consolidation, recapitalization or other change in corporate
structure affecting the Common Stock, such adjustment shall be deemed to be made
in the definition of "Registrable Security" as is appropriate in order to
prevent any dilution or enlargement of the rights granted pursuant to this
Agreement.
Section 2. Restrictions on Transfer. Each Investor acknowledges and
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understands that prior to the registration of the Securities as provided herein,
the Securities are "restricted securities" as defined in Rule 144 promulgated
under the Act. Each Investor understands that no disposition or transfer of the
Securities may be made by Investor in the absence of (i) an opinion of counsel
to the Investor, in form and substance reasonably satisfactory to the Company,
that such transfer may be made without registration under the Securities Act or
(ii) such registration.
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With a view to making available to the Investors the benefits of
Rule 144 under the Securities Act or any other similar rule or regulation of the
Commission that may at any time permit the Investors to sell securities of the
Company to the public without registration ("Rule 144"), the Company agrees to:
(a) comply with the provisions of paragraph (c)(1) of Rule 144;
(b) file with the Commission in a timely manner all reports and
other documents required to be filed with the Commission pursuant to Section 13
or 15(d) under the Exchange Act by companies subject to either of such sections,
irrespective of whether the Company is then subject to such reporting
requirements; and
(c) Upon request by the Transfer Agent, the Company shall
provide the Transfer Agent an opinion of counsel, which opinion shall be
reasonably acceptable to the Transfer Agent, that the Investor has complied with
the applicable conditions of Rule 000 ( xx any similar provision then in force)
under the Securities Act.
Section 3. Registration Rights With Respect to the Securities.
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(a) The Company agrees that it will prepare and file with the
Securities and Exchange Commission ("Commission"), within twenty (20) calendar
days after the Closing Date a registration statement (on Form S-3, or other
appropriate registration statement form) under the Securities Act (the
"Registration Statement"), at the sole expense of the Company (except as
provided in Section 3(c) hereof), in respect of the Investors, so as to permit a
public offering and resale of the Securities under the Act by the Investors as
selling stockholders and not as underwriters. Further, the Company agrees that
it will provide the Investors a draft of the Registration Statement on the first
date that said draft is reasonably available.
The Company shall cause such Registration Statement to become
effective within sixty (60) calendar days from the Closing Date, or, if earlier,
within five (5) days of SEC clearance to request acceleration of effectiveness
(if the SEC conducts a "full review" of the Registration Statement such period
shall be extended another 30 calendar days). The number of shares designated in
the Registration Statement to be registered shall include all the Warrant Shares
and at least 200% of the shares which would be required to be issued upon the
conversion of the Convertible Debentures at the Conversion Price on the date of
the filing of the Registration Statement and such number of shares as the
Company deems prudent for the purpose of issuing shares of Common Stock as
interest on the Convertible Debentures, and shall include appropriate language
regarding reliance upon Rule 416 to the extent permitted by the Commission. The
Company will notify the Investors of the effectiveness of the Registration
Statement within one Trading Day of such event. In the event that the number of
shares so registered shall prove to be insufficient to register the resale of
all of the Securities, then the Company shall be obligated to file, within
fifteen (15) days after the day on which the number of Securities registered for
public offering and resale by the Investors is less than 125% of the number of
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Securities (calculated at the Conversion Price on such date) held by the
Investors on such date, a further Registration Statement registering such
remaining shares and shall use diligent best efforts to prosecute such
additional Registration Statement to effectiveness within sixty (60) days of the
date of such notice. Additionally, in the event the number of shares registered
initially shall prove to be insufficient to register the resale of all of the
Securities until such further registration, then the shares registered initially
shall apply pro-rata among all of the Investors. However, if Investors fail to
provide to the Company any information reasonably required for said Registration
Statement within five (5) Trading Days of the request, the time requirements
hereunder shall be extended by such number of days beyond such date during which
the Investors have failed to deliver such information and any liquidated damages
due hereunder shall be reduced by such number of days.
(b) The Company will maintain the Registration Statement or
post-effective amendment filed under this Section 3 effective under the
Securities Act until the earlier of (i) the date that none of the Securities
covered by such Registration Statement are or may become issued and outstanding,
(ii) the date that all of the Securities have been sold pursuant to such
Registration Statement, (iii) the date the Investors receive an opinion of
counsel to the Company, which counsel shall be reasonably acceptable to the
Investors, that the Securities may be sold under the provisions of Rule 144
without limitation as to volume, (iv) all Securities have been otherwise
transferred to persons who may trade such shares without restriction under the
Securities Act, and the Company has delivered a new certificate or other
evidence of ownership for such securities not bearing a restrictive legend, (v)
all Securities may be sold without any time, volume or manner limitations
pursuant to Rule 144(k) or any similar provision then in effect under the
Securities Act in the opinion of counsel to the Company, which counsel shall be
reasonably acceptable to the Investor (the "Effectiveness Period"), or (vi)
three (3) years from the Effective Date.
(c) All fees, disbursements and out-of-pocket expenses and
costs incurred by the Company in connection with the preparation and filing of
the Registration Statement under subparagraph 3(a) and in complying with
applicable securities and Blue Sky laws (including, without limitation, all
attorneys' fees of the Company) shall be borne by the Company. The Investors
shall bear the cost of underwriting and/or brokerage discounts, fees and
commissions, if any, applicable to the Securities being registered and the fees
and expenses of their counsel. The Investors and their counsel shall have a
reasonable period, not to exceed five (5) Trading Days, to review the proposed
Registration Statement or any amendment thereto, prior to filing with the
Commission, and the Company shall provide each Investor with copies of any
comment letters received from the Commission with respect thereto within two (2)
Trading Days of receipt thereof. The Company shall use its best efforts to
qualify any of the securities for sale in such states as any Investor reasonably
designates and shall furnish indemnification in the manner provided in Section 6
hereof. However, the Company shall not be required to qualify in any state
which will require an escrow or other restriction relating to the Company and/or
the sellers, or which will require the Company to qualify to do business in such
state or require the Company to file therein any general consent to service of
process. The Company at its expense will supply the Investors with copies of
the applicable Registration Statement and the prospectus included therein and
other related documents in such quantities as may be reasonably requested by the
Investors.
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(d) The Company shall not be required by this Section 3 to
include an Investor's Registrable Securities in any Registration Statement which
is to be filed if, in the opinion of counsel for both the Investor and the
Company (or, should they not agree, in the opinion of another counsel
experienced in securities law matters acceptable to counsel for the Investor and
the Company) the proposed offering or other transfer as to which such
registration is requested is exempt from applicable federal and state securities
laws and would result in all purchasers or transferees obtaining securities
which are not "restricted securities", as defined in Rule 144 under the
Securities Act.
(e) In the event that (i) the Registration Statement to be
filed by the Company pursuant to Section 3(a) above is not filed with the
Commission within twenty (20) business days from the Closing Date, (ii) such
Registration Statement is not declared effective by the Commission within sixty
(60) calendar days from the Closing Date (or 90 calendar days in the event of a
"full review") or five (5) days of clearance by the Commission to request
effectiveness, (iii) such Registration Statement is not maintained as effective
by the Company for the period set forth in Section 3(b) above or (iv) the
additional Registration Statement referred to in Section 3(a) is not filed
within fifteen (15) days or declared effective within sixty (60) days as set
forth therein (each a "Registration Default") then the Company will pay Investor
(pro rated on a monthly basis) in cash or, at the option of the Investor, in
shares of Common Stock at the Conversion Price (as defined in the Certificate of
Designations) on the Trading Day prior to the date of payment, as liquidated
damages for such failure and not as a penalty two percent (2%) of the aggregate
market value of shares of Common Stock purchased from the Company (including the
Conversion Shares which would be issuable upon conversion of the Convertible
Debentures on any date of determination, and whether or not the Convertible
Preferred Shares are then Convertible pursuant to their terms) and held by the
Investor for each month thereafter until such Registration Statement has been
filed, and in the event of late effectiveness (in case of clause (ii) above) or
lapsed effectiveness (in the case of clause (iii) above), two percent (2%) of
the aggregate market value of shares of Common Stock purchased from the Company
and held by the Investor (including the Conversion Shares which would be
issuable upon conversion of the Convertible Debentures on any date of
determination, and whether or not the Convertible Debentures are then
convertible pursuant to their terms) for each month thereafter (regardless of
whether one or more such Registration Defaults are then in existence) until such
Registration Statement has been declared effective. Further, in the event the
Company fails to file the Registration Statement within twenty business days
from the Closing, each investor, in its sole discretion, may elect to deem such
failure as an Event of Default as pursuant to the Convertible Debenture and
consider such Convertible Debenture immediately due and payable. Such payment
of the liquidated damages shall be made to the Investors in cash, within five
(5) calendar days of demand, provided, however, that the payment of such
liquidated damages shall not relieve the Company from its obligations to
register the Securities pursuant to this Section. The market value of the Common
Stock for this purpose shall be the closing price (or last trade, if so
reported) on the Principal Market for each day during such Registration Default.
Notwithstanding anything to the contrary contained herein, a failure to maintain
the effectiveness of an filed Registration Statement or the ability of an
Investor to use an otherwise effective Registration Statement to effect resales
of Securities during the period after forty-five (45) days and within ninety
(90) days from the end of the Company's fiscal year resulting solely from the
need to update the Company's financial statements contained or incorporated by
reference in such Registration Statement shall not constitute a Registration
Default and shall not trigger the accrual of liquidated damages hereunder.
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If the Company does not remit the payment to the Investors as set
forth above, the Company will pay the Investors reasonable costs of collection,
including attorneys' fees, in addition to the liquidated damages. The
registration of the Securities pursuant to this provision shall not affect or
limit the Investors' other rights or remedies as set forth in this Agreement.
(f) No provision contained herein shall preclude the Company
from selling securities pursuant to any Registration Statement in which it is
required to include Securities pursuant to this Section 3.
(g) If at any time or from time to time after the effective
date of any Registration Statement, the Company notifies the Investors in
writing of the existence of a Potential Material Event (as defined in Section
3(h) below), the Investors shall not offer or sell any Securities or engage in
any other transaction involving or relating to Securities, from the time of the
giving of notice with respect to a Potential Material Event until the Investors
receive written notice from the Company that such Potential Material Event
either has been disclosed to the public or no longer constitutes a Potential
Material Event; provided, however, that the Company may not so suspend the right
to such holders of Securities for more than twenty (20) days in the aggregate
during any twelve month period, during the period the Registration Statement is
required to be in effect, and if such period is exceeded, such event shall be a
Registration Default and subject to liquidated damages as set forth in Section
3(e) hereof. If a Potential Material Event shall occur prior to the date a
Registration Statement is required to be filed, then the Company's obligation to
file such Registration Statement shall be delayed without penalty for not more
than twenty (20) days, and such delay or delays shall not constitute a
Registration Default. Such twenty (20) day period shall not be in addition to
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the twenty (20) day period allowed during the period the Registration Statement
is required to be in effect. The Company must, if lawful, give the Investors
notice in writing at least two (2) Trading Days prior to the first day of the
blackout period.
(h) "Potential Material Event" means any of the following:
(a) the possession by the Company of material information not ripe for
disclosure in a registration statement, as determined in good faith by the Chief
Executive Officer or the Board of Directors of the Company that disclosure of
such information in a Registration Statement would be detrimental to the
business and affairs of the Company; or (b) any material engagement or activity
by the Company which would, in the good faith determination of the Chief
Executive Officer or the Board of Directors of the Company, be adversely
affected by disclosure in a registration statement at such time, which
determination shall be accompanied by a good faith determination by the Chief
Executive Officer or the Board of Directors of the Company that the applicable
Registration Statement would be materially misleading absent the inclusion of
such information.
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Section 4. Cooperation with Company. The Investors will cooperate
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with the Company in all respects in connection with this Agreement, including
timely supplying all information reasonably requested by the Company (which
shall include all information regarding the Investors and proposed manner of
sale of the Registrable Securities required to be disclosed in any Registration
Statement) and executing and returning all documents reasonably requested in
connection with the registration and sale of the Registrable Securities and
entering into and performing their obligations under any underwriting agreement,
if the offering is an underwritten offering, in usual and customary form, with
the managing underwriter or underwriters of such underwritten offering. Nothing
in this Agreement shall obligate any Investor to consent to be named as an
underwriter in any Registration Statement. The obligation of the Company to
register the Registrable Securities shall be absolute and unconditional as to
those Securities which the Commission will permit to be registered without
naming the Investors as underwriters. Any delay or delays caused by the
Investors by failure to cooperate as required hereunder shall not constitute a
Registration Default.
Section 5. Registration Procedures. If and whenever the Company
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is required by any of the provisions of this Agreement to effect the
registration of any of the Registrable Securities under the Act, the Company
shall (except as otherwise provided in this Agreement), as expeditiously as
possible, subject to the Investors' assistance and cooperation as reasonably
required with respect to each Registration Statement:
(a)(i) prepare and file with the Commission such amendments
and supplements to the Registration Statement and the prospectus used in
connection therewith as may be necessary to keep such Registration Statement
effective and to comply with the provisions of the Act with respect to the sale
or other disposition of all Registrable Securities covered by such registration
statement whenever the Investors shall desire to sell or otherwise dispose of
the same (including prospectus supplements with respect to the sales of
Registrable Securities from time to time in connection with a registration
statement pursuant to Rule 415 promulgated under the Act) and (ii) take all
lawful action such that each of (A) the Registration Statement and any amendment
thereto does not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading and (B) the prospectus forming part of the
Registration Statement, and any amendment or supplement thereto, does not at any
time during the Registration Period include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading;
(b)(i) prior to the filing with the Commission of any
Registration Statement (including any amendments thereto) and the distribution
or delivery of any prospectus (including any supplements thereto), provide draft
copies thereof to the Investors as required by Section 3(c) and reflect in such
documents all such comments as the Investors (and their counsel) reasonably may
propose respecting the Selling Shareholders and Plan of Distribution sections
(or equivalents) and (ii) furnish to each Investor such numbers of copies of a
prospectus including a preliminary prospectus or any amendment or supplement to
any prospectus, as applicable, in conformity with the requirements of the Act,
and such other documents, as such Investor may reasonably request in order to
facilitate the public sale or other disposition of the Registrable Securities
owned by such Investor;
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(c) register and qualify the Registrable Securities covered
by the Registration Statement under such other securities or blue sky laws of
such jurisdictions as the Investors shall reasonably request (subject to the
limitations set forth in Section 3(d) above), and do any and all other acts and
things which may be necessary or advisable to enable each Investor to consummate
the public sale or other disposition in such jurisdiction of the Registrable
Securities owned by such Investor;
(d) list such Registrable Securities on the Principal Market,
if the listing of such Registrable Securities is then permitted under the rules
of such Principal Market;
(e) notify each Investor at any time when a prospectus
relating thereto covered by the Registration Statement is required to be
delivered under the Act, of the happening of any event of which it has knowledge
as a result of which the prospectus included in the Registration Statement, as
then in effect, includes an 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 not misleading in the light of the circumstances then
existing, subject to Section 3(g), and the Company shall prepare and file a
curative amendment under Section 5(a) as quickly as commercially possible and
during such period, the Investors shall not make any sales of Registrable
Securities pursuant to the Registration Statement;
(f) as promptly as practicable after becoming aware of such
event, notify each Investor who holds Registrable Securities being sold (or, in
the event of an underwritten offering, the managing underwriters) of the
issuance by the Commission of any stop order or other suspension of the
effectiveness of the Registration Statement at the earliest possible time and
take all lawful action to effect the withdrawal, recession or removal of such
stop order or other suspension;
(g) cooperate with the Investors to facilitate the timely
preparation and delivery of certificates for the Registrable Securities to be
offered pursuant to the Registration Statement and enable such certificates for
the Registrable Securities to be in such denominations or amounts, as the case
may be, as the Investors reasonably may request and registered in such names as
the Investors may request; and, within three (3) Trading Days after a
Registration Statement which includes Registrable Securities is declared
effective by the Commission, deliver and cause legal counsel selected by the
Company to deliver to the transfer agent for the Registrable Securities (with
copies to the Investors) an appropriate instruction and, to the extent
necessary, an opinion of such counsel;
(h) take all such other lawful actions reasonably necessary
to expedite and facilitate the disposition by the Investors of their Registrable
Securities in accordance with the intended methods therefor provided in the
prospectus which are customary for issuers to perform under the circumstances;
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(i) in the event of an underwritten offering, promptly
include or incorporate in a prospectus supplement or post-effective amendment to
the Registration Statement such information as the managers reasonably agree
should be included therein and to which the Company does not reasonably object
and make all required filings of such prospectus supplement or post-effective
amendment as soon as practicable after it is notified of the matters to be
included or incorporated in such Prospectus supplement or post-effective
amendment; and
(j) maintain a transfer agent and registrar for its Common
Stock.
Section 6. Indemnification.
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(a) To the maximum extent permitted by law, the Company
agrees to indemnify and hold harmless the Investors and each person, if any, who
controls an Investor within the meaning of the Securities Act (each a
"Distributing Investor") against any losses, claims, damages or liabilities,
joint or several (which shall, for all purposes of this Agreement, include, but
not be limited to, all reasonable costs of defense and investigation and all
reasonable attorneys' fees and expenses), to which the Distributing Investor may
become subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in any Registration Statement, or any related final prospectus or
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading; provided,
however, that the Company will not be liable in any such case to the extent, and
only to the extent, that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such Registration Statement, preliminary prospectus,
final prospectus or amendment or supplement thereto in reliance upon, and in
conformity with, written information furnished to the Company by the
Distributing Investor, its counsel, affiliates or any underwriter, specifically
for use in the preparation thereof or (ii) by such Investor's failure to deliver
to the purchaser a copy of the most recent prospectus (including any amendments
or supplements thereto. This indemnity agreement will be in addition to any
liability, which the Company may otherwise have.
(b) To the maximum extent permitted by law, each Distributing
Investor agrees that it will indemnify and hold harmless the Company, and each
officer and director of the Company or person, if any, who controls the Company
within the meaning of the Securities Act, against any losses, claims, damages or
liabilities (which shall, for all purposes of this Agreement, include, but not
be limited to, all reasonable costs of defense and investigation and all
reasonable attorneys' fees and expenses) to which the Company or any such
officer, director or controlling person may become subject under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in any Registration
Statement, or any related final prospectus or amendment or supplement thereto,
or arise out of or are based upon the omission or the alleged omission to state
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therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, but in each case only to the extent that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in such Registration Statement, final prospectus or amendment or supplement
thereto in reliance upon, and in conformity with, written information furnished
to the Company by such Distributing Investor, its counsel, affiliates or any
underwriter, specifically for use in the preparation thereof. This indemnity
agreement will be in addition to any liability, which the Distributing Investor
may otherwise have. Notwithstanding anything to the contrary herein, the
Distributing Investor shall be liable under this Section 6(b) for only that
amount as does not exceed the net proceeds to such Distributing Investor as a
result of the sale of Registrable Securities pursuant to the Registration
Statement.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action against such indemnified
party, such indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 6, notify the indemnifying
party in writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve the indemnifying party from any liability
which it may have to any indemnified party except to the extent the failure of
the indemnified party to provide such written notification actually prejudices
the ability of the indemnifying party to defend such action. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate in, and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, assume the defense thereof,
subject to the provisions herein stated and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified party
under this Section 6 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof other than
reasonable costs of investigation, unless the indemnifying party shall not
pursue the action to its final conclusion. The indemnified parties as a group
shall have the right to employ one separate counsel in any such action and to
participate in the defense thereof, but the fees and expenses of such counsel
shall not be at the expense of the indemnifying party if the indemnifying party
has assumed the defense of the action with counsel reasonably satisfactory to
the indemnified party unless (i) the employment of such counsel has been
specifically authorized in writing by the indemnifying party, or (ii) the named
parties to any such action (including any impleaded parties) include both the
indemnified party and the indemnifying party and the indemnified party shall
have been advised by its counsel that there may be one or more legal defenses
available to the indemnifying party different from or in conflict with any legal
defenses which may be available to the indemnified party or any other
indemnified party (in which case the indemnifying party shall not have the right
to assume the defense of such action on behalf of such indemnified party, it
being understood, however, that the indemnifying party shall, in connection with
any one such action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable only for the reasonable fees and expenses of one
separate firm of attorneys for the indemnified party, which firm shall be
designated in writing by the indemnified party). No settlement of any action
against an indemnified party shall be made without the prior written consent of
the indemnified party, which consent shall not be unreasonably withheld so long
as such settlement includes a full release of claims against the indemnified
party.
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All fees and expenses of the indemnified party (including reasonable
costs of defense and investigation in a manner not inconsistent with this
Section and all reasonable attorneys' fees and expenses) shall be paid to the
indemnified party, as incurred, within ten (10) Trading Days of written notice
thereof to the indemnifying party (regardless of whether it is ultimately
determined that an indemnified party is not entitled to indemnification
hereunder; provided, that the indemnifying party may require such indemnified
party to undertake to reimburse all such fees and expenses to the extent it is
finally judicially determined that such indemnified party is not entitled to
indemnification hereunder).
Section 7. Contribution. In order to provide for just and equitable
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contribution under the Securities Act in any case in which (i) the indemnified
party makes a claim for indemnification pursuant to Section 6 hereof but is
judicially determined (by the entry of a final judgment or decree by a court of
competent jurisdiction and the expiration of time to appeal or the denial of the
last right of appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that the express provisions of Section 6 hereof provide
for indemnification in such case, or (ii) contribution under the Securities Act
may be required on the part of any indemnified party, then the Company and the
applicable Distributing Investor shall contribute to the aggregate losses,
claims, damages or liabilities to which they may be subject (which shall, for
all purposes of this Agreement, include, but not be limited to, all reasonable
costs of defense and investigation and all reasonable attorneys' fees and
expenses), in either such case (after contribution from others) on the basis of
relative fault as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company on the one hand or the applicable Distributing Investor on the other
hand, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Distributing Investor agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to in this Section 7. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this Section 7
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
Notwithstanding any other provision of this Section 7, in no event shall any (i)
Investor be required to undertake liability to any person under this Section 7
for any amounts in excess of the dollar amount of the proceeds received by such
Investor from the sale of such Investor's Registrable Securities (after
deducting any fees, discounts and commissions applicable thereto) pursuant to
any Registration Statement under which such Registrable Securities are
registered under the Securities Act and (ii) underwriter be required to
undertake liability to any person hereunder for any amounts in excess of the
aggregate discount, commission or other compensation payable to such underwriter
with respect to the Registrable Securities underwritten by it and distributed
pursuant to such Registration Statement.
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Section 8. Notices. All notices, demands, requests, consents,
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approvals, and other communications required or permitted hereunder shall be in
writing and, unless otherwise specified herein, shall be (i) hand delivered,
(ii) deposited in the mail, registered or certified, return receipt requested,
postage prepaid, (iii) delivered by reputable air courier service with charges
prepaid, or (iv) transmitted by facsimile, addressed as set forth in the
Purchase Agreement or to such other address as such party shall have specified
most recently by written notice. Any notice or other communication required or
permitted to be given hereunder shall be deemed effective (a) upon hand delivery
or delivery by facsimile, with accurate confirmation generated by the
transmitting facsimile machine, at the address or number designated below (if
delivered on a business day during normal business hours where such notice is to
be received), or the first business day following such delivery (if delivered
other than on a business day during normal business hours where such notice is
to be received) or (b) on the first business day following the date of sending
by reputable courier service, fully prepaid, addressed to such address, or (c)
upon actual receipt of such mailing, if mailed. Either party hereto may from
time to time change its address or facsimile number for notices under this
Section 8 by giving at least ten (10) days' prior written notice of such changed
address or facsimile number to the other party hereto.
Section 9. Assignment. This Agreement is binding upon and inures to
----------
the benefit of the parties hereto and their respective heirs, successors and
permitted assigns. The rights granted the Investors under this Agreement may be
assigned to any purchaser of substantially all of the Registrable Securities (or
the rights thereto) from an Investor, as otherwise permitted by the Purchase
Agreement.
Section 10. Additional Covenants of the Company. The Company agrees
-----------------------------------
that at any time that the Registration Statement, is on Form S-3, for so long as
it shall be required to maintain the effectiveness of such registration
statement it shall file all reports and information required to be filed by it
with the Commission in a timely manner and take all such other action so as to
maintain such eligibility for the use of such form.
Section 11. Counterparts/Facsimile. This Agreement may be executed
----------------------
in two or more counterparts, each of which shall constitute an original, but all
of which, when together shall constitute but one and the same instrument, and
shall become effective when one or more counterparts have been signed by each
party hereto and delivered to the other parties. In lieu of the original, a
facsimile transmission or copy of the original shall be as effective and
enforceable as the original.
Section 12. Remedies. The remedies provided in this Agreement are
--------
cumulative and not exclusive of any remedies provided by law. If any term,
provision, covenant or restriction of this Agreement is held by a court of
competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their best efforts to find and
employ an alternative means to achieve the same or substantially the same result
as that contemplated by such term, provision, covenant or restriction.
11
Section 13. Conflicting Agreements. The Company shall not enter into
----------------------
any agreement with respect to its securities that is inconsistent with the
rights granted to the holders of Registrable Securities in this Agreement or
otherwise prevents the Company from complying with all of its obligations
hereunder.
Section 14. Headings. The headings in this Agreement are for
--------
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 15. Governing Law, Arbitration. This Agreement shall be
----------------------------
governed by and construed in accordance with the laws of the State of New York
applicable to contracts made in New York by persons domiciled in New York City
and without regard to its principles of conflicts of laws. Any dispute under
this Agreement shall be submitted to arbitration under the American Arbitration
Association (the "AAA") in New York City, New York, and shall be finally and
conclusively determined by the decision of a board of arbitration consisting of
three (3) members (hereinafter referred to as the "Board of Arbitration")
selected as according to the rules governing the AAA. The Board of Arbitration
shall meet on consecutive business days in New York City, New York, and shall
reach and render a decision in writing (concurred in by a majority of the
members of the Board of Arbitration) with respect to the amount, if any, which
the losing party is required to pay to the other party in respect of a claim
filed. In connection with rendering its decisions, the Board of Arbitration
shall adopt and follow the laws of the State of New York. To the extent
practical, decisions of the Board of Arbitration shall be rendered no more than
thirty (30) calendar days following commencement of proceedings with respect
thereto. The Board of Arbitration shall cause its written decision to be
delivered to all parties involved in the dispute. Any decision made by the
Board of Arbitration (either prior to or after the expiration of such thirty
(30) calendar day period) shall be final, binding and conclusive on the parties
to the dispute, and entitled to be enforced to the fullest extent permitted by
law and entered in any court of competent jurisdiction. The Board of Arbitration
shall be authorized and is hereby directed to enter a default judgment against
any party failing to participate in any proceeding hereunder within the time
periods set forth in the AAA rules. The non-prevailing party to any arbitration
(as determined by the Board of Arbitration) shall pay the expenses of the
prevailing party, including reasonable attorneys' fees, in connection with such
arbitration. Any party shall be entitled to obtain injunctive relief from a
court in any case where such relief is available, and the non-prevailing party
in any such injunctive proceeding shall pay the expenses of the prevailing
party, including reasonable attorneys' fees, in connection with such injunctive
proceeding.
12
IN WITNESS WHEREOF, the parties hereto have caused this Registration
Rights Agreement to be duly executed, on this __ day of June, 2000.
WORLDWIDE WIRELESS NETWORKS, INC.
By:
------------------------------------
Xxxx Xxxxxxxxx, Chairman & CEO
INVESTORS:
AMRO INTERNATIONAL, S.A.
By:____________________________________
X.X. Xxxxxxxx, Director
TRINITY CAPITAL ADVISORS, INC.
By: __________________________________
Xxxx Xxxx, Managing Director
[TYPE]EX-10.12 EMPLOYMENT AGREEMENT WITH XXXXXXX XXXXX DATE
JANUARY 1, 2000
OFFICER/DIRECTOR EMPLOYMENT CONTRACT
This contract for employment of an officer and/or director (the
"agreement") is entered into between Pacific Link Internet, Inc., a
California corporation d.b.a. "Global Pacific Internet" as a
subsidiary of Worldwide Wireless Networks, Inc., a Nevada
corporation, with its principal place of business located at 000 Xxx
Xxxx Xxxxx Xxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxxxx 00000 (hereinafter
known collectively as the "employer"), and Xxxxxxx X. Xxxxx, an
individual.
ARTICLE 1. TERM OF EMPLOYMENT
Specified Period
Section 1.01 Employer hereby employs employee and employee hereby
accepts employment with employer for a period of five (5) years,
beginning on January 1, 2000, and terminating on December 31, 2004.
Automatic Renewal
Section 1.02 This agreement shall be renewed automatically for
Four (4) additional consecutive terms of One (1) year each, unless
either party gives notice to the other at least Ninety (90) days
prior to the expiration of any term of its intention not to renew.
"Employment Term" Defined
Section 1.03 As used herein, the phrase "employment term" refers
to the entire period of employment of employee by employer
hereunder, whether for the periods provided above, or whether
terminated earlier, renewed, or otherwise extended by mutual
agreement of the parties.
ARTICLE 2. DUTIES AND OBLIGATIONS OF EMPLOYEE
General Duties
Section 2.01 Employee shall serve as President and COO (Chief
Operating Officer) for an interim period of sixty (60) days from the
initiation date of this contract. After such time, employee shall
transition to the position of CEO (Chief Executive Officer) and
remain in that position until termination of this contract by lapse
of time or other provisions provided for hereunder. Employee shall
also become a member of the Board of Directors as of the date of
this agreement. In his capacity as President and COO, employee shall
use his best efforts and do and preform all services, acts, or
things necessary or advisable to manage and conduct the business of
employer, subject at all times to the policies set by Employer's
Board of Directors and subject to the consent of the Board of
Directors when required by the terms of this agreement. During this
interim period, employee and the company through its officers,
managers and Board of Directors, shall develop and agree upon a
"point sheet," to be signed by the parties hereto and attached to
this agreement as Exhibit "A" prior to employee taking his position
as CEO, said "point sheet" to contain an outline, listing and
description of the duties, authorities, obligations, rights and
responsibilities (relative to other officers, managers and
directors) of the CEO position assumed by employee.
Devotion to Employer's Business
Section 2.02 Unless agreed to in writing by employer, (a)
employee shall devote his entire productive time, ability, energies,
and attention to the business of employer during the term of this
contract.(b) Employee shall not engage in any other business duties
or pursuits whatsoever, or directly or indirectly render any
services of a business, commercial or other professional nature to
any other person or organization, for compensation in wages, equity
or otherwise, for any period of time longer than two calendar weeks,
without the prior written consent of employer's Board of Directors.
(c) This agreement shall not be interpreted to prohibit employee
from making passive personal investments or conducting private
business affairs if those activities do not materially interfere
with the services required under this agreement. However, employee
shall not directly or indirectly acquire, hold or retain any
interest in excess of five (5%) per cent in any business directly
competing with the business of employer.
Indemnification for Negligence or Misconduct
Section 2.03 Employee and employer agree to mutually indemnify
the other and to hold the other harmless from liability for loss,
damage, or injury to persons or property resulting from any breach
of this agreement by the other, the definition of said breach to
include but not be limited to negligence, gross negligence, or other
misconduct
Trade Secrets
Section 2.04 (a) The parties acknowledge and agree that during the
term of this agreement and in the course of the discharge of the
duties hereunder, Employee shall have access to and become
acquainted with information concerning the operation and process of
Employer, including without limitation, financial, personnel, sales,
scientific, and other information that is owned by or proprietary to
Employer and regularly used in the operation of Employer's business,
and that such information constitutes trade secretes.
(b) Employee specifically agrees that he shall not misuse,
misappropriate, or disclose any such trade secrets, directly or
indirectly, to any other person or use them in any way, either
during the term of the agreement or at any other time thereafter,
except as is required in the course of his employment hereunder.
(c) Employee acknowledges and agrees that the sale or
unauthorized use or disclosure of any of Employer's trade secrets
obtained by Employee during the course of his employment under this
agreement, including information concerning Employer's current or
any future and proposed work, services, or products, the fact that
any such work, services, or products are planned, under
consideration, or in production, as well as any descriptions thereof
(Proprietary Information), constitute unfair competition. Employee
promises and agrees not to engage in any unfair competition
utilizing Employer's Proprietary Information.
(d) Employee further agrees that all files, records, documents,
drawings, specifications, equipment, and similar items relating to
Employer's business are and shall remain exclusively the property of
Employer.
ARTICLE 3. OBLIGATIONS OF EMPLOYER
Section 3.01 Employer shall provide Employee with office facilities,
parking privileges, office equipment, supplies and other facilities
and services, suitable to Employee's position and adequate for the
performance of his duties.
Indemnification of Losses of Employee
Section 3.02 Employer shall indemnify Employee for all loses
sustained by Employee in direct consequence of the discharge of his
duties on Employer's behalf.
ARTICLE 4. COMPENSATION OF EMPLOYEE
Annual Salary
Section 4.01 (a) As compensation for the services to be performed
hereunder, Employee shall receive a guaranteed salary at the rate
of One Hundred Twenty Thousand ($120,000.00) dollars per year during
the employment term, to be paid pro rata two times per month. Said
salary shall be reviewed and renegotiated every three (3) months
with the Directors of Employer. In the event Employer's financial
condition is such that it does not have the funds necessary to pay
Employee and the salaries of the two other top paid executives for
a period of two (2) consecutive months, Employer may, by action of
its board of directors, reduce Employee's salary by 50%, until such
time as Employer's financial condition improves. However, any such
reduction shall be on par with and at an equal pro rata reduction
with, the other two top paid executives of Employer. In such event,
Employer shall, at the request of Employee, provide Employee with
financial data in support of such action. All funds not paid during
this period shall be repaid to Employee by Employer on a "best
efforts" basis. However, if such repayment does not occur within
6 months, Employee may elect to take the lost income in the form of
a stock grant under the same pricing, terms and conditions set forth
in Section 5.01 of this agreement.
Tax Withholding
Section 4.02 Employer shall have the right to deduct or withhold
from the compensation due to Employee hereunder any and all sums
required for federal income and Social Security taxes and all state
and local taxes now applicable or that may be enacted and become
applicable in the future.
ARTICLE 5. EMPLOYEE INCENTIVES
Restricted Stock Options
Section 5.01 Employee shall receive Five Hundred Eighty Thousand
(580,000) restricted cashless options at a strike price of Three
Dollars ($3.00) drawn from the company's Employment Stock Option
Program. The stock will vest as follows:
a) One Hundred Thousand (100,000) shares will vest in full upon
the date of this agreement.
b) Twenty Thousand (20,000) shares will vest each month, with
the basis being the average of the last five (5) trading days of the
month, for the first twenty four (24) months of employment, totaling
Four Hundred Eighty Thousand (480,000) options.
The option/exercise period shall be from the date of vesting through
the date seven (7) years from the date of vesting. However, the
date of vesting shall accelerate, and all stock options contemplated
pursuant to this clause shall vest immediately, at the strike price
in effect on the date of acceleration, upon the occurrence of any
of the following:Termination for cause pursuant to this contract;
Termination without cause pursuant to this contract;
Any event that could jeopardize the above referenced vesting
schedule of remaining options, including but not limited
to any change in the material terms of, or rights and
obligations contained in, this employment agreement, or any
sale, merger, takeover or change in control of the
stock of company such that any single shareholder or group
of shareholders in concert and acting together shall gain
control of 51% or more of the outstanding shares of company.
Incentive Stock Option Program
Section 5.02 If the Board of Directors of Employer elects to
institute an Incentive Stock Option program, or other stock program
not currently in effect, Employee shall be eligible to participate
in said program under the guidelines set forth, and continue to
participate in the Employment Stock Option Program, the Board may
elect to reduce Employee's participation in any such incentive stock
option program by 25% vis a vis other officers or directors during
the first two years of employee's employment. However, this
reduction can only apply to one stock option program if multiple
programs are in place.
Performance Bonus Eligibility
Section 5.03 Employer does not now maintain, but agrees to assemble
and propose to its Board of Directors, during and covering the
calendar year 2000, an Annual Performance Bonus Plan to include
Employee and such other top executives of Employer as the Board
shall deem appropriate, subject to the limitations set forth in
Section 5.02, above.
ARTICLE 6. EMPLOYEE BENEFITS
Annual Vacation
Section 6.01. Employee shall be entitled to three (3) weeks
vacation each year, and those business days that fall between
Christmas and New Year's day, without loss of compensation.
Employee may be absent from his employment for vacation only at such
times as Employer's Board of Directors shall determine form time to
time. In the event that Employee is unable for any reason to take
the total amount of vacation days authorized therein during the year,
he shall be entitled to use such un-taken vacation days in the next
year of employment.
ARTICLE 7. BUSINESS EXPENSES
Reimbursement of Business Expenses
Section 7.01 (a) Employer shall promptly reimburse Employee for all
reasonable business expenses incurred by Employee in connection with
the business of Employer. (b) Each such expenditure shall be
reimbursable only if it is of a nature qualifying it as proper
deduction on the federal and state income tax return of Employer.
(c) Each such expenditure shall be reimbursable only if Employee
furnishes to Employer adequate records and other documentary
evidence required by federal and state statutes and regulations
issued by the appropriate taxing authorities for the substantiation
of each such expenditure as an income tax deduction. Notwithstanding
the forgoing, Employee shall not incur expenses in excess of Five
Hundred ($500.00) dollars, excluding expenses incurred in connection
with travel outside of the metropolitan Los Angeles area, without
obtaining the prior consent of Employer, which consent shall not be
unreasonably withheld or delayed.
(d) Employee shall be reimbursed for the use of his privately owned
vehicle at $500 per month. If business mileage exceeds this, he will
also be reimbursed for the difference at standard government rates.
Repayment of Disallowed Expenses
Section 7.02. In the event that any expenses paid for Employee or
any reimbursement of expenses paid to Employee shall, on audit or
other examination of employer's income tax returns, be determined
not to be allowable deductions from Employer's gross income because
of Employee's misrepresentation or characterization of such
expenses, and in the further event that this determination shall be
acceded to by the Employer or made final by the appropriate federal
or state taxing authority or a final judgment of a court of
competent jurisdiction, and no appeal is taken from the judgment or
the applicable period for filing notice of appeal has expired,
Employee shall repay to Employer the full amount of the disallowed
expenses.
ARTICLE 8. RELOCATION OF EMPLOYEE
Section 8.01. Employee shall be reimbursed Five Hundred Dollars
($500.00) per month for temporary lodging while relocating, up to a
maximum period of six months from the effective date of this
agreement.
Section 8.02 Employee shall be reimbursed for one trip to Virginia
every three weeks while relocating, with roundtrip airfares of no
more than $450.00, for a maximum period of six months. Employee's
Spouse may take one or more of these trips in the place of Employee,
under the same conditions of this Section.
Section 8.03 Employee will be reimbursed for realtor fees, up to
3 % of the sale price, on the sale of his home in Virginia. If
realtor fees exceed 3% of the sale price, the difference will be
reimbursed to Employee by a stock grant under the same terms and
conditions set forth herein under Section 5.01.
Section 8.04 Employee will be reimbursed for moving and shipping
costs related to relocation up to a maximum of Twelve Thousand Five
Hundred Dollars ($12,500.00).
ARTICLE 9. TERMINATION OF EMPLOYMENT
Termination for Cause
Section 9.01. (a) Employer reserves the right to terminate this
agreement if Employee 1) willfully breaches any of the terms of
this agreement; 2) habitually neglects the duties which he is
required to perform under the terms of this agreement, including
those set forth in Exhibit "A," to be attached hereto after
agreement of the parties but prior to assumption of the CEO
position; 3) or commits such acts of dishonesty, fraud,
misrepresentation or other acts of moral turpitude as would prevent
the effective performance of his duties. (b) Employer may at its
option terminate this agreement for the reasons stated in this
section by giving written notice of termination to Employee without
prejudice to any other remedy to which employer maybe entitled
either at law, in equity, or under this agreement. Notwithstanding
the foregoing, as a condition precedent to such termination,
Employer shall have provided Employee with written notice of his
breach, setting forth in detail the cause thereof, and providing
Employee with an opportunity to respond to such claim and be heard
upon his response by a meeting of the Board of Directors. In
terminating Employee for cause, Employer shall further follow and
adhere to any procedures and guidelines set forth in Employer's
"Employee Handbook" in addition to the termination requirements set
forth herein. If there are any conflicting terms or conditions
regarding termination between the Handbook and this agreement, the
agreement shall prevail, whether termination is for cause or without
cause.
(c) The notice of termination required by this section shall specify
the ground for the termination and shall be supported by a statement
of relevant facts.
(d)Termination under this section shall be considered "for cause"
for the purposes of this agreement.
Termination Without Cause
Section 9.02 Notwithstanding any other termination clause
hereunder, and unfettered by any requirements or procedures set
forth in Employer's "Employee Handbook," Employer may terminate
Employee without cause, upon thirty (30) days notice, but shall at
that time become obligated to pay to Employee a severance payment
equal to six (6) months of salary at the rate applicable on the
date of notice of termination. In such event, Employer shall also
be required to continue to furnish, under the Employee's existing
health plan, health insurance, for a period of one year from the
date of termination, or until such time as Employee is offered or
eligible for health insurance from any other employer.
Termination by Employee
Section 9.03. Employee may terminate his obligations under this
agreement by giving the Employer at least Thirty (30) days notice in
advance. In the event Employee shall terminate his obligations
hereunder, Employee shall not be entitled to any payment of unpaid
annual salary from Employer, any other severance, or continuation of
health benefits as provided in Section 9.02, above.
ARTICLE 10. GENERAL PROVISIONS
Notices
Section 10.01. Any notices to be given hereunder by either party to
the other shall be in writing and may be transmitted by personal
delivery or by mail, registered or certified, postage prepaid with
return receipt requested. Mailed notices shall be addressed to the
parties at the addresses appearing in the introductory paragraph of
this agreement, but each party may change that address by written
notice in accordance with this section. Notices delivered
personally shall be deemed communicated as of the date of actual
receipt; mailed notice shall be deemed communicated as of the date
of mailing.
Attorney's Fees and Costs
Section 10.02. If any action at law or in equity is necessary to
enforce or interpret the terms of this agreement, the prevailing
party shall be entitled to reasonable attorney's fees, costs, and
necessary disbursements in addition to any other relief to which
that party may be entitled. This provision shall be construed as
applicable to the entire agreement. The parties hereto agree that
the Superior Court of Orange County shall have and retain exclusive
jurisdiction over any dispute under this agreement, and California
law shall govern in any controversy arising.
Consents
Section 10.03. Employer agrees that all consents required of it
hereunder shall neither be unreasonably withheld nor delayed.
Entire Agreement
Section 10.04. This agreement supersedes any and all other
agreements, either oral or in writing, between the parties hereto
with respect to the employment of Employee by Employer and contains
all of the covenants and agreements between the parties with respect
to that employment in any manner whatsoever. Each party to this
agreement acknowledges that no representation, inducements,
promises, or agreements, orally or otherwise, have been made by any
party, or anyone acting on behalf of any party, which are not
embodied herein, and that no other agreement, statement, or promise
not contained in this agreement shall be valid or binding on either
party.
Modifications
Section 10.05. Any modification of this agreement will be effective
only if it is in writing and signed by the party to be charged.
Effect of Waiver
Section 10.06. The failure of either party to insist on strict
compliance with any of the terms, covenants, or conditions of this
agreement by the other party shall not be deemed a waiver of that
term, covenant, or condition, nor shall any waiver or relinquishment
of any right or power at any one time or times be deemed a waiver
or relinquishment of that right or power for all or any other times.
Partial Invalidity
Section 10.07. If any provision in this agreement is held by court
of competent jurisdiction to be invalid, void, or unenforceable,
the remaining provision shall nevertheless continue in full force
without being impaired or invalidated in any way.
Facsimile Signatures
Section 10.08 Any signed copy of this agreement or of any other
document or agreement referred to herein, or copy or counterpart
thereof, delivered by facsimile transmission, shall for all
purposes be treated as if it were delivered containing an original
manual signature of the party whose signature appears in the
facsimile, and shall be binding upon such party in the same
matter as though an originally signed copy had been delivered.
Executed on , 2000, at Orange, California.
Employer :
Worldwide Wireless Networks, Inc., a Nevada Corporation
Pacific Link Internet, Inc., a California corporation d.b.a. Global
Pacific Internet
by:
its:
Executed on , 2000, at Orange, California.
Employee :
Xxxxxxx X. Xxxxx
[TYPE]EX-10.13 CONSULTANT AGREEMENT, DATED JULY 12, 2000 BETWEEN
WORLDWIDE WIRELESS AND COLUMBIA FINANCIAL GROUP
CONSULTANT AGREEMENT
Columbia Financial Group is an investor relations, direct
marketing, publishing, publicrelations and advertising firm with
expertise in the dissemination of information about publicly
traded companies. Also in the business of providing investor
relations services, public relations, services, publishing,
advertising services, fulfillment services, as well as Internet
related a services.
Agreement made this 12th day of July 2000, between Worldwide
Wireless Networks, Inc. (hereinafter referred to as "Corporation"),
and Columbia Financial Group, Inc. (hereinafter referred to as
"Consultant"), (collectively referred to as the "Parties"):Recitals:
The Corporation desires to engage the services of the
Consultant to perform for the Corporation consulting services
regarding all phases of the Corporation's "Investor Relations" to
include direct investor relations and broker/dealer relations as
such may pertain to the operation of the Corporation's business.
The Consultant desires to consult with the Board of
Directors, the Officers of the Corporation, and certain
administrative staff members of the Corporation, and to undertake
for the Corporation consultation as to the company's investor
relations activities involving corporate relations and relationships
with various broker/dealers involved in the regulated securities
industry.
AGREEMENT
1. The respective duties and obligations of the contracting Parties
shall be for a period of twelve (12) months commencing on the date
first appearing above. This Agreement may be terminated by either
party only in accordance with the terms and conditions set forth in
Paragraph 8.
Services Provided by Consultant
2. Consultant will provide consulting services in connection with
the Corporation's "investor relations" dealings with NASD
broker/dealers and the investing public. (At no time shall the
Consultant provide services which would require Consultant to be
registered and licensed with any federal or state regulatory body
or self-regulating agency.) During the term of this Agreement,
Consultant will provide those services customarily provided by an
investor relations firm to a Corporation, including but not limited
to the following:
(a) Aiding the Corporation in developing a marketing plan directed
at informing the investing public as to the business of the
Corporation; and
(b) Providing assistance and expertise in devising an advertising
campaign in conjunction with the marketing campaign as set forth in
(1) above; and
(c) Advise the Corporation and provide assistance in dealing with
institutional investors as it pertains to the Corporation's
offerings of its securities; and
(d) Aid and assist the Corporation in the Corporation's efforts to
secure "market makers" which will trade the Corporation's stock to
the public by providing such information as may be required; and
(e) Aid and advise the Corporation in establishing a means of
securing nationwide interest in the Corporation's securities; and
(f) Aid and assist the Corporation in creating an "institutional
site program" to provide ongoing and continuous information to fund
managers; and
(g) Aid and consult with the Corporation in the preparation and
dissemination of press releases and news announcements; and
(h) Aid and consult with the Corporation in the preparation and
dissemination of all "due diligence" packages requested by and
furnished to NASD registered broker/dealers, the investing public,
and/or other institutional and/or fund managers requesting such
information from the Corporation.
Compensation
3. In consideration for the services provided by Consultant to the
Corporation, the Corporation shall on behalf of the Consultant cause
to be vested, (hereinafter "delivered") at the signing of this
Agreement 25% or one-quarter of the warrants as set forth below, and
the balance of the warrants will be delivered on or before the
beginning of the third quarter of the Agreement. All such warrants
delivered shall have a term of five years and shall have preferred,
"piggy back" registration rights. The warrants shall be issued at
the following exercise price:
200,000 warrants at $3.75 per share
200,000 warrants at $4.00 per share
200,000 warrants at $4.50 per share
In addition to the warrants state above, Columbia Financial
Group shall receive 200,000 shares of restricted stock.
Columbia Financial Group
Compliance
4. At the time consultants give notice to the Company or execution
of the Warrants referred to in #3, Compensation above, common shares
underlying the warrants, delivered by the Corporation to Consultant
will, at that particular time be free trading, or if not, the shares
shall be incorporated in the next registration statement filed by
the Corporation. The warrants shall have "piggy back" registration
rights and will, at the expense of the Corporation, be included in
said registration statement in a timely manner.
Representation of Corporation
5. (a) The Corporation, upon entering into this Agreement, hereby
warrants and guarantees to the Consultant that to the best knowledge
of the Officers and Directors of the Corporation, all statements,
either written or oral, made by the Corporation to the Consultant
are true and accurate, and contain no misstatements of a material
fact. Consultant acknowledges that estimates of performance made
by Corporation are based upon the best information available to
Corporation officers at the time of said estimates of performance.
The Corporation acknowledges that the information it delivers to
the Consultant will be used by the Consultant in preparing materials
regarding the Company's business including but not necessarily
limited to, its financial condition, for dissemination to the
public. Therefore, in accordance with Paragraph 6, below, the
Corporation shall hold harmless the Consultant from any and all
errors, omissions, misstatements, except those made in a negligent
or intentionally misleading manner in connection with all
information furnished by the Corporation to Consultant.
(b) Consultant shall agree to release information only with written
or verbal approval of the company.
6. Worldwide Wireless Networks, Inc.
1. Authorized 50 million shares
2. Issued 12,058,838 shares
3. Outstanding 12,058,833 shares
4. Free trading (float) 4.1 million shares (approx.)
5. Shares subject to Rule 144 restrictions 8 million shares
(approx.)
Columbia Financial Group
Limited Liability
7. With regard to the services to be performed by the Consultant
pursuant to the terms of this Agreement, the Consultant shall not be
liable to the Corporation, or to anyone who may claim any right due
to any relationship with the Corporation, for any acts or omissions
in the performance of services on the part of the Consultant, except
when said acts or omissions of the Consultant are due to its willful
misconduct or culpable negligence.
Termination
8. This Agreement may be terminated by either party upon the giving
of not less than thirty (30) days written notice, delivered to the
parties at such address or addresses as set forth in Paragraph 9,
below. In the event this Agreement is terminated by the
Corporation, compensation paid by the Corporation pursuant to
paragraph 3 above, to the Consultant to the date of termination
(or through the end of the month during which notice of termination
is delivered). In the event this Agreement is terminated by
consultant, compensation shall be reimbursed to Corporation as
follows:
The Agreement will be divided into four equal quarters. If
termination occurs within the first quarter or initial ninety (90)
days of the Agreement the Consultants will have no obligation to
return any of the initial compensation of the contract pursuant to
paragraph 3 above. Each and every subsequent quarter of the
Agreement will have an equal amount of compensation. If termination
occurs within any quarter of the Agreement the Consultants will
return a pro rata amount based on a 90 day quarter.
The valuation of said shares for purposes of repayment of shares,
shall be the bid price of said shares as of the date shares are
tendered back to the Corporation. If there is no bid price, then
the price shall be agreed to, by separate writing to be determined
by the parties upon the execution of this agreement.
Notices
9. Notices to be sent pursuant to the terms and conditions of this
agreement shall be sent as follows:
Xxxxxxx X. Rieu Xxxx Xxxxxxxxx
Columbia Financial Group, Inc. Worldwide Wireless Networks, Inc.
0000 Xxxx Xxxx, Xxx. 000 770 The City Drive South, Ste. 3700
Xxxxxxxxxxx, Xxxxxxxx 00000 Xxxxxx, XX 00000
Columbia Financial Group
Attorney's Fees
In the event any litigation or controversy, including arbitration,
arises out of or in connection with this Agreement between the
Parties hereto, the prevailing party in such litigation, arbitration
or controversy, shall be entitled to recover from the other party or
parties, all reasonable attorney's fees expenses and suit costs,
including those associated within the appellate or post judgment
collections proceedings.
Arbitration
10. In connection with any controversy or claim arising out of or
relating to this Agreement, the Parties hereto agree that such
controversy shall be submitted to arbitration, in conformity with
the Federal Arbitration Act (Section 9 U.S. Code Section 901 et
seq.), and shall be conducted in accordance with the Rules of the
American Arbitration Association. Any judgment rendered as a result
of the arbitration of any dispute herein, shall upon being rendered
by the arbitrators be submitted to a Court of competent jurisdiction
with the state of Maryland, if initiated by the Consultant, or in
the state of California by the Corporation.
Governing Law
11. This Agreement shall be construed under and in accordance with
the laws of the State of California, and all parties hereby consent
to California as the proper jurisdiction for said proceeding
provided herein.
Parties Bound
12. This Agreement shall be binding on and inure to the benefit of
the contracting parties and their respective heirs, executors,
administrators, legal representatives, successors, and assigns when
permitted by this Agreement.
Legal Construction
13. In case any one or more of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal, or
unenforceable in any respect, the invalidity, illegality, or
unenforceability shall not affect any other provision, and this
Agreement shall be construed as if the invalid, illegal, or
unenforceable provision had never been contained in it.
Prior Agreements Superseded
14. This Agreement constitutes the sole and only Agreement of the
contracting parties and supersedes any prior understandings or
written or oral agreements between the respective parties. Further,
this Agreement may only be modified or changed by written agreement
signed by all the parties hereto.
Columbia Financial Group
Multiple Copies or Counterparts of Agreement
15. The original and one or more copies of this Agreement may be
executed by one or more of the parties hereto. In such event, all
of such executed copies shall have the same force and effect as the
executed original, and all of such counterparts taken together shall
have the effect of a fully executed original. Further, this
Agreement may be signed by the parties and copies hereof delivered
to each party by way of facsimile transmission, and such facsimile
copies shall be deemed original copies for all purposes if original
copies of the parties' signatures are not delivered.
Liability of Miscellaneous Expenses
16. The Corporation shall be responsible to any miscellaneous fees
and costs approved in writing prior by the Corporation or its agents
to commitment that are unrelated to the agreement made between the
Parties.
Headings
17. Headings used throughout this Agreement are for reference and
convenience, and in no way define, limit or describe the scope or
intent of this Agreement or effect its provisions.
IN WITNESS WHEREOF, the Parties have set their hands and sale as of
the date written above.
BY: /s/
Xxxxxxx X. Rieu, President
Columbia Financial Group, Inc.
BY: /s/
Xxxx Xxxxxxxxx
Worldwide Wireless Networks, Inc.
[TYPE]EX-10.14 CONSULTANT AGREEMENT, DATED NOVEMBER 2000, BETWEEN
WORLDWIDE WIRELESS AND COLUMBIA FINANCIAL GROUP
AMENDMENT TO CONSULTANT AGREEMENT
THIS AMENDMENT (the "Amendment") is entered into as of the ____ day
of November, 2000,by and between WORLDWIDE WIRELESS NETWORKS, INC.,
(the "Corporation"), and
COLUMBIA FINANCIAL GROUP, INC. (the "Consultant", collectively with
the Corporation, the "Parties"). This Amendment shall modify the
terms and conditions of both (i) the Consultant Agreement entered
into on the 1st day of June 1999 by and between the Parties
(the "First Agreement"), and (ii) the Consultant Agreement entered
into on the 12th day of July 2000, by and between the Parties
(the "Second Agreement", collectively with the First
Agreement, the "Consultant Agreement"), in accordance with
Section 13 of both of the
Consultant Agreements.
WHEREAS, due to market conditions and the current price of
the Corporation's common shares, the Board of Directors of the
Corporation has elected to amend the exercise price of the
warrants contemplated as consideration in the Consultant Agreement;
NOW, THEREFORE, in consideration of the foregoing premises and
agreements set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound,
hereby agree as
follows:
1. Amendments. Upon execution of this Amendment, the Parties
agree to the following:
1.01. Warrants Issued Under the Consultant Agreement. The
four hundred thousand (400,000) warrants contemplated as
consideration due to the Consultant for services to be provided
to the Corporation under the First Agreement and the
six hundred thousand (600,000) warrants contemplated as
consideration due to the Consultant for services to be provided
to the Corporation under the Second Agreement, shall now have an
exercise price of One Dollar and Ten Cents ($1.10) per share. The
aggregate amount of all one million (1,000,000) of these warrants
(the "Warrants") shall be fully vested.
1.02. Term of the Consultant Agreement. The Warrants and the
two hundred thousand (200,000) restricted shares of common
stock issued to the Consultant pursuant to Section 3 the Second
Agreement (the "Restricted Shares") are consideration for services
that shall be provided to the Corporation during the
period of October 2000 through September 2001. The parties
therefore hereby agree that the term of the Second Agreement is
amended to reflect such new time period.
1.03. Exercise of Warrants. The parties hereby agree that:
(a) the Consultant shall exercise six hundred thousand (600,000)
of the Warrants for a total purchase price of Six Hundred Sixty
Thousand Dollars ($660,000) at the time the Corporation
files its Form SB-2A with the United States Securities and
Exchange Commission (the "SEC"); and
(b) the Consultant shall exercise four hundred thousand
(400,000) of the Warrants for a purchase price of Four
Hundred Forty Thousand ($440,000) after the Form SB-2A has
been declared effective by the SEC.
2. Miscellaneous Provisions.
2.01. Notices. All notices sent pursuant to the terms and
conditions of this Amendment
shall be sent as follows:
If to the Corporation:
Worldwide Wireless Networks, Inc.
000 Xxx Xxxx Xxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxx Xxxxxxxxx
Chairman of the Board
Chief Executive Officer
With a copy (which shall
Xxxxxxxx, August & Xxxxxxxxx LLP
not constitute notice) to:
00000 XxxXxxxxx Xxxx., Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. August, Esq.
If to the Consultant:
Columbia Financial Group, Inc.
0000 Xxxx Xxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxxxx X. Rieu
2.02. Binding Amendment. This Amendment shall constitute a
binding amendment to the Consultant Agreement of the parties
hereto, enforceable against each of them in accordance with
its terms. This Amendment shall inure to the benefit of each
of the parties hereto, and their respective successors and
permitted assigns, in accordance with the provisions of the
Consultant Agreement.
2.03. Entire Understanding. This Amendment constitutes the
final understanding between the parties with respect to the
subject matter hereof and the transactions contemplated hereby,
and supersedes the Consultant Agreement only with respect
to the subject matter hereof.
2.04. Headings. The headings provided herein are for
convenience only and shall have no force or effect upon the
construction or interpretation of any provision hereof.
2.05. Counterparts. This Amendment may be executed in
one or more counterparts, each of which shall be deemed an
original, but all of which together shall
constitute one and the same instrument.
2.06. Governing Law. This Amendment shall be governed
by and construed in accordance with the internal laws of
the State of California, and all parties hereby consent to
the State of California as the proper jurisdiction for said
proceeding provided herein, as in accordance with the Consultant
Agreement.
2.07. Severable Provisions. The provisions of this Amendment
are severable, and if any one or more provisions is determined to
be illegal, indefinite, invalid or otherwise unenforceable, in whole
or in part, by any court of competent jurisdiction, then the
remaining provisions of this Agreement and any partially unenforceable
provisions to the extent enforceable in the pertinent jurisdiction,
shall continue in full force and effect and shall be binding and
enforceable on the parties.
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the date and year first above written.
THE CORPORATION:
WORLDWIDE WIRELESS
NETWORKS, INC.: ATTEST:
By: _________________________ By:_________________________
Xxxx Xxxxxxxxx _________________________
Chairman of the Board
Chief Executive Officer
THE CONSULTANT:
COLUMBIA FINANCIAL WITNESS:
GROUP, INC.:
By: _________________________ By:_________________________
Xxxxxxx X. Rieu _________________________
________________
