Exhibit 10.1
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AGREEMENT AND PLAN OF CORPORATE REORGANIZATION
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AGREEMENT made this 8th day of July, 1994 by and between Comstar Cellular
Network, Inc. ("Comstar Nevada"), a Nevada corporation, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
Wine, ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇ and International Wireless Incorporated, a
Delaware corporation ("International Wireless").
Preliminary Statement
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1. Comstar Nevada and its affiliates own certain assets, including but
not limited to, an interest in a telecommunications license to provide mobile
cellular, paging, virtual mailbox and payphone services in Nigeria, an
authorization to commence in-country studies leading to a full deployment of
nationwide cellular and ancillary services in the Republic of the Ivory Coast
and goodwill relating to and arising out of certain proposals made to the
governments of other African countries in connection with the provision of
cellular services by Comstar Nevada. (Collectively, all rights to
telecommunications licenses held by Comstar Nevada or its affiliates in Nigeria,
the Republic of the Ivory Coast and any other country are hereafter referred to
as the "Communication Licenses.")
2. International Wireless was organized as a Delaware corporation with an
initial capitalization of 35,000,000 shares of common stock, $.01 par value per
share. There currently are no issued and outstanding shares of International
Wireless. ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, the current President of Comstar Nevada, is the
President of International Wireless. ▇▇. ▇▇▇▇▇▇, a current director of Comstar
Nevada, and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ are the current directors of International Wireless.
3. Comstar Nevada has agreed to transfer to International Wireless all of
its Assets (as defined in Section 1.01 below), subject to the assumption of the
Assumed Liabilities (as defined in Section 1.02 below), in exchange for the
original issue of all of the outstanding shares of common stock, $.01 par value
per share, of International Wireless (the "Common Stock"), in a transaction
qualifying as a tax-free reorganization under Section 368(a)(1) of the Internal
Revenue Code of 1986, as amended (the "1986 Code")
Plan of Reorganization
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The parties hereby adopt a Plan of Reorganization intended to effect a tax-
free reorganization under Section 368(a) (1) of the 1986 Code. Pursuant to the
terms and provisions of the Agreement hereinafter set forth, the reorganization
will consist of:
1. The transfer by Comstar Nevada to International Wireless of all of the
Assets, subject to the Assumed Liabilities, in exchange solely for all of the
Common Stock;
2. The distribution by Comstar Nevada to the parties set forth on Exhibit
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A attached hereto of that number of shares of Common Stock as is set forth
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opposite each party's name thereon (the "Shares") in exchange for the execution
and delivery of (i) a release agreement substantially in the form attached as
Exhibit B hereto (the "Release, Acknowledgment and Acceptance"), and (ii) the
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surrender of any certificates for stock in Comstar Nevada in the name of such
party (the "Certificates"); and
3. The best efforts of International Wireless to negotiate and form a
strategic alliance between International Wireless and African Communications,
Inc., a company to be formed as a Delaware corporation ("Newco"), based
substantially upon the terms set forth in a Letter of Intent, dated July 5,
1994, attached as Exhibit C hereto (the "Letter of Intent").
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NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth and other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties agree as follows:
1. Transfer of Assets to International Wireless in Exchange for all of
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the Common Stock.
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Upon the terms and subject to the conditions of this Agreement,
Comstar Nevada and International Wireless shall take, or cause to be taken, the
following actions on or prior to the Closing Date (as hereinafter defined):
1.01 Transfer of the Assets of Comstar Nevada to International
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Wireless.
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(a) Comstar Nevada shall transfer, convey, assign and deliver to
International Wireless, and International Wireless shall acquire and accept from
Comstar Nevada, all of the assets, business, and goodwill of every kind,
character and description, whether tangible or intangible, whether real,
personal, or mixed, and wherever located, including but not limited to the stock
of the subsidiaries of Corns tar Nevada which are being formed in the Republic
of the Ivory Coast and Nigeria, those assets set forth on Schedule 6.06 and the
Communication Licenses, of Comstar Nevada (the "Assets"), subject to the Assumed
Liabilities of Comstar Nevada.
(b) Upon the transfer and assignment of the Assets to
International Wireless, Comstar Nevada shall deliver an Assignment Agreement
(the "Assignment Agreement"), substantially in the form of Exhibit D attached
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hereto, together with such other appropriate instruments of conveyance, transfer
and assignment as counsel to International Wireless may reasonably request.
1.02 Assumption of Liabilities by International Wireless. Upon the
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transfer of the Assets to International Wireless, International Wireless shall
execute and deliver to Comstar Nevada an Instrument of Assumption of Liabilities
(the "Instrument of Assumption") substantially in the form attached hereto as
Exhibit E, pursuant to which International Wireless shall assume and agree to
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perform, pay, honor and discharge all liabilities, obligations and commitments
of Comstar Nevada specifically set forth in Schedule 1.02 hereto (the "Assumed
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Liabilities")
1.03 Transfer of the Common Stock to Comstar Nevada. In exchange for
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the transfer of the Assets to International Wireless, International Wireless
agrees to transfer, convey, assign, and deliver the Common Stock to Corns tar
Nevada, which shall constitute all of the issued and outstanding stock of
International Wireless.
2. Exchange of the Shares for the Certificates.
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Promptly after the Closing Date, Comstar Nevada agrees to transfer,
convey, assign, and deliver to the holders of Certificates set forth on Exhibit
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A that have executed and delivered a Release, Acknowledgment and Consent, the
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Shares pursuant to an irrevocable stock power substantially in the form of
Exhibit G attached hereto (the "Stock Power"), which Shares shall constitute all
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of the Shares of International Wireless owned by Comstar Nevada at the Closing
Date, in exchange for (i) the execution and delivery by the holders of
Certificates of a Release, Acknowledgment and Acceptance and (ii) the delivery
of any Certificates in the name of such holder. Each holder of Certificates that
complied with the conditions set forth above shall receive that number of Shares
as is set forth opposite such holder's name on Exhibit A.
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3. Dissolution of Comstar Nevada. Promptly after the Closing Date,
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Comstar Nevada agrees to take all steps necessary to effect its dissolution
pursuant to Chapter 78.580 of the Nevada General Corporation Law.
4. Closing. The Closing shall take place on or before July 31, 1994 at
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the office of ▇▇▇▇ and ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at
such other place, time or date as may be mutually agreed upon in writing by the
parties (the "Closing Date").
5. Conditions to Closing.
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5.01 Obligations of Comstar Nevada. The obligations of Comstar Nevada
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under this Agreement are subject to the fulfillment, on or prior to the Closing
Date, of the following conditions precedent, each of which may be waived in
writing in the sole discretion of Comstar Nevada:
(a) Continued Truth of Representations and Warranties of
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International Wireless; Compliance with Covenants and Obligations. The
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representations and warranties of International Wireless in this Agreement shall
be true on and as of the Closing Date as though such representations and
warranties were made on and as of such date, except for any changes consented to
in writing by Comstar Nevada. International Wireless shall have performed and
complied with all terms, conditions, covenants, obligations, agreements and
restrictions required by this Agreement to be performed or complied with by it
on or prior to the Closing Date.
(b) The Shares. The Common Stock shall have been duly authorized
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and validly issued and shall be owned beneficially and of record by Comstar
Nevada, free and clear of any liens, claims, charges, options, or encumbrances.
(c) Corporate Proceedings. All corporate and other proceedings
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required to be taken on the part of International Wireless to authorize or carry
out this Agreement shall have been taken.
(d) Assumption of Liabilities. International Wireless shall have
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assumed and agreed to perform, pay, honor and discharge all of the Assumed
Liabilities, and in connection therewith, shall have executed and delivered to
Comstar Nevada the Instrument of Assumption.
(e) The number of directors constituting the entire Board of
Directors of International Wireless shall have been fixed at three (3) and
▇▇▇▇▇▇▇ ▇▇▇▇ shall have been elected as a director and shall hold such position
as of the Closing Date.
(f) ▇▇▇▇▇▇ ▇▇▇▇▇▇ shall have been appointed as an Executive Vice
President of International Wireless and, in connection therewith, shall have
executed an Employment Agreement with International Wireless.
(g) Closing Deliveries. Comstar Nevada shall have received at or
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prior to the Closing, such documents, instruments or certificates as Corns tar
Nevada shall reasonably request including, without limitation:
(i) a certificate of the President of International
Wireless, dated the Closing Date, to the effect that, in the case of
International Wireless, the condition specified in Section 5.01(a) has been
satisfied;
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(ii) incumbency certificates, dated the Closing Date, for
the officers of International Wireless executing this Agreement or any of the
agreements contemplated hereby;
(iii) a certificate of the Secretary of International
Wireless, certifying the attached copies of the Bylaws of International Wireless
and the resolutions adopted by the Board of Directors of International Wireless
authorizing the execution and delivery by International Wireless of this
Agreement and the consummation of the transactions contemplated thereby;
(iv) a copy of the Certificate of Incorporation of
International Wireless, certified by the Secretary of State of the State of
Delaware;
(v) certificates of the Secretary of State of the State of
Delaware, dated a recent date, certifying as to the good standing of
International Wireless in the State of Delaware;
(vi) the stock certificates representing the Common Stock
duly endorsed in accordance with Section 1.03 of this Agreement; and
(vii) a cross-receipt executed by International Wireless and
Comstar Nevada.
(h) All corporate and legal proceedings taken by International
Wireless in connection with the transactions contemplated by this Agreement and
all documents and papers relating to such transactions shall be reasonably
satisfactory in form and substance to Comstar Nevada and its counsel.
5.02 Obligations of International Wireless.
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The obligations of International Wireless under this Agreement are
subject to the fulfillment, on or prior to the Closing Date, of the following
conditions precedent, each of which may be waived in writing in the sole
discretion of International Wireless:
(a) Continued Truth of Representations and Warranties of Comstar
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Nevada; Compliance with Covenants and Obligations. The representations and
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warranties of Comstar Nevada in this Agreement shall be true on and as of the
Closing Date as though such representations and warranties were made on and as
of such date, except for any changes consented to in writing by International
Wireless. Comstar Nevada shall have performed and complied with all terms,
conditions, covenants, obligations, agreements and restrictions required by this
Agreement to be performed or complied with by them on or prior to the Closing
Date.
(b) Transfer of the Assets. Comstar Nevada shall have
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transferred, conveyed and assigned all of its right, title and interest in and
to the Assets in exchange for all of the Common Stock and, in connection
therewith, shall have executed and delivered to International Wireless the
Assignment Agreement.
(c) Corporate Proceedings. All corporate and other proceedings
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required to be taken on the part of International Wireless to authorize or carry
out this Agreement shall have been taken.
(d) Promissory Note. Comstar Nevada shall have executed a
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Promissory Note in the amount of $110,000, in favor of International Wireless in
consideration of the amounts paid
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by International Wireless on behalf of Comstar Nevada in connection with the
Communications Licenses and the creation of the subsidiaries of Comstar Nevada
in Nigeria and the Republic of the Ivory Coast.
(e) Release, Acknowledgment and Acceptance. Corns tar Nevada
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shall have received from each of the holders of Certificates set forth on
Exhibit F attached hereto a fully executed Release, Acknowledgment and
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Acceptance together with the delivery of all Certificates registered in such
holder's name.
(f) Closing Deliveries. International Wireless shall have
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received at or prior to the Closing, such documents, instruments or certificates
as International Wireless shall reasonably request including, without
limitation:
(i) a certificate of the President of Comstar Nevada,
dated the Closing Date, to the effect that, in the case of Comstar Nevada, the
condition specified in Section 5.02(a) has been satisfied;
(ii) incumbency certificates, dated the Closing Date, for
the officers of Comstar Nevada executing this Agreement or any of the agreements
contemplated hereby;
(iii) a certificate of the Secretary of Comstar Nevada,
certifying the attached copies of the By-laws of Comstar Nevada and the
resolutions adopted by the Board of Directors and stockholders of Corns tar
Nevada authorizing the execution and delivery by Corns tar Nevada of this
Agreement and the consummation of the transactions contemplated thereby;
(iv) a copy of the Articles of Incorporation of Comstar
Nevada, certified by the Secretary of State of the State of Nevada;
(v) certificates of the Secretary of State of the State of
Nevada, dated a recent date, certifying as to the good standing of Comstar
Nevada in the State of Nevada; and
(vi) a cross-receipt executed by International Wireless and
Comstar Nevada.
(g) All corporate and legal proceedings taken by Comstar Nevada
in connection with the transactions shall be reasonably satisfactory in form and
substance to International Wireless and its counsel.
6. Representations and Warranties of Comstar Nevada.
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Cornstar Nevada represents and warrants to International Wireless as
follows:
6.01 Organization. Comstar Nevada is a corporation duly organized,
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validly existing, and in good standing under the laws of the State of Nevada.
Certified copies of the Articles of Incorporation and By-laws of Comstar Nevada,
as amended to date, have been delivered to International Wireless, are complete
and correct, and no amendments have been made thereto or have been authorized
since the date thereof.
6.02 Original Capitalization. To the best knowledge of Comstar
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Nevada, Comstar Nevada's authorized capital stock consists of 75,100 shares of
common stock, $1.00 par value per share, of which 50,100 shares are issued and
outstanding on the date hereof. All such issued and outstanding shares of common
stock have been and on the Closing Date will be duly and validly issued and are,
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or will be on such date, fully paid and non-assessable. There are not, and on
the Closing Date there will not be, outstanding any options or other rights to
purchase from Comstar Nevada any capital stock of Comstar Nevada.
6.03 Authorization. The execution and delivery by Comstar Nevada of
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this Agreement and the agreements provided for herein, and the consummation by
Corns tar Nevada of all transactions contemplated hereunder and thereunder by
Corns tar Nevada have been duly authorized by all requisite corporate action.
This Agreement has been duly executed by Comstar Nevada. This Agreement and all
other agreements and obligations entered into and undertaken in connection with
the transactions contemplated hereby to which Corns tar Nevada is a party
constitute the valid and legally binding obligations of Comstar Nevada,
enforceable against it in accordance with their respective terms. The
execution, delivery and performance by Corns tar Nevada of this Agreement and
the agreements provided for herein, and the actions contemplated hereby and
thereby, will not violate the provisions of the Articles of Incorporation or By-
laws of Comstar Nevada. Schedule 6.03 attached hereto sets forth a true, correct
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and complete list of all consents and approvals of third parties that are
required in connection with the consummation by Corns tar Nevada of the
transactions contemplated by this Agreement.
6.04 Absence of Undisclosed Liabilities. Except as and to the extent
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reflected on Schedule 1.02, either individually or in the aggregate, Comstar
Nevada has no liabilities or obligations, secured or unsecured, which are
material to the condition (financial or otherwise) of the Assets, properties,
business or prospects of Comstar Nevada.
6.05 Litigation. There is no action, suit or proceeding to which
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Corns tar Nevada is a party (either as a plaintiff or defendant) pending before
any court or governmental agency, authority, body or arbitrator.
6.06 Assets. Schedule 6.06 attached hereto sets forth a true, correct
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and complete list of all Assets of Comstar Nevada as of the date hereof which
are in the possession of or used or useful in the business of Comstar Nevada.
6.07 Tax Matters.
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(a) Except as set forth on Schedule 6.07 attached hereto:
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(i) Within the times and in the manner prescribed by law,
Comstar Nevada has filed all federal, state and local tax returns which are
required to be filed; and
(ii) Comstar Nevada has paid all taxes, interest,
penalties, assessments and deficiencies which have become due or which have been
claimed to be due.
6.08 Disclosure. To the best of its knowledge, Comstar Nevada has
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disclosed to International Wireless all material facts pertaining to the
transactions contemplated by this Agreement and the Exhibits hereto. Copies of
all documents heretofore or hereafter delivered or made available to
International Wireless pursuant to this Agreement were or will be complete and
accurate copies of such documents.
6.09 Assets of International Wireless. On the Closing Date, all of
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the Assets, properties, business, and goodwill of every kind, character, and
description, whether tangible or intangible, whether real, personal, or mixed,
and wherever located, including but not limited to the stock of the subsidiaries
of Corns tar Nevada being formed in Nigeria and the Republic of the Ivory Coast
and the Communication Licenses, of Comstar Nevada, subject to the debts,
liabilities, contracts,
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and obligations of Comstar Nevada described in Sections 1.01 and 1.02
respectively, shall have been transferred, assigned, conveyed, and delivered to
International Wireless.
7. Affirmative Covenants of Comstar Nevada.
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7.01 Further Assurances. At any time and from time to time after the
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Closing Date, at the request of International Wireless and without further
consideration, Comstar Nevada shall promptly execute and deliver such
instruments of transfer, conveyance, assignment and confirmation, and take all
such other action as International Wireless may reasonably request:
(a) to put International Wireless in actual possession and
operating control of the Assets and business of Comstar Nevada;
(b) to assist International Wireless in exercising all rights
with respect thereto and to carry out the purpose and intent of this Agreement;
and
(c) to prosecute or otherwise enforce in its own name for the
benefit of International Wireless, and at International Wireless's expense, any
and all claims or rights in the name of Comstar Nevada, which, or the benefits
of which, are acquired by International Wireless pursuant to this Agreement and
which are required to be prosecuted or otherwise enforced in Comstar Nevada's
name.
7.02 Distribution of the Shares. Immediately following the Closing
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Date, Comstar Nevada agrees to distribute to each of the holders of Certificates
set forth on Exhibit F attached hereto that have executed and delivered a
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Release, Acknowledgment and Consent, that number of Shares as is set forth
opposite such holders name Exhibit A, together with a fully executed Stock
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Power.
7.03 Dissolution of Comstar Nevada. Promptly following the
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distribution of the Certificates as described in Section 7.02, Comstar Nevada
agrees to take all steps necessary to undertake a liquidation, dissolution and
winding up of its operations and to dissolve itself as a corporation in the
State of Nevada.
8. Representations and Warranties of International Wireless.
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International Wireless represents and warrants to Comstar Nevada as
follows:
8.01 Organization of International Wireless. International Wireless is
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a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and will have all necessary corporate power and
authority to own and conduct the business of Comstar Nevada. Certified copies
of the Articles of Incorporation and By-laws of International Wireless, as
amended to date, have been delivered to Comstar Nevada, are complete and
correct, and no amendments have been made thereto or have been authorized since
the date thereof.
8.02 Authorized Capital of International Wireless. The authorized
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capital of International Wireless consists of 35,000,000 shares of common stock,
$.01 par value per share, none of which is currently issued and outstanding. On
the Closing Date, all of the issued and outstanding shares shall have been duly
authorized and validly issued and shall be owned beneficially and of record by
Comstar Nevada, free and clear of any liens, claims, charges, options, or
encumbrances. There are not, and on the Closing Date there will not be,
outstanding any options or other rights to purchase from International Wireless
any capital stock of International Wireless.
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8.03 Authorization. The execution and delivery by International
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Wireless of this Agreement and the agreements provided for herein, and the
consummation by International Wireless of all transactions contemplated
hereunder and thereunder by International Wireless have been duly authorized by
all requisite corporate action. This Agreement has been duly executed by
International Wireless. This Agreement and all other agreements and obligations
entered into and undertaken in connection with the transactions contemplated
hereby to which International Wireless is a party constitute the valid and
legally binding obligations of International Wireless, enforceable against it in
accordance with their respective terms. The execution, delivery and performance
by International Wireless of this Agreement and the agreements provided for
herein, and the actions contemplated hereby and thereby, will not violate the
provisions of the Articles of Incorporation or By-laws of International
Wireless.
9. Covenant of International Wireless.
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9.01 Strategic Alliance with Newco. International Wireless shall use
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its best efforts to negotiate and form a strategic alliance with Newco based
substantially on the terms set forth in the Letter of Intent.
10. Indemnification.
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10.01 Indemnification by International Wireless. International
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Wireless agrees to indemnify Comstar Nevada and hold it harmless against and in
respect of any and all payments, damages, claims, demands, losses, expenses,
costs, obligations and liabilities (including, without limitation, settlement
costs and any other legal, accounting or other expenses for investigating or
defending any actions or threatened actions) in connection with:
(a) any breach of or failure of International Wireless to
perform any representation and warranty, commitment, obligation, covenant or
condition under this Agreement, any of the Schedules or Exhibits hereunder or
any of the agreements contemplated hereby; or
(b) the operation of the business of Comstar Nevada subsequent
to the Closing Date.
International Wireless shall reimburse Corns tar Nevada on demand for any
payment made or loss suffered by Comstar Nevada at any time after the Closing
Date, based upon the judgment of any court of competent jurisdiction or pursuant
to a bona fide compromise or settlement (which shall be approved by
International Wireless, such approval not to be withheld unreasonably). No
indemnity pursuant to this Section 10 shall be available until the aggregate
amount of all claims made hereunder shall exceed $25,000 and then shall be
available only to the extent that such claims in the aggregate exceed $100,000.
10.02 Indemnification by Comstar Nevada. Comstar Nevada, its officers
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and directors each jointly and severally agrees to indemnify International
Wireless and hold it harmless against and in respect of any and all payments,
damages, claims, demands, losses, expenses, costs, obligations and liabilities,
(including, without limitation, settlement costs and any other legal, accounting
or other expenses for investigating or defending any actions or threatened
actions) in connection with:
(a) any breach or failure of Comstar Nevada to perform any
representation and warranty, commitment, obligation, covenant or condition under
this Agreement, any of the Schedules hereunder or any of the agreements
contemplated hereby; or
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(b) any claim arising out of any and all actions taken by
Comstar Nevada prior to the Closing Date.
Comstar Nevada, its officers and directors shall reimburse International
Wireless on demand for any payment made or loss suffered by International
Wireless at any time after the Closing Date, based upon the judgment of any
court of competent jurisdiction or pursuant to a bona fide compromise or
settlement (which shall be approved by Comstar Nevada, such approval not to be
withheld unreasonably). No indemnity pursuant to this Section 10 shall be
available until the aggregate amount of all claims made hereunder shall exceed
$25,000 and then shall be available only to the extent that such claims in the
aggregate exceed $100,000.
10.03 Claims for Indemnification. Whenever any claim shall arise for
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indemnification under this Section 10, the party seeking indemnification (the
"Indemnified Party") shall promptly notify the party required to indemnify (the
"Indemnifying Party") of the claim and, when known, the facts constituting the
basis for such claim. In the event of any such claim for indemnification
hereunder resulting from or in connection with any claim or legal proceedings by
a third party, the notice shall specify, if known, the amount or an estimate of
the amount of the liability arising therefrom. The Indemnified Party shall not
settle or compromise any claim by a third party for which it is entitled to
indemnification hereunder without the prior written consent, which shall not be
unreasonably withheld or delayed, of the Indemnifying Party; provided, however,
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that if suit shall have been instituted against the Indemnified Party and the
Indemnifying Party shall not have taken control of such suit after notification
thereof as provided in Subsection 10.04 of this Agreement, the Indemnified Party
shall have the right to settle or compromise such claim upon giving notice to
the Indemnifying Party as provided in this Subsection 10.03.
10.04 Defense by the Indemnifying Party. In connection with any claim
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which may give rise to indemnity hereunder resulting from or arising out of any
claim or legal proceeding by a person other than the Indemnified Party, the
Indemnifying Party, at the sole cost and expense of the Indemnifying Party, may,
upon written notice to the Indemnified Party, assume the defense of any such
claim or legal proceeding if the Indemnifying Party acknowledges to the
Indemnified Party in writing the obligation of the Indemnifying Party to
indemnify the Indemnified Party with respect to all elements of such claim. If
the Indemnifying Party assumes the defense of any such claim or legal
proceeding, the Indemnifying Party shall select counsel reasonably acceptable to
the Indemnified Party to conduct the defense of such claims or legal proceedings
and at the sole cost and expense of the Indemnifying Party shall take all steps
necessary in the defense or settlement thereof. The Indemnifying Party shall
not consent to a settlement of, or the entry of any judgment arising from, any
such claim or legal proceeding, without the prior written consent of the
Indemnified Party (which consent shall not be unreasonably withheld or delayed).
The Indemnified Party shall be entitled to participate in (but not control) the
defense of any such action, with its own counsel and at its own expense. If the
Indemnifying Party does not assume the defense of any such claim or litigation
resulting therefrom within 30 days after the date such claim is made: (a) the
Indemnified Party may defend against such claim or litigation in such manner as
it may deem appropriate, including, but not limited to, settling such claim or
litigation, after giving notice of the same to the Indemnifying Party, on such
terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying
Party shall be entitled to participate in (but not control) the defense of such
action, with its counsel and at its own expense.
10.05 Payment of Indemnification Obligation. All indemnification by
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the parties hereunder, shall be effected by payment of cash or delivery of a
cashier's or certified check in the amount of the indemnification liability.
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10.06 Survival of Representations; Claims for Indemnification. All
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representations and warranties made by Comstar Nevada or International Wireless
in this Agreement, or in any instrument or document furnished in connection with
this Agreement or the transactions contemplated hereby, shall survive the
Closing for a period of one year. All such representations and warranties shall
expire on the one year anniversary of the Closing Date, except for claims, if
any, asserted in writing prior to such one year anniversary identified as a
claim for indemnification pursuant to this Section 10.
11. Termination of Agreement.
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This Agreement may be terminated by the mutual written agreement of
the parties hereto at any time prior to the Closing Date. In the event of such
termination by agreement, Comstar Nevada shall have no further obligation or
liability to International Wireless under this Agreement and International
Wireless shall have no further obligation to Corns tar Nevada under this
Agreement.
12. Notices.
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Any notices or other communications required or permitted hereunder
shall be sufficiently given if delivered personally or sent by registered or
certified mail, postage prepaid, addressed as follows or to such other address
of which the parties may have given notice:
To Comstar Nevada:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇ ▇▇▇▇▇, Esq.
▇/▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ of America Plaza
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
To International Wireless:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇/▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Unless otherwise specified herein, such notices or other communications shall be
deemed received (a) on the date delivered, if delivered personally, or (b) three
business days after being sent, if sent by registered or certified mail.
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13. Successors and Assigns.
----------------------
This Agreement shall not be assignable.
14. Entire Agreement; Attachments.
-----------------------------
14.01 Entire Agreement. This Agreement, all Schedules and Exhibits
----------------
hereto, and all agreements and instruments to be delivered by the parties
pursuant hereto represent the entire understanding and agreement between the
parties hereto with respect to the subject matter hereof and supersede all prior
oral and written and all contemporaneous oral negotiations, commitments and
understandings between such parties.
14.02 Attachments. If the provisions of any Schedule or Exhibit to
-----------
this Agreement are inconsistent with the provisions of this Agreement, the
provisions of the Agreement shall prevail. The Exhibits and Schedules attached
hereto or to be attached hereafter are hereby incorporated as integral parts of
this Agreement.
15. Severability.
------------
Any provision of this Agreement which is invalid, illegal or
unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective
to the extent of such invalidity, illegality or unenforceability, without
affecting in any way the remaining provisions hereof in such jurisdiction or
rendering that or any other provision of this Agreement invalid, illegal or
unenforceable in any other jurisdiction.
16. Expenses.
--------
Except as otherwise expressly provided herein, Corns tar Nevada will
pay all fees and expenses (including, without limitation, legal and accounting
fees and expenses) incurred by it in connection with this Agreement or the
transactions contemplated hereby. International Wireless will pay all fees and
expenses (including without limitation, legal and accounting fees and expenses)
incurred by International Wireless in connection with this Agreement or the
transactions contemplated hereby.
17. Governing Law.
-------------
This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware.
18. Section Headings.
----------------
The section headings are for the convenience of the parties and in no
way alter, modify, amend, limit, or restrict the contractual obligations of the
parties.
19. Counterparts.
------------
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same document.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of and on the date first above written.
INTERNATIONAL WIRELESS INCORPORATED
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
President
COMSTAR CELLULAR NETWORK, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
President
Only with respect to
--------------------
Section 10 herein
-----------------
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ Wine
--------------------------------
▇▇▇▇▇▇ Wine
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇
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