EX-1 AGENCY AGREEMENT
AGENCY AGREEMENT
April 1, 2003
May Davis Group, Inc.
14 Wall Street, Suite 1615
New York, New York 10005
Ladies and Gentlemen:
5G Wireless Communications, Inc., a Nevada corporation
("Company"), proposes to offer for sale in private placements
("Offerings") the Company's convertible debentures ("Debentures") in
accordance with the terms and conditions set forth in the attached
Subscription Agreement. The Debentures shall be offered in accordance
with Section 4(2) of the 1933 Act and Rule 506 of Regulation D
promulgated under the 1933 Act ("Regulation D") only to "accredited
investors" (as such term is defined in Regulation D). This is to
confirm our agreement concerning your acting as our exclusive
placement agent ("Placement Agent") in connection with such sale of
the Debentures, subject to your right to have Selected Dealers, as
defined in Section 1.1 hereof, participate in the Offerings.
1. Appointment of Placement Agent: The Offering
1.1 Appointment of Placement Agent. You are hereby
appointed exclusive Placement Agent of the Company for the Offerings
during the offering period herein specified ("Offering Period") for
the purpose of assisting the Company in finding accredited investors
for the Debentures ("Subscribers"). The Offering Period for the Notes
shall continue until July 1, 2003. The Debentures shall be offered on
a "best efforts and no minimum" basis during the Offering Period.
The day that the Offering Period terminates is hereinafter referred to
as the "Termination Date." You hereby accept such agency and agree to
assist the Company in finding qualified Subscribers. Your agency
hereunder is not terminable by the Company except upon termination of
the Offering or upon expiration of the Offering Period in accordance
with the terms of this Agreement.
You may engage other persons, selected by you in your
discretion, that are members of the National Association of Securities
Dealers, to assist you in the Offerings (each such person being herein
referred to as a "Selected Dealer") and you may allow such persons
such part of the compensation and payment of expenses payable to you
hereunder as you shall determine.
1.2 Offering Documents. The Subscription Agreement for the
Debentures and accompanying transaction documents shall be prepared by
counsel for the Company. The Placement Agent shall not have any
obligation to independently verify the accuracy or completeness of any
information contained in any agreement in connection with the
Debentures or the authenticity, sufficiency, or validity of any check
delivered by any Subscriber in payment for the Debentures.
2. Closing. Subject to the conditions set forth in Section 5
hereof, the closing date (the "Closing Date") for the Debentures shall
be no later than July1, 2003.
3. Compensation. On the Closing Date, the Company shall cause
to be paid to the Placement Agent by certified or official check or
wire a commission equal to ten percent (10%) of the gross proceeds of
the Debentures being sold on such Closing Date. With regard to the
Debentures, the Company hereby gives its instructions and mandate to
the Subscribers to pay the Placement Agent directly from the funding
proceeds and three million in company restricted Common Stock.
4. Representations and Warranties of the Company. The Company
represents and warrants as follows:
4.1 Due Incorporation and Qualification. The Company has
been duly incorporated, and is validly existing as a corporation and
is in good standing under the laws of the State of Nevada and is duly
qualified as a foreign corporation for the transaction of business and
is in good standing in each jurisdiction in which the ownership or
leasing of their properties or the conduct of their business requires
such qualification (except where the failure to so qualify would not
have a material adverse effect on the business of the Company). The
Company has all requisite corporate power and authority and have
obtained all necessary consents, authorizations, approvals, orders,
licenses and permits of and from any governmental authority or agency
or any court or other tribunal necessary to own or hold their
properties and conduct their business (except where the failure to
have such consents, authorization, approval orders, licenses and
permits would not have a material adverse effect on the business of
the Company).
4.2 Authorized Capital. The Company's authorized
capitalization consists of (i) eight hundred million (800,000,000)
shares of Common Stock, of which as February 15, 2003 approximately
two hundred fourteen million four hundred forty-five thousand seven
hundred forty (214,455,740) shares are issued and outstanding, and ten
million (10,000,000) shares of Preferred Stock, of which as of the
date hereof zero (0) shares are issued and outstanding. All of the
issued and outstanding shares of capital stock have been duly
authorized and validly issued and are fully paid and non-assessable.
None of the holders of such outstanding shares of capital stock is
subject to personal liability solely by reason of being such a holder
(except to the extent such holder has created such liability). The
offers and sales of all the Company's outstanding securities were at
all relevant times prior to the Closing Date either registered under
the Securities Act and the applicable state securities or Blue Sky
laws, or exempt from such registration.
4.3 No Preemptive Rights: Options. There is no commitment,
plan, or arrangement to issue, and there is no outstanding option,
warrant, or other right calling for the issuance of, any share of
capital stock of the Company or any security or other instrument which
by its terms is convertible into, exercisable for, or exchangeable for
capital stock of the Company. No person has any preemptive rights to
purchase securities of the Company and no person holds securities of
the Company that have reset/repricing provisions. No holder of any of
the Company's securities has any rights, "demand," "piggyback" or
otherwise, to have such securities registered or to demand the filing
of a registration statement. The Company has reserved for issuance a
sufficient number of shares of Common Stock to be issued upon
conversion of the holders of its warrants and options.
4.4 Financial Statements: Operating Business. The Company's
financial and operational history, its present condition, financial
and otherwise, and its prospects are as represented by the Company in
the reports filed with the Securities and Exchange Commission
("Reports"). The financial statements of the Company included in the
Reports ("Financials") fairly present in all material respects the
financial position and results of operations of the Company at the
dates thereof and for the periods covered thereby. The Financials
have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved, are
current and complete, and are in accordance with the books and records
of the Company. The Company has no liabilities or obligations,
contingent, direct, indirect or otherwise required to be accrued or
reserved against in the Financials except (i) as set forth in the
Financials, (ii) except as incurred in the ordinary course of business
or (iii) as disclosed in the Reports.
4.5 No Material Adverse Changes. Since the date of the
Financials there has not been any change in the condition, financial
or otherwise, of the Company that would have a material adverse effect
upon the operations, business, properties or assets of the Company.
4.6 Taxes. The Company has filed all federal tax returns
and all state and municipal and local tax returns (whether relating to
income, sales, franchise, withholding, real or personal property or
other types of taxes) required to be filed (after giving effect to
all permissible extensions) through the date hereof under the laws of
the United States and applicable states and have paid in full all
taxes which have become due pursuant to such returns or claimed to be
due by any taxing authority or otherwise due and owing; provided,
however, that the Company has not paid any tax, assessment, charge,
levy or license fee that it contests in good faith and by proper
proceedings and adequate reserves for the accrual of same are
maintained if required by generally accepted accounting principles.
4.7 Finder's Fees: Other Arrangements. The Company is not
obligated to pay a finder's fee to anyone in connection with the
introduction of the Company to the Placement Agent or pay for any
other arrangements, agreements or understanding in connection with the
Offering. The Company has not paid any monies or other compensation
or issued any securities to any member of the National Association of
Securities Dealers Inc. ("NASD") or to any affiliate or associate of
such a member during the prior twelve months (except for payments to
the Placement Agent hereunder).
4.8 No Pending Actions. There are no actions, suits,
proceedings, claims or hearings of any kind or nature or, to the
knowledge of the Company, any investigations or inquiries, before or
by any court, governmental authority, tribunal or instrumentality (or
to the knowledge of the Company, any state of facts which would give
rise thereto), pending or threatened against the Company, or involving
the properties of the Company, which may have a material adverse
effect upon the operations, business, properties, or assets of the
Company. The Company are not in violation of, or in default with
respect to, any law, rule, regulation, order, judgment, or decree or
such as in the aggregate do not now have and will not in the future
have a material adverse effect upon the operations, business,
properties, or assets of the Company.
4.9 Private Offering Exemption: Offering Documents. This
Offering will conform in all material respects with the requirements
of Rule 506 of Regulation D (assuming all subscribers are "accredited
investors" as that term is defined in Rule 501 of Regulation D) and
with the requirements of all other applicable published rules and
regulations of the Commission currently in effect relating to "private
offerings." The Offering Documents, at all times during the period
from the date hereof through the last Additional Closing Date do not
and will not contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. The preceding sentence does not apply to information
contained in or omitted from the Offering Documents in reliance upon
and in conformity with written information furnished to the Company by
or on behalf of the Placement Agent specifically for use therein.
4.10 No Subsequent Actions. Except as may otherwise be
properly described in this Agreement, the Company has not (A) issued
any securities, (B) incurred any liability or obligation, primary or
contingent, for borrowed money or entered into any transaction, not in
the ordinary course of business, or (C) declared or paid any dividend
on its capital stock.
4.11 No Anti-Dilution Adjustment; No Right to Participate
in Offering; No Right of First Refusal. (a) The issuance of the
Debentures will not give any holder of any of the Company's
outstanding options, warrants or other convertible securities or
rights to purchase shares of the Company's capital stock, the right to
purchase any additional shares of capital stock, the right to be
issued any capital stock and/or the right to purchase capital stock at
a reduced price.
(b) No person has the right of first refusal to provide the
Company with financing or to act as managing underwriter or placement
agent of the Company's securities.
(c) No person has the right to participate as a
placement agent or other selling agent in the transactions contemplated by this
Agreement other than the Placement Agent and Selected Dealers.
4.12 No Regulatory Problems. Except as disclosed in the
Reports, the Company (i) has not filed a registration statement which
is the subject of any proceeding or examination under Section 8 of the
Securities Act, or is not the subject of any refusal order or stop
order thereunder; (ii) is not subject to any pending proceeding under
Rule 258 of the Securities Act or any similar rule adopted under
Section 3(b) of the Securities Act, or to an order entered thereunder;
(iii) has not been convicted of any felony or misdemeanor in
connection with the purchase or sale of any security or involving the
making of any false filing with the Commission; (iv) is not subject to
any order, judgment, or decree of any court of competent jurisdiction
temporarily, preliminarily, or permanently restraining or enjoining,
the Company from engaging in or continuing any conduct or practice in
connection with the purchase or sale of any security or involving the
making of any false filing with the Commission; and (v) is not subject
to a United States Postal Service false representation order entered
under Section 3005 of Title 39, United States Code; or a temporary
restraining order or preliminary injunction entered under Section 3007
of Title 39, United States Code, with respect to conduct alleged to
have violated Section 3005 of Title 39, United States Code. None of
the Company's directors, officers, or beneficial owners of five
percent or more of any class of its equity securities (i) has been
convicted of any felony or misdemeanor in connection with the purchase
or sale of any security, involving the making of a false filing with
the Commission, or arising out of the conduct of the business of an
underwriter, broker, dealer, municipal securities dealer, or
investment advisor; (ii) is subject to any order, judgment, or decree
of any court of competent jurisdiction temporarily or preliminary
enjoining or restraining, or is subject to any order, judgment, or
decree of any court of competent jurisdiction, permanently enjoining
or restraining such person from engaging in, or continuing, any
conduct or practice in connection with the purchase or sale of any
security, or the involving of making a false filing with the
Commission, (iii) is subject to an order of the Commission entered
pursuant to Section 15(b), 15B(a), or 15B(c) of the Securities
Exchange Act of 1934, as amended ("1934 Act"), or is subject to an
order of the Commission entered pursuant to Section 203(e) or (f) of
the Investment Advisers Act of 1940; (iv) has been suspended or
expelled from membership in, or suspended or barred from association
with a member of, an exchange registered as a national securities
exchange pursuant to Section 6 of the 1934 Act, an association
registered as a national securities association under Section 15A of
the 1934 Act, or a Canadian securities exchange or association for any
act or omission to act constituting conduct inconsistent with just and
equitable principles of trade; or (v) is subject to a United States
Postal Service false representation order entered under Section 3005
of Title 39, United States Code; or is subject to a restraining order
or preliminary injunction entered under Section 3007 of Title 39,
United States Code, with respect to conduct alleged to have violated
Section 3005 of Title 39, United States Code.
4.13 No Defaults; Violations. No default exists in the due
performance and observance by the Company of any term, covenant or
condition of any material license, contract, indenture, mortgage, deed
of trust, note, loan or credit agreement, or any other agreement or
instrument evidencing an obligation for borrowed money, or any other
agreement or instrument to which the Company is a party or by which
the Company may be bound or to which any of the properties or assets
of the Company are subject. The Company is not in violation of any
term or provision of its Articles of Incorporation or By-Laws or in
violation of any franchise, license, permit, applicable law, rule,
regulation, judgment or decree of any governmental agency or court,
domestic or foreign, having jurisdiction over the Company or any of
their properties or business which violation would have a material
adverse effect on the Company.
4.14 Conduct of Business. (i) The Company has all
requisite corporate power and authority, and have all necessary
authorizations, approvals, orders, licenses, certificates and permits
of and from all governmental regulatory officials and bodies to own or
lease properties and conduct its business, and (ii) the Company has
been doing business in compliance with all such material
authorizations, approvals, orders, licenses, certificates and permits
and all federal, state and local laws, rules and regulations except
where the failure to be in compliance would not have a material
adverse effect on the Company.
4.15 Title to Property; Insurance. The Company has good
and marketable title to, or valid and enforceable leasehold estates
in, all items of real and personal property (tangible and intangible)
owned or leased by it, free and clear of all liens, encumbrances,
claims, security interests, defects and restrictions of any material
nature whatsoever, and liens for taxes not yet due and payable. The
Company has insured its properties against loss or damage by fire or
other casualty in amounts customarily maintained by companies of
comparable size to the Company engaged in similar business.
4.16 Intangibles. The Company owns or possesses the
requisite licenses or rights to use all trademarks, service marks,
service names, trade names, patents, patent applications, copyrights
and other rights (collectively, "Intangibles") described as used or
owned by it. There is no pending or threatened claim or action by any
person pertaining to, or which challenges the exclusive right of the
Company with respect to any Intangibles used in the conduct of the
Company's business. The Intangibles and the Company's current
products, services and processes do not infringe on any intangibles
rights held by any third party. No others have infringed upon the
Intangibles of the Company.
4.17 Employment and Consulting Agreements. The Company is
not a party to any consulting or employment agreements.
4.18 SEC Filings. The Commission has not issued any order
preventing or suspending the use of any Company prospectus. At the
time the public filings of the Company were filed none of such filings
included any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances
under which they were made.
4.19 Transactions with Affiliates. (i) The Company has no
indebtedness due from its respective officers, directors or
stockholders or any of their respective relatives or affiliates, or
(b) none of the officers, directors or stockholders of the Company or
their respective relatives or affiliates has made any claim against
the Company.
4.20 Related Party Transactions. There are no business
relationships or related-party transactions of the nature described in
Item 404 of Regulation S-B involving the Company and any person
described in such Item that are required to be disclosed in the public
filings and that have not been so disclosed therein.
5. Representation, Warranties and Covenants of the Placement
Agent. The Placement Agent represents, warrants and covenants as
follows:
(a) During the Offering Period, the Placement Agent
shall use its best efforts to make offers and sales to qualified
accredited investors.
(b) The Placement Agent is and shall remain until the
Termination Date a member in good standing of the NASD and duly
registered under the 1934 Act.
(c) Offers and sales of the Units by the Placement
Agent will only be made in such jurisdictions in which the Placement
Agent is a registered broker-dealer or where an applicable exemption
from such registration exists and/or where required "blue sky" filings
were made.
(d) The Placement Agent shall not solicit any offer
to buy or offer to sell the Debentures: (i) by any form of general
solicitation or advertising (as such terms are used in Regulation D),
including, but not limited to, any advertisement, article, notice, or
other communication published in any newspaper, magazine, or similar
medium or broadcast over television or radio or any seminar or meeting
whose attendees have been invited by any general solicitation or
advertising, and (ii) in any manner involving a public offering within
the meaning of Section 4(2) of the Securities Act; provided, however,
that nothing in this Section 5(d) shall impute any liability on the
Placement Agent for any actions of the Company or to a purchaser which
the Placement Agent has reason to believe is or may not be an
"accredited investor" (as such term is defined in Regulation D).
(e) The Placement Agent shall comply with all
requirements imposed upon the Placement Agent by the Securities Act,
as now and hereafter amended, and by all applicable state securities
laws and regulations, to permit the continuance of offers and sales of
the Debentures, in accordance with Section 4(2) and Regulation D, the
provisions hereof and the Offering Documents.
(f) The Placement Agent has full right, power and
authority to enter into this Agreement, to act as Placement Agent with
respect to the offer and sale of the Units and to carry out the
requirements and obligations imposed upon it by this Agreement. This
Agreement has been duly authorized, executed and delivered by the
Placement Agent, is the legal, valid and binding obligation of the
Placement Agent, and is enforceable as to the Placement Agent in
accordance with its terms (except as rights to indemnification may be
limited by federal or state securities laws and subject to applicable
bankruptcy, insolvency and other laws affecting the enforceability of
creditors' rights generally and to general equitable principles).
6. Indemnification and Contribution.
(a) Indemnification by the Company. The Company
agrees to indemnify and hold harmless the Placement Agent and its
officers, directors, employees, agents, and each person, if any, who
controls the Placement Agent within the meaning of the Securities Act
and/or the 1934 Act and its counsel from and against any losses,
claims, damages or liabilities, joint or several, to which the
Placement Agent or such other indemnified person may become subject,
under the Securities Act or otherwise, insofar as and to the extent
that such losses, claims, damages or liabilities (or action in respect
thereof) arise out of are based upon (i) any untrue statement or
alleged untrue statement of a material fact contained (A) in the
Offering Documents, or (B) in any Blue Sky application or other
document executed by the Company specifically for Blue Sky purposes or
based upon any other written information furnished by the Company or
on its behalf to any state or other jurisdiction in order to qualify
any or all of the Common Stock under the securities laws thereof (any
such application, document, or information being hereinafter called
"Blue Sky Application"), or (ii) the omission or alleged omission by
the Company to state in the Offering Documents or in any Blue Sky
Application a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under
which they were made, not misleading; and will reimburse the Placement
Agent and each such other indemnified person for any legal or other
expenses reasonably incurred by the Placement Agent or such other
indemnified person in connection with investigating or defending any
such loss, claim, damage, liability or action.
(b) Indemnification by the Placement Agent. The
Placement Agent agrees to indemnify and hold harmless the Company and
each person, if any, who controls the Company within the meaning of
the Securities Act and/or the 1934 Act, including all officers and
directors of the Company, counsel and accountants from and against any
losses, claims, damages or liabilities, joint or several, to which
they may become subject, under the Securities Act or otherwise insofar
as such losses, claims, damages or liabilities (or action in respect
thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of a material fact contained (A) in the
Offering Documents, or (B) in any Blue Sky Application, or (ii) the
omission or alleged omission by the Company to state in the Offering
Documents or in any Blue Sky Application a material fact required to
be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
but in each case, only if and to the extent that such untrue statement
or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished
to the Company by the Placement Agent specifically for use with
reference to the Placement Agent in the preparation of the Offering
Documents or any such Blue Sky Application; or (iii) any other Non-
Indemnity Event; and will reimburse the Company and for any legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided that such loss, claim, damage or liability is found
ultimately to arise out of or be based upon the circumstances
described in clauses (i), (ii), or (iii) of this Section 8(b).
(c) Procedure. Promptly after receipt by an
indemnified party under this Section 8 of notice of the commencement
of any action, such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this
Section 8, notify in writing the indemnifying party of the
commencement thereof; and the omission so to notify the indemnifying
party within thirty (30) days will relieve the indemnifying party from
any liability under this Section 8 as to the particular item for which
indemnification is then being sought, but not from any other for which
it may have to be an indemnifying party. In case any such action is
brought against any indemnified party, and it notifies an indemnifying
party of the commencement thereof within the time period set forth
above, the indemnifying party will be entitled to participate therein,
and to the extent that it may wish, jointly with any other
indemnifying party, similarly notified, to assume the defense thereof,
with counsel who shall be to the reasonable satisfaction of such
indemnified party, and after notice from the indemnifying party to
such indemnified party of its election so to assume the defense
thereof and the retaining of such counsel by the indemnifying party,
the indemnifying party shall not be liable to such indemnified party
in connection with the defense thereof, other than the reasonable
costs of investigation, unless the indemnified party shall have
reasonably concluded that there are or may be defenses available to it
which are different from or in addition to those available to the
indemnifying party (in which case the indemnifying party shall not
have the right to direct the defense of such action on behalf of the
indemnified party), in any of which circumstances expenses of one
additional counsel shall be borne by the indemnifying party. Any such
indemnifying party shall not be liable to any such indemnified party
on account of any settlement of any claim or action effected without
the consent of such indemnifying party.
(d) Contribution. If the indemnification provided for
in this Section 8 is unavailable to any indemnified party in respect
to any losses, claims, damages, liabilities or expenses referred to
therein, then the indemnifying party, in lieu of indemnifying such
indemnified party, will contribute to the amount paid or payable by
such indemnified party, as a result of such losses, claims, damages,
liabilities or expenses (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand,
and the Placement Agent on the other hand, from the Offering, (ii) if
the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above, but also
the relative fault of the Company on one hand, and of the Placement
Agent on the other hand in connection with statements or omissions
which resulted in such losses, claims, damages, liabilities or
expenses as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand, and the
Placement Agent on the other hand, shall be deemed to be in the same
proportion as the total proceeds from the Offering (net of sales
commissions, but before deducting expenses) received by the Company,
bear to the commissions received by the Placement Agent. The relative
fault of the Company on the one hand, and the Placement Agent on the
other hand, will be determined with reference to, among other things,
whether the untrue or alleged untrue statement of material fact or the
omission to state a material fact relates to information supplied by
the Company or the Placement Agent, and its relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission by either party.
(e) Attorneys' Fees. The amount payable by a party
under this Section 8 as a result of the losses, claims, damages,
liabilities or expenses referred to above will be deemed to include
any legal or other fees or expenses reasonably incurred by such party
in connection with investigating or defending any action or claim.
9. Termination. The Placement Agent will have the right to
terminate this Agreement by giving written notice as herein specified,
at any time, at or prior to the Closing Date if the Company shall have
failed, refused, or been unable to perform any of its obligations
hereunder, or breached any of its representations or warranties
hereunder not cured promptly after 20 days' notice. The Placement
will have the further right to terminate this Agreement by giving
written notice at any time at or prior to the Closing Date if, in the
Placement Agent's opinion, there has occurred an event materially and
adversely affecting the Company.
10. Notices. Any notice hereunder shall be in writing and
shall be effective when delivered in person or by facsimile
transmission, or mailed by certified mail or private courier service,
postage prepaid, return receipt requested, to the appropriate parties,
at the following addresses: if to the Placement Agent, to May Davis
Group, Inc., 14 Wall Street, Suite 1615, New York, New York 10005; if
to the Company, to 5G Wireless Communications, Inc., 1350 East
Flamingo Road, Suite 414, Las Vegas, Nevada 89119, or in each case, to
such other address as the parties may hereinafter designate by like notice.
11. Parties. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and
permitted assigns. Neither party may assign this Agreement or its
obligations hereunder without the prior written consent of the other
party. This Agreement is intended to be, and is for the sole and
exclusive benefit of the parties hereto and the persons described in
Section 8(a) and 8(b) hereof, and their respective successors and
permitted assigns, and for the benefit of no other person, and no
other person will have any legal or equitable right, remedy or claim
under, or in respect of this Agreement.
12. Amendment and/or Modification. Neither this Agreement, nor
any term or provision hereof, may be changed, waived, discharged,
amended, modified, or terminated orally, or in any manner other than
by an instrument in writing signed by each of the parties hereto.
13. Further Assurances. Each party to this Agreement will
perform any and all acts and execute any and all documents as may be
necessary and proper under the circumstances in order to accomplish
the intents and purposes of this Agreement and to carry out its
provisions.
14. Validity. In case any term of this Agreement will be held
invalid, illegal or unenforceable, in whole or part, the validity of
any of the other terms of this Agreement will not in any way be
affected thereby.
15. Waiver of Breach. The failure of any party hereto to insist
upon strict performance of any covenants and agreements herein
contained, or to exercise any option or right herein conferred in any
one or more instances, will not be construed to be a waiver or
relinquishment of any such option or right, or of any other covenants
or agreements, and the same will be and remain in full force and effect.
16. Entire Agreement. This Agreement contains the entire
agreement and understanding of the parties with respect to the subject
matter hereof and thereof, respectively, and there are no
representations, inducements, promises or agreements, oral or
otherwise, not embodied in this Agreement. Any and all prior
discussions, negotiations, commitments and understanding relating to
the subject matter of these agreements are superseded by this Agreement.
17. Counterparts. This Agreement may be executed in
counterparts and each of such counterparts will for all purposes be
deemed to be an original, and such counterparts will together
constitute one and the same instrument.
18. Law. This Agreement will be deemed to have been made and
delivered in Las Vegas, Nevada and shall be governed as to validity,
interpretation, construction, effect and all other respects by
internal laws of the State of Nevada. The Company and the Placement
Agent (i) agree that any legal suit, action or proceeding arising out
of or relating to this Agreement shall be instituted exclusively in
Nevada Superior Court, County of Clark, or in the United States
District Court for the District of Nevada. The Company and the
Placement Agent further agree to accept and acknowledge service of any
and all process which may be served in any such suit, action or
proceeding in the Nevada Superior Court, County of Clark, or in the
United States District Court for the District of Nevada and agree that
service of process upon either of them mailed by certified mail to
their respective address shall be deemed in every respect effective
service of process upon either of them in any suit, action or proceeding.
19. Representations and Agreements to Survive Delivery. All
representations, warranties, covenants and agreements contained in
this Agreement shall be deemed to be representations, warranties,
covenants and agreements at the Closing Date and, if applicable, any
Additional Closing Date, and such representations, warranties,
covenants and agreements, including the indemnity and contribution
agreements contained in Section 8, shall remain operative and in full
force and effect regardless of any investigation made by or on behalf
of the Placement Agent or any indemnified person, or by or on behalf
of the Company or any person or entity which is entitled to be
indemnified under Section 8, and shall survive termination of this
Agreement or the issuance, sale and delivery of the Units. In
addition, notwithstanding any election hereunder or any termination of
this Agreement, and whether or not the terms of this Agreement are
otherwise carried out, the provisions of Sections 7 (if applicable),
8, 9, 10, 11 and 18 shall survive termination of this Agreement and
shall not be affected in any way by such election or termination or
failure to carry out the terms of this Agreement or any part thereof.
If you find the foregoing is in accordance with our
understanding, kindly sign and return to us a counterpart hereof,
whereupon this instrument along with all counterparts will become a
binding agreement between us.
Very truly yours,
5G WIRELESS COMMUNICATIONS, INC.
By: /s/ Jerry Dix
Name: Jerry Dix
Title: President
AGREED:
MAY DAVIS GROUP, INC.
By: /s/ Michael Jacobs
Michael Jacobs, Vice President