Exhibit 2.6
AUDIT ESCROW AGREEMENT
This Audit Escrow Agreement (the "Escrow Agreement") is
entered between Advanced Wireless Services, Inc. ("Purchaser"),
Digital Wireless Services, Inc. ("Seller"), and the Escrow Agent
named on the signature page hereof (the "Escrow Agent") on August
____, 2000.
Recitals
A. Seller and Purchaser entered into an Asset Purchase
Agreement as of February 15, 2000,(the "Agreement") concerning
the sale of all of the assets of Seller (the "Assets"); and
B. Seller and Purchaser entered into a Closing Agreement as
of August 6, 2000, upon closing the sale of the Assets; and
C. Seller and Purchaser have agreed to escrow 284,410 Units
of Equity issued by Purchaser (the "Units of Equity"), with the
Escrow Agent, representing part of the consideration to be paid
for the Assets being acquired by Purchaser, pending completion of
an audit of the financial condition of the Seller at December 31,
1999 and 1998, and for the years then ended.
Now, therefore, in accordance with the Plan and the
Confirmation Order, it is agreed as follows:
Article I
Definitions
1.01 Incorporation of Definitions. Unless the context
otherwise requires, all capitalized terms used in this Escrow
Agreement and not otherwise defined herein shall have the
meanings assigned to them in the Agreement, the Closing
Agreement, and the Disclosure Statement and Plan of
Reorganization confirmed by the U.S. Bankruptcy Court, Middle
District of Tennessee, in Case No. 398-10899, and the Bankruptcy
Code - in that order. All such definitions are incorporated
herein by reference.
Article II
Establishment of Escrow Account
2.01 Purposes of the Escrow Agreement. The sole purpose of
the Escrow Agreement is to receive, hold, and disburse the Units
of Equity in accordance with the Closing Agreement.
2.02 Funding; Transfer of Assets. Contemporaneously with
the execution by all parties of this Escrow Agreement, Purchaser
will deposit the Units of Equity with the Escrow Agent.
2.03 Administration of Escrow. When satisfactory proof has
been presented to the Escrow Agent that an independent public
accountant has audited and reported on the financial statements
of the Seller as of December 31, 1999 and 1998 and for the years
then ended, the Escrow Agent shall deliver the Units of Equity
held by it to the Purchaser's transfer agent for issuance to
those persons designated on Schedule 1. In the event the Escrow
Agent has not received such proof on or before October 15, 2000,
the Escrow Agent shall return the Units of Equity to the
Purchaser's transfer agent with instructions to cancel the Units
of Equity on the corporate transfer records of the Purchaser, and
such Units of Equity shall become treasury shares of the
Purchaser.
Article III
The Escrow Agent
3.01 Escrow Fees. The Purchaser hereby agrees to pay the
Escrow Agent at the opening of escrow an advance payment for all
ordinary services rendered hereunder (the "Escrow Fee") which
shall be calculated in accordance with the Escrow Agent's
standard rate schedule, attached hereto as Schedule 2 and
incorporated herein by reference. The Purchaser further agrees
to pay the Escrow Agent reasonable fees, which shall be agreed
upon between the parties, for any services in addition to those
provided for herein to the extent that the Purchaser has
expressly requested such extraordinary services and has been made
aware of their cost in advance of their performance.
3.02 Liability of Escrow Agent. In performing any duties
under the Escrow Agreement, the Escrow Agent shall not be liable
to the Purchaser or Seller for damages, losses, or expenses,
except for gross negligence or willful misconduct on part of the
Escrow Agent. The Escrow Agent shall not incur any such
liability for (i) any act or failure to act made or omitted in
good faith, or (ii) any action taken or omitted in reliance upon
any instrument, including any written statement or affidavit
provided for in this Escrow Agreement that the Escrow Agent shall
in good faith believe to be genuine, nor will the Escrow Agent be
liable or responsible for forgeries, fraud, impersonations, or
determining the scope of any representative authority. In
addition, the Escrow Agent may consult with legal counsel in
connection with the Escrow Agent's duties under this Agreement
and shall be fully protected in any action taken, suffered, or
permitted by it in good faith in accordance with the advice of
counsel. The Escrow Agent is not responsible for determining and
verifying the authority of any person acting or purporting to act
on behalf of any party to this Escrow Agreement.
3.03 Fees and Expenses. It is understood that the fees and
usual charges agreed upon for services of the Escrow Agent shall
be considered compensation for ordinary services as contemplated
by this Escrow Agreement. In the event that the conditions of
this Escrow Agreement are not promptly fulfilled, or if the
Escrow Agent renders any service not provided for in this Escrow
Agreement, or if the Purchaser requests a substantial
modification of its terms, or if any controversy arises, or if
the Escrow Agent is made a party to, or intervenes in, any
litigation pertaining to this escrow or its subject matter, the
Escrow Agent shall be reasonably compensated for such
extraordinary services and reimbursed for all costs, attorney's
fees, including allocated costs of in-house counsel, and expenses
occasioned by such default, delay,
controversy, or litigation, and the Escrow Agent shall have the
right to retain all documents and/or other things of value at any
time held by the Escrow Agent in this escrow until such
compensation, fees, costs, and expenses are paid. The Purchaser
promises to pay these sums upon demand. Unless otherwise
provided, the Purchaser will pay all of the Escrow Agent's usual
charges.
3.04 Controversies. If any controversy arises between the
parties to this Escrow Agreement, or with any other Party,
concerning the subject matter of this Escrow Agreement, its terms
or conditions, the Escrow Agent will not be required to determine
the controversy or to take any action regarding it. The Escrow
Agent may hold all documents and funds and may wait for
settlement of any such controversy by final appropriate legal
proceedings or other means as, in the Escrow Agent's discretion,
the Escrow Agent may require, despite what may be set forth
elsewhere in this Escrow Agreement. In such event, the Escrow
Agent will not be liable for interest or damage. Furthermore,
the Escrow Agent may at its option file an action of interpleader
requiring the parties to answer and litigate any claims and
rights among themselves. The Escrow Agent is authorized to
deposit with the clerk of the court all documents and funds held
in escrow, except all costs, expenses, charges and reasonable
attorney fees incurred by the Escrow Agent due to the
interpleader action and which Purchaser agrees to pay. Upon
initiating such action, the Escrow Agent shall be fully released
and discharged of and from all obligations and liability imposed
by the terms of this Escrow Agreement.
3.05 Indemnification of Escrow Agent. The Purchaser and
its successors and assigns agree jointly and severally to
indemnify and hold the Escrow Agent harmless against any and all
losses, claims, damages, liabilities, and expenses, including
reasonable costs of investigation, counsel fees, including
allocated costs of in-house counsel and disbursements that may be
imposed on the Escrow Agent or incurred by the Escrow Agent in
connection with the performance of its duties under this Escrow
Agreement, including but not limited to any litigation arising
from this Escrow Agreement or involving its subject matter.
3.06 Resignation of Escrow Agent. The Escrow Agent may
resign at any time upon giving at least (30) days written notice
to the Purchaser provided, however, that no such resignation
shall become effective until the appointment of a successor
escrow agent which shall be accomplished as follows: The
Purchaser shall use its best efforts to obtain a successor escrow
agent within thirty (30) days after receiving such notice. If
the Purchaser fails to agree upon a successor escrow agent within
such time, the Escrow Agent shall have the right to appoint a
successor escrow agent authorized to do business in the state of
Texas. The successor escrow agent shall execute and deliver an
instrument accepting such appointment and it shall without
further acts, be vested with all the estates, properties, rights,
powers, and duties of the predecessor escrow agent as if
originally named as escrow agent. The Escrow Agent shall
thereupon be discharged from any further duties and liability
under this Escrow Agreement.
3.07 Automatic Succession. Any company into which the
Escrow Agent may be merged or with which it may consolidated, or
any company to whom Escrow Agent may transfer a substantial
amount of its global escrow business, shall be the successor to
the Escrow Agent without the execution or filing of any paper or
any further act on the part of any of the Parties,
anything herein to the contrary notwithstanding; provided that
the combined capital and surplus of such successor shall not be,
immediately following such transaction, substantially less than
the combined capital and surplus of the Escrow Agent immediately
prior to such transaction.
3.08 Termination. This Escrow Agreement shall terminate
upon the completion of the conditions of Section 2.03 hereof,
without any notices to any person except as provided in this
Escrow Agreement, unless earlier terminated pursuant to the terms
hereof.
Article III
Miscellaneous
4.01 Governing Laws. This Escrow Agreement is to be
construed and interpreted according to Texas law, without regard
to conflict of law principles. In any action to enforce this
Escrow Agreement, venue shall lie in Travis County, Texas.
4.02 Counterparts. This Escrow Agreement may be executed
in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the
same instrument.
4.03 Notices. All instructions, notices and demands
herein provided for shall be in writing and shall be mailed
postage prepaid, first class mail, delivered by courier, or
telecopies as follows:
If to the Purchaser:
Thomas M. Howard, President
716 College Avenue, Suite A-2
Santa Rosa, California 95404
With a copy in like manner to:
Sheinfeld, Maley & Kay, P.C.
301 Congress Avenue, Suite 1400
Austin, Texas 78701
Attention: Lee Polson
If to the Escrow Agent:
Sidney J. Diamond, a Professional Corporation
3800 Mesa Street, Suite C-4
El Paso, Texas 77902
Attention: Sidney J. Diamond
If to the Seller:
Digital Wireless Systems, Inc.
106 Stoney Ridge Road
Landenberg, Pennsylvania 19350
Attention: David D. Schlueter
4.04 Amendments. This Escrow Agreement may be amended only
by written consent of both parties.
Executed this the _____ day of August, 2000, to be effective
as of August 6, 2000.
Advanced Wireless Systems, Inc., Digital Wireless Systems, Inc.,
Purchaser Seller
______________________________ _____________________________
Thomas W. Howard, President David D. Schlueter, President
Sidney J. Diamond, a Professional Corporation,
Escrow Agent
______________________________
Sidney J. Diamond
Schedule 1
Holders of Units of Equity Held By Escrow Agent
Name Number of Units of Equity
Carolyn S. Breaks 3,914
William Counts 3,131
Willard R. Fey 3,523
Frank Franco 1,174
Joseph R. Paradis 136,334
David D. Schlueter 136,334
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Total = 284,410