AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION ("Agreement") is made
effective as of August 1, 1995, between TRANSWORLD TELECOMMUNICATIONS, INC., a
Pennsylvania corporation ("Transworld") and WIRELESS CABLE & COMMUNICATIONS,
INC., a Nevada corporation ("Wireless").
R E C I T A L S:
A. Wireless was recently formed by Transworld.
B. Pursuant to a plan of reorganization in accordance with ss.ss. 355
and 368(a)(1)(D) of the Internal Revenue Code of 1986, as amended, Transworld
intends to transfer certain assets and liabilities to Wireless in accordance
with the terms of the Assignment and Assumption Agreement dated of even date
herewith and in the form attached as Exhibit A hereto, as well as such
additional documents of transfer as are necessary or appropriate to vest such
assets and liabilities in Wireless (collectively, the "Assignment Documents"),
in exchange for all of the outstanding shares of Wireless, consisting of 3.5
million Wireless common shares, par value $.01 (the "Wireless Shares").
C. Transworld intends to transfer the Wireless Shares to its
shareholders on a non-pro rata basis and in accordance with the terms of this
Agreement.
NOW, THEREFORE, it is mutually agreed as follows:
1. Transfers to Wireless. Transworld shall transfer, assign, and
deliver to Wireless the assets set forth on Schedule A to Exhibit A hereto
("Assets"), subject to the liabilities and obligations described thereon or
arising from the ownership thereof, whether absolute, accrued, contingent or
otherwise ("Liabilities"), as of the Closing Date, as described below. Any
tangible portions of the
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Assets shall be deemed to be transferred "as is," and without any warranty other
than any transferable manufacturer's warranties.
2. Closing. The closing of the transactions described herein (the
"Closing") shall be held as soon as possible and within five business days after
the satisfaction of the conditions described in paragraph 4 (the "Closing
Date"). The Closing shall be held at the offices of Parsons Behle & Latimer, 201
South Main Street, Suite 1800, Salt Lake City, Utah.
3. Transfer of the Shares. Immediately after the transfer of the Assets
and Liabilities to Wireless, Transworld shall transfer to Fidelity Transfer
Company, of Salt Lake City, Utah ("Fidelity"), all of the Wireless Shares, to be
held in escrow by Fidelity for the benefit of the shareholders of Transworld
pursuant to the terms of the Escrow Agreement in the form attached hereto as
Exhibit B. The Wireless Shares shall be transferred to Fidelity in its escrow
capacity by delivery to Fidelity of a certificate in the name of Fidelity as
escrow agent for Transworld's shareholders. The number of Wireless Shares to be
held by Fidelity for the benefit of each of Transworld's shareholders shall be
as set forth on Schedule A to the Escrow Agreement. No fractional Wireless
Shares shall be issued to Transworld's shareholders, and any Transworld
shareholders who would otherwise receive a fractional Wireless Share shall
receive an additional full Wireless Share, with the difference to be obtained
from the Wireless Shares otherwise due one or more of the executive officers
and/or directors of Transworld. All such Wireless Shares shall be held and
distributed by Fidelity in accordance with the terms of the Escrow Agreement.
4. Conditions to Closing. The parties' obligations to Close
hereunder shall be conditioned upon the satisfaction of the following
conditions:
(a) The execution and delivery by Transworld and Wireless
of the Assignment Documents;
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(b) The execution and delivery by Transworld and Fidelity
of the Escrow Agreement; and
(c) The negotiation, execution and delivery by Transworld and
Wireless of a funding commitment and ancillary documents thereto (the
"Commitment"), pursuant to which Transworld shall agree to loan to Wireless,
during the twelve month period beginning as of the Closing Date, up to $1
million on commercially reasonable terms for the purpose of building out and
marketing wireless television cable operations in the United States and foreign
countries, including, specifically, New Zealand.
5. Securities Laws Filings. Each of Wireless and Transworld shall take
all reasonable actions necessary to prepare and file, and shall cooperate with
one another in the preparation and filing of, all documents and statements
necessary or appropriate to (i) effectuate the registration by Wireless of the
Wireless Shares on Form 10 under the Securities Exchange Act of 1934, as amended
(the "Act"), (ii) provide to Transworld's shareholders disclosure materials
materially in compliance with the requirements of Regulations 14A and/or 14C of
the Act, and (iii) comply with any other federal or state securities laws
requirements relating to the transactions described herein.
6. Warranties, Representations and Agreements of Transworld.
Transworld represents, warrants and agrees that the following statements are
true, correct and complete:
(a) Organizational and Good Standing. Transworld is a
corporation duly organized, validly existing and in good standing under the laws
of the Commonwealth of Pennsylvania, with full power and authority to execute,
deliver and perform the terms of this Agreement, the Commitment, the Assignment
Documents and the Escrow Agreement. No authorization of, consent or approval by,
and no notice to, or filing with, any governmental department, commission, or
instrumentality, or any other person, is or will be necessary for the valid
execution or performance by Transworld of this Agreement, the Assignment
Documents, the
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Commitment or the Escrow Agreement, or the consummation of the transactions
contemplated hereby or thereby. Transworld is not subject to any agreement which
prohibits or would be breached by the execution or performance of this
Agreement, the Assignment Documents, the Commitment or the Escrow Agreement, or
the consummation of the transactions contemplated hereby or thereby. This
Agreement, the Assignment Documents, the Commitment and the Escrow Agreement
have been duly authorized by Transworld and, when executed and delivered as
contemplated hereby, will constitute its legal, valid and binding obligations,
enforceable in accordance with their respective terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency, or similar
laws affecting the enforcement of creditors' rights generally and general
principles of equity.
(b) Assets. As of the Closing Date, Transworld will be the
lawful owner of the Assets, free and clear of all liens, encumbrances,
restrictions and claims of every kind, except for the Liabilities and
imperfections of title and encumbrances, restrictions and claims which do not
materially interfere with the present use or value of the Assets.
(c) Transfer. Subject to the provisions of this Agreement
regarding the distribution of the Wireless Shares to Fidelity in accordance with
the terms of the Escrow Agreement, Transworld will not transfer, distribute,
assign or convey the Wireless Shares to any party other than its shareholders.
7. Warranties, Representations and Agreements of Wireless.
Wireless represents, warrants and agrees that the following statements are true,
correct and complete:
(a) Organization and Good Standing. Wireless is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Nevada, with full power and authority to execute, deliver and perform
the terms of this Agreement, the Commitment and the Assignment Documents. No
authorization of, consent or approval by, and notice to, or filing with, any
governmental department, commission, or instrumentality, or any other person, is
or will be
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necessary for the valid execution or performance by Wireless of this Agreement,
the Assignment Documents or the Commitment, or the consummation of the
transactions contemplated hereby or thereby. Wireless is not subject to any
agreement with prohibits or which would be breached by the execution or
performance of this Agreement, the Assignment Documents or the Commitment, or
the consummation of the transactions contemplated hereby or thereby. This
Agreement, the Assignment Documents and the Commitment have been duly authorized
by Wireless and, when executed and delivered as contemplated hereby, will
constitute its legal, valid and binding obligations, enforceable in accordance
with their respective terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency or similar laws effecting the enforcement of
creditors' rights generally and general principles of equity.
(b) Wireless Shares. The Wireless Shares, when issued at
Closing, shall be duly authorized and issued, fully paid and non-assessable
common shares of Wireless, subject to no liens, restrictions, options,
commitments or encumbrances of any kind or character, or any security or other
interest whatsoever.
8. Miscellaneous.
(a) Further Assurances. Each of the parties will execute,
acknowledge and deliver, and cause to be done, executed, acknowledged and
delivered, without further consideration, all such further documents,
instruments, acts, assignments, transfers and assurances as shall be required in
order to carry out this Agreement, the Assignment Documents, the Commitment and
the Escrow Agreement, and to give effect hereto and thereto.
(b) Successors and Assigns. This Agreement shall be binding on
and inure to the benefit of the parties hereto and their respective successors
and assigns, provided that no party hereto may assign its rights or obligations
hereunder without the prior consent of the other party hereto.
There are no intended third party beneficiaries of this Agreement.
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(c) No Waiver. This Agreement may not be modified or
discharged, nor may any of its terms be waived, except by an instrument in
writing, signed by the party to be charged.
(d) Counterparts. This Agreement may be executed in any number
of counterparts, and each such counterpart will for all purposes be deemed an
original, and all such counterparts shall together constitute one and the same
instrument. Facsimile transmission of a counterpart signature shall constitute
delivery of an original counterpart signature.
(e) Enforcement, etc. This Agreement was negotiated,
documented and shall be performed in the State of Utah, which is the site of the
primary business office of each of Transworld and Wireless. The validity,
enforcement and construction of this Agreement shall be governed in all respects
by the law applicable to contracts made and intended to be performed in the
State of Utah. This Agreement (including exhibits and schedules hereto, all of
which are incorporated herein) sets forth the entire understanding of the
parties hereto with respect to the subject matter hereof.
(f) Captions. Captions are inserted herein for
convenience only and will not be given any legal effect.
(g) Severability. If any provision of this Agreement shall be
invalid, or shall be inoperative or unenforceable in any particular case, such
circumstances shall not render the provision invalid or inoperative or
unenforceable in any other case, or render any other provision herein contained
invalid, inoperative or unenforceable to any extent.
(h) Indemnification. Each of Wireless and Transworld hereby
agrees to indemnify and hold the other party (and its respective officers,
directors, employees and agents) harmless from any and all costs, liabilities,
expenses and fees (including reasonable attorneys fees) arising from any
material breach of any representation or nonperformance by it hereunder. In the
event either party is forced to enforce the terms of this Agreement through
legal action, that party shall be entitled to
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receive from the other party the costs and expenses of such enforcement action,
including reasonable attorneys fees.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth on the first page hereof.
TRANSWORLD TELECOMMUNICATIONS, INC.
By: /s/ Troy D'Ambrosio
Its: Vice President
WIRELESS CABLE AND COMMUNICATIONS,
INC.
By: /s/ Lance D'Ambrosio
Its: President
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