EX-2
DEFINITIVE ACQUISITION AGREEMENT
This DEFINITIVE ACQUISITION AGREEMENT is entered into to be effective
as of April 30, 2002 (the "Effective Date") between 5G Wireless
Communications, Inc., a Nevada corporation ("5G Wireless"), and
Wireless Think Tank, a a privately held entity ("WTT").
RECITALS
WHERERAS, WTT are the owners of all the issued and outstanding shares
(the "Shares") of capital stock of WTT; and,
WHEREAS, 5G Wireless desires to purchase from WTT, and WTT desire to
sell to 5G Wireless, all the Shares in accordance with the provisions
of this Agreement.
NOW, THEREFORE, in consideration of the respective covenants contained
herein and intending to be legally bound hereby, the parties hereto
agree as follows:
AGREEMENT
The parties to this Agreement, intending to be legally bound, agree
as follows:
1. SALE OF WTT ASSETS; RELATED TRANSACTIONS.
1.1 PURCHASE AND SALE. Subject to the terms and conditions contained
herein, WTT shall sell, assign, transfer and deliver to 5G Wireless,
and 5G Wireless shall purchase from WTT, all of the Shares in
exchange for a purchase price of 15,387,425 shares of restricted
common stock of the 5G Wireless (the "Purchase Price") together with
those certain tangible and intangible WTT Assets, contracts, rights,
and properties, including without limitation WTT Intellectual
Property Rights (as defined below) (collectively, the "WTT Assets").
1.2 ASSIGNMENT OF CONTRACTS. To the best of each parties' knowledge,
there are no contracts directly related to the WTT Assets
(collectively, the "Contracts"). WTT agrees to assign all of its
rights in such Contracts, if any, to 5G Wireless. WTT shall give all
such assistance to 5G Wireless as it reasonably requests to enable 5G
Wireless to enjoy the benefit of such Contracts. If consents to the
transfer or assignment of such Contracts from third parties are
required or in 5G Wireless' reasonable opinion desirable and such
consents have not already been obtained, WTT will use its best
efforts to obtain such consents prior to the Closing Date.
1.3 COMPLETE TRANSFER. WTT expressly agrees that the sale of the WTT
Assets under this Agreement constitutes a complete transfer of all of
its rights, title and interest with respect to the WTT Assets and
that it reserves no rights to market or otherwise transfer the WTT
Assets. WTT hereby assigns, waives, and/or sublicenses any and all
Moral Rights (as defined below) WTT may have in or with respect to
the WTT Assets to the maximum extent permitted under the laws of any
relevant jurisdiction worldwide. For purposes of this Section "Moral
Rights" means any right to (i) divulge a copyrighted work to the
public; (ii) retract a copyrighted work from the public; (iii) claim
authorship of a copyrighted work; (iv) object to any distortion,
mutilation or other modification of a copyrighted work; or (v) any
and all similar rights, existing under the law of any jurisdiction in
the world, or under any treaty.
2. CLOSING.
2.1 CLOSING. The closing (the "Closing") of the sale and purchase of
the Shares shall take place at the offices of 5G Wireless
Communications, Inc. located at 4136 Del Rey Avenue, Marina Del Rey,
CA 90292, on April 30, 2002, or at such other date, time or place as
may be agreed upon in writing by the parties hereto, but not later
than May 30, 2002 (the" Termination Date"). The date of the Closing
is sometimes herein referred to as the "Closing Date."
2.2 TRANSFER OF ASSETS AND BUSINESS. WTT shall, and shall cause WTT
to, take such reasonable steps as may be necessary or appropriate, in
the judgment of 5G Wireless, so that 5G Wireless shall be placed in
actual possession and control of all of the Assets and the Business.
3. REPRESENTATIONS AND WARRANTIES OF WTT. WTT hereby represents and
warrants to 5G Wireless the representations and warranties, as
follows:
3.1 CORPORATE STATUS. WTT is a privately held company, which
operates in the North East portion of the USA. The Charter Documents
and bylaws of WTT that have been delivered to 5G Wireless as of the
date hereof and are current, correct and complete.
3.2 AUTHORIZATION. WTT has the requisite power and authority to
execute and deliver the transaction documents to which it is a party
and to perform the transactions performed or to be performed by it.
Each transaction Document executed and delivered by WTT has been duly
executed and delivered by WTT and constitutes a valid and binding
obligation of WTT, enforceable against WTT in accordance with its terms.
3.3 CONSENTS AND APPROVALS. Neither the execution and delivery by
WTT of the Transaction Documents to which it is a party, nor the
performance of the Transactions performed or to be performed by WTT,
require any filing, consent or approval, constitute a Default or cause
any payment obligation to arise.
3.4 CAPITALIZATION. The authorized capital of WTT consists of
10,000,000 shares, of which 216,667 of such shares have been duly
issued and are outstanding as fully paid and non-assessable.
3.5 FINANCIAL STATEMENTS. WTT acknowledge that the books and records
fairly and correctly set out and disclose in all material respects, in
accordance with generally accepted accounting principles ("GAAP"), the
financial position of WTT as at the date hereof, and all material
financial transactions of the WTT relating to the Business have been
accurately recorded in such books and records.
3.6 REAL PROPERTY. WTT has the corporate power to own or lease its
property and to carry on the Business; it is duly qualified as a
corporation to do business and is in good standing with respect
thereto in each jurisdiction in which the nature of the Business or
the property owned or leased by it makes such qualification necessary;
and it has or will have on the Closing Date all necessary licenses,
permits, authorizations and consents to operate its Business in
accordance with the terms of its Business Plan.
3.7 LIABILITIES. There are no material liabilities of WTT of any
kind whatsoever, whether or not accrued and whether or not determined
or determinable, in respect of which WTT or the Purchaser may become
liable on or after the consummation of the transaction contemplated
by this agreement, other than liabilities which may be reflected on
WTT's Financial Statements, liabilities disclosed or referred to in
this agreement or in the Schedules attached hereto, or liabilities
incurred in the ordinary course or business and attributable to the
period since the date of WTT's Financial Statements, none of which
has been materially adverse to the nature of the Business, results of
operations, assets, financial condition or manner of conducting the
Business.
3.8 TAXES.
a) WTT has timely filed all Tax Returns required to be filed on or
before the Closing Date and all such Tax Returns are true,
correct and complete in all respects. WTT has paid in full on a
timely basis all Taxes owed by it, whether or not shown on any
Tax Return, except where the failure to file such return or pay
such taxes would not have a Material Adverse Effect. No claim has
ever been made by any authority in any jurisdiction where WTT
does not file Tax Returns that WTT may be subject to taxation in
that jurisdiction.
b) There are no ongoing examinations or claims against WTT for
Taxes, and no notice of any audit, examination or claim for
Taxes, whether pending or threatened, has been received. WTT has
not waived or extended the statute of limitations with respect to
the collection or assessment of any Tax.
3.9 SUBSIDIARIES. WTT does not own, directly or indirectly, any
interest or investment (whether equity or debt) in any corporation,
partnership, limited liability company, trust, joint venture or other
legal entity.
3.10 LEGAL PROCEEDINGS AND COMPLIANCE WITH LAW. There is no
Litigation that is pending or, to WTT' Knowledge, threatened against
WTT. To the WTT Knowledge, there has been no Default under any Laws
applicable to WTT, and WTT has not received any notices from any
governmental entity regarding any alleged Defaults under any Laws.
There has been no Default with respect to any Court Order applicable
to WTT.
3.11 CONTRACTS. WTT is not a party to or bound by any agreement
or guarantee, warranty, indemnification, assumption or endorsement or
any other like commitment of the obligations, liabilities (contingent
or otherwise) or indebtedness of any other person, firm or
corporation, or of any products related to the Business.
3.12 INTELLECTUAL PROPERTY. WTT has good and valid title to
and ownership of all Intellectual Property (defined herein as trade
marks, trade names or copyrights, patents, domestic or foreign
)necessary for its Business and operations (as now conducted and as
proposed to be conducted). There are no outstanding options, licenses
or agreements of any kind to which WTT is a party or by which it is
bound relating to any Intellectual Property, whether owned by WTT or
another person. To the Knowledge of the WTT, the business of WTT as
formerly and presently conducted did not and does not conflict with or
infringe upon any Intellectual Property right, owned or claimed by
another.
3.13 CORPORATE RECORDS. The minute books of WTT contain
complete, correct and current copies of its Charter Documents and
bylaws and of all minutes of meetings, resolutions and other
proceedings of its Board of Directors and WTT. The stock record books
of WTT are complete, correct and current.
3.14 FINDER'S FEES. No Person retained by WTT or WTT is or will
be entitled to any commission or finder's or similar fee in connection
with the Transactions.
3.15 ACCURACY OF INFORMATION. To the WTT' Knowledge, no
representation or warranty by WTT or WTT in any Transaction Document,
and no information contained therein contains any untrue statement of
a material fact or omits to state any material fact necessary in order
to make the statements contained herein or therein not misleading in
light of the circumstances under which such statements were made.
4. REPRESENTATIONS AND WARRANTIES OF 5G WIRELESS. 5G Wireless
hereby represents and warrants to WTT as follows:
4.1 CORPORATE STATUS. 5G Wireless is a corporation duly organized,
validly existing and in good standing under the Laws of the State of
Nevada and is qualified to do business in any jurisdiction where it is
required to be so qualified. The Charter Documents of 5G Wireless that
have been delivered to WTT as of the date hereof are effective under
applicable Laws and are current, correct and complete.
4.2 AUTHORIZATION. 5G Wireless has the requisite power and
authority to own its assets and to carry on its business. 5G Wireless
has the requisite power and authority to execute and deliver the
transaction documents to which it is a party and to perform the
transactions performed or to be performed by it. Such execution,
delivery and performance by 5G Wireless have been duly authorized by
all necessary corporate action. Each transaction document executed and
delivered by 5G Wireless has been duly executed and delivered by 5G
Wireless and constitutes a valid and binding obligation of 5G
Wireless, enforceable against 5G Wireless in accordance with its
terms.
4.3 CONSENTS AND APPROVALS. Neither the execution and delivery
by 5G Wireless of the Transaction Documents to which it is a party,
nor the performance of the Transactions performed or to be performed
by 5G Wireless, require any filing, consent or approval, constitute a
Default or cause any payment obligation to arise.
4.4 FINDER'S FEES. No Person retained by 5G Wireless is or will
be entitled to any commission or finder's or similar fee in connection
with the Transactions.
4.5 ACCURACY OF INFORMATION. To 5G Wireless's actual knowledge,
no representation or warranty by 5G Wireless in any transaction
document, and no information contained therein or otherwise delivered
by or on behalf of 5G Wireless to any other Party in connection with
the Transactions contains any untrue statement of a material fact or
omits to state any material fact necessary in order to make the
statements contained herein or therein not misleading in light of the
circumstances under which such statements were made.
5. CLOSING CONDITIONS OF 5G WIRELESS. WTT's obligations were
subject to the fulfillment on or prior to the Closing Date of all of
the conditions set forth in the Acquisition Agreement dated March 1,
2002. WTT acknowledges and agrees that 5G Wireless has fulfilled all
such closing condition.
6. CLOSING CONDITIONS OF WTT. 5G Wireless' obligations to purchase
the WTT Assets were subject to the fulfillment on or prior to the
Closing Date of all of the conditions set forth in the Acquisition
Agreement dated March 1, 2002. 5G Wireless acknowledges and agrees
that 5G Wireless has fulfilled all such closing condition.
Specifically, that the following conditions have been met:
6.1 SATISFACTORY DUE DILIGENCE; MATERIAL ADVERSE CHANGE. 5G Wireless
shall be satisfied in its sole discretion (a) that the
representations and warranties made by WTT are true and correct as
of the Closing Date, (b) that any matters which 5G Wireless deemed to
be unacceptable and which had been specified in writing to WTT have
been remedied to 5G Wireless's satisfaction, and (c) with the
results of its business, technical, legal and financial review of the
books, records, agreements and other legal documents and business
organization of WTT.
6.2 Technology. A third party has conducted an evaluation and
evaluated the WTT technology to 5G Wireless's satisfaction.
6.3 Patent Review. 5G Wireless has received a copy of the
application of patent made to the United States Patent and Trademark
Office (the "USPTO"), or that will be made to the USPTO subject to
the review of a patent attorney selected by 5G Wireless.
7. INDEMNIFICATION.
8. POST-CLOSING COVENANTS.
8.1 FURTHER ASSURANCES. WTT shall not voluntarily undertake any
course of action which interferes in any way with the rights obtained
by hereunder or is otherwise inconsistent with the satisfaction of
its obligations or agreements set forth in this Agreement. WTT
hereby agrees not to contest 5G Wireless's ownership of the
Intellectual Property Rights or 5G Wireless's title to the WTT
Assets. WTT shall execute, acknowledge and deliver any further
assignments, conveyances and other assurances, documents and
instruments of transfer, consistent with the terms of this Agreement,
which are reasonably requested and prepared by 5G Wireless or its
counsel and shall take any other action, consistent with the terms of
this Agreement, that may be reasonably requested and prepared by 5G
Wireless or its counsel for the purpose of assigning, transferring,
granting, conveying, and confirming to 5G Wireless or reducing to
its possession, any or all of the WTT Assets or the liabilities. 5G
Wireless shall be solely responsible for all out-of-pocket costs
related to such requests.
8.2 CONFIDENTIALITY. From and after the Closing Date, to the maximum
extent permitted by applicable law, all technical, marketing and
other information directly relating to the WTT Assets and
Intellectual Property Rights thereto shall at all times be and remain
the sole and exclusive property of 5G Wireless. At all times after
the Closing Date, 5G Wireless shall retain in strictest confidence,
and shall not disclose to third parties or use for its benefit or for
the benefit of any third party, all information assigned under this
Agreement or disclosed by 5G Wireless or in any other way relating to
the WTT Assets.
WTT understands and agrees that 5G Wireless 's remedies at law for a
breach by WTT of its obligations under this Section will be
inadequate and that 5G Wireless shall, in the event of any such
breach, be entitled to equitable relief (including without limitation
injunctive relief and specific performance) in addition to all other
remedies provided under this Agreement or available to 5G Wireless at law.
9. MISCELLANEOUS.
9.1 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the substantive laws of the State of California
applicable to contracts between California residents entered into and
to be performed entirely within the State of California. Any action
or proceeding brought by either party against the other arising out
of or related to this Agreement shall be brought exclusively in a
state or federal court in Orange County, California.
9.2 WAIVERS; CUMULATIVE REMEDIES. Any waiver, consent or the like
must be in writing. Any waiver by either party of any breach of this
Agreement by the other party shall not constitute a waiver of any
other or subsequent breach of this Agreement. All remedies, either
under this Agreement or by law or otherwise, afforded to the parties
hereunder shall be cumulative and not alternative.
9.3 NOTICES. All notices and other communications required or
permitted hereunder shall be in writing and shall be effective upon
receipt by facsimile with a confirming copy sent by first-class mail,
postage prepaid, or five (5) days after deposit in the U.S. postal
system by certified or registered mail, return receipt requested,
postage prepaid to the addresses first set forth below such other
address as a party may designate for itself by providing notice
hereunder:
9.4 ATTORNEYS' FEES. In any action brought to construe or enforce
this Agreement, the prevailing party shall receive in addition to any
other remedy to which it may be entitled, compensation for all costs
incurred in pursuing such action, including, but not limited to,
reasonable attorneys' and expert witnesses' fees and costs.
9.5 EXPENSES. Each party shall bear its own expenses and legal fees
incurred on its behalf with respect to this Agreement and the
transaction contemplated hereby.
9.6 SEVERABILITY. In case any provision of this Agreement is held to
be invalid or unenforceable, such provision shall be deemed amended
to the extent required to make it valid and enforceable and such
amended provision and the remaining provisions of this Agreement will
remain in full force and effect.
9.7 TITLE AND HEADINGS. The titles and headings contained in this
Agreement are inserted for convenience only and shall not affect in
any way the meaning or interpretation of this Agreement.
9.8 SUCCESSOR AND ASSIGNS. The provisions hereof shall inure to the
benefit of, and be binding upon, the successors and assigns of the
parties hereto.
9.9 RIGHTS OF THIRD PARTIES. Nothing contained in this Agreement,
express or implied, shall be deemed to confer any rights or remedies
upon, or obligate any of the parties hereto, to any person or entity.
9.10 PUBLICITY. The terms of this Agreement shall be considered
confidential information of 5G Wireless and WTT. Both parties agree
that the specific provisions hereof shall not be revealed or
disclosed by it without the prior written consent of the other except
to the extent such disclosure is required by applicable law or
regulation.
9.11 ENTIRE AGREEMENT; AMENDMENT. This Agreement, any Exhibits
hereto and the other documents delivered pursuant hereto constitute
the full, exclusive, complete and entire understanding and agreement
between the parties with regard to the subject matter hereof and
thereof and supersedes and revokes all other previous discussions,
understanding and agreements, whether oral or written, between the
parties with regard to the subject matter hereof. Any term of this
Agreement may be amended and the observance of any term of this
Agreement may be waived (either generally or in a particular instance
and either retroactively or prospectively), only with the written
consent of the affected party.
The parties to this Agreement have caused this Agreement to be
executed and delivered as of April 30, 2002.
5G WIRELESS COMMUNICATIONS
By: /s/ Jerry Dix
Jerry Dix, President
WIRELESS THINK TANK
By: /s/ Brian Corty
Brian Corty, Chief Executive Officer