SALE AND PURCHASE AGREEMENT
This Sale and Purchase Agreement ("Agreement") dated as of the 12th day
of January 2004, by and between Xxxx, Inc., a Colorado corporation authorized to
do business in Texas as I.M. Wireless, Inc. ("Purchaser"), and Regional Wireless
Networks, Inc., a Texas corporation ("Seller").
INTRODUCTION
Seller has heretofore created, operated and maintained a wireless
network ("Wireless Network") as an informal division of its business. Seller's
Wireless Network consists of certain equipment assets ("Wireless Equipment"),
premises leases where the Wireless Equipment is maintained and operated
("Wireless Premises Leases"), wireless service contracts which grant to Seller
certain contract rights ("Wireless Contract Rights") as well as imposing certain
contractual obligations associated with Seller's Wireless Network business,
certain inventory of wireless equipment held for installation at customer and
Seller Wireless location ("Wireless Inventory") and certain intangible assets of
Seller' Wireless Network ("Wireless Intangible Assets"), all of which is
referred to as Seller's ("Wireless Network Assets"). Seller desires to sell and
Purchaser desires to purchase Seller's Wireless Network Assets on the terms and
conditions set forth in this Agreement.
In consideration of the mutual promises of the parties; in reliance on
the representations, warranties, covenants, and conditions contained in this
Agreement; and for other good and valuable consideration, the parties agree as
follows:
ARTICLE 1
SALE
1.01 Seller agrees to sell, convey, transfer, assign, and deliver to Purchaser,
and Purchaser agrees to purchase or accept from Seller, all of the Wireless
Network Assets of Seller, including the following:
(a) All of Seller's Wireless Premises Leases, including all rights
and interests in, to and under the real estate leases, all of
which are described on Exhibit 1, attached to and incorporated
fully into this Agreement;
(b) All of Seller's Wireless Equipment, including all furniture,
fixtures, equipment, supplies, and other items described on
Exhibit 2, attached to and incorporated fully into this
Agreement, and all sundry items of a like character that,
although not described on Exhibit 2, are owned by Seller and
are used in Seller's Wireless Network and situated on or about
the Wireless Network Premises.
(c) All of Seller's Wireless Inventory, on Seller's business
premises as of November 1, 2003.
(d) All of Seller's Wireless Intangible Assets associated with or
used in connection with Seller's Wireless Network:
(i) The domain names and trade names listed on Exhibit 3,
attached to and incorporated fully into this
Agreement.
(ii) All trademarks, service marks, copyrights, and trade
names, domain names whether or not listed on Exhibit
3.
(iii) All right, title, and interest of Seller in and to
the name Regional Wireless Networks, or any variant
of the name.
(iv) All papers and records (whether in written or other
form) of any kind presently in or in the future
coming into the care, custody, or control of Seller
relating to any of the assets sold to Purchaser
pursuant to this Agreement, including but not limited
to: Wireless Network related customer lists, supplier
lists, distributor lists, purchase and sales records,
blueprints, specifications, maintenance records,
operating.
(v) All permits, licenses, franchises, consents,
authorities, special authorities, and other similar
acts of any government body (federal, state, local,
or foreign) held by Seller on behalf of Seller for
its Wireless Network business that may lawfully be
assigned or transferred, subject to any action by
such body that may be required in connection with
such assignment or transfer.
(e) All of Seller's Wireless Contract Rights, including wireless
service contracts and all rights and claims to refunds and
adjustments of any kind owned by Seller arising from its
Wireless Network business.
Consideration for Sale
1.02 In consideration of the sale and transfer of the assets of Seller and the
representations, warranties, and covenants of Seller set forth in this
Agreement, Purchaser shall pay to Seller $105,000.00 (One hundred five thousand
dollars and no cents). The cash consideration shall be paid as follows:
(a) $25,000.00 on October 8, 2003;
(b) $25.000.00 on February 2, 2004;
(c) $25,000.00 on February 23, 2004; and
(d) $30,000.00 on March 8, 2004.
If any installment becomes overdue for more than ten (10) days, at
Seller's option a late payment charge of five percent (5%) of the amount due may
be charged in order to defray the expense of handling the delinquent payment.
At Closing, Purchaser shall deliver to Seller a restricted common stock
certificate equal to $190,000.00, based upon lowest trading price in previous 90
days multiplied by the required number of shares to equal $190,000.00 ($0.03 as
of January 9, 2004). (No fractional shares will be issued.) The common stock
certificate will be restricted for one year pursuant to Securities and Exchange
Commission Rule 144. Purchaser shall assume on the Closing Date duties and
obligations of Seller pursuant to the contracts, agreements, and leases describ-
ed on Exhibit 1. The parties agree that the purchase price shall be allocated as
set forth in Exhibit 4 to this Agreement and that the allocation shall be used
by the parties in reporting the transaction contemplated by this Agreement for
federal and tax purposes.
Before February 27, 2004 Buyer will deliver to Seller an appraisal of
the fair market value of assets sold pursuant to this Agreement. Based upon the
appraisal, the total cash consideration will be adjusted up or down by no more
than twenty-five percent (25%) of the total cash consideration. The adjustment
shall be reflected in the March 8, 2004 final cash payment.
Closing
1.03 The parties agree to use their best efforts to consummate this transaction
("Closing"). The Closing shall take place at the offices of the Purchaser
located at 000- Xxx Xxxxxx, Xxxxxxx, Xxxxx, on February 2, 2004, or at such
other time, date, and place mutually agreed upon in writing by Seller and
Purchaser ("Closing Date").
ARTICLE 2
SELLER'S REPRESENTATIONS AND WARRANTIES
Seller hereby represents and warrants to Purchaser that the following
facts and circumstances are and at all times up to the Closing Date will be true
and correct:
Organization
2.01 Seller is a corporation duly organized, validly existing, and in good
standing under the laws of Texas and is qualified to do business in the
jurisdictions set forth in Exhibit 5 attached to this Agreement. Seller has all
requisite power and authority to own, operate, and carry on its business as now
being conducted.
Taxes
2.02 All federal, state, local, and foreign income, ad valorem, excise, sales,
use, payroll, unemployment, and other taxes and assessments ("Taxes") that are
due and payable by Seller or on behalf of Seller have been properly computed,
duly reported, fully paid, and discharged. There are no unpaid Taxes that are or
could become a lien on the property or assets of Seller or require payment by
Seller, except for current Taxes not yet due and payable. All current Taxes not
yet due and payable by Seller have been properly accrued on the balance sheets
of Seller. Seller has not incurred any liability for penalties, assessments, or
interest under the Internal Revenue Code.
No unexpired waiver executed by or on behalf of Seller with respect to any Taxes
is in effect.
Real Property Leases
2.03 Exhibit 6, which is attached to this Agreement contains a description of
all Wireless Network Premises upon which is located Sellers Wireless Network
Equipment. All of the Wireless Network Premises leases are valid and in full
force. There does not exist any default or event that with notice, lapse of
time, or both will constitute a default under any of these lease agreements. The
zoning of each parcel of property described in Exhibit 1 permits the presently
existing improvements and the continuation of Seller's business presently being
conducted on such parcel. Seller is not aware of any enacted or proposed changes
to such zoning.
Inventories
2.04 All inventories of wireless equipment owned by Seller ("Wireless
Inventory") consist of items of a quality and quantity usable and saleable in
the ordinary course of business by Company and are of the stated value on
November 1, 2003 provided by Seller to Purchaser in Exhibit 7 attached to this
Agreement. All items included in the Wireless Inventory are the property of
Company. No items included in the Wireless Inventory have been pledged as
collateral or are held by Company on consignment from others. All of the
Wireless Inventory items are substantially free of defects.
Wireless Network Equipment
2.05 The equipment, furniture, and other personal property described in Exhibit
2 attached to this Agreement constitute all the items of tangible personal
property owned by, in the possession of, or used by Seller in connection with
Seller's Wireless Network business. Except as stated in Exhibit 2, no personal
property used by Seller in connection with its Wireless Network business is held
under any lease, security agreement, conditional sales contract, or other title
retention or security agreement or is located any place other than in the
possession of Seller.
Other Intangible Property
2.06 Exhibit 8 attached to this Agreement is a true and complete list of all
Wireless Network Intangible Assets, other than those specifically referred to
elsewhere in this Agreement, and the location of evidences of title to such
intangible assets.
Title to Assets and Properties
2.07 Seller has good and marketable title to all of its Wireless Network Assets
and properties, tangible and intangible, that are material to Seller's wireless
network business and future prospects. These assets and properties constitute
all of the assets and interests in assets that are used in Seller's Wireless
Network business. All of these assets are free and clear of mortgages, liens,
pledges, charges, encumbrances, equities, claims, easements, rights of way,
covenants, conditions, and restrictions, except for the following:
(a) The lien of current Taxes not yet due and payable.
(b) Possible minor matters that, in the aggregate, are not
substantial in amount and do not materially detract from or
interfere with the present or intended use of any of the
assets and properties nor materially impair business
operations.
All tangible personal property of Seller's Wireless Network business
are in good operating condition and repair, ordinary wear and tear excepted.
Seller is in possession of all premises leased to Seller from others. Except as
set forth in the appropriate Exhibit listing such assets, no officer, director,
or employee of Seller, nor any spouse, child, or other relative of any of these
persons owns or has any interest, directly or indirectly, in any of the real or
personal property owned by or leased by Seller or in any copyrights, patents,
trademarks, trade names, or trade secrets licensed by Seller. Seller does not
occupy any real property in violation of any law, regulation, or decree that
would materially adversely affect its business or future prospects.
Customers and Sale
2.08 Exhibit 9 attached to this Agreement is a list (correct and current as of
its date) of all wireless network customers of Seller together with summaries of
the sales made to each customer during the most recent month. Except as
indicated in Exhibit 9, Seller has no information and is not aware of any facts
indicating that any of these customers intend to cease doing business with
Seller or to materially alter the amount of the business that they are presently
doing with Seller.
Contracts
2.09 Exhibit 11 attached to this Agreement contains true and correct lists, with
copies when available, of all oral and written wireless service contracts or
arrangements obligating Seller, including without limitation, copies of standard
form ISP and customer contracts. Purchaser shall have the right to review any
contract upon request. Except as set forth in Exhibit 11, Seller is not a party
to, nor are Seller's Wireless Network Assets and properties bound by, any
distributor's or manufacturer's representative, agency agreement, output or
requirements agreement, agreement not entered into in the ordinary course of
business, indenture, mortgage, deed of trust, lease, or any agreement that is
unusual in nature, duration, or amount. There is no default or event that with
notice, lapse of time, or both will constitute a default by any party to any of
the material contracts listed in Exhibit 11. Seller has not received any notice
that any party to any of the contracts listed in Exhibit 11 intends to cancel or
terminate any of the contracts or to exercise or not exercise any options under
any of the contracts. Seller is not a party to, nor are Seller's assets or
properties bound by, any contract that is materially adverse to the business,
property, or financial condition of Seller.
Laws and Regulations
2.10 Seller is not in default or in violation of any law; regulation; court
order; or order of any federal, state, municipal, foreign, or other government
department, board, bureau, agency, or instrumentality, wherever located, that
would materially adversely affect its business or future prospects.
Litigation
2.11 There are no pending, outstanding, or threatened claims; legal,
administrative, or other proceedings; or suits, investigations, inquiries,
complaints, notices of violation, judgments, injunctions, orders, directives, or
restrictions against or involving Seller or any of the assets, properties, or
busines's of Seller or any of Seller's officers, directors, employees, or
stockholders that will materially adversely affect Seller, its assets,
properties, or business.
Business Operations
2.12 The Wireless Network business operations of Seller are and have been for
the past five years, or since inception, in material compliance with all laws,
treaties, rulings, directives, and similar regulations of all government
authorities having jurisdiction over such business insofar as failure to comply
could materially adversely affect Seller's business and future prospects.
Authority
2.13 Seller has full power and authority to execute, deliver, and/or consummate
this Agreement, subject to the conditions to Closing set forth in this
Agreement. All reports and returns required to be filed by each with any
government and regulatory agency with respect to this transaction have been
properly filed. Except as otherwise disclosed in this Agreement, no notice to or
approval by any other person, firm, or entity, including governmental
authorities, is required of Seller to consummate the transaction contemplated by
this Agreement.
Full Disclosure
2.14 No representation, warranty, or covenant made to Purchaser in this
Agreement nor any document, certificate, exhibit, or other information given or
delivered to Purchaser pursuant to this Agreement contains or will contain any
untrue statement of a material fact, or omits or will omit a material fact
necessary to make the statements contained in this Agreement or the matters
disclosed in the related documents, certificates, information, or exhibits not
misleading.
Brokers
2.15 Neither Seller, nor any of Seller's officers, directors, employees, or
stockholders, has retained, consented to, or authorized any broker, investment
banker, or third party to act on Seller's behalf, directly or indirectly, as a
broker or finder in connection with the transactions contemplated by this
Agreement.
ARTICLE 3
PURCHASER'S REPRESENTATIONS AND
WARRANTIES
Purchaser represents and warrants to Seller that:
Authority
3.01 Purchaser has full power and authority to execute, deliver, and consummate
this Agreement subject to the conditions to Closing set forth in this Agreement.
All corporate acts, reports, and returns required to be filed by Purchaser with
any government or regulatory agency with respect to this transaction have been
or will be properly filed prior to the Closing Date. No provisions exist in any
contract, document, or other instrument to which Purchaser is a party or by
which Purchaser is bound that would be violated by consummation of the
transactions contemplated by this Agreement.
Broker
3.02 Neither Purchaser, nor any of Purchaser's officers, directors, or
employees, has retained, consented to, or authorized any broker, investment
banker, or third party to act on its behalf, directly or indirectly, as a broker
or finder in connection with the transactions contemplated by this Agreement.
Organization and Standing of Purchaser
3.03 Purchaser is a corporation duly organized, validly existing, and in good
standing under the laws of the state of Colorado, Texas, and Virginia with
corporate power to own property and carry on its business as it is now being
conducted.
ARTICLE 4
COVENANTS
Seller covenants with Purchaser that from and after the date of this Agreement
until the Closing Date, Seller will and will cause Seller to:
Business Operations
4.01 Operate its business and conduct its activities in the normal course of
business and not introduce any material new method of management, operation, or
accounting.
Maintenance of Assets and Properties
4.02 Maintain all tangible assets and properties of Seller in as good a state
of operating condition and repair as they are on the date of this Agreement,
except for ordinary depreciation, wear, and tear.
Absence of Liens
4.03 Not sell, pledge, lease, mortgage, encumber, dispose of, or agree to do any
of these acts regarding any of the assets of properties of Seller, other than in
the normal course of business, without the prior written approval of Purchaser.
Preservation of Business
4.04 Use its best efforts to preserve intact its organization and personnel and
to keep available the services of all of its employees, agents, independent
contractors, and consultants commensurate with Seller's business requirements.
Preservation of Customer Relations
4.05 Use its best efforts to preserve intact the present customers of Seller and
the goodwill of all customers and others with respect to the business.
Performance of Obligations
4.06 Perform all of its obligations and not make any material amendment to its
obligations under all agreements relating to or affecting Seller's Wireless
Network customers, business, properties, and assets.
Notification of Litigation
4.07 Promptly notify Purchaser in writing of any outstanding or threatened
claims; legal, administrative, or other proceedings, suits, investigations,
inquiries, complaints, notices of violation, or other process; or other
judgments, orders, directives, injunctions, or restrictions against or involving
Seller or its personnel that could adversely affect Seller.
Maintain Existing Agreements
4.08 Not modify, amend, cancel, or terminate any of Seller's Wireless network
existing contracts or agreements, or agree to do so.
Obtain Consents
4.09 As soon as reasonably practical after the execution of this Agreement and
in any event before the Closing Date, obtain the written consents of all persons
described in Exhibit 14 and furnish to Purchaser copies of the consents.
Provide Sales and Use Tax Certificates
4.10 Furnish to Purchaser clearance certificates from the appropriate agencies
in all states where Seller is qualified to do business and such evidence that
Purchaser may reasonably request to reflect that all sales, use, and other tax
liabilities of Seller (other than income tax liabilities) accruing before the
Closing Date have been fully satisfied or provided for by Seller.
Provide UCC Clearance
4.11 Deliver to Purchaser a Business and Commerce Code search report issued by
the Secretary of State in each state where Seller owns personal property and
dated as .of a date not more than 10 days before the Closing Date. The report
must indicate that there are no filings under the UCC on file with the Secretary
of State that name Seller as debtor or otherwise indicate any lien on the assets
and properties of Seller, except for the liens otherwise disclosed in this
Agreement.
ARTICLE 5
CONDITIONS TO PURCHASER'S OBLIGATION
TO CLOSE
The obligation of Purchaser to Close under this Agreement is subject to each of
the following conditions (any one of which may, at the option of Purchaser, be
waived in writing by Purchaser) existing on the Closing Date, or such earlier
date as the context may require.
Representations and Warranties
5.01 Each of the representations and warranties of Seller in this Agreement, the
disclosures contained in the exhibits to this Agreement, and all other
information delivered under this Agreement shall be true in all material
respects at and as of the Closing Date as though each representation, warranty,
and disclosure were made and delivered at and as of the Closing Date.
Compliance With Conditions
5.02 Seller shall each comply with and perform all agreements, covenants, and
conditions in this Agreement required to be performed and complied with by each
of them. All requisite action (corporate and other) in order to consummate this
Agreement shall be properly taken by Seller.
Suit or Proceeding
5.03 No suit or proceeding, legal or administrative, relating to any of the
transactions contemplated by this Agreement shall be overtly threatened or
commenced that, in the sole discretion of Purchaser and its counsel, would make
it inadvisable for Purchaser to Close this transaction.
Corporate, and Stockholder Action
5.04 All corporate and stockholder action necessary to consummate the
transactions contemplated in this Agreement shall be properly taken by Seller.
Purchaser shall receive copies of all appropriate resolutions of Seller's board
of directors and shareholders relating to this Agreement. The resolutions shall
be certified by their respective corporate secretaries.
Consulting Agreements
5.05 The individual identified in Exhibit 15 attached to this Agreement shall
execute and deliver to Purchaser a consulting agreement with Purchaser
substantially in the form set forth in Exhibit 15.
Confidentiality and Noncompete Agreements
5.06 All key employees of Seller, as identified by Purchaser and Seller, shall
execute and deliver to Purchaser a confidentiality and noncompetition agreement
in substantially the form attached to this Agreement as Exhibit 16.
ARTICLE 6
CONDITIONS TO SELLER'S OBLIGATION TO CLOSE
The obligation of Seller to Close under this Agreement is subject to each of the
following conditions (any one of which at the option of Seller may be waived in
writing by Seller) existing on the Closing Date.
Corporate Action
6.01 Purchaser shall take appropriate corporate action regarding this
transaction, which shall be evidenced by resolutions of its board of directors
and shareholders and certified by Purchaser's corporate secretary, authorizing
Purchaser to enter into and complete this transaction.
Government Approvals
6.02 All necessary government approvals regarding this transaction shall be
received prior to the Closing Date, in substantially the form applied for and to
the reasonable satisfaction of Purchaser and its counsel.
ARTICLE 7
PARTIES' OBLIGATIONS AT THE CLOSING
Seller's Obligations at the Closing
7.01 At the Closing, Seller shall execute, if appropriate, and shall deliver to
Purchaser:
(a) A xxxx of sale in a form acceptable to Purchaser sufficient to
convey to Purchaser all rights, title, and interest in and to
all of the fixtures, equipment, and items of personalty being
sold to Purchaser under the terms of this Agreement.
(b) One or more instruments of assignment in a form acceptable to
Purchaser assigning to Purchaser the exclusive rights to: all
contract rights, leases, accounts, receivable, copyrights,
pending copyright applications, patents, and pending patent
applications in the name Regional Wireless Networks, Inc. and
all trade secrets of Seller being sold to Purchaser under the
terms of this Agreement.
(c) All documentation in the possession of Seller necessary to
operate and to use all assets being sold to Purchaser in this
Agreement.
Purchaser's Obligation at Closing
7.02 At the Closing, Purchaser shall deliver to Seller against delivery of the
items specified in Paragraph 7.01 above, a restricted stock certificate
representing Xxxx, Inc. common stock with the value of $190,000.00 based on
lowest trading price of the previous 90 days (currently 6,333,333 shares as of
January 9, 2004 based on $0.03 per share).
ARTICLE 8
SELLER'S AND PURCHASER'S OBLIGATIONS AFTER THE CLOSING
Preservation of Goodwill
8.01 Following the Closing Date, Seller will restrict its activities so that
Purchaser's reasonable expectations with respect to the goodwill, business
reputation, employee relations, and prospects connected with the assets and
properties purchased under this Agreement will not be materially impaired.
Change of Name
8.02 Seller agrees that, after the Closing Date, it will not use or employ in
any manner, directly or indirectly, the name of Regional Wireless Networks or
any variation of the name. Seller also agrees that, in order to comply with this
covenant, it will take and cause to be taken all necessary action, including
filing a withdrawal notice for any assumed name certificate bearing Seller's
name or any variant of the name, that Seller has previously filed.
Access to Records
8.03 From and after the Closing Date, Seller shall allow Purchaser and its
counsel, accountants, and other representatives access to records relating to
the Wireless Network that are, after the Closing Date, in the custody or control
of Seller. Seller shall give access as Purchaser reasonably requires in order to
comply with its obligations under law or when reasonably necessary for the
business operations of Seller.
Nonsolicitation of Employees by Seller
8.04 Prior to the third anniversary, of the Closing Date, Seller shall not
solicit any employee of Purchaser or any employee of Seller retained by
Purchaser after the C losing Date to leave employment with Purchaser.
Nonsolicitation of Employees by Purchaser
8.05 Prior to the third anniversary of the Closing Date, Purchaser shall not
solicit any employee of Seller after the Closing Date to leave employment with
Seller.
ARTICLE 9
INDEMNIFICATION
Covenant to Indemnify and Hold Harmless
9.01 Seller covenants and agrees to indemnify, defend, and hold harmless
Purchaser and Seller from and against any and all claims, suits, losses,
judgments, damages, and liabilities including any investigation, legal, and
other expenses incurred in connection with and any amount paid in settlement of
any claim, action, suit, or proceeding (collectively called "Losses"), other
than those Losses disclosed in this Agreement or any Exhibit delivered pursuant
to this Agreement, to which Purchaser or Seller may become subject, if such
Losses arise out of or are based upon any facts and circumstances (or alleged
facts and circumstances) that could result in or give rise to a
misrepresentation, breach of warranty, or breach of covenant by Seller to
Purchaser in this Agreement. This right to indemnification is in addition to any
other right available to Purchaser and Seller, including the right to xxx Seller
for a misrepresentation, breach of warranty, or breach of covenant under this
Agreement.
Notification and Defense of Claims or Actions
9.02 When Purchaser proposes to assert the right to be indemnified under this
Article 9 with respect to third-party claims, actions, suits, or proceedings,
Purchaser shall, within 30 days after the receipt of notice of the commencement
of the claim, action, suit, or proceeding, notify Seller in writing, enclosing a
copy of all papers served or received. On receipt of the notice, Seller shall
have the right to direct the defense of the matter, but Purchaser shall be
entitled to participate in the defense and, to the extent that Purchaser
desires, to jointly direct the defense with Seller with counsel mutually
satisfactory to Purchaser and Seller, at Seller's expense. Purchaser shall also
have the right to employ its own separate counsel in any such action. The fees
and expenses of. Purchaser's counsel shall be paid by Purchaser unless: (a) the
employment of the counsel has been authorized by Seller; (b) Purchaser has
reasonably concluded that there may be a conflict of interest between Seller and
Purchaser in the conduct of the defense of such action; or (c) Seller has not,
in fact, employed counsel satisfactory to Purchaser to assume the defense of the
action. In each of these cases, the fees and expenses of Purchaser's counsel
shall be paid by Seller. Neither Seller nor Purchaser shall be liable for any
settlement of any action or claim described in the Article 9 that is effected
without their consent.
ARTICLE 10
GENERAL PROVISIONS
Survival of Representations, Warranties, and Covenants
10.01 The representations, warranties, covenants, and agreements of the parties
contained in this Agreement or contained in any writing delivered pursuant to
this Agreement shall survive the Closing Date for the period of time set forth
in this Agreement.
Notices
10.02 All notices that are required or that may be given pursuant to the terms
of this Agreement shall be in writing and shall be sufficient in all respects if
given in writing and delivered personally or by registered or certified mail,
return receipt requested, postage prepaid as follows:
If to Seller: Regional Wireless Networks, Inc., 000 0xx Xxxxxx, Xxx. 0000,
Xxxxxxx Xxxxx, Xxxxx 00000
If to Purchaser: Xxxx, Inc. dba I.M. Wireless, Inc., 000-X Xxx Xxxxxx, Xxxxxxx,
Xxxxx
Assignment of Agreement
10.03 This Agreement shall be binding on and inure to the benefit of the parties
to this Agreement and their respective successors and permitted assigns. This
Agreement may not be assigned by any other party without the written consent of
all parties and any attempt to make an assignment without consent is void.
Governing Law
10.04 This Agreement shall be construed and governed by the laws of the state
of Texas.
Amendments; Waiver
10.05 This Agreement may be amended only in writing by the mutual consent of
all of the parties, evidenced by all necessary and proper corporate authority.
No waiver of any provision of this Agreement shall arise from any action or
inaction of any party, except an instrument in writing expressly waiving the
provision executed by the party entitled to the benefit of the provision.
Entire Agreement
10.06 This Agreement, together with any documents and exhibits given or
delivered pursuant to this Agreement, constitutes the entire agreement between
the parties to this Agreement. No party shall be bound by any communications
between them on the subject matter of this Agreement unless the communication is
(a) in writing, (b) bears a date contemporaneous with or subsequent to the date
of this Agreement, and (c) is agreed to by all parties to this Agreement. On
execution of this Agreement, all prior agreements or understandings between the
parties shall be null and void.
Termination of Agreement
10.07 In the event this Agreement is not Closed by February 6, 2004, then this
Agreement shall terminate on and as of that date. Any termination shall not
affect in any manner any rights and remedies that any party to this Agreement
may have at the time of termination.
Signed on January 12, 2004
XXXX., INC. DBA I.M. WIRELESS, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Printed Name: Xxxxx X. Xxxxxxxxx
NETESSENTIALS, INC.
By: /s/ Cameron Deal
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Printed Name: Cameron Deal
