AGREEMENT
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THIS AGREEMENT is entered into as of the date stated below by and among
Xarc Corporation, a Kansas corporation ("Xarc"), Donald I. Wallace, owner of all
of the outstanding shares of Xarc ("Shareholder"), and World Wireless
Communications, Inc., a Nevada corporation ("WWC").
The parties hereto agree as follows:
A. FACTS AND OBJECTIVES
WWC desires to acquire from Shareholder all of the outstanding shares
of Xarc in exchange for certain shares of WWC, and Shareholder desires to
exchange all the shares of Xarc owned by him for shares of stock of WWC,
according to the terms herein.
B. TERMS AND CONDITIONS
1. Plan of Reorganization. Shareholder is the owner of all of the
issued and outstanding stock of Xarc, which consists of 1000 shares of common
stock at a stated par value of one dollar per share (the "Xarc Shares"). It is
the intention of the parties hereto that all of the issued and outstanding
capital stock of Xarc will be acquired by WWC in exchange solely for 10,000
shares of the common stock of WWC (the "WWC Shares").
2. Exchange and Delivery of Shares. WWC and Shareholder agree that the
Xarc Shares will be exchanged with WWC for the WWC Shares. On the closing date,
Wallace will deliver a stock certificate or certificates for all of the
outstanding stock of Xarc, duly endorsed by Wallace so as to make WWC the sole
owner of the Xarc Shares, free and clear of all liens, claims and encumbrances;
WWC shall deliver a certificates of stock totaling 10,000 shares to Shareholder
according to the following schedule:
Upon closing: 2,000 shares
Within 30 days of closing 3,000 shares
By March 31, 1998 5,000 shares
The parties may agree to escrow certificates representing such shares as are not
conveyed at the time of closing.
The certificates delivered to Shareholder pursuant to this Agreement shall bear
a legend in substantially the following form (to which terms Shareholder
agrees):
"The shares of stock represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or under
the securities laws of any state. The shares of stock have been
acquired for investment and may not be sold, offered for sale or
transferred in the absence of an effective registration under the
Securities Act of 1933, as amended, and any applicable state
securities laws, or an opinion of counsel satisfactory in form and
substance to counsel for World Wireless Communications, Inc. that
the transaction shall not result in a violation of federal or state
securities laws."
3. Representations and Warranties of Shareholder. Shareholder and Xarc
represent and warrant as follows:
a. That Shareholder is, and will be as of the closing date, the sole
owner of all of the outstanding shares of Xarc, which shares are and
will be free from any claims, liens, or other encumbrances, and
Shareholder has the unqualified right to transfer said shares.
Shareholder will cooperate with WWC in all steps necessary to assure
that Xarc satisfies or has satisfied all "good standing" requirements
of the State of Kansas.
B. That the Xarc Shares constitute validly issued shares of Xarc,
fully paid and nonassessable.
c. That Shareholder has disclosed to WWC all information and
documents concerning or affecting Xarc's qualifications in the state of
its incorporation and has further provided to WWC all financial
statements or balance sheets of Xarc, which statements or balance
sheets accurately represent the financial condition of Xarc as of the
date of said statements; there has been no material change in the
financial condition of Xarc since the date of said statements; there
are no substantial liabilities, either fixed or contingent not
reflected in such financial statements other than contracts or
obligations in the usual course of business; and no such contracts or
obligations in the usual course of business are liens or other
liabilities which, if disclosed, would alter substantially the
financial condition of Xarc as reflected in such financial statements.
d. That neither Xarc nor Shareholder is involved in any pending
litigation or governmental investigation or proceeding, and no threats
or claims of litigation or governmental investigation have been
asserted against Xarc, except as set forth at Exhibit A hereto (if
applicable).
e. That Shareholder has been supplied with this Agreement and that
he is familiar with and understands its contents.
f. That, in determining to acquire the WWC Shares and to enter into
this transaction, Shareholder has been provided, has obtained and has,
with due diligence, considered all documents, financial statements,
disclosures and all other information necessary to Shareholder's
evaluation of WWC and has relied solely on his own analysis of
information obtained from WWC and the advice of Shareholder's legal
counsel and accountants or other financial advisors with respect to the
tax and other consequences involved in purchasing WWC Shares.
g. That Shareholder understands and acknowledges that Shareholder's
rights to and acquisition of the WWC Shares will be governed by the
terms and conditions of the Agreement.
h. That the WWC Shares being acquired will be acquired for
Shareholder's own account without a view to public distribution or
resale and that Shareholder has no contract, undertaking, agreement, or
arrangement to sell or otherwise transfer or dispose of any WWC
Shares or any portion thereof to any person;
i. That Shareholder (i) can bear the economic risk of the purchase
and acqusition of WWC Shares, including the loss of the Xarc shares, as
his entire investment, (ii) has such knowledge and experience in
business and financial matters as to be capable of evaluating the
merits and risks of an investment in WWC Shares, (iii) understands that
there is no guarantee that the actual performance of WWC under any
circumstances will match and projections which may have been made, and
that such actual performance may differ substantially from what is
represented in any such projections.
j. That Shareholder understands that the WWC Shares have not been
registered under the 1933 Act or the securities laws of any state and
are subject to substantial restrictions on transfer as described in the
Agreement.
k. That Shareholder agrees that he will not sell or otherwise
transfer ownership or dispose of any WWC Shares or any portion thereof
unless (i) such WWC Shares are registered under the 1933 Act and any
applicable state securities laws or Shareholder obtains an opinion of
counsel which is satisfactory to WWC that such WWC Shares may be sold
in reliance on an exemption from such registration requirements, and
(ii) the transfer is otherwise made in accordance with this Agreement.
l. That Shareholder understands that (i) WWC has no obligation or
intention to register any WWC Shares for resale or transfer under the
1933 Act or any state securities laws or to take any action (including
the filing of reports or the publication of information as required by
Rule 144 under the 1933 Act) which would make available any exemption
from the registration requirements of any such laws and (ii)
Shareholder therefore may be precluded from selling or otherwise
transferring ownership of or disposing of any WWC Shares or any portion
thereof for an indefinite period of time or at any particular time.
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m. That Shareholder has been encouraged to rely upon the advice of
Shareholder's legal counsel and accountants or other financial advisors
with respect to the tax and other considerations relating to the
purchase of WWC Shares and has been offered, during the course of
discussions concerning the acquisition of WWC Shares, the opportunity
to ask such questions and inspect such documents (including the books
and records and financial statements) concerning WWC and its business
and affairs as Shareholder has requested so as to understand more fully
the nature of the investment and to verify the accuracy of the
information supplied.
n. Represents and warrants that (i) Shareholder is at least 21 years
of age; (ii) Shareholder is a United States citizen; (iii) Shareholder
has adequate means of providing for Shareholder's current needs and
personal contingencies; (iv) Shareholder has no need for liquidity in
Shareholder's investments; (v) Shareholder maintains his or her
principal residence at the address shown below; and (vi) all
investments in and commitments to non-liquid investments are, and after
the purchase of WWC Shares will be, reasonable in relation to
Shareholder's net worth and current needs.
o. That Shareholder understands that no federal or state agency
including the Securities and Exchange Commission or the securities
commission or authorities of any state has approved or disapproved the
WWC Shares, passed upon or endorsed the merits of the Offering, or made
any finding or determination as to the fairness of the WWC Shares for
public investment.
p. That Shareholder understands that the WWC Shares are being
offered and sold in reliance on specific exemptions from the
registration requirements of federal and state laws and that WWC is
relying upon the truth and accuracy of the representations, warranties,
agreements, acknowledgments, and understandings set forth herein in
order to determine the suitability of Shareholder to acquire the WWC
Shares.
q. That the information set forth herein concerning Shareholder is
true and correct.
4. Representations and Warranties of WWC. WWC hereby represents and
warrants as follows:
a. That, as of the closing date, the WWC shares to delivered to
Shareholder will constitute the valid and legally issued shares of WWC,
fully paid and nonassessable.
b. That the officers of WWC are duly authorized to execute the
agreement pursuant to authorization of its stockholders.
c. That, as of the closing date, WWC is in good standing as a Nevada
corporation.
d. That the financial statements of WWC attached hereto fairly and
accurately represent the financial condition of WWC as of the date of
said statements; there has been no material change in the financial
condition of Xarc since the date of said statements except as set forth
in an addendum and disclosure also attached hereto; that there are no
substantial liabilities, either fixed or contingent, not reflected in
such financial statements other than contracts or obligations in the
usual course of business; and no such contracts or obligations in the
usual course of business are liens or other liabilities which, if
disclosed, would alter substantially the financial condition of WWC as
reflected in such financial statements.
5. Conditions of Closing. The closing shall occur on November 5, 1997
at 11:00 a.m., at the offices of WWC, or on such date and at such time as the
parties mutually agree.
6. Delivery of Records. Each agrees to deliver to the other, on or
before the closing date, or at such time as may be mutually agreeable to the
parties, such documents and corporate records as the other may request.
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7. Survival. All representations and warranties herein shall survive
the closing.
8. Governing Law. This Agreement shall be construed in accordance with,
and governed by, the laws of the State of Utah, and venue with respect to any
dispute shall be fixed in the Third Judicial District Court, in and for Salt
Lake County, State of Utah.
9. Notices. All communications under this Agreement shall be in
writing, shall be delivered personally, sent by telecopy or mailed by first
class mail, postage prepaid, to the telecopy numbers or addresses specified
below, or to such other telecopy number or address as any party hereto may have
furnished in writing to the others, and shall be deemed to be given on the date
of delivery if served personally, or the first business day after being sent by
telecopy, or the third business day after mailing:
If to WWC: Mr. Bill Chipman
150 Wright Brothers Drive
Salt Lake City, Utah 84116
Telecopy No. (801) 535-2450
If Shareholder: Mr. Donald I. Wallace
5912 Edgewater Drive
Overland Park, Kansas 66223
Telecopy No. (913) 685-8939
10. Amendment and Waiver: This Agreement may be amended, and observance
of any term of this agreement may be waived, with (and only with) the written
consent of the parties hereto. No waiver of any of the provisions of this
Agreement shall be deemed to be or shall constitute a waiver of any other
provision, whether or not similar, nor shall any waiver constitute a continuing
waiver.
11. Severability. In the event that any particular provision(s) of this
Agreement shall for any reason hereafter be determined to be unenforceable, or
in violation of any law, governmental order or regulation, such unenforceability
or violation shall not affect the remaining provisions of this agreement, which
shall continue in full force and effect and be binding upon the respective
parties hereto.
12. Attorneys' Fees. The non-prevailing party, as determined by the
Court, in a judicial proceeding for breach of any of the provisions of this
Agreement shall be fully responsible for and pay the prevailing party's
reasonable attorneys' fees, costs, and expenses.
13. Captions. The section and/or paragraph titles or captions used in
this Agreement are inserted only as and intended solely for convenience of
reference, and shall in no manner modify, limit, explain, construe, describe the
scope of intent or in any other way affect the terms of this Agreement.
XARC CORPORATION
By /s/ Donald I. Wallace
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Donald I. Wallace
Its President
SHAREHOLDER
/s/ Donald I. Wallace
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Donald I. Wallace
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WORLD WIRELESS COMMUNICATIONS, INC.
By: /s/ David Singer
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David Singer
Its President
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