EXHIBIT 10 - Acquisition Agreement
ACQUISITION AGREEMENT
Acquisition Agreement, made this 15th day of November, 2003 among,
International Wireless, Inc., of 000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxx Xxxxx,
XX 00000, a Maryland Corporation ("IWIN") and PMI Wireless, Inc. of 0000 X.
Xxxxxx Xxxx Xxxxxxx 000-000, Xxxxxxx, XX 00000, a Delaware corporation ("PMI")
and the shareholders of PMI as herein listed as Exhibit A attached, and as
represented by Xxxxx Xxxxxxxxxxx, President of PMI (the "Sellers").
WHEREAS;
A. IWIN is a public company trading under the symbol "IWIN".
B. IWIN as November 12, 2003 has spun-off all assets, including but not
limited to all its subsidiaries and intellectual properties, and contracts
and therefore as of this date consists a public shell with no current
assets or operations.
C. PMI Wireless desires to become a public company.
B. The parties hereto deem it to be in the best interest of each of them that
PMI Wireless, be acquired and become a subsidiary of IWIN in a reverse
merger whereby the Sellers become majority shareholders of IWIN, all
pursuant to such terms, provisions and conditions as the parties hereto
shall agree.
NOW, THEREFORE, WITNESSETH, that for and in consideration of the premises
and of the mutual promises and covenants hereinafter set forth, the parties
hereto agree as follows:
A. PURCHASE AND PAYMENT
1. Purchase and Sale of Stock.
1.1 PMI agrees to sell to IWIN and Sellers agrees to sell, assign,
transfer and deliver to IWIN 100 percent of the issued and
outstanding stock of PMI owned by Sellers as described in
Schedule A annexed hereto and made a part hereof (collectively,
the "Stock").
1.2 The Acquisition and payment for the Stock by IWIN shall take
place at the time and in the manner hereinafter provided, and the
sale, assignment, transfer and delivery of the Stock by Sellers,
shall take place on the Closing Date at the Closing as those
terms are hereinafter defined, subject to the fulfillment of the
conditions hereinafter provided.
2. Purchase Price.
The aggregate purchase price of the Stock (the "Purchase Price"), shall be
a Nine Million Eight Hundred and Ninety Eight Thousand four hundred and sixty
six (9,898,466) common shares of IWIN payable to Sellers plus fifty Thousand
($50,000) U.S. Dollars payable to IWIN by the Sellers all of which is to be paid
to the U.S. Internal Revenue Service on behalf of IWIN for a current debt owed
by IWIN for payroll taxes, all to be delivered at closing.
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B. REPRESENTATIONS AND WARRANTIES OF IWIN
1. Corporate Status and Authority.
IWIN hereby represents and warrants that (i) IWIN is a duly organized and
validly existing corporation under the laws of the State of Maryland, (ii) the
execution, delivery and performance of this Agreement by the IWIN has been duly
authorized by all necessary corporate action, (iii) this Agreement is a valid
and legally binding obligation of IWIN enforceable in accordance with the terms
hereof, (iv) no governmental authorization, approval, order, license, permit,
franchise or consent and no registration or filing with any governmental
authority is required in connection with the execution, delivery or performance
of this Agreement by IWIN.
2. Capital Structure.
IWIN (a) is authorized by its charter and applicable law to issue
100,000,000 common stock, par value $0.009 of which 1,857,137 shares are
outstanding after a 30 to 1 reverse split that took place on November 12, 2003
and 5,000,000 preferred stock, par value $0.001 non of which are issued and
outstanding; (b) has no issued and outstanding shares of its capital stock
whatever, except as specifically indicated hereto, all of which such shares are
fully paid and non-assessable; (c) does not have authorized, issued or
outstanding any subscription, option, warrant, conversion or other rights to the
issuance or receipt of shares of its capital stock except as noted hereto; (d)
has all voting rights vested exclusively in the presently issued and outstanding
capital stock; and (e) has outstanding no bonds, debentures or other similar
evidences of indebtedness except as specifically disclosed hereto (f) has no
assets or subsidiaries of any kind by virtue.
C. REPRESENTATIONS AND WARRANTIES OF SELLERS AND PMI
Sellers and PMI hereby warrant and represent to IWIN that, as of the date
hereof, the following statements are true and correct.
1. Corporate Status.
PMI is (a) duly organized, validly existing and in good standing under the
laws of the State of Delaware; (b) has full corporate power to own all of its
properties and carry on its business as it is now being conducted; and (c) is
qualified to do business as a foreign corporation in each of the jurisdictions
in which it operates and the character of the properties owned by PMI or the
nature of the business transacted by PMI does not make qualification necessary
in any other jurisdiction or jurisdictions.
2. Authority to Sell.
Sellers have full right, power and authority to sell, transfer and deliver
the Stock owned by him to IWIN in accordance with the terms of this Agreement,
and otherwise to consummate and close the transaction provided for in this
Agreement in the manner and upon the terms herein specified.
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3. Capital Structure.
PMI (a) is authorized by its charter and applicable law to issue capital
stock of the type and having par values as set forth in Schedule A hereto; (b)
has no issued and outstanding shares of its capital stock whatever, except as
specifically indicated in Schedule A hereto, all of which such shares are fully
paid and non-assessable; (c) does not have authorized, issued or outstanding any
subscription, option, warrant, conversion or other rights to the issuance or
receipt of shares of its capital stock except as set forth hereto; (d) has all
voting rights vested exclusively in the presently issued and outstanding capital
stock; and (e) has outstanding no bonds, debentures or other similar evidences
of indebtedness except as specifically disclosed hereto.
4. Ownership of Stock.
All of the issued and outstanding shares of capital stock of PMI are owned
by Sellers. Sellers own beneficially and of record the number of shares set
forth in Schedule A hereto opposite their names. Sellers holds such stock free
and clear of all liens, claims, debts, encumbrances and assessments, and any and
all restrictions as to sale, assignment or transferability thereof. Sellers have
full right, power and authority to sell, transfer and deliver all of the shares
of Stock owned by them and the certificates therefor, sold hereunder, to IWIN in
accordance with the terms of this Agreement, and otherwise to consummate and
close the transaction provided for in this Agreement in the manner and upon the
terms herein specified.
5. Peaceable Possession of Assets.
The ownership and possession of all of the assets of PMI has been peaceable
and undisturbed and the title thereto has never been disputed or questioned to
the knowledge of PMI; nor does PMI knows of any facts by reason of which the
possession or title thereof by PMI might be disturbed or questioned or by reason
of which any claim to its assets might arise or be set up adverse to PMI.
6. Regulatory Good Standing.
PMI has all material rights, certificates, authorities, permits, licenses,
franchises and other authorizations necessary to and has complied in material
respects with all laws applicable to, the conduct of its business in the manner
and in the areas in which such business is presently being conducted and all
such certificates, authorities, rights, permits, licenses, franchises and
authorizations are valid, in good standing, in full force and effect, under no
orders of suspension or restraints, and subject to no disciplinary, probationary
or other orders. To the best of its knowledge, PMI has engaged in no activity
whatever which would cause or lead to proceedings involving revocation,
suspension, restraint, disciplinary action or any other action whereby any of
such certificates, authorities, rights, permits, licenses, franchises or
authorizations, or any part thereof, might be canceled, terminated, suspended,
impaired, lost or otherwise adversely affected, and no action or proceeding
looking to or contemplating any of the foregoing is pending or to PMI's
knowledge threatened. The foregoing shall not be deemed to constitute a warranty
or representation that PMI has not heretofore or shall not hereafter suffer to
be committed minor and unintentional violations of any governmental regulations
of such nature as not to cause either suspension or revocation of PMI's
operating authority.
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7. Litigation.
PMI is not a party to any pending or to its knowledge threatened suit,
action, proceeding, prosecution or litigation which might materially adversely
affect the financial condition, business, assets, properties, certificates,
rights, authorities, franchises or authorizations of PMI, or materially
interfere therewith, nor to the knowledge of PMI is there any threatened or
pending governmental investigation involving PMI or any of its operations,
including inquiries, citations or complaints by any federal, state or local
administration or agency, which would materially adversely affect the financial
condition, business, assets or properties of PMI; and there are no outstanding,
existing or pending judgments, orders, decrees, rulings, directives,
stipulations or other mandates of any court or any public or quasi-public
agency, body or official which have been in any way violated as they relate to
or affect PMI or any of PMI's properties, businesses, operations, affairs or
activities.
8. Defaults.
There are no material defaults on the part of PMI under any contract,
lease, mortgage, pledge, credit agreement, title retention agreement, security
agreement, lien, encumbrance or any other commitment, contract, agreement or
undertaking to which PMI is a party.
9. Tax Returns.
All returns for federal, state and other governmental income taxes,
surtaxes, excess profits taxes, franchise taxes, sales and use taxes, real and
personal property taxes and any and all other taxes to which PMI, or its assets,
operations or income may be subject, due as of the date hereof, have been duly
prepared and filed in good faith and all taxes shown thereon have been paid or
are accrued on the books of PMI.
10. Infringements.
PMI has never been charged with infringement or violation of any adversely
held patent, trademark, trade name, or copyright, with claims reading on
operations of PMI or on apparatus or methods employed by PMI in effecting the
same, which would materially adversely affect any operation of PMI, nor is PMI
using or in any way making use of any confidential information or trade secrets,
of any former employer or any present or past employee of PMI except as a result
of the acquisition of the business of such former employer.
11. Truth of Representation.
No representation by PMI made in this Agreement and no statement made in
any certificate or schedule furnished in connection with the transaction herein
contemplated contains or will contain any knowingly untrue statement of a
material fact or knowingly omits or will omit to state any material fact
reasonably necessary to make any such representation or any such statement not
misleading to a prospective purchaser of the Stock.
D. CONDITIONS PRECEDENT TO CLOSING
All obligations of PMI under this Agreement are subject to the fulfillment
of each of the following conditions, in addition to the fulfillment of any and
all other conditions set forth in this Agreement:
1. Corporate Action.
Prior to the Closing Date, the Board of Directors of PMI shall have duly
adopted resolutions to the same effect with respect to the aforesaid matters.
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2. Termination.
In the event any of the foregoing conditions shall not be fulfilled prior
to the Closing, unless caused by any action or failure to act on the part of
IWIN, IWIN shall have the right to terminate the Agreement by notice thereof in
writing to PMI, and the parties hereto shall be restored as far as possible to
status quo, whereupon the parties hereto shall have no further obligations or
liabilities hereunder, one against the other.
E. CLOSING
The closing under this Agreement (the "Closing") and all deliveries
hereunder shall take place at the office of IWIN on November 17th , 2003 or such
other place or date as shall be agreed upon by all the parties ("the Closing
date").
F. CONFIDENTIALITY
All information and documentation provided or to be provided by PMI or
Sellers to IWIN in connection with this Agreement and the transactions
contemplated hereby has been and shall be provided in the strictest confidence.
Pending the Closing, IWIN covenants and agrees not to use any of such
information or documentation in or for the benefit of any business engaged in
directly or indirectly by IWIN and not to furnish or disclose any of such
information or documentation to any person. If the transactions contemplated by
this Agreement are not consummated, IWIN covenants and agrees to return all such
information and documentation to PMI and not retain any copies thereof, and IWIN
further covenants and agrees to maintain the confidentiality of such information
and documentation and to neither use any of it in or for the benefit of any
business engaged in directly or indirectly by IWIN nor furnish or disclose any
of it to any person.
G. GENERAL PROVISIONS
1. Survival of Representations, Warranties and Covenants.
Unless otherwise expressly provided herein, the representations,
warranties, covenants, indemnities and other agreements herein contained shall
be deemed to be continuing and shall survive the consummation of the
transactions contemplated by this Agreement.
2. Diligence.
The parties hereto agree that each shall with reasonable diligence proceed
to take all action which may be reasonably required to consummate the
transaction herein contemplated.
3. Waivers.
Each party hereto may:
3.1 Extend the time for performance of any of the obligations of the
other party;
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3.2 Waive in writing any inaccuracies in representations and
warranties made to it contained in this Agreement or any schedule
hereto or any certificate or certificates delivered by any of the
other parties pursuant to this Agreement; and
3.3 Waive in writing the failure of performance of any of the
agreements, covenants, obligations or conditions of the other
parties herein set forth, or alternatively terminate this
Agreement for such failure.
4. Non-Waiver.
The waiver by any party hereto of any breach, default, inaccuracy or
failure by another party with respect to any provision in this Agreement or any
schedule hereto shall not operate or be construed as a waiver of any other
provision thereof or of any subsequent breach thereof.
5. Further Assurances.
Each party hereto agrees to execute such further documents or instruments,
requested by the other party, as may be reasonably necessary or desirable to
effect the purposes of this Agreement and to carry out its provisions, at the
expense of the party requesting the same.
6. Entire Agreement.
This Agreement constitutes a complete statement of all the arrangements,
understandings and agreements between the parties, and all prior memoranda and
oral understandings with respect thereto are merged in this Agreement. There are
no representations, warranties, covenants, conditions or other agreements among
the parties except as herein specifically set forth, and none of the parties
hereto shall rely on any statement by or on behalf of the other parties which is
not contained in this Agreement.
7. Governing Law.
Irrespective of the place of execution or performance of this Agreement, it
shall be governed by and construed in accordance with the laws of the State of
Connecticut applicable to contracts made and to be performed in the State of
Connecticut, and cannot be changed, modified, amended or terminated except in
writing, signed by the parties hereto.
8. Benefit and Assignability.
This Agreement shall bind and inure to the benefit of the parties hereto
and their respective legal representatives, successors and assigns, provided,
however, that this Agreement cannot be assigned by any party except by or with
the written consent of the others. Nothing herein expressed or implied is
intended or shall be construed to confer upon or to give any person, firm or
corporation other than the parties hereto and their respective legal
representatives, successors and assigns any rights or benefits under or by
reason of this Agreement.
9. Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same Agreement.
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10. Notices.
Any notices and other communications under this Agreement shall be in
writing and shall be considered given if delivered personally or mailed by
certified mail to the party, for whom such notice is intended, at the address
indicated at the outset hereof (or at such other address as such party may
specify by notice to the other parties hereto).
11. Headings.
The headings in this Agreement are intended solely for convenience of
reference and shall be given no effect in the construction or interpretation of
this Agreement.
12. Further Action.
Any further action required or permitted to be taken under this Agreement,
including giving notices, executing documents, waiving conditions, and agreeing
to amendments or modifications, may be taken on behalf of a party by its Board
of Directors, its President or any other person designated by its Board of
Directors, and when so taken shall be deemed the action of such party.
IN WITNESS WHEREOF, the parties hereto have respectively executed this
Agreement the day and year first above written.
INTERNATIONAL WIRELESS, INC.
By: /s/ Xxxxx Xxxxxxxxx
---------------------------------
Xxxxx Xxxxxxxxx, Acting President
Witness: /s/ Xxx Xxxxxxxxx
-----------------------------
Xxx Xxxxxxxxx
PMI WIRELESS, INC.
By: /s/ Xxxxx Xxxxxxxxxxx
------------------------------------
Xxxxx Xxxxxxxxxxx, CEO and President
SELLERS
/s/ Xxxxx Xxxxxxxxxxx
------------------------------------------
Xxxxx Xxxxxxxxxxx, under power of attorney
Witness: /s/ Xxxxx Xxxxxxxxxxx
----------------------------------
Xxxxx Xxxxxxxxxxx
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Schedule A
----------
NAME NO. OF SHARES
---------------------------------- -------------
Xxxxx Xxxxxxxxxxx 3,000,000
Xxxx Xxxxxxx 1,000,000
Xxxxxx Xxxx 7,000
Xxxxxxx Xxxxx 1,000,000
The Good One Inc 1,500,000
Xxxxxxxxx X. Xxxxxx Trustee 100,000
Xxxxxx Xxxxxx 20,000
Xxx Xxxxxxxxx 10,000
Xxxxxxx Xxxxxxxxxx 30,000
Xxxxx Xxxxxxxx 3,000
Xxxxxxx Xxxxxxxxxxx 53,333
Xxxxxx Xxxxxx 7,500
Xxxxx Xxxxxxxxxx 15,000
Xxxxx Xxxxxx 6,000
Xxxxx Xxxxxx 10,000
Xxxxx X. Xxxxxxxx 5,000
Xxxxxxx Family Living 60,000
Trust (Xxxxxxx X. Xxxxxxx)
Xxx Xxxxx 49,000
Xxxxxx Xxxxxxxx 54,000
Xxxx Sherbrooke 110,000
Xxxxx Cable 5,000
Xxxxx X. Xxxxxxxx 15,000
Xxxxxx X. Xxxxxx 12,500
Xxxxx Xxxxxxxxxxx 50,000
Xxxx Xxxxxxxx 28,000
Xx Xxxxx Xxxxxxxxxx 40,000
Xx. Xxxxx Xxxxx 25,000
Xx. Xxxxxxx Xxxxxx 12,000
Xxxxxx Xxxxx 100,000
Xxxxx Field 100,000
Dr. Xxxxx Xxxx 10,000
Dr. Xxxxxx Xxxxxx 5,000
Xx. Xxxxxxx X. Xxxxxx 50,000
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Schedule A [continued]
----------------------
NAME NO. OF SHARES
---------------------------------- -------------
Xx. Xxxx X. Xxxxxx 26,500
Xx. Xxxxxxx X. Xxxx 5,000
Xx. Xxxxxx Xxxxxxxx 15,000
Xxxxxx X. Xxxxx 400,000
Xxxx Xxxxx 3,500
Xxxxxx X. Paulicki 12,500
F. Xxxx Xxxxxx 15,000
Xxxxx X. Xxxxxx 7,000
Xxxxxxx Xxxxxx 1,200
Xxxxxx X. Xxxxx Xx. 90,000
Xxxxx Xxxxxx 15,000
Xxxxx Xxxxxx 10,000
Xxxxx X. Xxxxxxx 20,000
Xxxxx Xxxxxx 15,000
Xxxxx X. Xxxxxx 20,000
Xxxx X. Bru 5,000
Xxxxxxx X. Xxxxxx 20,000
Jaren Xxxxxxx Xxxxxxxx 1,000
Xxxxx Xxxxxxxx Xxxxxxxx 1,000
Xxxxxxxx Xxxxxx 10,000
Xxxxxx Xxxxx 2,500
Xxxx Xxxxxxxx 180,000
Xxxx Xxxxxx 10,000
Xxxx Xxxxxx 12,500
Xxx Xxxxxxx 5,000
Xxxxx X. Xxxxxxxx 12,000
Xxxx Xxxxx 4,000
Xxxx X. Xxxxxxxx Xx. 34,000
Xxxx X. Xxxx 15,000
Xxxx Xxxxxxxxxxx 16,000
Xxxx X. Xxxxxx Xx and 40,000
Xxxx X. Xxxxxx
Xxxx Xxxxx 1,500
Xxxx Xxxxxxxxx Xx. 2,500
Xxxx Xxxxx 3,000
Xxxxx Xxxxxxx 3,000
Xxxxx Xxxxxxx 10,000
Xxxxx Xxxxxx 25,000
Xxxx Xxxxxxx 20,000
Xxxxxx X. Xxxxx 25,000
Xxxx Xxxxxxxx 13,333
Xxxxxx Xxxxx 60,000
Xxxxx Xxxxxxx 50,000
Xxxx Xxxxxx 7,000
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Schedule A [continued]
----------------------
NAME NO. OF SHARES
---------------------------------- -------------
Xxxxxxx X. Xxxx 65,000
Xxxxxxxx X. Xxxxx 40,000
Xxxxxxx X. Xxxxxxx 15,000
-LivingTrust
Xxxxxxx X. Xxxxxxxx 50,000
Xxxxxxx X. Xxxxxx 15,000
Xxxxxxx Xxxxxxxxx 15,000
Xxxx Xxxxxxxx 5,000
Xxxxx Xxxxxx 10,000
Xxx. Xxxxxxxx Xxxxxxxxxx 20,000
West Inc.(Xxxxxxx Xxxxxx)
Xxxx Xxxxxxxxxxx 7,500
Xxxx Xxxxxx 15,000
Xxxx Xxxxxx 5,000
Xxxx Xxxxxxx 120,000
Xxxxx Xxxxxx 20,000
Xxxxx Xxxxx 7,000
Xxxxxxx Xxxxxxx 20,000
Xxxxxx X. Xxxx Trust 40,000
Xxxxxx Xxxxxx 7,000
Xxxxxx Xxxxxx 20,000
Xxxxxx Xxxxx 5,000
Xxxxxx Xxxxxx 20,000
Xxxxxx Xxxxx-President 40,000
Consultants Inc-8880
Xxxxxx Xxxx 40,000
Rolling Hills Group LTD 5,000
Xxxx X. Xxxxxx Mngr
Rolling Hills Group LTD 85,000
Xxxxxx X. Xxxxxx Mngr
Xxx Xxxx 20,000
Xxxx & Xxxxx Xxxxx 5,000
Xxxx Xxxxxx 20,000
Xxxxxx Xxxxxxx 40,000
Xxxx Xxxxxxxx 4,000
Xxxx Xxxxxxxx 80,000
Xxxxx Xxxxx 10,000
Xxxxxx X. Xxxxxxxx 5,000
Xxxxxx X. Xxxxx 10,000
Xxxxxx Xxxxx 25,000
Xxxxx Xxxxx 75,000
Xxxxxx X. Xxxxxxxx 10,000
T. Xxxx Xxxxxxx Xx. 12,000
Xxxxxx X. Xxxxxx Xx. 5,000
Xxxxxx Xxxxxxxxx 5,000
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Schedule A [continued]
----------------------
NAME NO. OF SHARES
---------------------------------- -------------
Xxx Xxxxxxxxx 2,500
Xxxxx Xxxxxxxxxxx 100
X.X. Xxxxxxxxxx 50,000
Xxxxx Xxxxxx 6,000
Xxxxxxx Xxxxxxxx 15,000
Xxxxxxx x. Xxxxxxx 11,000
Xxxxx Xxxxxx 100,000
---------
Total 9,938,466
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