EXHIBIT 2.4
BUSINESS RELATIONSHIP RESTRUCTURING AGREEMENT
This Business Relationship Restructuring Agreement (this "Agreement")
is made and entered into as of March 12, 2002, by and between Wireless
WebConnect!, Inc., a Delaware corporation (the "Company"), and Banca del
Gottardo and its clients ("BdG"). The Company and BdG are sometimes each
referred to herein as a "Party", and collectively as the "Parties".
W I T N E S E T H :
WHEREAS, the Company and BdG are parties to certain agreements
involving BdG's business relationship with the Company pursuant to which BdG
has loaned money to the Company and acquired shares of the Company's common
stock, $.01 par value per share ("Common Stock") and warrants to purchase
shares of Common Stock; and
WHEREAS, the Parties desire to restructure such business relationship
to the extent provided herein;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties hereby agree as follows:
1. EXCHANGE FOR SERIES B CONVERTIBLE PREFERRED STOCK. Effective
as of the Effective Time (as defined below), BdG shall be deemed to have
surrendered to the Company all warrants to purchase Common Stock (the
"Warrants") held of record by BdG and all principal of, and accrued but unpaid
interest on, that certain 7% Convertible Subordinated Note, due June 11, 2004,
as amended and extended, issued by the Company to BdG (the "Note"), in exchange
for an aggregate of 24,000 duly and validly issued, fully paid and
nonassessable shares of the Company's Series B Convertible Preferred Stock (the
"Series B Stock"), having the rights and preferences set forth in the
Certificate of the Designations, Preferences, Rights and Limitations of Series
B Preferred Stock of the Company, a copy of which is attached hereto as EXHIBIT
A (the "Certificate of Designations"). BdG shall retain all shares of Common
Stock held by BdG. Promptly following the Effective Time, BdG shall deliver to
the Company the Warrants and the Notes, marked "Cancelled".
2. CONVERSION OF SERIES B STOCK. BdG acknowledges and agrees that
the Company does not currently have sufficient shares of authorized but
unissued Common Stock in order for the Series B Stock to be converted, and that
the Certificate of Designation prohibits conversion until such time as a
sufficient number of shares of Common Stock have been authorized and reserved
for issuance upon conversion of all then outstanding shares of Series B Stock;
and that the Company must cause such condition to be satisfied prior to June
11, 2004.
3. OTHER ISSUANCES OF SERIES B STOCK; EFFECTIVE TIME. BdG
acknowledges and agrees that the Company and a newly-formed subsidiary of the
Company ("Merger Sub") are entering into an Agreement and Plan of Merger (the
"Merger Agreement") with X-Xxxx.xxx, Inc., a Texas corporation ("E-Home"), and
the shareholders of E-Home (the "E-Home Shareholders"), pursuant to which,
among other things, Merger Sub will be merged with and into E-Home (the
"Merger"), and the E-Home Shareholders will receive an aggregate of 176,000
shares of Series B Stock. As a material inducement for BdG to effect the
conversion contemplated in Section 2 above, BdG has demanded that the E-Home
Shareholders be subject to and bound by the provisions set forth in
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Section 7.2(c) of the Merger Agreement. BdG also hereby agrees to be bound
by and subject to the provisions of Section 7.2(c) of the Merger Agreement
with respect to the shares of Series B Stock being issued to BdG pursuant to
this Agreement. As used herein, the "Effective Time" shall mean the
effective time of the Merger.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
hereby represents and warrants that the following are true and correct as of
the date hereof:
(a) The Company is a corporation validly existing and in good
standing under the laws of the State of Delaware. The Company has the
corporate power and authority to execute, deliver and perform its obligations
under this Agreement, and the execution, delivery and performance by it of this
Agreement has been duly authorized by all necessary action, and this Agreement
constitutes the valid and binding obligation of the Company, enforceable
against it in accordance with the terms hereof.
(b) As of the date hereof, the authorized capital stock of the
Company consists of 60,000,000 shares of Common Stock and 1,000,000 shares of
preferred stock, $.01 par value per share ("Preferred Stock"), of which 200,000
shares have been designated as Series B Stock. As of the date hereof,
35,386,459 shares of Common Stock and no shares of Preferred Stock were issued
and outstanding. All the outstanding shares of Common Stock are duly
authorized, validly issued, fully paid and non-assessable. Immediately after
the Effective Time, the Company will have an aggregate of 200,000 shares of
Series B Stock issued and outstanding.
5. REPRESENTATIONS AND WARRANTIES OF BdG. BdG hereby represents
and warrants that the following are true and correct as of the date hereof:
(a) BdG has the power and authority to execute, deliver and
perform its obligations under this Agreement, and the execution, delivery and
performance by it of this Agreement has been duly authorized by all necessary
action, and this Agreement constitutes the valid and binding obligation of BDG,
enforceable against it in accordance with the terms hereof.
(b) BdG owns the Warrants and the Note and has not assigned,
sold, conveyed or otherwise transferred any rights thereunder or therein to any
third party.
(c) STATUS OF BdG.
(i) BdG is knowledgeable in making investments and is able
to bear the economic risk of loss of its investment the
Company. BdG is an "accredited investor", as that term is
defined in Rule 501(a) of Regulation D under the untied States
Securities Act of 1933, as amended (the "Securities Act").
BdG is acting on its own behalf in connection with the
investigation and examination of the Company and its decision
to execute this Agreement and all related documents,
instruments and agreements. BdG acknowledges that the Series
B Stock will be unregistered and may not be sold or
transferred in the absence of registration under the
Securities Act and applicable state securities laws, unless an
exemption exists therefore, and the Company has no obligation
to effect such a registration.
(ii) BdG acknowledges the Company has made all documents
pertaining to the transactions contemplated herein, in the
Exhibits and Schedules attached
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hereto and as filed with the Securities and Exchange Commission
available to BdG and has allowed such BdG an opportunity to ask
questions and receive answers thereto and to verify and clarify
any information contained in such documents. BdG has relied
upon its independent investigation, and acknowledges that no
representations or agreements other than those set forth in this
Agreement have been made to BdG in respect thereto.
6. AMENDMENT AND ASSIGNMENT. This Agreement may be amended,
modified or supplemented only by an instrument in writing executed by all the
parties hereto. This Agreement shall extend to and be binding upon each of the
parties and their respective successors and assigns.
7. GOVERNING LAW. This Agreement and the rights and obligations
of the parties hereto, shall be governed, construed and enforced in accordance
with the laws of the State of Delaware.
8. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, and all of which together shall
constitute one and the same document.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
WIRELESS WEBCONNECT!, INC.
By: /s/ Xxxx X. XxXxxxxx, Xx.
Name: Xxxx X. XxXxxxxx, Xx.
Title: Chief Executive Officer
BANCA DEL GOTTARDO
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Chief Financial Officer
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