World Wide Wireless Communications, Inc. and Digital Way, S.A.
AGREEMENT FOR PURCHASE OF ALL OUTSTANDING SHARES OF DIGITAL WAY, S. A.
BY
WORLD WIDE WIRELESS COMMUNICATIONS,INC.
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This is an agreement ("Agreement") made by and between DIGITAL WAY, S.A, a
Peruvian company represented herein by its President and Chief Executive Officer
JOSE A. DeIZCUE (hereinafter referred to as "SELLERS"), and WORLD WIDE WIRELESS
COMMUNICATIONS, INC (W3COM), a company duly organized under the laws of the
State of Nevada, United States of America, and having its registered office at
520 Third Street, Suite 101, Oakland CA., herein represented by its manager
DOUGLAS HAFFER, its President and Cief Executive Officer (hereinafter referred
to as "BUYER")
WITNESSETH that the parties hereto hereby as follows:
1. CONSIDERING
1.1. Whereas Sellers are the only holders of rights to the whole of the shares
representing the capital of the private limited liability company operating
under the corporate name DIGITAL WAY, S.A., a company incorporated under the
laws of Peru, and having its registered office located at Sebastian Telleria
308, San Isidro, Lima, 27 Peru (hereinafter referred to as "DWSA");
1.2. Whereas DWSA holds all necessary concessions and licenses to provide Local
Carrier services in Lima/Callao, Peru by using their 16 MHz MMDS spectrum
license at 2.3 - 2.5 GHz range and microwave licenses at 7.1-7.7 GHz, and that
it has certain nation wide and international long-distance concessions and value
added licenses as more fully described in Annex B
1.3. Whereas DWSA is attempting to secure additional MMDS spectrum for
Lima/Callao and at least five additional cities throughout Peru to total 32MHz
of spectrum therein;
1.4. Whereas SELLERS wish to assign and transfer the whole of the shares they
hold in DWSA to the BUYER, with further rights and privileges under certain
circumstances and with the terms and conditions stated in this instrument;
1.5. Whereas BUYER has rights to operating and frequency licenses for eight (8)
cities in Argentina, is currently operating a start-up wireless Internet access
system in the USA, holds licenses for MMDS frequencies in the USA and in Africa,
and has applied for similar licenses in several countries in Europe;
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1.6. Whereas BUYER has interests in developing business in Peru specifically
exploiting opportunities in Broadband Wireless Access services in the MMDS (2.5
GHz) bands, and wish to buy the referred shares of DWSA;
1.7. Whereas BUYER agrees, upon signature of this instrument, to assume
principal responsibility for raising sufficient funds to deploy a Broadband
Wireless Access business in Latin America as it will be defined in its Business
Plan;
1.8. Whereas BUYER is interested in entering and agreement with the current
management to assist in the operation of DWSA in Peru considering their
management experience, structure and office allowing for quick implementation of
business activities within Peru
1.9. Therefore BUYER and SELLERS agree to enter into this Agreement to develop
Broadband Wireless Access operations.
2. SCOPE
2.1. This Agreement sets forth the terms and conditions applicable to the
purchase by BUYER and the sale, transfer, convey and deliver by the SELLERS of
the SELLERS' shares, rights, and title of DWSA, including but not limited to
goodwill, authorizations, licenses, contracts, agreements books, records.
2.2. Any ANNEX may, by mutual agreement in writing between BUYER and SELLERS, be
included or amended from time to time to incorporate any clause.
2.3. ANNEXES are only valid if signed and dated by BUYER and SELLERS or their
legitimate trustees.
2.4. The SELLERS undertake to assign and transfer all of the shares of DWSA with
all rights and privileges which they hold in DWSA, identified hereunder, to the
BUYER under the terms and conditions contained herein.
2.5. Except as otherwise provided in this agreement BUYER shall assume all the
rights and liabilities of DWSA.
2.6. The transfer of shares shall not have to be implemented in the event that
the analysis of the documentation related to DWSA or to BUYER discloses a fact
that prevents, renders difficult or encumbers with additional liens the firm and
valuable transfer thereof.
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2.10. The Effective Date of the present agreement and the related agreements
that parties may conclude shall take place at 3:00 P.M, at Oakland, California,
on February 29, 2000 other place as shall be mutually agreed upon by parties.
The date on which the execution shall occur is referred to in this agreement as
Execution Date. Parties shall determine upon this date the specific conditions
and terms of ANNEXES and related agreements or complements as such but not
limited to covenants not to compete, dispute resolution procedure, cooperation
on claims, change of name, among others.
2.11. Execution of this Agreement shall be performed in as many as 3 stages and
under certain conditions as stated in ANNEX A.
2.12. Within 10 days of the Effective Date, the parties hereto shall execute the
relevant instrument of amendment to DWSA articles of association. This date can
be renewed with the agreement of both Parties.
2.13. Parties hereto undertake to execute all instruments necessary to carry out
the assignment and transfer of shares and authorizations of DWSA providing for
SELLERS right to manage, under the terms to be adopted by the Parties and the
least tax impact possible to the companies and individuals involved.
3. SPECIFICATIONS
3.1. The full force and effect of this Agreement, including the transfer of
shares, depend on the conditions stated below:
(a) Approval by Peruvian authorities of modification of shareholders of
DWSA.
(b) Approval by Board and/or shareholders of BUYER and SELLER.
3.2. SELLERS hereby agrees to file with the any required Peruvian agency, the
final documents of transfer of the shares, upon completion of all requirements
outlined in clause 3.1
3.3. Upon completion of all requirements outlined in clause 3.1 and other
relevant clauses of the Agreement, Parties shall execute all acts, agreements
and documents and comply with all other requirements under the relevant
legislations, approve the transfer of the shares.
3.4 As soon as the transfers of shares are executed Parties agree to communicate
the fact to clients, users and third parties undertaking to fully comply with
the terms and conditions of the agreements presently in force and pursuant the
terms and conditions to be defined in the execution agreement.
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4 COVENANTED PRICE AND PAYMENT TERMS:
4.1. The total, certain and covenant price and payment terms of the assignment
of shares is defined in ANNEX A. WWWC shall agree that, if on the first
anniversary after the closing date of the definitive agreement, the share price
of WLGS' common stock should be less than on said closing date, WLGS will issue
additional shares to Sellers to assure that the value of those shares at the end
of the year shall be equal to at least $900,000, $1,250,000, or $1,500,000
depending on whether DWSA had, by that time, fulfilled Phase I, II, or III. If
at any time within Two (02) years of the signing of the definitive agreement,
Phase I, II and III are fulfilled, DWSA will be entitled to full compensation by
wwwc as detailed in Annex A
4.2. The total price shall take into consideration the transferring of all
shares and the total business and is formed by a composition of investments, to
develop the business, and the price of shares.
4.3. The price of shares of DWSA were based on an evaluation and consideration
of:
(a) Circuits and Network licenses held by DWSA
(b) Knowledge of MMDS and broadband wireless access markets in Peru
(c) Contacts with Peruvian businesses, regulators, legislative and
financial entities and knowledge of Peruvian markets and contacts;
(d) DWSA does not have debt or any significant liabilities.
4.4. The prices and payments shall be defined in ANNEX A
.
5. CURRENCY
5.1. All payments to SELLERS shall be executed in US Dollars (USD). The payments
must be available to the SELLERS on their account to be supplied on the
respective due dates specified in this Agreement.
6. INDIRECT DAMAGES
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6.1. The Parties are not entitled to be reimbursed for any indirect or
consequential loss or damages such as lost profits, loss of use or loss of data
whether due to a breach against the other Party's obligations under this
Agreement.
7. DEFAULT
7.1. Failure by any Party to comply with any material term or condition under
this Agreement shall entitle the non-breaching party to give the defaulting
Party written notice of such default. If the defaulting Party has not cured such
default within 15 days after receipt of notice the non breaching Party shall be
entitled, in addition to all other remedies, unless limited by this agreement to
terminate this Agreement by giving notice to take effect immediately.
7.2. Provided that if SELLERS terminate this agreement by reason of any default
by BUYER, SELLERS shall be entitled to a termination fee equal to the amount
paid by BUYER to date of termination.
7.3. In event that the Effective Date of this Agreement is performed, subject to
the terms hereof and stated in the related agreements shall become irrevocable
and irreversible document, and shall bind upon the parties and their heirs and
successors.
7.4. SELLERS shall guarantee the full ownership of the shares, the disposal of
which is hereby said, rendering the present instrument always good, steady and
valuable.
7.5. Likewise, SELLERS shall be responsible for eventual debts or liabilities
undertaken by DWSA prior to the Effective Date hereof, even though any
assessments, receipt or suits, convictions or other forms of establishment of
obligations to pay shall occur after the Effective Date.
7.6. Any claims relating to the period of time previous to the execution hereof,
even when expressed subsequently, shall be exclusively borne by and at the
exclusive risk of SELLERS, which shall undertake the responsibilities resulting
therefrom.
8. INDEPENDENT CONTRACTOR
8.1. SELLERS and BUYER hereby declare and agree that each is engaged in an
independent business and that each shall perform its obligations throughout this
Agreement with the other Party as an independent contractor, except for the
purposes stated in clause 3.1 (a). Each has and hereby retains the right to
exercise full control of and supervision over the performance of its own
obligations hereunder. Each shall be responsible for its own acts.
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9. FORCE MAJEUR
9.1. Any failure by the Parties to carry out any of their obligations shall not
be deemed a breach of this Agreement if such failure is caused by Force Majeur.
For purposes of this Agreement Force Majeur shall include, inter alia, strikes,
lockouts, boycotts, embargoes, governmental restrictions, wars, war-like
actions, civil commotion, riots, uprising, revolutions, epidemics, fires,
floods, storms, earthquakes, other natural occurrence or any other event beyond
the control of such Party. The performance of the Parties' obligations shall be
suspended for as long as Force Majeur continues to exist. It is understood that
such Party shall take all reasonable steps to limit the effect of Force Majeur
by resorting to alternative measures. If such Force Majeur continues in
existence for more than six (6) months, either Party, at his option, shall have
the right to terminate this Agreement. Such termination shall be without
prejudice to the rights of either Party, which may have accrued up to the date
of termination.
9.2. Notice in writing of Force Majeur shall be made within 15 days of its
occurrence. If such notice is made later it shall have effect only concerning
the preceding 15 days. A Party in default may not invoke Force Majeur, occurring
subsequent to such default as an excuse therefore.
10. WARRANTIES
10.1. For the purposes of this Agreement and to the extent that it may adversely
affect the transactions provided for hereunder, Parties separately represent and
warrant that the following Representations and Warranties are true, accurate and
in no way misleading:
(a) DWSA is a company duly organized and registered before the applicable
governmental authorities, validly existing without any infringement to
the Peruvian laws;
(b) Parties have full powers, authority and legal right to enter into this
Agreement, to comply with all of their obligations hereunder and to
consummate the relevant transactions, except by the provided in clause
3.1.b;
(c) No lien, charge, debt or encumbrance, of any nature whatsoever, falls
on any of the assets or rights of DWSA and W3COM and which is an
object hereof;
(d) There are no material legal or administrative proceedings, of any
nature whatsoever, pending against DWSA or W3COM or its shares;
(e) DWSA authorizations are in good legal and administrative condition,
and the rights resulting therefrom may be fully performed by the
holder;
(f) DWSA authorizations are free and unencumbered of any liens or
encumbrances of any nature whatsoever, and may be transferred,
assigned, sold or otherwise
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disposed of, in favor of third parties, subject to the limitations of
the relevant legislation and as stated hereunder.
11. MISCELLANEOUS
Non-waiver
11.1. The failure of any party to insist upon strict adherence to any term or
condition of this Agreement on any occasion shall not be considered a waiver of
any right thereafter to insist upon strict adherence to that term or condition
or any other term or condition of this Agreement.
Language
11.2. All documentation to be provided by SELLERS or BUYER under this Agreement
as well as all notices and other communications between the parties hereunder
shall be in the English language, except as required by the Peruvian government.
Assignment and Succession
11.3. This document shall be binding upon and inure to the benefit of the legal
successors and assigns of all the Parties hereto or the company that SELLERS
intend to incorporate.
11.4. The Parties may not, however, without the prior written agreement of the
other party, whose consent shall not be unreasonably withheld in the case of a
proposed assignment by a Party to its Affiliate(s), assign this Agreement, in
whole or part, by contract operation of law or otherwise, or any of its rights
or obligations hereunder to any third party.
.
Confidentiality
11.5. BUYER and SELLERS acknowledge and agree that, from time to time, each may
disclose to the other certain confidential or proprietary business information
in the course of performing the transactions contemplated by this Agreement
including inter alia all technical and managerial information, know-how and
expertise, which under normal international trade practice are considered as
trade secrets (hereinafter referred to as the "Confidential Information"). Each
Party agrees to treat Confidential Information of the other Party in the same
manner as it treats its own proprietary information. Neither Party shall use,
disclose, make or have made any copies of the other Party's
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Confidential Information, in whole or in part, except as expressly provided
herein. The Parties acknowledge and agree that all business plans are considered
Confidential Information. Notwithstanding the foregoing, neither Party shall
have any obligations regarding non-use or non-disclosure of any Confidential
Information which (i) is already known to the receiving Party at the time of
disclosure; (ii) is or becomes part of the public domain without violation of
the terms hereof; (iii) is shown by conclusive documentary evidence to have been
developed independently by the receiving Party without violation of the terms
hereof; (iv) is disclosed by the disclosing Party to a third party without
similar restrictions on the third Party's rights or; (v) is received from a
third Party without similar restrictions and without violation of this or a
similar agreement.
Specific Termination
11.6. This agreement may be terminated by any of the Parties hereto in the event
of any infringement of any provision hereunder or any obligation undertaken
hereunder in the same terms provided in clause 11.11.
11.7. This agreement may also be terminated by any of the Parties hereto,
without previous notice in case of bankruptcy, liquidation or receivership of
the other party.
General Termination
11.8. Should either of the following events occur with regard to either of the
Parties, the other Party may terminate this Agreement by written notice, which
shall state the cause of termination and which shall be effective on the date
specified in the notice:
(a) Failure of any Party to observe any of the material terms of this
Agreement, which failure continues for a period of thirty (30) days
after written notice from the other Parties, or
(b) Insolvency, bankruptcy, assignment for creditors or any other winding
up, termination of the affairs or sale of assets of any Party, or
11.9. SELLERS may terminate this Agreement, in whole or in part, or any license
granted hereunder, if BUYER violates or fails to perform any of its material
obligations hereunder and such failure cannot be remedied or is not remedied
within 10 days after written notice thereof has been sent to Buyer.
11.10. In the event of any termination Parties shall within thirty (30) days of
termination return to other all copies of the all Documentation to the other.
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Severability
11.16. Should any of the provisions of this Agreement, or portions thereof, be
found to be invalid by any court of competent jurisdiction, the remainder of
this Agreement shall nonetheless remain in full force and effect.
12. ORDER OF PRIORITY AND MODIFICATION THE AGREEMENT
12.1. This Agreement sets forth the entire agreement and understanding between
the parties regarding the subject matter hereof. None of the parties shall be
bound by any term, condition or provision other than has expressly been
stipulated in this Agreement. This Agreement supersedes all previous oral or
written agreements and/or arrangements made between the parties concerning the
subject matter hereof.
11.2. In the event of any discrepancy between any data, stipulation or provision
given in any of the Items of this Agreement, on the one hand, and data,
stipulation or provision given in any of the ANNEXES, on the other hand, the
data stipulation or provision contained in a Item of this Agreement text shall
prevail. In the event of any discrepancy between Business Plan on the one hand
and this Agreement on the other, this Agreement shall prevail.
12.3. The above order or priority shall apply only to the extent that the
circumstances would not give obvious reason for another assessment.
13. APPLICABLE LAW
13.1. This Agreement shall be governed, construed and enforced in accordance
with the laws of the United States of America and Peru.
14. SETTLEMENT OF DISPUTES
14.1. For any disputes arising out of this Agreement, the parties consent to the
personal and exclusive jurisdiction of and venue in the state and federal courts
located within California
15. ANNEXES
15.1. The following Annexes, attached hereto, are an integral part of this
Agreement and are incorporated herein by reference:
ANNEX A Prices and Payments - Terms and Conditions
ANNEX B Licenses
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16. NOTICES
16.1. Any and all notices or information other than information or proposals of
pure technical nature shall be given by any Party by prepaid mail or by telefax
or courier to the other Party at the following address:
If to Buyer: If to Sellers:
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Douglas Haffer Jose A. de Izcue
520 Third Street, Suite 101 Sebastian Telleria 308
Oakland, CA, USA 94607 San Isidro, Lima 27 Peru
Phone: 1-510-839-6100 Phone: 511 441 7994
Fax: 1-510-839-7088
16.2. The aforementioned address of the Parties may be changed at any time by
giving fifteen (15) days prior notice to the other Parties in accordance with
the foregoing. Either Party may also by giving fifteen (15) days prior notice to
the other Parties give further specifications as to which address notice,
information or proposals of various nature shall be forwarded.
In witness whereof, the Parties hereto, have executed this Agreement in two (2)
identical originals by their duly authorized officers as of the Effective Date.
Each Party has received one original bearing the following legally binding
signatures of Buyer and Seller.
February 29, 2000
SELLERS BUYER
By: ____________________________________ By: ______________________________
Name: ___________________________________ Name: _____________________________
Title: __________________________________ Title: ____________________________
Date: ___________________________________ Date: _____________________________
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ANNEX A
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PHASE 1 $400,000 $900,000 in shares
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PHASE 2 $150,000 $350,000 in Shares
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PHASE 3 $250,000 in shares
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Phase 1: DWSA transfers all outstanding shares to WWWC. DWSA warrants that it
is the lawful owner of 16 MHz spectrum license, channels 12, 12', 13
and 13' of 2.3 to 2.5 GHz. range for the cities of Lima and Callao
within the Nation of Peru.
In consideration for the transfer of these shares, WWWC will,
immediately concurrently upon transfer of the shares, pay to DWSA
$400,000 in Cash and $900,000 of WWWC restricted stock with the value
of the stock based upon the price of the shares at the previous days
closing price.
Phase 2: DWSA will assist WWWC in the acquisition of an additional 16MHz of
licensed spectrum from the government of Peru for the cities of Lima
and Callao.
In consideration for this assistance, WWWC will, immediately within
fifteen after upon the award of the license(s), pay to DWSA $150,000
in cash and $350,000 of WWWC restricted stock with the value of the
stock based upon the price of the shares at the previous days close of
trading. Any additional costs incurred in acquiring the above will be
responsibility of WWWC.
Phase 3: DWSA will assist WWWC in the acquisition of an additional 32MHz of
licensed spectrum from the government of Peru for each of 5 cities in
Peru other than Lima and Callao.
In consideration for this assistance, WWWC will, immediately upon
within fifteen after the award of the license(s), pay to DWSA $250,000
of WWWC restricted stock with the value of the stock based upon the
price of the shares at the previous days close of trading. Any
additional costs incurred in acquiring the above will be
responsibility of WWWC.
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