TERMINATION AGREEMENT
TERMINATION AGREEMENT (the "Agreement"), dated as of January 10, 2001 by
and among WESTERN POWER & EQUIPMENT CORP., a Delaware corporation ("WPEC"),
E-MOBILE, INC., a Delaware corporation ("E-Mobile"), and E-MOBILE HOLDINGS,
INC., a Delaware corporation ("Holdings")
WHEREAS, e-Mobile, Holdings and WPEC entered into an Agreement and Plan of
Reorganization and Merger (the "Merger Agreement") dated November 1, 2000.
WHEREAS, having evaluated the potential benefits and burdens associated
with the Merger contemplated by the Merger Agreement, the parties have agreed
that it is in the best interest of each to terminate the Merger Agreement and
the Merger; and
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements set forth herein, and for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Termination of Merger Agreement. e-Mobile, Holdings and WPEC hereby
mutually consent to the termination (the "Termination") of the Merger Agreement
effective as of the Termination Date (as defined below).
2. Termination Fee. As consideration for consenting to the Termination,
e-Mobile agrees to issue to WPEC one million, four hundred thousand (1,400,000)
shares of e-Mobile common stock (the "Termination Fee Shares").
3. Termination Date.
A. Closing of the Termination described herein shall take place, and
the Termination shall be effective, as soon as practicable after the date hereof
at such time and place as the parties hereto shall agree (the "Termination
Date").
B. At the closing, e-Mobile and Holdings shall deliver to WPEC,
certificates evidencing the Termination Fee Shares and a Release in the form
attached hereto as Exhibit "A". WPEC agrees and understands that the shares
constituting the Termination Fee Shares are being issued pursuant to an
exemption from registration under applicable federal and state securities laws,
that the share certificates in question will bear a legend restricting the
transfer of those shares except pursuant to an effective registration statement
or an available exemption from registration, that there is no market for those
shares and that such shares may have to be held for an indefinite period of
time.
C. At the closing WPEC shall deliver to e-Mobile and Holdings a
Release in the form attached hereto as Exhibit "B".
4. Registration of the Termination Fee Shares. If the Company shall
at any time seek to register or qualify any of its capital stock or the
securities holdings of any of its shareholders, on each such occasion it shall
furnish WPEC with at least 30 days' written notice thereof and WPEC shall have
the option, without cost or expense, to include all of the shares
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issued pursuant to this Article "4" of this Agreement in such registration or
qualification. WPEC shall exercise the "piggy back rights" under this Article
"4" of this Agreement by giving written notice to the Company within twenty (20)
days after receipt of the written notice from the Company.
5. Lock-Up of the Termination Fee Shares. For a period beginning on
the date hereof and ending on the earlier of ninety (90) days following the
closing of an underwritten public offering of common stock by e-Mobile, eighty
percent (80%) of the aggregate of the Termination Fee Shares shall be subject to
a lock-up agreement pursuant to which WPEC agrees that it will not sell,
hypothecate or otherwise transfer of any such shares, except pursuant to an
available exemption from the Securities laws.
6. Restrictions on Future Share Issuances. e-Mobile agrees that, for a
period of one year from the Termination Date, without the prior written consent
of WPEC (a) it will not sell any shares of common stock at a price less than
$1.00 per share, and (b) it will sell no more than eight million (8,000,000)
shares of common stock at a price equal to or greater than $1.00 per share and
less than $2.00 per share. Notwithstanding the foregoing, the Company retains
the right to convert loans not to exceed $1,000,000 from the founders of the
Company, at a price of $.20 per share.
7. Miscellaneous.
A. The parties to this Agreement hereby represent that they will
execute such additional documents or take such additional actions as may be
necessary to more fully fulfill the terms and intent of this Agreement.
B. By execution of this Agreement, each of the parties hereto
represents and warrants that he, or it, has the requisite power and authority to
enter into this Agreement and to carry out its obligations hereunder. The
execution and delivery of this Agreement by e-Mobile, Holdings and WPEC and the
consummation of the transactions contemplated hereby have been duly authorized
by e-Mobile, Holdings and WPEC, respectively, and no other corporate action or
proceeding on the part of e-Mobile, Holdings or WPEC, respectively, is necessary
for the execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby. This Agreement, when duly executed and
delivered, is a legal, valid and binding obligation of each of the respective
parties hereto enforceable against each in accordance with the terms set forth
herein except to the extent that enforceability hereof may be limited by
applicable bankruptcy, insolvency, reorganization, or other laws affecting the
enforcement of creditors rights generally and by the principles of equity
regarding the availability of remedies.
C. This Agreement shall be binding upon the parties hereto and their
successors and assigns.
D. This Agreement shall be construed in accordance with, and
governed by, the laws of the State of New York and venue for any dispute under
this Agreement shall be in New York City. Should any dispute arise, the
prevailing party shall be entitled to reasonable attorney fees.
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E. If any clause, sentence, paragraph, subsection, or section of
this Agreement be judicially declared to be invalid, unenforceable or void, such
decision will not have the effect of invalidating or voiding the remainder of
this Agreement, and the parties hereto agree that the part or parts of this
Agreement so held by invalid, unenforceable or void will be deemed to have been
stricken herefrom by the parties hereto and the remainder will have the same
force and effectiveness as if such stricken part or parts had never been
included herein.
F. This Agreement constitutes the entire agreement of the parties
with regard to the subject matter of this Agreement and replaces and supersedes
all other written and oral agreements and statements of the parties relating to
the subject matter of this Agreement.
G. This Agreement may not be modified except in writing signed by
all parties hereto.
H. This Agreement may be executed in one or more counterparts, and
by the parties hereto on separate counterparts, and each counterpart, when so
executed and delivered, shall constitute an original instrument, and all such
separate counterparts shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered on the date first herein set forth.
E-MOBILE, INC.
By: /s/ Nechemia Davidson
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Title: Chairman
E-MOBILE HOLDINGS Inc.
By: /s/ Nechemia Davidson
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Title:
WESTERN POWER & EQUIPMENT CORP.
By: /s/ Bob Rubin
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Title: Director
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EXHIBIT "A"
RELEASE
For good and valuable consideration, e-Mobile, Inc., a Delaware
corporation ("e-Mobile") and E-MOBILE HOLDINGS, INC., a newly-formed Delaware
corporation. ("Holdings") hereby jointly and severally release, acquit and
forever discharge Western Power & Equipment Corp., a Delaware corporation
("WPEC"), and its officers, directors, employees and agents, from any and all
actions, causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims and demands whatsoever, in law, admiralty or equity, which
against WPEC, e-Mobile and Holdings and their successors and assigns ever had,
now have or hereafter can, shall or may have for upon or by reason of any
matter, cause or thing whatsoever from the beginning of the world to the day of
the date of the Release to be done by WPEC which has occurred or accrued in
whole or in part in relation to the Agreement and Plan of Reorganization and
Merger (the "Merger Agreement"), dated November 1, 2000, by and between
e-Mobile, Holdings and WPEC; provided, however, that the foregoing Release shall
not be applicable to any claims which are made by WPEC against e-Mobile or
Holdings with respect to any legal proceeding commenced against WPEC by any
third party.
This Release may not be changed orally.
Dated this 10th day of January 2001.
In Witness Whereof e-Mobile, Inc. and e-Mobile Holdings, Inc. have caused this
Release to be executed by their duly authorized officers and their corporate
seals to be hereunto affixed on
In presence of:
E-MOBILE, INC.
By: /s/ Nechemia Davidson
--------------------------------
Nechemia Davidson
E-MOBILE HOLDINGS INC.
By: /s/ Nechemia Davidson
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Nechemia Davidson
EXHIBIT "B"
RELEASE
For good and valuable consideration, Western Power & Equipment Corp., a
Delaware corporation ("WPEC") hereby releases, acquits and forever discharges
e-Mobile, Inc., a Delaware corporation ("e-Mobile") and E-MOBILE HOLDINGS, INC.,
a newly-formed Delaware corporation ("Holdings"), and their officers, directors,
employees and agents, from any and all actions, causes of action, suits, debts,
dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants,
contracts, controversies, agreements, promises, variances, trespasses, damages,
judgments, extents, executions, claims and demands whatsoever, in law, admiralty
or equity, which against e-Mobile and Holdings, WPEC and its successors and
assigns ever had, now have or hereafter can, shall or may have for upon or by
reason of any matter, cause or thing whatsoever from the beginning of the world
to the day of the date of the Release to be done by e-Mobile which has occurred
or accrued in whole or in part in relation to the Agreement and Plan of
Reorganization and Merger (the "Merger Agreement"), dated November 1, 2000, by
and between e-Mobile, Holdings and WPEC; provided, however, that the foregoing
Release shall not be applicable to any claims which are made by e-Mobile or
Holdings against WPEC with respect to any legal proceeding commenced against
e-Mobile or Holdings by any third party.
This Release may not be changed orally.
Dated this 10th day of January 2001.
In Witness Whereof Western Power & Equipment Corp has caused this Release to be
executed by its duly authorized officers and its corporate seal to be hereunto
affixed on
In presence of:
WESTERN POWER & EQUIPMENT CORP.
By: /s/ Charles Dean Mc Lain
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Charles Dean Mc Lain
Chairman & CEO